[Federal Register Volume 66, Number 185 (Monday, September 24, 2001)]
[Rules and Regulations]
[Pages 48808-48811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23765]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[Docket #: WA-01-001; FRL-7064-3]


Clean Air Act Finding of Attainment; Spokane, Washington 
Particulate Matter (PM-10) Nonattainment Area

AGENCY: Environmental Protection Agency (EPA or we).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA has determined that the Spokane nonattainment area has 
attained the National Ambient Air Quality Standards for particulate 
matter with an aerodynamic diameter of less than or equal to 10 microns 
by the attainment date of December 31, 1997, as required by the Clean 
Air Act.

EFFECTIVE DATE: October 24, 2001.

ADDRESSES: Copies of all information supporting this action are 
available for public inspection and copying between 8:30 a.m. and 3:30 
p.m., Pacific Standard Time at EPA Region 10, Office of Air Quality, 
10th Floor, 1200 Sixth Avenue, Seattle, Washington 98101. A reasonable 
fee may be charged for copies.

FOR FURTHER INFORMATION CONTACT: Steven Body, EPA, Region 10, Office of 
Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101, 
(206) 553-0782.

SUPPLEMENTARY INFORMATION

I. Background

    On May 16, 2001, we solicited public comment on a proposal to find 
that the Spokane nonattainment area has attained the National Ambient 
Air Quality Standards (NAAQS) for particulate matter with an 
aerodynamic diameter of less than or equal to 10 microns (PM-10) by the 
attainment date of December 31, 1997, as required by the Clean Air Act. 
In the proposal, we stated that EPA would accept public comments on the 
proposed finding until June 15, 2001. See 66 FR 27055 (May 16, 2001).
    During the public comment period that ended on June 15, 2001, we 
received written comments from two commenters. The Washington State 
Department of Ecology (Ecology or State) supported EPA's proposed 
determination. Earthjustice, on behalf of the Sierra Club, submitted 
adverse comments.

II. Major Issues Raised by Commenters

    The following is a summary of the issues raised in the comments on 
the proposal, along with EPA's response to those issues.

A. Attainment Date for the Area

    Earthjustice stated that EPA's proposal wrongly assumed that the 
attainment date for the Spokane PM-10 nonattainment area was December 
31, 1997, and that, pursuant to section 188(c)(1) of the CAA, the 
attainment date for the area is December 31, 1994. According to 
Earthjustice, EPA's temporary waiver of the attainment date was void 
from the outset and that, in any event, it did not purport to

[[Page 48809]]

permanently extend the original attainment date. The commenter further 
asserted that the temporary waiver was conditional on Ecology 
submitting a showing meeting the requirements of section 188(f), which 
includes a showing that nonanthropogenic sources contribute 
significantly to violation of PM-10 standards in the area and that 
anthropogenic sources do not contribute significantly to PM-10 
violations in the area. Because Ecology never made this showing, and 
EPA has never made either of these determinations with respect to 
Spokane, Earthjustice asserts, the temporary waiver of the attainment 
date was nullified, even assuming EPA had authority to grant a 
``temporary'' waiver of the attainment date in the first place. 
Moreover, according to Earthjustice, the temporary waiver applied only 
where windblown dust was an important contributor to the exceedances 
and EPA has not proposed to find that windblown dust was an important 
contributor to the exceedances that occurred as of December 31, 1994. 
Therefore, according to the commenter, the attainment date for the 
Spokane area is December 31, 1994 and, based on the data in the EPA 
Aerometric Information Retrieval System (AIRS), the Spokane PM-10 
nonattainment area was not in attainment of the PM-10 standards as of 
that date.
    EPA disagrees with the commenter's assertions that EPA's temporary 
waiver of the attainment date for the Spokane area was invalid at the 
outset and that the temporary waiver was in any event nullified because 
the conditions for the temporary waiver were not met. As discussed in 
the proposed finding of attainment, the Spokane PM-10 nonattainment 
area was an ``initial'' PM-10 nonattainment area with an attainment 
date of December 31, 1994. See 66 FR 27056; see also CAA section 188(a) 
and (c)(1). Section 188(f) of the CAA provides EPA with the authority 
to waive a specific date for attainment of the standard under certain 
circumstances based on the relative contribution of anthropogenic and 
nonanthropogenic sources of PM-10 to violation of the PM-10 standards 
in the area. See ``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 Amendments of 1990,'' 59 FR 
41998, 42003 (April 16, 1994) (Serious Area Guidance).
    In the moderate area State Implementation Plan (SIP) submitted by 
Ecology for the Spokane area in the early 1990s, Ecology included 
information indicating that nonanthropogenic sources may be significant 
in the Spokane PM-10 nonattainment area during windblown dust events. 
Based on our review of the State's submissions, we approved Spokane's 
moderate area SIP for all sources except for windblown dust and, under 
section 188(f) of the CAA and consistent with EPA's Serious Area 
Guidance interpreting that provision, granted a temporary waiver to 
extend the attainment date for the Spokane area to December 31, 1997. 
See 62 FR 3800 (January 27, 1997) (final action); 61 FR 35998 (July 9, 
1996) (proposed action). The temporary waiver was intended to provide 
Ecology time to evaluate further the Spokane nonattainment area and to 
determine the significance of the anthropogenic and nonanthropogenic 
sources impacting the area. EPA stated that, once these activities were 
complete or the temporary waiver expired, EPA would make a decision on 
whether the area was eligible for a permanent waiver under section 
188(f) of the CAA or whether the area had attained the standards by the 
extended attainment date. See 62 FR 3802.
    Earthjustice asserts that EPA's temporary waiver of the attainment 
date for the Spokane area was invalid from the outset. However, neither 
Earthjustice, the Sierra Club, nor any other commenter commented on 
EPA's authority to grant the Spokane area a temporary waiver of the 
attainment date when EPA proposed the temporary waiver in 1996. See 62 
FR 3801. In addition, no petitions for review were filed in response to 
EPA's final action to grant the temporary waiver to the Spokane area. 
Any concerns regarding EPA's authority to grant a temporary waiver of 
the attainment date under CAA section 188(f) were required to be raised 
when EPA took final action to grant the temporary waiver and, coming 
more than four years after EPA's action to grant the Spokane area a 
temporary waiver of the attainment date, are untimely in the context of 
this rulemaking to determine whether the Spokane area attained the PM-
10 standards by the attainment date. See CAA section 307(b)(1)(a 
petition for review must be filed within 60 days from the date of 
notice of final agency action).
    EPA also disagrees that the temporary waiver of the attainment date 
for the Spokane area was nullified because Ecology did not establish, 
and EPA did not find, that the Spokane area met the requirements of CAA 
section 188(f) for a permanent waiver of the attainment date. There is 
nothing in the proposal or the final action for the temporary waiver to 
suggest that the temporary waiver of the attainment date to December 
31, 1997 was conditioned on Ecology ultimately being successful in 
obtaining a permanent waiver of the attainment date. The clear purpose 
of the temporary waiver was to ``allow[] Ecology and EPA to evaluate 
further the windblown dust PM-10 problems in the Spokane PM-10 
nonattainment area.'' 62 FR 3802 (final action granting temporary 
waiver); see also 61 FR 35999 (proposal for temporary waiver). Both the 
final action and the proposal state that ``once that evaluation is 
completed, and/or the temporary waiver expires, EPA will make final 
determinations on the designations and other requirements.'' 62 FR 3802 
(final action granting temporary waiver); see also 61 FR 35999 
(proposal for temporary waiver). The fact that the notices state that 
EPA would make the attainment determination ``after the temporary 
waiver expires'' is completely inconsistent with the notion that the 
temporary waiver would be retroactively nullified if the Spokane area 
did not qualify for a permanent waiver of the attainment date.
    Earthjustice cites the Serious Area Guidance (59 FR 42008) in 
support of its position that EPA guidance precludes a waiver unless EPA 
also finds that anthropogenic sources do not contribute significantly 
to PM-10 violations. In fact, the Serious Guidance makes clear that the 
purpose of a temporary waiver of the moderate area attainment date for 
up to three years is ``to allow further evaluation'' of whether 
nonanthropogenic sources contribute significantly to violations and 
anthropogenic sources contribute insignificantly to violations of the 
PM-10 standards. Although the Serious Area Guidance does state, as the 
commenter points out, that ``the need for reinstating a specific 
attainment date and/or previously waived serious area requirements 
should be reconsidered periodically,'' 59 FR 42006, that statement is 
made in the context of discussing the need to evaluate whether the 
conditions for a permanent waiver continue to exist. There is no 
indication in the Serious Area Guidance that the reference to 
``reinstating a specific attainment date'' contemplated the retroactive 
reinstatement of an attainment date that had already passed in time.\1\
---------------------------------------------------------------------------

    \1\ As an example of a situation where an attainment date could 
be reinstated, consider the case of a serious PM-10 nonattainment 
area with an attainment date of December 31, 2006. Assume that, in 
2000, based on the information available at that time, the area 
requested and EPA granted a permanent waiver of the serious area 
attainment date. The Serious Area Guidance states that an area that 
receives a waiver should review the status of anthropogenic and 
nonanthropogenic source contributions in the area every three years. 
59 FR 42006. If, in 2003, the available information shows that 
nonanthrogenic sources no longer contribute significantly to the 
exceedances in the area, the serious area attainment date of 
December 31, 2006 should be reinstated.

---------------------------------------------------------------------------

[[Page 48810]]

    Earthjustice is correct that the temporary waiver for Spokane is 
conditioned on windblown dust (both anthropogenic and nonanthropogenic) 
being an important contributor to the exceedances. EPA included this 
condition when it granted the temporary waiver to ensure it could 
reclassify the area to serious before December 31, 1997 if PM-10 
exceedances in the Spokane area were caused by sources other than 
windblown dust. See 61 FR 36003 (``If any of the non-wind blown dust 
sources cause any exceedances of the PM-10 24-hour standard the area 
could be reclassified to serious.''). The relevant question, however, 
is whether windblown dust was an important contributor to exceedances 
that occurred during the life of the temporary waiver (between January 
1, 1995 and December 31, 1997), and not, as Earthjustice asserts, 
whether windblown dust was an important contributor to exceedances that 
occurred prior to December 31, 1994.
    The preamble language discussing the temporary waiver for the 
Spokane area is ambiguous regarding whether the temporary waiver could 
be nullified by a single exceedance attributable to non-windblown dust 
sources or whether the temporary waiver would be nullified only if the 
area continued to be in nonattainment because of exceedances caused by 
non-windblown dust sources. The memorandum of agreement between EPA and 
Ecology addressing the temporary waiver, which is quoted in the 
proposed and final action for the temporary waiver, states that ``The 
Spokane and Wallula nonattainment areas will retain the classification 
of a moderate PM-10 nonattainment area until 12/31/97 unless PM-10 air 
quality data indicates that the area has failed to attain the 24-hour 
standard because of exceedances that cannot be primarily attributable 
to windblown dust.'' See 62 FR 3802 (final action); 61 FR 3599 
(proposed action). In several other places in EPA's proposal to grant 
the temporary waiver, the preamble states that the temporary waiver 
would apply to ``PM-10 exceedances caused by windblown dust.'' See 61 
FR 3599 and 3603. Because the relevant inquiry under the CAA is whether 
an area is in attainment of the NAAQS, not whether the area has a 
single exceedance of the NAAQS, EPA's intent in granting the temporary 
waiver was that it would apply unless the Spokane area continued to 
violate the 24-hour PM-10 NAAQS because of exceedances that could not 
be primarily attributable to windblown dust.
    As discussed in the proposed finding of attainment, a review of the 
air quality data in AIRS for the three-year period from January 1, 1995 
through December 31, 1997 shows that there was only one recorded 
exceedance of the 24-hour PM-10 standard in the Spokane PM-10 
nonattainment area: a concentration of 186 ug/m3 reported at the Crown 
Zellerbach site on August 30, 1996. 66 FR 27056. As also discussed in 
the proposal, even if the August 30, 1996 exceedance is included in 
determining the attainment status of the Spokane area, the data for the 
period from January 1, 1995 through December 31, 1997 would still show 
attainment of the 24-hour PM-10 standard.\2\ 66 FR 27057.
---------------------------------------------------------------------------

    \2\ Even if air quality data for the three-year calendar period 
preceding and including the August 30, 1996 exceedance is considered 
and it is assumed that the August 30, 1996 exceedance was due to 
non-windblown dust sources, that exceedance would still not nullify 
the temporary waiver because it would not indicate the Spokane area 
``failed to attain the 24-hour health standard because of 
exceedances that cannot be primarily attributable to windblown dust. 
There were no exceedances of the 24-hour PM-10 standard in the 
Spokane area in 1994 or 1995. Thus, the area was in attainment of 
the 24-hour standard as of December 31, 1996 even if the August 30, 
1996, exceedance is considered.
---------------------------------------------------------------------------

    In addition, the State has claimed and submitted information to 
show that the August 30, 1996 exceedance was due to emissions of soils 
caused by high winds and thus qualified as a natural event under EPA 
guidance. See Memorandum from EPA's Assistant Administrator for Air and 
Radiation to EPA Regional Air Directors entitled ``Areas Affected by 
Natural Events,'' dated May 30, 1996 (Natural Events Policy). A copy of 
the documentation submitted by Ecology is in the docket. Based on the 
information provided by Ecology, EPA believes that windblown dust (both 
anthropogenic and nonanthropogenic) was an important contributor to the 
exceedance that occurred on August 30, 1996. There is no evidence to 
show that non-wind blown dust sources were the main cause of this 
exceedance. Moreover, as discussed above, this one exceedance does not 
represent a violation of the 24-hour PM-10 NAAQS. Thus, EPA concludes 
that this August 30, 1996 exceedance does not nullify the temporary 
waiver and that the attainment date for the Spokane PM-10 nonattainment 
area is December 31, 1997.
    Earthjustice comments that EPA must seek notice and public comment 
on any determination that windblown dust was an important contributor 
to the exceedances before we can conclude that the temporary waiver 
remained in effect until December 31, 1997. EPA disagrees. This finding 
is implicit in our statements in the proposal that the attainment date 
for the Spokane PM-10 nonattainment area is December 31, 1997. The 
information supporting EPA's position on this issue has been in the 
docket since the proposal for this action was published and was 
available for review and comment by interested parties. In any event, 
the intent of EPA in granting the temporary waiver was that it would 
apply unless the Spokane area continued to violate the 24-hour PM-10 
NAAQS because of exceedances that could not be primarily attributable 
to windblown dust. The single exceedance that occurred in August 1996, 
even if it is not deemed primarily attributable to windblown dust, does 
not represent a violation of the 24-hour PM-10 NAAQS.

B. Application of Natural Events Policy

    Earthjustice commented that EPA's proposal to exclude consideration 
of the August 30, 1996 exceedance at the Crown Zellerbach monitor is 
not defensible because the State did not have a Natural Event Action 
Plan (NEAP) for the area at the time of the exceedance and the State 
did not document that best available control measures (BACM) were 
required for sources of windblown dust in the Spokane area at the time 
of the exceedance. As discussed in the proposal for this action, even 
if the exceedance recorded at the Crown Zellerbach monitoring site on 
August 30, 1996 is not excluded as a natural event and is considered in 
the attainment determination, the expected exceedance rate for the 
Spokane area averaged over the three-year period of 1995, 1996 and 1997 
would be 0.34. This is less than the expected exceedance rate of 1.0 
that would represent a violation of the 24-hour PM-10 standard. 
Therefore, even if the commenter were correct in its assertions, the 
data would still support a finding that the Spokane PM-10 nonattainment 
area attained the 24-hour PM-10 standard as of the attainment date of 
December 31, 1997.

C. Clarification of Factual Issues

    Ecology submitted a letter supporting EPA's proposed finding that 
the Spokane PM-10 nonattainment area attained the PM-10 standards by 
the attainment date of December 31, 1997.

[[Page 48811]]

Ecology also noted three areas where it believed EPA should clarify 
factual issues in the final determination. First, Ecology stated that 
EPA should clarify that EPA has fully approved the moderate area SIP 
for the Spokane PM-10 nonattainment area except as it relates to 
windblown dust. EPA acknowledges that it has approved the emission 
inventory, control measures, attainment demonstration, quantitative 
milestones/reasonable further progress, and contingency measures in the 
Spokane PM-10 SIP for all sources except for sources of windblown dust 
and has also granted the area the exclusion from the control 
requirements for PM-10 precursors. See 62 FR 3802 (final action); 61 FR 
36000-36003 (proposed action).
    Ecology also requested that EPA clarify that we have acknowledged 
in AIRS that the exceedance that occurred on September 25, 1999 was due 
to a natural event. In the proposed finding of attainment for the 
Spokane area, EPA stated that it was still reviewing the documentation 
to support the State's determination that this exceedance was due to a 
natural event and had not yet confirmed the State's claim for this 
exceedance. Just after publication of the proposed finding of 
attainment, EPA discovered this error and, before expiration of the 
public comment period, notified Ecology, the local air authority for 
Spokane County, and Earthjustice of this error. EPA also provided to 
Earthjustice a copy of EPA's September 20, 2000 letter to Ecology 
acknowledging the September 25, 1999 exceedance was attributable to a 
natural event.
    Ecology also stated in its comments that there were five monitoring 
sites in the Spokane PM-10 nonattainment area during the period of 1995 
through 1997, not six as stated in EPA's proposed finding of attainment 
for the Spokane area. It is true that there are in fact only five 
monitoring sites operating in the Spokane PM-10 nonattainment area 
during this time, although there is a sixth monitor located in Spokane 
County outside of the nonattainment area which EPA did consider in 
making this attainment determination. However, neither this 
clarification, nor any of the other clarifications requested by Ecology 
affect EPA's determination that the Spokane PM-10 nonattainment area 
attained the PM-10 standards by the attainment date.

III. Implications of Today's Action

    As discussed above, EPA finds that the Spokane PM-10 nonattainment 
area attained the PM-10 NAAQS by December 31, 1997, the attainment date 
for the area. This finding of attainment should not be confused, 
however, with a redesignation to attainment under CAA section 107(d) 
because the State has not, for the Spokane area, submitted a 
maintenance plan as required under section 175(A) of the CAA or met the 
other CAA requirements for redesignations to attainment. The 
designation status in 40 CFR part 81 will remain moderate nonattainment 
for the Spokane PM-10 nonattainment area until such time as Washington 
meets the CAA requirements for redesignations to attainment.

IV. Administrative Requirements

    Under Executive Order 12866 ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this action is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. For this reason, this action is also 
not subject to Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution or Use'' (66 FR 
28355, May 22, 2001). Under the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.), the Administrator certifies that this action will not 
have a significant economic impact on a substantial number of small 
entities because it merely makes a determination based on air quality 
data and does not impose any requirements. In addition, this action 
does not contain any unfunded mandates and does not significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4) because it does not 
impose any enforceable duties.
    This action also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, November 9, 2000). This action also does not have Federalism 
implications because it will not 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, as specified in Executive Order 13132, 
``Federalism'' (64 FR 43255, August 10, 1999). The action merely makes 
a determination based on air quality data and does not impose any 
requirements and therefore does not alter the relationship or the 
distribution of power and responsibilities between the State and the 
Federal government established in the Clean Air Act.
    This action also is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997) because it is not a significant 
regulatory action under Executive Order 12866.
    This action does not involve technical standards. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. In addition, 
this action does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 23, 2001. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. See CAA section 307(b)(2).

List of Subjects in 40 CFR Part 81

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

    Dated: September 13, 2001.
Charles E. Findley,
Acting Regional Administrator, Region 10.
[FR Doc. 01-23765 Filed 9-21-01; 8:45 am]
BILLING CODE 6560-50-P