[Federal Register Volume 66, Number 155 (Friday, August 10, 2001)]
[Proposed Rules]
[Pages 42187-42193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20209]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 81

[CA038-FOA; FRL -7031-9]


Clean Air Act Finding of Attainment and Alternative Finding of 
Nonattainment and Reclassification to Serious; California-Imperial 
Valley Planning Area; Particulate Matter of 10 microns or less (PM-10)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to find that the State of California has 
established to EPA's satisfaction that the Imperial Valley Planning 
Area (Imperial County), a PM-10 moderate nonattainment area, would have 
attained the national ambient air quality standards (NAAQS) for 
particulate matter of ten microns or less (PM-10) by the applicable 
Clean Air Act (CAA or the Act) attainment

[[Page 42188]]

date, December 31, 1994, but for emissions emanating from outside the 
United States, i.e., Mexico. If EPA takes final action on this proposed 
finding, Imperial County will not be subject to a finding of failure to 
attain and reclassification to serious.
    Alternatively, EPA is proposing to find that Imperial County did 
not attain the PM-10 NAAQS by its CAA mandated attainment date. This 
proposed finding is based on monitored air quality data for the PM-10 
NAAQS during the years 1992-1994. If EPA takes final action on this 
proposed finding, Imperial County will be reclassified by operation of 
law as a serious nonattainment area under section 188(b)(2)(A) of the 
CAA.
    EPA is proposing the above actions in the alternative in the event 
that public comments convince EPA that the State has not established 
that Imperial County would have attained the PM-10 NAAQS but for 
international transport by the applicable attainment date.

DATES: Comments on this proposed rule must be received in writing by 
September 10, 2001.

ADDRESSES: Comments should be addressed to Doris Lo, U.S. Environmental 
Protection Agency, Region 9, Air Division, Planning Office (AIR-2), 75 
Hawthorne Street, San Francisco, California 94105.

FOR FURTHER INFORMATION CONTACT: Doris Lo, U.S. Environmental 
Protection Agency, Region 9, Air Division, Planning Office (AIR-2), 75 
Hawthorne Street, San Francisco, California 94105, (415) 744-1287, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

A. CAA Provisions and EPA Actions Concerning Designation and 
Classification

    On November 15, 1990, the date of enactment of the 1990 Clean Air 
Act Amendments, PM-10 areas meeting the qualifications of section 
107(d)(4)(B) of the Act were designated nonattainment by operation of 
law. Once an area is designated nonattainment, section 188 of the Act 
outlines the process for classification of the area and establishes the 
area's attainment date. Pursuant to section 188(a), all PM-10 
nonattainment areas were initially classified as moderate by operation 
of law upon designation as nonattainment. These nonattainment 
designations and moderate area classifications were codified in 40 CFR 
part 81 in a Federal Register notice published on November 6, 1991 (56 
FR 56694). The Imperial Valley Planning Area, consisting of all but the 
easternmost portion of Imperial County, was designated nonattainment 
and classified as moderate. See 40 CFR 81.305.
    States containing areas which were designated as moderate 
nonattainment by operation of law under section 107(d)(4)(B) were to 
develop and submit state implementation plans (SIPs) to provide for the 
attainment of the PM-10 NAAQS. Pursuant to section 189(a)(2), those SIP 
revisions were to be submitted to EPA by November 15, 1991.

B. CAA Provisions Concerning Reclassification to Serious Nonattainment

    Pursuant to sections 179(c) and 188(b)(2) of the Act, EPA has the 
responsibility to determine within 6 months of the applicable 
attainment date, whether PM-10 nonattainment areas have attained the 
NAAQS. Section 179(c)(1) of the Act provides that these determinations 
are to be based upon an area's ``air quality as of the attainment 
date,'' and section 188(b)(2) is consistent with this provision. EPA 
makes the determinations of whether an area's air quality is meeting 
the PM-10 NAAQS based upon air quality data gathered at monitoring 
sites in the nonattainment area. These data are reviewed to determine 
the area's air quality status in accordance with EPA guidance at 40 CFR 
part 50, appendix K.
    Pursuant to appendix K, attainment of the annual PM-10 standard is 
achieved when the annual arithmetic mean PM-10 concentration is equal 
to or less than 50 g/m3. Attainment of the 24-hour standard is 
determined by calculating the expected number of exceedances of the 150 
g/m3 limit per year. The 24-hour standard is attained when the 
expected number of exceedances is 1.0 or less. A total of 3 consecutive 
years of clean air quality data is generally necessary to show 
attainment of the 24-hour and annual standards for PM-10. A complete 
year of air quality data, as referred to in 40 CFR part 50, appendix K, 
is comprised of all 4 calendar quarters with each quarter containing 
data from at least 75 percent of the scheduled sampling days.
    Under section 188(b)(2)(A), a moderate PM-10 nonattainment area 
must be reclassified as serious by operation of law after the statutory 
attainment date if the Administrator finds that the area has failed to 
attain the NAAQS. Pursuant to section 188(b)(2)(B) of the Act, EPA must 
publish a notice in the Federal Register identifying those areas that 
failed to attain the standard and the resulting reclassifications.

C. CAA Provisions Concerning International Border Areas

    Imperial County shares its southern border with Mexico. CAA section 
179B(d) provides that, notwithstanding any other provision of law, any 
State that establishes to the satisfaction of EPA that a PM-10 
nonattainment area in such State would have attained the PM-10 NAAQS by 
the applicable attainment date but for emissions emanating from outside 
the United States (U.S.) shall not be subject to the provisions of CAA 
section 182(b).
    Section 179B(a) sets forth the state implementation plan (SIP) 
requirements for moderate PM-10 areas that can make the above 
demonstration.

II. Proposed Finding of Attainment Under CAA Section 179B(d)

    EPA is today proposing to find that, pursuant to CAA section 
179B(d), the State of California has established to EPA's satisfaction 
that Imperial County attained the NAAQS for PM-10 by the applicable 
attainment date, December 31, 1994, but for emissions emanating from 
outside the U.S., and thus shall not be subject to a finding of failure 
to attain and reclassification under CAA section 188(b)(2). As 
discussed below, this proposed finding is based on the ``Imperial 
County PM-10 Attainment Demonstration'' (hereafter referred to as the 
``179B(d) demonstration'') which was developed by the Imperial County 
Air Pollution Control District (ICAPCD) and transmitted to EPA by the 
California Air Resources Board (CARB) on July 18, 2001. (July 18, 2001 
letter with enclosure from Michael P. Kenny, Executive Officer, Air 
Resources Board to Ms. Laura Yoshii, Acting Regional Administrator, EPA 
Region 9).\1\
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    \1\ In his letter, Mr.Kenny state's that CARB ``worked closely 
with the Imperial County Air Pollution Control District * * * in 
developing their analysis, and agree with their conclusion that the 
area would have attained the standard from 1992 through 1994 but for 
transport from Mexico. Independent Air Resources Board analyses of 
all exceedances in that time frame support the District's 
conclusion.'' Because CARB has ratified the ICAPCD's 179B(d) 
demonstration and transmitted it to EPA, it is referred to in this 
proposal as the State's demonstration.
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    EPA has issued preliminary guidance relating to serious PM-10 
nonattainment areas \2\ (General Preamble guidance) that includes a 
discussion of the requirements applicable to international border 
areas. For these areas, the General Preamble guidance

[[Page 42189]]

discusses the information and methods that can be used in determining 
whether an area qualifies for treatment under CAA section 179B and then 
discusses SIP requirements for areas which are able to demonstrate that 
they would be in attainment but for the emissions emanating from 
outside the U.S. This proposal does not address the SIP requirements 
for the County but only the question of whether or not the State has 
established that Imperial County attained the NAAQS by December 31, 
1994 but for international transport. If EPA issues a final finding 
that the nonattainment area would have attained but for international 
transport, EPA will in separate actions address the applicable SIP 
provisions and submissions by the State.
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    \2\ ``State Implementation Plans for Serious PM-10 Nonattainment 
Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas 
Generally; Addendum to the General Preamble for the Implementation 
of Title I of the Clean Air Act Amendments of 1990,'' 59 FR 41998, 
August 16, 1994.
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    The General Preamble guidance states that ``[s]everal types of 
information may be used to evaluate the impact of emissions emanating 
from outside the U.S. The EPA will consider the information presented 
by the State for individual nonattainment areas on a case-by-case basis 
in determining whether an area may qualify for treatment under section 
179B. * * * '' The General Preamble guidance also suggests five methods 
which may be used in determining the impact of emissions emanating from 
outside the U.S. and states that ``the State may use one or more of 
these types of information or other techniques, depending on their 
feasibility and applicability, to evaluate the impact of emissions 
emanating from outside the U.S. on the nonattainment area.'' Below is a 
discussion of each of the methods as addressed in the 179B(d) 
demonstration.
    Method 1. Place several ambient PM-10 monitors and a meteorological 
station measuring wind speed and direction in the U.S. non-attainment 
area near the international border. Evaluate and quantify any changes 
in monitored PM-10 concentrations with a change in direction in the 
predominant wind direction.
    There are six PM-10 monitors in the nonattainment area, with two 
monitors in the proximity of the border (Calexico-Grant St. and 
Calexico-Ethel St., each 1.2 km from the Mexican border). A 
meteorological station at the Imperial County Airport was used to 
provide a windrose for each exceedance day. The 179B(d) demonstration 
provided, for each exceedance day, an analysis of the transport of PM-
10 from Mexico, based on the spatial distribution of PM-10 throughout 
the basin, along with a windrose, and a series of back trajectories 
(based on the National Oceanic and Atmospheric Administration HYSPLIT 
program). More details of this analysis are presented in the technical 
support document (TSD) for today's proposed rule.
    PM-10 exceedances were recorded on seven days in the 1992-1994 time 
period. An analysis of the exceedances, which includes the spatial 
plots, windroses, and trajectories for each of the days, is presented 
in Appendix A to the 179B(d) demonstration. EPA's TSD discusses in 
detail each of the days and the basis for concluding that exceedances 
would not have occurred but for transport from Mexico.
    For five of the days (August 23, 1993, July 7, 1994, August 6, 
1994, October 17, 1994, and December 16, 1994) the analysis clearly 
supports the conclusion that but for the transport of emissions from 
Mexico, the PM-10 concentrations would not have exceeded the standard. 
The spatial plots for these days indicate a pattern of higher 
concentration near the border and show PM-10 concentrations decreasing 
with distance from the border. The windroses for August 23, 1993, July 
7, 1994, August 6, 1994, indicate that a large number of hours (17 to 
19) have the potential to carry emissions from Mexico to Imperial 
County.
    For two of the exceedance days (January 19, 1993, and January 25, 
1993) there are less data on which to base an analysis. The days are 
similar in character. For each day, there is only one measured value, 
at the Brawley monitor, which is slightly more than 20 miles from the 
border, so the spatial plot is inconclusive. The days are classified as 
stagnant. The windroses show that there is a potential to carry 
emissions from Mexico for 14 of 24 hours. The January 19, 1993 PM-10 
concentration is only slightly above the standard (162 g/
m\3\), and is likely to have been influenced by transport, given the 
stagnant conditions and the shape of the windrose. A PM-10 value of 175 
g/m\3\ was measured on January 25, 1993. The emissions from 
Mexico are likely to have contributed to the PM-10 concentration at the 
monitor, although it is difficult to precisely quantify the extent of 
the contribution. Given the magnitude of emissions in the City of 
Mexicali (see method 4 discussion below), it is likely that the PM-10 
standard would not have been exceeded but for the contribution of 
emissions from Mexico.
    Method 2. Comprehensively inventory PM-10 emissions within the U.S. 
in the vicinity of the nonattainment area and demonstrate that the 
impact of those sources on the nonattainment area after application of 
reasonably available controls does not cause the NAAQS to be exceeded. 
This analysis must include an influx of background PM-10 in the area. 
Background PM-10 levels could be based on concentrations measured in a 
similar area not influenced by emissions from outside the U.S.
    The 179B(d) demonstration relied on the most recent gridded 
modeling inventory available. This inventory was prepared by CARB as 
part of the Southern California Ozone Study,\3\ using 1997 emissions 
data. A background concentration of 25 g/m\3\ was used, based 
on an analysis of the distribution of observed PM-10 data in Imperial 
County. The 25 g/m\3\ value represents the 10% cleanest days 
monitored in Imperial County. The inventory and background level were 
included in the modeling analysis discussed under method 5 below. The 
179B(d) demonstration did not include an analysis of Method 2.
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    \3\ The Southern California Ozone Study (SCOS) was a large-scale 
field measurement program carried out in southern California during 
the summer of 1997 to collect sufficient aerometric data to allow 
data analysts and modelers to characterize and simulate ozone 
formation and fate in the region. Several agencies and others 
participated during the planning and operational phases of the field 
study, including CARB, EPA, local districts, the U.S. Navy, and the 
marine industry.
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    Method 3. Analyze ambient sample filters for specific types of 
particles emanating from across the border (although not required, 
characteristics of emissions from foreign sources may be helpful.)
    The 1992-1993 Imperial Valley/Mexicali Cross Border PM-10 Transport 
Study (Final Report, January 30, 1997) includes an analysis of the 
particles collected in areas within Imperial County where violations 
have been recorded. This sample analysis determined that geological 
dust (70-90%), motor vehicle exhaust (10-15%) and vegetative burning 
(10%) account for the highest contribution to PM-10 concentrations. 
These are the predominant emissions sources on both sides of the 
border. Thus, the filter analysis by itself could not be used to 
determine the extent to which violations might result from 
international transport; however, as discussed in the TSD, the 
transport study provided conclusions about the international 
contribution based on a meteorological analysis of airflow in the study 
area.
    Method 4. Inventory the sources on both sides of the border and 
compare the magnitude of PM-10 emissions originating within the U.S. to 
those emanating from outside the U.S.
    The 1996 PM-10 emission inventory for the City of Mexicali, 
compiled by Radian (Radian International 2000

[[Page 42190]]

Mexicali Air Emission Inventory, February 2000) is of lower quality 
than the emissions inventory for the Imperial County sources; however, 
it is useful for a comparison of the magnitude of PM-10 emissions from 
each side of the border. The estimated emissions for the City of 
Mexicali (257 tons/day) are approximately equal to the PM-10 inventory 
for Imperial County (246 tons/day). The density of the emissions is 
much higher in Mexicali than in Imperial County because the City of 
Mexicali covers a much smaller geographic area than Imperial County. 
Furthermore, the City of Mexicali is in close proximity to that portion 
of Imperial County where violations have been recorded. This comparison 
does not prove PM-10 transport into Imperial County, but it does 
suggest that the City of Mexicali has the potential to be a substantial 
source contributing to the PM-10 concentrations in Imperial County 
because of the magnitude of the emissions, the density of the 
emissions, and the proximity to Imperial County.

  Table A.--Comparison of Imperial County and Mexicali PM-10 Emissions
------------------------------------------------------------------------
                                                  Imperial     City of
                                                   county      Mexicali
------------------------------------------------------------------------
1996 PM-10 Emissions (tons/day)...............          246          257
Population (2000).............................      142,361      662,617
Area--square miles............................         4060          200
Growth rate in percent (1990-2000)............           30          42
------------------------------------------------------------------------
 Source: 1996 PM-10 emission inventory for the City of Mexicali,
  compiled by Radian (Radian International 2000 Mexicali Air Emission
  Inventory, February 2000).

    Method 5. Perform air dispersion and/or receptor modeling to 
quantify the relative impacts on the non-attainment area of sources on 
PM-10 emissions.
    The 179B(d) demonstration includes air dispersion modeling for 
1992, 1993 and 1994. The modeling inputs (meteorological data and 
inventory), model selection and modeling results are discussed in the 
TSD. The performance of the model relative to measured ambient 
concentrations could not be determined because emissions from Mexicali 
were not modeled. Therefore, EPA cannot evaluate the model performance 
and, as a result, the Agency believes that the modeling results are not 
sufficiently robust at this time to demonstrate that Imperial County 
would have been in attainment of the 24-hour PM-10 standards but for 
PM-10 emissions from Mexico.
    The results of the modeling are more useful for the demonstration 
of the annual standard, which is less sensitive to model inputs. The 
annual arithmetic mean for the Brawley monitoring station for the years 
1992-1994 is only slightly above the annual standard, (51 g/
m3), and this part of the basin is therefore likely to have 
attained the standard, but for international transport. The Calexico-
Grant St. and Calexico-Ethel St. sites are in close proximity to the 
border. The Calexico Grant St. annual average was 56 g/
m3. The Calexico-Ethel St. site, which has only partial 
data, has an annual average design value of 120 g/
m3 in 1994, after adjustments upward for missing data. The 
modeling results (included in the TSD) also indicate that the annual 
standard would have been attained for each year from 1992-1994 at each 
of the Calexico sites.\4\ Based on the proximity to the border, the 
magnitude of the Mexicali emissions and the modeling results, EPA 
believes, that the annual standard would have been attained at these 
sites but for transport.
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    \4\ Modeled annual average concentrations at all of the sites 
are below 43 g/m\3\ for each of the 3 years, assuming only 
emissions from the United States side of the border.
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Summary of EPA Evaluation of 179B(d) Demonstration
    The State's demonstration is based on a competently collected and 
examined set of the relevant available information, and reaches a 
reasoned conclusion that each of the 1992-94 exceedances, which are 
only slightly above the NAAQS, would likely not have occurred without 
pollutant transport from Mexico. However, In reviewing the methods for 
determining international transport, EPA lacks some information that 
would be helpful in determining with greater certainty the extent to 
which emissions from Mexico contributed to monitored values above the 
NAAQS. For example, the State was hampered by the absence of ambient 
monitoring or accurate emission inventories in the Mexicali area in the 
period 1992-94. These data cannot now be recreated in order to enable a 
more conclusive analysis. Thus, EPA believes that the 179B(d) 
demonstration has provided evidence sufficient to show that, but for 
international transport of PM-10, Imperial County would have attained 
the 24-hour PM-10 NAAQS by the December 31, 1994 deadline. This showing 
rests primarily on the qualitative analysis of wind patterns on 
exceedance days discussed under method 1 and is further supported by 
the emissions inventories discussed under method 4. Furthermore, EPA 
believes the modeling discussed under Method 5 provides a demonstration 
that the annual PM-10 NAAQS has been attained but for international 
transport.
    If EPA takes final action finding that the State has met the 
requirements of CAA section 179B(d), Imperial County must meet the 
planning requirements specified in CAA section 179B(a). Because the 
area has recorded PM-10 violations after 1994, EPA interprets the 
latter section as requiring, among other things, that the moderate area 
plan must provide for sufficient controls to demonstrate maintenance of 
the NAAQS after the applicable attainment date, but for emissions from 
outside of the United States.

III. Proposed Finding of Failure To Attain

    As discussed above, EPA is proposing to find that the State of 
California has established to EPA's satisfaction that Imperial County 
would have attained the NAAQS for PM-10 by the applicable attainment 
date, December 31, 1994, but for emissions emanating from outside the 
U.S., and thus shall not be subject to a finding of failure to attain 
and reclassification. Because the 179B(d) demonstration is not 
completely definitive, however, EPA invites public comment on the issue 
and is proposing, in the alternative, to find that Imperial County did 
not attain either the 24-hour or annual PM-10 NAAQS by December 31, 
1994. In the event that public comments convince EPA that the State has 
not made an adequate demonstration under section 179B(d) of the CAA, 
EPA plans to finalize this proposed finding of failure to attain. This 
proposed finding is based on air quality data (discussed below) 
indicating violations of the PM-10 NAAQS during 1992-1994. If EPA takes 
final action on this proposed finding, Imperial County will be 
reclassified by operation of law as a serious nonattainment area under 
section 188(b)(2)(A) of the CAA.

A. Analysis of the Ambient Air Monitoring Data

The 24-hour Standard
    Table C below lists each of the monitoring sites in Imperial County 
where the 24-hour NAAQS (150 g/m3) was violated 
during 1992-1994.

    Note: There is no Table B in this proposed rule.


[[Page 42191]]



 Table C.--Exceedance Values for Sites Violating the 24-hour PM-10 NAAQS
               [Micrograms per cubic meter, g/m3]
------------------------------------------------------------------------
                                                              Date of
               Site                      Exceedance         exceedance
------------------------------------------------------------------------
Brawley...........................  175 g/m3            1/25/93
                                    162 g/m3            1/19/93
Calexico Dichot--900 Grant Street.  208 g/m3            10/9/92
                                    253 g/m3            8/23/93
                                    156 g/m3            1/20/94
El Centro.........................  166 g/m3            8/23/93
El Centro Dichot..................  167 g/m3            8/23/93
Calexico--900 Grant St. (initiated  182 g/m3             8/6/94
 1994).
                                    165 g/m3             7/7/94
                                    159 g/m3           10/17/94
Calexico--1029 Ethel St.            258 g/m3             8/6/94
 (initiated 1994).
------------------------------------------------------------------------

    Under 40 CFR part 50, the 24-hour NAAQS is attained when the 
expected number of days per calendar year with a 24-hour average 
concentration above 150 g/m3 is equal to or less 
than one. In general, the number of expected exceedances at a site 
which samples every day is determined by recording the number of 
exceedances in each calendar year and then averaging them over the past 
three calendar years. For sites which do not sample every day, EPA 
requires the adjustment of observed exceedances to account for days not 
sampled. The procedures for making the adjustment are specified in 40 
CFR part 50, appendix K.
    The four monitoring sites (Brawley, Calexico-Dichot, El Centro, and 
El Centro-Dichot) in Imperial County that recorded violations of the 
24-hour PM-10 NAAQS operated on a one-in-six day sampling schedule. 
After making the adjustment for days not sampled, the number of 
expected exceedances from 1992-1994 at four of the above monitoring 
sites were 4.3, 6.1, 2.0 and 2.0, for the Brawley, Calexico Dichot--
Grant St., El Centro and El Centro Dichot sites, respectively. These 
expected exceedances cause the four monitoring sites to be in violation 
of the 24-hour PM-10 NAAQS. EPA is also including data from two 
additional samplers (Calexico--Grant St. and Calexico--Ethel St.) which 
exceeded the 24-hour PM-10 NAAQS in their initial year of operation, 
1994.
The Annual Standard
    Table D below lists each of the monitoring sites where the annual 
standard was violated during 1992-1994.

                   Table D.--Arithmetic Mean Values for Sites Violating the Annual PM-10 NAAQS
                                   [Micrograms per cubic meter, g/m3]
----------------------------------------------------------------------------------------------------------------
                                     1992 annual arithmetic    1993 annual arithmetic    1994 annual arithmetic
               Site                           mean                      mean                      mean
----------------------------------------------------------------------------------------------------------------
Brawley...........................  48 g/m\3\......  53 g/m\3\......  52 g/m\3\.
Calexico Dichot--900 Grant St.....  58 g/m\3\......  59 g/m\3\......  50 g/m\3\.
Calexico--900 Grant St. (initiated  ND......................  ND......................  75 g/m\3\.
 1994).
Calexico--1029 Ethel St.            ND......................  ND......................  120 g/m\3\.
 (Initiated 1994).
----------------------------------------------------------------------------------------------------------------
ND--No Data.

    According to 40 CFR part 50, the annual standard for PM-10 is 
attained when the expected arithmetic mean concentration, as determined 
by 40 CFR part 50 Appendix K, is less than or equal to 50 g/
m\3\. In general, the expected annual arithmetic mean is determined by 
averaging the annual arithmetic mean PM-10 concentrations for the past 
3 calendar years.
    The annual standard was not attained at two monitoring sites 
(Brawley and Calexico Dichot--Grant St.) in Imperial County. Based on 
the monitoring data collected during 1992-1994, the Brawley site had an 
annual average of 51 g/m\3\, and the Calexico Dichot--Grant 
St. had an annual average of 56 g/m\3\. EPA is also including 
data from 2 additional samplers (Calexico--Grant St. and Calexico--
Ethel St.) which violated the annual PM-10 NAAQS and were initiated in 
1994.

B. SIP Requirements for Serious Areas

    If EPA takes final action finding that Imperial County failed to 
attain the PM-10 NAAQS by December 31, 1994, the area will be 
reclassified by operation of law as a serious nonattainment area under 
section 188(b)(2)(A) of the CAA. PM-10 nonattainment areas reclassified 
as serious under section 188(b)(2) of the CAA are required to submit, 
within 18 months of the area's reclassification, SIP revisions 
providing for the implementation of best available control measures 
(BACM) no later than four years from the date of reclassification. The 
SIP must also, among other things, provide for attainment of the PM-10 
NAAQS by December 31, 2001.\5\ See CAA sections 188(c)(2) and 189(b). 
EPA has provided specific guidance on developing serious area PM-10 SIP 
revisions. See 59 FR 41998 (August 16, 1994).
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    \5\ If certain conditions are met, EPA may extend this 
attainment deadline to no later than December 31, 2006. CAA section 
188(e).
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IV. Today's Proposed Actions

    EPA is today proposing to find that the State of California has 
established to EPA's satisfaction that Imperial County has attained the 
PM-10 NAAQS by the applicable attainment date, December 31, 1994, but 
for the emissions emanating from outside the U.S., and thus shall not 
be subject to a finding of failure to attain and reclassification to 
serious.

[[Page 42192]]

    In view of the technical issues and difficulties involved in 
demonstrating cross-border transport and in the event that public 
comment convinces EPA that the State has not made an adequate 
demonstration, EPA is also proposing, in the alternative, to find that 
Imperial County did not attain either the 24-hour or annual PM-10 NAAQS 
by the required attainment date. If EPA takes final action on this 
proposed finding, Imperial County will be reclassified by operation of 
law as a serious nonattainment area under section 188(b)(2)(A) of the 
CAA.
    EPA requests public comments on all aspects of these alternative 
proposals. EPA will consider any comments received by September 10, 
2001.

V. Administrative Requirements

A. Executive Order 12866

    Under E.O. 12866, 58 FR 51735 (October 4, 1993), EPA is required to 
determine whether regulatory actions are significant and therefore 
should be subject to OMB review, economic analysis, and the 
requirements of the Executive Order. The Executive Order defines a 
``significant regulatory action'' as one that is likely to result in a 
rule that may meet at least one of the four criteria identified in 
section 3(f), including, (1) have an annual effect on the economy of 
$100 million or more or adversely affect, in a material way, the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
therof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    EPA has determined that the proposed finding of attainment pursuant 
to CAA section 179B(d) and the proposed finding of failure to attain 
and the resulting reclassification would result in none of the effects 
identified in section 3(f). A finding of attainment under section 
179B(d) of the CAA does not impose any additional requirements on an 
area and a finding of failure to attain under section 188(b)(2) is 
based upon air quality considerations and the subsequent nonattainment 
area reclassification must occur by operation of law in light of those 
air quality conditions. These actions do not, in-and-of-themselves, 
impose any new requirements on any sectors of the economy. In addition, 
because the statutory requirements are clearly defined with respect to 
the differently classified areas, and because those requirements are 
automatically triggered by classifications that, in turn, are triggered 
by air quality values, findings of failure to attain and 
reclassification cannot be said to impose a materially adverse impact 
on State, local, or tribal governments or communities.

B. Executive Order 13211

    The proposed finding of attainment under CAA 179B(d) and the 
proposed finding of failure to attain and the resulting 
reclassification are not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because they are 
not significant regulatory actions under Executive Order 12866.

C. Executive Order 13045

    Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997), applies to any rule that: (1) Is determined to be ``economically 
significant'' as defined under Executive Order 12866, and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children, and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    The proposed finding of attainment under CAA 179B(d) and the 
proposed finding of failure to attain under CAA 188(b)(2) and resulting 
reclassification are not subject to Executive Order 13045 because they 
do not involve decisions intended to mitigate environmental health or 
safety risks.

D. Executive Order 13132

    Executive Order 13132, ``Federalism,'' (64 FR 43255, August 10, 
1999) revokes and replaces Executive Orders 12612, ``Federalism,'' and 
12875, ``Enhancing the Intergovernmental Partnership.'' Executive Order 
13132 requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    These proposed findings will not have substantial direct effects on 
California, on the relationship between the national government and 
California, or on the distribution of power and responsibilities among 
the various levels of government, as specified in Executive Order 
13132. As stated above, a finding of attainment under section 179B(d) 
of the CAA does not impose any additional requirements on an area and a 
finding of failure to attain under section 188(b)(2) is based upon air 
quality considerations and the subsequent nonattainment area 
reclassification must occur by operation of law in light of those air 
quality conditions. These actions do not, in-and-of-themselves, impose 
any new requirements on any sectors of the economy. In addition, 
because the statutory requirements are clearly defined with respect to 
the differently classified areas, and because those requirements are 
automatically triggered by classifications that, in turn, are triggered 
by air quality values, findings of failure to attain and 
reclassification cannot be said to impose a materially adverse impact 
on State, local, or tribal governments or communities. Thus, the 
requirements of section 6 of the Executive Order do not apply to these 
proposed alternative actions.

E. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal

[[Page 42193]]

implications.'' ``Policies that have tribal implications'' is defined 
in the Executive Order to include regulations that have ``substantial 
direct effects on one or more Indian tribes, on the relationship 
between the Federal government and the Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes.''
    The proposed finding of attainment under CAA 179B(d) and the 
proposed finding of failure to attain under CAA 188(b)(2) and resulting 
reclassification do not have tribal implications. For the reasons 
discussed above, they will not have substantial direct effects on 
tribal governments, on the relationship between the Federal government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes, as specified in 
Executive Order 13175. Thus, Executive Order 13175 does not apply to 
this rule. In the spirit of Executive Order 13175, and consistent with 
EPA policy to promote communications between EPA and tribal 
governments, EPA specifically solicits additional comment on this 
proposed rule from tribal officials.

F. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    As discussed above, the proposed finding of attainment under CAA 
179B(d) and the proposed finding of failure to attain under CAA 
188(b)(2) and resulting reclassification do not impose additional 
requirements on small entities. Therefore, I certify that these 
alternative actions will not have a significant economic impact on a 
substantial number of small entities.

G. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    With respect to EPA's proposed finding of attainment under CAA 
179B(d) and the proposed finding of failure to attain under CAA 
188(b)(2) and resulting reclassification, EPA notes that these actions 
in-and-of themselves establish no new requirements, and EPA believes 
that it is questionable whether a requirement to submit a SIP revision 
constitutes a federal mandate (i.e., required serious area SIP 
submittal resulting from a finding of failure to attain). The 
obligation for a State to revise its SIP arises out of sections 110(a) 
and 179(d) of the CAA and is not legally enforceable by a court of law, 
and at most is a condition for continued receipt of highway funds. 
Therefore, it is possible to view an action requiring such a submittal 
as not creating any enforceable duty within the meaning of section 
421(5)(9a)(I) of UMRA (2 U.S.C. 658(a)(I)). Even if it did, the duty 
could be viewed as falling within the exception for the condition of 
Federal assistance under section 421(5)(a)(I)(I) of UMRA (2 U.S.C. 
658(5)(a)(I)(I)).
    In addition, even if the obligation for a State to revise its SIP 
does create an enforceable duty within the meaning of UMRA, this action 
does not trigger section 202 of UMRA because the aggregate to the 
State, local, and tribal governments to comply are less than 
$100,000,000 in any one year. Because this action does not trigger 
section 202 of UMRA, the requirement in section 205 of UMRA that EPA 
identify and consider a reasonable number of regulatory alternatives 
and adopt the least costly, most effective, or least burdensome 
alternative that achieves the objectives of the rule is not applicable.
    Furthermore, EPA is not directly establishing any regulatory 
requirements that may significantly impact or uniquely affect small 
governments, including tribal governments. Thus, EPA is not obligated 
to develop under section 203 of UMRA a small government agency plan.

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    EPA believes that VCS are inapplicable to today's proposed actions 
because they do not require the public to perform activities conducive 
to the use of VCS.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: August 6, 2001.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. 01-20209 Filed 8-9-01; 8:45 am]
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