

[Federal Register: December 11, 2007 (Volume 72, Number 237)]
[Rules and Regulations]               
[Page 70222-70229]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de07-4]                         

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R09-OAR-2005-CA-0017; FRL-8504-2]

 
Finding of Failure To Attain; California--Imperial Valley 
Nonattainment Area; PM-10

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is finding that the Imperial Valley serious PM-10 
nonattainment area did not attain the 24-hour particulate matter (PM-
10) National Ambient Air Quality Standard (NAAQS) by the deadline 
mandated in the Clean Air Act (CAA), December 31, 2001. In response to 
this finding, the State of California must submit a revision to the 
California State Implementation Plan (SIP) that provides for attainment 
of the PM-10 standard in the Imperial Valley area and at least five 
percent annual reductions in PM-10 or PM-10 precursor emissions until 
attainment as required by CAA section 189(d). The State must submit the 
SIP revision by December 11, 2008.

DATES: Effective Date: This finding is effective on January 10, 2008.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2006-0583 for 
this action. The index to the docket is available electronically at 
http://www.regulations.gov and in hard copy at U.S. Environmental 

Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901. While 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., Confidential Business Information). 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: Adrienne Priselac, EPA Region IX, 
(415) 972-3285, priselac.adrienne@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' refer to EPA.

I. Background

    On August 11, 2004, EPA reclassified under the Clean Air Act (CAA 
or the Act) the Imperial Valley PM-10 nonattainment area (Imperial 
area) from moderate to serious in response to the opinion of the U.S. 
Court of Appeals for the Ninth Circuit in Sierra Club v. United States 
Environmental Protection Agency, et al., 346 F.3d 955 (9th Cir. 2003), 
amended 352 F.3d 1186, cert. denied, 542 U.S. 919 (2004). See 69 FR 
48792 (August 11, 2004).
    Also on August 11, 2004 (69 FR 48835), EPA proposed to find under 
the CAA that the Imperial area failed to attain the annual \1\ and 24-
hour PM-10 standards by the serious area deadline of December 31, 2001. 
Our proposed finding of failure to attain was based on monitored air 
quality data for the PM-10 NAAQS from January 1999 through December 
2001. A summary of these data was provided in the proposed rule and is 
not reproduced here.
---------------------------------------------------------------------------

    \1\ Effective December 18, 2006, EPA revoked the annual PM-10 
standard. 71 FR 61144 (October 17, 2006). References to the annual 
standard in this proposed rule are for historical purposes only. EPA 
is not taking any regulatory action with regard to this former 
standard.
---------------------------------------------------------------------------

    EPA has the responsibility, pursuant to sections 179(c) and 
188(b)(2) of the Act, of determining within 6 months of the applicable 
attainment date (i.e., June 30, 2002), whether the Imperial area 
attained the PM-10 NAAQS. Because the June 30, 2002 date has passed, 
EPA is required to make that determination as soon as practicable. 
Delaney v. EPA, 898 F.2d 687 (9th Cir. 1990).
    Section 179(c)(1) of the Act provides that attainment 
determinations are to be based upon an area's ``air quality as of

[[Page 70223]]

the attainment date,'' and section 188(b)(2), which is specific to PM-
10, is consistent with that requirement. EPA determines whether an 
area's air quality is meeting the PM-10 NAAQS based upon air quality 
data gathered at monitoring sites in the nonattainment area and entered 
into EPA's Air Quality System (AQS) database. These data are reviewed 
to determine the area's air quality status in accordance with EPA 
regulations at 40 CFR part 50, appendix K.\2\ For details about EPA's 
proposed failure to attain finding, please see the proposed rule.
---------------------------------------------------------------------------

    \2\ Pursuant to appendix K, attainment of the 24-hour PM-10 
NAAQS is achieved when the expected number of exceedances of the 24-
hour NAAQS (150 mg/m\3\) per year at each monitoring site is less 
than or equal to one. A total of three consecutive years of clean 
air quality data is generally necessary to show attainment of the 
24-hour standard for PM-10. A complete year of air quality data, as 
referred to in 40 CFR part 50, appendix K, is comprised of all four 
calendar quarters with each quarter containing data from at least 75 
percent of the scheduled sampling days.
---------------------------------------------------------------------------

II. EPA's Responses to Comments on the Proposed Rule

    EPA received eight comment letters on the proposed finding. 
Summaries of the comments and EPA's responses are set forth below.

1. Retroactive Finding of Failure To Attain Is Unlawful

    The Imperial County Air Pollution Control District (District or 
ICAPCD) claimed that EPA's proposed finding that the Imperial area 
failed to attain the serious area deadline of December 31, 2001, issued 
the same day as the reclassification of the area from moderate to 
serious, constitutes an unlawful and unjust retroactive rulemaking in 
that the area would be at once reclassified and punished for failing to 
meet the requirements of the new classification. The District strongly 
urged EPA to refrain from finalizing any rule that makes a 
nonattainment finding under these circumstances.
    In support of its position that this type of rulemaking is illegal 
under the Administrative Procedure Act (APA), the District cited a 
number of federal court decisions and EPA rulemakings. The District 
believes that these decisions and rulemakings support its position that 
the nonattainment finding could create liabilities and penalties for 
missing long past deadlines associated with serious nonattainment areas 
and/or impose more rigorous requirements than would otherwise be 
justified, e.g., the requirement under CAA section 189(d) to submit a 
revised plan in 12 months rather than the 18 months allowed under 
section 189(b)(2) when a moderate area fails to meet its attainment 
deadline.
    Response: At bottom, the argument that the District makes is that 
if the Imperial area had been reclassified as the CAA envisioned, the 
area would not now be subject to the requirements of section 189(d). In 
other words, EPA would have found that the area failed to attain the 
moderate area deadline of December 31, 1994 well before the serious 
area deadline of December 31, 2001. Consequently, the serious area plan 
for the Imperial area would have been due 18 months from the 
reclassification pursuant to section 189(b)(2) instead of being subject 
to the 12-month deadline in section 189(d). Furthermore, the argument 
goes, if the State had been able to demonstrate that attainment by 2001 
was impracticable the area would have been able to avail itself of the 
attainment date extension provisions of section 188(e),\3\ thereby 
potentially avoiding both the substantive and procedural requirements 
of section 189(d) entirely. Instead, the District argues, EPA's action 
has illegally circumvented the statutory scheme by precluding the area 
from taking advantage of allegedly more lenient submittal and 
substantive requirements.
---------------------------------------------------------------------------

    \3\ Section 188(e) provides for a one-time extension of the 
attainment deadline for serious PM-10 nonattainment areas if certain 
conditions are met. However such an extension cannot extend beyond 
December 31, 2006. Because that date has now passed, a section 
188(e) extension for the Imperial area is unavailable under any 
circumstances. Nevertheless we address in this final rule the 
comments we received relating to section 188(e) insofar as doing so 
enables us to fully respond to those comments. For example, here a 
discussion of section 188(e) is relevant to the District's claim, 
among others, that EPA's action subjects the area to more stringent 
requirements than otherwise would have been imposed.
---------------------------------------------------------------------------

    The cases and EPA actions cited by the District, however, do not 
support its position. With respect to the Imperial PM-10 nonattainment 
area, EPA reclassified it from moderate to serious and immediately 
proposed to find that the area had failed to attain the serious area 
deadline. The result of these actions is that the State will be 
required to submit in the future a plan for the area under CAA section 
189(d). In contrast, in Sierra Club v. EPA, 356 F.3d 296 (D.C. Cir. 
2004), EPA set a prospective submittal date pursuant to CAA section 
182(i) upon reclassification of the Washington, D.C. ozone 
nonattainment area from serious to severe because the severe area plan 
submittal deadline in the CAA had already passed. Similarly, in several 
other ozone reclassification actions, EPA also determined that where a 
submittal date had passed and was therefore impossible to meet, the 
Agency could administratively establish a later date. EPA's reasoning 
in these cases was that to do otherwise would have subjected these 
areas to an immediate finding of failure to submit and the immediate 
initiation of sanctions clocks.\4\
---------------------------------------------------------------------------

    \4\ See Washington, DC, 68 FR 3410, 3413 (January 24, 2003). See 
also Santa Barbara, California, 62 FR 65025 (December 10, 1997); 
Phoenix, Arizona, 62 FR 60001 (November 6, 1997); and Dallas-Fort 
Worth, Texas, 63 FR 8128 (February 18, 1998).
---------------------------------------------------------------------------

    In the case of Washington, DC, EPA stated in its final rule that 
``the Administrative Procedure Act * * * requires that before a rule 
takes effect, persons affected will have advance notification of its 
requirements. A failure to meet an obligation, especially one 
accompanied by sanctions, cannot occur in advance of the imposition of 
that obligation.'' 68 FR at 3414. The Court of Appeals agreed, quoting 
EPA, ``that adopting petitioner's suggestion [that EPA retain the 
original submittal deadlines] `would give the reclassification 
retroactive effect by holding the States in default of their submission 
obligations before the events necessary to trigger that obligation 
(reclassification) * * * occurred.' '' 356 F.3d at 309.
    In Sierra Club v. Whitman, 130 F.Supp. 2d. 78 (D.D.C. 2001), cited 
by the D.C. Circuit in Sierra Club v. EPA above and the District in its 
comment letter, and affirmed in Sierra Club v. Whitman, 285 F.3d 63, 68 
(D.C. Cir 2002), the plaintiffs sought to compel EPA to backdate a 
nonattainment determination to the date on which the Agency was 
statutorily required to make such a determination. In affirming the 
District Court's denial of the relief sought, the D.C. Circuit opined 
that:

    Although EPA failed to make the nonattainment determination 
within the statutory time frame, Sierra Club's proposed solution 
only makes the matter worse. Retroactive relief would likely impose 
large costs on the States, which would face fines and suits for not 
implementing air pollution prevention plans in 1997, even though 
they were not on notice at the time.

Id. at 68.\5\
---------------------------------------------------------------------------

    \5\ The District also cites Georgetown University Hospital v. 
Bowen in which a federal agency reissued a procedurally defective 
rule and gave it retroactive effect. Both the D.C. Circuit and the 
U.S. Supreme Court invalidated the action, finding, among other 
things, that under the APA legislative rules must be given future 
effect only. 821 F.2d 759 (D.C. Cir. 1987); 488 U.S. 204 (1988).
---------------------------------------------------------------------------

    In the instant case, however, by giving the State the benefit of a 
future plan submittal deadline for the Imperial area, EPA's action is 
consistent with the holdings of the cases and with the EPA regulatory 
actions cited by the District.

[[Page 70224]]

Under section 189(d), the State must submit a plan revision for the 
Imperial area ``within 12 months after the applicable attainment date. 
* * *'' That date was December 31, 2002. However, because, at the time 
of EPA's proposed finding of failure to attain, that date had already 
passed, EPA proposed that the section 189(d) plan revision be due 
``within one year of publication of a final finding of nonattainment 
pursuant to CAA section 179(d).'' 69 FR at 48837. Thus, rather than 
invoking the long past submittal deadline in section 189(d), EPA looked 
to another provision of the Act to supply a prospective deadline. In 
doing so, EPA alleviated the problem of imposing a retroactive deadline 
without imposing immediate sanctions.
    While it is true, as the District points out, that a serious PM-10 
area proceeding initially under section 189(b) instead of section 
189(d) would in theory have had more time to submit a plan (18 rather 
than 12 months), in both instances the submittal deadlines are 
prospective and not retroactive. Furthermore, as we point out in our 
response to comment 3 below, the section 189(d) plan that the 
State is now required to submit is actually due later than the serious 
area plan would have been due under the scenario preferred by the 
District. Therefore, the retroactive penalty the District complains of 
with respect to the plan submittal deadline simply does not exist.
    Moreover, while it is also true that, as a result of EPA's 
nonattainment finding, the Imperial area must comply with the 
substantive requirements of CAA section 189(d) instead of those of 
section 188(e), this consequence cannot be construed as ``punishment.'' 
Under both sections 189(d) and 188(e), implementation of best available 
control measures (BACM) under section 189(b)(1) and attainment of the 
PM-10 standards as expeditiously as practicable are required. In 
addition, while the respective substantive requirements of sections 
188(e) and 189(d) are different, neither are necessarily more onerous 
than the other. See Corrected Brief of Respondent EPA, pages 40-42, in 
Association of Irritated Residents, et al. v. EPA, 423 F.3d 989 (9th 
Cir. 2005). Only if the State fails to submit the new plan in the 
future could sanctions come into play. Thus the substantive 
consequences here of EPA's nonattainment finding are not in fact 
retroactive, nor do they impose a penalty.
    For the reasons discussed in its proposed finding, EPA is legally 
compelled to finalize the nonattainment finding with the result that 
section 189(d) applies to the Imperial area. The section 189(d) plan is 
due within one year of publication of this final finding of 
nonattainment.\6\
---------------------------------------------------------------------------

    \6\ Our rationale for this plan submittal deadline is discussed 
in the proposed rule. See at 69 FR at 48837.
---------------------------------------------------------------------------

2. Waive the Attainment Date and Related Requirements

    Several commenters suggested that instead of finding that the 
Imperial area failed to attain the serious area attainment date, EPA 
should waive that date and the related submittal requirements and 
penalties to reduce the burden of the Agency's action on Imperial 
County. While two commenters who suggested this approach did not 
describe EPA's legal authority to grant a waiver, one commenter, the 
District, cited CAA section 188(f) as providing EPA with the authority 
to waive a specific attainment date where the Agency determines that 
nonanthropogenic sources contribute significantly to violations in the 
area and to waive any requirement applicable to any serious PM-10 area 
where anthropogenic sources do not contribute significantly to 
violations. The District stated that in the Imperial area, dry soil 
from vast barren lands are entrained by high winds producing an impact 
on the monitors. The District asserted that EPA has determined that 
this type of dust raised by high wind events constitutes a 
nonanthropogenic source of PM-10 pursuant to section 188(f) and, citing 
a May 30, 1996 EPA memorandum, that monitoring data impacted by such 
events may be excluded from consideration in attainment decisions.
    Response: Congress recognized in the Clean Air Act that there may 
be areas where the NAAQS may never be attained because of PM-10 
emissions from nonanthropogenic sources, and that the imposition in 
such areas of certain state planning requirements may not be justified. 
Therefore, under section 188(f), Congress provided a means for EPA to 
waive a specific date for attainment and certain control and planning 
requirements when specified conditions are met in a nonattainment area. 
Section 188(f) provides two types of waivers. First, EPA may, on a 
case-by-case basis, waive any PM-10 nonattainment planning requirement 
applicable to any serious nonattainment area where EPA determines that 
anthropogenic sources of PM-10 do not contribute significantly to 
violation of the standards in the area. Second, EPA may waive a 
specific date for attainment of the standards where EPA determines that 
nonanthropogenic sources of PM-10 contribute significantly to the 
violation of the standards in the area.\7\ In the Addendum, EPA set 
forth threshold levels for determining whether areas qualify for 
waivers under section 188(f). Addendum at 42004-42005.
---------------------------------------------------------------------------

    \7\ 59 FR 41998 (August 16, 1994) (``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'' (Addendum)).
---------------------------------------------------------------------------

    In its comment letter, the District included and discussed a report 
\8\ that it characterized as showing that windblown dust from barren 
lands represents over 92% or 792 tons per day (tpd) of the total PM-10 
inventory in Imperial County. The District maintained that ``high winds 
frequently entrain large amounts of this dry soil into the ambient air, 
producing a documented impact on County monitors.'' As a result of 
comments provided to the District by EPA and the California Air 
Resources Board (CARB), the Windblown Dust Study was revised in 
2005.\9\ The Revised Study concluded, among other things, that there 
are 157 tpd of fugitive dust emissions from barren lands. Revised Study 
at A-15. The Windblown Dust Study and the Revised Study are primarily 
inventories of windblown dust emissions in Imperial County. These 
documents do not address the requirements of section 188(f) and EPA's 
guidance on that provision. Therefore they do not provide sufficient 
analysis and documentation to support a waiver of either the December 
31, 2001 attainment deadline or any of the serious area requirements. 
However, the section 188(f) waivers, if the conditions for them can be 
met, are available to the State in the context of the section 189(d) 
serious area plan.\10\
---------------------------------------------------------------------------

    \8\ Development of a Wind Blown Fugitive Dust Model and 
Inventory for Imperial County, California, ENVIRON International 
Corporation and Eastern Research Group, 2004 (Wind Blown Dust 
Study).
    \9\ Technical Memorandum: Latest Revisions of the Windblown Dust 
Study, ENVIRON International Corporation, September 20, 2005 
(Revised Study), attached as Appendix A to Draft Final Technical 
Memorandum, Regulation VIII BACM Analysis, ENVIRON, October 2005 
(Regulation VIII BACM Analysis).
    \10\ With respect to the section 188(f) waiver of serious area 
requirements, EPA cautions that while the District in its comment 
appears to characterize the predominant issue in the Imperial area 
to be nonanthropogenic sources, the District has identified 
anthropogenic PM-10 source categories that contribute significantly 
to peak 24-hour average PM-10 values in the area. See Regulation 
VIII BACM Analysis.
---------------------------------------------------------------------------

    The May 30, 1996 memorandum cited by the District is entitled 
``Areas Affected by PM-10 Natural Events'' and

[[Page 70225]]

is from Mary Nichols, Assistant Administrator for Air and Radiation to 
EPA Regional Division Directors (Natural Events Policy or NEP). This 
policy provides, among other things, that EPA believes it is 
appropriate to exclude air quality data attributable to uncontrollable 
natural events from the Agency's decisions regarding an area's 
attainment status. NEP at p. 2.\11\ In the case of high winds, under 
the NEP EPA considers ambient PM-10 concentrations due to dust raised 
by unusually high winds as due to uncontrollable natural events (and 
thus excludable from attainment determinations) if either (1) the dust 
originated from nonanthropogenic sources or (2) the dust originated 
from anthropogenic sources controlled with BACM. NEP at pp. 4-5.
---------------------------------------------------------------------------

    \11\ On March 22, 2007, EPA issued a final rule, intended to 
replace the NEP, governing the review and handling of air quality 
data influenced by exceptional events. 72 FR 13560. The rule became 
effective on May 21, 2007 and is codified at 40 CFR 50.1, 50.14 and 
51.920. 72 FR 13560, 13580-13581. However, as discussed below, the 
1999-2001 data relevant to this final action are not eligible for 
exclusion under the transition policy for the rule because the State 
did not meet the provisions of the NEP that were applicable at the 
time of the exceedances. See 72 FR 49046, 49048 (August 27, 2007).
---------------------------------------------------------------------------

    The NEP sets forth a process for declaring an exceedance as due to 
natural events and for documenting a natural events claim. NEP at pp. 
7-10. Where a state believes that natural events caused the NAAQS 
exceedances it must establish through supporting documentation a clear 
causal relationship between the exceedance and the natural event. The 
amount and type of documentation must be sufficient to demonstrate that 
the natural event occurred and that it impacted a particular monitoring 
site in such a way as to cause the PM-10 concentrations measured. The 
documentation also should provide evidence that, absent the natural 
event emissions, concentrations at the monitoring site would not cause 
an exceedance.
    Under the NEP, when air quality data affected by a natural event 
are submitted to EPA for inclusion into the AIRS database,\12\ the 
state is to request that a flag be placed on the data to indicate that 
a natural event was involved. NEP at 8-9. A number of exceedances in 
1999-2001 in the Imperial area were flagged as high wind and other 
natural events. Under the NEP, the documentation supporting a natural 
events flag was required to be submitted no later than 180 days from 
the time the exceedance occurred. However no documentation with respect 
to the 1999-2001 exceedances was submitted to EPA.\13\ Because the 
State did not comply with the provisions of the NEP, the flagged 1999-
2001 data cannot be excluded as affected by natural events from EPA's 
determination of whether the Imperial area attained the PM-10 standard 
by December 31, 2001.
---------------------------------------------------------------------------

    \12\ The AIRS database is the predecessor to the AQS database.
    \13\ Note that even if adequate documentation had been submitted 
for the flagged events, the Imperial area would not have attained 
the PM-10 standard because of the number of unflagged exceedances. 
See ``Imperial valley PM10 Exceedances 1999-2001,'' Excel 
Spreadsheet, Bob Pallarino, EPA.
---------------------------------------------------------------------------

3. EPA Should Grant a 5-Year Extension To Allow More Time To Develop 
Plan

    Several commenters opposing our proposed action stated that our 
proposed time frame for the development and submittal of a serious area 
PM-10 plan, including a CAA section 189(d) plan, was too short, and 
that EPA should grant a 5-year extension of the attainment date for the 
Imperial area to provide time for preparation, submittal and 
consideration of an attainment demonstration. Of the commenters making 
this request, only the District cited any legal authority for a 5-year 
extension: ``* * * The District requests that EPA withdraw its proposed 
12-month deadline for the County's serious area SIP submittal * * * and 
instead grant a five-year extension under Section 188(e) to allow 
sufficient time for preparation, submittal and consideration of the 
County's final PM-10 attainment demonstration.'' The District 
characterized the 12-month plan submittal schedule as ``abbreviated'' 
and as a ``penalty.'' One of the commenters suggesting the 5-year 
extension approach urged EPA to utilize our discretion under the CAA to 
extend the time allowed to prepare a plan so that unwarranted 
imposition of additional measures could be avoided.
    Another commenter stated that although a preferable outcome would 
have been an extension of the attainment date, it was clear that no 
attainment date extension was in place, and thus, the finding of 
failure to attain by EPA was mandatory under the Clean Air Act with the 
one-year deadline for an attainment demonstration.
    Response: CAA section 188(e) provides that, upon application by a 
state, EPA may extend the attainment deadline for a serious PM-10 
nonattainment area no more than 5 years beyond, in this case, December 
31, 2001, if: (a) Attainment by that date would be impracticable; (b) 
the state has complied with all requirements and commitments in the 
implementation plan for the area; and (c) the state demonstrates that 
the plan contains the most stringent measures (MSM) in the plan of any 
state or are achieved in practice in any state, and can feasibly be 
implemented in the area. The state must submit at the time of its 
extension application a demonstration of attainment by the most 
expeditious alternative date practicable.
    As stated above, the Imperial area is no longer eligible for an 
attainment date extension under section 188(e) because that extension 
cannot extend beyond 2006. Regardless, the attainment date extension 
provided for in section 188(e) does not relate in any way to the 
submittal date for a serious area plan. Rather, under the Act, 
submittal dates for serious area PM-10 plans are initially governed by 
subpart 4 of part D of the CAA, i.e, either by section 189(b)(2) or 
189(d). As explained in the proposed rule, EPA believes that section 
189(d) applies to the Imperial area's situation. 69 FR at 48837. In the 
first instance, EPA looked to this provision, which applies exclusively 
to PM-10 nonattainment areas, for the applicable submittal date for the 
Imperial area's section 189(d) plan. Because the deadline for plan 
submittal under that section, December 31, 2002 has passed, EPA looked 
to subpart 1 of part D of the CAA in order to determine Congressional 
intent. Section 179(d) requires submittal of a plan revision within one 
year after EPA publishes a notice of a finding of failure to attain.
    In case of the Imperial area, the application of the deadline 
provided for in section 179(d) has already resulted in a significantly 
longer time for submittal of the serious area plan than the deadline 
that would otherwise have applied. If the Imperial area had been 
reclassified to serious prior to the end of 2001, it would have been 
subject to section 189(b)(2). As such, the deadline for submittal of a 
serious area plan would be 18 months from the date of the 
reclassification. The effective date of the reclassification here was 
September 10, 2004; therefore, the alternative to the due date provided 
in section 179(d) would result in the plan having been due by March 10, 
2006. Instead, the area's serious area plan is not due until one year 
from publication of the Federal Register notice of this action. EPA 
knows of no legal theory that would allow the Agency to provide the 5 
years apparently sought by the commenters

[[Page 70226]]

for the development and submittal of a serious area PM-10 plan.\14\
---------------------------------------------------------------------------

    \14\ We note that subpart 4 of part D of title I which contains 
the Act's provisions specific to PM-10 does not have a provision 
that is analogous to section 182(i) which grants EPA considerable 
latitude to adjust submittal and other schedules upon an ozone 
area's reclassification. See also section 187(f).
---------------------------------------------------------------------------

4. Economic Hardship

    A number of commenters claimed that an EPA finding of failure to 
attain would result in adverse economic consequences for Imperial 
County. One commenter stated that the County has one of the poorest 
economies in the State, that EPA's finding will place an undue hardship 
on an economy that is already on the brink of breaking, and that the 
Agency should take economic justice into account. Another commenter 
suggested that another set of government-imposed regulations would 
place an unnecessary financial hardship on area companies and could 
possibly disrupt farming operations. Another commenter cited the 
County's high unemployment rate that would increase under severe 
emission control requirements that undermine an agriculture-dependent 
economy. The commenters attributed these perceived hardships to various 
factors they believe to be related to a nonattainment finding: the five 
percent and BACM requirements applicable to serious PM-10 attainment 
areas; the inability of the County to control Mexican emissions; and 
the prevalence of high wind natural events. We address each of these 
factors below.
A. Five Percent and BACM Requirements
    A number of commenters opposed to our proposed rule requested that 
EPA reduce or remove entirely the proposed requirement that Imperial 
County submit a plan that achieves at least 5 percent annual reductions 
in PM-10 or PM-10 precursor emissions as required by CAA section 
189(d). Some commenters stated that this requirement was not feasible 
or was too burdensome for Imperial County. Another commenter attributed 
severe economic consequences to the serious area plan requirements for 
expeditious implementation of BACM.
    Response: As stated above and in the proposed rule, EPA is legally 
compelled to finalize the nonattainment finding with the result that 
the 5 percent requirement of section 189(d) applies. Under section 
189(b)(1)(B), the serious area PM-10 plan for the Imperial area is 
required to provide for the expeditious implementation of BACM. This 
requirement applies as a result of the Imperial area's reclassification 
to serious which was mandated by the U.S. Court of Appeals for the 
Ninth Circuit in Sierra Club v. U.S. Environmental Protection Agency, 
et al., 346 F.3d 955 (9th Cir. 2003), amended 352 F.3d 1186, cert. 
denied, 542 U.S. 919 (2004). Therefore BACM would have to be 
implemented in the Imperial area even in the absence of EPA's finding 
that the area failed to attain the PM-10 standards by the end of 2001.
    EPA has defined BACM as: ``* * * The maximum degree of emissions 
reduction of PM-10 and PM-10 precursors from a source * * * which is 
determined on a case-by-case basis, taking into account energy, 
environmental, and economic impacts and other costs, to be achievable 
for such source through application of production processes and 
available methods, systems, and techniques for control of each such 
pollutant.'' Addendum at 42010. Therefore, while EPA cannot take into 
account the general economy of a nonattainment area in determining what 
statutory requirements apply in a serious nonattainment area, it can 
consider the cost of reducing emissions from a particular source 
category and costs incurred by similar sources that have implemented 
emission reductions. In addition, where the economic feasibility of a 
measure depends on public funding, an appropriate consideration is past 
funding of similar activities as well as availability of funding 
sources. Id. at 42013. Nevertheless, the CAA still requires that the 
State submit a plan for the Imperial area to, among other things, 
attain the PM-10 NAAQS as expeditiously as practicable. Moreover, there 
are economic benefits to attaining the NAAQS.
B. Mexican Emissions
    Several commenters felt that the economic hardship was a result of 
the failure of EPA, in its proposed action, to consider the fact that 
significant amounts of particulate matter air pollution in Imperial 
County emanate from the large and growing city of Mexicali, Mexico. 
Many commenters opposing our proposed rule stated that EPA ignored the 
fact that emissions from Mexico are one of the reasons that poor air 
quality exists in Imperial County. Some commenters pointed out that in 
the past, EPA has agreed that Imperial County would have attained the 
PM-10 NAAQS but for emissions from Mexico (e.g., EPA's approval of CAA 
section 179B demonstration; 66 FR 53106, October 2001). Additionally, 
the commenters claimed that the PM-10 plan needs to include 
consideration of how emissions from Mexico impact the attainment of the 
PM-10 NAAQS in Imperial County.
    Response: As explained in our proposed rule, EPA has the 
responsibility, pursuant to CAA sections 179(c) and 188(b)(2), to 
determine within 6 months of the applicable attainment date whether a 
PM-10 nonattainment area attained the 24-hour NAAQS. Section 179(c)(1) 
of the Act provides that determinations of failure to attain are to be 
based upon an area's ``air quality as of the attainment date,'' and 
section 188(b)(2) is consistent with this requirement. EPA determines 
whether an area's air quality is meeting the PM-10 NAAQS based upon air 
quality data gathered at monitoring sites in the nonattainment area and 
entered into EPA's AQS database. These data are reviewed to determine 
the area's air quality status in accordance with EPA regulations at 40 
CFR part 50, appendix K. 69 FR at 48836. Thus, neither the CAA nor EPA 
regulations authorize the Agency to consider the economic circumstances 
of an area in making a finding of attainment or nonattainment; the 
determination is to be made solely on the basis of the ambient air 
quality in the area. Similarly, neither the CAA nor EPA regulations 
allow EPA to ignore the actual attainment status of an area based on 
the influx of a pollutant from another country. The attainment status 
is intended to reflect the actual ambient pollutant levels.
    Section 179B(d) of the Act does allow a moderate PM-10 
nonattainment area to avoid a reclassification to serious if a state 
establishes to the satisfaction of EPA that such an area would have 
attained but for emissions emanating from outside the United States. 
EPA did approve such a demonstration for the Imperial area but that 
approval was overturned by the Ninth Circuit in Sierra Club. See the 
discussion of this case and its aftermath, 69 FR at 48835. The State 
can, however, take the effect of Mexican emissions into account in 
addressing the CAA section 189(d) attainment demonstration requirement. 
See CAA section 179B(a) and the Addendum at 42000-42002. In this 
regard, note that section 179B does not provide authority to exclude 
monitoring data influenced by international transport from regulatory 
determinations related to attainment and nonattainment. Thus, even if 
EPA approves a section 179B ``but for'' demonstration for an area, the 
area would continue to be designated as nonattainment and subject to 
the applicable requirements, including nonattainment new source review,

[[Page 70227]]

nonattainment conformity, and other measures prescribed for 
nonattainment areas by the CAA.
C. High Wind Events
    Several commenters felt that the economic hardship was a result of 
the failure of EPA's proposal to consider the fact that significant 
amounts of particulate matter air pollution in Imperial County are the 
result of high wind natural events. To support their claims, commenters 
cited the Wind Blown Dust Study.
    Response: As discussed in our response to comment 2, EPA 
will under certain circumstances exclude from attainment determinations 
ambient PM-10 concentrations due to dust raised by unusually high 
winds. However, the State did not provide documentation to support the 
flagged high wind events from 1999-2001 and the data are therefore not 
eligible for exclusion here.\15\ Moreover, as noted previously, even if 
the State had met the provisions of EPA's NEP that were applicable at 
the time of the relevant exceedances, the Imperial area would not have 
attained the PM-10 standard by December 31, 2001. The State can, 
however, if it meets the requirements of EPA's exceptional events rule, 
take future unusually high winds into account in developing its CAA 
section 189(d) attainment demonstration. See 72 FR at 13565-13566 and 
13576-13577.
---------------------------------------------------------------------------

    \15\ See footnote 11.
---------------------------------------------------------------------------

5. Governmental Entities Should Work Together

    One commenter urged EPA to immediately initiate a coordinated 
effort involving the federal government, Mexican government 
counterparts and County officials to develop a federally funded 
international plan to reduce emissions. Another commenter requested 
that, given the short time provided in the CAA to develop and submit a 
plan in this case, and the need for the plan to consider international 
transport, and perhaps, nonanthropogenic sources, EPA be involved early 
in the plan development to ensure a timely plan submittal. One 
commenter also stated that EPA needs to work with other governmental 
agencies to implement reasonable policies for controlling PM-10 
pollution in the Imperial area.
    Response: EPA agrees with the commenters who encourage governmental 
entities to work together to address air pollution from Mexicali to 
Imperial County. Reducing air pollution anywhere along the U.S./Mexico 
border requires binational cooperation and coordination. Since 1983, 
EPA has been working with the Mexican Government and other stakeholders 
to reduce air pollution along the border region. Pursuant to the 1983 
La Paz Agreement, the U.S. and Mexico developed the Border XXI Program 
and more recently its successor, the Border 2012 U.S.-Mexico 
Environmental Program. Through these programs, EPA and Mexico have 
worked together with border tribal, state, and local governments, as 
well as academia and the general public, to improve our understanding 
of the relative impacts of contributing international sources of air 
pollution and have developed and implemented cost-effective control 
strategies to reduce those emissions.
    EPA continues to implement the Border 2012 regionally-based border 
program in the Mexicali-Imperial area. We are active participants in 
the Imperial/Mexicali Air Quality Task Force which provides a forum for 
the federal, state, and local governments to discuss and analyze with 
community stakeholders how to improve air quality in the binational 
region. EPA continues to fund numerous projects that study and manage 
air pollution in various crossborder airsheds like the Imperial/
Mexicali area. In addition to supporting the District's work to develop 
its PM-10 plan, EPA also provides direct funding for the Mexicali-
Imperial Air Quality Task Force for binational public forums to discuss 
the air quality of the Mexicali-Imperial region, and to carry out 
projects, including projects to monitor air quality (especially in 
Mexico), to demonstrate retrofit equipment technologies for diesel 
trucks, and to provide real time air quality information to residents 
of Imperial County.
    Regarding the comment that EPA be involved early in the development 
of the air quality plan, we intend to provide guidance and assistance 
to the District and the State to support a technically sound and timely 
submittal.
    Lastly, regarding the need to develop reasonable policies, EPA has 
worked closely with the State and District to improve the PM-10 
emissions inventory for the Imperial area, to develop a natural events 
action plan (NEAP),\16\ and to develop rules to control certain sources 
of fugitive dust in the nonattainment area.
---------------------------------------------------------------------------

    \16\ Under EPA's NEP, if natural events caused ambient 
concentrations of PM-10 that exceeded the NAAQS in an area, the 
State was responsible for developing a NEAP meeting certain 
specified requirements to address future events. NEP at 5-8. Under 
EPA's exceptional events rule NEAPs are not required, although 
similar requirements apply under 40 CFR 51.920. 72 FR at 13581.
---------------------------------------------------------------------------

6. Finding of Failure To Attain Is Mandatory Under the CAA and Fully 
Supported by Ambient Monitoring Data

    One commenter stated that the proposal correctly reflects that the 
Imperial Valley is a serious PM-10 nonattainment area that has missed 
its attainment date and does not have an extension of the attainment 
date in place. The same commenter stated further that EPA correctly 
assessed that areas in situations like this have one-year to submit a 
plan including a 5 percent plan. Another commenter who agreed with 
EPA's proposed rule stated that EPA's proposal had omitted some 
statutory requirements (e.g., BACM implemented expeditiously, major 
source cutoffs), and reserved the right to comment further on EPA's 
proposed action on the PM-10 SIP.
    Response: EPA agrees with comments supporting the proposal. We did 
not include a comprehensive list of the CAA requirements applicable to 
the Imperial area, but expect the plan to address all of them. See 
Section III below.

7. PM-10 Is Not a Regulated Pollutant

    One commenter, California Cattlemen's Association (CCA), notes that 
the U.S. Court of Appeals for the District of Columbia Circuit in 
American Trucking Ass'n v. Browner vacated EPA's 1997 PM-10 standard 
because it included both coarse and fine PM and therefore was 
``inherently confounded.'' CCA claims that the 1987 standard suffers 
from the same defect. Therefore, CCA argues, there is no 1987 standard 
and, as a result, the Imperial area cannot be out of compliance with 
it. CCA states that if EPA's response is that the 1987 standard was re-
instituted in a final rule (65 FR 80776; December 22, 2000), there was 
not sufficient notice as that rule was noticed within a ruling for Ada 
County, Idaho (65 FR 39321; June 26, 2000). Also, CCA believes that 
because the same problem exists with the 1987 standard as the 1997 
standard, simply reinstating the old standard was not the court's 
intention. Finally, CCA discusses EPA's then current process of 
revising the PM NAAQS and finds, among other things, similar 
confounding problems in measurements contained in studies that EPA is 
using to consider setting its new NAAQS.
    Response: In a portion of American Trucking Ass'ns v. EPA, 175 F. 
3d 1027, not later reversed by the Supreme Court, the D.C. Circuit held 
that, although there was ``ample support'' for EPA's decision to 
regulate coarse-fraction particles, EPA had not provided a

[[Page 70228]]

reasonable justification for its choice of PM-10 as an indicator for 
coarse particles, especially given that PM-10 includes not only coarse 
particles but PM fine as well. 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 PM-10 standards to the 1997 PM-10 standards. 65 FR 
80776. EPA proposed this deletion in the context of a proposed rule to 
rescind a finding, made prior to the D.C. Circuit's vacatur of the 1997 
standards, that the 1987 PM-10 standards no longer applied in Ada 
County, Idaho. As EPA explained in the proposed rule, the Ada County 
finding was based on the existence of the 1997 standards as well as the 
transition policy. Because the court vacated those standards, leaving 
in place the finding would have resulted in no federal protection from 
high levels of coarse particulate matter pollution. Finding that result 
untenable, EPA concluded that it was appropriate to restore the pre-
existing PM-10 standards with respect to Ada County. 65 FR at 39323. As 
is clear from the final rule, however, the 1987 standards were never 
revoked with respect to the rest of the country. Therefore, although 
EPA deleted 40 CFR 50.6(d)(as required by the mandate of ATA I), the 
pre-existing NAAQS continue to apply. 65 FR at 80777. If CCA believes 
that insufficient notice was provided in connection with this final 
action, it was required under CAA section 307(b)(1) to file a petition 
for review of that action in the U.S. Court of Appeals within 60 days 
of December 22, 2000. CCA did not do so and is therefore foreclosed 
from raising this issue now.
    Moreover, to the extent that CCA raises issues with respect to the 
pre-existing 1987 PM-10 standards, we note that those standards were 
upheld in Natural Resources Defense Council, Inc., et al. v. EPA, et 
al., 902 F.2d 962 (D.C. Cir. 1990). In any case, the 1987 standards do 
not use PM-10 as an indicator exclusively for coarse particles, but 
rather are intended to address both PM-2.5 and PM-10-2.5, i.e. both 
fine and coarse particles. 52 FR 24634, 24639 (July 1, 1987). Thus, any 
concerns that PM-10 may be an inappropriate indicator for coarse 
particles exclusively are inapplicable to the 1987 standard.
    When CCA submitted its comment letter in 2004, EPA was in the 
process of developing proposed regulations to again address thoracic 
coarse particles. The Agency subsequently finalized such regulations in 
2006. 71 FR 61144 (October 17, 2006). CCA's concerns regarding new 
standards for PM-10, including putative confounding problems, were 
properly raised in the context of that rulemaking. In fact, challenges 
to the use of PM-10 as an indicator for coarse particles, as well as 
challenges to the scientific bases for the 2006 final rule have been 
raised by various petitioners in the pending D.C. Circuit cases 
(American Farm Bureau Fed. et al. v. EPA and consolidated cases) 
challenging the rule. CCA can, and is, pursuing its concerns in that 
forum.

III. Final Action

    EPA is finding that the Imperial area failed to attain the 24-hour 
PM-10 NAAQS by the December 31, 2001 attainment deadline and is 
requiring the State to submit under section 189(d) of the Act ``plan 
revisions which provide for attainment of the PM-10 air quality 
standards and, from the date of such submission until attainment, for 
an annual reduction in PM-10 or PM-10 precursor emissions within the 
area of not less than 5 percent of the amount of such emissions as 
reported in the most recent inventory prepared for such area.'' The 
plan must be submitted to EPA no later than one year from the 
publication of this final rule.
    The pollutant-specific requirements for moderate and serious PM-10 
nonattainment areas are found in section 189 of the CAA, and the 
general planning and control requirements for nonattainment plans are 
found in CAA sections 110 and 172. In addition to the attainment 
demonstration and 5 percent annual reductions requirements referenced 
above, the PM-10 plan for the Imperial area must include the following 
elements: \17\
---------------------------------------------------------------------------

    \17\ For a brief discussion of these requirements, see our 
proposed approval of the San Joaquin Valley PM-10 plan at 69 FR 
5413, 5414 (February 4, 2004). See also the final rule at 69 FR 
30006 (May 26, 2004).
---------------------------------------------------------------------------

     Transportation conformity and motor vehicle emissions 
budgets;
     Emissions inventories;
     Best available control measures for significant sources of 
PM-10;
     Reasonably available control measures for significant 
sources of PM-10;
     Control requirements applicable to major stationary 
sources of PM-10 precursors pursuant to section 189(e); and
     Reasonable further progress and quantitative milestones.
    The District must also revise its new source review (NSR) rule to 
reflect the serious area definitions for major new sources in CAA 
section 189(b)(3) and must make any changes in its Title V operating 
permits program necessary to reflect the change in the major source 
threshold from 100 tpy for moderate areas to 70 tpy for serious areas. 
Revisions to the NSR and Title V rules must also be submitted no later 
than one year from the publication of this final rule.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
final 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 final 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 67249, 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. Executive Order 12898 
establishes a Federal policy for incorporating environmental justice 
into Federal agency actions by directing agencies to identify and 
address, as appropriate, disproportionately high and adverse

[[Page 70229]]

human health or environmental effects of their programs, policies, and 
activities on minority and low-income populations. Today's action 
involves determinations based on air quality considerations. It will 
not have disproportionately high and adverse effects on any communities 
in the area, including minority and low-income communities. 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.).
    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 February 11, 2008. 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 et seq.

    Dated: November 30, 2007.
Laura Yoshii,
Acting Regional Administrator, Region IX.
 [FR Doc. E7-23943 Filed 12-10-07; 8:45 am]

BILLING CODE 6560-50-P
