[Federal Register Volume 69, Number 154 (Wednesday, August 11, 2004)]
[Proposed Rules]
[Pages 48835-48837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18379]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[CA119-FFA; FRL-7800-4]


Finding of Failure To Attain; Imperial Valley Planning Area; 
California; Particulate Matter of 10 Microns or Less

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: EPA is today proposing to find under the Clean Air Act (CAA) 
that the Imperial Valley Planning Area (Imperial Valley) failed to 
attain the National Ambient Air Quality Standards (NAAQS) for 
particulate matter of 10 microns or less (PM-10) by the serious area 
statutory deadline of December 31, 2001.
    Separately in today's Federal Register, EPA is publishing its final 
action in response to a recent Ninth Circuit Court order compelling EPA 
to reclassify the Imperial Valley PM-10 nonattainment area from 
moderate to serious because the area failed to meet the moderate area 
attainment date of December 31, 1994.
    The proposed finding of failure to attain the serious area 
attainment date of December 31, 2001, is based on monitored air quality 
data for the PM-10 NAAQS from January 1999 through December 2001. If 
EPA takes final action finding that Imperial Valley failed to attain, 
the State of California must submit within one year of publication of 
the final action, a plan that provides for attainment of the PM-10 
NAAQS and that achieves at least 5 percent annual reductions in PM-10 
or PM-10 precursor emissions as required by CAA section 189(d).

DATES: Comments on this proposed action must be received by September 
10, 2004.

ADDRESSES: Send comments to David Wampler, Planning Office (AIR-2), 
U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, 
San Francisco, CA 94105-3901 or e-mail to [email protected], or 
submit comments at http://www.regulations.gov.
    You can inspect and copy the docket for this action at our Region 
IX office during normal business hours (see address below). Due to 
increased security, we suggest that you call at least 24 hours prior to 
visiting the Regional Office so that we can make arrangements to have 
someone meet you. The Federal Register notice is also available as an 
electronic file on EPA's Region 9 Web page at http://www.epa.gov/region09/air.

    Planning Office (AIR-2), Air Division, U.S. Environmental 
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 
94105.

FOR FURTHER INFORMATION CONTACT: David Wampler, U.S. Environmental 
Protection Agency, Region 9, Air Division, Planning Office (AIR-2), 75 
Hawthorne Street, San Francisco, CA 94105; (415) 972-3975; 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, the words ``we,'' 
``us,'' or ``our'' mean U.S. EPA.

I. Background

    Imperial County is located in the southeastern corner of 
California. It has borders with Mexico to the south, Arizona to the 
east, and San Diego County to the west. Most of Imperial County falls 
within the Imperial Valley Planning Area (Imperial Valley). 40 CFR part 
81. The local jurisdiction that is responsible for air pollution 
control is the Imperial County Air Pollution Control District (ICAPCD).
    Upon enactment of the Clean Air Act Amendments of 1990, Imperial 
Valley was classified as a moderate PM-10 nonattainment area. The CAA 
requires that moderate areas attain the PM-10 NAAQS by December 31, 
1994. CAA section 188(c)(1). Moderate areas failing to attain the NAAQS 
by the prescribed attainment date must be reclassified as serious under 
CAA section 188(b)(2). However, CAA section 179(B)(d) provides that any 
area that establishes to the satisfaction of EPA that it would have 
attained the PM-10 NAAQS by the applicable attainment date but for 
emissions emanating from outside the United States, is not subject to 
the provisions of CAA section 182(b)(2), i.e., reclassification to 
serious nonattainment.
    In July 2001, ICAPCD and the California Air Resources Board (CARB) 
submitted evidence that the Imperial Valley would have attained the PM-
10 NAAQS by the 1994 attainment date, but for transport from Mexico. On 
October 19, 2001, EPA made a final finding that Imperial Valley would 
have attained the PM-10 NAAQS by December 1994 but for PM-10 emissions 
emanating from Mexico. 66 FR 53106.
    The Sierra Club petitioned for review of our October 2001 final 
action in the U.S. Court of Appeals for the Ninth Circuit. On October 
9, 2003, the Court issued its opinion. Sierra Club v. United States 
Environmental Protection Agency, et al., 352 F.3d 1186. The Court 
rejected EPA's factual determination with respect to two days, January 
19 and 25, 1993, on which PM-10 exceedances of the 24-Hour PM-10 NAAQS 
occurred, finding that ``[b]ased on the data and the reports in the 
record, there simply is no possibility that Mexican transport could 
have caused the observed PM-10 exceedances * * * .'' The effect of this 
conclusion is that Imperial Valley had exceedances of the PM-10 NAAQS 
that preclude a finding that the area would have attained the NAAQS by 
1994. The Court, concluding that further administrative proceedings 
with respect to the 1994 exceedances would serve no useful purpose, 
instructed EPA to reclassify Imperial Valley as a serious PM-10 
nonattainment area.
    On December 18, 2003, the Ninth Circuit denied a petition for 
rehearing by ICAPCD, an intervener in the case, slightly revised its 
October 9, 2003, opinion, and granted ICAPCD's motion to stay the 
mandate until March 17, 2004, to permit ICAPCD to file a petition for a 
writ of certiorari in the U.S. Supreme Court. Imperial County did so on 
March 17, 2004. On June 21, 2004, the Supreme Court declined to hear 
the case. Imperial County Air Pollution Control District v. Sierra 
Club, et al., 72 U.S.L.W. 3757. Thereafter the stay was lifted and the 
mandate issued.
    Accordingly, elsewhere in today's Federal Register, EPA is 
publishing its final action in response to the Ninth Circuit's October 
9, 2003, opinion, finding that Imperial Valley failed to attain the PM-
10 NAAQS by the moderate area statutory deadline of December 31, 1994, 
and reclassifying the area from moderate to serious. All serious PM-10 
nonattainment areas were required to attain the standards by no later 
than December 31, 2001, unless granted a one-time extension of up to 
five years. CAA section 188(c)(2) and (e).

[[Page 48836]]

II. Proposed Finding of Failure To Attain by December 31, 2001

A. Clean Air Act Requirements

    EPA has the responsibility, pursuant to CAA sections 179(c) and 
188(b)(2), of determining within 6 months of the applicable attainment 
date (i.e., by June 30, 2002) whether Imperial Valley attained the 
annual and 24-hour NAAQS. Because June 30, 2002, has passed, EPA must 
make that determination as soon as practicable. Delaney v. EPA, 898 
F.2d 687 (9th Cir. 1990).
    Section 179(c)(1) of the Act provides that determinations of 
failure to attain are to be based upon an area's ``air quality as of 
the attainment date,'' and section 188(b)(2) is consistent with this 
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 Air Quality 
System Database (AQS Database). These data are reviewed to determine 
the area's air quality status in accordance with EPA regulations at 40 
CFR part 50, appendix K.
    Pursuant to appendix K, attainment of the annual PM-10 NAAQS is 
achieved when the expected annual arithmetic mean PM-10 concentration 
at each monitoring site in the area is less than or equal to the level 
of the standard (50 [mu]g/m\3\). Attainment of the 24-hour PM-10 NAAQS 
is achieved when the expected number of exceedances of the 24-hour 
NAAQS (150 [mu]g/m\3\) 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.

B. Ambient Air Monitoring Data

    The ambient air quality network in Imperial Valley consists of PM-
10 monitoring stations throughout the Valley. For a map with locations 
of the current monitors please see: http://www.arb.ca.gov/aqd/namslams/ss.pdf. In general, PM-10 data from these monitoring stations are 
collected on a regular basis and reported to our AQS Database.
1. Annual PM-10 Standard
    According to data in the AQS database, three monitoring sites in 
the Imperial Valley were in violation of the annual PM-10 NAAQS for the 
time period leading up to the serious area attainment date--January 1, 
1999, through December 31, 2001. Data for these monitors during the 
three-year period are listed in Table 1 below. 40 CFR part 50 states 
that the annual PM-10 standard is met when the annual arithmetic mean 
concentration is less than or equal to 50 micrograms per cubic meter 
([mu]g/m\3\). The expected annual arithmetic mean is determined by 
averaging the annual arithmetic mean PM-10 concentration for the three 
years preceding the attainment date (in this case 1999 through 2001). 
The procedure for calculating arithmetic mean is discussed in 40 CFR 
part 50 appendix K, section 4.0.

Table 1.--Imperial Valley Monitoring Sites That Violate the Annual PM-10
                            NAAQS (1999-2001)
------------------------------------------------------------------------
                                                                  3-year
                                                                  annual
                           Site name                             average
                                                                 ([mu]g/
                                                                  m\3\)
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Calexico, Ethel Street.........................................       81
Calexico, Grant Street.........................................       85
Westmorland....................................................       52
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2. 24-Hour PM-10 Standard
    In addition to violations of the annual PM-10 NAAQS, data from six 
monitors located in Imperial Valley show violations of the 24-hour PM-
10 NAAQS. According to 40 CFR part 50, the 24-hour PM-10 NAAQS is 
attained when the expected number of days per calendar year with a 24-
hour average above 150 [mu]g/m\3\ is equal to or less than one. In the 
simplest case, the number of expected exceedances at a site is 
determined by recording the number exceedances in each calendar year 
and then averaging them over the past three calendar years. This means 
that if a monitoring site has four or more observed or estimated 
exceedances in a three-year period then it is in violation of the 24-
hour PM-10 NAAQS. Generally, if PM-10 sampling is scheduled less than 
every day, EPA requires the adjustment of observed exceedances to 
account for days for which a sample was not collected. The method for 
adjusting the observed exceedances to determine the estimated 
exceedances for a year is described in 40 CFR part 50, appendix K, 
section 3.1.
    The six monitoring sites in Imperial Valley that were in violation 
of the 24-hour PM-10 NAAQS during the calendar years 1999 through 2001 
are listed below in Table 2 along with the number of estimated 24-hour 
exceedances at each site for each year and the average number of 
expected exceedance days per year during the three-year period. All of 
the sites listed in Table 2 operate on a one-in-six day schedule. For 
each of these sites, the average number of expected exceedance days per 
year over the three-year period 1999-2001 exceeds one.

   Table 2.--24-hour PM-10 Estimated Exceedances in the Imperial Valley Nonattainment Area (1999 Through 2001)
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                                                                                                        Average
                                                                                                       number of
                                                                   Estimated   Estimated   Estimated   expected
                       Monitoring station                         exceedance  exceedance  exceedance  exceedance
                                                                   days 1999   days 2000   days 2001   days per
                                                                                                      year 1999-
                                                                                                         2001
----------------------------------------------------------------------------------------------------------------
Calexico, Grant Street..........................................        31.7        37.9          12        27.2
Calexico, Ethel St..............................................        12.9          30          18        20.3
Niland..........................................................           0        12.9         6.4         6.4
Brawley.........................................................           0         6.9           0         2.3
Westmorland.....................................................           0        12.8           6         6.3
El Centro.......................................................           0           6         6.4         4.1
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[[Page 48837]]

III. Proposed Action

    EPA is proposing to find that Imperial Valley did not attain the 
annual or 24-hour PM-10 NAAQS by the December 31, 2001 attainment date 
as discussed in section II above.
    Pursuant to CAA section 189(d), serious PM-10 nonattainment areas 
that fail to attain are required to submit ``plan revisions which 
provide for attainment of the PM-10 air quality standards \1\ 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.'' Among other things, the plan 
revision must also provide for the expeditious implementation of best 
available control measures (BACM) pursuant to CAA section 189(b)(1)(B). 
Under section 189(d) the applicable submittal deadline for the plan 
revision is within 12 months of the applicable attainment date. Since 
that date, December 31, 2002, has passed, the plan revision is due 
within one year of publication of a final finding of nonattainment 
pursuant to CAA section 179(d).
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    \1\ Under section 179B(a), the attainment demonstration in any 
future PM-10 plan submitted by the State for Imperial Valley may be 
based on a showing of attainment but for emissions emanating from 
Mexico. EPA's prior action under section 179(B)(d) and the Ninth 
Circuit's recent decision were based on evaluation of 1992-1994 data 
and do not preclude the State from pursuing a future 179B(a) 
demonstration, if applicable.
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IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 proposed 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 proposed action in and of itself establishes 
no new requirements, it merely notes that the air quality in Imperial 
Valley did not meet the Federal health standards for PM-10 by the CAA 
deadline. Accordingly, the Administrator certifies that this proposed 
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 proposed 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 the Unfunded Mandates Reform 
Act (UMRA) of 1995 (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 proposed action does not contain 
any unfunded mandate or significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Pub. L. 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 proposed 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 proposed 
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 proposed 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 
proposed 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 proposed 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.).

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 3, 2004.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 04-18379 Filed 8-10-04; 8:45 am]
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