Clean Air Act Reclassification; Wallula, Washington Particulate Matter (PM-10) Nonattainment Area

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[Federal Register: February 9, 2001 (Volume 66, Number 28)]
[Rules and Regulations]
[Page 9663-9673]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09fe01-15]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[Docket WA-00-01; 6937-5]

Clean Air Act Reclassification; Wallula, Washington Particulate
Matter (PM-10) Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA has determined 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
by the attainment date of December 31, 1997, as required by the Clean
Air Act. EPA's finding is based on EPA's review of monitored air
quality data reported for the years 1995 through 2000. As a result of
this finding, the Wallula PM-10 nonattainment area will be reclassified
by operation of law as a serious PM-10 nonattainment area.

DATES: Effective March 12, 2001.

ADDRESSES: Copies of all information supporting this action are
available for public inspection and copying between 8:30 a.m. and 3:30
p.m., Pacific Standard Time at EPA Region 10, Office of Air Quality,
10th Floor, 1200 Sixth Avenue, Seattle, Washington 98101. A reasonable
fee may be charged for copies.

FOR FURTHER INFORMATION CONTACT: Donna Deneen, EPA, Region 10, Office
of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101,
(206) 553-6706.

SUPPLEMENTARY INFORMATION:

I. Background

On November 16, 2000, we solicited public comment on a proposal 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 (PM-10) by the
attainment date of December 31, 1997, as required by the Clean Air Act.
Such a finding would result in the reclassification of the Wallula PM-
10 nonattainment area as a serious PM-10 nonattainment area by
operation of law. In the proposal, we stated that EPA would accept
public comments on the proposal until December 1, 2000. See 65 FR
69275.
During the public comment period that ended December 1, 2000,
numerous commenters asked for an extension of the public comment
period. In light of the significant public interest in the proposal and
in response to the numerous request for an extension, EPA reopened the
public comment period to December 27, 2000, resulting in a public
comment period of at least 30 days. See 65 FR 77544 (December 12,
2000). In addition, in conjunction with other public agencies in the
Wallula area, EPA held an informational meeting regarding the proposal
at the Walla Walla County Airport on December 15, 2000. The purpose of
the meeting was to provide an opportunity for EPA to explain to the
community the basis for its proposal and an opportunity for the
community to ask questions of EPA. See 65 FR at 77545. EPA also
accepted written comments at the meeting.
EPA received written comments on the proposal from more than 30
commenters. After carefully reviewing and considering all comments
received, EPA finds that the Wallula nonattainment area has not
attained the PM-10 NAAQS by the attainment date of December 31, 1997,
as required by the Clean Air Act. Copies of all written comments
received by EPA are in the docket.

II. Major Issues Raised By Commenters

The following is a summary of the major issues raised in comments
on the proposal, along with a summary of EPA's responses to those
issues. A separate document containing responses to all comments on the
proposal (Response to Comments) is in the docket.

A. Public Participation

Almost every commenter requested that the original 15-day public
comment period be extended to provide more opportunity for public
review of EPA's proposal and more opportunity for public input. Many
requested that the public comment period be extended to as long as 120
days and several

[[Page 9664]]

commenters requested that EPA hold a public hearing before taking final
action.
This action is subject to the requirements of the Administrative
Procedures Act (APA) regarding notice and public comment. 5 U.S.C. 551-
559. The APA requires EPA to provide notice of all proposed rulemakings
in the Federal Register and to provide interested persons an
opportunity to participate in the rulemaking through the submission of
written data, views, or arguments, with or without the opportunity for
oral presentation. 5 U.S.C. 553(b) and (c). As discussed above, in
response to the many requests for an extension of the public comment
period, EPA reopened the public comment period on the proposal,
providing at least 30 days for public comment. The issues involved in
the proposal are relatively straightforward: Whether the available air
monitoring data shows that the Wallula PM-10 nonattainment area
attained the PM-10 NAAQS by the attainment date of December 31, 1997.
As discussed in more detail below, the air quality data on which EPA is
relying in this action has been certified by State of Washington,
Department of Ecology (Ecology), as valid data and was put into a
publicly available data system several years ago. EPA believes that,
under the circumstances, a public comment period of at least 30 days
provided an adequate opportunity for interested parties to participate
in the rulemaking process.
With respect to the requests for a hearing, the APA does not
require a public hearing before final action. Rather, it makes clear
that the requirement to provide interested persons an opportunity to
participate in the rulemaking process through the submission of written
data, views, or arguments may be ``with or without opportunity for oral
presentation.'' 5 U.S.C. 553(c). In this case, EPA determined that an
informational meeting, rather than a public hearing, would more
appropriately respond to the public's request for information and
explanation regarding the basis for EPA's action than would a public
hearing. EPA notes that, of the seven commenters submitting comments on
the proposal after the original public comment period was reopened and
the informational meeting held, only one person requested that EPA hold
a public hearing before taking final action.

B. Monitoring

1. Location of the Wallula Monitoring Site
Many commenters, including Ecology, commented that the Wallula PM-
10 monitoring site is not properly located and does not meet siting
criteria. A primary concern noted by many commenters was that there is
no year-round vegetative ground cover near the monitor to keep the
impact of wind blown dust to a minimum.
EPA's monitoring criteria are specified in 40 CFR 58, appendix D
and appendix E (2000). Appendix D describes the monitoring objectives
and general criteria for establishing the State and Local Air
Monitoring Stations (SLAMS) network. Appendix E contains specific
siting criteria for the placement of ambient air quality sampling
probes and samplers for measuring air quality. As early as the mid
1980s, EPA evaluated the Wallula site and found that it met all of the
EPA siting criteria. More recently, in response to concerns raised
during the public comment period on this action, EPA again visited the
Wallula monitoring site, reviewed the Federal siting criteria, and
confirmed that the Wallula monitoring site meets the criteria in both
appendices D and E of 40 CFR 58. See Memorandum from Steven K. Body to
Files, ``Evaluation of the Wallula PM-10 Monitoring Site, Wallula,
Washington,'' (January 11, 2001).
It is important to note that the criteria providing that monitoring
sites should not be located in an unpaved area unless there is
vegetative ground cover year round is stated as a ``should,'' and thus
is a goal for consistency of data among monitoring sites across the
country, but is not a requirement. See 40 CFR part 58, appendix E,
section 8.4. In any event, although the Wallula monitoring site is
located in an area of very fine soil that is easily entrained by wind,
the surrounding area does have some limited natural vegetation of
Russian Thistle, sage and grass providing some protection from wind
erosion. Moreover, the soil and vegetation near the Wallula monitor is
representative of large areas of the Wallula PM-10 nonattainment area
and is not unique to the area surrounding the monitoring site. It is
thus representative of population exposure in the area. Some areas near
the Wallula monitoring site do not have any ground cover. In general,
these areas are areas that are impacted by human (anthropogenic)
activities, and include off-road motor vehicle tracks, the monitoring
site service access road, a fertilizer composting facility, and a
cattle feedlot. Thus, to the extent the monitor is impacted by
windblown dust, the dust is attributable in part to human activities
and therefore appropriately measured by the monitor.
Although Ecology has recently asserted that the Wallula monitor is
not properly sited, Ecology has entered air quality data from the
monitor into EPA's national air data base for more than a decade. By
entering the data into this data base, Ecology certified that the data
is valid data that meets Federal quality control/quality assurance
requirements. See 40 CFR 58.35(d). Ecology used the data from the
Wallula monitor in preparing a State Implementation Plan for the
Wallula PM-10 nonattainment area, which it submitted to EPA in November
1991. See State Implementation Plan for Particulate Matter in the
Wallula Study Area (November 1991) (1991 Wallula SIP). In addition,
Ecology specifically stated in a 1993 letter to a local citizen that
the monitor is in a good location. See Letter from Claude W. Sappington
to Randy Buchanan, dated August 5, 1993. Finally, as recently as June
1998, Ecology included the Wallula monitor in its SLAMS network
description for EPA approval.
2. Flying Ant Infestation
Several commenters stated that additional analysis of the filters
that were collected on June 3, 1997, and July 23, 1999, should be
conducted to determine the extent of filter contamination due to
``flying ant infestations.'' These commenters asserted that there was a
correlation between flying ant infestations and the days on which these
exceedances were recorded at the Wallula monitoring site. According to
the commenters, additional analysis could show that the data was
contaminated and should be invalidated.
In response to these concerns, Ecology's Manchester Laboratory, in
cooperation with Bacon Donaldson Laboratory in Richmond, British
Columbia, conducted additional analysis of the filter samples collected
on July 3, 1997, and June 23, 1999, to determine if the filter samples
had been contaminated by swarms of flying ants on those days. According
to Ecology, the filters were examined using light microscopy and
scanning electron microscopy (SEM). The light microscopy found possible
insect parts. The more definitive SEM found no obvious insect
fragments. Most of the particles on the filters consisted of small
mineral grains or clumps of small mineral grains. Pollen grains were
found scattered throughout as a minor fraction of the dust samples.
Ecology has concluded, and EPA agrees, that filters for July 3, 1997,
and June 23, 1999, were not compromised by contamination with insect
fragments and are valid. See

[[Page 9665]]

Letter from Mary Burg, Washington Department of Ecology, to Donna
Deneen, EPA, Region 10, dated December 27, 2000. Therefore, the
concentrations of 210 g/m\3\ and 297 g/m\3\ stand as
the PM-10 concentrations monitored in Wallula, Washington, for July 3,
1997, and June 23, 1999, respectively.
3. Purpose of the Monitor
Several commenters stated that the Wallula monitoring site was
established as a special study site and should have been discontinued.
The purpose for which the site was originally established is
irrelevant, however, so long as the monitor meets Federal siting
criteria. Even if the Wallula monitor was originally established as a
special study site, Ecology has included the site in its statewide PM-
10 SLAMS network and has submitted air quality data from the monitor to
the national air data base for more than a decade. In short, regardless
of the purpose or objective for which a monitoring site was
established, if the site meets EPA siting criteria, meets quality
assurance requirements, and reports valid data, that data can be used
for determining compliance with the NAAQS.

C. Nonattainment Area Boundaries

Several commenters stated that the boundaries of the Wallula PM-10
nonattainment area are arbitrary because the boundaries were set as a
12 mile square box centered on the monitoring site, which includes
portions of both Benton and Walla Walla County. These commenters
asserted that the boundaries were not based on any evidence indicating
sources from Benton County are causing or contributing to the
nonattainment problem. Moreover, because Benton County has its own
regulatory authority for air (the Benton Clean Air Authority or BCAA),
whereas Walla Walla County does not and is subject to Ecology's
jurisdiction, these commenters argue it is inappropriate for any
portion of Benton County to be included in the nonattainment area.
The boundaries of the Wallula PM-10 nonattainment area were
established based on information provided by Ecology to EPA in the late
1980s and early 1990s and a description of the nonattainment area was
included in the 1991 Wallula SIP. The SIP states that ``A major area of
concern is the Horse Heaven Hills, * * * a vast area of dry-land wheat
farming.'' 1991 Wallula SIP, pg. 52. The Horse Heaven Hills area is
located in Benton County across the Columbia River from the Wallula
monitoring site and a portion of the area is included in the Wallula
PM-10 nonattainment area. During the public comment period on the 1991
Wallula SIP at the state level, no one asserted that Benton County
should be excluded from the nonattainment area. In fact, one commenter
asserted that progressive tillage practices were needed on farms in the
Horse Heaven Hills area because dust from that area blows into the
Wallula area. 1991 Wallula SIP, appendix J, pg. 3. In responding to
this comment, Ecology agreed that progressive farming practices may be
needed in the Horse Heaven Hills area. 1991 Wallula SIP, appendix J,
pg. 3.\1\ Under section 107(d)(1) of the CAA, nonattainment areas are
to include, not only areas that do not meet the NAAQS, but also areas
that contribute to ambient air quality in a nearby area that does not
meet the NAAQS. The available technical information indicates that
emissions from portions of Benton County may cause or contribute to
NAAQS violations in Walla Walla County. Although the commenters suggest
that sources from Benton County are not causing or contributing to the
nonattainment problem in Walla Walla County, they provided no technical
information to support this position.
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\1\ EPA also notes that, when EPA proposed action on the 1991
Wallula SIP, no one commented that the boundaries of the
nonattainment area were improper. See 60 FR 63019 (December 8, 1995)
(proposal); 62 FR 3800, 3802 (January 27, 1997) (noting that EPA
received no public comments on its proposal).
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It is true that Benton County has a local air pollution control
authority with primary planning responsibilities for air quality in the
County, whereas Walla Walla County does not, and Ecology therefore has
the primary planning responsibilities for Walla Walla County. This fact
does not, however, support the exclusion of Benton County from the
nonattainment area, especially in light of available information
showing that sources in portions of Benton County may cause or
contribute to PM-10 NAAQS violations in Walla Walla County. Indeed,
there are many other examples of nonattainment areas where more than
one air planning authority has jurisdiction. See, e.g., 40 CFR 81.305
(PM-10 for Searles Valley planning area in California); 81.318 (ozone
for Louisville in Kentucky); 81.331 (New York City metropolitan area in
New York, New Jersey, and Connecticut). Indeed, because local air
authorities in Washington do not have jurisdiction over pulp and paper
mills and aluminum plants, it is often the case that Ecology will have
primary regulatory authority over some sources in a nonattainment area
and a local air authority will have primary regulatory authority over
other sources in the nonattainment area. Coordination between Ecology
and the local air pollution control authority with jurisdiction over
Benton County was required for the development of the 1991 Wallula SIP
and coordination between Ecology and BCAA will continue to be required
in future planning efforts as well.

D. Classification

1. Considerations in Classification
Many commenters stated that the proposed reclassification of the
Wallula PM-10 nonattainment area is not appropriate and not the best
way to address potential air problems in the area for a variety of
reasons. Some commenters stated that EPA should not take action because
the exceedances are caused by wind blown dust, not human actions, and
that EPA must first determine the cause of the exceedances before
finding the Wallula area has not attained the PM-10 standards. Others
raised concerns with the economic impact of a serious designation on
the area's economic development and with Ecology's limited resources to
address air quality issues throughout the State of Washington. Many
commenters stated that EPA should use its discretion to avoid
reclassifying the area to serious. Several noted that the Wallula area
is sparsely populated.
The Wallula area has been designated nonattainment for PM-10 and
classified as a moderate PM-10 nonattainment area since 1990, with an
original attainment date of December 31, 1994. This attainment date was
later extended to December 31, 1997. Pursuant to sections 179(c)(1) and
188(b)(2) of the CAA, EPA has the responsibility to determine, within
six months of the applicable attainment date, whether PM-10
nonattainment areas attained the PM-10 NAAQS by the attainment date. If
EPA determines that an area is not in attainment of the PM-10 NAAQS
after the attainment date, ``the area shall be reclassified by
operation of law as a Serious Area.'' CAA section 188(a)(2)(A).
Therefore, once EPA makes a finding of nonattainment after the
attainment date, reclassification to serious occurs by operation of
law, without further action by EPA. EPA's discretion in this regard is
constrained by the requirements of the Clean Air Act.
Findings of attainment or nonattainment under section 179(c)(1) of
the Act are to be based upon an area's

[[Page 9666]]

``air quality as of the attainment date.'' CAA section 188(b)(2) is
consistent with this requirement. With two exceptions discussed below,
the cause of the exceedances is not relevant to the determination of
whether air quality in an area is meeting the PM-10 NAAQS. Similarly,
factors such as the economic impact of a reclassification, the number
of people living in the nonattainment area, the planning authority's
resources needed to address a serious designation, whether the moderate
area SIP is being implemented, or the best means of controlling the
sources of PM-10 emissions are not relevant to the determination of
whether air quality in a nonattainment area meets air quality
standards. Under the statutory scheme enacted by Congress, these
factors may to some extent be considered by authorities during the
process of planning how to bring an area into attainment, but Congress
has not included them as appropriate for consideration in determining
whether the air quality of an area is meeting Federal standards.
There are two circumstances in which the cause of an exceedance is
an appropriate consideration in determining the air quality of an area.
First, section 188(f) of the Clean Air Act gives EPA authority to waive
a specific date for attainment of the standards where EPA makes certain
findings regarding the relative impact on air quality of anthropogenic
sources of PM-10 (resulting from human activities) versus
nonanthropogenic sources of PM-10 (activities where the human role in
the cause of such emissions is highly attenuated). As discussed in
section II.E below, the Wallula area does not qualify for a permanent
waiver of the attainment date. Second, under section 107(d)(4)(B)(ii)
of the CAA and 40 CFR part 50, appendix K, section 2.4, specific
exceedances due to uncontrollable natural events may be discounted or
excluded entirely from decisions regarding an area's air quality
status. See also Memorandum from EPA's Assistant Administrator for Air
and Radiation to EPA Regional Air Directors entitled ``Areas Affected
by Natural Events,'' dated May 30, 1996 (EPA's Natural Events Policy).
As discussed in section II.F. below, even if some of the data from the
Wallula monitoring site are considered uncontrollable natural events
and excluded from consideration in determining the air quality status
of the area, the remaining data still show that the Wallula area has
not attained the PM-10 NAAQS.
EPA agrees with the commenters that additional evaluation of the
data and cause of the high PM-10 readings in the Wallula area would
help to better identify the sources and activities resulting in the
high PM-10 levels recorded on the Wallula monitor. This information
would in turn assist in developing a control strategy that would bring
the Wallula area into attainment with the PM-10 NAAQS as expeditiously
as possible and with the best use of limited resources. EPA encourages
Ecology to work with BCAA, local government, PM-10 sources, and the
public in the Wallula area to conduct such evaluation.
2. Data After December 1997
One commenter stated that EPA's determination that the Wallula area
failed to attain the PM-10 NAAQS should not be based on data collected
after the attainment date of December 31, 1997. In the case of Wallula
with an attainment date of December 31, 1997, EPA first reviewed data
for calendar years 1995, 1996, and 1997. During that period, there were
two recorded exceedances, one on June 21, 1997, and one on July 3,
1997. As discussed in more detail in section II.F below, although
Ecology has claimed that the June 21, 1997, exceedance was due to a
natural event and should not be considered in an attainment
determination, Ecology has made no such claim for the exceedance on
July 3, 1997. Because the Wallula monitor is scheduled to sample once
every six days, each measured exceedance is generally counted as six
expected exceedances and represents a violation of the 24-hour PM-10
standard. Thus, the data shows that, even if only the data available on
or before the attainment date of December 31, 1997, is considered and
Ecology's natural events flagging is accepted, the Wallula area was
still not in attainment of the 24-hour PM-10 NAAQS as of the attainment
date. EPA disagrees, however, that data collected after the attainment
date of December 31, 1997, is not relevant to EPA's decision. The
exceedances occurring after the attainment date provide confirmation
that the Wallula area has not attained the 24-hour PM-10 standard.
3. Kennewick Area
Several commenters stated that EPA used its discretion in the case
of the Kennewick/Richland/Pasco Tri-Cities area in neighboring Benton
and Franklin Counties to designate the area as ``unclassifiable''
because of the occurrence of natural events similar to those that occur
in the Wallula area. These commenters urged EPA to do the same for the
Wallula area.
As noted above, the Wallula area has been designated nonattainment
for PM-10 and classified as moderate since 1990. Pursuant to sections
179(c)(1) and 188(b)(2) of the CAA, EPA is required to determine,
within six months of the applicable attainment date, whether PM-10
nonattainment areas attained the PM-10 NAAQS by the attainment date. If
EPA determines that an area is not in attainment of the PM-10 NAAQS
after the attainment date, ``the area shall be reclassified by
operation of law as a Serious Area.'' See CAA section 188(a)(2)(A).
In contrast, the Kennewick/Richland/Pasco Tri-Cities area was
designated unclassifiable under the Clean Air Act of 1990. As a result,
CAA section 107(d)(3)(B) (instead of sections 179(c)(1) and 188(b)(2))
applies to the area. Section 107(d)(3)(B) allows the EPA to consider
air quality data, planning and control considerations, or any other air
quality-related considerations the Administrator deems appropriate in
determining whether an area's designation should be revised. EPA used
this statutory discretion to use a different approach in the case of
the Kennewick/Richland/Pasco Tri-Cities area. EPA does not have
discretion under the Clean Air Act to designate the Wallula PM-10
nonattainment area as ``unclassifiable'' for PM-10. Section
107(d)(3)(F) of the Act expressly states that, ``The Administrator
shall not promulgate any redesignation of any area (or portion thereof)
from nonattainment to unclassifiable.''

E. Waiver

Several commenters stated that Wallula should receive a permanent
waiver of the attainment date under section 188(f) of the CAA due to
the significant contribution of nonanthropogenic sources. These
commenters stated that identifying and evaluating the relative
contributions of anthropogenic and nonanthropogenic sources to the PM-
10 exceedances was a primary objective of the Columbia Plateau project
and that EPA cannot find the Wallula area has not attained the PM-10
NAAQS until EPA determines that windblown dust was not significantly
contributing to the measured 1997 PM-10 concentrations.
Congress recognized 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) of the Act, Congress provided a means for EPA to waive a
specific date for attainment and certain

[[Page 9667]]

control and planning requirements when certain conditions are met in
the 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. Thus,
section 188(f) contains two different legal tests. The first test
applies to a waiver of the serious area requirements and requires that
EPA determine that anthropogenic sources do not contribute
significantly before EPA grants such a waiver. The second test applies
to a waiver of an area's attainment date and requires that EPA
determine that nonanthropogenic sources contribute significantly before
waiving the attainment date. The first test is more stringent than the
second.
EPA has issued guidance addressing implementation of section 188(f)
and reconciling the two legal tests set out in that provision and cited
above. See 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'', referred to hereafter as ``Serious Area Guidance''). In
particular, EPA noted that the disparity between the legal tests set
out in section 188(f) could lead to an absurd result. If, for example,
a moderate area was granted a permanent waiver because nonanthropogenic
sources contribute significantly to violations of the PM-10 NAAQS, the
attainment date for the area would be vacated. Therefore, the moderate
area would not be subject to reclassification under section 188(b)
because there simply would be no attainment date that the area cannot
practicably meet or that the area fails to meet. The result would be
that a moderate area would be effectively relieved from the serious
area requirements without having met the more stringent test that
Congress expressly required to be met as a prerequisite to a waiver of
such requirements in the first sentence of section 188(f)--a
determination that anthropogenic sources of PM-10 do not contribute
significantly to violation of the PM-10 NAAQS. In such an event, the
more stringent test for determining whether to waive serious area
requirements would be rendered meaningless.
To avoid this absurd result and only grant a waiver of the serious
area requirements consistent with the legal standard set out in the
Act, EPA has construed section 188(f) to provide that a moderate area
may only qualify for an attainment date waiver if it also qualifies for
a waiver of the serious area requirements under the first sentence of
section 188(f). Therefore, EPA must determine that anthropogenic
sources in the area do not contribute significantly to the violation of
the PM-10 NAAQS, and that the serious area requirements should be
waived, before EPA can grant an attainment date waiver for a moderate
area. If such a determination is made, then the attainment date may be
waived and the area would not be reclassified.\2\ See 59 FR at 42005;
58 FR 18190, 18192 (April 8, 1993) (proposal to grant a waiver of the
attainment date for Anthony, New Mexico).
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\2\ These special considerations would not be relevant where EPA
is determining whether to waive the attainment date for a serious
area (rather than a moderate area) since waiving the date in such
circumstances would not as a matter of course have the effect of
relieving the area of the serious area requirements. An area already
reclassified as serious could qualify for an attainment date waiver
solely by showing that nonanthropogenic emissions contribute
significantly to the nonattainment problem.
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In the Serious Area Guidance, EPA set forth threshold levels for
determining whether areas qualify for waivers under section 188(f).
Where emissions from all anthropogenic sources as a whole contribute
less than or equal to 5 g/m3 to 24-hour average
design concentrations and less than or equal to 1 g/
m3 to annual mean design concentrations in a nonattainment
area, after all reasonably available control measures (RACM) have been
implemented,\3\ EPA will generally regard such contributions as
insignificant for purposes of waiving requirements applicable to
serious PM-10 nonattainment areas pursuant to section 188(f). In
addition, if an area meeting this test has not yet been reclassified as
serious and the area would qualify under this test for a waiver of
certain serious area requirements as deemed appropriate by EPA, then
EPA will generally not require reclassification, since that action
would have no practical effect. In contrast, if the contribution of
anthropogenic emissions to the 24-hour design concentration exceeds 5
g/3, or if the contribution to the annual design
concentration exceeds 1 g/3, even after the
application of all RACM, then the area should be reclassified as
serious, and serious area requirements, including best available
control measures (BACM), should be implemented. See 59 FR at 42004-
42005; 58 FR 47383 (September 9, 1993) (final action granting waiver of
the attainment date for Anthony, New Mexico). If evidence in a given
nonattainment area suggests that anthropogenic source contributions are
relatively small but not less than
5 g/m3, then EPA will review the situation on a
case-by-case basis taking into account relevant information such as the
relative contribution of nonanthropogenic emissions/anthropogenic
emissions and the effects of applying additional controls to both types
of sources.
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\3\ Implementation of RACM (including reasonably available
control technology (RACT)) is required in all moderate PM-10
nonattainment areas and that requirement is not waived under the
provisions of section 188(f). Therefore, the issue is whether
anthropogenic sources still contribute significantly to violations
of the NAAQS in an area, after implementing RACM.
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In the Serious Area Guidance, EPA also discussed temporary waivers
of the attainment date for moderate areas. In cases where preliminary
data (emission inventory, filter analysis, etc.) persuasively indicate
that anthropogenic emissions may be insignificant and that
nonanthropogenic emissions may be significant in an area, but such data
are not decisive, then EPA has stated it will consider granting a
temporary or conditional waiver of the moderate area attainment date
for no more than three years to allow further evaluation of the
situation. See 59 FR at 42005-42006. In the case of Wallula, EPA
granted a temporary waiver to extend the attainment date for Wallula to
December 31, 1997, based on preliminary information that
nonanthropogenic sources of PM-10 may be significant in the Wallula
area. 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 stated it would 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 24-hour
PM-10 standard by the extended attainment date. See 62 FR at 3802.
Because Wallula is currently classified as a moderate PM-10
nonattainment area, EPA must find that

[[Page 9668]]

anthropogenic sources in the area do not contribute significantly to
violation of the PM-10 NAAQS before EPA will grant a permanent waiver
of the moderate area attainment date for Wallula, which in turn would
forestall reclassification of the area to serious. Although more than
three years have elapsed since expiration of Wallula's temporary
waiver, Ecology has not submitted a request for a permanent waiver
under section 188(f) of the CAA. Nor has Ecology submitted any
information to support a finding that anthropogenic sources in the area
do not contribute significantly to violation of the PM-10 NAAQS in the
Wallula PM-10 nonattainment area.
In addition, information available to EPA does not support such a
finding. First, a review of the location of the monitor itself strongly
suggests that the impact of anthropogenic sources is not insignificant.
Within a two kilometer radius of the Wallula monitor lie a pulp mill, a
feed lot with capacity for over sixty thousand cattle, a beef
processor, a composting facility, a tree farm, and a highway, which
collectively emit more than 631 tons of PM-10 each year. Second, based
on the 1991 Wallula SIP, although 95% of the PM-10 emissions in the
nonattainment area are classified by the State as ``wind blown dust,''
the State characterizes the emissions as ``agricultural wind blown
dust,'' that is, dust from crop land subject to agricultural practices.
The SIP also states that ``A major source of windblown dust in the area
are agricultural fields lying fallow or bare.'' Of the approximately
92,160 acres in the Wallula PM-10 nonattainment area, approximately
41,420 acres are under cultivation for wheat, corn, or alfalfa.
Ecology and EPA have participated in a research project to better
understand the causes and impacts of wind erosion and windblown dust on
the Columbia Plateau, which includes the Wallula area, and to develop
strategies for minimizing impacts. This project is known as the
Columbia Plateau Particulate Matter Research Project (the Columbia
Plateau Project). The Columbia Plateau Project supports the conclusion
that the ambient impact of anthropogenic sources of PM-10 in the
Wallula area is not insignificant. As part of the project, researchers
specifically evaluated the question of whether the air is significantly
more dusty in the Columbia Plateau since the beginning of systematic
farming (an anthropogenic activity), about 120 years ago. Beginning in
about the 1880s, the record shows there is a marked increase in the
mineral content of the sediment, a change that has remained consistent
to the present. The researchers attributed this increase to an increase
in dust deposition. The report further states that specific
characteristics of the dust (i.e., the mean diameter and the amount of
PM-10) corroborate the assumption that agricultural activity led to
this increase. See Columbia Plateau Particulate Matter Research
Project, Final Report: Executive Summary (March 1998). Moreover, the
overall tenor of the project focuses on the impacts of the wind on
farming and best management practices for reducing those impacts. In
fact, a publication published by the Columbia Plateau Project,
``Farming with the Wind,'' maintains that, in the Columbia Plateau,
fine particulates in the air are usually attributed to wind erosion of
field soils. See Farming with the Wind (1998). Here and throughout the
document, this publication makes clear the connection between wind and
farming and, in promoting best management practices, suggests that
agricultural activities exacerbate the effects of the wind. For these
reasons we believe that anthropogenic sources of PM-10 can not be
characterized as contributing only insignificantly to violation of the
24-hour PM-10 standard in the Wallula area.
The information regarding the mix of anthropogenic and
nonanthropogenic sources in the Wallula area is in marked contrast to
the information provided by New Mexico, in seeking a permanent waiver
of the moderate attainment date under section 188(f) for Anthony, New
Mexico. In that case, New Mexico submitted information showing that, in
the Anthony nonattainment area, there are no point sources emissions
and only 37.4 tons/year of PM-10 emissions from area sources (mostly
roads) and that, in the county in which the nonattainment area is
located, there are 72.1 tons/year of PM-10 emissions from point
sources. In contrast, there are more than 500,000 tons/year of
nonanthropogenic emissions from the desert and well-maintained
rangeland in the county which could not be feasibly controlled. EPA
noted that no agricultural tilling takes place in the Anthony
nonattainment area and most farmlands in the surrounding county are
located along the Rio Grange flood plain in an area containing more
rich, well developed soil. New Mexico also showed that RACM and RACT
had been implemented for all anthropogenic sources of PM-10 in the
nonattainment area and the surrounding county. Based on the emissions
inventory information, dispersion modeling, filter analysis, and other
information provided by New Mexico, EPA agreed that point source and
all other anthropogenic sources in the nonattainment area and the
surrounding county were insignificant, and that nonanthropogenic
emissions from the surrounding desert and rangelands were
overwhelmingly the dominant sources of PM-10 ambient concentrations in
the Anthony PM-10 nonattainment area. Therefore, EPA waived the
moderate attainment date for the Anthony PM-10 nonattainment area
pursuant to section 188(f) of the CAA. See 58 FR at 18192-18194. EPA
does not believe that a waiver of the moderate area attainment date is
appropriate in the case of the Wallula PM-10 nonattainment area because
it has not been established that anthropogenic sources of PM-10 in the
area contribute only insignificantly to violation of the PM-10 NAAQS.

F. Natural Events

1. Wallula Exceedances as Natural Events
Numerous commenters stated that the exceedances of the PM-10 NAAQS
at the Wallula monitoring site are caused by windblown dust, which is
considered a ``natural event,'' and should be excluded in determining
the attainment status of the Wallula area. In addition to the waiver
provisions of section 188(f) of the CAA, the Clean Air Act provides for
the exclusion of certain data attributable to uncontrollable natural
events from attainment determinations. See CAA section 107(d)(4)(B)(ii)
and 40 CFR part 50, appendix K, section 2.4. Appendix K provides, in
part, that measured exceedances of the PM-10 NAAQS in an area may be
discounted from determinations regarding nonattainment status if the
data are shown to be influenced by uncontrollable events caused by
natural sources of particulate matter. EPA has issued guidance
addressing three categories of natural events: (1) Volcanic and seismic
activity; (2) wildland fires; and (3) high wind events. See Memorandum
from EPA's Assistant Administrator for Air and Radiation to EPA
Regional Air Directors entitled ``Areas Affected by Natural Events,''
(May 30, 1996) (Natural Events Policy).
There are important distinctions between waivers under section
188(f) of the CAA and the exclusion of exceedances due to
uncontrollable natural events from attainment determinations under
section 107(d)(4)(B)(ii) of the CAA and 40 CFR part 50, appendix K,
section 2.4, although there is some overlap. In the case of a waiver
under section 188(f) of the CAA, a determination is made that

[[Page 9669]]

the area cannot attain the 24-hour PM-10 standard because of the
ambient impact of nonanthropogenic sources of PM-10. The focus is on
the source of the particulate--anthropogenic or nonanthropogenic. In
the case of natural event determinations under 107(d)(4)(B)(ii) of the
CAA and 40 CFR part 50, appendix K, section 2.4, the focus is on a
time-limited event that causes elevated PM-10 levels on a specific day
or days: a volcanic or seismic event, a wildfire, or high winds. The
source of the PM-10 can be anthropogenic or nonanthropogenic.
In the case of high winds, EPA has stated that it will consider
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 best available control measures (BACM). See
Natural Events Policy, pg. 7. EPA's Natural Events Policy sets forth a
process for declaring an exceedance as due to natural events and for
documenting a natural events claim. If natural events cause ambient
concentrations of PM-10 that exceed the NAAQS, the State is responsible
for developing a Natural Events Action Plan (NEAP) to address future
exceedances due to natural events, which includes commitments to: (1)
establish public education and notification programs; (2) minimize
public exposure to high concentrations of PM-10 due to future natural
events; (3) abate or minimize contributing controllable sources of PM-
10, which includes the application of BACM to any sources of soil that
have been disturbed by anthropogenic activities; (4) identify, study,
and implement practical mitigating measures as necessary; and (5)
periodically reevaluate the NEAP. See Natural Events Policy, pp. 7-10.
With respect to a specific claim of natural event, when air quality
data affected by a natural event are submitted for inclusion in the
national air data base, the State should request that a flag be placed
on the data to indicate that a natural event was involved and to submit
documentation to support the flag. To support a natural event claim for
high winds, the State is responsible for documenting, among other
things: (1) a clear and causal relationship between the measured
exceedance and the natural event; (2) that BACM were required for
sources of anthropogenic dust and that the sources were in compliance
at the time of the high wind event; and 3) that the documentation of
natural events and their impact on air quality is available for public
review. EPA is then to acknowledge receipt of the natural events
documentation and confirm the flagging of the exceedance as a natural
event.
In EPA's November 14, 2000, proposal finding that the Wallula area
had not attained the 24-hour PM-10 standard as of the attainment date,
EPA discussed four exceedances of the standard recorded at the Wallula
monitor during calendar years 1995 through 1999:

------------------------------------------------------------------------
Date Wallula monitoring site
------------------------------------------------------------------------
6/21/97.................................. 160 g/m3
7/03/97.................................. 210 g/m3
7/10/98.................................. 215 g/m3
6/23/99.................................. 297 g/m3
------------------------------------------------------------------------

In addition, EPA has since learned that another exceedance of the 24-
hour standard was recorded at the Wallula monitoring site on August 10,
2000, at a level of 215 g/m3. Because the Wallula
monitor is scheduled to sample once every six days, each measured
exceedance is generally counted as six expected exceedances.
As discussed in EPA's November 16, 2000, proposal, Ecology flagged
the June 21, 1997, exceedance in the national air data base as an
exceedance caused by high winds under EPA's Natural Events Policy,
although it is unclear if EPA received Ecology's documentation of this
exceedance as a natural event before the summer of 2000. 65 FR at
69276. In addition, Ecology originally flagged the July 10, 1998,
exceedance as due to a natural, high wind event. In response to a
specific inquiry from EPA in January 2000, however, Ecology notified
EPA that, after further investigation, it did not consider the July 10,
1998, exceedance to be due to high winds and that it would be removing
the flag. None of the other exceedances were flagged by Ecology when
the data was entered into the national air data base.
In response to EPA's November 16, 2000, proposal to find that the
Wallula area had not attained the PM-10 NAAQS as of the attainment
date, Ecology again reviewed the meteorology for the July 10, 1998,
exceedance and now asserts that, despite its earlier conclusion, the
July 10, 1998, exceedance was in fact attributable to a natural, high
wind event and should not be considered in determining the attainment
status of the Wallula PM-10 nonattainment area. Ecology also submitted
information to show that the June 23, 1999, exceedance was due to a
natural, high wind event. Ecology has not flagged or submitted
information to show that a natural, high wind event caused either the
July 3, 1997, exceedance or the more recent August 10, 2000,
exceedance. Because of the one-in-every-six day sampling schedule at
the Wallula monitor, either one of these exceedances precludes a
finding that the Wallula area has attained the 24-hour PM-10 standard.
The July 3, 1997, exceedance alone is sufficient to establish that the
Wallula area had not attained the 24-hour PM-10 standard by the
December 31, 1997, attainment date. The August 10, 2000, exceedance
establishes that the Wallula area has not attained the 24-hour PM-
standard as of the end of the most recent three-year period (1998
through 2000).
EPA is still reviewing the documentation submitted to support
Ecology's flagging of the June 21, 1997, July 10, 1998, and June 23,
1999, exceedances as attributable to uncontrollable natural events
(high winds). Once EPA has completed its review, EPA will notify
Ecology regarding whether EPA will confirm the flagging of the June 21,
1997, July 10, 1998, and June 23, 1999, exceedances as due to natural
events.
Although EPA is not determining in this action whether the events
were properly flagged as natural, high wind events and qualify for
exclusion from consideration under EPA's Natural Events Policy, EPA
does have preliminary concerns with the documentation submitted by
Ecology to support these natural event claims. First, Ecology has not
yet identified threshold wind conditions for the Wallula area which
would be expected to overcome BACM controls and entrain dust. In
addition, Ecology has only provided meteorology for the days on which
it has claimed the occurrence of natural events, and has not provided a
similar meteorological analysis showing wind conditions were below a
threshold on days when measured values were low. The Natural Events
Action Plan submitted by Ecology in March 1998 for the Columbia
Plateau, which includes the Wallula area, indicates spring planting and
late summer/fall harvest are the times that agricultural soil is most
exposed and subject to wind erosion. See Natural Events Action Plan for
High Wind Events in the Columbia Plateau (March 1998) (Columbia Plateau
NEAP). These time frames do not coincide with the measured exceedances
recorded on the Wallula monitor in June through August, a time when
vegetative cover (i.e., crops) would be expected to be the highest for
providing protection of the soil from wind erosion.

[[Page 9670]]

Ecology has also not provided information to show that BACM has
been implemented on all anthropogenic sources of PM-10 that contributed
to the exceedances at the Wallula monitoring site and that such sources
were in compliance with BACM at the time of the exceedances. In the
Columbia Plateau NEAP, Ecology states that BACM will be applied to
windblown dust from anthropogenic sources to mitigate the impact of
high wind events and states that a time line for identifying and
implementing BACM will be developed by May 1998. Columbia Plateau NEAP,
pp. 11 and 16. Although more than two and one half years have elapsed
since Ecology submitted its NEAP, EPA has received no information
regarding implementation of BACM in the Wallula area except for the
State's assertion that the Food Securities Act of 1996 constitutes
implementation of BACM on agricultural lands. There is no discussion of
Ecology's commitment in its NEAP to study and develop additional BACM
for agricultural sources on the Columbia Plateau in cooperation with
Washington State University and U.S. Department of Agriculture. Ecology
also has not provided documentation of implementation of BACM for the
other sources of dust that are near the Wallula monitoring site, such
as the cattle feedlot, the fertilizer composting facility, and off-road
recreational vehicle activity. Without documentation that BACM was in
effect on these sources at the time of each event, EPA cannot conclude
that the wind conditions were sufficient to overcome BACM controls.
Finally, EPA does not have evidence of Ecology's public information and
outreach efforts with respect to the exceedances recorded in the
Wallula area that are claimed to be due to natural events. During the
December 15, 2000, informational meeting held in Walla Walla to discuss
EPA's proposed finding for the Wallula area, comments by several
attendees indicated that there had not been wide-spread knowledge of
the exceedances.
2. Comparison with the Kennewick Monitoring Site
Several commenters noted that during the period from 1997 to the
present when the Wallula PM-10 monitoring site recorded five
exceedances of the 24-hour PM-10 standard, the Kennewick monitoring
site also recorded five exceedances, four of which qualified as
``natural events due to high winds'' under EPA's Natural Event's
Policy. These commenters state that the Wallula exceedances should also
be classified as natural events because the Wallula and Kennewick
monitoring sites are less than 20 miles apart.
As discussed above in this section II.F, even if some of the
exceedances recorded on the Wallula monitor can be characterized as
natural events, two of them have not been flagged as natural events.
Because of the sampling frequency at the Wallula monitor, either one of
these exceedances requires a finding that the Wallula area has not
attained the 24-hour PM-10 standard.
In any event, each exceedance of the 24-hour PM-10 standard and the
documentation to support it needs to be assessed independently based on
the criteria outlined in EPA's Natural Events Policy to determine
whether the exceedances can be attributable to a natural event and thus
qualify for exclusion from consideration in attainment determinations
for the area. EPA notes that it has confirmed only three of the flags--
the exceedances recorded on March 30, 1997, September 23, 1999, and
September 25, 1999. Moreover, as shown in the summary table below, the
exceedances recorded on the Kennewick monitor since 1997 have not been
recorded on the same days as the exceedances recorded on the Wallula
monitor.

----------------------------------------------------------------------------------------------------------------
Year Kennewick monitoring site Wallula monitoring site
----------------------------------------------------------------------------------------------------------------
1997........................ 165 g/m3 (March 30)**.......... 160 g/m3 (June 21)*
210 g/m3 (July 3)
1998........................ no exceedances.......................... 215 g/m3 (July 10)*
1999........................ 183 g/m3 (Sept 23)**........... 297 g/m3 (July 23)*
306 g/m3 (Sept 25)**...........
2000........................ 227 g/m3 (June 21)............. 215 g/m3 (Aug 10)
230 g/3 (July 31)..............
----------------------------------------------------------------------------------------------------------------
\*\ Indicates Ecology has flagged the data due to a natural event.
\**\ Indicates EPA has confirmed the flag.

The fact that there is no correlation between the occurrence of PM-
10 exceedances at the two monitors suggests that the mix of PM-10
sources that contribute to PM-10 concentrations above the NAAQS, as
well as any natural events that may impact those PM-10 sources, appear
to be different in the Kennewick area and the Wallula area.
A review of meteorological data for July 10, 1998, clearly
demonstrates that wind conditions can be significantly different in the
Kennewick area as compared to the Wallula area. An article in the Tri-
City Herald on July 11, 1998, reported that a thunder storm with peak
winds of 66 to 69 miles per hour and heavy rain passed through the
Kennewick area on July 10 causing significant damage. The Kennewick
monitor reported a PM-10 concentration of 45 g/m\3\ for July
10, 1998, whereas the Wallula monitor reported a PM-10 value of 215
g/m\3\. The article also notes that Prosser police (Prosser is
located approximately 30 miles east of Kennewick) and Hermiston police
(Hermiston, Oregon is located approximately 30 miles south of
Kennewick) reported relatively calm weather at the time of the storm.
Wind measured at Wallula for July 10, 1998, had an average speed of 7.7
miles per hour, with a one-hour maximum wind measurement of 26 miles
per hour. Thus, it is not possible to conclude that, because PM-10
exceedances during the period from 1997 through 2000 in the Kennewick
area were caused by natural events, exceedances recorded during the
same period but on different days at the Wallula monitoring site were
also caused by natural events.

G. Settlement Agreement

A few comments raised issues relating to a Consent Decree EPA
entered into in response to a law suit alleging that, among other
things, EPA had failed to make a finding regarding whether the Wallula
PM-10 nonattainment area had attained the PM-10 standards by the
attainment date as provided in CAA section 188(b)(2). Under that
Consent Decree, which was lodged with the court on January 12, 2001,
EPA agreed to sign a notice on or before January 16, 2001, for
publication in the Federal Register containing EPA's final
determination regarding whether the Wallula PM-10 nonattainment area
attained the NAAQS for PM-10 by the

[[Page 9671]]

applicable attainment date. The commenters requested a copy of the
Consent Decree so that they could comment on the decree. The commenter
also asserted that the Consent Decree incorrectly referred to Wallula
as one of the ``Group 2 PM-10 nonattainment area,'' when in fact it was
designated as a Group 1 PM-10 planning area after promulgation of the
1987 PM-10 NAAQS. The commenter suggested that EPA would delay taking
action regarding whether the Wallula PM-10 area had attained the PM-10
standard if Wallula had been properly characterized as a Group 1 area
in the Consent Decree.
EPA has provided a copy of the Consent Decree as requested by the
commenter and a copy is in the docket. Pursuant to section 309(g) of
the CAA, the Consent Decree will be subject to public notice and
comment. EPA does not believe, however, the Consent Decree is relevant
to the finding made by EPA in this action, because the Consent Decree
only specified a time by which EPA was required to make a finding under
CAA section 188(b)(2) with respect to the Wallula area, not the
substance of the finding. In addition, although it is true that the
Wallula PM-10 nonattainment area was identified as a ``Group 1 PM-10
planning area'' after promulgation of the 1987 PM-10 standards, the
reference in the Consent Decree to ``Group 2 PM-10 nonattainment
areas'' was not intended to refer to the planning areas for purposes of
the 1987 PM-10 NAAQS but rather was a category created for purposes of
the Consent Decree only.

III. SIP Requirements for Serious Areas

As stated above, EPA is finalizing its proposed action to find that
the Wallula PM-10 nonattainment area failed to attain the PM-10 NAAQS
by December 31, 1997, the CAA attainment date for the area. As a
result, the Wallula area will be reclassified by operation of law as a
serious PM-10 nonattainment area on the effective date of this final
rule.
PM-10 nonattainment areas reclassified as serious under section
188(b)(2) of the CAA are required to submit, within 18 months of the
area's reclassification, SIP revisions providing for the implementation
of BACM 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 PM-10 NAAQS
no later than December 31, 2001.\4\ 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 emit, or have the potential to emit, at least
70 tons per year of PM-10. See CAA sections 188(c)(2) and 189(b).
---------------------------------------------------------------------------

\4\ CAA sections 189(b)(1)(A), 188(e), and 188(f) authorize EPA
to grant an extension of that deadline if certain conditions are
met.
---------------------------------------------------------------------------

EPA has issued specific guidance on developing serious area PM-10
SIP revisions in the Serious Area Guidance. See 59 FR 41998 (August 16,
1994). The serious area requirements are in addition to the moderate
PM-10 nonattainment requirements of RACT/RACM.

IV. 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
would result in none of the effects identified in section 3(f) of the
Executive Order. 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. 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 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 13175

On November 6, 2000, the President issued Executive Order 13175 (65
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal
Governments.'' Executive Order 13175 took effect on January 6, 2001,
and revokes Executive Order 13084 (Tribal Consultation) as of that
date. EPA developed this final rule, however, during the period when
Executive Order 13084 was in effect; thus, EPA addressed tribal
considerations under 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

[[Page 9672]]

matters that significantly or uniquely affect their communities.
Today's 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 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 makes a factual determination, and does not
directly regulate any entities. Therefore, pursuant to 5 U.S.C. 605(b),
I certify that today's final 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 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.
EPA believes, as discussed above, that the 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) 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 the resulting
reclassification of a nonattainment area by operation of law 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 this action does not, in-and-of-itself, 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

As noted in the proposed rule, section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (NTTAA), Pub L. No.
104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use
voluntary consensus standards in its regulatory activities unless to do
so would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.

H. Submission to Congress and 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 report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).

I. 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 April 10, 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 CAA section 307(b)(2).

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, National parks,
Wilderness areas.

Dated: January 16, 2001.
Charles E. Findley,
Acting Regional Administrator, Region 10.

Part 81, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

[[Page 9673]]

PART 81--[AMENDED]

1. The authority citation for Part 81 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.
2. In Sec. 81.348, the table entitled ``Washington--PM-10'' is
amended by removing the entry for ``Walla Walla County, Wallula'' and
adding a new entry in its place for ``Walla Walla and Benton Counties''
to read as follows:

Sec. 81.348 Washington.

* * * * *

Washington--PM-10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area ---------------------------------------------------------------------------------------------------------------
Date Type Date Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Walla Walla and Benton Counties
Wallula:
The area bounded on the south by a 11/15/90 Nonattainment............................ 3/12/01 Serious.
line from UTM coordinate 5099975mN,
362500mE, west to 5099975mN,
342500mE, thence north along a line
to coordinate 5118600mN, 342500mE,
thence east to 5118600mN, 362500mE,
thence south to the beginning
coordinate 5099975mN, 362500mE.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 01-2171 Filed 2-8-01; 8:45 am]
BILLING CODE 6560-50-P

Notices For
2009
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Clean Air Act Reclassification; Wallula, Washington Particulate Matter (PM-10) Nonattainment Area

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