Clean Air Act Reclassification; Wallula, Washington Particulate
Matter (PM10) Nonattainment Area
Related Material
[Federal Register: November 16, 2000 (Volume 65, Number 222)]
[Proposed Rules]
[Page 69275-69279]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16no00-12]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[Docket WA-00-01; FRL-6902-6]
Clean Air Act Reclassification; Wallula, Washington Particulate
Matter (PM10) Nonattainment Area
AGENCY: EPA.
ACTION: Proposed rule.
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SUMMARY: EPA proposes to determine that the Wallula nonattainment area
has not attained the National Ambient Air Quality Standards for
particulate matter with an aerodynamic diameter of less than or equal
to 10 microns (PM10) by the attainment date of December 31,
1997, as required by the Clean Air Act. EPA's proposed finding is based
on EPA's review of monitored air quality data reported for the years
1995 through 1999. If EPA takes final action on this proposal, the
Wallula PM10
[[Page 69276]]
nonattainment area will be reclassified by operation of law as a
serious PM10 nonattainment area.
DATES: Comments on this proposal must be received in writing by
December 1, 2000.
ADDRESSES: Submit written comments to Donna Deneen, EPA, Region 10,
Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington
98101. You may view documents supporting this action during normal
business hours at the following location: EPA, Office of Air Quality
(OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101.
FOR FURTHER INFORMATION CONTACT: Donna Deneen, EPA Region 10, Office of
Air Quality, at (206) 553-6706.
SUPPLEMENTARY INFORMATION: The supplementary information is organized
as follows:
I. What action are we taking?
II. What is the background for this action?
III. How does EPA determine whether an area has attained the
standard by the attainment date?
IV. What information supports EPA's finding that the Wallula area
has not attained the PM10 standard by the attainment
date?
V. Does the Wallula area qualify for a permanent waiver of the
December 31, 1997 attainment date?
VI. What are the implications of this proposed finding?
VII. Administrative Requirements
A. Executive Order 12866
B. Executive Order 13045
C. Executive Order 13084
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform Act
F. Executive Order 13132
G. National Technology Transfer and Advancement Act
I. What Action Are We Taking?
In this action, we are proposing to find that the Wallula
nonattainment area has not attained the National Ambient Air Quality
Standards (NAAQS) for particulate matter with an aerodynamic diameter
of less than or equal to 10 microns (PM10) by the attainment
date of December 31, 1997, as required by the Clean Air Act. \1\ This
proposed finding is based on EPA's review of monitored PM10
air quality data reported for the years 1995 through 1999, inclusive.
If EPA takes final action on this proposal, the Wallula PM10
nonattainment area will be reclassified by operation of law as a
serious PM10 nonattainment area.
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\1\ On July 18, 1997, EPA promulgated revised and new standards
for PM10 and PM2.5 (62 FR 38651). The U.S.
Court of Appeals for the D.C. Circuit in American Trucking Assoc.,
Inc., et al. v. USEPA, 175 F.3d 1027 (D.C. Cir. 1999), issued an
opinion that, among other things, vacated the new standards for
PM10 that were published on July 18, 1997, and became
effective September 16, 1997. However, the PM10 standards
promulgated on July 1, 1987, were not an issue in this litigation,
and the Court's decision does not affect the applicability of those
standards in the Wallula area. Codification of those standards
continue to be recorded at 40 CFR 50.6. Today's proposed action
relates only to the CAA requirements concerning the PM10
standards as originally promulgated in 1987.
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II. What is the Background for This Action?
The Wallula area was designated nonattainment for PM10
and classified as moderate under sections 107(d)(4)(B) and 188(a) of
the Clean Air Act upon enactment of the Clean Air Act Amendments of
1990 (Act or CAA). \2\ See 40 CFR 81.348 (PM10 Initial
Nonattainment Areas); see also 56 FR 56694 (November 6, 1991). Under
subsections 188(a) and (c)(1) of the Act, all initial moderate
PM10 nonattainment areas had the same applicable attainment
date of December 31, 1994.
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\2\ The 1990 Amendments to the CAA made significant changes to
the CAA. See Public Law No. 101-549, 104 Stat. 2399. References
herein are to the CAA as amended in 1990. The Clean Air Act is
codified, as amended, in the United States Code at 42 U.S.C. 7401,
et seq.
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States containing initial moderate PM10 nonattainment
areas were required to develop and submit to EPA by November 15, 1991,
a state implementation plan (SIP) revision providing for, among other
things, implementation of reasonably available control measures (RACM),
including reasonably available control technology (RACT), and a
demonstration of attainment of the PM10 NAAQS by December
31, 1994. See section 189(a) of the CAA. \3\ In response to this
submission requirement, the Washington Department of Ecology (Ecology)
submitted a SIP revision for Wallula on November 15, 1991.
Subsequently, Ecology submitted additional information indicating that
nonanthropogenic sources may be significant in the Wallula
nonattainment area during windblown dust events. Based on our review of
the State's submissions, we deferred action on several elements in the
Wallula SIP, approved the control measures in the SIP as meeting RACM/
RACT, and, under section 188(f) of the CAA, granted a temporary waiver
to extend the attainment date for Wallula to December 31, 1997. See 60
FR 63109 (December 6, 1995)(proposed action); 62 FR 3800 (January 27,
1997) (final action). The temporary waiver was intended to provide
Ecology time to evaluate further the Wallula nonattainment area and to
determine the significance of the anthropogenic and nonanthropogenic
sources impacting the area. Once these activities were complete or the
temporary waiver expired, EPA was to make a decision on whether the
area was eligible for a permanent waiver under section 188(f) of the
CAA or whether the area had attained the standard by the extended
attainment date. See 62 FR 3802. Based on all the information currently
available to EPA, we do not believe that nonanthropogenic sources of
PM10 contribute significantly to violations of the
PM10 standards in the Wallula nonattainment area. We
therefore do not believe that the State has demonstrated that the area
qualifies for a permanent waiver of the attainment date. Accordingly,
in this action, we are proposing to find that the Wallula area has not
attained the PM10 standards by the applicable attainment
date of December 31, 1997.
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\3\ The moderate area SIP requirements are set forth in section
189(a) of the CAA.
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III. How does EPA Determine Whether an Area has Attained the
Standard by the Attainment Date?
EPA has the responsibility, pursuant to sections 179(c)(1) and
188(b)(2) of the CAA, to determine within six months of the applicable
attainment date, whether PM10 nonattainment areas attained
the PM10 NAAQS by the attainment date. 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, EPA will determine whether an area's
air quality is meeting the PM10 NAAQS for purposes of
sections 179(c)(1) and 188(b)(2) based upon data gathered at monitoring
sites in the nonattainment area and entered into the Aerometric
Information Retrieval System (AIRS). Data entered into the AIRS has
been determined by EPA to meet federal monitoring requirements (see 40
CFR 50.6 and appendix J, 40 CFR part 53, 40 CFR part 58, appendices A
and B). The data are reviewed in accordance with 40 CFR part 50,
appendix K, to determine the area's air quality status.
Pursuant to appendix K, the annual PM10 standard is
attained when the expected annual arithmetic average of the 24-hour
samples for a period of one year does not exceed 50 micrograms per
cubic meter (g/m\3\). The 24-hour PM10 standard is
attained when the expected number of days in a year with
PM10 concentrations greater than 150 g/m\3\,
averaged over a three year period, is less than or equal to one. To
calculate ``the expected number of days,'' we use the number of
exceedances that are observed in a year, then adjust that number to
account for the sampling schedule of the monitor and any
[[Page 69277]]
missing data. A total of three consecutive years of non-violating air
quality data is generally necessary to show attainment of the 24-hour
and annual standard for PM10. See 40 CFR 50.6 and 40 CFR
part 50, appendix K.
EPA is publishing this proposal pursuant to section 188(b)(2) of
the Act. Under subpart (A) of that section, a moderate PM10
nonattainment area is reclassified as serious by operation of law if
EPA finds that the area is not in attainment by the applicable
attainment date. Pursuant to section 188(b)(2)(B) of the Act, EPA must
publish a Federal Register document within six months after the
applicable attainment date identifying those areas that have failed to
attain the standard and that have been reclassified to serious by
operation of law. See section 188(b)(2); see also section 179(c)(1).
IV. What Information Supports EPA's Finding That the Wallula Area
has not Attained the PM10 Standard by the Attainment
Date?
As explained above, attainment determinations are based upon an
area's ``air quality as of the attainment date.'' Since Wallula's
attainment date was extended to December 31, 1997, we first looked at
the PM10 air quality data for 1995, 1996, and 1997. These
data show that, for this three year period, there were no violations of
the annual PM10 standard. For the 24-hour standard, however,
there were two measured exceedances: 160 g/m\3\ on June 21,
1997, and 210 g/m\3\ on July 3, 1997. After adjusting these
two 24-hour exceedances to account for the sampling schedule \4\ and
missing data, the expected number of days with PM10
concentrations greater than 150 g/m\3\ was 4.1. Since this
value is greater than one, these data show that Wallula was not in
attainment of the 24-hour PM10 standard as of its December
31, 1997, attainment date.
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\4\ Because the Wallula monitor is scheduled to sample once
every six days, each measured exceedance is generally counted as six
expected exceedances. If there is missing data, the measured
exceedance may count for more than that.
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In addition to the 1995 through 1997 data, we also looked at the
most recent data for Wallula. In 1998 and 1999 there were no violations
of the annual standard. However, since January 1, 1998, there have been
two additional exceedances of the 24-hour standard: 215 g/m\3\
on July 10, 1998, and 297 g/m\3\ on June 23, 1999. Using these
values, along with the 1997 exceedances of 160 g/m\3\ and 210
g/m\3\, we calculated the expected number of days with
PM10 concentrations greater than 150 g/m\3\ for the
1997 through 1999 period (i.e., the most recent three-year period).
Accounting for the sampling schedule and missing data, the expected
number of days for this period was 8.4. Because this value is greater
than one, these data show that Wallula is still not in attainment of
the 24-hour PM10 standard.
In a May 30, 1996, Memorandum from EPA's Assistant Administrator
for Air and Radiation to EPA Regional Air Directors entitled ``Areas
Affected by Natural Events'' (EPA's Natural Events Policy), EPA has
stated that in some circumstances it is appropriate to exclude
PM10 air quality data that are attributable to
uncontrollable natural events, such as unusually high winds, from
decisions regarding an area's attainment status. Under the policy,
where a State believes natural events have caused a violation of the
NAAQS, the State enters the exceedance in the AIRS data base, flags the
exceedance as being attributable to a natural event, documents a clear
causal relationship between the measured exceedance and the natural
event, and develops a natural events action plan (NEAP) to address
future natural events. In the case of high-wind events where the
sources of dust are anthropogenic, the State should also document that
Best Available Control Measures (BACM) were required for those sources
and the sources were in compliance with BACM at the time-of the high-
wind event. EPA's Natural Events Policy also contains guidance for
notifying the public of the occurrence of natural events and the health
effects of such events, as well as minimizing public exposure to high
concentrations of PM10 due to natural events.
Ecology has flagged certain exceedances of the PM10
NAAQS in the Wallula area under EPA's Natural Events Policy and has
also developed a Natural Events Action Plan for High Wind Events in the
Columbia Plateau (March 1998), which includes the Wallula
PM10 nonattainment area. Since January 1, 1995, the
beginning of the time period for the data considered by EPA in this
action, we are aware of one exceedance of the PM10 standard
in the Wallula area--June 21, 1997-- that Ecology has flagged as
attributable to high winds under EPA's Natural Events Policy.\5\ EPA
has no information indicating Ecology has claimed any of the other
exceedances of the 24-hour PM10 standard in the Wallula area
since January 1, 1995, as attributable to natural events.\6\ Even if
the June 21, 1997, exceedance is excluded from the attainment
determination, the expected number of days during the 1995-1997 time
period with PM10 concentrations greater than 150 g/
m\3\ is 2.0 and still demonstrates nonattainment of the 24-hour
PM10 standard. Similarly, for the 1997-1999 time period, the
expected number of days with PM10 concentrations greater
than 150 g/m\3\ is 6.4 and demonstrates nonattainment of the
24-hour standard even if the June 21, 1997, exceedance is excluded.
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\5\ Ecology subsequently submitted documentation to EPA to
support its claim that the June 21, 1997 exceedance was due to a
``natural event,'' although it is unclear when EPA received this
documentation. In addition, because the documentation from Ecology
was marked ``draft,'' it was not clear to EPA that this was intended
to be treated as the State's final submission and EPA has therefore
not confirmed this flag. EPA now understands from Ecology that
Ecology intended the submission marked ``draft'' to serve as its
final submission, and EPA will therefore proceed with reviewing the
documentation submitted by the State.
\6\ Indeed, the State has specifically confirmed that it does
not consider the July 10, 1998, exceedance to be due to high winds.
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V. Does the Wallula Area Qualify for a Permanent Waiver of the
December 31, 1997, Attainment Date?
Section 188(f) of the Act provides that EPA may, on a case-by-case
basis, waive a specific date for attainment of the PM10
standards where EPA determines that nonanthropogenic sources of
PM10 contribute significantly to the violation of the
PM10 standards in the nonattainment area. Based on the
currently available information, we do not believe the Wallula area
qualifies for a permanent waiver of the moderate area extended
attainment date of December 31, 1997. EPA also has not received a
request from Ecology for a permanent waiver of the attainment date
under section 188(f). In addition, the information available to EPA
does not establish that nonanthropogenic sources of PM10
contribute significantly to the violations of the PM10
standards in the Wallula PM10 nonattainment area. As
discussed above, only one of the exceedances of the PM10
standards since January 1, 1995, has been claimed by Ecology as
attributable to a natural event. EPA therefore believes that the other
exceedances were due to anthropogenic sources of PM10.
Accordingly, in light of the data showing the Wallula area was in
violation of the 24-hour PM10 standard as of the December
31, 1997, attainment date, as well as the data showing the area
continues to violate the 24-hour PM10 standard, we are
proposing to find, in accordance with section 188(b)(2) of the Act,
that the Wallula PM10 nonattainment area did not attain the
[[Page 69278]]
PM10 NAAQS by the applicable attainment date of December 31,
1997.
VI. What are the implications of this proposed finding?
If EPA takes final action on this proposed finding, the Wallula
PM10 nonattainment area will be reclassified by operation of
law as a serious PM10 nonattainment area under section
188(b)(2)(A) of the Act. PM10 nonattainment areas
reclassified as serious under section 188(b)(2) of the Act are required
to submit, within 18 months of the area's reclassification, SIP
provisions providing for, among other things, the adoption and
implementation of best available control measures (BACM), including
best available control technology (BACT), for PM10 no later
than four years from the date of reclassification. The SIP also must
contain, among other things, a demonstration that the implementation of
BACM will provide for attainment of the PM10 NAAQS no later
than December 31, 2001.\7\ In addition, the terms ``major source'' or
``major stationary source'' include any stationary source or group of
stationary sources located within a contiguous area and under common
control that emits, or has the potential to emit, at least 70 tons per
year of PM10. See sections 188(c)(2) and 189(b). These
requirements are in addition to the moderate PM10
nonattainment requirements of RACT/RACM, which, as discussed above,
were approved for the Wallula nonattainment area on January 27, 1997.
See 62 FR 3800.
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\7\ If certain conditions are met, EPA may extend this
attainment deadline to no later than December 31, 2006. CAA 188(e).
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VII. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), EPA is
required to determine whether regulatory actions are significant and
therefore should be subject to Office of Management and Budget (OMB)
review, economic analysis, and the requirements of the Executive Order.
The Executive Order defines a ``significant regulatory action'' as one
that is likely to result in a rule that may meet at least one of the
four criteria identified in section 3(f), including, under paragraph
(1), that the rule may ``have an annual effect on the economy of $100
million or more or adversely affect, in a material way, the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or tribal
governments or communities.''
The Agency has determined that the finding of failure to attain
proposed today would result in none of the effects identified in
section 3(f). Under section 188(b)(2) of the CAA, findings of failure
to attain are based upon air quality considerations and the resulting
reclassifications must occur by operation of law in light of certain
air quality conditions. They do not, in and of themselves, impose any
new requirements on any sectors of the economy. In addition, because
the statutory requirements are clearly defined with respect to the
differently classified areas, and because those requirements are
automatically triggered by classifications that, in turn, are triggered
by air quality values, findings of failure to attain and
reclassification cannot be said to impose a materially adverse impact
on State, local or tribal governments or communities.
B. Executive Order 13045
Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to
any rule that: (1) is determined to be economically significant as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have 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
proposed action is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866.
C. Executive Order 13084
Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide OMB, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.
Today's proposed finding of failure to attain does not
significantly or uniquely affect the communities of Indian tribal
governments. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this proposed finding of failure to attain.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) 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.
Findings of failure to attain and the resulting reclassification of
nonattainment areas by operation of law under section 188(b)(2) of the
CAA do not in and of themselves create any new requirements. Instead,
this rulemaking only proposes to make a factual determination, and does
not propose to directly regulate any entities. Therefore, pursuant to 5
U.S.C. 605(b), I certify that today's proposed action does not have a
significant impact on a substantial number of small entities within the
meaning of those terms for RFA purposes.
E. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``UMRA''), signed into law on March 22, 1995, EPA must prepare a
budgetary impact statement to accompany any proposed or final rule that
includes a Federal mandate that may result in estimated annual costs to
state, local, or tribal governments in the aggregate; or to private
sector, of $100 million or more. Under section 205, EPA must select the
most cost-effective and least burdensome alternative that achieves the
objectives of the rule and is consistent with statutory requirements.
Section 203 requires EPA to establish a plan for informing and advising
any small governments that may be
[[Page 69279]]
significantly or uniquely impacted by the rule.
EPA believes, as discussed above, that the proposed finding of
failure to attain is a factual determination based upon air quality
considerations and that the resulting reclassification of the area must
occur by operation of law. Thus, the finding does not constitute a
Federal mandate, as defined in section 101 of the UMRA, because it does
not impose an enforceable duty on any entity.
F. Executive Order 13132
Executive Order 13132, entitled Federalism (64 FR 43255, August 10,
1999) revokes and replaces Executive Orders 12612, Federalism, and
12875, Enhancing the Intergovernmental Partnership. Executive Order
13132 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
Executive 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. EPA also 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.
This finding of failure to attain and reclassification of
nonattainment area 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 (64
FR 43255, August 10, 1999), because these actions do not, in-and-of-
themselves, impose any new requirements on any sectors of the economy,
and does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to these
actions.
G. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are not relevant to this action because
today's action does not involve the application of new technical
standards.
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Intergovernmental
relations, Particulate matter.
Dated: November 6, 2000.
Charles E. Findley,
Acting Regional Administrator, Region 10.
[FR Doc. 00-29360 Filed 11-15-00; 8:45 am]
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