[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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                                                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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