VOL. 58, No. 227
Rules and Regulations
ENVIRONMENTAL PROTECTION AGENCY (EPA)
40 CFR Part 81
Designation of Areas for Air Quality Planning Purposes; California
58 FR 62544
DATE: Monday, November 29, 1993
ACTION: Final rule.
SUMMARY: Pursuant to the Clean Air Act as amended November 15, 1990 (Act), the Environmental Protection Agency (EPA) is authorized to redesignate areas (or portions thereof) as nonattainment for the PM-10 (particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers) national ambient air quality standards (NAAQS). Additionally, under this section of the Act, the Governor of any state (or his/her designee) may, on the Governor's own motion, submit to EPA a revised designation of any area or portion of an area in a state. EPA, in turn, must approve or deny such redesignation.
In this final action, EPA is approving the California Air Resources Board's (CARB) (the Governor's designee) recommendation regarding the PM-10 designation for the Mono Basin portion of Mono County, California. EPA is taking final action to revise the PM-10 designation for this area from "unclassifiable" to "nonattainment." The redesignation is based upon recorded violations of the PM-10 NAAQS which occurred on or after January 1, 1989. A more detailed discussion regarding the Mono Basin portion of Mono County is provided in the following portions of this notice.
EFFECTIVE DATE: December 29, 1993.
ADDRESSES: Information supporting this final action can be obtained by contacting: Wallace Woo, Chief, Plans Development Section, Air Planning Branch (A-2-2), United States Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, California, 94105, (415) 744-1207.
FOR FURTHER INFORMATION CONTACT:
Stephanie Valentine, Plans Development Section (A-2-2), Air Planning Branch, United States Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, California, 94105, (415) 744-1178.
Barbara A. Bates (PM-10), Plans Development Section (A-2-2), Air Planning Branch, United States Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, California, 94105, (415) 744-1206.
I. PM-10 Background
On July 1, 1987, EPA revised the NAAQS for particulate matter (52 FR 24634), replacing total suspended particulates as the indicator for particulate matter with a new indicator called "PM-10" that includes only those particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers ("mu"). At the same time, EPA set forth regulations for implementing the revised particulate matter standards and announced EPA's State implementation plan (SIP) development policy elaborating PM-10 control strategies necessary to assure attainment and maintenance of the PM-10 NAAQS (see generally 52 FR 24672). EPA adopted a PM-10 SIP development policy dividing all areas of the country into three categories based upon their probability of violating the new NAAQS: (1) Areas with a strong likelihood of violating the new PM-10 NAAQS and requiring substantial SIP adjustments were placed in Group I; (2) areas that might well have been attaining the PM-10 NAAQS and whose existing SIP's most likely needed less adjustment were placed in Group II; (3) areas with a strong likelihood of attaining the PM-10 NAAQS and, therefore, needing adjustments only to their preconstruction review program and monitoring network were placed in Group III (52 FR 24672, 24679-24682).
Pursuant to sections 107(d)(4)(B) and 188(a) of the Act, areas previously identified as Group I, as well as Group II and Group III areas which had monitored violations of the PM-10 NAAQS prior to January 1, 1989 were, by operation of law upon enactment of the 1990 Amendments to the Clean Air Act (Pub. L. No. 101-549, 104 Stat. 2399), designated as moderate nonattainment areas for PM-10. All other areas of the country with no violations of the PM-10 NAAQS prior to January 1, 1989, including Mono Basin, were designated as unclassifiable for PM-10 by operation of law upon enactment of the 1990 Amendments [section 107(d)(4)(B)(iii) of the Act]. Formal codification in 40 CFR part 81 of those areas designated nonattainment and unclassifiable for PM-10 by operation of law upon enactment was announced in a Federal Register notice dated November 6, 1991 (56 FR 56694). See also 57 FR 56762 (November 30, 1992).
II. EPA's Final Action to Redesignate Mono Basin
On the basis of air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate, EPA is authorized to initiate redesignation of unclassifiable areas (or portions thereof) as nonattainment for PM-10 pursuant to section 107(d)(3) of the Act by notifying the state that available information indicates that the designation of the area should be revised. After providing an opportunity for the State to respond, EPA must promulgate the redesignation that EPA deems necessary and appropriate, consistent with section 107(d)(3)(C) of the Act. In addition, section 107(d)(3)(D) provides that a Governor of a state (or his/her designee) may, on his or her own initiative, submit to EPA a revised designation of an area within the state. EPA must approve or deny the redesignation.
In a letter to EPA, dated August 1, 1991, the California Air Resources Board (CARB), the Governor's designee, recommended that EPA redesignate the Mono Basin portion of Mono County as nonattainment for the 24-hour PM-10 NAAQS. In a Federal Register notice dated July 16, 1993 (58 FR 38331) EPA proposed to approve redesignation of the Mono Basin as nonattainment for PM-10 and solicited comments on this proposal. The public comment period closed August 16, 1993.
As described in more detail in the proposal, exceedances of the 24-hour PM-10 NAAQS were measured at the Warm Springs monitoring site in 1988 and 1990 (the monitor did not operate during 1989 for reasons unrelated to air quality). Two such exceedances were monitored in 1991. Four exceedances were measured in the area during 1992, two at the Warm Springs monitoring site and two at the Simis Ranch site.
Section 107(d)(1)(A) of the Act sets out definitions of nonattainment, attainment, and unclassifiable status. These definitions provide the applicable legal standard for designations or redesignations to the relevant attainment status. A nonattainment area is defined as any area that does not meet, or that significantly contributes to ambient air quality in a nearby area that does not meet, the national primary or secondary ambient air quality standard for the relevant pollutant [see section 107(d)(1)(A)(i) n1 ]. The exceedance monitored in the Mono Basin area demonstrate that the area does not meet the 24-hour PM-10 NAAQS. Further, in determining appropriate boundaries for the Mono Basin nonattainment area, EPA has considered not only areas where violations of the PM-10 NAAQS have been monitored, but nearby areas which significantly contribute to such violations. An unclassifiable area is defined as any area that cannot be classified on the basis of available information as meeting or not meeting the national primary or secondary ambient air quality standard for the pollutant [see section 107(d)(1)(A)(iii)].
n1 The EPA has construed the definition of nonattainment area to require some material or significant contribution to a violation in a nearby area. The Agency believes it is reasonable to conclude that something greater than a molecular impact is required.
III. Response to Comments
In the July 16, 1993 proposal for today's action, EPA provided a 30-day comment period ending August 16, 1993, in order to solicit public comments on "all aspects"of the proposal to redesignate the Mono Basin portion of Mono county, California, from "unclassifiable" to "nonattainment" for PM-10 (58 FR 38333). Comments from one party were received. The Department of Water and Power of the City of Los Angeles ("ADWP") submitted a letter dated August 16, 1993 n2. In this final rulemaking, EPA has considered and responded to LADWP's comments, below. EPA has determined that it is appropriate to finalize the redesignation in the manner proposed. The public is referred to the July 16, 1993 notice of proposed rulemaking for a full discussion of the action EPA is finalizing.
n2 Additionally, in a letter dated August 2, 1993, the Los Angeles Department of Water and Power (LADWP) requested a 90-day extension of the deadline for submitting comments on the proposed redesignation. The LADWP asserted that a "decision by the EPA regarding the PM-10 attainment/nonattainment status of the Mono Basin at this time may unduly influence the public trust balancing decision of the [California Water Resources Control] Board" in upcoming hearings regarding water rights in the Mono Basin. In a letter dated August 12, 1993, EPA denied the request for an extension of the comment period on the grounds that the EPA's action regarding the attainment or nonattainment designation of an air basin are made on the technical and legal merits of the situation, and that the Clean Air Act does not allow the EPA to "alliance interests" when making such designations.
Comment 1: The LADWP describes the Mono Lake area and contends that: Only a relatively small amount of exposed lake bed produces PM-10 emissions; PM-10 emissions are produced only under certain windy conditions; and the area impacted by the PM-10 emissions is relatively desolate with little or no human habitation.
Response 1: This comment has no bearing on whether the area meets or does not meet the PM-10 NAAQS. Section 107 of the Act sets forth the procedures for designating the attainment status of an air basin and the criteria that the EPA must use in making that designation. Where the EPA has both received a request for redesignation from a Governor, or the Governor's designee, and available data demonstrates a violation of the relevant NAAQS, EPA believes it is appropriate to approve the State's request and to redesignate the area as nonattainment. As set forth in the notice of proposed rulemaking, both of these factors are present in this rulemaking action. The EPA has received from the California Air Resources Board, the designee for the Governor of California, a request to redesignate Mono Basin portion of Mono County to nonattainment for PM-10. In addition, ambient air monitoring data clearly establishes a violation of the NAAQS for PM-10. The EPA defines ambient air as that portion of the atmosphere, external to buildings, to which the public has access. See 40 CFR 50.1(e). The public has access to the Mono Basin areas in which air monitors have measured violations of the NAAQS for PM-10.
The role of wind conditions in Mono Basin is for consideration during the state implementation plan (SIP) development process that follows a nonattainment designation. See section 188(f) of the Act. In any event, the legislative report accompanying the addition of section 188(f) to the Act states that the emissions from exposed portions of the Mono Lake shoreline should be considered anthropogenic sources:
The term anthropogenic sources is intended to include activities that are anthropogenic in origin. An example of such sources is the dry lake beds at Owens and Mono Lakes in California, which give rise to dust storms that are a result of the diversion of water that would otherwise flow to such lakes and should be considered anthropogenic sources. H.R. Rep. No. 490, 101st Cong., 2d Sess. 265-66 (1990).
Comment 2: The LADWP asserts that the air quality in the Mono Basin is excellent, and that the only population center in the Basin, the Town of Lee Vining, has never experienced an exceedance of the NAAQS for PM-10.
Response 2: See Response 1. The exceedances of the NAAQS for PM-10 experienced at the Warm Springs and Simis Ranch areas provide sufficient evidence that there is a PM-10 air quality problem in the Mono Basin.
Comment 3: The LADWP claims that designation of the Mono Basin as nonattainment for PM-10 could influence the California Water Resources Control Board's judgment or actions in balancing the uses of the Mono Lake area's public trust resources. The LADWP asserts that designation of the area as nonattainment would result in the Board "feeling obligated" to raise the level of Mono Lake without the benefit of the SIP development process. This in turn could negatively impact: the scenic resources of the Mono Lake area; water and hydroelectric supplies for the citizens of Los Angeles; and recreational resources along the Owens River and associated lakes.
Response 3: See Response 1. It is inappropriate for EPA to delay making its final technical judgment regarding the air quality status of the area because of the potential political implications outlined by the commenter. Further, upon final redesignation of the Mono Basin to nonattainment for PM-10, the appropriate California agencies will have 18 months to develop a SIP for the Mono Basin area. The SIP process serves to identify the sources of pollution which contribute to violations of the NAAQS and develop control strategies for those sources. While the reasonableness of implementing available control measures, including economic factors, are considered during the SIP development process, EPA's redesignation of the attainment status of the Mono Basin area is based upon the presence or absence of violations of the NAAQS in that air basin. See section 107(d)(1)(A)(i) of the Act.
Comment 4: The LADWP argues that environmental statutes should be implemented on a cost-benefit basis and that in the case of the Mono Basin the costs of bringing the area into attainment of the NAAQS for PM-10 would outweigh the health benefits of achieving attainment.
Response 4: See Responses 1 and 3; see also Central Arizona Water Conservation Dist. v. EPA, 990 F.2d 1531 at 1542, n.10 (9th Cir. 1993), cert. denied 62 U.S.L.W. 3245 (October 4, 1993).
IV. Significance of Today's Action
In taking final action to redesignate Mono Basin to nonattainment for PM-10, Mono Basin will by operation of law initially be classified as moderate [see section 188(a) of the Act]. For areas redesignated nonattainment for PM-10 and, classified as moderate, States must submit PM-10 SIP's to EPA within 18 months of the nonattainment redesignation meeting the applicable requirements of Part D, Title I of the Act [see, e.g., sections 172(c) and 189 of the Act]. In addition to meeting the general nonattainment area plan requirements identified in section 172(c) of the Act, the moderate area SIP must specifically include:
(A) Either: (i) A demonstration (including air quality modeling) that the plan will provide for attainment as expeditiously as practicable, but no later than the end of the sixth calendar year after the areas's designation as nonattainment; or (ii) a demonstration that attainment by such date is impracticable [see section 189(a)(1)(B)].
(B) Provisions to assure that reasonably available control measures (including reasonably available control technology) for the control of PM-10 shall be implemented no later than 4 years after designation [see section 189(a)(1)(C)].
(C) A new source review permit program, meeting the requirements of section 173 of the Act, for the construction and operation of new and modified major stationary sources of PM-10 [see section 189(a)(1)(A)].
(D) Quantitative milestones to be achieved every 3 years until the area is redesignated attainment and which demonstrate "reasonable further progress" towards attainment [see section 189(c)].
(E) Control requirements for PM-10 precursors. The control requirements applicable to major stationary sources of PM-10 (e.g., reasonably available control technology and nonattainment new source review control requirements) also must apply to major stationary sources of PM-10 precursors unless EPA determines that sources of precursors do not contribute significantly to PM-10 levels which exceed the NAAQS in the area [see section 189(e)].
EPA has issued detailed guidance on the Clean Air Act requirements applicable to moderate PM-10 nonattainment areas. See 57 FR 13498 (April 16, 1992) & 57 FR 18070 (April 28, 1992).
The State is also required to submit contingency measures, pursuant to section 172(c)(9) of the Act, which are to take effect without further action by the State or by EPA, upon a determination by EPA that an area has failed to make reasonable further progress or attain the PM-10 NAAQS by the applicable attainment date (see 57 FR 13510-13512, 13543-13544). The EPA is establishing the schedule for submission of contingency measures as called for in section 172(b) of the Act. The State is to submit contingency measures for Mono Basin within 18 months of the effective date of today's final rule. This is the same time the other moderate area SIP requirements described above are due.
The EPA also has the authority to reclassify Mono Basin to serious if EPA determines that the area cannot practically attain the PM-10 standards for moderate areas by the applicable attainment date or if the area fails to timely attain the NAAQS. See section 188(b) of the Act. In addition to meeting the requirements applicable to moderate nonattainment areas, areas reclassified as serious must implement more stringent control requirements.
A. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. The requirement of preparing such analysis is inapplicable, however, if the Administrator certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities (see 5 U.S.C. 605(b)). The final redesignation of Mono Basin will not impact or impose any significant requirements on a substantial number of small entities.
Redesignation of an area to nonattainment under section 107(d)(3) of the Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any regulatory requirements on sources. To the extent that the state must adopt new regulations, based on an area's nonattainment status, EPA will review the effect those actions have on small entities at the time the state submits these regulations. Accordingly, I hereby certify that the action proposed today will not have a significant economic impact on a substantial number of small entities.
B. Executive Order 12866
This action has been classified as a Table 2 Action by the Regional Administrator under the procedures published in the Federal Register on January 19, 1989 (54 FR 2214-2225). On January 6, 1989, the Office of Management and Budget (OMB) waived Table 2 and Table 3 SIP revisions from the requirement of section 3 of Executive Order 12291 for a period of two years. U.S. EPA has submitted a request for a permanent waiver for Table 2 and Table 3 SIP revisions. The OMB has agreed to continue the waiver until such time as it rules on U.S. EPA's request. This request continues in effect under Executive Order 12866 which superseded Executive Order 12291 on September 30, 1993.
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Intergovernmental relations, National parks, Wilderness areas.
Dated: November 12, 1993.
John Wise, Acting Regional Administrator.
For reasons set forth in the preamble, part 81 of title 40, Code of Federal Regulations, is amended to read as follows:
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 81.305 is amended in the table for "California-PM-10" by adding an entry for "Mono County" to read as follows:
@ 81.305 -- California. * * * * * California-PM- 10 Nonattainment Areas Designated area Designation Date Type * * * * * * * Mono County Mammoth Lake planning November 15, 1990. Nonattainment area Includes the following sections: a. Sections 1-12, 17, and 18 of Township T4S, R28E; b. Sections 25-36 of Township T3S, R28E; c. Sections 25-36 of Township T3S, R27E; d. Sections 1-18 of Township T4S, R27E; and e. Sections 25 and 36 of Township T3S, R26E Mono Basin Hydrologic Unit December 29, 1993. Nonattainment 1809010 * * * * * * * Designated area Classification Date Type * * * * * * * Mono County Mammoth Lake planning November 15, 1990 Moderate. area Includes the following sections: a. Sections 1-12, 17, and 18 of Township T4S, R28E; b. Sections 25-36 of Township T3S, R28E; c. Sections 25-36 of Township T3S, R27E; d. Sections 1-18 of Township T4S, R27E; and e. Sections 25 and 36 of Township T3S, R26E Mono Basin Hydrologic Unit December 29, 1993 Moderate. 1809010 * * * * * * *
[FR Doc. 93-29140 Filed 11-26-93; 8:45 am]
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