[Federal Register Volume 66, Number 203 (Friday, October 19, 2001)]
[Rules and Regulations]
[Pages 53106-53112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26406]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 81
[CA058-FOA; FRL-7087-1]
Clean Air Act Finding of Attainment; California-Imperial Valley
Planning Area; Particulate Matter of 10 Microns or Less (PM-10)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action 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 date, December 31,
1994, but for emissions emanating from outside the United States, i.e.,
Mexico. As a result of this final action, Imperial County will not be
subject to a finding of failure to attain and reclassification to
serious at this time and will remain a moderate PM-10 nonattainment
area.
EFFECTIVE DATE: This action is effective on November 19, 2001.
ADDRESSES: You can inspect copies of the administrative record for this
action at EPA's Region 9 office during normal business hours. U.S.
Environmental Protection Agency, Region 9, Air Division, Planning
Office (AIR-2), 75 Hawthorne Street, San Francisco, California 94105.
Electronic Availability: This document is also available as an
electronic file on EPA's Region 9 Web Page at http://www.epa.gov/region09/air.
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
Imperial County is a moderate PM-10 nonattainment area located on
the
[[Page 53107]]
California border with Mexico, with a December 31, 1994 attainment
deadline. Under CAA section 188(b)(2)(A), moderate PM-10 nonattainment
areas 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. 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 shall not be subject
to the provisions of CAA section 182(b).
Imperial County and the California Air Resources Board submitted
evidence that the County would have attained the PM-10 NAAQS but for
transport from Mexico. The primary information prepared by the Imperial
County Air Pollution Control District (ICAPCD) is ``Imperial County PM-
10 Attainment Demonstration'' (hereafter referred to as the ``179B(d)
demonstration'') which was transmitted to EPA by the California Air
Resources Board (CARB) on July 18, 2001 letter from Michael P. Kenny,
Executive Officer, CARB, to Ms. Laura Yoshii, Acting Regional
Administrator, EPA Region 9).
Pursuant to CAA 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 reclassifying the areas to serious. On August
6, 2001, EPA issued two alternative proposals:
(1) To find that the State of California had established to EPA's
satisfaction that Imperial County, a PM-10 moderate nonattainment area,
would have attained the NAAQS PM-10 by the applicable Clean Air Act
attainment date, December 31, 1994, but for emissions emanating from
outside the United States, i.e., Mexico.
(2) Alternatively, to find that Imperial County did not attain the
PM-10 NAAQS by its CAA mandated attainment date. This proposed finding
was based on monitored air quality data for the PM-10 NAAQS during the
years 1992-1994. A final action would result in a reclassification to
serious PM-10 nonattainment for Imperial County.
These proposed alternative actions were published in a Federal
Register notice (66 FR 42187) on August 10, 2001 (proposed rule or
notice of proposed rulemaking, NPR). The 30-day public comment period
ended on September 10, 2001. EPA requested public comments on both
proposals and received ten comment letters from the following:
Sierra Club/EarthJustice Legal Defense Fund (David S. Baron,
Attorney)
Imperial County Air Pollution Control District (Stephen L.
Birdsall, Air Pollution Control Officer)
Congressman Duncan Hunter, U.S. House of Representatives,
Washington, D.C. 20515-0552
Imperial Valley Vegetable Growers Association (Lauren S.
Grizzle, Executive Director)
Imperial County Farm Bureau (Lauren S. Grizzle, Executive
Director)
California Farm Bureau Federation (Cynthia L. Cory, Director,
Environmental Affairs)
Mar Vista Farms, Inc. (Michael B. Cox, President)
Nisei Farmers League (Manuel Cunha, Jr., President)
California Cotton Ginners and Growers Association (Roger A.
Isom, Vice President & Director of Technical Services)
Granite Construction Company (Jeff Mercer, Area manager)
All of the commenters supported EPA's proposed finding of attainment
pursuant to section 179B(d) of the CAA, except for the Sierra Club/
EarthJustice Legal Defense Fund (Sierra Club).
While the Sierra Club raises some important issues, EPA was aware
of these issues prior to the proposed rulemaking and has not been
convinced by Sierra Club that the State's 179B(d) demonstration is
inadequate and that the finding of nonattainment and reclassification
to serious should be finalized. Thus, EPA is finalizing its action to
find that the State of California has established that Imperial County
would have attained the NAAQS for PM-10 by the applicable CAA
attainment date, December 31, 1994, but for emissions emanating from
Mexico. Today's rulemaking provides EPA's responses to public comments
and finalizes EPA's proposed action.
II. Public Comments and EPA Responses
A. Sierra Club/EarthJustice Legal Defense Fund (David S. Baron,
Attorney)
Comments were submitted by the EarthJustice Legal Defense Fund on
behalf of the Sierra Club. In general, the Sierra Club opposes our
proposed finding of attainment and asserts that the 179B(d)
demonstration does not adequately demonstrate attainment but for the
emissions emananting from Mexico. The Sierra Club believes we must
finalize our proposed finding of nonattainment and reclassification to
serious PM-10 nonattainment for Imperial County.
1. CAA Requires Modeling
The Sierra Club's first group of comments address the need for a
modeling demonstration. The Sierra Club asserts that air quality
modeling is a requirement under CAA Section 179B(d) and that in order
to qualify for a 179B(d) waiver, the state must make a showing that is
the equivalent of an attainment demonstration which the Act and EPA's
own regulations and guidelines require to be based on air quality
modeling. The Sierra Club then discusses how the State's air quality
modeling does not adequately demonstrate attainment of the 24-hour and
annual PM-10 NAAQS due to deficiencies with the modeling inventory and
modeling assumptions which are summarized in EPA's responses below.
EPA's response: EPA disagrees with the Sierra Club that a CAA
Section 179(B)(d) waiver must be based on air quality modeling. CAA
section 179B(d) does not require air quality modeling for PM-10
nonattainment areas at international borders, and EPA's guidance
relating to serious PM-10 nonattainment areas suggests modeling as one
of five methods that may be used to determine attainment but for
international transport.\1\ In issuing guidance on CAA section 179(B),
EPA considered it appropriate to grant states more flexibility in
making the ``but-for'' attainment determination for border areas due to
the special difficulties that can be encountered at these areas.
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\1\ EPA's guidance appears in ``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. The guidance
lists 5 types of information that could be used to qualify for
treatment under section 179B, and provides that ``States 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.'' The General Preamble goes on to note that ``the first 3
examples do not require the State to obtain information from a
foreign country.'' Only the fifth method employs modeling. 59 FR
42001. As discussed in the proposed action, the State submitted
information addressing each of the 5 methods. 66 FR 42189-90.
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For example, it may be particularly difficult for States to acquire
the necessary input data for a valid modeling analysis, including
monitored meteorological and air quality data, accurate speciated
emissions inventories with temporal and spatial breakdown, and
information on day-specific emissions, when such data must be collected
in areas outside of the U.S. The acquisition of such data is
[[Page 53108]]
resource intensive both in terms of money and expert staff time, and
the exercise may consume years of preparatory work and then require
additional time and expense for quality assurance and data preparation
and analysis. In cases where the critical modeling input data are not
available or are incomplete or inaccurate, EPA believes that Congress
could not have intended to disallow areas from presenting, and EPA from
approving, non-modeling evidence of ``attainment but for transport.''
Although modeling input data were recognized to be sparse, the
State's 179B(d) demonstration did attempt to address each of the 5
allowable approaches specified in the General Preamble, including an
air quality modeling ``but-for'' attainment demonstration for both the
annual and 24-hour PM-10 NAAQS.
As discussed in the proposed rule, EPA did not base the proposed
finding of attainment for the 24-hour PM-10 NAAQS on the State's air
quality modeling demonstration. The sensitivity of the 24-hour PM-10
NAAQS to the modeling inputs, coupled with the lack of model
validation, led EPA to conclude that, unlike the annual PM-10 NAAQS,
the air quality modeling could not be relied upon for the 24-hour PM-10
NAAQS attainment demonstration. Instead, EPA based its finding of
attainment for the 24-hour PM-10 NAAQS on the State's analysis of
monitoring sites, meteorological conditions (which involves an analysis
of spatial plots, wind roses and back trajectories) and inventory
estimates for both sides of the border. EPA believes that these are
valid alternative methods for determining attainment but for
international transport (see General Preamble at 59 FR 42001).
For the annual PM-10 NAAQS, model performance assessment also
raises issues, although these concerns are less than for the 24-hour
NAAQS because day-specific modeling inputs and predictions are not
needed. Moreover, to determine whether or not Imperial County would
have attained the annual PM-10 NAAQS but for international transport
does not require modeling precision, due to the fact that the annual
arithmetic mean concentrations for 1992-1994 are only slightly above
the annual PM-10 NAAQS (51 g/m\3\ at Brawley and 56
g/m\3\ at Calexico Dichot-Grant Street). All that is required
of the model in support of a ``but for'' demonstration is evidence that
at least a small portion of the monitored concentrations was due to
transport of pollution from Mexico.
2. Adequacy of the State's Emissions Inventory Input to the Modeling
The Sierra Club comments that the State's modeling inventory is
insufficient because it was not developed for PM-10 modeling, does not
reflect peak PM-10 levels, is not a ``current'' and ``accurate''
inventory, and does not contain data on actual PM-10 emissions, but is
based on the SCOS inventory which is adjusted with invalid assumptions
(i.e., percentage of TSP that is PM-10 and correlation of PM-10
emissions to population).
EPA Response: While the modeling inventory for Imperial County was
not developed specifically for PM-10 modeling, it does include PM-10
emissions and represents the best available inventory at this time. As
discussed in EPA's Technical Support Document (TSD) for the proposed
rule, the modeling inventory was derived from the Southern California
Ozone Study (SCOS) modeling inventory for a typical summer day.
Seasonal adjustments were made to the inventory, and the inventory was
scaled, based on population changes, for the years 1992 to 1994. The
use of this modeling inventory to represent average annual PM-10
concentrations is an acceptable approach, but the use of this modeling
inventory to represent peak PM-10 days is less reliable because
emissions of PM-10 are likely to be higher than the seasonal average on
peak days. In other words, this inventory is more reliable for the
determining attainment of the annual PM-10 NAAQS than for the 24-hour
PM-10 NAAQS.
EPA does not agree that the modeling inventory is insufficient
because it is based on the SCOS inventory and adjustments made to that
inventory (i.e., percentage of TSP that is PM-10 and correlation of PM-
10 emissions to population). As discussed above, the modeling inventory
developed is the best available inventory and information at this time.
In order to develop a modeling inventory for Imperial County, the State
took the SCOS modeling inventory and made adjustments to reflect the
PM-10 emissions in Imperial county. For example, the SCOS inventory
included emissions of total suspended particulates (TSP). PM-10 is a
subset of TSP. In order to to adjust for the SCOS inventory for PM-10
emissions, the State used an adjustment factor of 1.93 which is based
on a comparison of the 1997 SCOS inventory to Imperial County's 1995
PM-10 emissions inventory (best available PM-10 inventory). The State
also adjusted the inventory for changes in the population since the
``vast majority of PM-10 emission in Imperial County are from area
sources such as unpaved roads, paved roads and agriculture.'' \2\ While
these may not be the most precise adjustment techniques for the
Imperial County PM-10 modeling inventory, EPA believes these
adjustments are reasonable for the annual PM-10 NAAQS.
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\2\ See the State's 179B(d) demonstration (Chapter III.B.
Modeling Emissions Inventory) for more detailed information on the
how the State's modeling inventory was developed.
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In general, there are many uncertainties in developing PM-10
inventories. This is partly due to intrinsic variability, but also
because socioeconomic surrogate data and location-specific data needed
to build a spatially and temporally resolved inventory is sometimes not
available. However, EPA believes that the fugitive PM-10 emission
estimates and the modeling that uses them are an adequate basis for
this action. The State is continuously improving and updating inventory
information. The inventory used in the State's demonstration represents
the best available PM-10 inventory for the 1992-1994 timeframe.
3. Background Concentration in the Model
The Sierra Club comments that there is no basis for using the
annual background concentration of 25 g/m3 and that
it is ``the product of pure speculation.''
EPA Response: The background concentration level was based on a
frequency distribution analysis of measured PM-10 concentrations at
monitors in the Imperial County and Mexicali from 1992 to 2000.\3\ EPA
believes the 25 g/m3 background concentration level
is a conservative level.
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\3\ See the State's 179B(d) demonstration (Chapter III.D.
Background Concentrations) for more information.
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4. Secondary Particles in the Model
The Sierra Club comments that the State's modeling demonstration
includes no analysis for secondary particle formation.
EPA Response: While there is no specific discussion of secondary
particulates in EPA's proposed rule (66 FR 42187), the analysis
provided by the state did account for the formation of secondary
particulates. See Imperial County PM10 Attainment Demonstration,
Chapter III.B, page 4. In addition the Imperial Valley/Mexicali Cross
Border PM-10 Transport Study (Transport Study) provides a filter
analysis which indicates that secondary
[[Page 53109]]
particulates are measured in the range of 2 to 4 g/
m3 for secondary ammonium sulfates and 2 to 3 g/
m3 for secondary ammonium nitrates (Transport Study, Summary
and Conclusion, page 9-5) and are thus a small portion of the
particulate matter in Imperial County.
5. Proof That Mexico Emissions Impact U.S. Monitors and Adequacy of
Alternative Demonstration
The Sierra Club asserts that the state has failed to demonstrate
that PM-10 violations in Imperial County are actually being caused by
emissions from Mexico and that, even if air quality modeling was not
required, the state's ``alternative'' 179B(d) demonstration (i.e.,
based on analysis of wind patterns and population densities) is grossly
inadequate. The Sierra Club believes that the State's analysis of wind
patterns and population densities does not show that any quantifiable
amount of particulates traveled to the U.S. monitors, let alone any
amount that would contribute to nonattainment and that there is nothing
in the record relating to an actual amount of PM-10 emissions traveling
from Mexico to Imperial County. Also, the Sierra Club states that the
Imperial Valley/Mexicali Cross Border PM-10 Transport Study (Transport
Study), which indicates that international transport is not always the
cause of PM-10 violations, were not refuted and are more reliable than
the more recent analysis by the state which the Sierra Club claims to
be speculative. Finally, the Sierra Club asserts that there is no
analysis of the PM-10 transport to Imperial County's border from places
other than Mexico (i.e., on the U.S. side).
EPA's response: The State's 179B(d) demonstration, which includes a
detailed analysis of spatial plots, wind roses and back trajectories
for each of the PM-10 exceedance days during 1992-1994, provides the
best qualitative analysis of the emissions from Mexico possible for the
Imperial County area for the period in question. Filter analyses often
can provide more specificity on where the monitoring emissions are
coming from but, since the types of PM-10 sources are similar on both
sides of the border, analysis of the Imperial County samples would not
show what portion of the catch originated on the Mexican side of the
border.\4\
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\4\ As discussed in the proposed rule, 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.
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The Sierra Club suggests that the analyses found in the State's
179B(d) demonstration prove nothing about whether or not emissions from
Mexico are impacting U.S. monitors. EPA believes that given the
available information, the State has made a good argument that Imperial
County is being impacted by Mexico emissions. Additional activities
(tracer studies, air monitoring studies, establishment of more
meteorology stations at border) could have been conducted, but it is
not now possible to create information from new studies for the 1992-
1994 timeframe. Thus, EPA believes that the State's 179B(d) analysis of
spatial plots, wind roses and back trajectories provides the best
determination of PM-10 emissions transport from Mexico.
EPA does not have to refute the Transport Study results in order to
make this finding of attainment but for international transport. As
discussed in the proposed rule, the additional windfield analyses
(Attachment 2 to EPA's TSD, Additional windroses and windfields for
January 25, 1993) provided a more detailed analysis, supplementing
information from the Transport Study.\5\ The Transport Study is simply
an effort to collect air quality data on exceedance days and analyze
the data based on wind direction and speed, and the study is thus very
similar to the analyses found in the State's demonstration. The
Transport Study indicates that several of the exceedance days appear to
have stagnant wind conditions (1/19/93, 1/25/93, 7/7/94, 10/17/94 and
12/16/94), but the State's demonstration uses more meteorological data
and finds evidence that transport from Mexico is likely even with the
stagnant conditions at the surface. For each of the exceedances, the
State's analysis took into account additional information not included
in the Transport Study. This information included: (a) The number of
hours with southerly wind directions that have the potential to carry
emissions from Mexico into Imperial County; (b) the back trajectories
and back trajectories based on upper-air synoptic wind data, which show
the existence of much higher winds from the south that are de-coupled
from the surface stagnant conditions, and (c) the windroses developed
for all meteorological stations, suggesting that emissions from Mexico
likely contributed to the concentrations measured at Brawley. Based on
this additional information and the further analyses, the State
concluded that Imperial County would not have violated the PM-10 NAAQS
but for transport from Mexico. In weighing the ``but-for'' evidence,
EPA also considered it important to consider the relatively low level
of the 24-hour exceedances (162 g/m3), 175
g/m3, 165 g/m3, 159 g/
m3, and 153 g/m3). EPA concedes that
information is not available to determine with confidence the exact
quantity of PM-10 coming from Mexico, but EPA continues to believe that
the State has diligently collected and analyzed available evidence and
has successfully demonstrated for each of the exceedance days the
probability that Imperial County would not have violated the NAAQS but
for the emissions emanating from Mexico.
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\5\ See Attachment 2 to EPA's TSD, Additional windroses and
windfields for January 25, 1993.
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Finally, EPA believes that there were insufficient data to support
a modeling assessment of the potential for long range transport from
the South coast or other California areas to Mexico and back again to
Imperial. The Sierra Club presents no evidence that there is transport
from U.S. sources outside of Imperial County. Even if evidence existed
that the Imperial County monitors were being impacted by long range
transport from within the U.S., such evidence would not invalidate the
State's demonstration that Imperial County would have attained the
NAAQS but for emissions emanating from Mexico.
6. Emissions Inventories
The Sierra Club asserts that the comparison of emissions
inventories between Imperial and Mexicali is inadequate due to the
uncertainty in the Mexicali inventory, that the Mexicali inventory has
not been analyzed for transportability of particles and that the
emissions inventory for Imperial County has never been approved by EPA,
and thus cannot be used to support a ``but-for'' finding.
EPA's response: The comparison of Imperial and Mexicali emissions
was intended to provide support for the attainment finding. EPA agrees
that there is uncertainty in the Mexicali inventory, however, EPA also
believes it is useful to examine all available data for this attainment
finding. Even if the Mexicali emissions were one-half of 257, as
suggested by the Sierra Club, the emissions in the city of Mexicali
(200 square miles) would be about half of the emissions in all of
Imperial County (4060 square miles), but the emissions density in
Mexicali would still be much
[[Page 53110]]
greater than in Imperial County. As far as determining the
transportability of emissions from Mexicali, as discussed above and in
the proposed rule, filter analyses have been examined for the border
area and provided some information on the particles characteristics.
Finally, as discussed above, the emission inventories used in the
State's 179B(d) demonstration are the most current and best available.
EPA plans to take action on the inventories when they are submitted as
part of the State Implementation Plan (SIP) for Imperial County.
7. Post-1994 Exceedances
The Sierra Club asserts that the 179B(d) determination is
inadequate because it fails to consider the post-1994 exceedances. The
Sierra Club states that the post-1994 exceedances are numerous, in some
cases extreme, and relevant to the attainment but for international
transport determination.
EPA's response: EPA believes that the post-1994 exceedances are
irrelevant to the determinations at issue. The statutory attainment
date for the Imperial County PM-10 moderate nonattainment area is
December 31, 1994. EPA believes the State's 179B(d) demonstration
adequately demonstrates attainment by examining the air quality data
from 1992-1994. If this demonstration is adequate, reclassification to
serious is not required. Section 188(b)(2) provides that: ``Within 6
months following the applicable attainment date for a PM-10
nonattainment area, the Administrator shall determine whether the area
attained the standard by that date. If the Administrator finds that any
Moderate Area is not in attainment after the applicable attainment date
* * *'' the area shall be reclassified. While the second sentence of
section 188(b)(2) contains the language quoted by the commentor ``is
not in attainment after the applicable attainment date,'' it is clear
that in the context of the first sentence of the provision, which is
the sentence that establishes the duty to make an attainment
determination, the duty is to ``determine whether the area attained the
standard by that date [referring to the phrase ``applicable attainment
date'' in the opening clause of the sentence].'' Thus, EPA's duty is to
determine whether the area attained by its attainment date and the
language in the second sentence regarding a finding after the
attainment date may reasonably be interpreted as referring to the date
the finding is made, which would necessarily be after the attainment
date, not to the date used in the determination as the benchmark for
determining attainment. The question of whether an area should be
reclassified is considered along with whether an area has achieved
attainment by the attainment date. Thus, the air quality data from the
years 1992-1994 are the relevant data for determining whether Imperial
County should be reclassified to serious.
8. SIP Requirements
Finally, the Sierra Club asserts that a 179B(d) waiver cannot be
granted unless all moderate area SIP requirements (e.g., RACM, RACT,
New Source Review, etc.) are being met.
EPA's response: As discussed in the EPA's proposal, this rulemaking
does not address the SIP requirements for Imperial 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. CAA section 179B(d) states that ``any State that establishes
to the satisfaction of the Administrator * * * that such State has
attained the national ambient air quality standard for [PM-10] by the
applicable attainment date, but for emissions emanating from outside of
the United States, shall not be submit to the provisions of section
7512(b)(2) * * *'' which requires reclassification upon failure to
attain. This provision does not require a SIP submittal in order for
the waiver to be granted. EPA is currently working with the Imperial
County Air Pollution Control District and the California Air Resources
Board on developing an approvable State Implementation Plan for
Imperial County. A draft of this plan was issued for public review in
July 2001.
B. Other Comments Supporting EPA's Final Action
Besides the Sierra Club, all of the commentors support EPA's
finding of attainment but for international transport and are extremely
opposed to the finding of nonattainment and reclassification to a
serious PM-10 nonattainment area. Commentors discussed the overwhelming
pollution problem coming from Mexico, the measures their industries
have taken to reduce pollution and that it would be unfair to impose
additional controls on sources in Imperial County. The Imperial County
Air Pollution Control District also provided additional technical
analysis supporting the methods used in the State's 179B(d)
demonstration.
III. Summary of Final Action
EPA's proposed rule (66 FR 42187) discusses how the State's 179B(d)
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.
In summary, EPA continues to believe that CAA section 179B(d) does
not mandate a modeling demonstration, and that the State has provided
evidence sufficient to show that, but for international transport of
PM-10, Imperial County would have attained the annual and 24-hour PM-10
NAAQS by the December 31, 1994 deadline.
IV. 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 final finding of attainment pursuant to
CAA section 179B(d) 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. This actions
does not, in-and-of-itself, impose any new requirements on any sectors
of the economy.
B. Executive Order 13211
The final finding of attainment under CAA 179B(d) is not subject to
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 Fed.
Reg. 28355 (May 22, 2001)) because
[[Page 53111]]
it is not a 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 final finding of attainment under CAA 179B(d) is not subject to
Executive Order 13045 because it does 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.
The final finding of attainment 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. This action does not, in-and-of-itself, impose
any new requirements on any sectors of the economy. Thus, the
requirements of section 6 of the Executive Order do not apply to this
final action.
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 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 final finding of attainment under CAA 179B(d) does not have
tribal implications. For the reasons discussed above, the final action
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.
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 final finding of attainment under CAA
179B(d) does not impose additional requirements on small entities.
Therefore, I certify that this final action 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 final finding of attainment under CAA
179B(d), EPA notes that this actions in-and-of itself establishes no
new requirements. 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 final action
because they do not require the public to perform activities conducive
to the use of VCS.
I. Submission to Congress and the Comptroller General
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
[[Page 53112]]
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 rule is not a ``major'' rule as
defined by 5 U.S.C. 804(2).
J. Petitions for Judicial Review
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 December 18, 2001. 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 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Authority: 42 U.S.C. 7401-7671q.
Dated: October 9, 2001.
Sally Seymour,
Acting Regional Administrator, Region IX.
[FR Doc. 01-26406 Filed 10-18-01; 8:45 am]
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