[Federal Register Volume 72, Number 108 (Wednesday, June 6, 2007)]
[Rules and Regulations]
[Pages 31183-31185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10857]



40 CFR Part 52

[EPA-R09-OAR-2007-0091, FRL-8322-5]

Findings 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: Final rule.


SUMMARY: EPA is finalizing its findings 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 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. After 
affording the affected tribal leaders the opportunity to consult with 
EPA on its proposed actions, the Agency is also finding that

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the tribal areas have failed to attain the 24-hour PM-10 NAAQS.
    As a result of these failures to attain findings, Arizona and 
California must submit by December 31, 2007, plan provisions that 
provide for attainment of the 24-hour 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: Effective Date: This rule is effective on July 6, 2007.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2007-0091 for 
this action. The index to the docket is available electronically at 
http://www.regulations.gov and in hard copy at EPA Region 9, 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 in the FOR FURTHER 

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].

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

I. Proposed Action and Subsequent Air Quality Data

    On March 23, 2007, EPA proposed to find that the Phoenix and Owens 
Valley nonattainment areas failed to attain the 24-hour PM-10 NAAQS by 
the CAA deadline, December 31, 2006. For details on the background and 
air quality data supporting these proposed findings, please see the 
proposed rule. 72 FR 13725.
    In our proposed rule we noted that the data on which we based our 
proposed findings of failure to attain were collected from January 2004 
through September 2006. EPA normally uses three complete calendar years 
of data to determine an area's attainment status. However, when less 
data are sufficient to unambiguously establish nonattainment, 40 CFR 
part 50, appendix K, section 2.3(c) allows EPA to determine that a 
monitor is in violation of the PM-10 NAAQS. In the case of the Phoenix 
and Owens Valley nonattainment areas, two years and nine months of data 
were available at the time of the proposed rule and clearly indicated 
that the areas were in violation of the 24-hour PM-10 NAAQS. Thereafter 
Arizona and California have submitted data for October through December 
2006 to EPA's Air Quality System (AQS) database. These data indicate 
that there have been no additional exceedances of the PM-10 standard in 
the Phoenix and Owens Valley areas.\1\ Therefore, the inclusion of 
these data does not affect EPA's proposed nonattainment findings for 
these areas.

    \1\ Table 1 in the proposed rule (``Phoenix Nonattainment Area 
PM-10 Data Summary 2004-2006 Sites in Violation of the 24-hour PM-10 
NAAQS'') provides details on the number of observed and estimated 
exceedances recorded at five monitoring sites in the Phoenix 
nonattainment area from January 2004 through September 2006. 72 FR 
at 13725. While the attainment status of the monitors did not change 
based on the inclusion of data from October through December 2006, 
we no longer consider one of the sites listed in Table 1, Higley 
(AQS 04-013-4006), to be in violation of the NAAQS. As 
indicated in footnote 2 of the proposed rule, EPA has concurred with 
several of Arizona's requests to exclude certain exceedances of the 
24-hour PM-10 NAAQS from consideration in our nonattainment finding 
because these exceedances were due to exceptional or natural events. 
Id. Since we prepared the proposed rule, EPA has also concurred with 
Arizona's request to exclude two exceedance days at the Higley 
monitor (April 14 and 15, 2006) as being due to natural events. 
(March 14, 2007 letter to Nancy C. Wrona, Arizona Department of 
Environmental Quality from Sean Hogan, EPA). When these exceedances 
are excluded, the average annual estimated number of exceedances at 
Higley drops from 1.2 per year to 1.0 per year. The standard is 
attained when the estimated number of exceedances is less than or 
equal to one per year. See 40 CFR 50.6(a). However, even with the 
exclusion of the Higley data, the Phoenix nonattainment area is 
still in violation of the 24-hour PM-10 NAAQS based on the 
exceedances listed in Table 1 for the other four sites.

II. Public Comments and EPA Responses

    By letters dated March 15, 2007, EPA invited the Indian tribes 
located within the boundaries of the Phoenix and Owens Valley 
nonattainment areas to consult with us on the proposed findings. We 
received no response from the tribes. Moreover, EPA did not receive any 
adverse comments regarding the findings of failure to attain. Below is 
a summary of the comments we received and our responses.
    Comments regarding Phoenix: In general, commenters agreed with 
EPA's proposed nonattainment finding for the Phoenix nonattainment 
area. Two commenters wanted EPA to impose sanctions because the area 
has received attainment date extensions and has still failed to achieve 
the attainment deadline.
    Response: The consequence of the Phoenix nonattainment area's 
failure to attain the 24-hour PM-10 standard by December 31, 2006 is a 
finding of failure to attain that results in new PM-10 planning 
requirements and deadlines. See CAA sections 179(c) and 189(d). Under 
the CAA, failure to meet attainment deadlines does not result in the 
imposition of sanctions. However, under CAA section 179(a) and (b), if 
EPA determines that Arizona fails to submit a new plan by December 31, 
2007, or determines that such a plan is incomplete, or if EPA 
disapproves such a plan in whole or in part, the Agency must impose 
offset or highway sanctions unless the deficiency has been corrected 
within 18 months.
    Comment regarding Owens Valley: EPA received comments on the 
history of the Owens Valley nonattainment area's PM-10 nonattainment 
problem and the controls undertaken and committed to by the City of Los 
    Response: EPA appreciates the information. The Great Basin Unified 
Air Pollution Control District and the City of Los Angeles will need to 
continue to work together to attain the PM-10 standard in the Owens 
Valley nonattainment area.

III. EPA Action

    EPA is finding that the Phoenix and Owens Valley nonattainment 
areas did not attain the 24-hour PM-10 NAAQS by the December 31, 2006 
attainment deadline.
    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

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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.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (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). This 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 
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 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 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 consulted with all 
interested tribes, as provided for by Executive Order 13175 (65 FR 
67249, November 9, 2000). EPA contacted each tribe and gave them the 
opportunity to enter into consultation on a government-to-government 
basis. 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 these 
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 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.).
    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. 
    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 August 6, 2007. 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).)

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 

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

    Dated: May 24, 2007.
Jane Diamond,
Acting Regional Administrator, Region IX.
[FR Doc. E7-10857 Filed 6-5-07; 8:45 am]