[Federal Register Volume 71, Number 49 (Tuesday, March 14, 2006)]
[Rules and Regulations]
[Pages 13021-13025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2430]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R09-OAR-2006-0041; FRL-8045-1]
Approval and Promulgation of Implementation Plans; Designation of
Areas for Air Quality Planning Purposes; State of Arizona; Particulate
Matter of 10 Microns or Less; Finding of Attainment for Yuma
Nonattainment Area; Determination Regarding Applicability of Certain
Clean Air Act Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action under the Clean Air Act to
determine that the Yuma nonattainment area in Arizona has attained the
National Ambient Air Quality Standards (NAAQS) for particulate matter
with an aerodynamic diameter less than or equal to a nominal 10
micrometers (PM10). This determination is based upon
monitored air quality data for the PM10 NAAQS during the
years 1998-2000. EPA also finds that the Yuma area is currently in
attainment of the PM10 NAAQS, and based on this finding, EPA
is determining that certain Clean Air Act requirements are not
applicable for so long as the Yuma area continues to attain the
PM10 NAAQS.
DATES: This rule is effective on May 15, 2006, without further notice,
unless EPA receives adverse comments by April 13, 2006. If adverse
comment is received, EPA will publish a timely withdrawal of the direct
final rule in the Federal Register informing the public that the rule
will not take effect.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2006-0041, by one of the following methods:
(1) Federal eRulemaking portal: http://www.regulations.gov. Follow
the on-line instructions.
(2) E-mail: [email protected].
(3) Mail or deliver: Rebecca Rosen (AIR-2), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901.
Instructions: All comments will be included in the public docket
without change and may be made available online at http://www.regulations.gov, including any personal information provided,
unless the comment includes Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through the
www.regulations.gov or e-mail. www.regulations.gov is an anonymous
access system, and EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send e-mail directly to EPA, your e-mail address will be automatically
captured and included as part of the public comment. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment.
Docket: The index to the docket for this action is available
electronically at http://www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed in the
FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Rebecca Rosen, EPA Region IX, (415)
947-4152, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,''
``us,'' or ``our'' are used, we mean the Environmental Protection
Agency (EPA).
Table of Contents
I. Background
A. What National Ambient Air Quality Standards (NAAQS) Are
Considered in Today's Finding?
B. What Is the Designation and Classification of This
PM10 Nonattainment Area?
C. How Do We Make Attainment Determinations?
II. What Is the Basis for EPA's Determination That the Yuma
Nonattainment Area Has Attained the PM10 NAAQS?
III. What Are the Applicable Planning Requirements for the Yuma
Nonattainment Area As a Result of EPA's Attainment Determination?
IV. EPA's Final Action
V. Statutory and Executive Order Reviews
I. Background
A. What National Ambient Air Quality Standards (NAAQS) Are Considered
in Today's Finding?
Particulate matter with an aerodynamic diameter of less than or
equal to 10 micrometers (PM10) is the subject of this
action. The NAAQS are limits for certain ambient air pollutants set by
EPA to protect public health and welfare. PM10 is among the
ambient air
[[Page 13022]]
pollutants for which EPA has established a health-based standard.
PM10 causes adverse health effects by penetrating deep
into the lungs, aggravating the cardiopulmonary system. Children, the
elderly, and people with asthma and heart conditions are the most
vulnerable.
On July 1, 1987 (52 FR 24634), EPA revised the NAAQS for
particulate matter with an indicator that includes only those particles
with an aerodynamic diameter less than or equal to a nominal 10
micrometers. See 40 CFR 50.6. The 24-hour primary PM10
standard is 150 micrograms per cubic meter [mu]g/m\3\ with no more than
one expected exceedance per year. The annual primary PM10
standard is 50 [mu]g/m\3\ as an annual arithmetic mean. The secondary
PM10 standards, promulgated to protect against adverse
welfare effects, are identical to the primary standards.
B. What Is the Designation and Classification of This PM10
Nonattainment Area?
Upon enactment of the 1990 Clean Air Act Amendments (CAA or
``Act''), PM10 areas meeting the requirements of either (i)
or (ii) of section 107(d)(4)(B) of the Act were designated
nonattainment for PM10 by operation of law and classified
``moderate.'' These areas included all former Group I PM10
planning areas identified in 52 FR 29383 (August 7, 1987) and further
clarified in 55 FR 45799 (October 31, 1990), and any other areas
violating the NAAQS for PM10 prior to January 1, 1989 (many
of these areas were identified by footnote 4 in the October 31, 1990
Federal Register document). A Federal Register notice announcing the
areas designated nonattainment for PM10 upon enactment of
the 1990 Act Amendments, known as ``initial'' PM10
nonattainment areas, was published on March 15, 1991 (56 FR 11101). A
subsequent Federal Register document correcting some of these areas was
published on August 8, 1991 (56 FR 37654). These nonattainment
designations and moderate area classifications were codified in 40 CFR
part 81 in a Federal Register document published on November 6, 1991
(56 FR 56694). All other areas in the nation not designated
nonattainment at enactment were designated unclassifiable (see section
107(d)(4)(B)(iii) of the Act).
The Yuma planning area was listed by EPA as a Group I area (see 52
FR 29383, August 7, 1987) and was designated nonattainment for
PM10 by operation of law and classified ``moderate.'' In
accordance with section 189(a)(2) of the CAA, Arizona was to submit a
state implementation plan (SIP) by November 15, 1991 demonstrating
attainment of the PM10 standards by December 31, 1994 for
the Yuma area.\1\
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\1\ Arizona submitted a moderate area plan for the Yuma area on
November 14, 1991; EPA found this plan to be incomplete on May 14,
1992. Arizona submitted a revised plan for Yuma on July 12, 1994.
EPA found the revised plan to be complete but has not taken action
on it.
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C. How Do We Make Attainment Determinations?
Pursuant to sections 179(c)(1) and 188(b)(2) of the Act, we have
the responsibility of determining within six months of the applicable
attainment date whether, based on air quality data, PM10
nonattainment areas attained the NAAQS by that date. The ``applicable
attainment date'' is December 31, 1994 for areas, such as Yuma, that
were designated as ``moderate'' nonattainment for PM10 by
operation of law under the 1990 Amended Act. Determinations under
section 179(c)(1) of the Act are to be based upon an area's ``air
quality as of the attainment date.'' Section 188(b)(2) is consistent
with this requirement.
Generally, we will determine whether an area's air quality meets
the PM10 NAAQS for purposes of section 179(c)(1) and
188(b)(2) based upon data gathered at established state and local air
monitoring stations (SLAMS) and national air monitoring stations (NAMS)
in the nonattainment area and entered into the EPA's Air Quality System
(AQS) database. Data entered into the AQS has been determined to meet
federal monitoring requirements (see 40 CFR 50.6; 40 CFR part 50,
appendix J; 40 CFR part 53; 40 CFR part 58, appendices A and B) and may
be used to determine the attainment status of areas. We will also
consider air quality data from other air monitoring stations in the
nonattainment area provided that the stations meet the federal
monitoring requirements for SLAMS. All data are reviewed to determine
the area's air quality status in accordance with our guidance at 40 CFR
part 50, Appendix K.
Attainment of the annual PM10 standard is achieved when
the annual arithmetic mean PM10 concentration over a three-
year period is equal to or less than 50 [mu]g/m\3\. Attainment of the
24-hour standard is determined by calculating the expected number of
days in a year with PM10 concentrations greater than 150
[mu]g/m\3\. The 24-hour standard is attained when the expected number
of days per year with levels above 150 [mu]g/m\3\ (averaged over a
three-year period) is less than or equal to one. Three consecutive
years of air quality data are necessary to show attainment of the 24-
hour and annual standards for PM10. See 40 CFR part 50 and
appendix K. A complete year of air quality data, as referred to in 40
CFR part 50 Appendix K, includes all 4 calendar quarters with each
quarter containing data from at least 75 percent of the scheduled
sampling days.\2\
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\2\ However, as explained in more detail in the following
section of this notice, EPA guidelines allow for data substitution
only under circumstances where data capture is at least 50 percent
but less than 75 percent.
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II. What Is the Basis for EPA's Determination That the Yuma
Nonattainment Area Has Attained the PM10 NAAQS?
The Yuma PM10 nonattainment area is located in the lower
Colorado River Valley in the southwestern portion of Yuma County. The
PM10 nonattainment area consists of 456 square miles, which
is roughly eight percent of the land area of Yuma County (5,500 square
miles). Yuma County is located in the southwestern portion of Arizona
that borders California and Mexico. The cities of Yuma and Somerton are
the largest population centers in the Yuma PM10
nonattainment area. The city of Yuma, the county seat, is located below
the convergence of the Gila and Colorado Rivers on the far western side
of the PM10 nonattainment area. The city of Somerton is
located in the southwestern portion of the PM10
nonattainment area. Agriculture is the primary industry in Yuma County.
The Arizona Department of Economic Security predicts that Yuma County's
population is expected to increase by 37.5 percent from 138,025 in 2000
to 189,783 in 2015.\3\ Approximately one-half of the county's year-
round population resides in the city of Yuma. During the winter, Yuma
County's population increases significantly due to seasonal residents.
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\3\ Arizona Department of Economic Security, 2006.
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The Yuma PM10 nonattainment area has one SLAMS monitor
operated by the Arizona Department of Environmental Quality (ADEQ).
This monitor was located at the Yuma County Juvenile Center in the city
of Yuma from 1988 until the second quarter of 2002, after which time it
was relocated to the nearby Yuma County Courthouse, which is also
located in the city of Yuma. ADEQ measures ambient (24-hour-average)
PM10 concentrations in Yuma at a frequency of once every six
days.
Table 1 summarizes the PM10 data collected in Yuma from
1992-2005 and reported by ADEQ to the AQS database. Table 1 also
indicates which years had
[[Page 13023]]
four complete quarters of data (including any allowable data
substitution \4\), making the data from that year eligible for use in
determining whether the area has attained the PM10 NAAQS, if
that year is followed by two consecutive years also with four complete
quarters of data. As shown in Table 1, no exceedances of the 24-hour
PM10 NAAQS of 150 [mu]g/m\3\ were measured in Yuma during
the 1992-1994 period and the annual-average PM10
concentrations measured during that period were well below the
corresponding standard of 50 Fg/m\3\. However, even with allowable data
substitution, the data capture for Yuma was not sufficient for the
1992-1994 period to allow us to make a finding of attainment for the
applicable attainment date of December 31, 1994.
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\4\ The regulatory requirement for data capture in 40 CFR part
50, Appendix K, is 75 percent on a quarterly basis. According to the
``Guideline on Exceptions to Data Requirements for Determining
Attainment of Particulate Matter Standards'' (see EPA document 450/
4-87-005, April 1987), when data capture is at least 50 percent but
less than 75 percent, data may be substituted for the missing data.
Per the above-referenced guideline, monitoring data from the same
quarter in any one of the years used to determine attainment may be
substituted for missing PM10 data. The maximum
PM10 value that was observed in that quarter over the
last three years is substituted for missing scheduled sampling days.
Table 1.--Summary of 24 Hour and Annual PM10 Concentrations ([mu]g/m\3\) for Yuma, 1992-2005 \1\
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Year
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1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005
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Highest 24-hour-average.............................. 62 65 66 75 103 108 112 100 132 \2\ 125 127 114 86
150
Annual average....................................... 29.0 33.9 37.3 41.5 52.1 42.4 39.7 36.7 \3\ 41.2 51.8 38.1 45.0 30.8
54.3
Four complete quarters?.............................. Yes Yes No Yes Yes No Yes Yes Yes No Yes Yes Yes \4\
NA
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\1\ The data summary in Table 1 includes substituted data and was analyzed according to the ``Guideline on Exceptions to Data Requirements for
Determining Attainment of Particulate Matter Standards.'' See footnote 4. The fourth quarter in 1994, the second quarter in 1997, and the first and
fourth quarters in 2001 were not eligible for data substitution. The incomplete data from these quarters was included in the calculation of the annual
average for each of these years.
\2\ The highest measured 24-hour-average concentration in 2001 was 150 [mu]g/m\3\, which is equal to the 24-hour PM10 NAAQS, but which is not considered
an ``exceedance.'' Under EPA regulations, an exceedance of the 24-hour-average standard represents concentrations of 155 [mu]g/m\3\ or greater. See 40
CFR 50, appendix K.
\3\ Data substitution results in a conservative estimate of the annual average. See footnote 4. For example, the annual average for 2000 of 54.3 [mu]g/
m\3\ would be reduced to 42.3 [mu]g/m\3\ if data substition was not used. The method of data substitution was used to calculate annual averages for
1993-1997, 2000-2002, and 2004.
\4\ We have received AQS data from ADEQ through September 30, 2005. States are required to report data to AQS on a rolling basis and have until 90 days
from the end of a given quarter to submit quality-assured monitoring data into AQS. See 40 CFR 58.28.
NA: Not Applicable.
Like the 1992-1994 period, the series of three-year periods
immediately following 1992-1994 also show no exceedances of the
PM10 NAAQS but an incomplete data set in 1997 prevents us
from making an attainment finding until 1998-2000, the first three-year
period after the applicable attainment date with sufficient data
capture to make an attainment finding consistent with 40 CFR Part 50,
Appendix K.
As noted above, the 24-hour PM10 standard is attained
when the expected number of days per year with levels above 150 [mu]g/
m\3\ (averaged over a three-year period) is less than or equal to one.
When we apply data substitution per the above-referenced guideline for
the period 1998-2000, we find no exceedances of the 24-hour
PM10 NAAQS for the 1998-2000 period and thus the expected
number of days per year with levels above 150 [mu]g/m\3\ (averaged over
that three-year period) is zero. As such, pursuant to sections
179(c)(1) and 188(b)(2) of the Act, we find that Yuma has attained the
24-hour PM10 NAAQS. Since 2000, there is one year (2001) in
which four complete quarters of data are not available, but because the
data from the most recent three-year period (2002-2004) are complete
and show no exceedances,\5\ and because the latest available
information for 2005 also reveals no exceedances, we conclude that Yuma
is currently in attainment of the 24-hour PM10 NAAQS.
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\5\ On August 18, 2002, ADEQ measured 170 [mu]g/m\3\, 24-hour-
average, at the Yuma monitoring station; however, EPA concurred with
ADEQ on the exclusion of this data from design value calculations
due to a high wind event that occurred on that date. ADEQ has
prepared a Natural Events Action Plan (NEAP) in response to that
event. The NEAP includes the development and implementation of Best
Available Control Measures (BACM) for anthropogenic PM10
sources that contributed to the event.
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Also as noted above, attainment of the annual PM10
standard is achieved when the annual arithmetic mean PM10
concentration over a three-year period is equal to or less than 50
[mu]g/m\3\. Review of the data for calendar years 1998-2000 reveals an
arithmetic average of 43.6 [mu]g/m\3\. As such, pursuant to sections
179(c)(1) and 188(b)(2) of the Act, we find that Yuma has attained the
annual PM10 NAAQS. As noted previously, the data set for
year 2001 is not complete, but the data from the most recent complete
three-year period (2002-2004) show that Yuma is currently in attainment
of the annual PM10 NAAQS.
III. What Are the Applicable Planning Requirements for the Yuma
Nonattainment Area as a Result of EPA's Attainment Determination?
The air quality planning requirements for moderate PM10
nonattainment areas, such as the Yuma nonattainment area, are set out
in part D, subparts 1 and 4 of title I of the Act. We have issued
guidance in a General Preamble \6\ describing how we will review SIPs
and SIP revisions submitted under title I of the Act, including those
containing moderate PM10 nonattainment area SIP provisions.
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\6\ ``General Preamble for the Implementation of Title I of the
Clean Air Act Amendments of 1990'' (57 FR 13498, April 16, 1992, as
supplemented 57 FR 18070, April 28, 1992).
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In nonattainment areas where monitored data demonstrates that the
NAAQS have already been achieved, EPA has determined that certain
requirements of part D, subparts 1 and 2 of title I of the Act (with
respect to 1-hour ozone) do not apply. Therefore, we do not require
certain submissions for an area that has attained the NAAQS. These
include reasonable further progress (RFP) requirements, attainment
demonstrations and contingency measures, because these provisions have
the purpose of helping achieve attainment of the NAAQS.
[[Page 13024]]
This interpretation of the CAA is known as the Clean Data Policy
and is the subject of two EPA memoranda. EPA also finalized the
statutory interpretation set forth in the policy in a final rule, 40
CFR 51.918, as part of its ``Final Rule to Implement the 8-hour Ozone
National Ambient Air Quality Standard--Phase 2'' (Phase 2 Final Rule).
See discussion in the preamble to the rule at 70 FR 71612, 71645-46
(November 29, 2005). EPA believes that the legal bases set forth in
detail in our Phase 2 Final Rule, our May 10, 1995 memorandum from John
S. Seitz, entitled ``Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment Areas
Meeting the Ozone National Ambient Air Quality Standard,'' and our
December 14, 2004 memorandum from Stephen D. Page entitled ``Clean Data
Policy for the Fine Particle National Ambient Air Quality Standards''
are equally pertinent to the interpretation of provisions of subparts 1
and 4 applicable to PM10. Our interpretation that an area
that is attaining the standards is relieved of obligations to
demonstrate RFP and to provide an attainment demonstration and
contingency measures pursuant to part D of the CAA, pertains whether
the standard is PM10, ozone or PM2.5.\7\
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\7\ Three U.S. Circuit Courts of Appeals have upheld EPA
rulemakings applying its interpretation of subparts 1 and 2 with
respect to ozone. Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 1996);
Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004); Our Children's
Earth Foundation v. EPA, No. 04-73032 (9th Cir. June 28, 2005)
(memorandum opinion).
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It has been EPA's longstanding interpretation that the general
provisions of part D, subpart 1 of the Act (sections 171 and 172) do
not require the submission of SIP revisions concerning RFP for areas
already attaining the ozone NAAQS because the stated purpose of RFP is
to ensure attainment by the applicable date. 57 FR at 13564. EPA
believes the same reasoning applies to the PM10 provisions
of part D, subpart 4. CAA section 189(c)(1), applicable to
PM10 nonattainment areas, states that revisions shall
contain milestones which are to be achieved until the area is
redesignated to attainment, such milestones are designed to show
reasonable further progress ``toward attainment by the applicable
date,'' as defined by section 171. Thus, it is clear that once the area
has attained the standard, no further milestones are necessary or
meaningful.
With respect to the attainment demonstration requirements of
section 189(a)(1)(B) an analogous rationale leads to the same result.
CAA section 189(a)(1)(B), requires that the plan provide for ``a
demonstration (including air quality modeling) that the [SIP] will
provide for attainment by the applicable attainment date * * *'' As
with the RFP requirements, if an area is already monitoring attainment
of the standards, EPA believes there is no need for an area to make a
further submission containing additional measures to achieve
attainment. This is also consistent with the interpretation of the
section 172(c) requirements provided by EPA in the General Preamble (57
at 13564), the December 14, 2004 memorandum, and the section 182(b) and
(c) requirements set forth in the May 10, 1995 memorandum.
Other SIP submission requirements are linked with these attainment
demonstration and RFP requirements, and similar reasoning applies to
them. These requirements include the contingency measure requirements
of section 172(c)(9) and 182(c)(9). We have interpreted the contingency
measure requirements of section 172(c)(9) and 182(c)(9) as no longer
applying when an area has attained the standard because those
``contingency measures are directed at ensuring RFP and attainment by
the applicable date.'' (57 FR at 13564); May 10, 1995 memorandum at 5-
6.
Here, as in both our Phase 2 Final Rule and ozone and
PM2.5 clean data memoranda, we emphasize that the suspension
of a requirement to submit SIP revisions concerning these RFP,
attainment demonstration, contingency, and other related requirements
exists only for as long as a nonattainment area continues to monitor
attainment of the standard. If such an area experiences a violation of
the NAAQS, the basis for the requirements being suspended would no
longer exist. Therefore, should EPA at some future time determine that
an area that had clean data, but which has not yet been redesignated as
attainment for a NAAQS, has violated the relevant standard, the State
would again be required to submit the pertinent CAA requirements for
the area.
With respect to the Yuma PM10 nonattainment area, based
on the finding made herein that Yuma is currently in attainment of the
PM 10 NAAQS and based on the rationale given above, we have
determined that the part D, subpart 4 obligations to provide an
attainment demonstration pursuant to section 189(a)(1)(B), the RFP
provisions established by section 189(c)(1), and the attainment
demonstration, RFP and contingency measure provisions of part D,
subpart 1 contained in section 172 of the Act are not applicable for so
long as the Yuma area continues to monitor attainment of the
PM10 NAAQS. If measurements of ambient PM10
concentrations in the Yuma area reveal a violation of the
PM10 NAAQS, then the State of Arizona would again be
required to submit the pertinent CAA requirements for this
nonattainment area.\8\
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\8\ Note, however, that on January 17, 2006, EPA published
proposed revisions to the NAAQS for particulate matter. See http://www.epa.gov/fedrgstr/EPA-AIR/2006/January/Day-17/. The proposed
revisions address two categories of particulate matter: fine
particles which are particles 2.5 micrometers in diameter and
smaller; and ``inhalable coarse'' particles which are particles
between 2.5 and 10 micrometers (PM10-2.5). Upon
finalization of a primary 24-hour standard for PM10-2.5,
EPA proposes to revoke the current 24-hour PM10 standard
in all areas of the country except in areas where there is at least
one monitor located in an urbanized area (as defined by the U.S.
Bureau of the Census) with a minimum population of 100,000 that
violates the current 24-hour PM10 standard based on the
most recent three years of data. In addition, EPA proposes to revoke
the current annual PM10 standard upon finalization of a
primary 24-hour standard for PM10-2.5.
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IV. EPA's Final Action
Based on quality-assured data meeting the requirements of 40 CFR
part 50, appendix K, we find that the Yuma, Arizona nonattainment area
has attained the PM10 NAAQS. This action is a finding of
attainment under sections 179(c)(1) and 188(b)(2) of the Clean Air Act
and not a redesignation to attainment under CAA section 107(d)(3)
because we have not yet approved a maintenance plan meeting the
requirements of section 175A of the CAA or determined that the area has
met the other CAA requirements for redesignation. The classification
and designation status in 40 CFR part 81 will remain moderate
nonattainment for this area until such time as Arizona meets the CAA
requirements for redesignation of the Yuma PM10 area to
attainment.
EPA also finds that, because the Yuma ``moderate'' nonattainment
area is currently in attainment of the PM10 NAAQS, the
following CAA requirements are not applicable for so long as the area
continues to attain the PM10 NAAQS: the part D, subpart 4
obligations to provide an attainment demonstration pursuant to section
189(a)(1)(B), the RFP provisions established by section 189(c)(1), and
the attainment demonstration, RFP and contingency measure provisions of
part D, subpart 1 contained in section 172 of the Act.
We are publishing this rule without prior proposal because the
Agency views this as a noncontroversial action and anticipates no
adverse comments. However, in the proposed rules section
[[Page 13025]]
of this Federal Register publication, EPA is publishing a separate
document that will serve as the proposal should adverse comments be
filed. This action will be effective May 15, 2006, without further
notice unless the EPA receives relevant adverse comments by April 13,
2006.
If we receive such comments, then we will publish a document
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. We will not
institute a second comment period. Parties interested in commenting
should do so at this time. If no such comments are received, the public
is advised that this rule will be effective on May 15, 2006 and no
further action will be taken on the proposed rule.
V. Statutory and Executive Order Reviews
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. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely makes a determination based on air quality data and does not
impose any additional requirements. 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.). Because this rule does not impose any
additional enforceable duty, it does not contain any unfunded mandate
or significantly or uniquely affect small governments, as described in
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it will
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 97249, November 9, 2000). This action also does not have federalism
implications because 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). This action merely makes a determination
based on air quality data and does not alter the relationship or the
distribution of power and responsibilities established in the CAA. This
rule also is not subject to Executive Order 13045 ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant.
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).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 15, 2006. 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
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Particulate matter, Reporting and recordkeeping
requirements.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: March 1, 2006.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 06-2430 Filed 3-13-06; 8:45 am]
BILLING CODE 6560-50-P