[Federal Register Volume 72, Number 56 (Friday, March 23, 2007)]
[Proposed Rules]
[Pages 13723-13726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5357]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2007-0091, FRL-8291-1]


Proposed Finding of Failure To Attain; State of Arizona, Phoenix 
Nonattainment Area; State of California, Owens Valley Nonattainment 
Area; Particulate Matter of 10 Microns or Less

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to find that the Phoenix Planning Area 
(Phoenix nonattainment area) and the Owens Valley Planning Area (Owens 
Valley nonattainment area) did not attain the 24-hour National Ambient 
Air Quality Standard (NAAQS) for particulate matter of 10 microns or 
less (PM-10) by the deadline mandated in the Clean Air Act (CAA or the 
Act), December 31, 2006. These proposed findings are based on monitored 
air quality data for the PM-10 NAAQS from 2004 through September 2006.
    Several Indian tribes have reservations located within the 
boundaries of the Phoenix and Owens Valley nonattainment areas. EPA 
implements CAA provisions for determining whether such areas have 
attained the NAAQS by the applicable attainment deadline in these 
reservations. EPA is also proposing that these areas have failed to 
attain the PM-10 NAAQS. Thus, this proposed rule could potentially 
affect these tribes. Accordingly, EPA has notified the affected tribal 
leaders of this proposed rule and is inviting consultation with 
interested tribes.
    If EPA finalizes, after public notice and comment, these failure to 
attain findings, Arizona and California must submit by December 31, 
2007, plan provisions that provide for attainment of the PM-10 NAAQS 
and that achieve 5 percent annual reductions in PM-10 or PM-10 
precursor emissions as required by CAA section 189(d).

DATES: Written comments must be received on or before April 23, 2007.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2007-0091, by one of the following methods:
    (1) Federal eRulemaking portal: http://www.regulations.gov. Follow 
the on-line instructions.
    (2) E-mail: [email protected]
    (3) Mail or deliver: Doris Lo (AIR-2), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available on-line at 
www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through the 
www.regulations.gov or e-mail. www.regulations.gov is an anonymous 
access system, and EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If EPA 
cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 
IX, 75 Hawthorne Street, San Francisco, California. While all documents 
in the docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed directly below.

FOR FURTHER INFORMATION CONTACT: For Phoenix issues contact Doris Lo, 
EPA Region IX, (415) 972-3959, [email protected]; for Owens Valley 
issues contact Larry Biland, EPA Region IX, (415) 947-4132, 
[email protected]; and for air quality monitoring issues contact Bob 
Pallarino, EPA Region IX, (415) 947-4128, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,'' 
``us,'' or ``our'' are used, we mean EPA.

I. Background

    The NAAQS are levels for certain ambient air pollutants set by EPA 
to protect public health and welfare. PM-10 is among the ambient air 
pollutants for which EPA has established health-based standards. PM-10 
causes adverse health effects by penetrating deep in the

[[Page 13724]]

lungs, aggravating the cardiopulmonary system. Children, the elderly, 
and people with asthma and heart conditions are the most vulnerable.
    On July 1, 1987 EPA revised the health-based national ambient air 
quality standards (NAAQS) (52 FR 24672), replacing standards for 
suspended particulates with new standards applying only to particulate 
matter up to ten microns in diameter (PM-10). At that time, EPA 
established two PM-10 standards, the annual standard and a 24-hour 
standard. On December 18, 2006, EPA revoked the annual PM-10 standard 
but retained the 24-hour PM-10 standard. 71 FR 61144 (October 17, 
2006). The 24-hour PM-10 standard of 150 micrograms per cubic meter 
([mu]g/m3) is attained when the expected number of days per 
calendar year with a 24-hour average concentration above 150 [mu]g/
m3, as determined in accordance with appendix K to 40 CFR 
part 50, is equal to or less than one. 40 CFR 50.6 and 40 CFR part 50, 
appendix K.
    On the date of enactment of the 1990 Clean Air Act Amendments (CAA 
or the Act), PM-10 areas, including the Phoenix and Owens Valley 
nonattainment areas, meeting the qualifications of section 107(d)(4)(B) 
of the amended Act were designated nonattainment by operation of law. 
56 FR 11101 (March 15, 1991). EPA codified the boundaries of the 
Phoenix nonattainment area at 40 CFR 81.303 and the Owens Valley 
nonattainment area at 40 CFR 81.305.
    Once an area is designated nonattainment for PM-10, section 188 of 
the CAA outlines the process for classifying the area and establishes 
the area's attainment deadline. In accordance with section 188(a), at 
the time of designation, all PM-10 nonattainment areas, including the 
Phoenix and Owens Valley nonattainment areas, were initially classified 
as moderate.
    Section 188(b)(1) of the Act provides that moderate areas can 
subsequently be reclassified as serious before the applicable moderate 
area attainment date if at any time EPA determines that the area cannot 
``practicably'' attain the PM-10 NAAQS by the moderate area attainment 
deadline, December 31, 1994. On January 8, 1993, EPA made such a 
determination and reclassified the Owens Valley nonattainment area as 
serious. 58 FR 3334.
    Moreover, a moderate area must be reclassified by operation of law 
if EPA determines after the applicable attainment date that, based on 
air quality, the area was not in attainment after that date. CAA 
sections 179(c) and 188(b)(2). On May 10, 1996, EPA published such a 
reclassification of the Phoenix nonattainment area as serious. 61 FR 
21372.
    As serious PM-10 nonattainment areas, the Phoenix and Owens Valley 
nonattainment areas acquired a new attainment deadline of no later than 
December 31, 2001. CAA section 188(c)(2). However, CAA section 188(e) 
allows states to apply for up to a 5-year extension of the serious area 
attainment deadline of December 31, 2001. In order to obtain the 
extension, there must be a showing that: (1) Attainment by 2001 would 
be impracticable, (2) the state complied with all requirements and 
commitments pertaining to the area in the implementation plan for the 
area, and (3) the state demonstrates that the plan for the area 
includes the most stringent measures that are included in the 
implementation plan of any state or are achieved in practice in any 
state, and can feasibly be implemented in the area. Both Arizona and 
California requested extensions under CAA section 188(e) to December 
31, 2006. On July 24, 2002, EPA granted Arizona's request to extend the 
attainment date for the Phoenix nonattainment area to December 31, 
2006. 67 FR 48718. On September 3, 1999 EPA granted the request to 
extend the attainment date for the Owens Valley nonattainment area to 
December 31, 2006. 64 FR 48305.
    For a more detailed discussion of the history of PM-10 planning for 
the Phoenix and Owens Valley nonattainment areas, please refer to EPA 
actions on the PM-10 state implementation plans (SIPs) for these areas. 
67 FR 48718 (July 25, 2002); 64 FR 48305 (September 3, 1999).

II. Proposed Findings of Failure To Attain

A. Clean Air Act Requirements for Findings of Failure To Attain

    EPA has the responsibility, pursuant to sections 179(c) and 
189(b)(2) of the Act, to determine within 6 months of the applicable 
attainment date (i.e., by June 30, 2007), whether the Phoenix and Owens 
Valley nonattainment areas have attained the 24-hour PM-10 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 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.
    As stated above, pursuant to appendix K, attainment of the 24-hour 
PM-10 NAAQS is achieved when the expected number of exceedances 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 24-hour PM-10 standard. A complete 
year of air quality data as referred to in 40 CFR part 50, appendix K, 
comprises all four calendar quarters with each quarter containing data 
from at least 75 percent of the scheduled sampling days.
    There are two basic types of PM-10 monitors, manual samplers and 
automated continuous analyzers. Manual samplers use a filter to collect 
PM-10 that must be weighed in a laboratory before a PM-10 concentration 
can be determined. Automated continuous analyzers run continuously and 
can produce hourly average concentrations of PM-10 in close to real-
time. Most PM-10 monitors do not record a sample every day of the year, 
either by design or because of operational or maintenance issues. 
Manual PM-10 samplers generally run on a one-in-every-six day schedule. 
Automated analyzers generally produce a PM-10 24-hour average 
concentration every day, but as noted above, operational or maintenance 
issues may effect an automated analyzer's ability to produce a PM-10 
concentration every day of the year.
    Because attainment of the PM-10 NAAQS is based on the number of 
expected exceedances per year, it is necessary to adjust the number of 
observed exceedances per year to account for any days for which a 24-
hour PM-10 concentration is not available. This adjustment results in 
an estimated number of expected exceedances per year and is made in 
accordance with the provisions of 40 CFR part 50, appendix K, section 
3.1. In two simple examples, if a PM-10 instrument operates every day 
of the year, then no adjustment is necessary and the observed number of 
exceedances will be equal to the estimated number of exceedances. If a 
sampler operates on a one-in-every-six day schedule, then the number of 
observed exceedances will be adjusted to account for the five days with 
no samples. In this example, one observed exceedance would be the 
equivalent of six estimated exceedances.
    Most PM-10 samplers in the Phoenix nonattainment area originally 
operated on a one-in-six day schedule. A number of monitoring sites in 
the Phoenix

[[Page 13725]]

nonattainment area recorded exceedances while operating on this 
schedule. 40 CFR part 50, appendix K, section 3.1(f) states that EPA 
will not perform the estimated exceedance adjustment described above if 
a monitor meets certain conditions, including a change in the sampling 
frequency to every day monitoring. In an effort to reduce the potential 
for overestimating the number of expected exceedances, the Maricopa 
County Air Quality Department began operating some sites on an every 
day schedule as allowed under the provisions of appendix K. All of the 
PM-10 monitors in the Owens Valley network operate every day. Tables 1 
and 2 in section II.B. below indicate the operating schedule for each 
of the violating monitors in the Phoenix and Owens Valley nonattainment 
areas.
    As summarized in Tables 1 and 2 in section II.B. below, there are a 
number of PM-10 monitoring sites in the Phoenix and Owens Valley 
nonattainment areas that continue to violate the 24-hour PM-10 NAAQS. 
If a site averages more than one estimated exceedance per year during 
the three-year attainment period, it is in violation of the NAAQS (see 
far right columns of Tables 1 and 2).
    In the Phoenix nonattainment area, five sites are in violation of 
the 24-hour PM-10 NAAQS: West Phoenix, Greenwood, Higley, West 43rd 
Avenue, and Bethune School. In the Owens Valley nonattainment area, 
seven sites continue to violate the PM-10 NAAQS: Lone Pine, Olancha-
Walker Creek Road, Olancha-Dirty Sox, Olancha-Flat Rock, Olancha-Shell 
Cut, Olancha-Bill Stanley Site, and Keeler.

B. Ambient Air Monitoring Data

                      Table 1.--Phoenix Nonattainment Area PM-10 Data Summary 2004-2006\1\
                                 [Sites in Violation of the 24-Hour PM-10 NAAQS]
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                                                                   Number of                      Average number
                                  Operating      1st Max conc.     observed        Number of       of estimated
    Site name / AQS ID No.         schedule       [mu]g/m\3\      exceedances      estimated     exceedances per
                                                                      \2\         exceedances          year
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West Phoenix, 04-013-0019....  1 in 6 / Every              155               1              6                2
                                day.
Greenwood, 04-013-3010.......  1 in 6 / Every              173               2              7                2.3
                                day.
Higley 04-013-4006...........  1 in 6 /                    170               3              3.6              1.2
                                Everyday.
West 43rd Ave, 04-013-4009...  1 in 6 / Every              260              26             26                8.7
                                day.
Bethune School, 04-013-8006..  1 in 6.........             198               1              6.4              2.1
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\1\ The data in Tables 1 and 2 for both nonattainment areas are only for the period January 1, 2004 through
  September 30, 2006. EPA generally uses a complete three-year set of data in making nonattainment/attainment
  determinations. EPA does not currently have the data for the last quarter of 2006 and the State is not
  required to submit them until March 31, 2007. See 40 CFR 58.16(b); 71 FR 61236 (October 17, 2006). However,
  when less data are sufficient to unambiguously establish nonattainment, 40 CFR 50, appendix K, section 2.3(c)
  allows EPA to determine that a monitor is in violation of the PM-10 NAAQS.
\2\ There were additional exceedences observed in the Phoenix nonattainment area that are not included in this
  table. The State of Arizona requested, as allowed by EPA's Natural Events Policy (Memorandum entitled ``Areas
  Affected by PM-10 Natural Events'' from Mary D. Nichols, Assistant Administrator for Air and Radiation to
  Regional Air Division Directors, May 30, 1996), that the Agency exclude certain observed exceedances from our
  nonattainment determination because they were considered high wind natural events. The letters from the State
  requesting that we exclude or ``flag'' certain exceedances and EPA's responses concurring with the State's
  requests are included in the docket accompanying this rulemaking.


                   Table 2.--Owens Valley Nonattainment Area PM-10 Data Summary 2004-2006 \3\
                                 [Sites in Violation of the 24-Hour PM-10 NAAQS]
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                                                                                                  Average number
                                  Operating      1st Max conc.     Number of       Number of       of estimated
    Site name / AQS ID No.         schedule       [mu]g/m\3\       observed        estimated     exceedances per
                                                                  exceedances     exceedances          year
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Lone Pine, 06-027-0004.......  Every day......             349               5              5.1              1.7
Olancha Walker Creek Road, 06- Every day......             407              11             11                3.7
 027-0021.
Olancha, Dirty Sox, 06-027-    Every day......            4471              54             54               18
 0022.
Olancha, Flat Rock, 06-027-    Every day......            6171              11             11.8              3.9
 0024.
Olancha, Shell Cut, 06-027-    Every day......            6846              43             43               14.3
 0025.
Olancha, Bill Stanley Site,    Every day......             879               6              7                2.3
 06-027-0026.
Keeler, 06-027-1003..........  Every day......            3322              27             27                9
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\3\ See footnote 1.

C. Tribal Lands

    EPA intends to take final action to determine whether the Phoenix 
and Owens Valley nonattainment areas have attained the PM-10 NAAQS 
following notice and comment. We believe that the plain language of 
sections 179(c)(1) and 188(b)(2) mandates that we make such findings 
with respect to these areas. We also believe that, as a matter of EPA's 
federal implementation of relevant provisions of the CAA over Indian 
country within the Phoenix and Owens Valley nonattainment areas, the 
findings of failure to attain should apply to these areas of Indian 
country. PM-10 continues to be a pervasive pollution problem in the 
Phoenix and Owens Valley nonattainment areas. PM-10 can be transported 
into an area from pollution sources found many miles away from its 
source. Therefore, EPA recommends that boundaries for nonattainment 
areas be drawn to encompass both areas with direct sources of the 
pollution problem as well as nearby areas in the same airshed. EPA 
believes that this approach best ensures public health protection from 
the adverse effects of PM-10 pollution. Therefore, it is generally 
counterproductive from an air quality and planning perspective to 
segregate

[[Page 13726]]

land areas located well within the boundaries of a nonattainment area, 
such as the three Indian reservations in the Phoenix nonattainment area 
and the four Indian reservations in the Owens Valley nonattainment 
area. Moreover, violations of the PM-10 standard, which are measured 
and modeled throughout each of the nonattainment areas, as well as 
shared meteorologic conditions, would dictate the same result. EPA 
does, however, recognize the significance of Indian country boundaries 
within the nonattainment areas and, as described below, will consult 
with the affected Tribes regarding this finding of failure to attain 
the NAAQS and their Indian country.

III. Summary of Proposed Action

    EPA is proposing to find that the Phoenix and Owens Valley 
nonattainment areas did not attain the 24-hour PM-10 NAAQS by the 
December 31, 2006 attainment deadline as discussed above in section II.
    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 standard 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.''
    In accordance with CAA section 179(d)(3), the attainment deadline 
applicable to an area that misses the serious area attainment date is 
as soon as practicable, but no later than 5 years from the publication 
date of the nonattainment finding notice. EPA may, however, extend the 
attainment deadline to the extent it deems appropriate for a period no 
greater than 10 years from the publication date, ``considering the 
severity of nonattainment and the availability and feasibility of 
pollution control measures.'' In addition to the attainment 
demonstration and 5 percent requirements, the plans under section 
189(d) for the Phoenix and Owens Valley nonattainment areas must 
address all applicable requirements of the CAA, including sections 
110(a), 172(c), 176(c) and 189(c)(1).
    Because the applicable attainment date for both nonattainment areas 
was December 31, 2006, under section 189(d), the submittal deadline for 
the plans will be December 31, 2007 if EPA's proposed findings of 
failure to attain are finalized.

IV. Statutory and Executive Order Reviews

    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 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 the Phoenix nonattainment area and 
the Owens Valley nonattainment area did not meet the federal health 
standard 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) (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).
    Several Indian tribes have reservations located within the 
boundaries of the Phoenix and Owens Valley nonattainment areas. EPA is 
responsible for the implementation of federal Clean Air Act programs in 
Indian country, including findings of failure to attain. EPA has 
notified the affected tribal officials and will be consulting with all 
interested tribes, as provided for by Executive Order 13175 (65 FR 
67249, November 9, 2000). EPA will ensure that each tribe is contacted 
and given the opportunity to enter into consultation on a government-
to-government basis. 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 these proposed findings of failure to 
attain are factual determinations 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 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Volatile organic 
compounds.

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

    Dated: March 15, 2007.
Wayne Nastri,
Regional Administrator, Region IX.
 [FR Doc. E7-5357 Filed 3-22-07; 8:45 am]
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