48792 Federal Register / Vol. 69, No. 154 / Wednesday, August 11, 2004 / Rules and Regulations 

1Note that as a result of the Court’s opinion and 

order, we are not taking action on our August 10, 

2001, alternative proposal to find that Imperial 

Valley failed to attain the PM–10 NAAQS by the 

moderate area statutory deadline. Instead we are 

adopting the Court’s factual determination in 

today’s final finding.

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81

[CA 109–RECLAS; FRL–7800–5] 

Finding of Failure To Attain and 

Reclassification to Serious 

Nonattainment; Imperial Valley 

Planning Area; California; Particulate 

Matter of 10 Microns or Less

AGENCY: Environmental Protection 

Agency.

ACTION: Final rule.

SUMMARY: EPA is taking final action 

under the Clean Air Act (CAA) to find 

that the Imperial Valley Planning Area 

(Imperial Valley), a moderate 

nonattainment area for particulate 

matter of 10 microns of less (PM–10), 

failed to attain the National Ambient Air 

Quality Standards (NAAQS) by the 

statutory deadline of December 31, 

1994, and to reclassify the area as a 

serious PM–10 nonattainment area. 

Today’s action is in response to a recent 

decision by the U.S. Court of Appeals 

for the Ninth Circuit that vacated EPA’s 

earlier approval of Imperial County’s 

demonstration that the Imperial Valley 

would have attained the NAAQS by 

December 31, 1994, but for emissions 

emanating from outside the United 

States, i.e., Mexico. EPA’s approval had 

the effect of allowing Imperial Valley to 

remain a moderate nonattainment area. 

In vacating that approval, the Court 

specifically directed EPA to reclassify 

Imperial Valley as a serious PM–10 

nonattainment area.

EFFECTIVE DATE: This rule is effective on 

September 10, 2004.

ADDRESSES: You can inspect and copy 

the docket for this action at our Region 

IX office during normal business hours 

(see address below). Due to increased 

security, we suggest that you call at least 

24 hours prior to visiting the Regional 

Office so that we can make 

arrangements to have someone meet 

you. The Federal Register notice is also 

available as an electronic file on EPA’s 

Region 9 Web page at http://

www.epa.gov/region09/air.

Planning Office (AIR–2), Air Division, 

U.S. Environmental Protection Agency, 

Region IX, 75 Hawthorne Street, San 

Francisco, CA 94105.

FOR FURTHER INFORMATION CONTACT:

David Wampler, U.S. Environmental 

Protection Agency, Region 9, Air 

Division, Planning Office (AIR–2), 75 

Hawthorne Street, San Francisco, CA 

94105; (415) 972–3975; 

wampler.david@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, the words 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ mean U.S. EPA. 

I. Background 

Imperial County is located in the 

southeastern corner of California. It has 

borders with Mexico to the south, 

Arizona to the east, and San Diego 

County to the west. Most of Imperial 

County falls within the Imperial Valley 

Planning Area (Imperial Valley). 40 CFR 

part 81. 

Since the 1990 Amendments to the 

CAA, Imperial Valley has been 

classified as a moderate PM–10 nonattainment area. The CAA requires that 

moderate areas attain the PM–10 

NAAQS by December 31, 1994. CAA 

section 188(c)(1). Moderate areas failing 

to attain the NAAQS by the prescribed 

attainment date must be reclassified as 

‘‘serious’’ under CAA section 188(b)(2). 

However, CAA section 179(B)(d) 

provides that any area that establishes to 

the satisfaction of EPA that it would 

have attained the PM–10 NAAQS by the 

applicable attainment date but for 

emissions emanating from outside the 

United States, is not subject to the 

provisions of CAA section 182(b)(2), i.e., 

reclassification to ‘‘serious’’

nonattainment. 

The Imperial County Air Pollution 

Control District (ICAPCD) and the 

California Air Resources Board (CARB) 

submitted evidence that Imperial Valley 

would have attained the PM–10 NAAQS 

by the 1994 attainment date but for 

transport from Mexico. The primary 

information prepared by ICAPCD is the 

‘‘Imperial County PM–10 Attainment 

Demonstration’’ (179B(d) 

demonstration) which CARB submitted 

to EPA on July 18, 2001. 

On August 10, 2001, EPA published 

in the Federal Register a proposed rule 

that considered two alternatives. 66 FR 

42187. Our first alternative proposed to 

find that the State of California had 

established to EPA’s satisfaction that 

Imperial Valley would have attained the 

PM–10 NAAQS by the applicable CAA 

attainment date, December 31, 1994, but 

for emissions emanating from Mexico. 

Our second alternative proposed, based 

on monitored data during the years 

1992–1994, to find that Imperial Valley 

did not attain the PM–10 NAAQS by its 

CAA mandated attainment date. This 

second proposal, if finalized, would 

have resulted in the area’s 

reclassification to serious. 

After consideration of the 179B(d) 

demonstration and the comments 

received on the proposal, on October 19, 

2001, we finalized our first proposed 

alternative which found that Imperial 

Valley would have attained the PM–10 

NAAQS by December 1994 but for PM–

10 emissions emanating from Mexico. 

66 FR 53106. 

The Sierra Club petitioned for review 

of our October 2001 final action in the 

U.S. Court of Appeals for the Ninth 

Circuit. On October 9, 2003, the Court 

issued its opinion. Sierra Club v. United 

States Environmental Protection 

Agency, et al., 352 F.3d 1186. The Court 

rejected EPA’s factual determination 

with respect to two days, January 19 and 

25, 1993, on which PM–10 exceedances 

of the 24-hour PM–10 NAAQS occurred, 

finding that ‘‘[b]ased on the data and the 

reports in the record, there simply is no 

possibility that Mexican transport could 

have caused the observed PM–10 

exceedences. * * *’’ The effect of this 

conclusion is that the Imperial Valley 

had exceedances of the PM–10 NAAQS 

that preclude a finding that the area 

would have attained the NAAQS by 

1994. The Court, concluding that further 

administrative proceedings with respect 

to the 1994 exceedences would serve no 

useful purpose, instructed EPA to 

reclassify Imperial Valley as a serious 

PM–10 nonattainment area.

On December 18, 2003, the Ninth 

Circuit denied a petition for rehearing 

by ICAPCD, an intervener in the case, 

slightly revised its October 9, 2003, 

opinion, and granted ICAPCD’s motion 

to stay the mandate until March 17, 

2004, to permit ICAPCD to file a petition 

for a writ of certiorari in the U.S. 

Supreme Court. Imperial County did so 

on March 17, 2004. On June 21, 2004, 

the Supreme Court declined to hear the 

case. Imperial County Air Pollution 

Control District v. Sierra Club, et al., 72 

U.S.L.W. 3757. Thereafter the stay was 

lifted and the mandate issued. 

II. Final Action 

A. Rule 

In response to the Ninth Circuit’s 

October 9, 2003, opinion, and pursuant 

to CAA section 188(b)(2), EPA is finding 

that Imperial Valley failed to attain the 

PM–10 NAAQS by the statutory 

deadline of December 31, 1994, and is 

therefore reclassifying the area from a 

moderate to a serious PM–10 

nonattainment area.1 Today’s final 

action applies to the entire Imperial 

Valley planning area which includes the 

Quechan Indian Tribe in the 

southeastern corner of the area, and the 

Torrez-Martinez Tribe in the 

northwestern corner of the area. EPA 

Federal Register / Vol. 69, No. 154 / Wednesday, August 11, 2004 / Rules and Regulations 48793

has contacted both Tribes to discuss the 

non-discretionary nature of this action 

and how the rulemaking may impact 

them.

All serious PM–10 nonattainment 

areas were required to attain the 

standards by no later than December 31, 

2001, unless granted a one-time 

extension of up to five years. CAA 

section 188(c)(2) and (e). Elsewhere in 

this Federal Register, we are proposing 

to find that Imperial Valley failed to 

attain by December 31, 2001. 

B. Notice and Comment Under the 

Administrative Procedure Act 

While this rule constitutes final 

agency action, EPA finds good cause to 

forego prior notice and comment under 

the Administrative Procedure Act 

(APA), 5 U.S.C. 553(b). Notice and 

comment are unnecessary because no 

EPA judgment is involved in adopting 

the Ninth Circuit Court of Appeals’

factual determination in Sierra Club that 

Imperial Valley failed to attain the PM–

10 standards by December 31, 1994, and 

in carrying out the Court’s order to 

reclassify the area from moderate to 

serious nonattainment. In short, EPA is 

simply implementing administratively a 

result that was compelled by the Court. 

III. Administrative Requirements 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. EPA 

has determined that the finding of 

failure to attain would not result in any 

of the effects identified in Executive 

Order 12866 sec. 3(f). Findings of failure 

to attain under section 188(b)(2) of the 

CAA are based solely upon air quality 

considerations and the subsequent 

nonattainment area reclassification must 

occur by operation of law in light of 

those air quality conditions. These 

actions do not, in and of themselves, 

impose any new requirements on any 

sectors of the economy. In addition, 

because the statutory requirements are 

clearly defined with respect to the 

differently classified areas, and because 

those requirements are automatically 

triggered by classifications that, in turn, 

are triggered by air quality values, 

findings of failure to attain and 

reclassification cannot be said to impose 

a materially adverse impact on State, 

local, or tribal governments or 

communities. For the aforementioned 

reasons, this action is also not subject to 

Executive Order 32111, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). These actions 

do not contain any unfunded mandate 

or significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Public Law 104–4) for the following 

reasons: (1) The finding of failure to 

attain is a factual determination based 

on air quality considerations; and (2) the 

resulting reclassification must occur by 

operation of law and will not impose 

any Federal intergovernmental mandate. 

Two Indian tribes have reservations 

located within the boundaries of 

Imperial County. EPA is responsible for 

the implementation of Federal Clean Air 

Act programs in Indian country, 

including reclassifications. EPA has 

notified the affected tribal officials and 

will be consulting with them, as 

provided for by Executive Order 13175 

(65 FR 67249, November 9, 2000). 

Because EPA is required by Court Order 

to reclassify the Imperial Valley PM–10 

planning area to serious nonattainment, 

and because reclassifications in and of 

themselves do not impose any Federal 

intergovernmental mandate, this rule 

also does not have Federalism 

implications as it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). These actions are also 

not subject to Executive Order 13045, 

Protection of Children from 

Environmental Health Risks and Safety 

Rules,’’ (62 FR 19885, April 23, 1997), 

because they are not economically 

significant. As discussed above, findings 

of failure to attain under section 

188(b)(2) of the CAA are based solely 

upon air quality considerations and the 

subsequent nonattainment area 

reclassification must occur by operation 

of law in light of those air quality 

conditions. In this context, it would 

thus be inconsistent with applicable law 

for EPA, when it makes a finding of 

failure to attain to use voluntary 

consensus standards. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This rule does 

not impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). The Congressional 

Review Act, 5 U.S.C. 801 et seq., as 

added by the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 81

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas.

Dated: August 3, 2004. 

Wayne Nastri, 

Regional Administrator, Region IX.

■ 40 CFR part 81 is amended as follows:

PART 81 [AMENDED]

■ 1. The authority citation for part 81 

continues to read as follows:

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

■ 2. In § 81.305 amend the table for 

‘‘California—PM–10’’ by revising the 

entry for ‘‘Imperial County, Imperial 

Valley Planning Area,’’ to read as 

follows:

§ 81.305 California.

* * * * *

48794 Federal Register / Vol. 69, No. 154 / Wednesday, August 11, 2004 / Rules and Regulations 

CALIFORNIA—PM–10

Designated area 

Designation Classification 

Date Type Date Type 

*******

Imperial County: 

Imperial Valley planning area .......................................... November 15, 1990 ............. Nonattainment ..................... 9/8/04 Serious. 

*******

* * * * *

[FR Doc. 04–18378 Filed 8–10–04; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 112

[OPA–2004–0003; FRL–7800–2] 

RIN 2050–AC62

Oil Pollution Prevention and 

Response; Non-Transportation-Related 

Onshore and Offshore Facilities

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: The Environmental Protection 

Agency (EPA or we) is today extending 

by eighteen months certain upcoming 

compliance dates for the July 2002 Spill 

Prevention Control and Countermeasure 

(SPCC or Plan) amendments. The dates 

affected by today’s final rule are the date 

for a facility to amend its Plan and the 

date for a facility to implement that 

amended Plan in a manner that 

complies with the newly amended 

requirements (or, in the case of facilities 

becoming operational after August 16, 

2002, prepare and implement a Plan 

that complies with the newly amended 

requirements). We are also amending 

the compliance deadline for onshore 

and offshore mobile facilities. In light of 

a recent partial settlement of litigation 

involving the July 2002 amendments, 

we are extending the compliance dates 

to, among other things, provide 

sufficient time for the regulated 

community to undertake the actions 

necessary to update (or prepare) their 

Plans. The final rule is also intended to 

alleviate the need for individual 

extension requests.

DATES: This final rule is effective August 

11, 2004.

ADDRESSES: The docket for this 

rulemaking is located in the EPA Docket 

Center at 1301 Constitution Ave., NW., 

EPA West, Suite B–102, Washington, DC 

20460. The docket number for the final 

rule is OPA–2004–0003. The docket is 

contained in the EPA Docket Center and 

is available for inspection by 

appointment only, between the hours of 

8:30 a.m. and 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. You may make an 

appointment to view the docket by 

calling 202–566–0276. You may copy a 

maximum of 100 pages from any 

regulatory docket at no cost. If the 

number of pages exceeds 100, however, 

we will charge you $0.15 for each page 

after 100. The docket will mail copies of 

materials to you if you are outside of the 

Washington, DC metropolitan area.

FOR FURTHER INFORMATION CONTACT: For 

general information, contact the RCRA/

CERCLA Call Center at 800–424–9346 or 

TDD 800–553–7672 (hearing impaired). 

In the Washington, DC metropolitan 

area, call 703–412–9810 or TDD 703–

412–3323. For more detailed 

information on specific aspects of this 

final rule, contact Hugo Paul 

Fleischman at 703–603–8769 

(fleischman.hugo@epa.gov); or Mark W. 

Howard at 703–603–8715 

(howard.markw@epa.gov), U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue, NW., 

Washington, DC 20460–0002, Mail Code 

5203G.

SUPPLEMENTARY INFORMATION: This final 

rule concerns an eighteen-month 

extension of the current deadlines 

contained in 40 CFR 112.3(a) and (b), 

and an amendment of the compliance 

dates for 40 CFR 112.3(c). The contents 

of this preamble are as follows:

I. General Information 

II. Entities Affected by This Final Rule 

III. Statutory Authority 

IV. Background 

V. Today’s Action 

VI. Statutory and Executive Order Reviews

I. General Information 

Introduction. For the reasons 

explained in Section V of this notice, 

the Environmental Protection Agency 

(EPA or we) is today extending by 

eighteen months the dates in 40 CFR 

112.3(a) and (b) for a facility to amend 

and implement its Plan that complies 

with the newly amended requirements 

(or, in the case of a facility becoming 

operational after August 16, 2002, 

prepare and implement a Plan in a 

manner that complies with the newly 

amended requirements). Today’s rule 

extends these deadlines for eighteen 

months from the dates promulgated in 

the April 17, 2003, SPCC rule 

amendment. See 68 FR 18890. Since 

today’s action extends the compliance 

dates, it is not necessary to file a request 

for an extension of time pursuant to 

§ 112.3(f) beyond the existing 

compliance dates. If a facility owner or 

operator has already filed for an 

extension, such a request is invalidated 

by today’s action. If an extension 

beyond the additional eighteen months 

is necessary, a request for an extension 

of time pursuant to § 112.3(f) must be 

submitted. 

We are also amending the compliance 

deadlines in 40 CFR 112.3(c) for mobile 

facilities. 

How Can I Get Copies Of The 

Background Materials Supporting 

Today’s Final Rule or Other Related 

Information? 

1. EPA has established an official 

public docket for this final rule under 

Docket ID No. OPA–2004–0003. The 

official public docket consists of the 

documents specifically referenced in 

this final rule and other information 

related to this final rule. Although a part 

of the official docket, the public docket 

does not include Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

The official public docket is the 

collection of materials that is available 

for public viewing at the EPA Docket 

Center located at 1301 Constitution 

Ave., NW., EPA West Building, Room 

B–102, Washington, DC 20004. 

2. Electronic Access. You may access 

this Federal Register document 

electronically through the EPA Internet 

under the Federal Register listings at 

http://www.epa.gov/fedrgstr. 

You may use EPA Dockets at http://

www.epa.gov/edocket/ to access the 

index listing of the contents of the 

official public docket, and to access 

those documents in the public docket 

that are available electronically. Once in