E7-10857. Findings of Failure To Attain; State of Arizona, Phoenix Nonattainment Area; State of California, Owens Valley Nonattainment Area; Particulate Matter of 10 Microns or Less

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is finalizing its findings that the Phoenix Planning Area (Phoenix nonattainment area) and the Owens Valley Planning Area (Owens Valley nonattainment area) did not attain the 24-hour National Ambient Air Quality Standard (NAAQS) for particulate matter of 10 microns or less (PM-10) by the deadline mandated in the Clean Air Act (CAA or the Act), December 31, 2006. These findings are based on monitored air quality data for the PM-10 NAAQS from 2004 through September 2006.

Several Indian tribes have reservations located within the boundaries of the Phoenix and Owens Valley nonattainment areas. EPA implements CAA provisions for determining whether such areas have attained the NAAQS by the applicable attainment deadline. After affording the affected tribal leaders the opportunity to consult with EPA on its proposed actions, the Agency is also finding that the tribal areas have failed to attain the 24-hour PM-10 NAAQS.

As a result of these failures to attain findings, Arizona and California must submit by December 31, 2007, plan provisions that provide for attainment of the 24-hour PM-10 NAAQS and that achieve 5 percent annual reductions in PM-10 or PM-10 precursor emissions as required by CAA section 189(d).

DATES:

Effective Date: This rule is effective on July 6, 2007.

ADDRESSES:

EPA has established docket number EPA-R09-OAR-2007-0091 for this action. The index to the docket is available electronically at http://www.regulations.gov and in hard copy at EPA Region 9, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

For Phoenix issues contact Doris Lo, EPA Region IX, [phone], [e-mail]; for Owens Valley issues contact Larry Biland, EPA Region IX, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever “we,” “us,” or “our” are used, we mean EPA.

I. Proposed Action and Subsequent Air Quality Data

On March 23, 2007, EPA proposed to find that the Phoenix and Owens Valley nonattainment areas failed to attain the 24-hour PM-10 NAAQS by the CAA deadline, December 31, 2006. For details on the background and air quality data supporting these proposed findings, please see the proposed rule. 72 FR 13725.

In our proposed rule we noted that the data on which we based our proposed findings of failure to attain were collected from January 2004 through September 2006. EPA normally uses three complete calendar years of data to determine an area's attainment status. However, when less data are sufficient to unambiguously establish nonattainment, 40 CFR part 50, appendix K, section 2.3(c) allows EPA to determine that a monitor is in violation of the PM-10 NAAQS. In the case of the Phoenix and Owens Valley nonattainment areas, two years and nine months of data were available at the time of the proposed rule and clearly indicated that the areas were in violation of the 24-hour PM-10 NAAQS. Thereafter Arizona and California have submitted data for October through December 2006 to EPA's Air Quality System (AQS) database. These data indicate that there have been no additional exceedances of the PM-10 standard in the Phoenix and Owens Valley areas.^[1] Therefore, the inclusion of these data does not affect EPA's proposed nonattainment findings for these areas.

II. Public Comments and EPA Responses

By letters dated March 15, 2007, EPA invited the Indian tribes located within the boundaries of the Phoenix and Owens Valley nonattainment areas to consult with us on the proposed findings. We received no response from the tribes. Moreover, EPA did not receive any adverse comments regarding the findings of failure to attain. Below is a summary of the comments we received and our responses.

Comments regarding Phoenix: In general, commenters agreed with EPA's proposed nonattainment finding for the Phoenix nonattainment area. Two commenters wanted EPA to impose sanctions because the area has received attainment date extensions and has still failed to achieve the attainment deadline.

Response: The consequence of the Phoenix nonattainment area's failure to attain the 24-hour PM-10 standard by December 31, 2006 is a finding of failure to attain that results in new PM-10 planning requirements and deadlines. See CAA sections 179(c) and 189(d). Under the CAA, failure to meet attainment deadlines does not result in the imposition of sanctions. However, under CAA section 179(a) and (b), if EPA determines that Arizona fails to submit a new plan by December 31, 2007, or determines that such a plan is incomplete, or if EPA disapproves such a plan in whole or in part, the Agency must impose offset or highway sanctions unless the deficiency has been corrected within 18 months.

Comment regarding Owens Valley: EPA received comments on the history of the Owens Valley nonattainment area's PM-10 nonattainment problem and the controls undertaken and committed to by the City of Los Angeles.

Response: EPA appreciates the information. The Great Basin Unified Air Pollution Control District and the City of Los Angeles will need to continue to work together to attain the PM-10 standard in the Owens Valley nonattainment area.

III. EPA Action

EPA is finding that the Phoenix and Owens Valley nonattainment areas did not attain the 24-hour PM-10 NAAQS by the December 31, 2006 attainment deadline.

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 standard 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.”

In accordance with CAA section 179(d)(3), the attainment deadline applicable to an area that misses the serious area attainment date is as soon as practicable, but no later than 5 years from the publication date of the nonattainment finding notice. EPA may, however, extend the attainment deadline to the extent it deems appropriate for a period no greater than 10 years from the publication date, “considering the severity of nonattainment and the availability and feasibility of pollution control measures.” In addition to the attainment demonstration and 5 percent requirements, the plans under section 189(d) for the Phoenix and Owens Valley nonattainment areas must address all applicable requirements of the CAA, including sections 110(a), 172(c), 176(c) and 189(c)(1).

Because the applicable attainment date for both nonattainment areas was December 31, 2006, under section 189(d), the submittal deadline for the plans will be December 31, 2007.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 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 Phoenix nonattainment area and the Owens Valley nonattainment area did not meet the federal health standard 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 the Unfunded Mandates Reform Act (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 action does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Several Indian tribes have reservations located within the boundaries of the Phoenix and Owens Valley nonattainment areas. EPA is responsible for the implementation of federal Clean Air Act programs in Indian country, including findings of failure to attain. EPA has notified the affected tribal officials and consulted with all interested tribes, as provided for by Executive Order 13175 (65 FR 67249, November 9, 2000). EPA contacted each tribe and gave them the opportunity to enter into consultation on a government-to-government basis. 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 these findings of failure to attain are factual determinations 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. 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).

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 August 6, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Volatile organic compounds

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

Dated: May 24, 2007.

Jane Diamond,

Acting Regional Administrator, Region IX.

Footnotes

1.  Table 1 in the proposed rule (“Phoenix Nonattainment Area PM-10 Data Summary 2004-2006 Sites in Violation of the 24-hour PM-10 NAAQS”) provides details on the number of observed and estimated exceedances recorded at five monitoring sites in the Phoenix nonattainment area from January 2004 through September 2006. 72 FR at 13725. While the attainment status of the monitors did not change based on the inclusion of data from October through December 2006, we no longer consider one of the sites listed in Table 1, Higley (AQS# 04-013-4006), to be in violation of the NAAQS. As indicated in footnote 2 of the proposed rule, EPA has concurred with several of Arizona's requests to exclude certain exceedances of the 24-hour PM-10 NAAQS from consideration in our nonattainment finding because these exceedances were due to exceptional or natural events. Id. Since we prepared the proposed rule, EPA has also concurred with Arizona's request to exclude two exceedance days at the Higley monitor (April 14 and 15, 2006) as being due to natural events. (March 14, 2007 letter to Nancy C. Wrona, Arizona Department of Environmental Quality from Sean Hogan, EPA). When these exceedances are excluded, the average annual estimated number of exceedances at Higley drops from 1.2 per year to 1.0 per year. The standard is attained when the estimated number of exceedances is less than or equal to one per year. See 40 CFR 50.6(a). However, even with the exclusion of the Higley data, the Phoenix nonattainment area is still in violation of the 24-hour PM-10 NAAQS based on the exceedances listed in Table 1 for the other four sites.