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Clean Air Act Finding of Attainment; California-Imperial Valley Planning Area; Particulate Matter of 10 Microns or Less (PM-10)

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[Federal Register: October 19, 2001 (Volume 66, Number 203)]
[Rules and Regulations]
[Page 53106-53112]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19oc01-14]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 81
[CA058-FOA; FRL-7087-1]
 
Clean Air Act Finding of Attainment; California-Imperial Valley 
Planning Area; Particulate Matter of 10 Microns or Less (PM-10)

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: EPA is taking final action to find that the State of 
California has established to EPA's satisfaction that the Imperial 
Valley Planning Area (Imperial County), a PM-10 moderate nonattainment 
area, would have attained the national ambient air quality standards 
(NAAQS) for particulate matter of ten microns or less (PM-10) by the 
applicable Clean Air Act (CAA or the Act) attainment date, December 31, 
1994, but for emissions emanating from outside the United States, i.e., 
Mexico. As a result of this final action, Imperial County will not be 
subject to a finding of failure to attain and reclassification to 
serious at this time and will remain a moderate PM-10 nonattainment 
area.

EFFECTIVE DATE: This action is effective on November 19, 2001.

ADDRESSES: You can inspect copies of the administrative record for this 
action at EPA's Region 9 office during normal business hours. U.S. 
Environmental Protection Agency, Region 9, Air Division, Planning 
Office (AIR-2), 75 Hawthorne Street, San Francisco, California 94105.
    Electronic Availability: This document is also available as an 
electronic file on EPA's Region 9 Web Page at http://www.epa.gov/
region09/air.

FOR FURTHER INFORMATION CONTACT: Doris Lo, U.S. Environmental 
Protection Agency, Region 9, Air Division, Planning Office (AIR-2), 75 
Hawthorne Street, San Francisco, California 94105, (415) 744-1287, 
lo.doris@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    Imperial County is a moderate PM-10 nonattainment area located on 
the

[[Page 53107]]

California border with Mexico, with a December 31, 1994 attainment 
deadline. Under CAA section 188(b)(2)(A), moderate PM-10 nonattainment 
areas must be reclassified as serious by operation of law after the 
statutory attainment date if the Administrator finds that the area has 
failed to attain the NAAQS. However, CAA section 179(B)(d) provides 
that any area that establishes to the satisfaction of EPA that it would 
have attained the PM-10 NAAQS by the applicable attainment date but for 
emissions emanating from outside the United States shall not be subject 
to the provisions of CAA section 182(b).
    Imperial County and the California Air Resources Board submitted 
evidence that the County would have attained the PM-10 NAAQS but for 
transport from Mexico. The primary information prepared by the Imperial 
County Air Pollution Control District (ICAPCD) is ``Imperial County PM-
10 Attainment Demonstration'' (hereafter referred to as the ``179B(d) 
demonstration'') which was transmitted to EPA by the California Air 
Resources Board (CARB) on July 18, 2001 letter from Michael P. Kenny, 
Executive Officer, CARB, to Ms. Laura Yoshii, Acting Regional 
Administrator, EPA Region 9).
    Pursuant to CAA section 188(b)(2)(B) of the Act, EPA must publish a 
notice in the Federal Register identifying those areas that failed to 
attain the standard and reclassifying the areas to serious. On August 
6, 2001, EPA issued two alternative proposals:
    (1) To find that the State of California had established to EPA's 
satisfaction that Imperial County, a PM-10 moderate nonattainment area, 
would have attained the NAAQS PM-10 by the applicable Clean Air Act 
attainment date, December 31, 1994, but for emissions emanating from 
outside the United States, i.e., Mexico.
    (2) Alternatively, to find that Imperial County did not attain the 
PM-10 NAAQS by its CAA mandated attainment date. This proposed finding 
was based on monitored air quality data for the PM-10 NAAQS during the 
years 1992-1994. A final action would result in a reclassification to 
serious PM-10 nonattainment for Imperial County.
    These proposed alternative actions were published in a Federal 
Register notice (66 FR 42187) on August 10, 2001 (proposed rule or 
notice of proposed rulemaking, NPR). The 30-day public comment period 
ended on September 10, 2001. EPA requested public comments on both 
proposals and received ten comment letters from the following:

 Sierra Club/EarthJustice Legal Defense Fund (David S. Baron, 
Attorney)
 Imperial County Air Pollution Control District (Stephen L. 
Birdsall, Air Pollution Control Officer)
 Congressman Duncan Hunter, U.S. House of Representatives, 
Washington, D.C. 20515-0552
 Imperial Valley Vegetable Growers Association (Lauren S. 
Grizzle, Executive Director)
 Imperial County Farm Bureau (Lauren S. Grizzle, Executive 
Director)
 California Farm Bureau Federation (Cynthia L. Cory, Director, 
Environmental Affairs)
 Mar Vista Farms, Inc. (Michael B. Cox, President)
 Nisei Farmers League (Manuel Cunha, Jr., President)
 California Cotton Ginners and Growers Association (Roger A. 
Isom, Vice President & Director of Technical Services)
 Granite Construction Company (Jeff Mercer, Area manager)

All of the commenters supported EPA's proposed finding of attainment 
pursuant to section 179B(d) of the CAA, except for the Sierra Club/
EarthJustice Legal Defense Fund (Sierra Club).
    While the Sierra Club raises some important issues, EPA was aware 
of these issues prior to the proposed rulemaking and has not been 
convinced by Sierra Club that the State's 179B(d) demonstration is 
inadequate and that the finding of nonattainment and reclassification 
to serious should be finalized. Thus, EPA is finalizing its action to 
find that the State of California has established that Imperial County 
would have attained the NAAQS for PM-10 by the applicable CAA 
attainment date, December 31, 1994, but for emissions emanating from 
Mexico. Today's rulemaking provides EPA's responses to public comments 
and finalizes EPA's proposed action.

II. Public Comments and EPA Responses

A. Sierra Club/EarthJustice Legal Defense Fund (David S. Baron, 
Attorney)

    Comments were submitted by the EarthJustice Legal Defense Fund on 
behalf of the Sierra Club. In general, the Sierra Club opposes our 
proposed finding of attainment and asserts that the 179B(d) 
demonstration does not adequately demonstrate attainment but for the 
emissions emananting from Mexico. The Sierra Club believes we must 
finalize our proposed finding of nonattainment and reclassification to 
serious PM-10 nonattainment for Imperial County.
1. CAA Requires Modeling
    The Sierra Club's first group of comments address the need for a 
modeling demonstration. The Sierra Club asserts that air quality 
modeling is a requirement under CAA Section 179B(d) and that in order 
to qualify for a 179B(d) waiver, the state must make a showing that is 
the equivalent of an attainment demonstration which the Act and EPA's 
own regulations and guidelines require to be based on air quality 
modeling. The Sierra Club then discusses how the State's air quality 
modeling does not adequately demonstrate attainment of the 24-hour and 
annual PM-10 NAAQS due to deficiencies with the modeling inventory and 
modeling assumptions which are summarized in EPA's responses below.
    EPA's response: EPA disagrees with the Sierra Club that a CAA 
Section 179(B)(d) waiver must be based on air quality modeling. CAA 
section 179B(d) does not require air quality modeling for PM-10 
nonattainment areas at international borders, and EPA's guidance 
relating to serious PM-10 nonattainment areas suggests modeling as one 
of five methods that may be used to determine attainment but for 
international transport.\1\ In issuing guidance on CAA section 179(B), 
EPA considered it appropriate to grant states more flexibility in 
making the ``but-for'' attainment determination for border areas due to 
the special difficulties that can be encountered at these areas.
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    \1\ EPA's guidance appears in ``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,'' 59 FR 41998, August 16, 1994. The guidance 
lists 5 types of information that could be used to qualify for 
treatment under section 179B, and provides that ``States may use one 
or more of these types of information or other techniques, depending 
on their feasibility and applicability, to evaluate the impact of 
emissions emanating from outside the U.S. on the nonattainment 
area.'' The General Preamble goes on to note that ``the first 3 
examples do not require the State to obtain information from a 
foreign country.'' Only the fifth method employs modeling. 59 FR 
42001. As discussed in the proposed action, the State submitted 
information addressing each of the 5 methods. 66 FR 42189-90.
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    For example, it may be particularly difficult for States to acquire 
the necessary input data for a valid modeling analysis, including 
monitored meteorological and air quality data, accurate speciated 
emissions inventories with temporal and spatial breakdown, and 
information on day-specific emissions, when such data must be collected 
in areas outside of the U.S. The acquisition of such data is

[[Page 53108]]

resource intensive both in terms of money and expert staff time, and 
the exercise may consume years of preparatory work and then require 
additional time and expense for quality assurance and data preparation 
and analysis. In cases where the critical modeling input data are not 
available or are incomplete or inaccurate, EPA believes that Congress 
could not have intended to disallow areas from presenting, and EPA from 
approving, non-modeling evidence of ``attainment but for transport.''
    Although modeling input data were recognized to be sparse, the 
State's 179B(d) demonstration did attempt to address each of the 5 
allowable approaches specified in the General Preamble, including an 
air quality modeling ``but-for'' attainment demonstration for both the 
annual and 24-hour PM-10 NAAQS.
    As discussed in the proposed rule, EPA did not base the proposed 
finding of attainment for the 24-hour PM-10 NAAQS on the State's air 
quality modeling demonstration. The sensitivity of the 24-hour PM-10 
NAAQS to the modeling inputs, coupled with the lack of model 
validation, led EPA to conclude that, unlike the annual PM-10 NAAQS, 
the air quality modeling could not be relied upon for the 24-hour PM-10 
NAAQS attainment demonstration. Instead, EPA based its finding of 
attainment for the 24-hour PM-10 NAAQS on the State's analysis of 
monitoring sites, meteorological conditions (which involves an analysis 
of spatial plots, wind roses and back trajectories) and inventory 
estimates for both sides of the border. EPA believes that these are 
valid alternative methods for determining attainment but for 
international transport (see General Preamble at 59 FR 42001).
    For the annual PM-10 NAAQS, model performance assessment also 
raises issues, although these concerns are less than for the 24-hour 
NAAQS because day-specific modeling inputs and predictions are not 
needed. Moreover, to determine whether or not Imperial County would 
have attained the annual PM-10 NAAQS but for international transport 
does not require modeling precision, due to the fact that the annual 
arithmetic mean concentrations for 1992-1994 are only slightly above 
the annual PM-10 NAAQS (51 µg/m\3\ at Brawley and 56 
µg/m\3\ at Calexico Dichot-Grant Street). All that is required 
of the model in support of a ``but for'' demonstration is evidence that 
at least a small portion of the monitored concentrations was due to 
transport of pollution from Mexico.
2. Adequacy of the State's Emissions Inventory Input to the Modeling
    The Sierra Club comments that the State's modeling inventory is 
insufficient because it was not developed for PM-10 modeling, does not 
reflect peak PM-10 levels, is not a ``current'' and ``accurate'' 
inventory, and does not contain data on actual PM-10 emissions, but is 
based on the SCOS inventory which is adjusted with invalid assumptions 
(i.e., percentage of TSP that is PM-10 and correlation of PM-10 
emissions to population).
    EPA Response: While the modeling inventory for Imperial County was 
not developed specifically for PM-10 modeling, it does include PM-10 
emissions and represents the best available inventory at this time. As 
discussed in EPA's Technical Support Document (TSD) for the proposed 
rule, the modeling inventory was derived from the Southern California 
Ozone Study (SCOS) modeling inventory for a typical summer day. 
Seasonal adjustments were made to the inventory, and the inventory was 
scaled, based on population changes, for the years 1992 to 1994. The 
use of this modeling inventory to represent average annual PM-10 
concentrations is an acceptable approach, but the use of this modeling 
inventory to represent peak PM-10 days is less reliable because 
emissions of PM-10 are likely to be higher than the seasonal average on 
peak days. In other words, this inventory is more reliable for the 
determining attainment of the annual PM-10 NAAQS than for the 24-hour 
PM-10 NAAQS.
    EPA does not agree that the modeling inventory is insufficient 
because it is based on the SCOS inventory and adjustments made to that 
inventory (i.e., percentage of TSP that is PM-10 and correlation of PM-
10 emissions to population). As discussed above, the modeling inventory 
developed is the best available inventory and information at this time. 
In order to develop a modeling inventory for Imperial County, the State 
took the SCOS modeling inventory and made adjustments to reflect the 
PM-10 emissions in Imperial county. For example, the SCOS inventory 
included emissions of total suspended particulates (TSP). PM-10 is a 
subset of TSP. In order to to adjust for the SCOS inventory for PM-10 
emissions, the State used an adjustment factor of 1.93 which is based 
on a comparison of the 1997 SCOS inventory to Imperial County's 1995 
PM-10 emissions inventory (best available PM-10 inventory). The State 
also adjusted the inventory for changes in the population since the 
``vast majority of PM-10 emission in Imperial County are from area 
sources such as unpaved roads, paved roads and agriculture.'' \2\ While 
these may not be the most precise adjustment techniques for the 
Imperial County PM-10 modeling inventory, EPA believes these 
adjustments are reasonable for the annual PM-10 NAAQS.
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    \2\ See the State's 179B(d) demonstration (Chapter III.B. 
Modeling Emissions Inventory) for more detailed information on the 
how the State's modeling inventory was developed.
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    In general, there are many uncertainties in developing PM-10 
inventories. This is partly due to intrinsic variability, but also 
because socioeconomic surrogate data and location-specific data needed 
to build a spatially and temporally resolved inventory is sometimes not 
available. However, EPA believes that the fugitive PM-10 emission 
estimates and the modeling that uses them are an adequate basis for 
this action. The State is continuously improving and updating inventory 
information. The inventory used in the State's demonstration represents 
the best available PM-10 inventory for the 1992-1994 timeframe.
3. Background Concentration in the Model
    The Sierra Club comments that there is no basis for using the 
annual background concentration of 25 µg/m3 and that 
it is ``the product of pure speculation.''
    EPA Response: The background concentration level was based on a 
frequency distribution analysis of measured PM-10 concentrations at 
monitors in the Imperial County and Mexicali from 1992 to 2000.\3\ EPA 
believes the 25 µg/m3 background concentration level 
is a conservative level.
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    \3\ See the State's 179B(d) demonstration (Chapter III.D. 
Background Concentrations) for more information.
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4. Secondary Particles in the Model
    The Sierra Club comments that the State's modeling demonstration 
includes no analysis for secondary particle formation.
    EPA Response: While there is no specific discussion of secondary 
particulates in EPA's proposed rule (66 FR 42187), the analysis 
provided by the state did account for the formation of secondary 
particulates. See Imperial County PM10 Attainment Demonstration, 
Chapter III.B, page 4. In addition the Imperial Valley/Mexicali Cross 
Border PM-10 Transport Study (Transport Study) provides a filter 
analysis which indicates that secondary

[[Page 53109]]

particulates are measured in the range of 2 to 4 µg/
m3 for secondary ammonium sulfates and 2 to 3 µg/
m3 for secondary ammonium nitrates (Transport Study, Summary 
and Conclusion, page 9-5) and are thus a small portion of the 
particulate matter in Imperial County.
5. Proof That Mexico Emissions Impact U.S. Monitors and Adequacy of 
Alternative Demonstration
    The Sierra Club asserts that the state has failed to demonstrate 
that PM-10 violations in Imperial County are actually being caused by 
emissions from Mexico and that, even if air quality modeling was not 
required, the state's ``alternative'' 179B(d) demonstration (i.e., 
based on analysis of wind patterns and population densities) is grossly 
inadequate. The Sierra Club believes that the State's analysis of wind 
patterns and population densities does not show that any quantifiable 
amount of particulates traveled to the U.S. monitors, let alone any 
amount that would contribute to nonattainment and that there is nothing 
in the record relating to an actual amount of PM-10 emissions traveling 
from Mexico to Imperial County. Also, the Sierra Club states that the 
Imperial Valley/Mexicali Cross Border PM-10 Transport Study (Transport 
Study), which indicates that international transport is not always the 
cause of PM-10 violations, were not refuted and are more reliable than 
the more recent analysis by the state which the Sierra Club claims to 
be speculative. Finally, the Sierra Club asserts that there is no 
analysis of the PM-10 transport to Imperial County's border from places 
other than Mexico (i.e., on the U.S. side).
    EPA's response: The State's 179B(d) demonstration, which includes a 
detailed analysis of spatial plots, wind roses and back trajectories 
for each of the PM-10 exceedance days during 1992-1994, provides the 
best qualitative analysis of the emissions from Mexico possible for the 
Imperial County area for the period in question. Filter analyses often 
can provide more specificity on where the monitoring emissions are 
coming from but, since the types of PM-10 sources are similar on both 
sides of the border, analysis of the Imperial County samples would not 
show what portion of the catch originated on the Mexican side of the 
border.\4\
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    \4\ As discussed in the proposed rule, the 1992-1993 Imperial 
Valley/Mexicali Cross Border PM-10 Transport Study (Final Report, 
January 30, 1997) includes an analysis of the particles collected in 
areas within Imperial County where violations have been recorded. 
This sample analysis determined that geological dust (70-90%), motor 
vehicle exhaust (10-15%) and vegetative burning (10%) account for 
the highest contribution to PM-10 concentrations. These are the 
predominant emissions sources on both sides of the border. Thus, the 
filter analysis by itself could not be used to determine the extent 
to which violations might result from international transport.
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    The Sierra Club suggests that the analyses found in the State's 
179B(d) demonstration prove nothing about whether or not emissions from 
Mexico are impacting U.S. monitors. EPA believes that given the 
available information, the State has made a good argument that Imperial 
County is being impacted by Mexico emissions. Additional activities 
(tracer studies, air monitoring studies, establishment of more 
meteorology stations at border) could have been conducted, but it is 
not now possible to create information from new studies for the 1992-
1994 timeframe. Thus, EPA believes that the State's 179B(d) analysis of 
spatial plots, wind roses and back trajectories provides the best 
determination of PM-10 emissions transport from Mexico.
    EPA does not have to refute the Transport Study results in order to 
make this finding of attainment but for international transport. As 
discussed in the proposed rule, the additional windfield analyses 
(Attachment 2 to EPA's TSD, Additional windroses and windfields for 
January 25, 1993) provided a more detailed analysis, supplementing 
information from the Transport Study.\5\ The Transport Study is simply 
an effort to collect air quality data on exceedance days and analyze 
the data based on wind direction and speed, and the study is thus very 
similar to the analyses found in the State's demonstration. The 
Transport Study indicates that several of the exceedance days appear to 
have stagnant wind conditions (1/19/93, 1/25/93, 7/7/94, 10/17/94 and 
12/16/94), but the State's demonstration uses more meteorological data 
and finds evidence that transport from Mexico is likely even with the 
stagnant conditions at the surface. For each of the exceedances, the 
State's analysis took into account additional information not included 
in the Transport Study. This information included: (a) The number of 
hours with southerly wind directions that have the potential to carry 
emissions from Mexico into Imperial County; (b) the back trajectories 
and back trajectories based on upper-air synoptic wind data, which show 
the existence of much higher winds from the south that are de-coupled 
from the surface stagnant conditions, and (c) the windroses developed 
for all meteorological stations, suggesting that emissions from Mexico 
likely contributed to the concentrations measured at Brawley. Based on 
this additional information and the further analyses, the State 
concluded that Imperial County would not have violated the PM-10 NAAQS 
but for transport from Mexico. In weighing the ``but-for'' evidence, 
EPA also considered it important to consider the relatively low level 
of the 24-hour exceedances (162 µg/m3), 175 
µg/m3, 165 µg/m3, 159 µg/
m3, and 153 µg/m3). EPA concedes that 
information is not available to determine with confidence the exact 
quantity of PM-10 coming from Mexico, but EPA continues to believe that 
the State has diligently collected and analyzed available evidence and 
has successfully demonstrated for each of the exceedance days the 
probability that Imperial County would not have violated the NAAQS but 
for the emissions emanating from Mexico.
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    \5\ See Attachment 2 to EPA's TSD, Additional windroses and 
windfields for January 25, 1993.
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    Finally, EPA believes that there were insufficient data to support 
a modeling assessment of the potential for long range transport from 
the South coast or other California areas to Mexico and back again to 
Imperial. The Sierra Club presents no evidence that there is transport 
from U.S. sources outside of Imperial County. Even if evidence existed 
that the Imperial County monitors were being impacted by long range 
transport from within the U.S., such evidence would not invalidate the 
State's demonstration that Imperial County would have attained the 
NAAQS but for emissions emanating from Mexico.
6. Emissions Inventories
    The Sierra Club asserts that the comparison of emissions 
inventories between Imperial and Mexicali is inadequate due to the 
uncertainty in the Mexicali inventory, that the Mexicali inventory has 
not been analyzed for transportability of particles and that the 
emissions inventory for Imperial County has never been approved by EPA, 
and thus cannot be used to support a ``but-for'' finding.
    EPA's response: The comparison of Imperial and Mexicali emissions 
was intended to provide support for the attainment finding. EPA agrees 
that there is uncertainty in the Mexicali inventory, however, EPA also 
believes it is useful to examine all available data for this attainment 
finding. Even if the Mexicali emissions were one-half of 257, as 
suggested by the Sierra Club, the emissions in the city of Mexicali 
(200 square miles) would be about half of the emissions in all of 
Imperial County (4060 square miles), but the emissions density in 
Mexicali would still be much

[[Page 53110]]

greater than in Imperial County. As far as determining the 
transportability of emissions from Mexicali, as discussed above and in 
the proposed rule, filter analyses have been examined for the border 
area and provided some information on the particles characteristics. 
Finally, as discussed above, the emission inventories used in the 
State's 179B(d) demonstration are the most current and best available. 
EPA plans to take action on the inventories when they are submitted as 
part of the State Implementation Plan (SIP) for Imperial County.
7. Post-1994 Exceedances
    The Sierra Club asserts that the 179B(d) determination is 
inadequate because it fails to consider the post-1994 exceedances. The 
Sierra Club states that the post-1994 exceedances are numerous, in some 
cases extreme, and relevant to the attainment but for international 
transport determination.
    EPA's response: EPA believes that the post-1994 exceedances are 
irrelevant to the determinations at issue. The statutory attainment 
date for the Imperial County PM-10 moderate nonattainment area is 
December 31, 1994. EPA believes the State's 179B(d) demonstration 
adequately demonstrates attainment by examining the air quality data 
from 1992-1994. If this demonstration is adequate, reclassification to 
serious is not required. Section 188(b)(2) provides that: ``Within 6 
months following the applicable attainment date for a PM-10 
nonattainment area, the Administrator shall determine whether the area 
attained the standard by that date. If the Administrator finds that any 
Moderate Area is not in attainment after the applicable attainment date 
* * *'' the area shall be reclassified. While the second sentence of 
section 188(b)(2) contains the language quoted by the commentor ``is 
not in attainment after the applicable attainment date,'' it is clear 
that in the context of the first sentence of the provision, which is 
the sentence that establishes the duty to make an attainment 
determination, the duty is to ``determine whether the area attained the 
standard by that date [referring to the phrase ``applicable attainment 
date'' in the opening clause of the sentence].'' Thus, EPA's duty is to 
determine whether the area attained by its attainment date and the 
language in the second sentence regarding a finding after the 
attainment date may reasonably be interpreted as referring to the date 
the finding is made, which would necessarily be after the attainment 
date, not to the date used in the determination as the benchmark for 
determining attainment. The question of whether an area should be 
reclassified is considered along with whether an area has achieved 
attainment by the attainment date. Thus, the air quality data from the 
years 1992-1994 are the relevant data for determining whether Imperial 
County should be reclassified to serious.
8. SIP Requirements
    Finally, the Sierra Club asserts that a 179B(d) waiver cannot be 
granted unless all moderate area SIP requirements (e.g., RACM, RACT, 
New Source Review, etc.) are being met.
    EPA's response: As discussed in the EPA's proposal, this rulemaking 
does not address the SIP requirements for Imperial County but only the 
question of whether or not the State has established that Imperial 
County attained the NAAQS by December 31, 1994, but for international 
transport. CAA section 179B(d) states that ``any State that establishes 
to the satisfaction of the Administrator * * * that such State has 
attained the national ambient air quality standard for [PM-10]
by the 
applicable attainment date, but for emissions emanating from outside of 
the United States, shall not be submit to the provisions of section 
7512(b)(2) * * *'' which requires reclassification upon failure to 
attain. This provision does not require a SIP submittal in order for 
the waiver to be granted. EPA is currently working with the Imperial 
County Air Pollution Control District and the California Air Resources 
Board on developing an approvable State Implementation Plan for 
Imperial County. A draft of this plan was issued for public review in 
July 2001.

B. Other Comments Supporting EPA's Final Action

    Besides the Sierra Club, all of the commentors support EPA's 
finding of attainment but for international transport and are extremely 
opposed to the finding of nonattainment and reclassification to a 
serious PM-10 nonattainment area. Commentors discussed the overwhelming 
pollution problem coming from Mexico, the measures their industries 
have taken to reduce pollution and that it would be unfair to impose 
additional controls on sources in Imperial County. The Imperial County 
Air Pollution Control District also provided additional technical 
analysis supporting the methods used in the State's 179B(d) 
demonstration.

III. Summary of Final Action

    EPA's proposed rule (66 FR 42187) discusses how the State's 179B(d) 
demonstration is based on a competently collected and examined set of 
the relevant available information, and reaches a reasoned conclusion 
that each of the 1992-94 exceedances, which are only slightly above the 
NAAQS, would likely not have occurred without pollutant transport from 
Mexico.
    In summary, EPA continues to believe that CAA section 179B(d) does 
not mandate a modeling demonstration, and that the State has provided 
evidence sufficient to show that, but for international transport of 
PM-10, Imperial County would have attained the annual and 24-hour PM-10 
NAAQS by the December 31, 1994 deadline.

IV. Administrative Requirements

A. Executive Order 12866

    Under E.O. 12866, 58 FR 51735 (October 4, 1993), EPA is required to 
determine whether regulatory actions are significant and therefore 
should be subject to 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, (1) 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; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
therof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    EPA has determined that the final finding of attainment pursuant to 
CAA section 179B(d) would result in none of the effects identified in 
section 3(f). A finding of attainment under section 179B(d) of the CAA 
does not impose any additional requirements on an area. This actions 
does not, in-and-of-itself, impose any new requirements on any sectors 
of the economy.

B. Executive Order 13211

    The final finding of attainment under CAA 179B(d) is not subject to 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 Fed. 
Reg. 28355 (May 22, 2001)) because

[[Page 53111]]

it is not a significant regulatory actions under Executive Order 12866.

C. Executive Order 13045

    Executive Order 13045, entitled 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.
    The final finding of attainment under CAA 179B(d) is not subject to 
Executive Order 13045 because it does not involve decisions intended to 
mitigate environmental health or safety risks.

D. Executive Order 13132

    Executive Order 13132, ``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.
    The final finding of attainment will not have substantial direct 
effects on California, on the relationship between the national 
government and California, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132. As stated above, a finding of attainment 
under section 179B(d) of the CAA does not impose any additional 
requirements on an area. This action does not, in-and-of-itself, impose 
any new requirements on any sectors of the economy. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
final action.

E. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    The final finding of attainment under CAA 179B(d) does not have 
tribal implications. For the reasons discussed above, the final action 
will not have substantial direct effects on tribal governments, 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 in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule.

F. 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.
    As discussed above, the final finding of attainment under CAA 
179B(d) does not impose additional requirements on small entities. 
Therefore, I certify that this final action will not have a significant 
economic impact on a substantial number of small entities.

G. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), 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 
costs to State, local, or tribal governments in the aggregate; or to 
the 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 
significantly or uniquely impacted by the rule.
    With respect to EPA's final finding of attainment under CAA 
179B(d), EPA notes that this actions in-and-of itself establishes no 
new requirements. Furthermore, EPA is not directly establishing any 
regulatory requirements that may significantly impact or uniquely 
affect small governments, including tribal governments. Thus, EPA is 
not obligated to develop under section 203 of UMRA a small government 
agency plan.

H. 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.
    EPA believes that VCS are inapplicable to today's final action 
because they do not require the public to perform activities conducive 
to the use of VCS.

I. Submission to Congress and the Comptroller General

    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

[[Page 53112]]

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 rule is not a ``major'' rule as 
defined by 5 U.S.C. 804(2).

J. Petitions for Judicial Review

    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 December 18, 2001. 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. 7401-7671q.

    Dated: October 9, 2001.
Sally Seymour,
Acting Regional Administrator, Region IX.
[FR Doc. 01-26406 Filed 10-18-01; 8:45 am]
BILLING CODE 6560-50-P

 
 

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