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Citation: 71 Fed. Reg. 63642 2006

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-- The search text of this PDF is generated from uncorrected OCR text.63642 Federal Register/Vol. 71, No. 209/Monday, October 30, 2006/Rules and Regulations

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 52and 81 [EPA-R09-OAR-2006-0583, FRL-8234-1]
Approval and Promulgation of Implementation Plans; Designation of Areas forAir Quality Planning Purposes; State of California; PM-10; Determination of Attainment forthe San JoaquinValley Nonattainment Area; Determination Regarding Applicabilityof Certain Clean AirAct Requirements
AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.

SUMMARY: EPA is finalizing its determination that the San Joaquin Valley nonattainment area (SJVorthe Valley) inCalifornia has attained the National Ambient Air Quality Standards (NAAQS)for particu'late matter with an aerodynamic diameter less than orequal
to anominal 10 micrometers (PM-10). This determination is based upon monitored air quality data for the PM10NAAQS during theyears 2003-2005. The SJV continues to attain the PM-10 NAAQS in 2006 based on the latest available quality assured data. EPA is also finalizing its determination that, because the SJV has attained thePM-10 NAAQS, certain Clean Air Act (CAA or the Act) requirements are not applicable for as long as the SJV continues to attain the PM-10 NAAQS. DATES: Effective Date:This rule is effective October 30, 2006. ADDRESSES: You can inspect copies of the docket for this action at EPA's Region IXoffice during normal business hours by appointment at the following locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901:

Air andRadiation Docket and Information Center, U.S. Environmental Protection Agency, Room B-102, 1301 Constitution Avenue, NW. (Mail Code 6102T), Washington, DC 20460. FOR FURTHER INFORMATION CONTACT: Doris Lo, EPA Region IX, (415) 972- 3959, lo.doris@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, "we," "us" and "our" refer to EPA.
Table ofContents I.Summary ofProposed and Final Actions II.

Public Comments and EPA Responses A. Environmental Justice B.The CleanData Policy C.New Particulate Matter (PM) NAAQS D.EPA Policy on Special Purpose

Monitoring Data E.Adequacy ofthe SJVMonitoring Network F. DataNot Included inDetermining

Attainment 1.Data From September 3,2004 High Wind

Event 2.Data From BAM andTEOM Monitors G.Representativeness ofData H. Other Comments IM1. Final Action IV. Effective Date ofThis FinalAction V. Statutory and Executive Order Reviews

I. Summary of Proposed andFinal Actions
OnJuly 19, 2006, EPA proposed to determine that the SJV has attained the 24-hour and annual NAAQS for PM-IO. (71 FR 40952). 1 The proposed determination was based upon monitored air quality data during the years 2003-2005 which indicated that there were no violations during that time. This data is summarized in table 1in the proposed rule. 71 FR at 40953- 54. EPA also based its proposed determination onmonitored air quality dataindicating the area continued to attain in 2006. EPA also proposed to determine that certain Clean Air Act (CAA orthe Act) requirements were not applicable for as long asthe SJV continued to attain the PM-10 NAAQS. Specifically, forthe SJV, EPA proposed
to determine that the CAA section 172(c)(9) contingency measure requirement forthe area is suspended. For a more detailed discussion ofthe related'background for the SW and of the proposal, please refer to the proposed rule.

Inthis notice EPA is finalizing its determination that the SJV has attained the NAAQS, based upon three years of complete, quality-assured monitored air quality data for 2003-2005, and based upon its determination that the area continues to attain the PM-10 NAAQS in 2006based on quality assured data submitted to EPA's AQS Database through July 31, 2006. See AQS Report AMP350 titled "SJV PM-10 SLAMS Raw Data Report January 2003-July 2006" included in the docket forthis notice.In finalizing its determination, EPA has also reviewed preliminary monitoring data formonitors in the SJV that has become available since July 31, 2006.

EPA learned recently ofpreliminary data indicating that exceedances ofthe standard were monitored on September

1 On September 21, 2006, EPA signed a final rule revoking the annualPM-10 standard. That revocation will be effective 60 days from publication oftherule in the Federal Register. Since the revocation will notbe effective until after

our attainment determination forthe SJV, we are taking final action determining that the area has attained both the annual and 24-hour PM-10 standard. 22, 2006 at State andLocal Air Monitoring Station (SLAMS) monitors in Corcoran (215 g/m3), BakersfieldGolden State Hwy. (157 g/m 3), and Oildale (162 pg/m 3).2 The California Air Resources Board (CARB) and the San Joaquin Valley Air Pollution Control District (District)have informed EPA that, based on preliminary analysis, they believe that these exceedances are due
to high wind and wildfire natural
events. CARB notified EPA that it intends to flag these data as caused by natural events andto request that EPA

concur with these flags. As such the datawould notbe included for consideration in a determination of attainment forthe SJV, pursuant to EPA's Natural Events Policy.3 Because these data, which were collected using manual reference method samplers, are preliminary and have notbeen qualityassured, and because EPA believes that they may qualify as caused by naturalevents, and thus be excluded from consideration inan attainment determination, EPA is proceeding to finalize its determination that the area is in attainment. If, after the data is quality-assured, and after further evaluating CARB's request with respect to these data, EPA determines that the data donot qualify forexclusion under EPA's natural events policy, and EPA furtherbelieves that ifincluded that they would establish that the area is in violation ofthe NAAQS, EPA will proceed with appropriate rulemaking action to withdraw its determination of attainment.

EPA is also finalizing its determination that,because the SJV has attained the PM-10 NAAQS, certain requirements, and specifically the contingency measure requirement of section 172(c)(9) ofthe Clean Air Act, do not apply to the SJV area forso long

asthe area continues to attain the NAAQS.

II. Public Comments and EPA Responses

EPA received one comment letter in support of our proposal from the District stating thatthe determination is a result of"nearly two decades ofintense efforts
to reduce emissions ofPM-10 and its precursors." The District also states that

224-hour PM-10 exceedances were also recorded

on September 22, 2006 with the automated equivalent (Beta Attenuation Mass/Tapered Element Oscillating Microbalance) PM-10 analyzers operated atthe Bakersfield-Golden and Corcoran sites, aswell as the Beta Attenuation Mass monitor
at the Tracy site. See response to conment 15 below.

3EPA's NEP Memorandum fromMary D. Nichols, Assistant Administrator for Air and Radiation to Regional AirDirectors, "Areas Affected by PM-10 Natural Events", May 30, 1996.

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"emissions ofPM-10 and its precursors have decreased by about 24% since 1990" which is significant given the population growth. Finally the District
states that this determination "does not in any way imply or allow the District

or CARB to relax air quality strategies" and will allow the District to better dedicate resources for upcoming plans that will focus onPM-2.5 and ozone attainment.

EPA received one adverse comment letter from Earthjustice, representing Medical Advocates for Healthy Air, Sierra Club, Latino Issues Forum, Steven andMichele Kirsch Foundation, the Center for Biological Diversity, El Comite para el Bienestar de Earlimart/ The Committee forthe Well Being of Earlimart, Fresno Metro Ministry and the Coalition for Clean Air. EPA also received approximately 2000 adverse
comment letters from individual citizens. Many ofthese comments were form letters that contained identical
comments. EPA addresses all ofthe specific comments raised by Earthjustice in its responses to comments numbers I to 24. EPA is respondingto many ofthe individual citizens' comments in responses to comments numbers 25 and 26 and in the context ofthe responses to Earthjustice, since they raised many of the same issues.

A. Environmental Justice
Comment 1:EPA received comments arguing that its process for making this determination did not adequately considerEPA's environmental justice mission: "[t]o achieve equal environmental protection so no segment ofthe population, regardless ofrace, ethnicity, culture or income bears an undue burden ofenvironmental pollution andto ensure that the benefits of environmental protection are shared by everyone." The principal environmental justice commenter, Earthjustice, argues thatmost sources of PM-10 pollution in the Valley are located in agricultural areas where population densities are low, but percentages ofminority andlow-income residents are high. The comment claims that EPA has not adequately investigated whether suchareas, particularly in the western part ofthe Valley, are inattainment and is not adequately monitoring those areas. Withoutmore thorough investigation and monitoring of air quality in the western part ofthe Valley, the comment concludes, EPA cannot "carry out its environmental justice mandate."

Response:EPA is committed to environmental justice, and a November 2005 memorandum by Administrator Johnson has reiterated EPA's "ongoing commitment to ensure environmental justice for all people, regardless ofrace, color, national origin, or income." EPA believesthat this attainment determination is fully consistent with that commitment, and ensures environmental protection for all residents oftheValley, including residents ofthe western part ofthe Valley, and regardless ofrace, color, national origin, orincome.

The gist ofthe environmental justice argument is that EPA has not adequately investigated and analyzed air quality in minority and low-income communities in the western part ofthe Valley. Although thatis framed as an environmental justice argument, it is really a challenge to the adequacy ofthe legalbasis for EPA's determination that the entire Valley is inattainment. As explained more fully elsewhere, EPA has an adequate factual and legal basis forthat determination, and has assessed airquality through monitored data that isrepresentative ofall areas ofthe Valley, including the west side, minority and lowincome communities addressed in the comment. Thus, the
commenter is mistaken in claiming that EPA failed to investigate those areas adequately, or that such a purported failure prevented the Agency from adequately implementing environmental justice.

Similarly, EPA rejects claims thatthe monitoring conducted by the State and District is deficient. As explained more fully elsewhere, the District's monitoring network provides for adequate and accurate assessments of air quality throughout the Valley, including minority and low income communities in the western area. Comment2:Commenters, principally Earthjustice, assert that low income and minority populations were not provided

an adequate opportunity to comment on the rule. Earthjustice asserts that "the concerned people ofthe Valley" sought

an "opportunity tobe heard," and unsuccessfully requested thatEPA hold

a hearing. That comment also points out thatmany west side residents "do not speak English, donot own computers, and do nothave the time or expertise to draft public comments."

Response:EPA believes that interested parties were given adequate opportunities to comment on the proposed determination of attainment. Section 553(c) ofthe Administrative Procedure Act (APA), which governs informal rulemaking actions, such as determinations ofattainment, does not require EPA to provide for a hearing. Section 553 (c) states that: The agency shall give interested persons an opportunity toparticipate in therulemaking through submission ofwritten data, views,or arguments with orwithout opportunity for oral presentation.

EPA does not, as a matter ofstandard practice, conduct hearings on determinations of attainment. EPA does
not believe ahearing was needed in this
case, or would have been an appropriate

use ofthe Agency's limited resources. EPA also does not agree with the commenters' implicit suggestion that, without ahearing, Valley residents had

no forum for expressing their concerns.

EPA believes that the opportunity to provide written comments was sufficient for providing input fromthe public. That gave interested parties an opportunity to present data, views and arguments through written comments. No showing has been made that the opportunity to provide written
comments precluded meaningful public participation. To the contrary, EPA received comments that identified and expansively discussed the concerns of minority andlow income communities in the Valley. Thus, EPA does not agree with the suggestion that Valley residents, or anyone else, did not have adequate input into Agency decision making.
B. The CleanDataPolicy
Comment3:The commenter contends that EPA cannot use its Clean Data Policy to exempt the District from subpart 4 requirements. The commenter notes that EPA cites to two EPA memoranda incorporated into EPA's Phase 2 8-hour ozone implementation rule, andrelies on other attainment findings andredesignations that interpret the Clean Data Policy tojustify waiving CAA requirements for PM-10

areas. The commenter argues that EPA provides none ofits own analysis for proposing that the attainment determination willrelieve the District of the obligation to comply with CAA requirements for reasonably available control measures ("RACM"), attainment demonstrations, reasonable further
progress ("RFP") and contingency

measures. The commenter also alleges that EPA improperly expands the Clean Data Policy by claiming thatthe District will no longer be subjectto theRACM requirements ofthe Act. The commenter further contends that even ifone were to accept EPA's argument, it would not apply tothe SJVbecause as a serious PM-10 nonattainment area the Valley.is subject tothe BACM requirements of section 189(b)(1)(B). The commenter notes thatEPA's Addendum tothe General Preamble makes clear that unlike RACM, determinations ofBACM 

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are not tied towhat is necessary for attainment. The commenter points out that the proposal correctly omits BACM from the list ofCAA requirements waived under the Clean Data Policy, but requests that the final rule should be explicit that the BACM requirement is maintained.

Response:As noted in the proposal, EPA has previously approved all ofthe serious area PM-10 attainment plan requirements forthe SJV except forthe contingency measure requirements of CAA section 172(c)(9). See 69 FR 30006 (May 26, 2004) approving the 2003 PM10 Plan for the SJV. In that action,EPA approved the RFP, attainment and RACM/BACM demonstrations for the
SJV.Thus the issue ofwhether these requirements should be suspended is
notbefore us, except insofar as our reasoning for why the contingency

measures requirement is suspended
rests on the rationale for suspending the attainment demonstration and RFP requirements. Nevertheless, as explained below, EPAbelieves that once the area attains the standards the RFP, attainment and RACM demonstrations would not be needed even though they have already been approved.

That said,EPA is correct in applying the Clean Data Policy in its determination ofattainment in the SJV, addaffirms the Agency's interpretation ofsubparts 1 and4 ofpart D ofthe CAA. AsEPA noted in its proposal, the Clean Data Policy has been applied inthe
context ofthe 1-hour and 8-hour ozone standards as well as in a number ofPM10 rulemakings. EPA's discussion of the application ofthe Clean Data Policy is
set forth at length in its proposed rulemaking onWeirton, WestVirginia 71 FR 27440, 27443-27445 (May 11, 2006), as well asin the memoranda and rulemakings cited therein. As we explained inthat notice, the reasons for relieving an area that has attained the relevant standard ofcertain partD, subpart 1 and 2 obligations, apply equally as well to part D, subpart 4, which contains specific attainment demonstration andRFP provisions for
PM-IOnonattainment areas.

EPA's analysis ofthe Clean Data Policy as it applies to PM-10 areas was contained in the documents cited in the proposal. Contrary to commenter's contention, the factthat EPA's analysis w"was provided in prior memoranda and

rulemakings does not detract from the fact that it is EPA's own analysis. Indeed, EPA's consistency in the application ofits interpretation lends it added weight. We reiterate here that EPA's analysis ofits legal interpretation

can be found in its "Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard-Phase 2" (Phase2 Final Rule) 70 FR 71612, 71645-71646 (November 29, 2005) and the rulemakings and memoranda cited therein, the May 10, 1995 memorandum from John S. Seitz, entitled "Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard," the December 14, 2004 memorandum from StephenD. Page, entitled, "Clean Data Policy forthe Fine Particle National Ambient Air Quality Standards," and rulemakings concerning the application ofthe policy to PM-10 areas-71 FR 6352, 6354 (February8, 2006); 71 FR 13021, 13024 (March 14, 2006); and 71 FR 27440, 27443-27444 (May 11, 2006).

Furthermore, three U.S. Circuit Courts ofAppeals have upheld EPA rulemakings applying EPA's interpretation of subparts 1 and 2 with respect to clean data for ozone. Sierra Clubv. EPA, 99 F.3d 1551 (10th Cir. 1996); SierraClubv. EPA, 375 F.3d 537 (7th Cir. 2004); OurChildren'sEarth Foundation v. EPA,No. 04-73032 (9th Cir. June 28, 2005) (Memorandum Opinion). EPA has also set forth its legal rationale for the Clean Data Policy in briefs filed in these cases, and hereby incorporates those briefs insofar as relevant here. See SierraClubv. EPA, No. 95-9541 (10th Cir.), SierraClub'v. EPA,No. 03-2839, 03-3329 (7th Cir.), Our Children's EarthFoundationv. EPA,No. 04-73032 (9th Cir.). 4

As EPA noted in those memoranda and rulemakings, EPA believes it is reasonable tointerpret the provisions regarding attainment demonstrations, reasonable further progress, RACM requirements, contingency measures, and otherrelated requirements asbeing suspended and as not requiring further submissions to achieve attainment for so long as the area is in fact attaining the standards. Under the policy, EPA is not granting an exemption from any applicable requirements under part D. Rather, EPA has interpreted these provisions as not requiring submissions forso long as the area remains in attainment with the standard. This is
not a waiver ofrequirements that by their terms apply; it is a determination that certain requirements are written so

asto be operative only ifthe area is not attaining the standards. Thus, inmaking its determination ofattainment, EPA is also concluding that certain subpart 4 and subpart 1requirements are no longer applicable for so long as the area remains in attainment.

4These briefs are inthe docket for this rulemaking. With respect to the requirement for attainment demonstrations, EPA. believes that the statutory requirement for an attainment demonstration-a SIP revision which identifies the level of future reductions needed to achieve the NAAQS and any additional adopted

measures needed to.achieve these reductions " is written so asto be inapplicable once the NAAQS is attained. Section 189(a)(1)(B) requires that the planprovide for "a demonstration (including air quality modeling) that the [SIP] will provide for attainment by the applicable attainment date. * * " Section 189(b)(1) further requires that serious PM-10 nonattainment areas submit:

(A) A demonstration (including air quality modeling)-

(I)that theplan provides for attainment of the national ambient air quality standardby the applicable attainment date, or (ii)for any
area for which the State is seeking, pursuant to section 188(e), an extension ofthe attainment date beyond the date setforth in section 188(c), that attainment bythat date would beimpracticable, and that the plan provides for attainment bythe most expeditious alternative date practicable.

Ifan area is already monitoring attainment, EPA believes that Congress intended norequirement for an area to make a further submission containing additional measures to achieve attainment. Since the SJV area is already in attainment,there is no need for itto submit a plan demonstrating how the

area will reach attainment had itnot already done so. This is consistent with the interpretation ofthe section 172(c)(1) attainment demonstration requirement that EPA provided inthe General Preamble andthe Page memorandum, and ofthe section 182(b) and (c) requirements set forth in the Seitz memorandum. As EPA stated in the General Preamble, no other

measures to provide for attainment would be needed by areas seeking redesignation to attainment since "attainment will have beenreached." 57 FR at 13564.

Wenote that the commenter offered

no specific critique ofEPA's interpretation ofthe Clean Data Policy with regard to the attainment demonstration requirement. In addition, EPA's conclusion is consistent with the rule ofstatutory construction that
statutes should be construed to avoid absurd results andfavor public convenience. Because the SJV has already reached attainment based on existing measures, no additional

measures to demonstrate attainment are required. Thus, under the language of section 172(c)(1), section 189(a)(1)(B) and section 189(b)(1), an attainment

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demonstration would be the empty set. EPA therefore believes that, inthe
context ofevaluating whether the contingency measure requirement is suspended, because the SJV area is attaining the standard, the attainment demonstration requirement would also be suspendedfor so long as the area remains in attainment, had it not already been approved.

As forthe suspension oftheRACM requirement, it does not have significance in the context ofthe SJV, because, as the commenter notes, BACM, which goes beyond RACM, has already been approved for the SJV, and BACM would not be suspended bythe determination ofattainment because as petitioner notes the BACM requirement is not tied to attainment needs. Thus EPA neednot further address whether therequirement for RACM is suspended in accordance with the Clean Data Policy.

Comment 4:Thecommenter alleges thatEPA relies heavily on the proposed redesignation ofWeirton, West Virginia,
toprovide the analysis forwaiving the RFPrequirements forPM-10 areas. The requirements forPM-10 areas are found in CAA section 189(c)(1). The
commenter argues that EPA's analysis ignores the plain language ofthe CAA. The commenter claims thatthe decisions in OurChildren's Earth Foundation v. EPA,No. 04-73032 (9th Cir. June 28, 2005) (Memorandum Opinion) and SierraClubv. EPA, 99 F.3d 1551, 1555 (10th Cir. 1996) upheld EPA's interpretation based on the Court's finding ofambiguity inthe statutory language in sections 172(c)(1), (2), and (9) and section 182(b)(1)(A)(I). The commenter asserts that, unlike those provisions, the language ofsection 189(c)(1) isperfectly clear. The
commenter contends that milestones are to be setto showreasonable further progress and an area isrequired to submitrevisions demonstrating that it has achieved those milestones every three years until the area is "redesignated." The commenter concludes that there is no ambiguity and that appeals to policy objections
cannot rewrite clearlanguage into something ambiguous.

The commenter adds that references in theWeirton notice to other provisions in section 189 areunavailing. Section 189(c)(3) requires areas thatfail
to achieve a milestone to submit revisions to assurethe next milestone will bemet. The commenter asserts that this obligation continues through the final milestone. Where there is "no next milestone" the final revision must

ensure that the area will attain the NAAQS. The commenter states that nothing intheserequirements is internally inconsistent orprevents areas from complying with the plain language of section 189(c)(2).

The commenter contends that arguments that this amounts to "overcontrol" are without merit. The
commenter argues that a key distinction between a finding ofattainment and redesignation is that a redesignation requires EPAto find that "the improvement in airquality is due to permanent and enforceable reductions in emissions." CAA section 107(d)(3)(E)(iii). The commenter argues that since EPA is not making such a finding, itis rational for Congress to have insisted that an area continue to reduce emissions until that showing can be made and the area can be redesignated.

Response:EPA's interpretation does
not "waive" requirements nor does it ignore the plain language ofthe statute. Withrespect toRFP, ithas been EPA's longstanding interpretation that the general provisions ofpart D, subpart 1 ofthe Act (sections 171 and 172) do not require the submission of S1Previsions concerning RFP for.areas already attainingthe ozone NAAQS. In the General Preamble, we stated:

[Requirements forRFP will not applyin evaluating a- request forredesignation to attainment, since, at aminimum, theair quality data for thearea must showthatthe

areahas already attained. Ashowingthat the State willmakeRFP towardattainment will, therefore, haveno meaning at thatpoint.
57 FR at 13564. EPAbelieves that the

samereasoning applies to the PM-10 provisions ofpartD, subpart 4.

Section 171(1) (section 7501 (1)) states that for purposes ofpartD oftitleI, RFP "means such annual incremental reductions in emissions ofthe relevant air pollutant as are required by this part

or may reasonably be required by the Administrator for thepurpose of assuring attainment ofthe applicable national ambient airquality standard by the applicable date." Thus, whether dealing with the general RFP requirement ofsection 172(c)(2), the ozone-specific RFPrequirements of sections 182(b) and (c), orthe specific
RFPrequirements for PM-10 areas of part D, subpart 4, section 189(c)(1), the stated purpose ofRFP is to ensure progress towards attainment bythe applicable attainment date. Section 189(c)(1) states that:

Planrevisions demonstrating attainment submitted tothe Administrator for approval underthis subpart shall contain quantitative milestoneswhich aretobe achieved every 3 years until the area isredesignated to attainment and which demonstrates reasonable furtherprogress, as defined in section 7501a(1) ofthis title,toward attainment by theapplicable date. Although this section states that revisions shall contain milestones to be achieved "untilthe area isredesignated
to attainment," it further specifies that these are milestones that "demonstrate reasonable further progress, as defined in section 7501(1) ofthis title, toward attainment by the attainment date." They are also tobe included in "plan revisions demonstrating attainment." Thus such milestones have thepurpose ofshowing reasonable further progress "toward attainment by the applicable date," as defined in section 171. It is therefore clear from the language ofthe
statute that once the area has attained the standard, no further milestones are necessary or meaningful. Bydefinition, the "reasonable further progress" provision requires only such reductions in emissions as arenecessary to attain the NAAQS by the attainment date.This interpretation is supported by language in section 189(c)(3), which mandates that astate that failsto achieve a milestone must submit a plan that

assures that the state achieve the next milestone or attain the NAAQS ifthere is no next milestone. Section 189(c)(3)

assumes thatthe requirement to submit and achieve milestones does not continue after attainment ofthe NAAQS. Thus, once attainment has been reached,there are no further milestones tobe achieved, even though the area has not yet been redesignated
to attainment, for so long asthe area remains inattainment. The commenter is therefore incorrect in asserting that section 189(c)(1) is "perfectly clear" in requiring additional RFP milestones after attainment has been reached.

In the General Preamble, we noted with respect to section 189(c)that "the purpose ofthe milestone requirement is
to 'provide foremission reductions adequate to achieve the standards bythe applicable attainment date' (H.R. Rep. No. 490 101st Cong., 2d Sess. 267 (1990))." 57 FR 13539 (April 16, 1992). Ifan area has infact attained the standards, the stated purpose ofthe RFP requirement will already have been fulfilled-the only milestones that are required are those that demonstrate reasonable further progress toward attainment, as defined by section 171. Thus webelieve that it is a distinction without a difference that section 189(c)(1) speaks ofthe RFP requirement

as one to be achieved until an area is "redesignated to attainment," as contrasted to section 172(c)(2), which is silent onthe period to which the requirement pertains, orthe ozone nonattainment area RFP requirements in 

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sections 182(b)(1) or 182(c)(2), which refer to the RFP requirements as applying until the "attainment date," since section 189(c)(1) makes clear that the milestones that are tobe achieved

are those that demonstrate RFP toward attainment by the applicable attainment date, and since section 189(c)(1) defines RFP byreference to section 171(1) ofthe Act. Reference to section 171(1) makes clear that, as with the general RFP requirements in section 172(c)(2) and the ozone-specific requirements of section 182(b)(1) and 182(c)(2), the PMspecific RFP requirements may onlybe required "for the purpose ofensuring attainment ofthe applicable national ambient air quality standard by the applicable date." 42 U.S.C. 7501(1). EPA interprets the RFP requirements, in light ofthe language ofsection 189(c)(1) and the definition ofRFPin section 171(1) incorporated therein, to be a requirement that no longer applies so long as the standard has been attained.

Similarly, the requirements of section 189(c)(2) with respect to milestones no longer apply so long as an area has attained the standard. Section 189(c)(2) provides inrelevant partthat:

Not laterthan 90 days after the dateon which a milestone applicable to thearea occurs, each State inwhich all or partofsuch

areais located shall submit to the Administrator a demonstration * * that the milestone hasbeen met.
Where the area has attained the standard andthere areno further milestones, there is no further requirement to make a submission showing that such milestones have been
met. As noted above, this is consistent with theposition thatEPA tookwith respect to the general RFP requirement of section 172(c)(2) in the April 16, 1992 General Preamble and also in the-May 10, 1995 Seitz memorandum with respect to the requirements of sections 182(b) and (c). In theMay 10, 1995 Seitz memorandum EPA also notedthat section 182(g), the milestone requirement of Subpart 2, which is analogous to provisions in section 189(c), is suspended upon a determination that an area has attained. The memorandum, also citing additional provisions related to attainment demonstration and RFP requirements, stated

Inasmuch as eachoftheserequirements is linked with the attainment demonstration or RPrequirements of section 182(b)(1) or 182(c)(2), ifan area isnot subject to the requirement to submit the underlying attainment demonstration or RFPplan, it need not submit the related SIP submission either.
199i Seitz memorandum at 5. That the requirements for redesignation ofan area require EPA to find that the improvement in air quality is due to permanent and enforceable emission controls does notundermine EPA's interpretation that whenEPA determines an area is in attainment, the requirement for further emission reductions beyond that necessary for attainment is suspended for so long as the area remains in attainment. EPA does not contend that a determination of attainment is equivalent to a redesignation, which requires additional showings beyond the fact of attainment before changing the designation ofan

area from nonattainment to attainment. A determination ofattainment merely suspends certain requirements for so long as the area remains inattainment. Thatpermanent emission reductions are required for a redesignation does not indicate thatCongress intended an area to keep reducing emissions beyond the attainment level until an area is redesignated. There is no statutory support for the proposition that an area must keep reducing emissions below the level needed for attainment until that

area isredesignated. EPA's construction ofthe statute recognizes the public interest in reducing burdens on states and sources within states associated with adopting and implementing additional control measures that are no longer necessary to attain the NAAQS. EPA has construed the statutory provisions as not requiring certain additional emission reductions above and beyond what was needed to attain theNAAQS.

EPA again notes thatit has already approved a demonstration ofreasonable further progress for the SJV.Inthe
context of considering whether a determination of attainment suspends the contingency measures requirement ofsection 172(c)(9), however, EPA concludes thatthe RFP requirements of sections 172(c)(2) and 189(c) would also be suspended for so long asthe SJV remains in attainment, hadthey not already been approved.

Comment5:The commenter contends that contingency measures are needed to

ensureboth reasonable further progress and attainment. Waiver of the requirement for these measures in section 172(c))(9) was premised onthe argument thatthe RFPrequirement of section 172(c)(2) was tied to attainment. and thus with an attainment finding there was no longer a purpose for contingency measures. The commenter asserts that because the RFP requirements 'ofsection 189(c)(2) cannot be waived for PM-10 nonattainment
areas, the contingency measure requirements ofsection 172(c)(9) continue to have purpose. The
commenter claims that they areneeded

as interim, stop gap measures to protect public health pending the SIP revisions required under section 189(c)(3). See 59 FR 42015.

Response:CAA Section 172(c)(9) provides that SIPs in nonattainment

areas:

Shall provide forthe implementation of specific measures tobe undertaken ifthe area fails tomake reasonable further progress, or to attain the [NAAQS] by the attainment date applicable under this part. Such measures shall be included inthe plan revision as contingency measures t6 take effect in any such casewithout further action by the State [orEPA].

This requirement is referred to as "the contingency measures" requirement, and is inextricably tied to the attainment and reasonable further
progress requirements. Where sufficient
progress has been made based on existing controls so that an area has already achieved attainment by the attainment date, ithas noneed to rely

on "contingency measures" to come into attainment by the attainment date,

orto assure progress towards attainment.

We have thus interpreted the contingency measures requirement of sections 172(c)(9) (and 182(c))(9) in subpart 2 ofpartD) as nolonger applying when an area has attained the standardbecause those "contingency

measures are directed at ensuring RFP and attainment by theapplicable date." 57 FR at 13564; May 10, 1995 Seitz

memo at 5-6. As explained at length in theresponses to comments above and in the memoranda andrulemakings cited above, the requirements for RFP and attainment demonstrations no longer apply once an area has attained the standard. Thus it follows that the requirement for contingency measures tobe triggered in the event RFP or attainment is not reached is also suspended for as long as the area attains the standard. As EPA stated in its Addendum to the General Preamble for Serious PM-10 Areas, "[s]ection 172(c)(9) requires that SP's provide for the implementation of specific measures tobe undertaken ifthe Administrator finds that the nonattainment area has failed tomake RFPtoward attainment or to attainthe primary NAAQS bythe applicable statutory deadline." 59 FR 42014-42015 (August 16, 1994). Where the area has attained the standards, as EPA has shown in responses to comments above, the attainment demonstration requirements and RFP requirement under section 189(c)(1) and (2) are suspended, and thus the

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contingency measure requirements of section 172(c)(9) are also suspended.

The commenter is incorrect in its assertion that the RFP provisions under section 189 remain applicable despite a determination that the area has attained the standards. As EPA has demonstrated in its response to comment 4 above,

once the area has attained the standards, the RFP milestone requirements in section 189 are suspended for so long as the area remains in attainment. Thus no contingency measures are required to

assure those requirements are met. Because EPA is finalizing its determination thatthe SJV area has attained the standards, itis also finalizing its determination that the requirement for contingency measures under section 172(c)(9) is suspended for

so long as the area remains in attainment.

C.New Particulate Matter(PM)NAAQS
Comment6:The commenter argues that the mosttroubling implications of EPA's proposed finding is EPA's proposalto revoke the PM-10 standards altogether andeliminate monitors in

areas that are found to be in attainment. The commenter contends that the reasonableness ofEPA's Clean Data Policy is premised in part onthe

assurance ofthe Clean Air Actthat EPA will eventually demonstrate that air quality has been permanently resolved due tothe controls being implemented and that contingency measures will be in place as part ofa plan to maintain clean air once an area has been redesignated to attainment. The
commenter argues that underEPA's thencurrent proposal forcoarse PM, these assurances willbe eliminated. The commenter states thatEPA proposes to revoke the PM-10 standard "everywhere except inareas where there is at least one monitor that is located in an urbanized area with a minimum population of 100,000 people andthat violates the 24-hour PM-10 standard based on the mostrecent three years ofdata." 71 FR at 2674. The commenter further states that, with the proposed attainment finding, EPA is making the determination that the PM10 standard willbe revoked in the Valley withoutthe Act's protections. The commenter is also concerned about the potential forEPA to refuse to consider datacollected by monitors in rural areas. The commenter believes that EPA should provide an explanation as to why its determination isreasonable when there will be no safety net to

recover fromthe decision ifEPA is wrong.

Response:The commenter's concerns

are misplaced. First,EPA's responses to comments above indicate that its decision is reasonable, in accordance with its prior interpretations ofthe CAA, and in accordance with the statute. EPA reiterates that a determination of attainment results merely in a suspension ofrequirements for so long as the area remains in attainment. Ifthe area violates the standard, then therequirements and protections ofthe Act again apply to

ensure thatthe area attains and makes reasonable further progress towards attainment.

Second, as noted above, on September 21, 2006, theEPA Administrator signed

afinal rulemaking which, among other things, revoked onlythe annual PM-10 standard,but left intact the 24-hour PM-10 NAAQS. The EPA did not finalize its proposal to revoke the 24- hour PM-10 NAAQS. The final rulemaking did notrevoke any designations under the 24-hour PM-10 standard, and allrequirements forthe 24-hour standard and all designations under that standard remain in place. Based on the mostrecent three years of data, all areas that monitored nonattainment for the annual standard also monitored nonattainment for the 24-hour standard. Thus the commenter is incorrect in contending thatthe determination of attainment would relieve the SJV ofthe protections ofthe PM-10 NAAQS. Should EPA determine that the SJV violates the 24-hour PM-10 NAAQS, it would again become subject
to any requirements thathad been suspended during its period of attainment. In addition, the area would still retain the incentive tobe redesignated to attainment for the 24- hour 'PM-10 NAAQS in order to be relieved ofnonattainment NSR offset requirements and to avoid further attainment planning requirements shouldthe area monitor a violation of the standard inthe future, and the provisions for amaintenance plan pursuant to CAA sections 107(d)(3)(E) and 175A would still apply to any redesignation request.Thus these

assurances ofand motivation for continued attainment arenot eliminated, and the "safety net" cited by the commenter remains in place. The commenter also cites to a portion ofthe proposed rule onAmbient Air Monitoring which discusses a five-part suitability test to determine whether potential PM-10-2.5 monitoring sites

were suitable for comparison to the proposed NAAQs. 71 FR 2710, 2736 (January 17, 2006). In the final monitoring rule signed September 27, 2006 and available athttp:// www.epa.gov/air/particles/actionshtnl, EPA is not adopting the five-part suitability test orthe proposed PM-10- 2.5 monitoring network design. EPA had proposed the five-part suitability test along with certain minimum monitoring requirements and monitor placement criteria for the primary purpose of determining compliance with the proposed PM-10-2.5 particulate NAAQS. EPA proposed as the indicator fortheNAAQS any ambient mix ofPM10-2.5 thatis dominated by resuspended dust from high-density traffic on paved roads and PM generated by industrial sources and construction
sources, but excluded any ambient mix ofPM-10-2.5 that is dominated by rural windblown dust and soils andPM generated by agricultural and mining

sources. The proposed level forthe PM10-2.5 NAAQS was selected so as to be of equal stringency to the 24 hour PM-- 10 NAAQS. However, in its recentrule revising the NAAQS EPA stated that it is not adopting theproposed PM-10-2.5 standard and instead, will be retaining the current 24 hourPM-10 standard. Therefore, EPA also did not adopt the proposed PM-10-2.5 monitoring network design, including the five-part suitability testto which the commenter cites above. Thus the commenter's

concerns about this aspect oftherule havenot been realized.

D.EPA Policyon SpecialPurpose MonitoringData
Comment7:The commenter states that EPA's use ofan August 22, 1997 memorandum from John Seitz on the

use ofspecial purpose monitoring data is based on an illogical reading and is

an insufficient substitution for a reasoned determination. The commenter states that nothing in the CAA provides for this intermediate step of an attainment determination tobe made independently ofa redesignation under CAA section 107(d)(3)(E). The commenter contends that tothe extent such a determination can be defended, itis subject totherational basis standard ofthe Administrative Procedures Act. The commenter cites language from the 1997 Seitz memorandum thatdiscusses thetypes ofdata EPA must consider before redesignating an area from nonattainment to attainment and concludes that the Agency cannot reasonably ignore datathat falls short of specific part 58 requirements without explaining why those requirements undermine the validity ofthe data.

Response:The commenter contends that an "attainment determination'is a beast ofEPA's own creation" and that it mustbe defended on a rational basis. In fact, attainment determinations have

a basis in the statute: see e.g., section 

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107(d)(3)(E)(i), as well as sections 179(c), 188(b)(2) and 181(b)(2), but there is nothing that restricts EPA to making determinations ofattainment in the
context solely ofthose provisions. Indeed, as noted earlier, both the 9th and loth U.S. Circuit Courts ofAppeals have upheld EPA's authority tomake attainment determinations outside the
context ofredesignation proceedings, and have also upheld EPA's interpretation ofthe statutory consequences ofsuch determinations. SierraClub v. EPA, 99 F.3d 1551 (10th Cir. 1996), OurChildren's Earth Foundationv. EPA, No. 04-73032 (9th Cir.June 28, 2005 (memorandum opinion). Nothing in theAct compels EPA to wait until an area meets all the requirements for redesignation before EPA makes a determination that the area is in attainment with the standard with the effect that the requirements for certain statutory provisions relating to attainment are suspended bytheir own terms. Indeed, section 179(c) oftheAct requires EPA to make an attainment determination within six months after

an area's applicable attainment date whether or notEPA has made a finding with respect to redesignation. EPA's interpretation ofthe Act's provisions
not to require, once attainment has been reached, certain plan submissions whose purpose is to assure attainment, is not at odds with the requirements for redesignation. EPA's rationale for issuing attainment determinations is set forthat length in the responses to comments on the Clean Data Policy, above. Inmaking determinations of attainment, which are subject tonotice and comment rulemaking, EPA is governed bythe Clean Air Act and its regulations.

Similarly, in identifying the datathat should be considered inmaking a determination ofattainment, EPA is subjectto regulatory provisions that set forth criteria defining what constitutes

an adequate monitoring schedule, methodology, and quality assurance for data that willjustify reliance upon it. 40 CFR 58.14 applies to Special Purpose Monitors (SPMs), and requires that if intended to be used forpurposes of demonstrating attainment or nonattaiment, they must meetthe requirements for State and Local Air Monitoring Stations (SLAMS) setforth in 40 CFR 58.13 and 58.22 as well as in appendices A and E ofpart 58. While EPA cited to the Seitzmemorandum in its proposal, EPA is not, as commenters contend, hiding behind anon-binding policy memorandum. Rather, that memorandum cited to the regulations applicable to data from special purpose monitors intended foruse inattainment determinations. These regulations are designed to ensure that the data is
accurate and reliable enough to be the basis for a formal determination as to whether an area has attained the relevant standard. The 1997 Seitz memorandum states that "[the] Agency policy onthe use of special purpose monitoring data forany regulatory
purpose, with the exception offine particulate -matterdata (PM-2.5) is that all quality assured andvalid data meeting 40 CFRpart 58 requirements
must be considered within the regulatory process." 1997 Seitz memorandum at 1.EPA's regulations under 40 CFRpart 58 provide for quality assurance andcontrol requirements to ensure that regulatory decisions arebased onreliable and
accurate information.

Conversely, itfollows that datathat does not meet these quality assurance criteria should notbe considered, since basing regulatory decisions on datathat has not been shown to be reliable would
not further the public interest norbe consistent with EPA regulations on special purpose monitors. See 40 CFR 58.14. As setforth below in other responses to comments, EPA's decision
to consider data from monitors that
meets quality assurance criteria and its concomitant decision to exclude data that does notmeet these criteria is based

on its regulations, has arational basis, and is designed to result in determinations that reflect accurate and reliable data.

Here, the datafrom certain SPMs did
not meet the quality assurance requirements ofpart 58, and therefore

were not included for consideration in the determination ofattainment. Ifin the future additional data that has been quality assured demonstrate that the

area is in fact not attaining the standard, EPA will withdraw its determination of attainment. Until that-time, there is no'' compelling reason forEPA notto proceed with an attainment finding based on all quality assured data where such data demonstrates that the SJV has attained the PM-IO standard.

.In EPA's Revisions to Ambient Air Monitoring Regulations, afinal rule signed on September 27, 2006, EPA issued revised regulations concerning SPMs, and clarified that data from such monitors wouldnot be used for attainment/nonattainment determinations ifthe monitors had not met-the requirements ofappendix A.

Section 58.20(b) ofthe revised regulation provides in part:

[a]ny SPM data collected by an air monitoring agency using aFederal reference method(FRM), Federal equivalent method (FEM), or approved regional method (ARM)
must meet the requirements ofsection 58.11, section 58.12, and appendix A to this part or

an approved alternative to appendix A to this part* * *

Section 58.20 (c) provides that: [a]ll data from an SPMusing an FRM, FEM

or ARM which has operated for morethan 24 months is eligible forcomparison to the relevant NAAQS, subject tothe conditions of section 58.30, unless the air monitoring
agency demonstrates that the data came from

a particular period during which the requirements ofappendix Aor anapproved alternative, appendix C, or appendix E were not met in practice.
Thus EPA's new monitoring regulations make plain that SPM data froma period during which appendix Ais not complied with are not eligible for comparison to the NAAQS andEPA action in this case is consistent with thatrequirement.

E.Adequacy oftheSJVMonitoring Network

Onecommenter and numerous individual citizens raised a number of issuesregarding the adequacy ofthe PM-10 monitoring network inthe SJV. In a final ruleapproving the serious area PM-10 attainment plan forthe SV,EPA evaluated the adequacy ofthis network and concluded that it meets all applicable statutory and regulatory requirements and is adequate to support the technical evaluation ofthe PM-10 nonattainment problem inthe plan. 69 FR 30006, 30032-30033. EPA supported this conclusion in a technical support document accompanying the finalrule, "Evaluation ofthe Adequacy ofthe Monitoring Network for the SanJoaquin Valley, California for the Annual and 24-Hour PM-10 Standards"; Bob Pallarino, EPA Region 9, AirDivision; September 22, 2003 (2003 TSD). Nevertheless, EPA responds below to the specific comments raised regarding the network in connection with its proposed attainment determination for the SJV.

Comment8:The commenter states thatCAA Section 110(a)(2)(B) requires States to establish appropriate air monitoring networks and that appendix D of40 CFR part 58 identifies a minimum ofsix objectives that a SLAMS network should be designed to meet, as well'as spatial representativeness criteria in developing the network. The Districtfails to address all six criteria inits annual Monitoring Network Reports (leaving out monitoring for regional pollutant transport and for impacts on rural and
remote places) andthe existing monitors represent only two ofthe six spatial

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scales established in the regulations when three are required. Since the District failsto meet these basic requirements, EPA should address the adequacy ofthe monitoring network before making an attainment determination, including whether system audits were conducted as required by 40 CFR 58.2.5 (sic). EPA's only evaluation ofthe network was in' the 2003 TSD inwhich EPA identified several deficiencies in the Valley's PM10 monitoring network but signed off on the network in spite ofthe deficiencies.

Response:Pollutant monitoring networks aredesigned to serve a number ofpurposes. While the primary purpose ofa monitoring network is to determine an area's attainment status with regard to theNAAQS, there are a variety ofother purposes networks
serve, including determining maximum concentration locations; determining the .effectiveness ofairpollution control programs; evaluating the effects ofair pollution levels onpublic health; tracking the progress ofSlIPs; providing dispersion modeling support; developing responsible, cost-effective control strategies; reconciling emission inventories; and developing air quality trends.5

The six monitoring objectives 6in EPA's regulationswere developed to assist in designingmonitoring networks to meet these various objectives. Clearly, monitoring to "determine the welfarerelated impacts in more rural and remote areas (suchas visibility impairment and effects onvegetation)"

or monitoringto assess regional transport ofpollution are not directly related to determining whether or not an
area is in attainment ofthe NAAQS. These are important objectives in terms ofmaximizing the utility ofthe monitoring network. However, when determining whether the SJV is attaining the PM-I0 NAAQS, it is more important to demonstrate that the PM10 network has monitors sited to capture the maximum concentrations expected to occur inthe Valley andthe representative concentrations ofPM-10

5"SLAMS/NAMS/PAMS Network Review Guidance" EPA-454/R-981003, March 1998, section 1.0.

6The six monitoring objectives as discussed in40 CFRpart 58, appendix D, section 1 are (1)to determine highest concentrations expected tooccur in the area covered by thenetwork; (2) to determine representative concentrations in areas ofhigh population density; (3) to determine the impacton ambient pollution levels ofsignificant sources or
source categories; (4] to determine general background concentrations; (5) to determine the
extent ofregional transport among populated areas; andin support ofthe secondary standards; and (6)
to determine the welfare-related impacts in more rural andremote areas (suchas visibility impairment and effects on vegetation). throughout the area that the population ofthe SJV are breathing. As discussed in the 2003 TSD,the SJV PM-10 SLAMS network meets thetwo primary and most important objectives by siting
most ofits monitors to assess representative concentrations in areas of high population and monitoring in the

area where the maximum PM-10 concentrations are expected to occur. Thus the fact thattheDistrict didnot address the two objectives above is not

a significant factor in determining whether the SJVis in attainment ofthe PM-10NAAQS.

The commenter states that EPA regulations at 40 CFR part 58, appendix D, require networks to use at least three spatial scales 7 inestablishing a monitoring network. However, the regulations donot in fact require the use ofany minimum number ofspatial scales for PM-10 SLAMS orNational Air Monitoring Station (NAMS) 8 networks. Section 1 ofappendix D discusses the relationship between monitoring objectives and spatial scales ofrepresentativeness. As ourregulations
state in this section, "[plroper siting of

a monitoring station requires precise specification ofthe monitoring objective which usually includes a desired spatial scale ofrepresentativeness."

Table I ofappendix D "illustrates the four basic monitoring objectives andthe scales ofrepresentativeness that are generallymostappropriate forthat objective." Emphasis added. Appendix D, section 1, table 1. Itis clear from this language that EPA did not intend to dictate specific spatial scales foreach objective. However, itis important to

ensure thatthe spatial scale ofthe site " is appropriate for the monitoring objective that site is intended to meet. For example, a sitethat is intended to represent typical population exposure should be a neighborhood orurban scale site,not amicroscale site. While a microscale site can be used to monitor for highest concentration, a middle or neighborhood scale sitewould also satisfy this monitoring objective.9

7 See 40 CFR part 58,appendix D, section 1, for

a discussion ofspatial scales and their applicability in monitoring network design.

8TheNAMS area subset ofthe SLAMS ambient airquality monitoring network.

9 While Table 6 in40 CFRpart 58,appendix D, section 5 could be interpreted to mean that three spatial scales arerequired for PM-10 NAMS sites, EPA's purposehere was to summarize the spatial scales which would be appropriate for NAMS sites, i.e.microscale, middle scale, and neighborhood scale sites are appropriate scales for PM-10 NAMS sites, buturban andregional scale sites are not.This isbecause the objectives for NAMS sites are to monitor in areas where the pollutant concentration and population exposure are expected to be the highest. Furthermore, EPA's recently signed rule revising the monitoring regulations at40 CFRpart With respect to the system audit programs described in 40 CFR part 58, appendix A, section 2.5, itis important
tonote that thistype ofaudit, commonly referred to as a technical system audit (TSA,is aqualitative review ofan agency's overall air monitoring operations designed to determine whether whatthe monitoring organization says is goingto be performed in its qualitymanagement plan, quality assurance project plan, and standard operating procedures are performed as specified. ATSA is required to be "on site" in the sense of taking place at the monitoring organization facilities, either at one or
more locations where monitoring activities are performed or where monitoring-related documents and records are kept,but itneed not involve

a visitto an actual monitoring site. When a discrepancy is identified, EPA asks themonitoring organization to correct the discrepancy and tracks the monitoring organization's efforts until the correction is made. Significantly, EPA doesnot disqualify any data already collected based onthe results of

a TSA, although themonitoring organization in principle might do so itself.See "Quality Assurance Handbook for Air Pollutant Measurement Systems, VolumeII, Part 1, section 15 (EPA-454/R-98-004, August 1998) and "EPA Requirements for QualityAssurance Project Plans" (EPA/240/B-01/003 March 2001) at B4. In contrast, the measurement quality checks described inappendix A, sections 3.1, 3.2, 3.3 and 3.4, are quality control checks in which quantitative data generated by quality control samplers orindependent standards are compared against the routine monitors operated by the air monitoring agency in order to evaluate instrument performance or laboratory procedures. Id. atB-3. When determining whether data generated by air quality monitors

can be considered to be valid and accurate forthe purpose of determining whether an area hasattained the NAAQS, measurement quality checks

are critical.

As a mechanism for helping to ensure thatdata generated by air quality monitors is valid and accurate and thus suitable for determining whether an area has attained the NAAQS, itis the measurement quality checks that are most important. These checks create an incentive for continuous attention to

58, reiterates EPA's intention that urban and regional scales are not appropriate for PM-10 monitoring and themost important spatial scales for monitoring PM-10 are the middle and neighborhood scales. 

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proper operation and maintenance of each monitor, can identify problems with specific monitors so that the problems can be corrected, and provide

a basis forthe monitoring organization
to disqualify data already collected if spedific audit findings are found tobe outside ofacceptable limits.EPA discusses these evaluations with respect to the SJV monitoring network below in
response to comment 13.

EPA Regional Offices are required by appendix A toperform TSAs ofState reporting organizations once every three
years. A reporting organization, as defined in 40 CFR part 58, appendix A, section 3.0.2, is a State, subordinate organization within aState, or other organization that isresponsible for a set of stations that monitors the same pollutant and for which data quality
assessments canbe pooled. States must define one or more reporting organizations for each pollutant such .that each monitoring station in the State SLAMS network is included in one, and onlyone, reporting organization.

California has designated four reporting organizations within the State: CARB, the South Coast Air Quality Management District, the Bay AreaAir Quality Management District, and the San Diego Air Pollution Control District. All other air quality districts in the State, including the San Joaquin Valley AirPollution Control District, are included in the CARB reporting organization. CARB and the Districts in its reporting organization represent one ofthe largest and most experienced air quality reporting organizations inthe nation.

EPA has audited certain aspects ofthe CARB monitoring program recently. EPA's Office ofAir Quality Planning and Standards (OAQPS) performed
measurement quality checks and TSAs ofthe CARB PM laboratories in October 2002 and March 2004. These evaluations and audits confirmed that the laboratories used by CARB and the San Joaquin Valley Air Pollution Control District for weighing PM filters

were operating consistently with appendix A requirements. No deficiencies for the PM lab were noted. Overall good laboratory practices were observed during this TSA. See Technical Memorandum on CARB Laboratory Audit to Jim Homolya, EPA, OAQPS, from Michael S. Clark,National Air and Radiation Environmental Laboratory, February 26, 2003 and Technical Memorandum on CARB Laboratory Audit to Jim Homolya, EPA, OAQPS, from Eric Boswell, National Air and Radiation Environmental Laboratory, dated April 22, 2004. Moreover, CARB Quality Assurance Section also conducts its own internal audits ofthe PM laboratory.

In October 2004, EPA Region 9 performed a technical evaluation ofthe CARB 'Through-the-Probe' (TTP)audit program forgaseous pollutants to establish system equivalence between the CARB and EPA TTP programs and
to independently review the CARB TTP
program. See "Review ofCalifornia Air Resources Board's 'Through-the-Probe' Audit Program", October 6-7, 2004. The TTP audit is a procedure for performing
measurement quality checks of gaseous analyzers and is the primary tool used by CARB tofulfill its audit responsibility for these types of analyzers in 40 CFRpart 58, appendix A, section 3.2. While EPA's auditofthe CARB TTP program focused ongaseous pollutant performance audits, the audit served as an on-site TSA with respect to* CARB's corrective actioA procedures used by CARB following a performance audit failure ofa PM-10 monitor, as CARB's corrective action procedures are

common to all pollutants including PM10. We have since evaluated the CARB TTP program three additional times in. June 2005, October 2005 and April 2006. See memorandums to Catherine Brown, USEPA Region 9 from Kevin Woodruff, ESAT TTP Task Manager, datedJuly 8, 2005, May 8, 2006, and May 18, 2006.

CARB has conducted its own TSAlike assessment ofthe District's monitoring program. CARB's oversight includes routine annual performance audits ofPM-10 SLAMS monitors, verification that sites meet EPA siting criteria andperiodic assessments ofthe District's air monitoring program. See the CARB's Annual Data Quality Reports andthe SanJoaquin Valley Air Pollution Control District Program Review, Report ofFindings and Recommendations, byCARB Stationary Source Division, October 2005. Audit information for individual monitoring stations in the CARB reporting organization is available at the CARB Web site http://www.arb.ca.gov/qaweb/. The Web site includes maps of each site, site photographs, and a detailed survey ofthe physical parameters and conditions at each site. These activities, while performed by CARB, arevery similar to the field operation portion of EPA's TSAs.

Region 9 continues to keep informed of CARB and itsDistricts' monitoring
program developments through our ability toreview revisions to quality

assurance (QA) documents and the other information described above on the CARB QA Web site. EPA believes that these activities as well as the onsite activities described above, EPA's evaluation in the 2003 TSD, and the performance audits described below,

can and should be considered to substantially meet the requirements of appendix A and are sufficient to ensure that the data produced by the PM-10 SLAMS network operating in the SJV is adequate for EPA to base our finding of attainment.

Furthermore, the District and CARB annually certify that the data inEPA's Air Quality System (AQS) database is
correct and accurate. EPA also annually reviews the precision and accuracy data (precision and accuracy data are discussed inmore detail in the response to comment 13 below) submitted along with the PM-10 concentration databy CARB and the District.

As stated above, inthe 2003 TSD EPA determined that the PM-10 monitoring network forthe SJV, which includes monitors operated byboth CARB and the District, meets all applicable statutory and regulatory requirements. EPA Region 9 uses the following four criteria to evaluate whether agencies operate approvable networks: (1)The SLAMS networkused EPA approved samplers to collect data, (2) the agency has a quality assurance plan in place that meets EPA requirements, (3)the
agency operates the required number of monitoring sites designated as NAMS, and (4) the monitoring network is designed in accordance with the requirements of40 CFRpart 58, appendices Dand E. These criteria are based onrequirements in40 CFR part 58 and on EPA guidance documents.10

The only deficiency inThe District's PM-10 network that EPA has identified relates to the number ofsites designated

as NAMS. Inthe 2003 TSD at 5, we stated:

According to EPA regulations, the [District] should have aminimum of11 sites designated as NAMS sites,based on the average PM-10 concentrations during the
years 1999-2001 and the 2000 census population data. * * *The number of monitoring sites in the [SJV] designated as NAMS is less thanthat required inEPA regulations. However * * *EPAhasbeen de-emphasizing the difference between NAMS and SLAMS sites. * * * EPAis planning torevise theregulations at 40 CFR part 58, Appendix D, which discusses the NAMS requirement, to eliminate the designation ofsites as eitherNAMS or SLAMS.

'0These guidance documents include "PM-10 SIP Development Guideline", EPA-450/2-86-001, June 1987; "Network Design and Optimum Site Exposure Criteria forParticulate Matter", EPA-450/ 4-87-009/ May 1987; "Guidance For Network Design and Optimum Site Exposure For PM-2.5 andPM-10", EPA-454/R-99-022, December 1997; "SLAMS/NAMS/'AMS Network Review

. Guidance", EPA-454/R-98-003, March 1998.

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In footnote 3 in the 2003 TSD, EPA explained that:

EPA, in partnership with State and local air agencies, hasbeen developing a National Monitoring strategy which no longer makes

a distinction between NAMS and SLAMS sites. The strategy, oncecodified inEPA regulations, will simply establish a certain minimum number ofmonitoring sites in a metropolitan area, still based on population and pollutant concentration severity. The
current network inthe [SJV] will easily meet these minimum requirements.

At the time we evaluated the SJV PM10monitoring network, webelieved, in light ofthe de-emphasis on the difference between NAMS and SLAMS sites, that it wouldbe unreasonable to find the network inadequate because of this technical deficiency which EPA

was.planning to eliminate. In fact, in

our final Ambient Air Monitoring rule signed on September 27, 2006 that amends 40 CFR part 58 we did eliminate the NAMS designation requirement completely. Elimination of the NAMS requirement does not affect the number ofmonitors operating in the PM-10 network. Sites designated as NAMS simply convert to SLAMS sites. Based onthe above, we believe the data produced by the SLAMS network is technically sound andcan be used to determine the SJV's attainment status. EPA wants to emphasize, however, that the action today is simply an assessment ofthe data collected atthe District's PM-10 monitoring stations from 2003- 2005, and continuing into 2006. This attainment determination does not preclude any future assessments ofthe PM-10 monitoring network, addition of

new monitoring sites, orshut down of
any existing sites.

,Comment9:The commenter states that the monitoring network does not meet thebasic objectives laid outby federal regulation and leaves vast portions ofthe Valley completely unmonitored. The commenter asserts that EPA must address this deficiency before making an attainment determination. The commenter states that the majority ofthe PM-10 monitoringtakes place alongthe Highway 99 corridor which captures most ofthe SJV'smajor urban centers, but entirely overlooks the eastern and
western portions ofthe SJV. The
western portion ofthe SJV shouldbe of particular concern to the District and EPA as it is an area ofwidespread poverty and environmental injustice, as well asbeing an area ofintense agricultural activity.

Response:We disagree with the commenter's contention that the network fails to meet the basic monitoring objectives described in 40 CFR part 58, appendix D, section 1. EPA regulations do not prescribe the size of

an area's PM-10 monitoring network or the exact placement ofmonitors. 40 CFR part 58, appendix D, section 1, "SLAMS Monitoring Objectives and Spatial Scales" states:

Itshould benoted that this appendix contains nocriteria fordetermining thetotal number of stations in SLAMS networks * * *.The optimum size ofaparticular SLAMSnetwork involvestrade offs among data needs and availableresources that EPA believes canbest be resolved during the network design process."

It is unreasonable and cost prohibitive
to require a monitoring agency to operate a monitoring stationin every location expected to have high levels of

a particular pollutant. TheDistrict operates SLAMS in a variety ofareas thatrepresent typical emission scenarios inthe SJV including urban

areas ofdense population, industrial

areas, and rural areas dominated by agricultural emission sources. See 2003 TSD at 5.

Themonitoring network in the SJV has both neighborhood and middle scale sites.As stated previously in this notice (seeresponse to comment 8 and footnote 7), these spatial scales are the
mostimportant in monitoring forPM10. Monitoring sites that are representative ofmiddle scale impacts
cannot onlyrepresent the area immediately around the monitoring site but also areas ofsimilar emission characteristics. Similarly, neighborhood scale sites canrepresent not only the immediate neighborhood but also neighborhoods of similartypes inthe city or area. Furthermore, neighborhood stations provide the mostrelevant information about trefnds and compliance with standards because they often represent conditions inareas where people commonly live and work for periods comparable to those specified inthe NAAQS. See 40 CFR part 58, appendix D, sections 2.8.0.4 and 2.8.0.5.

-Most ofthe monitors in the SJV network are neighborhood scale sites with the objective ofassessing population exposure. Sincethe majorityofthe SJV's population resides in urbanized areas alongthe Highway 99 corridor and since many ofthe emission

sources are mobile ortraffic-related, we believe this is an appropriate focus of the monitoring network. 2003 TSD at page 5.

The District alsomonitors in locations in addition to the Highway 99 locations,

IISee also "SLAMS/NAMS/PAMS Network Review Guidance" EPA-454/R-981003, March 1998, section 2.1.2. e.g. Corcoran, Taft, and Hanford. 12 Thus, theDistrict network does represent the source types that make up themajority ofemission sources in the
western and eastern portions ofthe SJV. The monitoring locations at Corcoran and Hanford areboth rural locations surrounded by agricultural sources of PM-10. Since it is not feasible forthe District to monitor in everyrural location, these sites can be viewed as representative of otherunmonitored locations in theValley.

Comment 10:The commenter points
outthat back in the 1990s, there were at least four monitoring sites in what

can be considered therural west side. These sites, located at LosBanos, Five Points, Kern Wildlife Refuge, and Kettleman City, were all shut down in themid-1990s with little orno explanation, consultation with EPA or public notification, as requiredby 40 CFR 58.26(e). These monitors were mentioned in passing in theDistrict's 1994Air Monitoring Network Report as "not necessary" and "resource intensive" and were tobe closed to "redirect resources." The commenter
notes that the Five Points monitor monitored sizeable violations until 1993, theyear it disappeared from the District's network.

Response:The public notification requirement in 40 CFR 58.26(e) cited by the commenter was part ofthe monitoring regulation revisions made to implement the PM-2.5 NAAQS (62 FR 38833 (July 18, 1997)) and applies only
tothat pollutant:

After 3 years following September 16, 1997

or once a monitoring area has been determined to violate the NAAQS, then changes to an MPA monitoringnetwork affectingthe valuating locations shall require public review and notification.
"MPA" stands for "Monitoring Planning Area" and "means a contiguous geographic area * * * having acommon
area that is used forplanning monitoringlocations forPM2.5" Emphasis added. 40 CFR 58.1.

Moreover, EPA generally defers to a State or local agency's judgment in determining which SLAMS to operate in

a network as long asthe overall monitoring objectives in our regulations

arebeing met. However, EPA would object ifan agency discontinued a design value site or a site with unique

source characteristics that is violating theNAAQS.

In 1993-1994 theDistrict and CARB operated 18 monitoring sites inthe

12

See "State and Local Air Monitoring Network Report-2005" San Joaquin Valley Unified Air Pollution Control District. PlanningDivision, August 2005. 63651

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Valley. Three sites were shut down at the end of1993: Los Banos, Kern Wildlife Refuge, and Five Points. Los Banos and Kern Wildlife Refuge were

never in violation ofthe PM-10 NAAQS

so theDistrict's decision to shut them downfor any ofthe reasons cited by the
commenter would nothave been questioned by EPA.

The Kettleman City monitor continued to run until 1996. This monitor did record 5 exceedances ofthe 24-hour PM-10 NAAQS during the period 1990to 1993 butwas in attainment ofthe PM-10 NAAQS from 1994 to 1996 when it was discontinued.

While Five Points was aviolating monitor, it was not unique in that there

were othermonitors in the Valley that operated in areas subjectto the same type ofagricultural emission sources. In the year that it was shut down there

were significantly higher and more frequent exceedances of the NAAQS at the Corcoran monitoring site. Consequently, there was no restriction preventing the District from discontinuing it. Inaddition, because this site was ina largely uninhabited

area itwas notas useful as other sites in the network for assessingpopulation
exposure to PM-10 airpollution.

The Corcoran monitoring site has always been one ofthe highest-reading sites 13in the District's PM-10 network andthat site has runcontinuously 14 since the PM-10 NAAQS has been in existence. The Corcoran siteis very similar to the Five Points sitein terms ofthe surrounding land use (agricultural). During the period 1986 to 1993 the Five Points siterecorded six exceedances ofthe 24-hour NAAQS,

13

The Corcoran site hashad multiple PM-10 monitoring instruments in operation during its history, including three federal reference method (FRM) high volume samplers, abeta attenuation

mass (BAM) analyzer, anda tapered element oscillating microbalance (TEOM) analyzer. At present, the site operates three FRM high volume samplers and a TEOM analyzer. The BAM and TEOM analyzers are not FRMs but have been designated as federal equivalent method (FEM) monitors byEPA. Two ofthe three FRM samplers have been designated by theDistrict as the primary,

or SLAMS, samplers forthe Corcoran monitoring site. The thirdFRM is operated for quality control
purposes.

FRMs are manual samplers that pull air through

a filter for 24 hours (midnight to midnight). The filters are thenweighed in a lab and aPM concentration is calculated based on the mass increase ofthe filter and the volume ofair drawn through it.The two primary FRMs operate on a staggered one in six day schedule suchthat a sample is collected once every three days.

14The original Corcoran site was located on Van Dorsten Avenue andran from 1986 to 1998. The
current Corcoran site at Patterson Avenue began monitoring in 1997 and continues at this time. The Patterson Avenue site is approximately 1.1 miles north ofthe Van Dorsten Avenue site and has similar site characteristics. and only one year that exceeded the annual NAAQS (1988 with a 52 pg/m3). In comparison, during the same time period, Corcoran showed 21 observed exceedances ofthe 24-hour NAAQS and exceeded the annual NAAQS every year during thattime period (the maximum annual concentration was 70.2 gg/m 3in 1991). The Corcoran site also monitors in an area where there is greater population, which makes it a more desirable site. Comment 11:The commenter and other individual citizens state that the unmonitored (since mid-1990s) west side ofHighway 99 is alarge area ofthe SJV where monitoring is needed in order to understand the impacts ofPM10 pollution on the rural communities affected by intense agricultural operations and to fulfill federal monitoring objectives.

Response:As stated previously, the District does monitor in areas ofintense agricultural activity that are similar to and thus representative ofconditions in otherrural communities, including the
western portion ofthe District. There
maybe site-specific reasons to monitor

on the west side ofthe Valley for

reasons beyond measuring attainment of the NAAQS, e.g. reporting more specific air quality information for people living and working in the western portion of the Valley for other health-related
purposes. However, EPA believes that for the purposes ofdetermining attainment, the current monitoring network, since itmeets the requirements and objectives ofthe federal monitoring regulations, is representative of conditions throughout the Valley and thus is adequate formaking an attainment determination. Comment 12:The commenter asserts that while theDistrict claims that PM10 levels in the SJV have greatly improved, these improvements come from amonitoring networkthat has gotten significantly smaller. In 1993, the
commenter claims that there were 22 sites monitoring for PM-10 across a wider swath ofthe SJV,while today there are only 15 sites concentrated along Highway 99. Given this narrow slice ofthe SJVunder surveillance, it is unreasonable for EPA to declare the area in attainment ofPM-10 without first making a meaningful evaluation ofthe adequacy ofthe monitoring network.

Response:As stated above, EPA evaluated the SJV PM-10 monitoring network in 2003 and found itto be adequate under EPA regulations and guidance. 2003 TSD. That said, the District's claim that PM-10 levels in the Valley have improved is correct. The improvement in air quality is clearly evident from an examination ofthe air quality data for the last 19 years. The document "United States Environmental ProtectionAgency Quicklook Criteria Parameters" dated October 5, 2006 provides a summary of PM-l0 data collected in the SJV since 1987.

While the monitoring network has

seen areduction in the number ofsites

over this time period, from a high of23 monitoring sites in 1990 to the current 15 sites that have made up the District network since 1999, most monitoring networks evolve over time and vary in size. Most ofthe sites shut down by the District during thepast 19 years were in attainment ofthe PM-10 NAAQS for the previous three years. Some discontinued sites were replaced by

new, nearby sites (Fresno, Drummond replaced Fresno, Olive; Fresno, 1st Street replaced Fresno, Cal State; Bakersfield, California Ave. replaced Bakersfield, Chester Street; Taft College replaced Taft, lath Street; Corcoran, Patterson replaced Corcoran, Van Dorsten; Hanford, Irwin replaced Hanford, Lacey; Merced, M Street replaced Merced, E Street; Modesto, 14th Street replaced Modesto, City Center). 15 Some sites were shut down and not replaced (Fresno Five Points, Kern Wildlife Refuge, Kettleman City, Madera Library, Madera Health Dept., Los Banos, Modesto Istreet, Crows Landing). Generally these sites were in attainment ofthe PM-10 NAAQS. 16
Othernew sites were established where previously there were no monitors. (Fresno, Clovis; Bakersfield, Golden State Hwy.; Stockton, Wagner; Turlock). The following table summarizes the monitoring sites in the Valley thathave been operational over the past 19 years and illustrates that the monitors inthe
current network are not less representative of air quality throughout the SJV than the network that existed in 1993.

15CARB recommends that Districts perform "parallel monitoring" when proposing to relocate a monitoring site. While parallel monitoring is not a required activity whenrelocating a site, parallel monitoring data is often the best way to determine ifimportant monitoring objectives forthe existing site willbe satisfactorily continued atthe replacement site. See the document "Site Relocation and Parallel Monitoring Guidelines" June 1997, California Air .Monitoring andTechnical Advisory Committee.

16Two sites shut down were in violation ofthe
24-hour PM-10 NAAQS. Fresio Five Points, which

was discontinued in 1993, had recorded a single exceedance of190 ag/m 3 in 1993, buthad no exceedances in 1991 and 1992. Crows Landing in Stanislaus County, which was discontinued in 1991, had a single exceedance in 1990 of 180 pg/m 3

, butrecorded no exceedances in 1989 or 1991.

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Year Site

--

_ _-- 87 88 89 90 91 92 93 94 95 96 97 98 99 00 01 02 03 04 05

Fresno Olive X X X X

Fresno Drummond X X X X X X X X X X X X X X X X X

Fresno Ist St X X X X X X X X X X X X X X X X

Fresno Cal State X X X X

Fresno Five Points X X X X X X X

Fresno Clovis X X X X X X X X X X X X* X X X

Bakersfield Chester X X X X X X X X

Bakersfield Golden X X X X X X X X X X X X

Bakersfield CA Ave X X X X X X X X X X X X

Oildale X X X X X X X X X X X X X X X X X X X

Kern Wildlife Refuge X X X X X

Taft 10th Street X X X X

Taft College X X X X X X X X X X X X X X X X

Cocoran Van Dorsten X X X X X X X X X X X X

Corcoran Patterson X X X X X X X X X X

Hanford Lacey X X X X X X X

Hanford Irwin X X X X.X X X X X X X X X

Kettleman City X X X X X X X X X X

Madera Library X X X X X X X X X

Madera Health Dept. X X

Los Banos X X X X X X

Merced E Street X X X X X X X X X

Merced M Street X X X X X X X

Stockton Hazelton X X X X X X X X X X X X X X X X X X X

Stockton Wagner X X X X X X X X X X

Modesto IStreet X X X X X X X X X X

Modesto City Center X X X X

Modesto 14th Street X X X X X X X X X X X X X X X X X

Turlock X X X X X X X X X X X X

Crows Landing X X X X

Visalia X X X X X X X X X X X X X X X X X X X

X indicates the site was operational in thatyear. Source: EPA's AQS Database.

Comment13:The commenter states determine attainment. While EPA uses record before EPAfails to demonstrate that, in addition totheir failure to claims ofimproper maintenance to that the network complies with 40 CFR demonstrate the adequacy ofthe ignore data from continuous monitors, it part 58 andtherefore EPA must collect network, EPA and the Districthave also never establishes that the data itis additional information as required by failed toprovide records attesting tothe considering is in fact reliable and comes regulations and provide itto thepublic proper functioning and maintenance of from a properly maintained network. before itcan cherry pickthe data tobe theparticular monitors used to The commmenter further claims that the used for the attainment determination. 

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Response:Contrary to the commenter's contention, the FRM data

onwhich EPA is basing its attainment decision is reliable and from instruments that are properly functioning and maintained in accordance with 40 CFR 58 and its appendices. EPA's confidence in the data isbased onrecords submitted by the State that demonstrate that the network operations which produced the data meet, or in some cases exceed, the requirements in our regulations at 40 CFRpart 58.

EPA and its regulations provide for different types ofrequirements to assure the quality of data, depending upon the types ofequipment used to measure PM-10. There are two categories of instruments that can be used to measure PM-10 concentrations in the ambient air,manual reference method samplers and automated equivalent method or continuous analyzers. 17

A manual reference method sampler provides a 24 hour average concentration value for PM-10 in the ambient air. A manual reference method sampler uses a filter medium through which ambient air is drawn at a near constant flowrate'for a period of24 hours (midnighttomidnight). This flow
rate through the filteris animportant parameter and mustbe recorded accurately. Monitoring the actual flow rate toverify thatthe designed flowrate is beingmaintained during the 24-hour period is important because the inlet of the sampler will ensure the needed separation ofparticles 10 microns or less in diameter from largerparticles only ifthe proper flow rate is maintained. Also,the flow rate measurement provides us with the total volume of air drawn through the filter during the 24-hour period. Thetotal volume ofairis needed to calculate the PM-10 concentration.

The filters used in PM-10 manual reference method samplers are weighed in a laboratory before they areinstalled in the sampler and weighed again after air has been drawn through the sampler for 24 hours. The pre-sampled mass of the filter is subtracted from the postsampled mass and the result is thetotal

mass ofPM-10 collected. This total

mass is divided bythe total volume of air to determine the 24 hour average PM-10 concentration. In the best case a manual sampler can provide a 24 hour
average concentration in about two days

17All equipment designated by EPA as approved forNAAQS comparisons canbe found in the document "List ofDesignated Reference and Equivalent Methods", USEPA. National Exposure Research Laboratory, July 26, 2006 available at the Web site http://www.epa.gov/ttn/amtic/files! ambient/criteria/refO7O6.pdf. from the day asample was collected. In practice and depending on anumber of factors (e.g. how many filters the lab has to process, the distancebetween the laboratory and the monitoring site, on what day ofthe week a sample was taken) processing the filters in a laboratory and calculating the concentration can take a few weeks, on average.

Automated equivalent methods or continuous analyzers, such asBeta Attenuation Mass (BAM) or Tapered Element Oscillating Microbalance (TEOM)monitors, use ofie oftwo alternative measurement approaches (betaray attenuation or mass-dependent oscillation frequency) to avoid the need
to collect PM-10 on a filter medium that -mustsubsequently beweighed in a laboratory. Continuous analyzers report PM-10 concentrations over short intervals in near realtime. The analyzers can be (andtypically are) configured to report the average 24 hour PM-la concentration just as amanual reference method does.

As discussed elsewhere inthis action, the SJVPM-10 SLAMS network consists of15 monitoring sites using manual reference method samplers. These samplers operate on a once every six day schedule except for the site at Corcoran, which operates once every three days because it has two samplers operating on staggered once every six day schedules. Corcoran's sampling frequency is twice that ofother sites in the SJV PM-10 SLAMS network because itis historically thehighest reading PM10 site in the network.

One ofthe goals inany data collection effort is to be able to quantify measurement uncertainty. Measurement uncertainties are the errors associated with the ambient air monitoring agency, including errors associated with the field,preparation and laboratory
measurement phases. At each measurement phase, errors can occur, thatin most cases are additive. Air quality monitoring agencies aim to control measurement uncertainty to an acceptable level through the use of various quality control and evaluation techniques. Two ofthe primary checks used to evaluate measurement uncertainty are precision and accuracy checks. We will discuss each ofthese procedures below inmore detail. An important point to understand is that in addition to allowing an evaluation of the uncertainty in the data that has been collected, these checks can reveal equipment orprocedural problems that

can be corrected. They can also lead a monitoring agency to disqualify or withdraw data collected in a period before a check revealed a problem, on the reasonable assumption that the data

was affected'by the problem.

EPAregulations at 40 CFRpart 58, appendix A, section 3.0.1 states that "All ambient monitoring methods or analyzers used in SLAMS shall be tested periodically, asdbscribed in this section, to quantitatively assess the quality ofthe SLAMS data." Precision checks are a measurement ofmutual agreement among individual
measurements ofthe sameproperty usually underprescribed similar conditions, expressed generally interms ofstandard deviation. There are different ways to determine the precision ofPM-10 monitoring networks depending on whether the network utilizes manual reference methods or automated equivalent methods. Precision checks ofmanual and automated methods are addressed in 40CFR part 58, Appendix A, sections 3.3 and 3.1, respectively.

The SJV PM-10 SLAMS network is a subset ofthe larger California PM-10 SLAMS network.18 Section 3.3 of Appendix A discusses how to establish the precision ofa PM-10 network made up ofmanual method samplers, which applies to the SJV PM-10 SLAMS network. The requirement is to operate

a certain number of collocated monitoring sites, i.e., duplicate samplers, depending onthe total number ofsamplers in the network: 1 collocated site for networks consisting of upto five sites, 2 collocated sites for networks consisting of6 to 20 sites, and 3 collocated sites for networks of 20 or
more sites. These collocated samplers
must run onthe same days as the primary samplers and mustbe run on at least a once every six days schedule.

The California State PM-10 SLAMS network consists of97 monitoring sites and has five collocated sites located at Bakersfield, Visalia,Taft, Corcoran, and Sacramento. The first four ofthese listed collocated monitoring sites are located in the SJV.Ifthe SJVPM-10 network

was evaluated separately from the rest ofthe State network, EPA regulations would onlyrequire two collocated precision sites. Fromthis perspective, there are twice the'number ofcollocated precision sites as requiredby EPA regulations. Each ofthese samplers will produce apair ofconcentrations on a

For the purposes ofEPA quality assurance requirements, the California PM-10 SLAMS network is defined as those PM-10 monitors designated as SLAMS in the CARB document "California Stateand Local Air Monitoring Network Plan-2005" Planning and Technical Support Division, Air Quality Branch, October 2006 with the exception ofPM-10SLAMS monitors operated by the South Coast AQMD. the Bay Area AQMD, and the San Diego APCD.

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given samplingday.19 These concentrations must be greater than 20 Rg/m 3 in orderto be used in determining the precision ofthe network. According to the CARB QA manual, ifconcentrations are below 80 gg/m 3

,the two paired values mustbe within 5jig/m 3 of each other, or further investigation and corrective action are required. Ifthe concentrations are greater than 80 gg/m 3they mustbe within ±7percent ofeach other.20 These acceptance criteria are consistent with EPA criteria in the guidance document "Quality Assurance Handbook forAir Pollution Measurement Systems, Volume II: Part 1,Ambient Air Quality Monitoring Program Quality System Development", (EPA-454/R-98-004, August 1998).

EPA's QA guidance cited above provides a target for the system-wide precision performance; taken across all pairs ofcollocated data. EPA regulations
at 40 CFR part 58, appendix A section 5.3 requires 95 percentupper andlower probability limits be used to evaluate the collocated data.The target given in the guidance forthe 95th percentile upper and lower limits for reporting organizations is 15 percent. The annual precision summary statistics for the CARB PM-10 SLAMS network meet these requirements as shown in the AQS Report "P/A Reporting Organization Summary, AMP 240."

Establishing precision for automated equivalent method analyzers, such as BAM orTEOM monitors, consists of performing a bi-weekly one point precision check ofan analyzer's operational flow rate. See 40 CFRpart 58, appendix A, section 3.1. The check is made using a flowrate transfer standard. The actual flow rate measured by thetransfer standard andthe indicated flow rate ofthe analyzer (the flow rate as measured by the analyzer's

own flowrate meter)are reported to the AQS database. Inthe case ofthe automated equivalent analyzers operated by the District as special purpose monitors rather than as SLAMS monitors, these precision checks were notmade in accordance with Appendix A section 3.1 and therefore EPA cannot have the same confidence in these data

as we have inthe SLAMS data. Without performing the precision checks, the District may have overlooked operational problems and allowed them to affect the data fromthe special purpose monitors, andwithout the precision check data wehave no way to evaluate the acceptability ofthe data.

The otherprimary dataquality control (QC)check for proper operation and maintenance of amonitor is the accuracy check.As with the precision checks, there are two different procedures for determining the accuracy ofPM-10 monitors depending on whether we are checking a manual reference method or an automated equivalent (continuous) analyzer. These two procedures are addressed in40 CFR part 58, Appendix A, sections 3.4 and 3.2 respectively.

For the SJV PM-10 SLAMS network that used manual reference method samplers, the procedures in section 3.4

are used to determine accuracy. The procedure entails auditing the flowrate ofeach sampler annually such that 25 percent ofthe network 21 is audited each calendar quarter. An independent auditor (i.e., not theperson who regularly operates the sampler) using dedicated equipment (i.e., not the flow
meterbuilt into the sampler) auditsthe flowrate ofthe sampler and reports the actual flowrate and the indicated (sampler)flow rate. Two measurement quality parameters are calculated from these measurements: The percent difference in the flow rate measurements by the sampler's own flowrate meter andthe auditor's dedicated flowrate meter, and the percent difference between the actual flowrate created by the sampler and the flowrate it was designed tohave. Percent differences beyond acceptance limits can cause an incorrect
measurement ofPM-10 concentrations. As the QA oversight agency, CARB's QA section performs the accuracy audits of the SJV PM-10 SLAMS network. These
accuracy audits were performed by CARB as required by EPA regulations, and showed that the monitors were operating withinthe accepted control limits, i.e., the flow rates had not deviated enough from their design flow
rates to require any corrective action on the part ofthe CARB or District monitoring staff. The results ofthe accuracy checks performed byCARB

were submitted toEPA and are shown in the AQS Report "P/A Reporting Organization Summary, AMP 240." The following table summarizes the accuracy results forthe individual audits ofthe PM-10 monitors inthe SJV. The table shows the date ofeach audit (one per year) the differences in the flow rate measurement by the sampler's own flow ratemeter (%Diff.) and the difference between the actual flow rate created by the sampler and the flowrate it was designed to have (% Diff.Design). This information shows that the monitors operated in the SJV PM-10 SLAMS network are performing withinthe acceptance criteria established byEPA in its QA guidance, which sets a target confidence interval forthe 95th percentile upper and lower limits aggregated across the reporting organization of 20 percent, over athree yearperiod. The CARB PM-10 SLAMS network easily meets this target based

onthe small differences shown inthe table below. CARB's performance of these audits at therequired frequencies and subsequent submittal ofthe results ofthe audits to EPA's AQS database meets the requirements of 40 CFR part 58, appendix A, section 3.4.

Bakersfield-Golden

..........................................................................................................

Clovis

............................................................................................................................... Audit date [Sampler ID %Diff. %_dign.

6/4/2003 7/13/2004 10/5/2005 6/18/2003 7/29/2004 1117/2005 4121 2456 4121 7380
4040 4040 0.0 6.8 5.3 -2.2

- 2'9

0.3

19Because it operates on a one in three day sampling schedule and is also acollocated precision site,the Corcoran monitoring site has three manual reference method samplers in operation, two thatrun concurrently anda third that runs on the staggered one in six day schedule that enables the site to produce data every three days.

20State ofCalifornia AirResources Board,Air Monitoring Quality Assurance, Volume I, Quality Assurance Plan, Monitoring andLaboratory Division, June 2005. "

21 In thiscase, 25 percent ofthe network applies

to the California State PM-10 SLAMS network not the SJVPM-10 SLAMS network. -6.8 -4.3 -5.7

0.7 3.0 -0.5 

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### 63656 Federal Register/Vol. 71, No. 209/Monday, October 30, 2006/Rules and Regulations

Audit date Sampler ID % Diff. design

Corcoran-Patterson..............................................

Fresno-Drummond.............................................

Hanford......................................................

Merced-M St

. ...................................................................................................................

Stockton- Wagner- Holt

................................................................................................

Taft.........................................................

Turlock......................................................

Bakersfield-CA.................................................

Fresno-First

.............................................

Modesto-14th St................................................

Oildale

..............................................................................................

Stockton-Hazelton

................ I

....................... ........................

Visalia....................................................... 2/4/2003 2/4/2003 2/4/2003 3/11/2004 3/11/2004 3/11/2004 1/26/2005 1/26/2005 1/26/2005 2/19/2003 2/25/2004

3/1/2005 2/4/2003 3/10/2004 1/25/2005 3/4/2003 2/26/2004 1/25/2005 6/18/2003 12/16/2004 11/28/2005

2/3/2003 2/3/2003 3/15/2004 3/15/2004 3/14/2005

3/14/2005 3/11/2003

3/2/2004 2/24/2005 3/11/2003 3/11/2003 3/16/2004 3/16/2004 3/8/2005 3/8/2005 6/16/2003 7/28/2004 7/26/2005 3/3/2003 3/3/2004 2/23/2005 3/12/2003 3/17/2004 3/10/2005 11/19/2003 12/16/2004 12/1/2005 6/12/2003 6/12/2003 7/27/2004 7/27/2004 7/28/2005 7/28/2005 1885 4645 4120 1885 4645 4120 1885 4645 4120 4069 4069 4069 3048 1884 1884 4756 4756 4756 3519 3519 3519 8008 7787 8008 7787 8008 7787 4161 4161 3519 20018176 20018177 20018176 20018177 20018176 20018177 20018504 7660 7660 20003727 20003727 20003727 20004244 20004244 20004244 20004282 20004282 20004282 7471 7678 7471 7678 7471 7678 -2.6 2.0 -8.0 -0.7

1.3 -0.7

0.0 0.3 0.0 1.8 -2.3

4.3 -8.7

2.5 0.0 -5.3

2.8 6.8 0.0 0.3 4.8 -11.7

-5.4 -9.0 -4.3

5.2 3.6 -1.0 -8.5

0.0 -0.2

0.0 -2.2 -2.2

0.3 1.0 1.0 -1.7

0.7 -1.3 -2.0

0.5 1.8 -1.0

1.0 1.0 0.5 0.8 0.0 1.3 -1.7 -1.4

0.5 2.8 7.0 -2.0

3.0 0.5 -1.5

0.5 -0.7 -1.0

0.0 -2.2 -0.7 -1.0 -2.5 -1.3 -3.8

7.5 -3.5 -8.0

0.5 -2.2 -7.0

7.2 6.5 -2.2

9.5 -4.0 -2.5 -1.8

6.3 -3.8

2.0 2.2 3.8 3.8 -0.3 -0.7

2.5 4.3 1.5 -3.0

2.5 0.0 -0.3

2.8 -1.0

0.5 0.0 -1.8

1.3 0.0 4.7 4.3 2.2 0.0

.1

____________ .1 J

________

The accuracy audit for the automated equivalent analyzer is similar tothat for manual reference methods. See 40 CFR part 58, appendix A, section 3.2.2. Like the audit performed for the manual reference methods the auditrequired for automated analyzers is a field audit. However, as discussed inthis notice, no accuracy audits ofthe automated analyzers operated by the District were performed, and therefore EPA cannot

assess the accuracy ofthese monitors. Because the flow-related components of the manual reference method samplers and ofthe automated equivalent analyzers are different in design and materials, the good performance ofthe manual samplers cannot be extrapolated
to the automated analyzers.

Additionally, annual certifications of quality control standards (e.g., a flow
ratemeter) are critical in order toinsure that the checks and measurements being made are traceable to National Institute ofStandards andTechnology (NIST) standards. See 40 CFR part 58, appendix A, section 2.3.3. This certification is achieved by transferring the accuracy or authority ofa primary standard to a field-usable standard. Also, calibrations ofthe internal flow rate meters ofPM10 samplers, which aregenerally performed annually or after sampler repairs, also ensure thatthese meters are functioning correctly. The following table lists the calibration dates ofthe internal flow ratemeters oftheSLAMS monitors inthe SJV network. Calibrations ofthe flow rate meters are usuallyperformed when a sampler is first installed at a site or after repair. While EPA regulations and guidance do

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not specify afrequency for performing performing them annually regardless of demonstrates agood operation practice

calibrations offlow rate meters, whether the instrument required it bythe District and CARB.

Sample ID Cal. date

Bakersfield-Golden

.................................................................................................................................... 4121 2/27/2003 2456 5/25/2004 4121 12/15/2004 Clovis

....................................................................................................................................................................... 7380 3/13/2003 4040 7/27/2004 4040 10/6/2005 Corcoran-Patterson

.................................................................................................................................................. 1885 10/28/2002 4645 1/30/2003 4120 10/28/2002 1885 11/12/2003
4645 12/9/2003 4120 12/9/2003 1885 10/5/2004 4645 1/5/2005 4120 9/2/2004 Fresno-Drummond

................................................................................................................................................... 4069 11/12/2002 4069 2/24/2004 4069 12/21/2004 Hanrford

.................................................................................................................................................................... 3048 10/14/2002 1884 10/15/2003 1884 8/4/2004 Merced-M St

............................................................................................................................................................ 4756 10/9/2002 4756 2/10/2004 4756 12/9/2004 Stockton-Wagner- Holt

............................................................... ........................................................................... 3519 2/20/2003 3519 9/10/2004 3519 7/20/2005 Taft

........................................................................................................................................................................... 8008 11/19/2002 7787 10/25/2002 8008 2/26/2004 7778 2/26/2004 8008 8/18/2004 7778 8/18/2004 Turlock

..................................................................................................................................................................... 4161 1/23/2003 4161 7/16/2003 3519 2/23/2005
Bakersfield--CA

....................................................................................................................................................... 20018176 3t7/2002 20018177 317/2002 20018176 3/9/2004 20018177 3/9/2004 20018176 6/3/2004 20018177 6/16/2004 Fresno- First

........................................................................................................................................................... 20018504 6/13/2003 7660 1/21/2004 7660 2/28/2005 Modesto- 14th St

.................................................................................................................................................... 20003727 1/17/2003 20003727 2/10/2004 -20003727 2/11/2005 Oildale

...................................................................................................................................................................... 20004244 2/27/2003 20004244 1/8/2004 20004244 1/31/2005 Stockton- Hazelton

................................................................................................................................................. 20004282 11/12/2003 20004282 12/9/2004 20004282 11/9/2005 Visalia

.................................................................................................................................................................... 7471 5/20/2003 7678 5/20/2003 7471 5/20/2003 7678 5/20/2003 7471 11/24/2004 7678 11/24/2004 

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As detailed above, CARB has certified and submitted quarterly 22 to EPA's AQS database, all the supporting QA data forthe SJV SLAMS PM-10 network, including data collected by the collocated precision network and all required audit data. This data shows thatthe operation and maintenance of the SLAMS network met the requirements ofsections 3.3 and 3.4 of Appendix A Part 58. By contrast the required number ofprecision checks and independent flow rate audits were not performed onthe automated equivalent (BAM and TEOM) method monitors pursuant to sections 3.1.2 and 3.2.2 nor was data onthe precision checks that were performed on the BAM monitors submitted to the AQS database

as required by 40 CFR part 58, appendix A, section 4.1.23 Thus EPA is not, asthe
commenter contends, "cherry picking" data, but rather relying for its determination on data that has met the requirements for reliability under its regulations.

F.DataNotIncludedinDetermining Attainment

1.Data From September 3, 2004 High Wind Event
Comment 14: The commenter questions the validity ofwaiving the September 3, 2004 exceedance as a Natural Events Action Plan (NEAP) 24 event and states that there is no technical basis forignoring the exceedance and that best available control measures (BACM) were not being implemented for the largest

sources ofdust in the Valley on that date. The commenter notes that removal ofthe flag puts the Valley right atthe limit ofviolations allowed under the NAAQS and should make EPA wary to find the PM-10 problem solved inthe Valley.

Response:The exceedance inquestion occurred at the Corcoran-Patterson Avenue monitoring site. EPA notes in its proposed rule that "[tlhis exceedance

was flagged by CARB as a high wind natural event [and] EPA concurred with CARB's request to exclude this data fromconsideration in attainment findings on July 7, 2005." However, "even ifEPA had not concurred with the exclusion ofthis data, the Corcoran site would still attain the 24-hour NAAQS because the expected number ofexceedances 25 is less than or equal to

one per year, averaged over the three
year period 2003-2005." 71 FR40952, 40954. In otherwords, EPA believes that it need not address here the issue of whether or not the September 3, 2004 exceedance should be flagged, because in any event the SJV would still be attaining the PM-10 standards. In addition, whether the SJVis "at the limit" ofexceedances allowed underthe NAAQS is not acriterion for making an attainment determination. Areas are either attaining ornot attaining. EPA found that the area would still be attaining even ifthis exceedance were included, and on that basis determined that the area was in attainment. As noted above, EPA believes that preliminary data indicating aSeptember 22, 2006 exceedance at the Corcoran monitor should also not be included in this attainment determination for the

reasons stated previously relating to quality assured data and natural events.

Nevertheless, EPA notes that the attainment determination doesnot mean theair quality problem is solved in the
SJV.In order to beredesignated as a PM-l0 attainment area, the District and CARB will need to address CAA section 107(d)(3)(E) requirements. In addition, the SJV is nonattainment forthe PM-2.5 and 8-hour ozone standards and will need to achieve substantial further reductions inpollution levels to attain these NAAQS. The commenter's implicit concern is that EPA's action will somehow allow the SJV torelax its efforts to reduce air pollution; however, EPA does not believe that is the case.
2. Data From BAM and TEOM Monitors

Comment 15:The commenter states thatthere are four Beta Attenuation Mass (BAM)monitors (designated by EPA as federal equivalent methods and also referred to as "special purpose monitors") in the Valley that monitor PM-10 concentrations andthat two of these monitors (Bakersfield-Golden State Highway and Corcoran-Patterson Avenue) have recorded multiple exceedances ofthe Federal PM-la standard from 2003 to 2005. The
commenter states that allvalid data from special purpose monitors mustbe considered within the regulatory process and thatEPA's rationale (that theDistrict did not perform quality control checks every two weeks and that CARB did not perform independent field audits ofthe BAM sampler) fornot considering data from the Corcoran BAM monitor is not adequate.

Response:The District andCARB have operated automated equiR'alent (continuous)method monitors in the SJV at a number ofPM-l0 SLAMS sites. The following table summarizes the type (BAM or TEOM), location and history of operation ofthe PM-10 continuous monitors operated in the Valley.

Monitoring site BAM operational period .TEOM operational period

Bakersfield Golden State Hiy

........................... 7/28/2005-8/8 2006

......................................... 8/27/2006-Present. Corcoran

............................................................. Before 1/1/2003-7/22/06

................................. 1/1/2003-3/31/2005. '8/24/2006-Present. Fresno 1st Street

................................................ Before 1/1/2003-Present

................................. Before 1/1/2003-Present. Stockton

.......................... :.................................. NA

.................... : ............................... ............... Before 1/1/2003-June 28, 2005. Tracy

................................................................... 10/25/2005-9/26/2006

.................. 10/1/2006-Present.

22EPA regulations require the submittal of precision and accuracy data on a quarterly basis, as it does for the pollutant concentration data. See 40 CFR 58.35 and 40 CFRpart 58, appendix A, section 4.1.

23The District did perform some precision checks
of the BAM monitor at Corcoran butthese were considerably fewerthan required in EPA regulations. See response to comment 15. Section 3.1.2 requires the checks to beperformed at a designated frequency andthe data submitted to the AQS database. 14See memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation to Regional AirDirectors, "Areas Affected by PM-10 Natural Events," May 30, 1996.

15EPA determines attainment ofthe 24 hour PM10 NAAQS based on the number of"expected" exceedances in a given year. Because most manual PM-10 samplers do not operate every day buton

a one in six day schedule, EPA regulations at 40 CFR part 50, AppendixK require an adjustment to the observed or actual number ofexceedances to
account for days that are not sampled. In the simplest case, when a monitor operating once every six days, with 100% data capture, records a single observed exceedance, that exceedance would be adjusted to six expected exceedances. In the specific case ofthe Corcoran monitoring site and its

one in three day schedule, EPA calculated the expected exceedances, based on the singleobserved exceedance on September 3, 2004, to be three over

athree yearperiod which averages to one exceedance peryear. This expected exceedance rate ofone per year shows thatthe Corcoran site is still in attainment ofthe 24-hourNAAQS. See 40 CFR part 50, Appendix K, section 3.1 for a cpmplete discussion on how EPA adjusts data.

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EPA regulations at 40 CFR part 50, appendix K, section 2.3 address the data requirements that must be metin order for EPA to determine the attainment
status of a particular monitoring site. In general EPA needs three years worth of monitoring data in order to declare a site in attainment ofthe NAAQS. Ofthe four BAM monitors operated inthe Valley, only Fresno 1st Street and Corcoran have been in operation long enough to have accumulated three years ofdata. 26 The Bakersfield-Golden State Highway site operated a BAM monitor from July 28, 2005 to August 8, 2006. The BAM was replaced by a TEOM monitor on August 27, 2006. The Tracy site operated a BAMmonitor from October 26, 2005 to September 26, 2006. The Tracy BAM was replaced by a TEOM monitor on October 1,2006. EPA's attainment determination is based

on three complete years ofdata from 2003-2005. Therefore, the data from these BAM and TEOM monitors at Bakersfield Golden State Highway and Tracy cannot be usedto determine that these sites are in attainment. Furthermore, the BAM monitor at Tracy did not record any exceedances of the 24-hour PM-10 NAAQS in 2005, though an exceedance was recorded on September 22, 2006 (160 g~g/m 3). The Bakersfield-Golden State Highway automated equivalent monitors recorded three exceedances ofthe NAAQS during their operation, a value of 156 Igg/m 3 on November 22, 2005 and a value of180 gg/m 3 on November 23, 2005 (recorded

on BAM monitors). Another exceedance (169 .tg/m 3) was recorded by the Bakersfield-Golden State Highway TEOM on September 22, 2006.27 Under 40 CFR 50.6, "[tlhe standards are attained whenthe expected number of days per calendar year with a 24-hour
average concentration above 150glg/m 3
* * *is equal or less than one." Therefore, because neither the Tracy nor the Bakersfield-Golden State Highway BAM monitor has averaged more than

one exceedance per year, the exceedances recorded at these monitors do not show thatthe area is in violation ofthe 24-hour NAAQS. Even ifthe Bakersfield-Golden State Highway BAM and TEOM data are considered together (andeven ifthey were quality-assured data not subject tonatural events), the exceedances recorded at these monitors would not show thatthe area is in violation ofthe standard. See Responses 18 and 19.

Automated equivalent analyzers are also operated at theFresno 1st site and the Corcoran site. Seetable on BAM and TEOM operating histories above. The Fresno 1st site has operated both aBAM monitor and a TEOM monitor for long enough that there is a three year data set forboth analyzers. Neither theBAM nor the TEOM operated at Fresno 1st Street recorded any exceedances ofthe 24- hourNAAQS during the 2003-2005 period, and both continue to show attainment through October 11, 2006.

The Corcoran site operated both a BAM monitor and a TEOM monitor during itshistory. See the table above

on BAM and TEOM operating histories. The automated equivalent analyzers operated at the Corcoran site did record exceedances 28 as summarized in the following table:

CORCORAN AUTOMATED EQUIVALENT ANALYZER-PM-10 EXCEEDANCES 2003-2006

Date Concentration (type of analyzer) (gig/m 3)

10/10/2003 (BAM)

.......................................................................................................................................................................... 182 10/18/2003 (BAM)

.......................................................................................................................................................................... 156 10/21/2003 (BAM)

.......................................................................................................................................................................... 157 10/28/2003 (BAM)

.......................................................................................................................................................................... 158 9/3/2004 (BAM)......................................................................................."217 11/21/2005 (BAM)

.......................................................................................................................................................................... 166 11/22/2005 (BAM)

.......................................................................................................................................................................... 177 11/23/2005 (BAM)

.......................................................................................................................................................................... 185 11/26/2005 (BAM)

.......................................................................................................................................................................... 166 2/27/2006 (BAM)

............................................................................................................................................................................ 179 9/22/2006 (TEOM)

......................................................................................................................................................................... *261

*The manual reference method monitor at Corcoran also recorded an exceedance of the NAAQS on this day that the State flagged as a high wind event under EPA's Natural Events Policy.

**As noted previously the District and CARB have informed EPA that they believe that exceedances recorded on September 22, 2006 are due to high wind andwildfire natural events.

However, the data was notconsidered byEPA in its attainment determination because the District did not.perform the flow rate checks ofthe BAM monitors

as required byEPA regulations at 40 CFR part 58, appendix A, section 3.1.2 and CARB did not perform independent flow rate audits as required by40 CFR

26While it is necessary to have three years of representative monitoring data to demonstrate that

amonitor is attaining the standard, 40 CFRpart 50, appendix K, section 2.3(c) states that there are less stringent data requirements for showing that a monitor has failed to attain. Since the24-hour PM10 standard is violated once a monitor averages

more than one expected exceedance per year (averaged overthree years), a monitor with four or

more observed or expected exceedances has violated the 24-hourNAAQS even ifthere is less part 58 appendix A, section 3.2.2. See Response to comments 7 and 13
above.29

In determining which data touse in regulatory actions, EPA needs to determine whetherthe data meets our basic requirements. Ifitdoes not then

we cannot use the data in regulatory

than three years ofdata (four exceedances divided by three years is greater than one per year).

27As noted previously theDistrict andCARB
have informed EPA thatthey believe that exceedances recorded on September 22, 2006 are due to high wind and wildfire natural events.

28An exceedance is defined as a daily value that
is above the level ofthe 24-hour standard (150gg/ m3) afterrounding to the nearest 10 gg/m3 (i.e. values ending in 5 orgreaterare to berounded up. See 40 CFR part 50, appendix K, section 1.0. decisions. During thethree-year period of2003-2005, theDistrict only performed 10 ofthe 78 required biweekly flow rate checks andCARB

never performed an independent audit ofthe BAM monitor's flow rate, which is required annually. While the
commenter implies that this is a minor

29Under 40 CFR58.14, because the District did
not intend that data from these continuous monitors would beused for determining attainment ornonattaimnent, flow rate checks and audits were notrequired to be conducted. See May 8, 2006 letter
to Wayne Nastri, Regional Administrator, EPA Region 9, from Catherine Witherspoon, Executive Officer, CARB with attached letter dated April 24, 2006 to Catherine Witherspoon, Executive Officer; CARB from Seyed Sadredin, Executive Director/Air Pollution Control Officer, San Joaquin Valley Air Pollution Control District. 63659

I

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deficiency, EPAbelieves the lack of QA/ QC raises significant questions about the reliability ofthe Corcoran BAM monitor data and therefore concluded that it would not be appropriate to rely on data from this monitor that did not meet our regulatory requirements. Comment 16:The commenter states that EPA cannot ignore the Corcoran BAMmonitor data due tothe lack of precision check ofthe flow meter. The
commenter states that 40 CFR part 58, appendix A, section 3.1.2.2 offers an alternative procedure at section 3.1.2.2.1 for complying with the section 3.1.2 requirement for aprecision check ofthe operational flow rate ofthe analyzer. The alternative procedure involves checking the BAM monitor's internal flow meter (vs. using an external flow rate transfer standard) and requires an external audit ofthe flow rate atleast every six months, records ofthe past three audits showing that the flow meter is stable, and no indication of.improper operation. Section 3.1.2.2.2 even allows forthe precision check to be carried out remotely. The commenter states that EPA has not analyzed whether the District properly maintained the Corcoran-Patterson Avenue BAM monitor inaccordance with section 3.1.2.2 and that the District's maintenance records show regular weekly maintenance, including checks ofthe on-screen flow rate, and also showregular external flow audits.

Response:As stated above, there are two routine quality assurance checks that need to be made tomonitoring instruments to ensure that the data they

are producing isreliable. One ofthese is a precision check.The precision check for automated PM-10 analyzers, ofwhichthe BAM monitor is one, is addressed in40 CFR part 58, appendix A, section 3.1.2. See response to comment 13. This section requires a one-point precision check to be performed at least once every two weeks. There are two procedures that

can be used to satisfy this requirement. The standard procedure is explained in section 3.1.2.1 of appendix A and the alternative procedure is explained in section 3.1.2.2 of appendix A. One of

our reasons for not using data from the CorcoranBAM monitor is that the District did not perform the precision checks of its BAM monitor and submit the resulting QA data to the AQS database. The District performed neither the standard procedure nor the alternative procedure.

The conmnenter implies thatEPA rejected the Corcoran BAM monitor data

even though the District had performed the sanctioned alternative procedure. This is not true. EPA reviewed all the maintenance records from the CorcoranPattersonAvenue site and found that neither precision check was being performed. While the operator did check the BAM monitor's internal flow rate indicator routinely, the other requirements of40 CFRpart 58, appendix A, section 3.1.2.2 were not being met, i.e., the flow rate meter was not audited every six months and there

was no documentation that the flow
meter is stable, verifiable, and accurate to ±4percent (sections 3.1.2.2.1.1, 3.1.2.2.1.2, 3.1.2.2.1.3). See also response to comment 13 above. As stated inthat response the precision check is one ofthe critical measurement quality checks that are needed to ensure thatthe device is performing as designed.

Comment 17:The commenter states thatEPA also cannot dismiss the Corcoran BAM data because CARB did
not perform independent field audits as described in section 3.2.2 without explaining why these audits are important in determining the reasonableness ofthe data. Moreover, the commenter also states that EPA must demonstrate that the FRM monitors were appropriately audited or explain why itis reasonable forthe FRM monitors to notbe audited while excluding the BAM monitor data due to this oversight. EPA needs a compelling rational basis forcontinuing to exclude all ofthe BAM data-or EPA must consider the data in determining the Valley's attainment status.

Response:Regular audits of monitoring equipment are important in establishing the validity and accuracy of the data collected byan agency. Section 2.11.7.0 ofEPA's QA Guidance document "Quality Assurance Handbook," Volume II, PartII, September 1997, states that:

[tihe primarygoal ofan auditingprogram isto identify system errors that mayresult in suspect orinvalid data.The efficiency ofthe monitoring system (i.e., labor inputvs. valid dataoutput) is contingent upon effective quality assurance (QA) activities. Thistrue assessmentofthe accuracy and efficiency of thePM-10 measurement system can onlybe achieved by conducting an audit under the followingguidelines:

* Without special preparation or adjustment ofthe system tobe audited.

* By an individualwith a thorough knowledgeoftheinstrument or process being evaluated, but notby the routine operator.

*With accurate, calibrated NIST-traceable transfer standards that are completely independent ofthose used for routine calibration and QCflowchecks.

* With complete documentation ofaudit information for submission to the operating agency.The audit information includes, but isnotlimited to, types ofinstruments and audit transfer standards, instrument model and serial numbers, transfer-standard traceability, calibration information, and collected audit data.

The audit procedures described inthis section produce two quantitative estimates of

a PM-10 sampler's performance: The audit flow-rate percentage difference and the design flow-rate percentage difference. The audit flow-rate percentage difference determines the accuracy ofthe sampler's indicated flow rateby comparing it with a flowrate from the audit transfer standard. The design flow-rate percentage difference determines how closely the sampler's flow
rate matches theinlet design flow rate under normal operational conditions.

It is not clear to EPA why the
commenter believes the FRM monitoring network operations do not
meet EPA requirements. As discussed previously, the PM-10 SLAMS monitoring network meetsEPA's QA requirements, including therequirement for independent field audits. See also Response to Comment 13 above. Comment 18:The commenter states that neither EPA nor the District addresses the violations recorded at the Bakersfield BAM monitor. No attempt is made to discredit the data coming from that BAM monitor and no rational basis is provided by EPA for completely disregarding those data.

Response:The Bakersfield Golden State Highway BAM monitor never recorded any violations ofthe NAAQS. As explained above, the Bakersfield Golden State Highway automated equivalent method analyzers recorded three exceedances since the District began operation of these monitors at the site in July 28, 2005 while sampling
every day. According to 40 CFR part 50, appendix K, this does not constitute a violation ofthe NAAQS and therefore

we did not discuss it in our proposal. Since there are no violations at this BAM monitor, EPA did not need to determine whether the data was usable in making the attainment determination for the SJV. See response to comment 15.

Comment 19: The commenter states that EPA does not justify ignoring data from the three.tapered element oscillating microbalance (TEOM) monitors that were operated in the Valley during the 2003-2005 time period.

Response:The three TEOM monitors operated during the 2003-2005 period

were located at Fresno 1st Street, Stockton Hazelton Street, and Corcoran Patterson Avenue. The TEOMs at Fresno and Stockton were operated by CARB as special purpose monitors that supplement the SLAMS high volume FRM samplers. The Corcoran TEOM

was operated by the District, also as a special purpose monitor. In addition, as

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discussed in response to comment 15 above, the District now operates TEOMs
at its Tracy, Bakersfield-Golden State Hwy. andCorcoran monitoring sites. GARB has submitted and certified the TEOM data from the Stockton site to EPA's AQS database up tothe date June 28, 2005, which is when GARB discontinued the operation ofthis TEOM. During the 2003 to 2005 period, the TEOM at Stockton recorded a single exceedance ofthe 24-hour NAAQS. Because ofits everyday sampling schedule, this single exceedance at Stockton does not constitute a violation ofthe NAAQS. See response to comment 15.

No data from any other TEOMs operating in the San Joaquin Valley PM10 network has been submitted to AQS. However, EPA has obtained data from these TEOMs from 2003-2005 as well as
a portion of2006 and these data show

no violations ofthe PM-10 NAAQS have beenrecorded for this period.

As discussed above in response to comment 15 EPA is aware ofTEOMs currently operating at four monitoring sites inthe SanJoaquin PM-10 network: Bakersfield-Golden State Highway, Corcoran, Fresno 1st Street and Tracy. Two ofthese TEOMs, Fresno and Tracy, 30 recorded no exceedances ofthe NAAQS. Two other TEOMS, Bakersfield and Corcoran, recorded exceedances on September 22, 2006, which, as noted above, is a date associated with ahigh wind andfire event. This is the only exceedance day we are aware offor these TEOMS. All data EPA has received from the District and GARB collected by BAMs and TEOMs have been included in the Docket. Thus,in

sumthese TEOM monitors would not show that the area is in violation ofthe standard.

Comment20:The commenter states that EPA must also consider all publicly available data, including "data available from other sources including those special purpose monitors operated by third parties" (1997 Seitzmemo) and that EPA has not made any assertion regarding data from third party monitors. Ifsuch data exists, EPA must consider it or must explain why it is reasonable to exclude this information.

Response:The commenter has not provided any data from any so-called "third party monitors." Nor is EPA

aware ofany data available from third parties that meets our regulatory requirements and could be used in this action.

Comment21:The commenter maintains that "[tihese continuous

30The Tracy TEOM began monitoring onOctober 1, 2006. monitors demonstrate an ongoing PM10problem in the Valley" and that monitoring professionals withinEPA and GARB know thatthese monitors provide the most accurate, realistic picture ofValley air quality. These monitors are used for detailed air quality studies, public health alerts, and modeling in the State implementation plan. In fact, GARB performed a comparison study ofBAM technology

versus FRM technology and found that, far fromthe dramatic picture the District paints ofwildly inaccurate monitor readings, BAM monitors enjoy "good precision" and may actually capture certain semi-volatile pollutants that FRM monitors do not.

Response:The GARB study-cited by the commenter is one that compared PM-2.5 BAM and PM-2.5 FRM performance. PM-2.5 is a different pollutant from PM-10 even though both

are based on particulates, but the type ofparticles thatmake up PM-IO versus PM-2.5 can be very different. The issue for EPA is notwhat type of equipment

was used by the State or District to collect PM-10 data, but whether the data andthe monitors usedto collect it
met EPA's quality assurance requirements.

The BAM monitor is a designated Federal equivalent method for PM-IO. If the District had performed the appropriate QA procedures, as discussed elsewhere inthis action, EPA would have considered the BAM data when making our attainment finding.

Comment22:IfEPA now wants to ignore and dismiss this data, EPA needs
to provide areasonable explanation, not hide behind technicalities itpicks and chooses in order to support its political agenda. EPA's proposal provides none ofthe necessary technical analysis needed to give this reasonable basis. As

aresult, commenters are unable to provide meaningful comment on that basis. EPA must prepare a supplemental notice ofproposed rulemaking to provide the missing analysis.

Response:EPA did provide a reasonable explanation for not usingthe BAM data in its decision tofind that the
SJV has attained the PM-10 NAAQS. As set forth in the proposal to this action, the BAM datadid not meet our QA/QC requirements. The SLAMS data from the FRM network met our requirements. Thus EPA believes it does notneed to prepare a supplemental notice of proposed rulemaking because the substance ofits analysis was adequately included in its proposal.

G. Representativenessof Data
Comment23:The commenter states that "EPA should determine whether conditions of [the] lastthree years are typical" or "whether conditions during this period are representative ofnormal conditions for the Valley." The
commenterpoints to a 1997 progress report and statements madeby the District recommending caution regarding any improvements in monitored PM-10 levels inthe SJV. The
commenter also cites a PittsburghBeaver Valley, Pennsylvania area rule (61 FR 28061, 28063) in whichEPA revoked an attainment determination and pointed to the varied number of exceedances over the preceding years andthe failure ofthe area to adequately reduce emissions as grounds for not dismissing new data indicating a continued pollution problem. Finally, the commenter notes that the District recently argued to EPA and theNinth Circuit Court ofAppeals thatthere was absolutely no way the SJV could attain the PM-1a standard by 2006, further emphasizing the need to evaluate whether the conditions ofthe last few
years are an anomaly.

Response:The requirement to -determine thatclean air is theresult of permanent and enforceablp emissions reductions is a criterion for the redesignation of an area to attainment under CAA section 107(d)(3)(E).3 1 This criterion need not be met for a determination ofattainment or for the suspension ofthe associated RFP, attainment demonstration, and/or contingency measure requirements.

That aside, we believe thatthe attainment determination itself addresses inpart the concern about unusually favorable meteorological conditions. Wehave longrecognized thatyearly variations in meteorological conditions can have a profound effect

on ambient PM-10 concentrations. In setting the PM-10 standards in 1987, we changed the form ofthe 24-hour and anniAal standards to a statistical form which is based on exceedances and annual averages over 3 consecutive years. EPA stated that "[t]he problem of

31The redesignation ofan area to attainment under CAA section 107(d)(3)(E) is a separate process from afinding ofattainment. Unlike an attainment finding where we need only determine that the area has had the prerequisite number of clean years, aredesignation requires multiple determinations. Under section 107(d)(3)(E) these determinations are: (1) We must determine, atthe time ofthe redesignation, thatthe area has attained the relevant NAAQS; (2) The state musthave a fully approved SIP for the area; (3) We must determine that the improvements in air quality are due to permanent and enforceable re-ductions in emissions resulting from implementation of the SIP and applicable federal regulations and other permanent and enforceable reductions; (4)We must have fully approved a maintenance plan for the area under section 175A; (5) The state must have met all the nonattainment area requirements applicable to the

area. 

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year-to-year variability is * * * reduced by averaging three years ofdata." See proposed and final actions promulgating the PM-10 standards at49 FR 10408, 10413 (March 20, 1984) and 52 FR 24635, 24639-24641 (July 1, 1987).

In the case ofthe Pittsburgh-Beaver Valley, Pennsylvania area rule (61 FR 28061, 28063), EPA revoked an attainment determination due to violations ofthe ozone NAAQS that occurred after the determination was made. In response to a comment suggesting that EPA should ignore the violations dueto year-to-year variability, EPA stated that "[blecause the area has not adequately reduced its VOC and NOx emissions, itis subject to

ozone exceedances whenever meteorological conditions are conducive
to ozone formation." The commenter on

our proposed attainment determination for the SJV implies that because EPA recognizes year-to-year variability in data and that both the SJV and the Pittsburgh-Beaver Valley areas had variable data over theyears, EPA should address whether conditions were typical

or normal before making the attainment determination for SJV. However, the SJV has 3 recent years (2003-2005) ofclean data whereas the Pittsburgh-Beaver Valley area did nothave clean dataat thetime ofthe attainment determination revocation.

The 2003 PM-10 Plan demonstrates attainment ofthe PM-10 standards by 2010. 69 FR 30006. The 2003 PM-10 Plan's attainment demonstration is based on airquality modeling of emissions reductions from State and District measures. As such it is a prediction ofwhat ambient conditions will,be in the future. In contrast, as discussed above, a determination of attainment, based on monitored air quality data, reflects actual ambient conditions over a three year period. Given the margin oferror in air quality modeling, particularly for PM-10, a disparity between modeling and monitored data is not unusual. While, as stated above, thethree year requirement does to a certain extent address anomalous meteorological conditions,

an analysis ofwhether

. * *the improvements in air quality are dueto permanent and enforceable reductions in emissions * * " is primarily addressed as a prerequisite for redesignation ofan area to attainment under CAA section 107(d)(3)(E) to

ensure that reductions will remain in place evenwhere weather variations

occur.

Finally, the commenter alsopoints to statements made ina SJV 1997PM-10 _progress report in which the District discusses the favorable meteorological conditions (i.e., rain) during 1993-1998 which may or may not have led to fewer PM-10 exceedances. However, our PM10 attainment determination isbased on the years 2003-2005. Again, whether or not 2003-2005 was a period ofnormal conditions and whether the SJVcould continue to demonstrate attainment under all predicted weather conditions is a criterion that must be addressed in connection with a redesignation, but not foran attainment determination.

Comment24:The commenter contends that EPA's decision is not reasonable, and that EPA has never attempted tomake an attainment determination based on so few years of monitoring and in the face of such countervailing evidence. The
commenter further contends that EPAis motivated by a desire to avoid legal deadlines.

Response:As set forth above, in responses to comments, EPA believes that its decision is a reasonable one, based on three complete years of quality-assured data, and supported by the evidence. Moreover, the commenter is wrong in alleging thatEPA has never before based a determination of attainment on three years ofdata. EPA has in numerous instances done so. See, for example, 60 FR 37366 (July20, 1995) (Grand Rapids), 66 FR 1925 (January 10, 2001) and_66 FR 53094 (October 19, 2001) (Pittsburgh-Beaver Valley), 66 FR 27583 (May 17, 2001) and 66 FR 53655 (October 23, 2001) (Louisville), 68 FR 25418, 25429 (May 12, 2003) (St. Louis), 69 FR 21717 (April 22, 2004) (Bay Area). The commenter's speculation as to EPA's motivation is irrelevant. EPA's determination that the SJV area has attained the standards is, as shown elsewhere in thisnotice, supported by quality assured data and in compliance with statutory and regulatory requirements.

H. OtherComments

Comment 25:Approximately two thousand commenters sent letters (all via e-mail except one via postcard) to EPA stating that they are concerned about the attainment determination. All
commenters were specifically concerned about the airquality in the Valley, about a monitoring network that reads only once every six days and does
not account for the agriculture-heavy
west side and about EPA ignoring violations from monitors. Commenters

were also concerned that the finding would relieve EPA andthe District of obligations to continue to address the particulate matter problem and air pollution problems ingeneral. Many
commenters provided personal accounts ofhealth issues (e.g., asthma, difficulty breathing, hospital visits, use of inhalers) while living inthe SanJoaquin Valley.

Response:As noted above, the
comments ofindividual citizens raised many ofthe same issues set forth in the
comments ofEarthjustice, andEPA has addressed those comments in the
context ofits responses toEarthjustice. Like the commenters, EPA is concerned about the air quality oftheSJV and the health ofits residents. The SJV is a nonattainment area for ozone aswell as for PM-10 and PM-2.5. In general in the SJV, ozone is a summertime problem and PM is a fall and wintertime problem. EPA has invested significant

resources in developing clean air plans andmeasures to reduce the air pollution in the SJV tolevels considered safe by .Federal standards. EPA's determination thatthe SJV has attained the PM-10 standards does notin any way relieve the District, State, or EPA ofany ofthe strategies currently inplace to achieve cleaner air.3 2 

### CARB and the District have statedthis intheir request for an attainment determination (May 8, 2006 letterto Wayne Nastri, Regional Administrator, EPA Region 9, from Catherine Witherspoon, Executive Officer, CARB) and the District has restated it inits comment letter in connection with this rulemaking (August 14, 2006 letter to DorisLo, EPA Region 9, from Seyed Sadredin, Executive Director/Air Pollution Control Officer, San Joaquin Valley Unified Air Pollution Control District). The

measures and commitments approved by EPA in the 2003 PM-IO Plan continue to be implemented, and EPA expects more strategies and measures that will lead to further reductions as the District and CARB develop plans to meet the more stringent PM-2.5 NAAQS and the 8-hour ozone standard.

Furthermore, while some monitors may only take ambient air quality readings once every six days, thedata from these monitors is adjusted to account for the days that arenot monitored. Thus, as a simplified example, if a one in six day monitor records an exceedance ofthe PM-10 NAAQS, that exceedance must be multipliedby six to account for the days itdid notmonitor. In addition, EPA disagrees with the commenter's assertion that the agricultural sources of the western side ofthe Valley are not accounted for.The Corcoran monitoring

32In addition, CARB ortheDistrict cannotrevise their SIP to drop any SIP-approved strategiesunless they candemonstrate thattherevision will not ". * * interfere with anyapplicable requirement concerning attainment and reasonable further progress * * * oranyotherapplicable requirement

* -"ofthe Act. See section 110(1) ofthe CAA.

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site doesmonitor emissions from agricultural sources and is thus representative ofair quality levels inthe western portion ofthe Valley. In addition, the agricultural regulations for the SJV are applicable to sources throughout the Valley, includingthose in the western portion ofthe SJV. Finally, EPA does not ignore actual violations, but as discussed inresponse to comments above, certain data purporting to show exceedances ofthe PM-1p 0tandard may be excluded in defermining whether an actual violation has bccurred for various reasons, including the need to assure thatdata

arereliable and accurate.

Comment26:One commenter sent pictures of dustfrom combines on an agricultural field and stated that incentives were needed tohelp keep the dust onthe ground.The-commenter also discussed dusty conditiohs during the almond and cotton harvest inNovember 2005 throughout the SJV. The
commenter is a farmer andbelieves that farmers are doing agood job ofkeeping dust (laden with pesticides and other residues) onthe ground during the growing season because itbenefits the farmer, but that there are noincentives forcontrolling the dust fromroads. Finally,the commenter is concerned that even with the new NAAQS in the future, the attainment determination will lead to relaxation of enforcement and monitoring when more progressive and innovative steps are needed.

-

Response:The SJVhas requirements that control dust from agricultural

sources such asthose discussed by the
commenter. See District Rules 4550 and 8081. These requirements cover almond,
cotton and other types offarming operations in the SJV and include

measures that reduce dust from roads. The new more stringent PM-2.5 standards will lead to additional
measures; however, even without these

new standards, because the 24-hour PM-10 standard remains in effect, the enforcement ofmeasures toreduce PM10 and monitoring ofPM-10 will still be required (see also above response to comment 14). 

## m1. Final Action
Based on 2003-2005 quality-assured data meeting the requirements of40 CFRpart 50, appendix K, as well as data showing continued attainment, EPA is finalizing its determination that the SJV has attained the 24-hour and annual PM-10 NAAQS. The SJV continues to attain the PM-10 NAAQS in 2006 based

on all available quality assured data. This action does notconstitute a redesignation to attainment under CAA section 107(d)(3), because we donot yet have an approved maintenance plan as required under section 175(A) ofthe CAA or a determination thatthe area has met the other CAA requirements for redesignation. The classification and designation status in40 CFR part 81 remains serious nonattainment for this

area until such time as California meets the CAA requirements forredesignation ofthe SJV to attainment.

Consistent with the Agency's Clean DataPolicy and its interpretation that the attainment determination suspends certain requirements as setforth in detail above, EPA is also finalizing its finding that the contingency measure requirements ofCAA section 172(c)(9)

nolonger apply to the SanJoaquin Valley PM-10 nonattainment area for so long as the area continues to attain the PM-10 NAAQS. Ifwe subsequently determine, after notice and comment rulemaking in the Federal Register, that the area has violated the standard (prior to aredesignation to attainment), the requirement for contingency measures would once again be applicable.

IV. Effective Date ofThis Final Action

TheEPA finds that there is good

cause forthis action to become effective immediately upon publication because a delayed effective date isunnecessary duetothe nature ofthis action, which is a determination, based on air quality data, that certain Act requirements do
not apply for so long as the area continues to attain the standard. The immediate effective date forthis action is authorized under both 5 U.S.C. 553(d)(1) which provides that rulemaking actions may become effective less than 30 days after publication ifthe rule "grants or recognizes an exemption or relieves a restriction" and 5 U.S.C. 553(d)(3), which allows an effective date lessthan 30 days afterpublication "as otherwise provided bythe agency for good cause found andpublished with the rule."

V. 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 toreview by the Office ofManagement and Budget. For this reason, this action is alsonot subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use" (66 FR 28355, May 22, 2001). This action merely makes a determination based on air quality data, suspends certain requirements, and imposes no additional requirements. Accordingly, the Administrator certifies that this rule will nothave a significant economic impact on a substantial number ofsmall entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because thisrule does not impose any additional enforceable duty, it 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).

This rule also does nothave tribal implications because itwill nothave a substantial direct effect on one or more Indian tribes, onthe relationship between the Federal Government and Indian tribes, oron the distribution of
power andresponsibilities between the Federal Government and Indian tribes,

as specified byExecutive Order 13175 (65 FR 67249, November 9, 2000). This action also does nothave Federalism implications because itdoes not have substantial direct effects on the States,

on the relationship between the national government and the States, or on the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132 (64FR 43255, August 10, 1999). This action merely makes adetermination based on air quality data and suspends certain, requirements, and does not alterthe relationship orthe distribution ofpower and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 "Protection ofChildren from Environmental Health Risks and Safety Risks" (62 FR 19885, April 23, 1997), because itis noteconomically significant.

Therequirements ofsection 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply because itwould be inconsistent with applicable law for EPA, when determining the attainment
status ofan area, to use voluntary

consensus standards in place of promulgated air quality standards and monitoring procedures that otherwise satisfy the provisions ofthe CleanAir Act. This rule doesnot impose an information collection burden under the provisions ofthe Paperwork Reduction Act of1995 (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 rulemay take effect, the agency promulgating the rule must submit a rule report, which includes a copy ofthe rule, to each House ofthe Congress andto the Comptroller General oftheUnited States. EPAwill submit a report containing this rule and other required infoimation tothe US. Senate," 

### 63663

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### Federal Register/Vol. 71, No. 209/Monday, October 30, 2006/Rules and Regulations

the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication oftherule in theFederal Register. A major rule
cannot take effect until 60 days after it ispublished in theFederal 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 forjudicial review of this action mustbe filed in the United States Court ofAppeals for the appropriate circuit by December 29, 2006. Filing apetition for reconsideration by theAdministrator of this final rule does not affect the finality ofthisrule forthe purposes ofjudicial review nor does it extend thetime within which apetition forjudicial review may be filed, and shallnot .postpone the effectiveness ofsuch rule

or action. This action may not be challenged laterin proceedings to enforce itsrequirements. (See section 307(b)(2).)

List ofSubjects

40 CFRPart52

Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting and recordkeeping requirements.

40 CFRPart81

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

Dated: October 17, 2006.
Laura Yoshii, ActingRegional Administrator, Region9. [FRDoc. 06-8902 Filed 10-27-06; £:45 am]

BILUNG CODE 6560-50-P =:

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