[Federal Register Volume 69, Number 146 (Friday, July 30, 2004)]
[Rules and Regulations]
[Pages 45592-45596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17372]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 50 and 58
[OAR-2003-0229; FRL-7794-1]
RIN 2060-AM02
National Ambient Air Quality Standards for Particulate Matter
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In American Trucking Associations v. EPA, 175 F. 3d 1027 (D.C.
Cir. 1999), the court vacated the PM10 national ambient air
quality standards (NAAQS) that EPA adopted in 1997. Today's action
removes the vacated 1997 PM10 standards and related
requirements from the Code of Federal Regulations (CFR).
DATES: This rule is effective on July 30, 2004.
ADDRESSES: The EPA does not seek comment on this final rule. EPA has
established an official public docket for this action under Docket ID
No. OAR-2003-0229. The official public docket consists of the documents
specifically referenced in this action.
The official public docket is the collection of materials that is
available for public viewing at the Air Docket in the EPA Docket
Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW.,
Washington, DC. The EPA Docket Center Public Reading Room is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Reading Room is (202) 566-1742,
and the telephone number for the Air Docket is (202) 566-1742.
Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to access the index
listing of the contents of the official public docket, and to access
those documents in the public docket that are available electronically.
Once in the system, select ``search,'' then key in the appropriate
docket identification number.
Worldwide Web (WWW). In addition to being available in the docket,
an electronic copy of today's final rule will also be available on the
WWW through EPA's Technology Transfer Network (TTN). Following
signature by the EPA Administrator, a copy of the rule will be posted
on the TTN's policy and guidance page for newly proposed or promulgated
rules at http://www.epa.gov/ttn/oarpg. The TTN provides information and
technology exchange in various areas of air pollution control. If more
information regarding the TTN is needed, call the TTN HELP line at
(919) 541-5384.
FOR FURTHER INFORMATION CONTACT: Eric O. Ginsburg, Office of Air
Quality Planning and Standards, U.S. Environmental Protection Agency
(C304-02), Research Triangle Park, NC 27711; e-mail
[email protected]; telephone (919) 541-0877; fax (919) 541-4511.
SUPPLEMENTARY INFORMATION:
I. Background
A. 1997 Revision of the PM NAAQS
On July 18, 1997, EPA promulgated revisions to the primary and
secondary NAAQS for particulate matter (PM) (62 FR 38652), revising the
PM NAAQS in several respects. New standards were added, using
PM2.5 (defined as particles with an aerodynamic diameter
less than or equal to a nominal 2.5 micrometers ([mu]m)) as the
indicator for standards adopted for the purpose of regulating fine
particles, and continuing to use PM10 (defined as particles
with an aerodynamic diameter less than or equal to a nominal 10 [mu]m)
as the indicator for standards adopted for the purpose of regulating
coarse-fraction particles (referring to those particles with an
aerodynamic diameter less than or equal to a nominal 10 [mu]m but
greater than 2.5 [mu]m). The 1997 annual PM10 standard used
the same form as the pre-existing annual PM10 standard
adopted in 1987, whereas the 1997 24-hour PM10 standard
incorporated a new statistical form, based on the 99th percentile of
24-hour PM10 concentrations at each monitor in an area. EPA
also adopted various requirements related to the 1997 PM10
standards such as new measurement methods, a new attainment test, and
air quality monitoring schedules.
At that time, EPA determined that the pre-existing 1987
PM10 standards should remain in place and continue to apply
in order to provide for an effective transition to the 1997
PM10 standards. 62 FR at 38701. To this end, EPA adopted a
regulation setting forth criteria under which the pre-existing
PM10 standards would cease to apply. See 40 CFR 50.6(d), 62
FR at 38711.
B. Judicial Vacatur of the 1997 PM10 Standards
Following promulgation of the 1997 PM NAAQS, numerous petitions for
review of the PM standards were filed in the United States Court of
Appeals for the District of Columbia Circuit (D.C. Circuit). These
petitions were consolidated in American Trucking Associations, Inc. et
al., v. EPA and the court issued its initial opinion on May 14, 1999.
American Trucking Associations, Inc. et al., v. Environmental
Protection Agency, 175 F.3d 1027 (D.C. Cir. 1999), rehearing granted in
part and denied in part, 195 F.3d 4 (D.C. Cir. 1999), affirmed in part
and reversed in part, Whitman v. American Trucking Associations, Inc.
et al., 121 S.Ct 903 (2001); see also American Trucking Associations v.
EPA, 283 F.3d 355 (D.C. Cir. 2002) (denying all remaining petitions for
[[Page 45593]]
review following remand from United States Supreme Court). In part,
although the court found ``ample support'' for EPA's decision to
regulate coarse-fraction particles, it vacated the 1997 PM10
standards on the basis of PM10 being a ``poorly matched
indicator for coarse particulate pollution'' because PM10
includes fine particles. 175 F. 3d at 1054-55. Pursuant to the D.C.
Circuit's decision, EPA deleted 40 CFR 50.6(d), the regulatory
provision controlling the transition from the pre-existing 1987
PM10 standards to the 1997 PM10 standards. 65 FR
80776 (December 22, 2000). The pre-existing 1987 PM10
standards remained in place. Id. at 80777.
The above discussion is presented solely to provide context for
today's action. EPA is not reopening, reconsidering, or otherwise
reevaluating the appropriateness of any of these previous actions in
today's notice.
II. Changes to the Regulation
Today's action removes from the CFR the PM10 standards
adopted in 1997 contained in 40 CFR 50.7(a)(2). These are the annual
and 24-hour PM10 standards and the associated new reference
measurement method (contained in Appendix M). EPA is also removing 40
CFR 50.7(d) and (e), which includes the attainment tests for the
PM10 annual and 24-hour standards adopted in 1997 (included
in Appendix N). Consistent with these changes, we are also removing
Appendix M in its entirety and revising Appendix N to remove any
provisions that relate to the 1997 PM10 standards. In
addition, EPA is amending 40 CFR 50.3 (which specifies reference
measurement conditions) to remove language that extended the scope of
its applicability to the 1997 PM10 standards.
The EPA is also making conforming changes to the titles of 40 CFR
50.7 and Appendix N to clarify that these sections are now applicable
solely to PM2.5. Similarly, we are changing the title of
Appendix K to clarify that it is applicable solely to PM10.
Because the form of the pre-existing 1987 PM10 standards
necessitated a different air quality monitoring schedule from that
required for the vacated standards, EPA is also replacing Sec.
58.13(d) with relevant portions of the ``long-term monitoring selective
sampling schedule'' previously found at 40 CFR 58.13(d)(2) (July 1,
1996). Because the PM10 monitoring networks are now fully
deployed, EPA is not restoring those provisions pertaining to their
initial implementation.
Although we are reprinting certain language from the 1997 rule in
today's amendment, we are doing so only to assure clarity and
grammatical correctness after deletion of the vacated text. We are not
reopening, reconsidering, or otherwise reassessing any of this
reprinted language.
III. Issuance as Final Rule
Section 553 of the Administrative Procedure Act, 5 U.S.C.
553(b)(B),\1\ provides that when an agency for good cause finds that
notice and public comment procedure are impracticable, unnecessary or
contrary to the public interest, the agency may issue a rule without
providing notice and an opportunity for public comment. EPA has
determined that there is good cause for making today's rule final
without prior proposal and opportunity for comment because this rule is
ministerial and non-discretionary, amending the regulations to reflect
the court's order vacating the 1997 PM10 standards. The rule
thus vacates the 1997 PM10 standards and the ancillary
provisions directly related thereto. Because EPA has no discretion as
to what action to take, notice and opportunity for public comment are
unnecessary. EPA finds that this constitutes good cause under 5 U.S.C.
553(b)(B). For the same reason, EPA finds that there is good cause,
within the meaning of 5 U.S.C. 553(d)(3), to make the rule effective
immediately.
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\1\ The provisions of 5 U.S.C. 553(b)(B) of the Administrative
Procedure Act apply to this action. See Clean Air Act section
307(d)(1) (final sentence).
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IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, [58 FR 51735 (October 4, 1993)] the
Agency must determine whether the regulatory action is ``significant''
and, therefore, subject to OMB review and the requirements of the
Executive Order.
Because this action involves a ministerial removal of regulatory
text in response to a court order, it has been determined that this
rule is not a ``significant regulatory action'' under the terms of
Executive Order 12866 and is, therefore, not subject to EO 12866
review.
B. Paperwork Reduction Act
The Administrator has determined today's action does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), since it directly
imposes no burden at all. Burden means the total time, effort, or
financial resources expended to generate and maintain, retain, or
provide information as required by a rule. This includes the time
needed to review instructions; develop, acquire, install, and use
technology and systems for collecting, validating, and verifying
information or processing and maintaining information; adjust the
existing ways to comply with previous instructions and requirements;
train personnel to respond to the collection of information; search
data sources; complete and review the information; and transmit the
information. Today's rule imposes no such burden on any entity.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act 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.
Because the agency has made a ``good cause'' finding that this action
is not subject to notice-and-comment requirements under the APA or any
other statute, it is not subject to the regulatory flexibility
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments, as well as the private sector. Under section 202 of the
UMRA, EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local, and tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any 1 year. Before promulgating an EPA rule for
which a written statement is needed, section 205 of the UMRA generally
requires EPA to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective, or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows EPA to adopt an
alternative other than the least costly, most cost-effective, or least
burdensome alternative if the
[[Page 45594]]
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a Small Government Agency Plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Because the agency has made a ``good cause'' finding that this
action is not subject to notice-and-comment requirements under the APA
or any other statute, it is not subject to sections 202 and 205 of the
UMRA. In addition, this action does not significantly or uniquely
affect small governments or impose a significant intergovernmental
mandate, as described in sections 203 and 204 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), 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 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. Also, the EPA 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.
If EPA complies by consulting, Executive Order 13132 requires EPA
to provide to OMB in a separately identified section of the preamble to
the rule a Federalism summary impact statement (FSIS). The FSIS must
include a description of the extent of EPA's prior consultation with
State and local officials, a summary of the nature of their concerns
and the Agency's position supporting the need to issue the regulation,
and a statement of the extent to which the concerns of State and local
officials have been met. Also, when EPA transmits a draft final rule
with Federalism implications to OMB for review pursuant to Executive
Order 12866, EPA must include a certification from the Agency's
Federalism official stating that EPA has met the requirements of
Executive Order 13132 in a meaningful and timely manner.
This action will 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. This action
will not alter the overall relationship or distribution of powers
between governments for the Title V Program. Thus, the requirements of
section 6 of the Executive Order do not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have a substantial direct effect on one or
more Indian tribes, 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 by
Executive Order 13175 (65 FR 67249, November 9, 2000) because it does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Accordingly, this
rule is not subject to Executive Order 13175.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that the EPA determines (1) economically significant as
defined under Executive Order 12866, and (2) the environmental health
or safety risk addressed by the rule has 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.
This action is not subject to Executive Order 13045 because it is
not an economically-significant, regulatory action as defined by
Executive Order 12866, and it does not address an environmental health
or safety risk that would have a disproportionate effect on children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note),
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, business practices, etc.) that are developed or adopted by
voluntary-consensus standard bodies. The NTTAA directs EPA to provide
Congress through OMB explanations when the Agency decides not to use
available and applicable voluntary consensus standards. This action
does not involve technical standards. Therefore, EPA is not considering
the use of any voluntary consensus standards.
J. Congressional Review Act
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. Section 808 allows the issuing agency to make a rule effective
sooner than otherwise provided by the CRA if the agency makes a good
cause finding that notice and public procedure is impracticable,
unnecessary, or contrary to public interest. This determination must be
supported by a brief statement. 5 U.S.C. 808(2). As stated previously,
EPA has
[[Page 45595]]
made such a good cause finding, including the reasons therefor, and
established an effective date of [date of publication] for this rule.
The 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 the publication
of the rule in the Federal Register. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
V. Immediate Effective Date
As noted earlier, EPA is making this rule effective immediately.
Since EPA has no discretion as to what action to take and is simply
amending the rules to conform to the D.C. Circuit's order of vacatur,
comment on these amendments is unnecessary within the meaning of 5
U.S.C. 553(b)(3)(B).
For the same reason, there is good cause to make the rule effective
immediately pursuant to 5 U.S.C. 553(d)(3).
List of Subjects
40 CFR Part 50
Environmental protection, Air pollution control, Particulate
matter.
40 CFR Part 58
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: July 22, 2004.
Michael O. Leavitt,
Administrator.
0
For the reasons set out in the preamble, chapter I, title 40 of the
Code of Federal Regulations, is amended as follows:
PART 50--[AMENDED]
0
1. The authority citation for part 50 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
2. Section 50.3 is revised to read as follows:
Sec. 50.3 Reference conditions.
All measurements of air quality that are expressed as mass per unit
volume (e.g., micrograms per cubic meter) other than for the
particulate matter (PM2.5) standards contained in Sec. 50.7
shall be corrected to a reference temperature of 25[deg]C and a
reference pressure of 760 millimeters of mercury (1,013.2 millibars).
Measurements of PM2.5 for purposes of comparison to the
standards contained in Sec. 50.7 shall be reported based on actual
ambient air volume measured at the actual ambient temperature and
pressure at the monitoring site during the measurement period.
Sec. 50.7 [Amended]
0
3. Section 50.7 is amended as follows:
0
a. Revising the section heading.
0
b. Revising paragraph (a) introductory text.
0
c. Removing paragraphs (a)(1) introductory text, (a)(2), (d) and (e).
0
d. Redesignating paragraphs (a)(1)(i) and (a)(1)(ii) as paragraphs
(a)(1) and (a)(2) respectively.
Sec. 50.7 National primary and secondary ambient air quality
standards for PM2.5.
(a) The national primary and secondary ambient air quality
standards for particulate matter are 15.0 micrograms per cubic meter
([mu]g/m3) annual arithmetic mean concentration, and 65
[mu]g/m3 24-hour average concentration measured in the
ambient air as PM2.5 (particles with an aerodynamic diameter
less than or equal to a nominal 2.5 micrometers) by either:
* * * * *
Appendix K--[Amended]
0
4. The heading of Appendix K is revised to read as follows:
Appendix K to Part 50--Interpretation of the National Ambient Air
Quality Standards for PM10.
Appendix M--[Amended]
0
5. Appendix M is removed and reserved.
Appendix N--[Amended]
0
6. Appendix N is amended by revising the appendix heading and removing
section 3.0 in its entirety and revising paragraphs (a) and (c) of
section 1.0 to read as follows:
Appendix N to Part 50--Interpretation of the National Ambient Air
Quality Standards for PM2.5
1.0 General.
(a) This appendix explains the data handling conventions and
computations necessary for determining when the annual and 24-hour
primary and secondary national ambient air quality standards for PM
specified in Sec. 50.7 of this part are met. Particulate matter is
measured in the ambient air as PM2.5 (particles with an
aerodynamic diameter less than or equal to a nominal 2.5 micrometers)
by a reference method based on appendix L of this part, as applicable,
and designated in accordance with part 53 of this chapter, or by an
equivalent method designated in accordance with part 53 of this
chapter. Data handling and computation procedures to be used in making
comparisons between reported PM2.5 concentrations and the
levels of the PM standards are specified in the following sections.
* * * * *
(c) The terms used in this appendix are defined as follows:
Average and mean refer to an arithmetic mean.
Daily value for PM refers to the 24-hour average concentration of
PM2.5 calculated or measured from midnight to midnight
(local time).
Designated monitors are those monitoring sites designated in a
State PM Monitoring Network Description for spatial averaging in areas
opting for spatial averaging in accordance with part 58 of this
chapter.
98th percentile means the daily value out of a year of
PM2.5 monitoring data below which 98 percent of all values
in the group fall.
Year refers to a calendar year.
* * * * *
PART 58--[AMENDED]
0
1. The authority citation for part 58 continues to read as follows:
Authority: 42 U.S.C. 7410, 7601(a), 7613 and 7619.
Sec. 58.13 [Amended]
0
2. Section 58.13 is amended by revising paragraph (d) to read as
follows:
Sec. 58.13 Operating schedule.
* * * * *
(d) For PM10 samplers--a 24-hour sample must be taken
from midnight to midnight (local time) to ensure national consistency.
The minimum monitoring schedule for the site in the area of expected
maximum concentration shall be based on the relative level of that
monitoring site concentration with respect to the level of the
controlling standard. For those areas in which the short-term (24-hour)
standard is controlling, i.e., has the highest ratio, the selective
sampling requirements are illustrated in Figure 1. If the operating
agency were able to demonstrate by monitoring data that there were
certain periods of the year where conditions preclude violation of the
PM10 24-hour standard, the increased sampling frequency for
those periods or seasons may be exempted by the Regional Administrator
and revert back to once in six days. The minimum sampling schedule for
all other sites in the area would be once every six days. For those
areas in which the annual standard is the controlling standard, the
minimum sampling schedule for all monitors in the area would be once
every six days. During the annual review of the SLAMS network, the most
recent year of data must be considered to estimate the air
[[Page 45596]]
quality status for the controlling air quality standard (24-hour or
annual). Statistical models such as analysis of concentration frequency
distributions as described in ``Guideline for the Interpretation of
Ozone Air Quality Standards,'' EPA-450/479-003, U.S. Environmental
Protection Agency, Research Triangle Park, NC, January 1979, should be
used. Adjustments to the monitoring schedule must be made on the basis
of the annual review. The site having the highest concentration in the
most current year must be given first consideration when selecting the
site for the more frequent sampling schedule. Other factors such as
major change in sources of PM10 emissions or in sampling
site characteristics could influence the location of the expected
maximum concentration site. Also, the use of the most recent 3 years of
data might, in some cases, be justified in order to provide a more
representative data base from which to estimate current air quality
status and to provide stability to the network. This multiyear
consideration would reduce the possibility of an anomalous year biasing
a site selected for accelerated sampling. If the maximum concentration
site based on the most current year is not selected for the more
frequent operating schedule, documentation of the justification for
selection of an alternative site must be submitted to the Regional
Office for approval during the annual review process. It should be
noted that minimum data completeness criteria, number of years of data
and sampling frequency for judging attainment of the NAAQS are
discussed in appendix K of part 50 of this chapter.
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[FR Doc. 04-17372 Filed 7-29-04; 8:45 am]
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