[Federal Register Volume 69, Number 154 (Wednesday, August 11, 2004)]
[Rules and Regulations]
[Pages 48792-48794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18378]
[[Page 48792]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[CA 109-RECLAS; FRL-7800-5]
Finding of Failure To Attain and Reclassification to Serious
Nonattainment; Imperial Valley Planning Area; California; Particulate
Matter of 10 Microns or Less
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: EPA is taking final action under the Clean Air Act (CAA) to
find that the Imperial Valley Planning Area (Imperial Valley), a
moderate nonattainment area for particulate matter of 10 microns of
less (PM-10), failed to attain the National Ambient Air Quality
Standards (NAAQS) by the statutory deadline of December 31, 1994, and
to reclassify the area as a serious PM-10 nonattainment area. Today's
action is in response to a recent decision by the U.S. Court of Appeals
for the Ninth Circuit that vacated EPA's earlier approval of Imperial
County's demonstration that the Imperial Valley would have attained the
NAAQS by December 31, 1994, but for emissions emanating from outside
the United States, i.e., Mexico. EPA's approval had the effect of
allowing Imperial Valley to remain a moderate nonattainment area. In
vacating that approval, the Court specifically directed EPA to
reclassify Imperial Valley as a serious PM-10 nonattainment area.
EFFECTIVE DATE: This rule is effective on September 10, 2004.
ADDRESSES: You can inspect and copy the docket for this action at our
Region IX office during normal business hours (see address below). Due
to increased security, we suggest that you call at least 24 hours prior
to visiting the Regional Office so that we can make arrangements to
have someone meet you. The Federal Register notice is also available as
an electronic file on EPA's Region 9 Web page at http://www.epa.gov/region09/air.
Planning Office (AIR-2), Air Division, U.S. Environmental
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA
94105.
FOR FURTHER INFORMATION CONTACT: David Wampler, U.S. Environmental
Protection Agency, Region 9, Air Division, Planning Office (AIR-2), 75
Hawthorne Street, San Francisco, CA 94105; (415) 972-3975;
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, the words ``we,''
``us,'' or ``our'' mean U.S. EPA.
I. Background
Imperial County is located in the southeastern corner of
California. It has borders with Mexico to the south, Arizona to the
east, and San Diego County to the west. Most of Imperial County falls
within the Imperial Valley Planning Area (Imperial Valley). 40 CFR part
81.
Since the 1990 Amendments to the CAA, Imperial Valley has been
classified as a moderate PM-10 non-attainment area. The CAA requires
that moderate areas attain the PM-10 NAAQS by December 31, 1994. CAA
section 188(c)(1). Moderate areas failing to attain the NAAQS by the
prescribed attainment date must be reclassified as ``serious'' under
CAA section 188(b)(2). However, CAA section 179(B)(d) provides that any
area that establishes to the satisfaction of EPA that it would have
attained the PM-10 NAAQS by the applicable attainment date but for
emissions emanating from outside the United States, is not subject to
the provisions of CAA section 182(b)(2), i.e., reclassification to
``serious'' nonattainment.
The Imperial County Air Pollution Control District (ICAPCD) and the
California Air Resources Board (CARB) submitted evidence that Imperial
Valley would have attained the PM-10 NAAQS by the 1994 attainment date
but for transport from Mexico. The primary information prepared by
ICAPCD is the ``Imperial County PM-10 Attainment Demonstration''
(179B(d) demonstration) which CARB submitted to EPA on July 18, 2001.
On August 10, 2001, EPA published in the Federal Register a
proposed rule that considered two alternatives. 66 FR 42187. Our first
alternative proposed to find that the State of California had
established to EPA's satisfaction that Imperial Valley would have
attained the PM-10 NAAQS by the applicable CAA attainment date,
December 31, 1994, but for emissions emanating from Mexico. Our second
alternative proposed, based on monitored data during the years 1992-
1994, to find that Imperial Valley did not attain the PM-10 NAAQS by
its CAA mandated attainment date. This second proposal, if finalized,
would have resulted in the area's reclassification to serious.
After consideration of the 179B(d) demonstration and the comments
received on the proposal, on October 19, 2001, we finalized our first
proposed alternative which found that Imperial Valley would have
attained the PM-10 NAAQS by December 1994 but for PM-10 emissions
emanating from Mexico. 66 FR 53106.
The Sierra Club petitioned for review of our October 2001 final
action in the U.S. Court of Appeals for the Ninth Circuit. On October
9, 2003, the Court issued its opinion. Sierra Club v. United States
Environmental Protection Agency, et al., 352 F.3d 1186. The Court
rejected EPA's factual determination with respect to two days, January
19 and 25, 1993, on which PM-10 exceedances of the 24-hour PM-10 NAAQS
occurred, finding that ``[b]ased on the data and the reports in the
record, there simply is no possibility that Mexican transport could
have caused the observed PM-10 exceedences. * * *'' The effect of this
conclusion is that the Imperial Valley had exceedances of the PM-10
NAAQS that preclude a finding that the area would have attained the
NAAQS by 1994. The Court, concluding that further administrative
proceedings with respect to the 1994 exceedences would serve no useful
purpose, instructed EPA to reclassify Imperial Valley as a serious PM-
10 nonattainment area.
On December 18, 2003, the Ninth Circuit denied a petition for
rehearing by ICAPCD, an intervener in the case, slightly revised its
October 9, 2003, opinion, and granted ICAPCD's motion to stay the
mandate until March 17, 2004, to permit ICAPCD to file a petition for a
writ of certiorari in the U.S. Supreme Court. Imperial County did so on
March 17, 2004. On June 21, 2004, the Supreme Court declined to hear
the case. Imperial County Air Pollution Control District v. Sierra
Club, et al., 72 U.S.L.W. 3757. Thereafter the stay was lifted and the
mandate issued.
II. Final Action
A. Rule
In response to the Ninth Circuit's October 9, 2003, opinion, and
pursuant to CAA section 188(b)(2), EPA is finding that Imperial Valley
failed to attain the PM-10 NAAQS by the statutory deadline of December
31, 1994, and is therefore reclassifying the area from a moderate to a
serious PM-10 nonattainment area.\1\ Today's final action applies to
the entire Imperial Valley planning area which includes the Quechan
Indian Tribe in the southeastern corner of the area, and the Torrez-
Martinez Tribe in the northwestern corner of the area. EPA
[[Page 48793]]
has contacted both Tribes to discuss the non-discretionary nature of
this action and how the rulemaking may impact them.
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\1\ Note that as a result of the Court's opinion and order, we
are not taking action on our August 10, 2001, alternative proposal
to find that Imperial Valley failed to attain the PM-10 NAAQS by the
moderate area statutory deadline. Instead we are adopting the
Court's factual determination in today's final finding.
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All serious PM-10 nonattainment areas were required to attain the
standards by no later than December 31, 2001, unless granted a one-time
extension of up to five years. CAA section 188(c)(2) and (e). Elsewhere
in this Federal Register, we are proposing to find that Imperial Valley
failed to attain by December 31, 2001.
B. Notice and Comment Under the Administrative Procedure Act
While this rule constitutes final agency action, EPA finds good
cause to forego prior notice and comment under the Administrative
Procedure Act (APA), 5 U.S.C. 553(b). Notice and comment are
unnecessary because no EPA judgment is involved in adopting the Ninth
Circuit Court of Appeals' factual determination in Sierra Club that
Imperial Valley failed to attain the PM-10 standards by December 31,
1994, and in carrying out the Court's order to reclassify the area from
moderate to serious nonattainment. In short, EPA is simply implementing
administratively a result that was compelled by the Court.
III. Administrative Requirements
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. EPA has
determined that the finding of failure to attain would not result in
any of the effects identified in Executive Order 12866 sec. 3(f).
Findings of failure to attain under section 188(b)(2) of the CAA are
based solely 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.
For the aforementioned reasons, this action is also not subject to
Executive Order 32111, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001). 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.). These actions do not contain any unfunded mandate or
significantly or uniquely affect small governments, as described in the
Unfunded Mandates Reform Act of 1995 (Public Law 104-4) for the
following reasons: (1) The finding of failure to attain is a factual
determination based on air quality considerations; and (2) the
resulting reclassification must occur by operation of law and will not
impose any Federal intergovernmental mandate. Two Indian tribes have
reservations located within the boundaries of Imperial County. EPA is
responsible for the implementation of Federal Clean Air Act programs in
Indian country, including reclassifications. EPA has notified the
affected tribal officials and will be consulting with them, as provided
for by Executive Order 13175 (65 FR 67249, November 9, 2000). Because
EPA is required by Court Order to reclassify the Imperial Valley PM-10
planning area to serious nonattainment, and because reclassifications
in and of themselves do not impose any Federal intergovernmental
mandate, this rule also does not have Federalism implications as 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). These actions are also not subject to Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Rules,'' (62 FR 19885, April 23, 1997), because they are not
economically significant. As discussed above, findings of failure to
attain under section 188(b)(2) of the CAA are based solely upon air
quality considerations and the subsequent nonattainment area
reclassification must occur by operation of law in light of those air
quality conditions. In this context, it would thus be inconsistent with
applicable law for EPA, when it makes a finding of failure to attain to
use voluntary consensus standards. Thus, 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. 804(2).
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: August 3, 2004.
Wayne Nastri,
Regional Administrator, Region IX.
0
40 CFR part 81 is amended as follows:
PART 81 [AMENDED]
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
2. In Sec. 81.305 amend the table for ``California--PM-10'' by
revising the entry for ``Imperial County, Imperial Valley Planning
Area,'' to read as follows:
Sec. 81.305 California.
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[[Page 48794]]
California--PM-10
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Designation Classification
Designated area -----------------------------------------------------------------------------
Date Type Date Type
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Imperial County:
Imperial Valley planning area... November 15, 1990.... Nonattainment........ 9/8/04 Serious.
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[FR Doc. 04-18378 Filed 8-10-04; 8:45 am]
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