[Federal Register Volume 67, Number 141 (Tuesday, July 23, 2002)]
[Rules and Regulations]
[Pages 48039-48043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18589]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[CA081-FTA; FRL-7250-5]


Finding of Failure To Attain; California-San Joaquin Valley 
Nonattainment Area; PM-10

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is today finding that the San Joaquin Valley did not 
attain the 24-hour and annual particulate matter (PM-10) National 
Ambient Air Quality Standards (NAAQS) by the deadline mandated in the 
Clean Air Act (CAA), December 31, 2001.
    In response to this finding, the State of California must submit by 
December 31, 2002 revisions to the California State Implementation Plan 
(SIP) that provide for attainment of the national PM-10 standards in 
the San Joaquin Valley and achieve five percent annual reductions in 
PM-10 or PM-10 precursor emissions as required by CAA section 189(d).

EFFECTIVE DATE: This finding is effective on August 22, 2002.

ADDRESSES: A copy of this final rule is available in the air programs 
section of EPA Region 9's website, http://www.epa.gov/region09/air. The 
docket for this rulemaking is available for inspection during normal 
business hours at EPA Region 9, Planning Office, Air Division, 17th 
Floor, 75 Hawthorne Street, San Francisco, California 94105. A 
reasonable fee may be charged for copying parts of the docket. Please 
call (415) 972-3980 for assistance.

FOR FURTHER INFORMATION CONTACT: Celia Bloomfield (415) 947-4148 or 
Steven Barhite (415) 972-3980, Planning Office Chief (AIR-2), Air 
Division, EPA Region 9, 75 Hawthorne

[[Page 48040]]

Street, San Francisco, CA 94105; [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On March 15, 2002, EPA proposed to find that the San Joaquin Valley 
did not attain the 24-hour and annual PM-10 National Ambient Air 
Quality Standards (NAAQS) by its December 31, 2001 attainment deadline. 
The San Joaquin Valley's December 31, 2001 attainment deadline was 
established on January 8, 1993 when EPA determined that the area could 
not ``practicably'' attain the PM-10 NAAQS by the moderate area 
attainment deadline, December 31, 1994, and reclassified the San 
Joaquin Valley nonattainment area as serious (58 FR 3334, 3337). See 
CAA section 188(b)(1). Pursuant to CAA section 188(c)(2), serious PM-10 
nonattainment areas were required to attain by December 31, 2001.
    EPA has the responsibility, pursuant to sections 179(c) and 
188(b)(2) of the Act, of determining within 6 months of the applicable 
attainment date (i.e., June 30, 2002), whether the San Joaquin Valley 
PM-10 nonattainment area has attained the annual and 24-hour NAAQS. 
Section 179(c)(1) of the Act provides that attainment determinations 
are to be based upon an area's ``air quality as of the attainment 
date,'' and section 188(b)(2), which is specific to PM-10, is 
consistent with that requirement. EPA determines 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 and entered into EPA's 
Aerometric Information Retrieval System (AIRS). These data are reviewed 
to determine the area's air quality status in accordance with EPA 
regulations at 40 CFR part 50, Appendix K.1
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    \1\ Pursuant to Appendix K, attainment of the annual PM-10 NAAQS 
is achieved when the expected annual arithmetic mean PM-10 
concentration is less than or equal to the level of the standard 
(50[mu]g/m3). Attainment of the 24-hour PM-10 NAAQS is 
achieved when the expected number of exceedances of the 24-hour 
NAAQS (150 [mu]g/m3) per year at each monitoring site is 
less than or equal to one. A total of three consecutive years of 
clean air quality data is generally necessary to show attainment of 
the annual and 24-hour 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 four calendar quarters with each quarter containing 
data from at least 75 percent of the scheduled sampling days.
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    For details about EPA's proposed failure to attain finding, please 
see the proposed rulemaking at 67 FR 11633, March 15, 2002.

II. EPA's Responses to Comments on the Proposal

    The only comments received on the proposed finding of nonattainment 
were submitted by the San Joaquin Valley Unified Air Pollution Control 
District (SJVUAPCD). Summaries of the comments and EPA's responses are 
set forth below.
    Comment No. 1: The data set used by EPA to identify sites in 
nonattainment of the PM-10 NAAQS during the years 1999-2001 appears to 
have not been complete.
    Response: The commenter is correct. The data set used by EPA was 
based on PM-10 data collected from January 1, 1999 through September 
30, 2001. At the time of the proposed rulemaking the San Joaquin Valley 
PM-10 data for October 1, 2001 to December 31, 2001 was not available. 
The data for the last quarter of 2001 is now available and is factored 
into EPA's responses below. In short, the additional data does not 
change the conclusion in the proposed rule that the San Joaquin Valley 
did not attain the annual and 24-hour PM-10 standards by its CAA 
attainment deadline, December 31, 2001. However, as foreseen in the 
proposal (67 FR 11633, 11634), the additional data collected during 
October to December 2001 has altered the attainment status of some of 
the monitoring sites.
    For the annual PM-10 NAAQS, the Corcoran site, which was listed as 
not attaining the annual NAAQS in the proposal, has now been removed 
from the list of sites not attaining the annual NAAQS since its three-
year average annual concentration is 49 [mu]g/m3 (See 
response to comment 2 below). The Hanford site is now listed as 
nonattainment with a three-year average annual concentration of 51 
[mu]g/m3 (See response to comment 3 below). The Fresno-
Drummond site may or may not be violating the annual NAAQS; due to an 
incomplete data set, it is not possible to calculate an accurate three-
year annual average at this time (See response to comment 3 below).
    For the 24-hour NAAQS, the most significant change from our 
proposal is that the Modesto-14th Street site is no longer considered 
nonattainment for the 24-hour NAAQS (See response to comment 5 below).
    Comment No. 2: The proposal incorrectly lists the Corcoran 
monitoring site as nonattainment for the annual PM-10 NAAQS.
    Response: The commenter is correct. EPA miscalculated the three-
year annual average at the Corcoran site, which resulted in our listing 
it as nonattainment for the annual PM-10 NAAQS. The correct three-year 
annual average based on the full complement of 1999-2001 data is 49 
[mu]g/m3. Thus, the Corcoran site did not violate the PM-10 
annual NAAQS.
    Comment No. 3: Two additional sites, Fresno-Drummond Street and 
Hanford, may or may not be nonattainment for the annual PM-10 NAAQS 
depending on whether data substitution is used for filling in missing 
data points in the 1999-2001 period.
    Response: Due to an incomplete data set, EPA was not able to 
calculate an accurate three-year annual average for these two sites at 
the time of our proposed action. Using the final 1999-2001 data set and 
some data substitution in the 4th quarter of 1999,\2\ we have 
determined that the Hanford site definitively violated the annual 
NAAQS. For missing data in the 4th quarter of 1999, we substituted one 
half of the minimum detectable concentration of PM-10 (2.5 [mu]g/
m3) and still arrived at a three-year annual average of 51 
[mu]g/m3.
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    \2\ Missing data was substituted using procedures in ``Guideline 
on Exceptions to Data Requirements for Determining Attainment of 
Particulate Matter Standards,'' EPA-450/4-87-005, April 1987.
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    Determining the annual attainment status of the Fresno-Drummond 
Street site is more difficult. This site has two incomplete quarters of 
data, the 4th quarter of 1999 and the 4th quarter of 2000. If we 
substitute one half the minimum detectable concentration for the 
missing values we calculate a three-year annual average of 47 [mu]g/
m3, which means the site attained the NAAQS. However, if we 
substitute representative data from other calendar quarters we have a 
three-year annual average of 53 [mu]g/m3, which exceeds the 
NAAQS. The true three-year average probably falls somewhere between 
this range but we cannot make an absolute determination of attainment 
at this time.
    Comment No. 4: Regarding the 24-hour NAAQS, the commenter states 
that the Turlock site has recorded only one exceedance of the 24-hour 
standard during its nine years of operation and could be considered 
attainment if more than three years are used. 40 CFR part 50, appendix 
K allows this method.
    Response: EPA regulations at 40 CFR part 50, appendix K, section 
2.1(a) state that ``[u]nder 40 CFR 50.6(a) the 24-hour primary and 
secondary standards are attained when the expected number of 
exceedances per year at each monitoring site is less than or equal to 
one. In the simplest case, the number of expected exceedances at a site 
is determined by recording the number of exceedances in each calendar 
year and then averaging

[[Page 48041]]

them over the past three calendar years.''
    EPA acknowledges that according to appendix K, there may be 
circumstances when more than three years of data can be used to 
determine attainment. EPA interprets appendix K to allow additional 
years of data only in order to reduce the effect of unusual or 
exceptional events. See appendix K, section 2.4(a).
    Appendix K, section 3.1 dictates how to estimate the number of 
exceedances for a year when a monitoring site operates on a less than 
everyday schedule. The Turlock PM-10 monitoring site operates on a one 
in six day schedule. Using the equations in this section, the single 
observed exceedance at the Turlock site would be adjusted to 11.5 
exceedances. Even if we were to average these exceedances over the 
lifetime of the Turlock PM-10 monitor (it began operation in January 
1994, therefore we have eight years of operation, not nine) it still 
averages 1.4 exceedances per year, and violated the 24-hour PM-10 
NAAQS.
    Comment No. 5: The Modesto-14th Street station had only one 
exceedance in the most recent three-year period while sampling at a 
frequency of once every three days. This site could also be considered 
attainment if more than three years of data are considered as allowed 
by 40 CFR part 50, appendix K.
    Response: Manual sampling methods for PM-10 are labor and resource 
intensive and because of this many agencies choose to sample PM-10 on a 
less than an every day schedule. Since there is not a PM-10 
concentration value for each day of the year, EPA regulations at 40 
part CFR 50, appendix K require an adjustment to be made to the 
observed number of exceedances to account for the possible effect of 
incomplete data. In this adjustment, the assumption is made that the 
fraction of missing values that would have exceeded the standard level 
is identical to the fraction of measured values above this level.
    In order to properly adjust the data to estimate the expected 
number of exceedances, the sampling frequency of the PM-10 monitoring 
site must be known. The PM-10 monitoring site at Modesto--14th Street 
utilized two high volume PM-10 samplers in order to collect data on a 
one in three day schedule. Under this arrangement each sampler operates 
once every six days but the schedules are staggered so that a 24-hour 
PM-10 value is recorded every three days. In February 2001 one of the 
PM-10 samplers ceased operation. There are two ways we can view the 
sampling frequency of this site during the first quarter of 2001, 
either as a one in three day site that is missing nine scheduled 
samples or as a one in six day site that has six unscheduled, extra 
samples. Calculating the estimated number of exceedances requires a 
different approach depending on how we view this site. Since the site 
continued to operate on a one in six day schedule for the remainder of 
the calendar year, we believe it is appropriate to view the entire year 
as operating on a one in six day schedule and to use Equation 3 from 40 
CFR part 50, appendix K to calculate the estimated number of 
excedances. The total number of estimated exceedances for the period 
1999--2001 is three, averaging one exceedance per year. Therefore, this 
site attained the 24-hour PM-10 NAAQS.
    See the previous response to comment 4 for a discussion of using 
more than three years of data for determining attainment.

III. Summary of Changes From the Proposal

    Based on data from the last quarter of 2001 and data recalculations 
discussed in our responses to comments above, EPA has revised Tables 1 
and 2 from the proposed rulemaking (67 FR 11633, 11634-11635) to read 
as follows:

Table 1.--San Joaquin Valley Monitoring Sites That Violate the Annual PM-
                          10 NAAQS (1999-2001)
------------------------------------------------------------------------
                                                           3 year Annual
                        Site Name                          mean ([mu]g/
                                                                m3)
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Bakersfield-Golden State................................              55
Visalia.................................................              54
Fresno-Drummond.........................................           47-53
Hanford.................................................              51
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         Table 2. --San Joaquin Valley Monitoring Sites That Violate the 24-Hour PM-10 NAAQS (1999-2001)
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                                                                                                 Average  of
               Monitoring station                  exceedance      exceedance      exceedance    exceedances per
                                                    days 1999       days 2000       days 2001     year 1999-2001
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Fresno East Drummond...........................            8.4                0            6                 4.8
Fresno First St................................            0                  0            6                 2
Clovis.........................................            0                  0            6                 2
Bakersfield Golden State.......................            6                  0           12                 6
Bakersfield California Ave.....................            0                  0            9                 3
Oildale........................................            3.75               0            5.63              3.1
Corcoran.......................................            6.1                0            7.6               4.6
Hanford........................................            0                  0           12.6               4.2
Turlock........................................           11.5                0            0                 3.8
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    EPA also received a request for information about the specific 
dates when the exceedances occurred. In response to that request, EPA 
has included Table 3, which lists the observed exceedances in the San 
Joaquin Valley PM-10 nonattainment area during the three-year period 
1999-2001. These are the actual observed exceedances as opposed to the 
estimated number of exceedances \3\ reported in Table 2.
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    \3\ As discussed above, EPA estimates total exceedances pursuant 
to Part 50, Appendix K when there is incomplete monitored data.

   Table 3.--Days Exceeding the 24-hour PM-10 NAAQS in the San Joaquin
                                 Valley
------------------------------------------------------------------------
                                                         Concentration
              Date                  Monitoring site        ([mu]g/m3)
------------------------------------------------------------------------
January 12, 1999................  Oildale............                156
October 21, 1999................  Fresno--East                       162
                                   Drumond.
                                  Corcoran...........                174
                                  Turlock............                157
November 14, 1999...............  Bakersfield--Golden                183
                                   State Hwy.
January 1, 2001.................  Fresno--East                       186
                                   Drummond.
                                  Fresno--First                      193
                                   Street.
                                  Fresno--Clovis.....                155
                                  Bakersfield--Golden                205
                                   State Hwy.
                                  Bakersfield--                      186
                                   California Ave.
                                  Oildale............                158
January 3, 2001.................  Bakersfield--                      190
                                   California Ave.
January 7, 2001.................  Bakersfield--Golden                174
                                   State Hwy.
                                  Bakersfield--                      159
                                   California Ave.
                                  Corcoran...........                165
                                  Hanford............                185
November 9, 2001................  Hanford............                155
------------------------------------------------------------------------

IV. Final Action

    EPA is finding that the San Joaquin Valley failed to attain the 
annual and 24-hour PM-10 NAAQS by the December 31, 2001 attainment 
deadline as reflected in revised Tables 1 and 2 above.
    Under section 189(d) of the Act, serious PM-10 nonattainment areas 
that fail to attain are required to submit within 12 months of the 
applicable attainment date, ``plan revisions which provide for 
attainment of the PM-10 air quality standards and, from the date of 
such submission until attainment, for an annual reduction in PM-10 or 
PM-10 precursor emissions within the area of not less than 5 percent of 
the amount of such emissions as reported in the most recent inventory 
prepared for such area.'' Since the applicable attainment date was 
December 31, 2001, the deadline for this plan revision is December 31, 
2002.

V. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
final 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). This action 
in and of itself establishes no new requirements, it merely notes that 
the air quality in the San Joaquin Valley did not meet the federal 
health standards for PM-10 by the CAA deadline. Accordingly, the 
Administrator certifies that this rule will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule 
does not in and of itself establish new requirements, EPA believes that 
it is questionable whether a requirement to submit a SIP revision 
constitutes a federal mandate. The obligation for a State to revise its 
SIP arises out of sections 110(a), 179(d), and 189(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)). Therefore, 
today's final action does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
    This rule 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 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action does not in and of itself 
create any new requirements and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act. This rule 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 economically 
significant. Because this finding of failure to attain is a factual 
determination based on air quality considerations, 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. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

[[Page 48043]]

    The Congressional Review Act, 5 U.S.C. section 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. 
section 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 September 23, 2002. 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 section 307(b)(2).)

    Authority: 42 U.S.C. 7401 et seq.

    Dated: July 16, 2002.
Keith Takata,
Acting Regional Administrator, EPA Region 9.
[FR Doc. 02-18589 Filed 7-22-02; 8:45 am]
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