[Federal Register Volume 66, Number 155 (Friday, August 10, 2001)]
[Proposed Rules]
[Pages 42187-42193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20209]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 81
[CA038-FOA; FRL -7031-9]
Clean Air Act Finding of Attainment and Alternative Finding of
Nonattainment and Reclassification to Serious; California-Imperial
Valley Planning Area; Particulate Matter of 10 microns or less (PM-10)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to find that the State of California has
established to EPA's satisfaction that the Imperial Valley Planning
Area (Imperial County), a PM-10 moderate nonattainment area, would have
attained the national ambient air quality standards (NAAQS) for
particulate matter of ten microns or less (PM-10) by the applicable
Clean Air Act (CAA or the Act) attainment
[[Page 42188]]
date, December 31, 1994, but for emissions emanating from outside the
United States, i.e., Mexico. If EPA takes final action on this proposed
finding, Imperial County will not be subject to a finding of failure to
attain and reclassification to serious.
Alternatively, EPA is proposing to find that Imperial County did
not attain the PM-10 NAAQS by its CAA mandated attainment date. This
proposed finding is based on monitored air quality data for the PM-10
NAAQS during the years 1992-1994. If EPA takes final action on this
proposed finding, Imperial County will be reclassified by operation of
law as a serious nonattainment area under section 188(b)(2)(A) of the
CAA.
EPA is proposing the above actions in the alternative in the event
that public comments convince EPA that the State has not established
that Imperial County would have attained the PM-10 NAAQS but for
international transport by the applicable attainment date.
DATES: Comments on this proposed rule must be received in writing by
September 10, 2001.
ADDRESSES: Comments should be addressed to Doris Lo, U.S. Environmental
Protection Agency, Region 9, Air Division, Planning Office (AIR-2), 75
Hawthorne Street, San Francisco, California 94105.
FOR FURTHER INFORMATION CONTACT: Doris Lo, U.S. Environmental
Protection Agency, Region 9, Air Division, Planning Office (AIR-2), 75
Hawthorne Street, San Francisco, California 94105, (415) 744-1287,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
A. CAA Provisions and EPA Actions Concerning Designation and
Classification
On November 15, 1990, the date of enactment of the 1990 Clean Air
Act Amendments, PM-10 areas meeting the qualifications of section
107(d)(4)(B) of the Act were designated nonattainment by operation of
law. Once an area is designated nonattainment, section 188 of the Act
outlines the process for classification of the area and establishes the
area's attainment date. Pursuant to section 188(a), all PM-10
nonattainment areas were initially classified as moderate by operation
of law upon designation as nonattainment. These nonattainment
designations and moderate area classifications were codified in 40 CFR
part 81 in a Federal Register notice published on November 6, 1991 (56
FR 56694). The Imperial Valley Planning Area, consisting of all but the
easternmost portion of Imperial County, was designated nonattainment
and classified as moderate. See 40 CFR 81.305.
States containing areas which were designated as moderate
nonattainment by operation of law under section 107(d)(4)(B) were to
develop and submit state implementation plans (SIPs) to provide for the
attainment of the PM-10 NAAQS. Pursuant to section 189(a)(2), those SIP
revisions were to be submitted to EPA by November 15, 1991.
B. CAA Provisions Concerning Reclassification to Serious Nonattainment
Pursuant to sections 179(c) and 188(b)(2) of the Act, EPA has the
responsibility to determine within 6 months of the applicable
attainment date, whether PM-10 nonattainment areas have attained the
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 provision. EPA
makes the determinations of 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. These data are reviewed to determine
the area's air quality status in accordance with EPA guidance at 40 CFR
part 50, appendix K.
Pursuant to appendix K, attainment of the annual PM-10 standard is
achieved when the annual arithmetic mean PM-10 concentration is equal
to or less than 50 g/m3. Attainment of the 24-hour standard is
determined by calculating the expected number of exceedances of the 150
g/m3 limit per year. The 24-hour standard is attained when the
expected number of exceedances is 1.0 or less. A total of 3 consecutive
years of clean air quality data is generally necessary to show
attainment of the 24-hour and annual 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 4 calendar quarters with each quarter containing
data from at least 75 percent of the scheduled sampling days.
Under section 188(b)(2)(A), a moderate PM-10 nonattainment area
must be reclassified as serious by operation of law after the statutory
attainment date if the Administrator finds that the area has failed to
attain the NAAQS. Pursuant to section 188(b)(2)(B) of the Act, EPA must
publish a notice in the Federal Register identifying those areas that
failed to attain the standard and the resulting reclassifications.
C. CAA Provisions Concerning International Border Areas
Imperial County shares its southern border with Mexico. CAA section
179B(d) provides that, notwithstanding any other provision of law, any
State that establishes to the satisfaction of EPA that a PM-10
nonattainment area in such State would have attained the PM-10 NAAQS by
the applicable attainment date but for emissions emanating from outside
the United States (U.S.) shall not be subject to the provisions of CAA
section 182(b).
Section 179B(a) sets forth the state implementation plan (SIP)
requirements for moderate PM-10 areas that can make the above
demonstration.
II. Proposed Finding of Attainment Under CAA Section 179B(d)
EPA is today proposing to find that, pursuant to CAA section
179B(d), the State of California has established to EPA's satisfaction
that Imperial County attained the NAAQS for PM-10 by the applicable
attainment date, December 31, 1994, but for emissions emanating from
outside the U.S., and thus shall not be subject to a finding of failure
to attain and reclassification under CAA section 188(b)(2). As
discussed below, this proposed finding is based on the ``Imperial
County PM-10 Attainment Demonstration'' (hereafter referred to as the
``179B(d) demonstration'') which was developed by the Imperial County
Air Pollution Control District (ICAPCD) and transmitted to EPA by the
California Air Resources Board (CARB) on July 18, 2001. (July 18, 2001
letter with enclosure from Michael P. Kenny, Executive Officer, Air
Resources Board to Ms. Laura Yoshii, Acting Regional Administrator, EPA
Region 9).\1\
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\1\ In his letter, Mr.Kenny state's that CARB ``worked closely
with the Imperial County Air Pollution Control District * * * in
developing their analysis, and agree with their conclusion that the
area would have attained the standard from 1992 through 1994 but for
transport from Mexico. Independent Air Resources Board analyses of
all exceedances in that time frame support the District's
conclusion.'' Because CARB has ratified the ICAPCD's 179B(d)
demonstration and transmitted it to EPA, it is referred to in this
proposal as the State's demonstration.
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EPA has issued preliminary guidance relating to serious PM-10
nonattainment areas \2\ (General Preamble guidance) that includes a
discussion of the requirements applicable to international border
areas. For these areas, the General Preamble guidance
[[Page 42189]]
discusses the information and methods that can be used in determining
whether an area qualifies for treatment under CAA section 179B and then
discusses SIP requirements for areas which are able to demonstrate that
they would be in attainment but for the emissions emanating from
outside the U.S. This proposal does not address the SIP requirements
for the County but only the question of whether or not the State has
established that Imperial County attained the NAAQS by December 31,
1994 but for international transport. If EPA issues a final finding
that the nonattainment area would have attained but for international
transport, EPA will in separate actions address the applicable SIP
provisions and submissions by the State.
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\2\ ``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 Act Amendments of 1990,'' 59 FR 41998,
August 16, 1994.
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The General Preamble guidance states that ``[s]everal types of
information may be used to evaluate the impact of emissions emanating
from outside the U.S. The EPA will consider the information presented
by the State for individual nonattainment areas on a case-by-case basis
in determining whether an area may qualify for treatment under section
179B. * * * '' The General Preamble guidance also suggests five methods
which may be used in determining the impact of emissions emanating from
outside the U.S. and states that ``the State may use one or more of
these types of information or other techniques, depending on their
feasibility and applicability, to evaluate the impact of emissions
emanating from outside the U.S. on the nonattainment area.'' Below is a
discussion of each of the methods as addressed in the 179B(d)
demonstration.
Method 1. Place several ambient PM-10 monitors and a meteorological
station measuring wind speed and direction in the U.S. non-attainment
area near the international border. Evaluate and quantify any changes
in monitored PM-10 concentrations with a change in direction in the
predominant wind direction.
There are six PM-10 monitors in the nonattainment area, with two
monitors in the proximity of the border (Calexico-Grant St. and
Calexico-Ethel St., each 1.2 km from the Mexican border). A
meteorological station at the Imperial County Airport was used to
provide a windrose for each exceedance day. The 179B(d) demonstration
provided, for each exceedance day, an analysis of the transport of PM-
10 from Mexico, based on the spatial distribution of PM-10 throughout
the basin, along with a windrose, and a series of back trajectories
(based on the National Oceanic and Atmospheric Administration HYSPLIT
program). More details of this analysis are presented in the technical
support document (TSD) for today's proposed rule.
PM-10 exceedances were recorded on seven days in the 1992-1994 time
period. An analysis of the exceedances, which includes the spatial
plots, windroses, and trajectories for each of the days, is presented
in Appendix A to the 179B(d) demonstration. EPA's TSD discusses in
detail each of the days and the basis for concluding that exceedances
would not have occurred but for transport from Mexico.
For five of the days (August 23, 1993, July 7, 1994, August 6,
1994, October 17, 1994, and December 16, 1994) the analysis clearly
supports the conclusion that but for the transport of emissions from
Mexico, the PM-10 concentrations would not have exceeded the standard.
The spatial plots for these days indicate a pattern of higher
concentration near the border and show PM-10 concentrations decreasing
with distance from the border. The windroses for August 23, 1993, July
7, 1994, August 6, 1994, indicate that a large number of hours (17 to
19) have the potential to carry emissions from Mexico to Imperial
County.
For two of the exceedance days (January 19, 1993, and January 25,
1993) there are less data on which to base an analysis. The days are
similar in character. For each day, there is only one measured value,
at the Brawley monitor, which is slightly more than 20 miles from the
border, so the spatial plot is inconclusive. The days are classified as
stagnant. The windroses show that there is a potential to carry
emissions from Mexico for 14 of 24 hours. The January 19, 1993 PM-10
concentration is only slightly above the standard (162 g/
m\3\), and is likely to have been influenced by transport, given the
stagnant conditions and the shape of the windrose. A PM-10 value of 175
g/m\3\ was measured on January 25, 1993. The emissions from
Mexico are likely to have contributed to the PM-10 concentration at the
monitor, although it is difficult to precisely quantify the extent of
the contribution. Given the magnitude of emissions in the City of
Mexicali (see method 4 discussion below), it is likely that the PM-10
standard would not have been exceeded but for the contribution of
emissions from Mexico.
Method 2. Comprehensively inventory PM-10 emissions within the U.S.
in the vicinity of the nonattainment area and demonstrate that the
impact of those sources on the nonattainment area after application of
reasonably available controls does not cause the NAAQS to be exceeded.
This analysis must include an influx of background PM-10 in the area.
Background PM-10 levels could be based on concentrations measured in a
similar area not influenced by emissions from outside the U.S.
The 179B(d) demonstration relied on the most recent gridded
modeling inventory available. This inventory was prepared by CARB as
part of the Southern California Ozone Study,\3\ using 1997 emissions
data. A background concentration of 25 g/m\3\ was used, based
on an analysis of the distribution of observed PM-10 data in Imperial
County. The 25 g/m\3\ value represents the 10% cleanest days
monitored in Imperial County. The inventory and background level were
included in the modeling analysis discussed under method 5 below. The
179B(d) demonstration did not include an analysis of Method 2.
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\3\ The Southern California Ozone Study (SCOS) was a large-scale
field measurement program carried out in southern California during
the summer of 1997 to collect sufficient aerometric data to allow
data analysts and modelers to characterize and simulate ozone
formation and fate in the region. Several agencies and others
participated during the planning and operational phases of the field
study, including CARB, EPA, local districts, the U.S. Navy, and the
marine industry.
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Method 3. Analyze ambient sample filters for specific types of
particles emanating from across the border (although not required,
characteristics of emissions from foreign sources may be helpful.)
The 1992-1993 Imperial Valley/Mexicali Cross Border PM-10 Transport
Study (Final Report, January 30, 1997) includes an analysis of the
particles collected in areas within Imperial County where violations
have been recorded. This sample analysis determined that geological
dust (70-90%), motor vehicle exhaust (10-15%) and vegetative burning
(10%) account for the highest contribution to PM-10 concentrations.
These are the predominant emissions sources on both sides of the
border. Thus, the filter analysis by itself could not be used to
determine the extent to which violations might result from
international transport; however, as discussed in the TSD, the
transport study provided conclusions about the international
contribution based on a meteorological analysis of airflow in the study
area.
Method 4. Inventory the sources on both sides of the border and
compare the magnitude of PM-10 emissions originating within the U.S. to
those emanating from outside the U.S.
The 1996 PM-10 emission inventory for the City of Mexicali,
compiled by Radian (Radian International 2000
[[Page 42190]]
Mexicali Air Emission Inventory, February 2000) is of lower quality
than the emissions inventory for the Imperial County sources; however,
it is useful for a comparison of the magnitude of PM-10 emissions from
each side of the border. The estimated emissions for the City of
Mexicali (257 tons/day) are approximately equal to the PM-10 inventory
for Imperial County (246 tons/day). The density of the emissions is
much higher in Mexicali than in Imperial County because the City of
Mexicali covers a much smaller geographic area than Imperial County.
Furthermore, the City of Mexicali is in close proximity to that portion
of Imperial County where violations have been recorded. This comparison
does not prove PM-10 transport into Imperial County, but it does
suggest that the City of Mexicali has the potential to be a substantial
source contributing to the PM-10 concentrations in Imperial County
because of the magnitude of the emissions, the density of the
emissions, and the proximity to Imperial County.
Table A.--Comparison of Imperial County and Mexicali PM-10 Emissions
------------------------------------------------------------------------
Imperial City of
county Mexicali
------------------------------------------------------------------------
1996 PM-10 Emissions (tons/day)............... 246 257
Population (2000)............................. 142,361 662,617
Area--square miles............................ 4060 200
Growth rate in percent (1990-2000)............ 30 42
------------------------------------------------------------------------
Source: 1996 PM-10 emission inventory for the City of Mexicali,
compiled by Radian (Radian International 2000 Mexicali Air Emission
Inventory, February 2000).
Method 5. Perform air dispersion and/or receptor modeling to
quantify the relative impacts on the non-attainment area of sources on
PM-10 emissions.
The 179B(d) demonstration includes air dispersion modeling for
1992, 1993 and 1994. The modeling inputs (meteorological data and
inventory), model selection and modeling results are discussed in the
TSD. The performance of the model relative to measured ambient
concentrations could not be determined because emissions from Mexicali
were not modeled. Therefore, EPA cannot evaluate the model performance
and, as a result, the Agency believes that the modeling results are not
sufficiently robust at this time to demonstrate that Imperial County
would have been in attainment of the 24-hour PM-10 standards but for
PM-10 emissions from Mexico.
The results of the modeling are more useful for the demonstration
of the annual standard, which is less sensitive to model inputs. The
annual arithmetic mean for the Brawley monitoring station for the years
1992-1994 is only slightly above the annual standard, (51 g/
m3), and this part of the basin is therefore likely to have
attained the standard, but for international transport. The Calexico-
Grant St. and Calexico-Ethel St. sites are in close proximity to the
border. The Calexico Grant St. annual average was 56 g/
m3. The Calexico-Ethel St. site, which has only partial
data, has an annual average design value of 120 g/
m3 in 1994, after adjustments upward for missing data. The
modeling results (included in the TSD) also indicate that the annual
standard would have been attained for each year from 1992-1994 at each
of the Calexico sites.\4\ Based on the proximity to the border, the
magnitude of the Mexicali emissions and the modeling results, EPA
believes, that the annual standard would have been attained at these
sites but for transport.
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\4\ Modeled annual average concentrations at all of the sites
are below 43 g/m\3\ for each of the 3 years, assuming only
emissions from the United States side of the border.
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Summary of EPA Evaluation of 179B(d) Demonstration
The State's demonstration is based on a competently collected and
examined set of the relevant available information, and reaches a
reasoned conclusion that each of the 1992-94 exceedances, which are
only slightly above the NAAQS, would likely not have occurred without
pollutant transport from Mexico. However, In reviewing the methods for
determining international transport, EPA lacks some information that
would be helpful in determining with greater certainty the extent to
which emissions from Mexico contributed to monitored values above the
NAAQS. For example, the State was hampered by the absence of ambient
monitoring or accurate emission inventories in the Mexicali area in the
period 1992-94. These data cannot now be recreated in order to enable a
more conclusive analysis. Thus, EPA believes that the 179B(d)
demonstration has provided evidence sufficient to show that, but for
international transport of PM-10, Imperial County would have attained
the 24-hour PM-10 NAAQS by the December 31, 1994 deadline. This showing
rests primarily on the qualitative analysis of wind patterns on
exceedance days discussed under method 1 and is further supported by
the emissions inventories discussed under method 4. Furthermore, EPA
believes the modeling discussed under Method 5 provides a demonstration
that the annual PM-10 NAAQS has been attained but for international
transport.
If EPA takes final action finding that the State has met the
requirements of CAA section 179B(d), Imperial County must meet the
planning requirements specified in CAA section 179B(a). Because the
area has recorded PM-10 violations after 1994, EPA interprets the
latter section as requiring, among other things, that the moderate area
plan must provide for sufficient controls to demonstrate maintenance of
the NAAQS after the applicable attainment date, but for emissions from
outside of the United States.
III. Proposed Finding of Failure To Attain
As discussed above, EPA is proposing to find that the State of
California has established to EPA's satisfaction that Imperial County
would have attained the NAAQS for PM-10 by the applicable attainment
date, December 31, 1994, but for emissions emanating from outside the
U.S., and thus shall not be subject to a finding of failure to attain
and reclassification. Because the 179B(d) demonstration is not
completely definitive, however, EPA invites public comment on the issue
and is proposing, in the alternative, to find that Imperial County did
not attain either the 24-hour or annual PM-10 NAAQS by December 31,
1994. In the event that public comments convince EPA that the State has
not made an adequate demonstration under section 179B(d) of the CAA,
EPA plans to finalize this proposed finding of failure to attain. This
proposed finding is based on air quality data (discussed below)
indicating violations of the PM-10 NAAQS during 1992-1994. If EPA takes
final action on this proposed finding, Imperial County will be
reclassified by operation of law as a serious nonattainment area under
section 188(b)(2)(A) of the CAA.
A. Analysis of the Ambient Air Monitoring Data
The 24-hour Standard
Table C below lists each of the monitoring sites in Imperial County
where the 24-hour NAAQS (150 g/m3) was violated
during 1992-1994.
Note: There is no Table B in this proposed rule.
[[Page 42191]]
Table C.--Exceedance Values for Sites Violating the 24-hour PM-10 NAAQS
[Micrograms per cubic meter, g/m3]
------------------------------------------------------------------------
Date of
Site Exceedance exceedance
------------------------------------------------------------------------
Brawley........................... 175 g/m3 1/25/93
162 g/m3 1/19/93
Calexico Dichot--900 Grant Street. 208 g/m3 10/9/92
253 g/m3 8/23/93
156 g/m3 1/20/94
El Centro......................... 166 g/m3 8/23/93
El Centro Dichot.................. 167 g/m3 8/23/93
Calexico--900 Grant St. (initiated 182 g/m3 8/6/94
1994).
165 g/m3 7/7/94
159 g/m3 10/17/94
Calexico--1029 Ethel St. 258 g/m3 8/6/94
(initiated 1994).
------------------------------------------------------------------------
Under 40 CFR part 50, the 24-hour NAAQS is attained when the
expected number of days per calendar year with a 24-hour average
concentration above 150 g/m3 is equal to or less
than one. In general, the number of expected exceedances at a site
which samples every day is determined by recording the number of
exceedances in each calendar year and then averaging them over the past
three calendar years. For sites which do not sample every day, EPA
requires the adjustment of observed exceedances to account for days not
sampled. The procedures for making the adjustment are specified in 40
CFR part 50, appendix K.
The four monitoring sites (Brawley, Calexico-Dichot, El Centro, and
El Centro-Dichot) in Imperial County that recorded violations of the
24-hour PM-10 NAAQS operated on a one-in-six day sampling schedule.
After making the adjustment for days not sampled, the number of
expected exceedances from 1992-1994 at four of the above monitoring
sites were 4.3, 6.1, 2.0 and 2.0, for the Brawley, Calexico Dichot--
Grant St., El Centro and El Centro Dichot sites, respectively. These
expected exceedances cause the four monitoring sites to be in violation
of the 24-hour PM-10 NAAQS. EPA is also including data from two
additional samplers (Calexico--Grant St. and Calexico--Ethel St.) which
exceeded the 24-hour PM-10 NAAQS in their initial year of operation,
1994.
The Annual Standard
Table D below lists each of the monitoring sites where the annual
standard was violated during 1992-1994.
Table D.--Arithmetic Mean Values for Sites Violating the Annual PM-10 NAAQS
[Micrograms per cubic meter, g/m3]
----------------------------------------------------------------------------------------------------------------
1992 annual arithmetic 1993 annual arithmetic 1994 annual arithmetic
Site mean mean mean
----------------------------------------------------------------------------------------------------------------
Brawley........................... 48 g/m\3\...... 53 g/m\3\...... 52 g/m\3\.
Calexico Dichot--900 Grant St..... 58 g/m\3\...... 59 g/m\3\...... 50 g/m\3\.
Calexico--900 Grant St. (initiated ND...................... ND...................... 75 g/m\3\.
1994).
Calexico--1029 Ethel St. ND...................... ND...................... 120 g/m\3\.
(Initiated 1994).
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ND--No Data.
According to 40 CFR part 50, the annual standard for PM-10 is
attained when the expected arithmetic mean concentration, as determined
by 40 CFR part 50 Appendix K, is less than or equal to 50 g/
m\3\. In general, the expected annual arithmetic mean is determined by
averaging the annual arithmetic mean PM-10 concentrations for the past
3 calendar years.
The annual standard was not attained at two monitoring sites
(Brawley and Calexico Dichot--Grant St.) in Imperial County. Based on
the monitoring data collected during 1992-1994, the Brawley site had an
annual average of 51 g/m\3\, and the Calexico Dichot--Grant
St. had an annual average of 56 g/m\3\. EPA is also including
data from 2 additional samplers (Calexico--Grant St. and Calexico--
Ethel St.) which violated the annual PM-10 NAAQS and were initiated in
1994.
B. SIP Requirements for Serious Areas
If EPA takes final action finding that Imperial County failed to
attain the PM-10 NAAQS by December 31, 1994, the area will be
reclassified by operation of law as a serious nonattainment area under
section 188(b)(2)(A) of the CAA. PM-10 nonattainment areas reclassified
as serious under section 188(b)(2) of the CAA are required to submit,
within 18 months of the area's reclassification, SIP revisions
providing for the implementation of best available control measures
(BACM) no later than four years from the date of reclassification. The
SIP must also, among other things, provide for attainment of the PM-10
NAAQS by December 31, 2001.\5\ See CAA sections 188(c)(2) and 189(b).
EPA has provided specific guidance on developing serious area PM-10 SIP
revisions. See 59 FR 41998 (August 16, 1994).
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\5\ If certain conditions are met, EPA may extend this
attainment deadline to no later than December 31, 2006. CAA section
188(e).
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IV. Today's Proposed Actions
EPA is today proposing to find that the State of California has
established to EPA's satisfaction that Imperial County has attained the
PM-10 NAAQS by the applicable attainment date, December 31, 1994, but
for the emissions emanating from outside the U.S., and thus shall not
be subject to a finding of failure to attain and reclassification to
serious.
[[Page 42192]]
In view of the technical issues and difficulties involved in
demonstrating cross-border transport and in the event that public
comment convinces EPA that the State has not made an adequate
demonstration, EPA is also proposing, in the alternative, to find that
Imperial County did not attain either the 24-hour or annual PM-10 NAAQS
by the required attainment date. If EPA takes final action on this
proposed finding, Imperial County will be reclassified by operation of
law as a serious nonattainment area under section 188(b)(2)(A) of the
CAA.
EPA requests public comments on all aspects of these alternative
proposals. EPA will consider any comments received by September 10,
2001.
V. Administrative Requirements
A. Executive Order 12866
Under E.O. 12866, 58 FR 51735 (October 4, 1993), EPA is required to
determine whether regulatory actions are significant and therefore
should be subject to OMB review, economic analysis, and the
requirements of the Executive Order. The Executive Order defines a
``significant regulatory action'' as one that is likely to result in a
rule that may meet at least one of the four criteria identified in
section 3(f), including, (1) have an annual effect on the economy of
$100 million or more or adversely affect, in a material way, the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
therof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
EPA has determined that the proposed finding of attainment pursuant
to CAA section 179B(d) and the proposed finding of failure to attain
and the resulting reclassification would result in none of the effects
identified in section 3(f). A finding of attainment under section
179B(d) of the CAA does not impose any additional requirements on an
area and a finding of failure to attain under section 188(b)(2) is
based upon air quality considerations and the subsequent nonattainment
area reclassification must occur by operation of law in light of those
air quality conditions. These actions do not, in-and-of-themselves,
impose any new requirements on any sectors of the economy. In addition,
because the statutory requirements are clearly defined with respect to
the differently classified areas, and because those requirements are
automatically triggered by classifications that, in turn, are triggered
by air quality values, findings of failure to attain and
reclassification cannot be said to impose a materially adverse impact
on State, local, or tribal governments or communities.
B. Executive Order 13211
The proposed finding of attainment under CAA 179B(d) and the
proposed finding of failure to attain and the resulting
reclassification are not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because they are
not significant regulatory actions under Executive Order 12866.
C. Executive Order 13045
Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997), applies to any rule that: (1) Is determined to be ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
The proposed finding of attainment under CAA 179B(d) and the
proposed finding of failure to attain under CAA 188(b)(2) and resulting
reclassification are not subject to Executive Order 13045 because they
do not involve decisions intended to mitigate environmental health or
safety risks.
D. Executive Order 13132
Executive Order 13132, ``Federalism,'' (64 FR 43255, August 10,
1999) revokes and replaces Executive Orders 12612, ``Federalism,'' and
12875, ``Enhancing the Intergovernmental Partnership.'' Executive Order
13132 requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
These proposed findings will not have substantial direct effects on
California, on the relationship between the national government and
California, or on the distribution of power and responsibilities among
the various levels of government, as specified in Executive Order
13132. As stated above, a finding of attainment under section 179B(d)
of the CAA does not impose any additional requirements on an area and a
finding of failure to attain under section 188(b)(2) is based upon air
quality considerations and the subsequent nonattainment area
reclassification must occur by operation of law in light of those air
quality conditions. These actions do not, in-and-of-themselves, impose
any new requirements on any sectors of the economy. In addition,
because the statutory requirements are clearly defined with respect to
the differently classified areas, and because those requirements are
automatically triggered by classifications that, in turn, are triggered
by air quality values, findings of failure to attain and
reclassification cannot be said to impose a materially adverse impact
on State, local, or tribal governments or communities. Thus, the
requirements of section 6 of the Executive Order do not apply to these
proposed alternative actions.
E. Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal
[[Page 42193]]
implications.'' ``Policies that have tribal implications'' is defined
in the Executive Order to include regulations that have ``substantial
direct effects on one or more Indian tribes, on the relationship
between the Federal government and the Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes.''
The proposed finding of attainment under CAA 179B(d) and the
proposed finding of failure to attain under CAA 188(b)(2) and resulting
reclassification do not have tribal implications. For the reasons
discussed above, they will not have substantial direct effects on
tribal governments, 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 in
Executive Order 13175. Thus, Executive Order 13175 does not apply to
this rule. In the spirit of Executive Order 13175, and consistent with
EPA policy to promote communications between EPA and tribal
governments, EPA specifically solicits additional comment on this
proposed rule from tribal officials.
F. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
As discussed above, the proposed finding of attainment under CAA
179B(d) and the proposed finding of failure to attain under CAA
188(b)(2) and resulting reclassification do not impose additional
requirements on small entities. Therefore, I certify that these
alternative actions will not have a significant economic impact on a
substantial number of small entities.
G. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
With respect to EPA's proposed finding of attainment under CAA
179B(d) and the proposed finding of failure to attain under CAA
188(b)(2) and resulting reclassification, EPA notes that these actions
in-and-of themselves establish no new requirements, and EPA believes
that it is questionable whether a requirement to submit a SIP revision
constitutes a federal mandate (i.e., required serious area SIP
submittal resulting from a finding of failure to attain). The
obligation for a State to revise its SIP arises out of sections 110(a)
and 179(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)).
In addition, even if the obligation for a State to revise its SIP
does create an enforceable duty within the meaning of UMRA, this action
does not trigger section 202 of UMRA because the aggregate to the
State, local, and tribal governments to comply are less than
$100,000,000 in any one year. Because this action does not trigger
section 202 of UMRA, the requirement in section 205 of UMRA that EPA
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, most effective, or least burdensome
alternative that achieves the objectives of the rule is not applicable.
Furthermore, EPA is not directly establishing any regulatory
requirements that may significantly impact or uniquely affect small
governments, including tribal governments. Thus, EPA is not obligated
to develop under section 203 of UMRA a small government agency plan.
H. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
EPA believes that VCS are inapplicable to today's proposed actions
because they do not require the public to perform activities conducive
to the use of VCS.
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 6, 2001.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. 01-20209 Filed 8-9-01; 8:45 am]
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