02-18589. Finding of Failure To Attain; California-San Joaquin Valley Nonattainment Area; PM-10

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is today finding that the San Joaquin Valley did not attain the 24-hour and annual particulate matter (PM-10) National Ambient Air Quality Standards (NAAQS) by the deadline mandated in the Clean Air Act (CAA), December 31, 2001.

In response to this finding, the State of California must submit by December 31, 2002 revisions to the California State Implementation Plan (SIP) that provide for attainment of the national PM-10 standards in the San Joaquin Valley and achieve five percent annual reductions in PM-10 or PM-10 precursor emissions as required by CAA section 189(d).

EFFECTIVE DATE:

This finding is effective on August 22, 2002.

ADDRESSES:

A copy of this final rule is available in the air programs section of EPA Region 9's website, http://www.epa.gov/​region09/​air. The docket for this rulemaking is available for inspection during normal business hours at EPA Region 9, Planning Office, Air Division, 17th Floor, 75 Hawthorne Street, San Francisco, California 94105. A reasonable fee may be charged for copying parts of the docket. Please call [phone] for assistance.

FOR FURTHER INFORMATION CONTACT:

Celia Bloomfield [phone] or Steven Barhite [phone], Planning Office Chief (AIR-2), Air Division, EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105; [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On March 15, 2002, EPA proposed to find that the San Joaquin Valley did not attain the 24-hour and annual PM-10 National Ambient Air Quality Standards (NAAQS) by its December 31, 2001 attainment deadline. The San Joaquin Valley's December 31, 2001 attainment deadline was established on January 8, 1993 when EPA determined that the area could not “practicably” attain the PM-10 NAAQS by the moderate area attainment deadline, December 31, 1994, and reclassified the San Joaquin Valley nonattainment area as serious (58 FR 3334, 3337). See CAA section 188(b)(1). Pursuant to CAA section 188(c)(2), serious PM-10 nonattainment areas were required to attain by December 31, 2001.

EPA has the responsibility, pursuant to sections 179(c) and 188(b)(2) of the Act, of determining within 6 months of the applicable attainment date (i.e., June 30, 2002), whether the San Joaquin Valley PM-10 nonattainment area has attained the annual and 24-hour NAAQS. Section 179(c)(1) of the Act provides that attainment determinations are to be based upon an area's “air quality as of the attainment date,” and section 188(b)(2), which is specific to PM-10, is consistent with that requirement. EPA determines whether an area's air quality is meeting the PM-10 NAAQS based upon air quality data gathered at monitoring sites in the nonattainment area and entered into EPA's Aerometric Information Retrieval System (AIRS). These data are reviewed to determine the area's air quality status in accordance with EPA regulations at 40 CFR part 50, Appendix K.^[1]

For details about EPA's proposed failure to attain finding, please see the proposed rulemaking at 67 FR 11633, March 15, 2002.

II. EPA's Responses to Comments on the Proposal

The only comments received on the proposed finding of nonattainment were submitted by the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD). Summaries of the comments and EPA's responses are set forth below.

Comment No. 1: The data set used by EPA to identify sites in nonattainment of the PM-10 NAAQS during the years 1999-2001 appears to have not been complete.

Response: The commenter is correct. The data set used by EPA was based on PM-10 data collected from January 1, 1999 through September 30, 2001. At the time of the proposed rulemaking the San Joaquin Valley PM-10 data for October 1, 2001 to December 31, 2001 was not available. The data for the last quarter of 2001 is now available and is factored into EPA's responses below. In short, the additional data does not change the conclusion in the proposed rule that the San Joaquin Valley did not attain the annual and 24-hour PM-10 standards by its CAA attainment deadline, December 31, 2001. However, as foreseen in the proposal (67 FR 11633, 11634), the additional data collected during October to December 2001 has altered the attainment status of some of the monitoring sites.

For the annual PM-10 NAAQS, the Corcoran site, which was listed as not attaining the annual NAAQS in the proposal, has now been removed from the list of sites not attaining the annual NAAQS since its three-year average annual concentration is 49 μg/m³ (See response to comment 2 below). The Hanford site is now listed as nonattainment with a three-year average annual concentration of 51 μg/m³ (See response to comment 3 below). The Fresno-Drummond site may or may not be violating the annual NAAQS; due to an incomplete data set, it is not possible to calculate an accurate three-year annual average at this time (See response to comment 3 below).

For the 24-hour NAAQS, the most significant change from our proposal is that the Modesto-14th Street site is no longer considered nonattainment for the 24-hour NAAQS (See response to comment 5 below).

Comment No. 2: The proposal incorrectly lists the Corcoran monitoring site as nonattainment for the annual PM-10 NAAQS.

Response: The commenter is correct. EPA miscalculated the three-year annual average at the Corcoran site, which resulted in our listing it as nonattainment for the annual PM-10 NAAQS. The correct three-year annual average based on the full complement of 1999-2001 data is 49 μg/m³. Thus, the Corcoran site did not violate the PM-10 annual NAAQS.

Comment No. 3: Two additional sites, Fresno-Drummond Street and Hanford, may or may not be nonattainment for the annual PM-10 NAAQS depending on whether data substitution is used for filling in missing data points in the 1999-2001 period.

Response: Due to an incomplete data set, EPA was not able to calculate an accurate three-year annual average for these two sites at the time of our proposed action. Using the final 1999-2001 data set and some data substitution in the 4th quarter of 1999,^[2] we have determined that the Hanford site definitively violated the annual NAAQS. For missing data in the 4th quarter of 1999, we substituted one half of the minimum detectable concentration of PM-10 (2.5 μg/m³) and still arrived at a three-year annual average of 51 μg/m³.

Determining the annual attainment status of the Fresno-Drummond Street site is more difficult. This site has two incomplete quarters of data, the 4th quarter of 1999 and the 4th quarter of 2000. If we substitute one half the minimum detectable concentration for the missing values we calculate a three-year annual average of 47 μg/m³, which means the site attained the NAAQS. However, if we substitute representative data from other calendar quarters we have a three-year annual average of 53 μg/m³, which exceeds the NAAQS. The true three-year average probably falls somewhere between this range but we cannot make an absolute determination of attainment at this time.

Comment No. 4: Regarding the 24-hour NAAQS, the commenter states that the Turlock site has recorded only one exceedance of the 24-hour standard during its nine years of operation and could be considered attainment if more than three years are used. 40 CFR part 50, appendix K allows this method.

Response: EPA regulations at 40 CFR part 50, appendix K, section 2.1(a) state that “[u]nder 40 CFR 50.6(a) the 24-hour primary and secondary standards are attained when the expected number of exceedances per year at each monitoring site is less than or equal to one. In the simplest case, the number of expected exceedances at a site is determined by recording the number of exceedances in each calendar year and then averaging them over the past three calendar years.”

EPA acknowledges that according to appendix K, there may be circumstances when more than three years of data can be used to determine attainment. EPA interprets appendix K to allow additional years of data only in order to reduce the effect of unusual or exceptional events. See appendix K, section 2.4(a).

Appendix K, section 3.1 dictates how to estimate the number of exceedances for a year when a monitoring site operates on a less than everyday schedule. The Turlock PM-10 monitoring site operates on a one in six day schedule. Using the equations in this section, the single observed exceedance at the Turlock site would be adjusted to 11.5 exceedances. Even if we were to average these exceedances over the lifetime of the Turlock PM-10 monitor (it began operation in January 1994, therefore we have eight years of operation, not nine) it still averages 1.4 exceedances per year, and violated the 24-hour PM-10 NAAQS.

Comment No. 5: The Modesto-14th Street station had only one exceedance in the most recent three-year period while sampling at a frequency of once every three days. This site could also be considered attainment if more than three years of data are considered as allowed by 40 CFR part 50, appendix K.

Response: Manual sampling methods for PM-10 are labor and resource intensive and because of this many agencies choose to sample PM-10 on a less than an every day schedule. Since there is not a PM-10 concentration value for each day of the year, EPA regulations at 40 part CFR 50, appendix K require an adjustment to be made to the observed number of exceedances to account for the possible effect of incomplete data. In this adjustment, the assumption is made that the fraction of missing values that would have exceeded the standard level is identical to the fraction of measured values above this level.

In order to properly adjust the data to estimate the expected number of exceedances, the sampling frequency of the PM-10 monitoring site must be known. The PM-10 monitoring site at Modesto—14th Street utilized two high volume PM-10 samplers in order to collect data on a one in three day schedule. Under this arrangement each sampler operates once every six days but the schedules are staggered so that a 24-hour PM-10 value is recorded every three days. In February 2001 one of the PM-10 samplers ceased operation. There are two ways we can view the sampling frequency of this site during the first quarter of 2001, either as a one in three day site that is missing nine scheduled samples or as a one in six day site that has six unscheduled, extra samples. Calculating the estimated number of exceedances requires a different approach depending on how we view this site. Since the site continued to operate on a one in six day schedule for the remainder of the calendar year, we believe it is appropriate to view the entire year as operating on a one in six day schedule and to use Equation 3 from 40 CFR part 50, appendix K to calculate the estimated number of excedances. The total number of estimated exceedances for the period 1999—2001 is three, averaging one exceedance per year. Therefore, this site attained the 24-hour PM-10 NAAQS.

See the previous response to comment 4 for a discussion of using more than three years of data for determining attainment.

III. Summary of Changes From the Proposal

Based on data from the last quarter of 2001 and data recalculations discussed in our responses to comments above, EPA has revised Tables 1 and 2 from the proposed rulemaking (67 FR 11633, 11634-11635) to read as follows:

Table 1.—San Joaquin Valley Monitoring Sites That Violate the Annual PM-10 NAAQS (1999-2001)

Site Name	3 year Annual mean (μg/m3)
Bakersfield-Golden State	55
Visalia	54
Fresno-Drummond	47-53
Hanford	51

Table 2. —San Joaquin Valley Monitoring Sites That Violate the 24-Hour PM-10 NAAQS (1999-2001)

Monitoring station	Estimated exceedance days 1999	Estimated exceedance days 2000	Estimated exceedance days 2001	Average # of exceedances per year 1999-2001
Fresno East Drummond	8.4	0	6	4.8
Fresno First St	0	0	6	2
Clovis	0	0	6	2
Bakersfield Golden State	6	0	12	6
Bakersfield California Ave	0	0	9	3
Oildale	3.75	0	5.63	3.1
Corcoran	6.1	0	7.6	4.6
Hanford	0	0	12.6	4.2
Turlock	11.5	0	0	3.8

EPA also received a request for information about the specific dates when the exceedances occurred. In response to that request, EPA has included Table 3, which lists the observed exceedances in the San Joaquin Valley PM-10 nonattainment area during the three-year period 1999-2001. These are the actual observed exceedances as opposed to the estimated number of exceedances ^[3] reported in Table 2.

Table 3.—Days Exceeding the 24-hour PM-10 NAAQS in the San Joaquin Valley

Date	Monitoring site	Concentration (μg/m3)
January 12, 1999	Oildale	156
October 21, 1999	Fresno—East Drumond	162
	Corcoran	174
	Turlock	157
November 14, 1999	Bakersfield—Golden State Hwy	183
January 1, 2001	Fresno—East Drummond	186
	Fresno—First Street	193
	Fresno—Clovis	155
	Bakersfield—Golden State Hwy	205
	Bakersfield—California Ave	186
	Oildale	158
January 3, 2001	Bakersfield—California Ave	190
January 7, 2001	Bakersfield—Golden State Hwy	174
	Bakersfield—California Ave	159
	Corcoran	165
	Hanford	185
November 9, 2001	Hanford	155

IV. Final Action

EPA is finding that the San Joaquin Valley failed to attain the annual and 24-hour PM-10 NAAQS by the December 31, 2001 attainment deadline as reflected in revised Tables 1 and 2 above.

Under section 189(d) of the Act, serious PM-10 nonattainment areas that fail to attain are required to submit within 12 months of the applicable attainment date, “plan revisions which provide for attainment of the PM-10 air quality standards and, from the date of such submission until attainment, for an annual reduction in PM-10 or PM-10 precursor emissions within the area of not less than 5 percent of the amount of such emissions as reported in the most recent inventory prepared for such area.” Since the applicable attainment date was December 31, 2001, the deadline for this plan revision is December 31, 2002.

V. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this final action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action in and of itself establishes no new requirements, it merely notes that the air quality in the San Joaquin Valley did not meet the federal health standards for PM-10 by the CAA deadline. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule does not in and of itself establish new requirements, EPA believes that it is questionable whether a requirement to submit a SIP revision constitutes a federal mandate. The obligation for a State to revise its SIP arises out of sections 110(a), 179(d), and 189(d) of the CAA and is not legally enforceable by a court of law, and at most is a condition for continued receipt of highway funds. Therefore, it is possible to view an action requiring such a submittal as not creating any enforceable duty within the meaning of section 421(5)(9a)(I) of UMRA (2 U.S.C. 658(a)(I)). Even if it did, the duty could be viewed as falling within the exception for the condition of Federal assistance under section 421(5)(a)(i)(I) of UMRA (2 U.S.C. 658(5)(a)(i)(I)). Therefore, today's final action does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action does not in and of itself create any new requirements and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. Because this finding of failure to attain is a factual determination based on air quality considerations, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 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. section 804(2).

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 September 23, 2002. 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).)

Authority: 42 U.S.C. 7401 et seq.

Dated: July 16, 2002.

Keith Takata,

Acting Regional Administrator, EPA Region 9.

Footnotes

1.  Pursuant to Appendix K, attainment of the annual PM-10 NAAQS is achieved when the expected annual arithmetic mean PM-10 concentration is less than or equal to the level of the standard (50μg/m³). Attainment of the 24-hour PM-10 NAAQS is achieved when the expected number of exceedances of the 24-hour NAAQS (150 μg/m³) per year at each monitoring site is less than or equal to one. A total of three consecutive years of clean air quality data is generally necessary to show attainment of the annual and 24-hour standards for PM-10. A complete year of air quality data, as referred to in 40 CFR part 50, Appendix K, is comprised of all four calendar quarters with each quarter containing data from at least 75 percent of the scheduled sampling days.

2.  Missing data was substituted using procedures in “Guideline on Exceptions to Data Requirements for Determining Attainment of Particulate Matter Standards,” EPA-450/4-87-005, April 1987.

3.  As discussed above, EPA estimates total exceedances pursuant to Part 50, Appendix K when there is incomplete monitored data.