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Citation: 56 Fed. Reg. 37654 1991

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### 364 

### Federal egister V. 56, No. 

## iSa Thurda! 'Ag8sVt '

### 8, 

### 1991 f ius anAd 

### egulations

request revision to any,SIP.Each request for revision to the SIP shall'be considered separately in light ofspecific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

J.

Fmal Action,

. Today, EPA is approving the SIP revision submittals of October 17, 1985, January 29, 1986, November 7. 1986, October 12, 1990, andOctober 15, 1990, which include: (1) The I/M plan with an anti-tampering regulation, and (2] the carbon monoxide plan control strategy and attainment demonstration. Regulatory Process

Under 5 U.S.C. 

### 605(b), I certify that this SIPrevision will not have a 

### significant economic impact on a substantial number ofsmall entities. (See 46 FR 8709)

Under section 307(b)(1) ofthe Act, petitions forjudicial review ofthis action must be filed in the United States Court ofAppeals for the appropriate circuit byOctober 7, 1991. This action may not be challenged later in proceedings to enforce its requirements (See section 307(b](2))..

The Office ofManagement and Budget has exempted this rule from the requirements ofsection 3 ofExecutive Order 12291.

The Agency has reviewed this request forrevision ofthe federally approved SIPfor conformance with the provisions ofthe 1990 Amendments enacted on November 15, 1990. The Agency has determined that this action conforms with those requirements irrespective of the fact that the adoption ofthe revision by the State preceded the date of enactment.
List of Subjects in40 CFR Part 52

Airpollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.

Authority: 42 U.S.C. 7401-7642. Note: Incorporation by reference ofthe State Implementation Plan for the State of Oklahoma was approved by the Director of the Federal Register on July 1. 1982. Dated: June 28, 1991. William K.Reilly, Administrator.

40 CFR part 52, Subpart LL,is, amended as follows: 

### $ubioat LL-Olclahoma

1. The Authority citation for part 52 continues to read as follows:

Authority: 42 USC 7401-7642. 2. Section 52.1920 is amended by adding paragraph (c)(40)to read as follows: §52.1920 Identiflcatlonof plan.

(c) *

- (40) On October 17, 1985, the Governor ofOklahoma submitted a SIP revision designed to achieve the carbon monoxide standard in Oklahoma County. Supplemental information was submitted on January 29, 1986, November 7, 1986, October 12, 1990,.and October 15. 1990.The anti-tampering regulation was submitted to EPA by the Governor on October 8, 1985.

(i) Incorporation by reference. (A) Oklahoma Official MotorVehicle Inspection Rules and Regulations Manual adopted December 5, 1985, and effective January 1, 1986.

(B) 47 O.S. SUPP. Section 856.1 et seq. adopted May 24, 1984, and effective May 24, 1984.

(C] OP. Oklahoma Attorney General number 84-174 (December 12,1984).

(D) October 17, 1985, plan reporting commitments for Oklahoma County Reasonable Further Progress schedule, page 6.

(E) The City ofOklahoma City Ordinance No. 12,575, as passed by the Council ofthe City ofOklahoma City on March 31, 1970, and approved by the Mayor on March 31, 1970.

(ii) Additional material. 

### (A) A February 7, 1991, commitment letter stating that the DPS will annually conduct unannounced visits at 10 percent ofthe Oklahoma County inspection stations.

(B] An October 12, 1990, letter committing to report semiannually to EPA, information relating to the effectiveness and enforcement ofthe I/ M program. [FR Doc. 91-18828 Filed 8-7-91;.8:45 am]

BILUNG COOE -. 0-11,

40 CFR Part 81
[AD-FRL-3902-5J
Designations and Classifications for Initial PM-10 Nonattainment Areas
AGENCY: Environmental Protection Agency (EPA). ACTION: Notice correcting EPA's announcement ofthe designations and classifications forthe initial PM;-I (particulate matter nominally 10 microns.

or smaller in diameter) nonattainment

areas.
SUMMY On March15,

.1991 (56FR 11101), EPA announced the designations and classifications ofareas with respect 

### to the national ambient air quality standards (NAAQS) for PM-10 occurring by operation oflaw upon enactment ofthe 1990Amendments to the Clean Air Act (Act) (the"initial PM10 nonattainment areas").

Sections 107(d)(2) (referencing section 107(d)(4) designations) and 188(a' ofthe Act specify that EPA mustmake these announcements. Inthe March 1991 notice, EPA explained the operative. legal provisions governing the designation and classification ofthese initial areas (seee.g., sections 107(d)(4)(B) (i),(ii), (iii), and 188(a) ofthe Act).



### . The EPA also provided an opportunity for the public to comment on EPA's announcement. As noted, this did not stem from any legal obligation.Rather,

as a matter ofpolicy, EPArequested public comment on the announcementin order to facilitate public participation and avoid committing errors..In today's action, EPA has responded to pertinent comments addressing the:March 1991 Federal Register notice. Where EPA believed appropriate and where there

was a legal basis to do so, EPA has, made adjustments to the initial PM-1O nonattainment areas in lightofthe comments. Finally, note thatfor informational purposes, EPA has restated some ofthe background discussion provided in theMarch 1991 notice.

EFFECTIVE DATES: 

### For those areas that 

### have remained unchanged, theeffective date ofthe announcement ofthe designation and classification ofthe

areas is May 14, 1991, as indicated in the March 15, 1991 Federal Register notice (56 FR 11101.

For those areas where EPAhas adjusted or corrected the boundaries,, the effective date ofthe announcement ofthe designation and classification of such areas is August 8, 1991. (see discussion below.

FOR FURTHER INFORMATION CONTACT: Larry D. Wallace, Particulate Matter Programs Section, Air Quality Management Division; (MD-15), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park,NC 27711. Mr. Wallace's phone number is (919)541- 0906 or FTS 629-0906.
SUPPLEMENTARY INFORUATION: The.air quality monitoring data supporting the nonattainment designation ofthe former Group IIand III areas monitoring violations ofthe PM-10NAAQS prior to January 1' 1989 are available from,the respective EPA Regional,Office which

serves the Statewhere the affected area

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### Federal Reolsier 

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## 1.Rules and Regulations 375

Is located. The addresces ofthe Regional Offices are as follows: " State AirPrograms Branch, EPA

Region I,J.F.K. Federal Building, Boston, MA 02203-2211. "Air Programs Branch,EPA Region II,

23 

### Federal Plaza, New York,NY 10273. 

### *Air Programs Branch, EPARegion III,

841 Chestnut Building, Philadelphia, PA 19107. "Air Programs Branch, EPA Region IV,

345 Courtland Street, NE., Atlanta, GA 30365. "Air and Radiation Branch, EPA

Region V.230 South Dearborn Street, Chicago, IL60604. "Air Prcgrams Branch, EPARegion VI,

1445 Ross Avenue, Dallas, TX 75202- 2733. * Air Branch,EPA RegionVII, 726

Minnesota Avenue, Kansas City, KS 66101. " Air Programs Branch, EPARegion

VIII,999 18th Street, Denver Placesuite 500, Denver, CO 80202-2405. " AirPivgrams Branch, EPA Region IX,

75 Hawthorne Street, San Francisco, CA94105. * AirPrograms Branch, EPA Region X,

1200 Sixth Avenue, Seattle, WA 98101.
1.Background
A. 1987RevisionoftheNAA 

### QSfor Particulate Matter On July 1, 1987 EPA revised the NAAQS forparticulate matter, replacing total suspended particulates (TSP) as the indicator forparticulate matter with

a new indicator thatincluded onlythose particles with an aerodynamic diameter lessthen or equal to a nominal 10 micrometers (called "PM-10") (see 52 FR 24634). At the same time EPA setforth regulations forimplementing the revised particulate matter standards and announced EPA's State implementation plan (SIP) development policy elaborating PM-10 control strategies necessary to assure attainment and maintenance ofthe PM-10 NAAQS (see generally 52 FR.24672). TheEPA adopted a PM-10 SIPdevelopment policy dividing all areas ofthe country into three categories based on their probability ofviolating the new NAAQS:

1.Areas with a strong likelihood of violating the PM-10 NAAQS and requiring'substantial SIP adjustment

were placed in 

### Group I.

-

2. Areas where attainment ofthe PM10 NAAQS was possible and existing SIP's needed less adjustment were placedin Group II.

3. Areas with a strong likelihood of attaining PM-10 NAAQS and therefore needing adjustment onlyto their preconstruction review program and monitoring network were placed in Group III (see 52 FR 24672, 24679-24682).

B.Prior ListingoftheModificationto PM-I Group , I, andIIIAreas

In accordance with the standards, policies, and regulations published on July 1, 1987-for revising and implementing the new particulate matter standard, EPA identified and listed the Group I and Group II areas in each State in a notice published on August 7, 1987 (see 52 FR 29383). The 1987 notice also indicated that any area ofthe country not listed as Group I or IIwas placed in Group Ill (see 52 FR 29383).

The EPA subsequently modified the identification forthree areas and announced these revisions in a notice published on March 28, 1989 (see 54 FR 12620). Specifically, the 1989 notice indicated thatPorter County, Indiana,

was changed from Group I to Group II; Mono Basin, California, was changed from Group IIIto Group II;and Sandpoint, Idaho, was.changed from Group I to Group II.

On October 31, 1990 EPApublished technical corrections modifying the identification ofthe locations ofconcern for some of the areas previously identified as Group I and II areas (see 55 FR 45799). When EPA listed the initial groupings for areas in the August 1987 notice, the Group I and II areas of

concern were generally described as cities, towns, counties, orplanning

areas. The EPA indicated at that time that these descriptions were only the initial definitions ofthe areas to be -investigatedin the SIPdevelopment
process and would be better defined later.The modifications to the identification of the Group I and IIareas announced in the October 1990 notice specifically defined and delineated the boundaries ofthe Group Iand Group II

areas in question based on information obtained in the SIPdevelopment process and EPA guidelines and procedures for determining particulate matter boundaries. Generally, prior to modifying the identification of boundaries inthe October 1990notice,. -EPA consulted with the affected States,

- reviewed technical information, and * was guided by applicable EPA policy.

Weighing these various factors, EPA set the boundaries it believed appropriate.

II. Today's Action

On March 15, 1991 (56 FR 11101), EPA announced the designations and classifications occurring for PM-10 by operation oflaw upon enactment of the Act (the "initial PM-10 nonattainment areas").' Sections 107(d)(2)(A) 

### (referencing section 107(d)(4) designations) and 188(a) ofthe Act specify that EPAmust make these announcements. In the March 1991 notice, EPAexplained the operative legal provisions governing the designation and classification ofthese initial areas (see, e.g., sections 107(d)(4){B)(i), (ii), (iii), and188(a) ofthe Act). The EPA also provided an opportunity for the public to comment

on EPA's announcement. As noted, this did not stem from any legal obligation. 2 

### Rather, as a matter ofpolicy, EPA requested public comment on the
announcement in order to facilitate publicparticipation and avoid committing errors. In today's action, EPAhas responded to pertinent
comments addressing the March 15, 1991 

### notice.8 

### The EPA has made adjustments

I In that notice EPA deferred codification of th'-
PM-10 designations and classifications until EPA codifies the designations and classifications of

areas across the country with respect to the NAAQS for other pollutants. This codification should occursometime withinthe next few months. As discussed below,codification ofthe designation ofthe initialPM-10 nonattainment areas will represent the Ageny's final action on those designations within the meaning of section307(b) of the Act.42 U.S.C. 7607(b).

2 Inthe March 15. 1991 notice EPA noted (end has reiterated intoday's notice) that neither the announcement of the Initial designations nor the Initial classifications forPM-10 were subject to the requirements for notice-and-comment rulemaking undereither the Administrative Procedure Act (APA) (SU.S.C. 553-657) or section 307(d) ofthe Act (see generally 66FR 11103). Regarding designations; section 107(d)(2) ofthe Act requires the

. Administrator to publish a notice announcing designations occurring pursuant to section 107(d)(4), but explicitlyprovides that such announcement is not subject to APA notice-and-comment rulemaking procedures.Thus, Congress has expressly exempted from the notice-and-comment procedural requirements of the APA the announcement ofthose

areas designated nonattainment for PM-10 by operation of law under section 107(d)(4)(B). Regarding classifications,section 188(a) of the Act requires the Administrator to publish anotice announcing the classifications of these areas. Section 188(a) explicitlystates that the provisionsof section 172(a)(1)(B) pertaining to lack of notice and comment and judicial review shall apply when the Administrator announcesthese classifications. Section 172(a)(1)(8), in turn, expressly exempts the classification announcement from the notice andcomment procedures set forth in 5U.S.C. 553-557.

8The EPA received many pertinent comments In direct response to the notice. Howsever. EPA has attempted alsoto respond to pertinent comments received from affected States submitted in response toanother Agency action,'In January and February of 1991. EPA Regional Administrators provided letters to the Nation's Governors explaining some of the specific State actions that were to be completed inorder to initiate implementation oftitle I of the Act as recently amended by the 1990 Amendments ("RA Letters'-). Regarding PM-10, for example, EPA informed the Governors ofthose areas designated nonattainment for PM-1O by operation of law upon enactmnt ofthe Act and explained some of the SIP requirements applicable tosuch areas underthe Continued 

### Feder l Re ster / Vol. 56, No. 153 / Thursday, August 8, 1991 /. Rules. and Regulations 

### 37655

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to the initial PM-10 nonattainment areas in light ofthe comments, where EPA believed appropriate and where there

was a legal basis to do so. A.LegalFramework
Section 107(d)(4(B)(l) of the Act clearly specifies those former Group I

areas that were designated nonattainment at enactment.That provision states that each formerGroup Iarea identified.in 52 FR29383 (August 7, 1987) or modified before enactment of the Act (November 15, 1990) is designated: nonattainment for PM-10.As discussed previously, the Federal Register notice published on October 31, 1990 (55 FR 45799) clarified or 

### "modified" EPA's identification ofthe Group I areas listed in the August 1987 notice. 4

### Thus, as explicitly provided by the statute, the GroupIareas listed in ihe October 1990notice became nonattainment for PM-10 by operation oflaw upon enactment ofthe Act on November 15, 1990. TheEPA,,then, announced that these.areas were among the initial PM-10 nonattainment areas in itsMarch 15, 1991 Federal Register 

### notice.Because the Act explicitly provided that theformer Group Iareas identified in the October1990 notice became nonattainment forPM-10 by operation oflaw at enactment, EPA believes the law generally prohibits any modification ofthese areas atthis juncture. The one exception is where, before enactment.,EPAcommitted error in identifying and/or modifying a Group Iarea asreferenced in section 107(d)(4)(B)(i) ofthe Act.

There are a few circumstances where there is evidence that EPAintended that theboundary fora Group Iarea identified and/or modified in its October 31, 1990 Federal Register notice (andreiterated in the March 1991
announcement ofinitial PM-10 nonattainment areas) be different and through administrative oversight or other error failed to soprovide.5 

### In one

revised law.By these lettersEPA alsoinitiated the process ofredesignating additional areas as nonattainment forPM-10, pursuant to section 107(d)(3) ofthe Act. Section107(d)i() expressly provides anopportunity forState participation in redesignatig additional PM-10 nonattainment

areas. Section 107(d(4)(B), the provision addressing designation ofthe Initial PM-1O nonattainment

areas (i.e. those occurring byoperation oflaw upon enactment), does notcontemplate such a process. Nevertheless, some Governors and State agency officials submitted comments onthe initial areasin responding to EPA's suggested additional nonattainment areas. TheEPA hasresponded to any such pertinent comments in this notice.

4Pre-enactment modifications tothe August 1987 notice were alsomade in the Federal Register notice published onMarch 28, 1989. discussed,previously.

6This errorwasbrought to EPA'sattention in comments submitted inresponse to EPA's March 15, Instance, forexample, EPA mislabeled a highway number. EPAhas made adjustments to the boundaries in such circumstances. Faced with the choice of designating erroneous nonattainment

areas or Interpreting section 107(d)(4)(B)(i) such that it includes the

areas identified before enactment in the October 31, 1990 notice but corrected for
error, EPA believes the latter approach the mostreasonable.8 Moreover, EPA. believes that inproviding that the areas identified and/ormodified in the October 31, 1990 notice would be nonattainment areas by operation of law upon enactment ofthe 1990 Amendments, Congress and the President could nothave intended to ratify dysfunctional or evidently

erroneous boundaries not grounded in fact.Note that these circumstances are in contrast to the situation where
commenters requested modification ofa former Group I area because they believe, as a technical or policy matter, that all orpart ofthe area shouldnot be designated nonattainment. EPA has not adjusted former Group Iareas where there is ajudgment dispute about the proper scope ofthe area orits very designation as nonattainment.7

The priorcategorization as a Group I

orIll area bears differently on an area's nonattainment status, in comparison with the Acts' treatment offormer Group I areas. Specifically, section 107(d)(4)(B)(ii) ofthe Act states that "any area containing a site for which air quality monitoring data show a violation ofthe national ambient air quality standards for PM-10 before January 1, 1989 (as determined under part 50, appendix K, of title 40 of the Code of Federal Regulations) is hereby designated nonattainment forPM-10." 8

1991 announcement orin EPA's review ofits records in preparing responses to comments.

6Further, section t10(k)(8) expressly authorizes the Administrator torevise designations, classifications, etc. where the Administrator determines that such designations, classifications,
etc. were in error.

IIncases where there are disputes regarding the
proper scope of the designation, ifa State later makes a persuasive demonstration (SIP equivalent) that EPA's factual conclusions in identifying a former Group Iarea were in error, the Agency will consider whether it would be appropriate to correct the error relying on the authority in section 110(k)(8) of the Act.

6Since EPA grouped all areas ofthe country as I. I1,or IIIwhen it revised the PM-10 NAAQS (see previous discussion) and because all former Group I

areas were designated nonattainment by operation of law under section 107(d)(4)(B{(i). the reference to "any area" in section 107(d)(4){B)(ii) de facto applies to all areas formerlygrouped as IIand Ill.

That all former Group I areas would be designated nonattainment by operation oflaw upon enactment of theAct, whileformer Group 1l/Ill

areas would have to measure a violation priorto January 1. 1969 to be so designated. isgrounded in 

### Thelanguage ofsection 107(d)f4)(B)(ii): suggests that EPAhas more discretion in determining which ofthe former Group II and III areas were designated nonattainment by operation oflaw upon enactment ofthe Act.For example, EPA must exercise somejudgment in construing what is a violation within the meaning of40 CFRpart 50, appendix K.
to the extent these regulations leave discretion.

Further, section 107(d)(4)(B](ii) does not define theboundaries of "any area" measuring a pre-1989 violation. The Act does, however, set forth a revised definition ofnonattainment area for purposes ofsection 107(d) designations generally. Specifically, section 107(d)(1)(A)(i) ofthe Actdefines a nonattainment area as "any area that does notmeet (or that contributes to ambient air quality in a nearby area,that does notmeet) the national primary or secondary ambient air quality standard for the pollutant." Thus,coincident with providing that certain former Group II and IIIareas were designated nonattainment by operation oflaw at enactment, theAct provided a standard
to govern the scope ofwhatthat area should be.This definition suggests that EPAmust apply its expertise and knowledge to isolate as nonattainment any area it believes violates the standard orany area thatsignificantly contributes to suchviolation in a nearby

area. 9 

### Further,nonattainment area definition is being applied to these areas for the first time sinceunder EPA's preenactment grouping scheme they were not designated nonattainment. The EPA therefore believes that, consistent with this new standard, it has some discretion to apply its technical expertise and appropriately adjustthe boundaries ofthe former Group IIor I11

areas for purposes ofdetermining which

some logic andreason. As noted above, whenEPA placed areas ofthecountry into Groups If1, or IIlI. Group Iareas were those with a strong likelihood of violating the PM-10 standard. Inthe context where the Agency has adjusted the boundaries ofaformer Group 11 or IIarea because it contributes toa violationin,anearby
area, the Agency hasconstrued thedefinition of nonattainment area to require some material or significant contribution to such a violation. The Agency believes that something greater than a molecular impact Is required. Further, EPA has adjusted the boundaries offormer Group Uand 1l1

areas designated nonattainment in reliance on its general technical expertise andhas not conducted. for example,rigorous modeling analysis. The timefremes set forth in the statute do not contemplate such detailed analysts. Forexample, the law mandates that allofthe areas designated. nonattainment by operation oflawupon enactment ofthe Act mustsubmit SIPrevisions by November 15,IM. O Such tightdeadlines donot afford time for

more sophisticated technical analysis..

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areas were actually designated nonattainment by operation oflaw.' 0

Where appropriate, EPAhas exercise both types of discretion inresponding to comments addressing former Group II and III areas that were announced as initial PM-10 nonattainment areas in the March 1991 notice. Specifically, EPAhas considered whether a violation within the meaning ofpart 50, appendix K. occurred and EPA has adjusted nonattainment area boundaries for those areas based on the standard set forth in section 107(d}(1)(A)i). 1 '

B.Responses to Comments
1.Former Group IAreas

a. Hayden/Miami Planning Area, Arizona. Comments were submitted on behalf ofASARCO, Incorporated (ASARCO). addressing EPA's designation of the Hayden/Miami Planning Area in Arizona as an initial PM-10nonattainment area.ASARCO acknowledged that as a former Group I

area "the 'Hayden/Miami' Group Iarea identified in the notice published at 52 FR 29383 on August 7. 1987, must be designated a nonattainment area *... However, ASARCO stated that the March 1991 notice "expands the 'boundaries ofthe Hayden/Miami nonattainment area far beyond the limits of the planning area used by the state when developing its PM-1 SIP for Hayden." ASARCO commented that these boundaries are unsupported by ambient monitoring data, information the State ofArizona discovered in its SIP development forthe Group Iarea.

10 FormerGroup Ifareas,for example, present an extreme case. clearly compelling EPA to exercise discretion in this way. The August 1987 and October 1990 Federal Register notices stated that any area of
a State not listed asGroup Ior Uis considered to be Group M (sea 52FR29384 and 55 FR 45799). Where EPA determined that such an area measured a violation ofthe PM-10 standard priorto January1. 1989. itwould be irrational for the Agency to designate as nonattainment entire portions ofStates far removed from and not significantly contributing to the area monitoring the violation. Rather. EPA must exercise somejudgment. IIn contrast, unless EPAhas committed an error, the statute's treatment of former Group I

areasdoes notcontemplate such adjustment. As mentioned, the provision ofthe Act addressing the nonattainmentdesignation offormer Group I areas is quite specific. Section 107(d](4][l)li) calls forthe nonattainment designation of"each area identified in 52FR 29383" or as.subsequently modified before thedate of enactment of the Act. Thus. the law specifies "eacharea" that was designated nonattainment.The EPA cannot rely on the Act's definition ofnonattainment to adjust these area. The EPAbelieves such adjustment would contravene the general canon ofstatutory construction thatwhen interpreting theAct, specific provisions control those that are more general. In this case. EPAbelieves thatCongress has specified that former Group Iareas willbe nonattainment and EPAcannot rely onthe general definition of nonattainment area to adjust theboundaries of these area. 

### EPA guidance documents, and the language ofthe amended law. Consequently, ASARCO requested that the boundaries ofthe area be substantially revised.

ASARCO has misinterpreted the legal weight of the October 1990notice. In its August 1987notice, EPA only generally referenced the "Hayden/Miami area." In the October 1990notice, EPA modified and clarified this, enumerating in detail. portions ofthe Hayden/Miami planning

area deemed Group I.These modifications, in turn,were adopted by operation oflaw upon enactment ofthe Act (see section 107(d)(4)(B)(i)).

ASARCO argues that EPA can disregard the boundaries in the October 1990 noticebecause it "did not 'modif[y]' the 'identification' ofPM-10 nonattainment areas; rather,that notice defined the boundaries ofnonattainment

areas that had already been identified in previous notices." This extreme reading ofsection 107(d)(4(B)(i) has no basis in

reason.An area is identified by its boundaries. Thus, when EPA modified the boundary ofa Group Iarea in its October 1990 notice, it was modifying the identification ofthe area as section 107(d)(4)(B)(i) expressly contemplates.

ASARCO also argues that the October 1990notice is not within the intended ambit ofsection 107(d)(4)(B)(i) because the operative language appeared in the legislative history before thepublication ofthe October notice. This argument ignores the express andplain meaning ofthe text ofsection 107(d){4)(B)(i)..That provision states that any modification of the August 1987notice "before the date ofenactment ofthe Act" is effective. It clearly does not state, for example, that onlymodifications occurring before legislation or legislativehistory was introduced are effective, as the commenter apparently believes it should be read.

The EPAhas no basis to disregard the boundaries for this former Group Iarea as modified in the October 1990notice and adopted by operation oflaw. ASARCO argues, forexample, thatEPA should adjust the boundaries because they are inconsistent with the Group I SIPdevelop for that area,monitoring data, and EPA guidance documents. That the State ofArizona was developing a SIP focusing on certain portions of this former Group I area does not compel EPA either to agree with the SIP's scope or to adjust the area boundaries to comport with that scope. In fact.EPA has taken no action on the former Group ISIP forthis area. Generally, priorto modifying the boundaries in the October 1990 notice. EPA consulted with the affected States, reviewed technical information, and

was guided by applicable EPA policy. Weighing these various factors, EPA set the boundaries it believed appropriate. and on November 15, 1990 these boundaries were adopted as the nonattainment boundaries forthe former Group I area in question.

The Governor ofArizona also submitted comments addressing the Hayden/Miami PM-10 nonattainment

area. The Governor commented that the State has submitted a SIPdemonstrating attainment in the Hayden area. He also commented that since 1988, monitoring in the vicinity ofindustrial sources at Miami has notrevealed anyviolations ofthe PM-10 standards. The Governor stated that the State ofArizona "will be submitting a SIPrevision to designate only the area within T5S, R15E as nonattainment." However,in an attachment to the Governor's letter,he provided a more detailed and apparently inconsistent description of portions ofHayden that the Governor believed should be designated nonattainment.

As indicated inresponse to ASARCO's comments, there is no evidence that EPAintended to provide boundaries forthe Hayden/Miami area that are different from those identified in the October 1990 notice and announced in EPA's March 1991 notice in reliance on the October notice. Essentially, there is no evidence ofEPA

error. Moreover, as explained in the response to ASARCO's comments. EPA is in no way obligated to set nonattainment boundaries for former Group Iareas according to the scope of the State's implementation plan for the former Group I area. In fact, EPA has taken no action on the former Group I SIPfor this area. In sum, the boundaries forthis initial PM-10 nonattainment

area will remain as set forth in the March 15, 1991 Federal Register notice.

b.New Haven,Connecticut.The 

### Governor ofConnecticut and the State ofConnecticut Department of Environmental Protection (CDEP) submitted comments requesting that the boundaries forthe New Haven nonattainment area be modified to include only that portion ofthe city east of the Quinnipiac River.The CDEP noted that CDEP staffhad sought to have theboundary revised in the October 31, 1990 notice butthat EPA had informed them that "a municipality

was the smallest geographic area that could be designated." The CDEP also commented that CDEP staffwere told by EPA thatthe State wouldhave another opportunity to refine -theboundaries. 37657 37657

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The EPA regrets any miscommunication between Connecticut and EPA that may have occurred when discussing the modification ofGroup I

areas for the October 1990notice. However, Connecticut has not submitted any documentation indicating that EPA committed an errorin designating the City ofNew Haven as an initial PM-10 nonattainment area, in reliance on the October 1990 notice. There isno evidence that EPAintended that the boundaries forthis area be different from those setforth in the March notice and through administrative oversight or other error failed to so provide. Thus, the City ofNew Haven is a PM-10 nonattainment area, as'described in the March 1991 notice.

c.

Pinehurst, Idaho.The Administrator of the Idaho Division ofEnvironmental Quality (IDEQ), on behalfofthe Governor,requested that EPA significantly adjustthe City ofPinehurst nonattainment area. Believing the nonattainment problem in this area to be a valley airshed problem, IDEQ requested that EPA expand the boundaries to include additional townships along Silver Valley.

There is no documented evidence that EPA committed an error when it modified the boundary for this area in its October 1990 notice oras reiterated in its March 1991 notice announcing the initial PM-10nonattainment designations. Thus, there is no basis to alter the boundaries identified as the "City ofPinehurst" and set forth in the March 1991 notice.



### Nevertheless, to the extent that the boundaries described in the State's correspondence are broader than those initially designated nonattainment, EPA is considering whether the State's submittal should be treated as an unsolicited redesignation request within the meaning ofsection 107(d)(3)(D) of the Act. Under that provision EPA must "approve or deny" a revised designation "[w]ithin 18 months ofreceipt ofa complete State redesignation submittal

IfEPA finds that the submittal is complete and approves the submittal, thenthe City ofPinehurst and any revised nonattainment area surrounding itin the Silver Valley willbe subject to somewhat different statutory deadlines forSIP submittal, attainment demonstration, etc. Compare, e.g., section 189(a)(2)(A) (first SIPfor initial nonattainment area due Iyear from enactment) and section 189(a)(2)(B) (first SIPfor laterredesignated nonattainment

area due 18 months from the nonattainment designation). However, EPAnotes that nothing in the Act prohibits the State from submitting a SIP for the entire area they have identified by November 15, 1991, the SIP submittal 

### deadline applicable to theportion of the

area initially designated nonattainment and announced in the March 15, 1991 notice.

d.Pocatello, Idaho.The Administrator ofthe IDEQ submitted information to EPA indicating what portion ofthe Pocatello area in Bannock and Power' counties shouldbe designated nonattainment. Inthe October 1990and March 1991 notices, this area waslisted

as "City ofPocatello." Both of those notices identified Bannock and Power as the 'affected counties. After reviewing IDEQ's submittal,EPA realized that the "City ofPocatello" sits onlyin Bannock County. Thus, there is a disconnect or gap between EPA's listing ofthe "City of Pocatello" as the.nonattainment area for both Bannock and PowerCounties.

As evidenced by its listing ofboth counties, EPA intended to include that portion ofthe Pocatello area inboth Bannock and Power Counties in the October 1990 notice. TheEPA now realizes that listingwas in error. This
error, then,was adopted inadvertently inEPA's March 1991 notice announcing the initial nonattainment areas for PM10. TheEPA corrects this errorin today's notice as explained in the "Legal Framework" discussion above. TheEPA has clarified the boundary forthis area consistent with IDEQ's request and EPA's original intent.

The Shoshone-Bannock Tribes also submitted information addressing the boundary for the Pocatello nonattainment area. The Tribes indicated that they agreed with the clarification and expansion ofthe Pocatello nonattainment area as indicated in IDEQ's submittal. They also requested that EPA include an additional section which they said would include a seasonally operated "open pit silica mine with a rock crushing operation and attendant storage piles * * *."



### TheEPA has corrected the error it committed with respect to Pocatello as described previously. However, EPA does not believe that the additional section identified by the Tribes was among those intended to be included with the initial Pocatello nonattainm'ent

area. Thus, at this time,EPA will not adjust the boundaries forthis area to include this section.Nevertheless, if after further study EPAconcludes that there is evidence that this area violates the PM-IO standards or significantly contributes to such a violation in a nearby area, thenEPA would initiate the process to redesignate this area nonattainment pursuant to section 107(d)(3)(A) ofthe Act. e. Cook County,Illinois.TheEPA received no formal comments about the portion ofCook County, Illinois, designated nonattainment for PM-10. However, in reviewing records subsequent to the publication ofthe March 1991 notice, EPA realized that a -highway.number in the description of this area had been inadvertently mislabeled. This announcement corrects that error in accordance with the legal rationale described above

f. Presque Isle,Maine.The Maine Department ofEnvironmental Protection (MDEP) and the City ofPresque Isle submitted comments addressing EPA's designation ofthe City ofPresque Isle as

an initial PM-la nonattainment area. The City ofPresque Isle commented that Presque Isle was incorrectly placed in Group Iin August 1987, the notice first announcing groupings after EPA revised the NAAQS for PM-IO in July 1987. Thus, the city requested that it be removed from nonattainment status. The MDEP also objected to the designation of the city as nonattainment and, alternatively, argued that the boundaries of the nonattainment area should be reduced to include a V mile radius in the city's urban center. The MDEP submitted a number ofsupporting documents.

The designation ofPresque Isle as nonattainment and the scope ofits boundaries appears to be a judgment dispute. In its October 1990 notice, EPA modified the boundaries forthis Group I

area as it believed appropriate. This

area and attendant boundaries then became nonattainment for PM-10 by operation oflaw upon enactment ofthe Act. The EPAregrets any miscommunication between EPA and MDEP which may have occurred during the development ofthe October notice. Nevertheless, this isnot a situation where EPA intended that the boundaries in the October 1990 notice be different and, through an error, failed to so provide. Thus, as announced in EPA's March 1991 notice, the boundaries ofthe Presque Isle PM-10nonattainment area will consist ofthe entire city (see section 107(d)(4)(B)(i)).

g. Libby, Montana.The State of Montana submitted information to EPA in.

conjunction with EPA's development of the October 1990 notice. The EPA reviewed this information and intended
tomodify theboundaries for this area in accordance with the State's submittal. Through administrative oversight, this modification was not reflected in the October 1990 notice and, consequently

was not announced in the March 1991 notice. The EPA has corrected that error

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in today's notice in accordance with the legal rationale described above.

h.MissoulaCounty,Montana.The Governor ofMontana submitted comments toEPA indicating that EPA committed an error in modifying the Group I area ofconcern for this county in EPA's October 1990 notice. Through administrative oversight EPA inadvertently omitted sections of this

area that records indicate it intended to include. This errorthen was reiterated in EPA's March 1991 notice announcing the initial nonattainment areas. TheEPA has corrected its error in accordance with the legal rationale explained above.

i. Butte,Montana.As was the case withLibby, the State ofMontana submitted information to EPA in conjunction with EPA's development of the October 1990notice and, after deciding to include it in the notice, EPA inadvertently omitted the information. As with Libby, this error was reiterated in the March 1991 notice announcing the initial PM-10 nonattainment areas.The 17PA has remedied its administrative oversight and corrected the boundaries

as originally intended in accordance with the legal rationale described above.

In a February 27, 1991 letter toEPA, the Governor ofMontana submitted additional information addressing Libby's PM-10 boundaries. The Governor indicated that Montana had completed technical analyses since the publication ofthe October 1990 notice and submitted detailed boundaries. The Governor indicated that the suggested boundaries would expand the Butte nonattainment area, as listed in the October 1990notice, farbeyond the city limits.Upon comparing the nonattainment boundary submitted by the Governor and the corrected boundary intoday's notice,EPA has determined that the boundaries are similar; however, the Governor's suggested boundary for the area is slightly broader. There is no evidence that EPA intended to include the additional area identified in the Governor's letter when EPA modified Group Iareas in the October 1990notice (or announced the initial PM-10 nonattainment areas in the March 1991 notice, in reliance on the October 1990 notice) and through administrative error failed to so provide. Thus, EPA will not adjustthe boundary for this area to include the additional area identified in theGovernor's letter.

However, to the extent that the boundary described in the Governor's correspondence is broader than that listed in today's notice, EPAwill treat the Governor's submittal as an unsolicited request forredesignation with the meaning of section 107(d)(3)(D) ofthe Act. Under that provision, EPA
must approve ordeny a revised designation within 18 months ofreceipt ofa complete State redesignation submittal.

IfEPA finds that the submittal is complete and approves the submittal, then the additional area submitted by the Governor for the Butte nonattainment area will be subject to somewhat different statutory deadlines for SIP submittal, attainment demonstrations, etc. Compare, e.g., section 189(a)(2)(A) (first SIP for initial nonattainment area due I year from enactment) and section 189(a)(2)(B) (first SIP forlater redesignated nonattainment

areas due 18 months from the nonattainment designation). However. EPA notes that nothing in the Act prohibits the State from submitting a SIP for the entire area they have identified by November 15, 1991, the SIP submittal deadline applicable to the portion ofthe

area initially designated nonattainment and announced in today's notice.

j. Anthony,NewMexico (DonaAna County).The State ofNew Mexico Environment Department (NMED) submitted comments addressing the nonattainment designation of the Anthony, New Mexico, area. The NMED stated that Anthony is a rural fugitive dust area (RFDA) and under EPA's "Rural Fugitive Dust Policy" (RFDP), "RFDA sites shall not be designated nonattainment." Further NMED stated that EPA's RFDPremains in effect because EPA indicated "in the October 29, 1990 Federal Register, the existing RFDA policy shall remain in effect until it is revised by EPA." Finally, NMED requested that former RFDA's now designated nonattainment have most of their requirements waived ifEPA discontinues the RFDP.

Two 1977 EPAmemoranda constitute what has been called EPA's "Rural Fugitive Dust Policy." These memoranda
set forth treatment ofareas identified as "Rural Fugitive Dust Areas" forthe purposes ofattainment/nonattainment
status as well as SIP development and

new source review under the Act before the 1990 Amendments (see, e.g., 52 FR 24716 (July 1, 1987) (historical discussion)). This policy was issued when TSP was the indicator for particulate matter. When EPA revised the particulate matter NAAQS inJuly 1987. changing the indicator to PM-10, EPA proposed a number of alternative policies. In that notice EPA indicated that the existing,policy would remain in effect until EPA adopted a final policy (see 52 FR 24716 (July 1, 1987]).

Since then, the 1990 Amendments to the Act were enacted. As discussed, section 107(d)(4)(B)(i) ofthe Act 

### provides that all former Group Iareas
were designated nonattainment by operation oflaw upon enactment ofthe Amendments. Further, EPAis unaware ofany error itmay have committed when itmodified theboundary forthe Anthony area in its October 1990 notice. Thus, on November 15, 1990 the Anthony, NewMexico, area (aslisted in the October 1990 notice) became nonattainment for PM-10by operation oflaw. TheEPA announced this designation in its March 1991 notice.

The EPA believes the waiver provision alluded to inNMED's comments provides a statutory alternative to EPA'sRFDP (see section 18(f) ofthe Act). The EPA intends to 

### provide guidance to the States on the meaning ofsection 188(f) later this year. In the meantime, areas designated nonattainment forPM-10,including former RFDA's, should proceed with SIP development in accordance with the

new law.

The October 29, 1990 Federal Register notice referenced by NMED was EPA's semiannual Regulatory Agenda (see 55 FR 45134, 45198). This notice is 

### published for informational purposes and has no regulatory effect. In addition. the October publication preceded enactment ofthe Act.Any confusion created by thereference to the RFDA in that notice shouldbe cleared by today's notice. Finally, EPAnotes that former RFDA's willreceive the same treatment that all otherareas requesting a waiver will receive. IfEPA finds thatan area satisfied the operative legal standard then, within the construction ofthe law, EPA will waive those requirements it believes appropriate.

k.Jefferson County,Ohio.Ohio EPA (OEPA) submitted comments indicating that EPA erred in setting theboundaries for that portion ofJefferson County, Ohio, that was designated nonattainment at enactment. After examining the documentation submitted by OEPA,EPA agrees that an error was committed. In both the October 1990 and March 1991 notices, EPA identified a boundary for this area thatwas incomplete. It appears, for example, that EPA failed to clearly delineate a western boundary. The EPA has corrected its error in accordance with legal rationale described above.

1.ElPaso,Texas. The Texas Air Control board submitted comments on this area noting that "on March 8, 1991, the Texas Air Control Board (TACB) passed a resolution * ** approving the Texas Air Control Board Designation Proposal, where the nonattainment area for PM-10in El Paso was changed tn the

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City ofEl Paso including Fort Bliss." Apparently, TACB sought to clarify that Fort Bliss, which is within the city limits but not part ofthe municipal entity, was included in the City ofE1 Paso nonattainment area. Generally, when EPA lists municipal boundaries or other boundaries identifying a perimeter, all,of the area within those boundaries is part of the nonattainment area unless otherwise specified. More specifically, Federal facilities are subject to the requirements ofthe Act unless thay have been expressly exempted from a requirement because the President has determined that itis in the "paramount interest ofthe United States to do so" (see section 118 ofthe amended Act). The EPAis unaware of any such exemption for Fort Bliss. Thus, as indicated in EPA's March 1991 notice, the City ofEl Paso, and any area within its municipal boundaries, is an initial PM-10nonattainment area.

m. Wallula, Washington.The Governor ofWashington submitted information to EPA requesting that the Wallula nonattainment area be expanded to include Kennewick, Washington. The Governor's submittal stated that these two areas should be combined into one nonattainment area because the Wallula nonattainment area does not include all ofthe major sources which contribute to the air quality problem in the area. The Governor also noted the close proximity ofthe monitoring sites in the two areas.

The Wallula area, as described in the October 1990 and March 1991 Federal Register notices, was designated nonattainment by operation oflawupon enactment. Further, there is no evidence that in developing either-of these notices EPA intended the boundary to be different, but through an error failed to

so provide. Thus, the Wallula area is currently a moderate PM-10 nonattainment area. As such, the State ofWashington must submit a SIP revision forthe area by November 15, 1991 containing the applicable statutory requirements and demonstrating attainment byDecember 31, 1994 (see generally subpart 4ofpart D oftitle Iof the Act).

The EPA agrees that Kennewick has a PM-10 air quality problem and has already initiated the process to redesignate this area nonattainment (see January 31, 1991 letter to the Governor of Washington from the Regional Administrator ofEPARegion X; see also 56-FR 16274 (April 22, 1991)). However, absent error,EPA cannot expand the boundaries of the Wallula nonattainment area to include Kennewick. If Kennewick is designated 

### as an additional PM-10 nonattainment
area, itwill be subject to statutory deadlines for SIPsubmittal, attainment demonstration, etc., which are different fromthose ofWallula. However, EPA notes that nothing prevents the State from submitting a SIPfor the entire Wallula and Kennewick area by the November 15, 1991 SIP submittal deadline applicable to the initial PM-10 nonattainment areas and, consequently, treating this as a single nonattainment

area. The opposite is not true. Under the law, the State ofWashington cannot defer submittal ofa SIPfor Wallula until

a SIP for Kennewick is due, assuming Kennewick is ultimately redesignated to nonattainment.

n. Yakima, Washington.The EPA received no formal comments about the portion ofYakima, Washington, designated nonattainment for PM-10. However, in reviewing records subsequent to the publication of the March 1991 notice, EPA realized that a set ofcoordinates were missing fromthe boundary description for the area. This announcement corrects that error in accordance with the legal rationale described above.
2.Former Group IIand III Areas

a.Alo,Arizona.Comments were submitted on behalf ofthe Phelps Dodge Corporation'(Phelps Dodge) addressing EPA's announcement oftheAjo planning area as an initial PM-10 nonattainment area. Phelps Dodge commented that air quality data do not show "a violation ofthe national ambient air quality standard for PM-10 before January 1,1989 (as determined under part50, appendix Kof title40 of the Code ofFederal Regulations)" because only one exceedance ofthe 24- hour standard has been measured (see section 107(d)(4)(B)(ii) of the Act). Phelps Dodge commented that, alternatively, the exceedance in question should be treated as an exceptional event.

The PM-10 standard is expressed in terms of an expected value. Section 3.1 of40 CFR part 50, appendix K, describes the adjustments that mustbe made to 24-hour data in orderto estimate the number of expected exceedances when PM-10 sampling is not conducted on a daily basis. Section3.1 states that "[i]n this adjustment, the assumption is made that the fraction ofmissing values that would have exceeded the standard level is identical to the fraction ofmeasured values above-this level." The regulations recognize that this adjustment may lead to overprediction. Thus, §3.1 also states

as follows: "To reduce the potential for overestimating the number ofexpected. exceedances; the correction for missing data will not be required fora calendar quarter in which the first observed exceedance has occurred if: (a) There

was only one exceedance in the calendar quarter, (b)everyday sampling is subsequently initiated and maintainpd for4 calendar quartets in accordance with 40 CFR 58.13, and (c)data capture of75 percent is achieved during the required period of everyday sampling."

Sampling is conducted once every.6 days at theAjo Station monitoring site. After the exceedance in question was measured, daily sampling was not commenced. Thus, the regulations require correction for the missing data. After applying the adjustment referenced above, the expected exceedances ofthe 24-hour standard at Ajo constitute a violation ofthe PM-10 standard consistent withpart 50, appendix K.

Section 2.4 ofpart50, appendix K, governs the inquiry ofwhether the exceedance measured at Ajo should be,, treated as an "exceptional event." That regulation states that an exceptional event is "an uncontrollable event caused by natural sources ofparticular matter

oran event that is not expected to recur at a given location." Phelps Dodge commented that "gusts in excess of20 mph" were measured at the closest meteorological station on the day the exceedance was measured. The level of the wind gusts was noted presumably to illustrate the anomalous nature ofthe event. However, Phelps Dodge submitted no information indicating whether that high wind wasthe cause of the exceedance and, ifso,whether the. wind was likely to recur. In fact, Phelps Dodge suggested that the wind gusts
were due to the area's seasonal

monsoon. Specifically, Phelps Dodge stated that "[t]he conditions at Ajo were characteristic ofmonsoon weather patterns in southern Arizona." Further, recent meteorological data collected

near Ajoby the ArizonaDepartment of. Environmental Quality indicate that hourlywind gusts greater than or equal to 20 miles perhour occur at least 7 days per year. The EPA, therefore, does not believe the event is properly deemed exceptional. Thus, as described in the March 1991 notice, the Ajo planning

area is an initial PM-10 nonattainment

area.

Finally, the State ofArizona appears to agree with the Ajo boundaries. In a May 15, 1991 letter to'EPA, the Governor ofArizona suggested boundaries for the Ajo nonattainment area that were ' 

### consistent with those set forth inEPA's March 1991 announcement.

b. BullheadCity,Arizona.The Arizona Center forLaw in the Public

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interest (the Center) commented that "EPA shoujd add the Bullhead City, Arizona, planning area (Mohave County) to the list ofinitial PM-10 nonattainment areas based on its violation of the annual standard in 1989 and its exceedance ofthe 24-hour standard in the same year."

Bulhead Citywas a former PM-10 Group Ill area. Section 107(d(4](B)(iij governs the initial nonattainment designaticns of former Group II and III

areas. That provision indicates that a former Group U1 orIII area car be designated nonattainment by operation of law upon enactment of the Act only if "monitoring data show a violation of the NAAQS for PM-10 before January 1, 19ag* * *."Violations ofthe standard occurrin7,g in C33would not qualify as a v:-olation occurring before januia-y 1, 

### 1939.

Ncte, however, thatpursuartl to section IG7(d)[3) ofthe Act, EPA has initiated the process to redesignate' this

area as nonattainment for PM-10.-By letter dated

### January 24, 1991, the Regional Administrator ofEPARegion EX notified the Governor ofArizona that arailable information indicates that Eullhead City should be redesignated.- norattainment for PM-10 and, on that basis, called on the State to submit a redesignation for the area (see also 58 FR .6274 (April 22, 199111.

c.Fayson,Arizona.The Center submitted comments claiming that Payson, Arizona, should be designated

as an irdtial.PM-10 nonattainment area.- The Center stated that "Payson violated the annual mean PM-10 standard in 1933 and 1989, and also recorded five violations ofthe 24-hour standard in 1939 * * * "

Payson was a former Group Ill area. For the reasons noted in the Bullhead City response, those violations occurring

on.or after January 1, 1989 cannot be a basis for designating Payson as an initial PM-10 nonattainment area.'

Further,the 1988 data record forthis

area did not meet EPA's general data capture requirements (i.e., was incomplete ] and was not otherwise suff.ciently unambiguous to establish nonattainment (see J 2.3 ofpart 50, appendix K). More specifically. § 2.3. states that it is "generallynecessary" for:

a monitoring site tohave data which includes amirimum of75 percent ofthe scheduled PM-1O samples per quarter in order to assess whether a violation of the standard has been recorded. With a minimum sampling frequency of once in 6days, a valid annual mean mustbe based on'atleast48 observations (12., observations per calendar quarter). However. §.2.3 also statps that there are. "less stringent data requirements for 

### showing that a monitor has failed an attainment test and thus has recorded a violation of.the particulate matter standard." Section2.3 sets outexamples ofhow nonattainment may be demonstrated when a monitoring site doesnot meetthe completeness criteria. With respect to the annual standard, §2.3 provides, forexample, that norattainment.may be demonstrated "on the basis.ofquarterly mean concentrations developed from observed data combined With one-half the minimum detectable concentration substituted formissing values."

Applying this analysis to the data collected in1988 at the Payson monitoring station,EPA concluded that Payson should not be an Initial PM-10 nonattainment area. First,according to the State ofArizona data report, a total of19 PM-1O samples were produced in 1938 by the Payson monitor. This clearly fails the completeness requirement. If, then,one-half the minimum detectable concentration of(4.0 micrograms per cubic meter ()Ag/mq}) is substituted for the missing values (say,29, i.e.. 29+19=48), then theresulting annual

mean would be approximately 32 pg/m which is below the annual PM-10 standard.

However, similar to theBullhead City situation, pursuant to section 107(d)(3) of theAct, EPAhas initiated the process to redesignate this area as nonattainment for PM-1o. By letter dated January 24, 1991, the Regional *AdministratorofEPA Region IX.notified the Governor ofArizona that available information indicates that Payson should be redesignated nonattainment forPM-10, and on that basis called on the State to submit a redesignation for the area (see'also 56 FR 16274 (April 22, 1991)).

d. Tucson,Arizona. TheArizona Center forLqw.in thePublic Interest also commented that Tucson should be

an initial PM-D nonattainment area. The Center'srequest was basedon monitoring data from three different sites in the Tucson area.

First, the Center stated that the Orange Grove Road sampling station monitored one 24-hour exceedance in 1985and two to 1988. Since-the 1985 exceedancewas produced priorto the promulgation ofthe PM-to NAAQS (see generally 52 FR 24034, July 1,1987). EPA did not adjust itfor incompleteness of sampling and counted it as 1.0 in the calculation ofthe average number of estimated'exceedances. 2 

### The analysis

Generally when sampling Isnot conductedon a daily basis. EPA adjusts exceedances'of the 24-hour -standard- in orderto estimate the number of expectedexceedances (see 13.1 of40 CFR pait 50 specified in §3.2 of part 50, appendix K,

was then applied to the two exceedances observed in 1988.13 On this basis, EPA calculated 3.1 exceedances for 1988. Section 2.1 specifies that the number of exceedances isdetermined by averaging the number ofexceedances

over the past 3 calendar years. Therefore, the number of expected exceedances for the 3-year period from 1986--88 is 1.033. After the rounding called for in § 2.1, 1.033 would be less than or equal to 1.0 which does not constitute a violation ofthe standard. Assuming forpurposes ofillustration that the 4-year period from 1985-83 is representative, then, consistent with 

### § 2.3, the 1985 exceedance may be considered. In this situation, the

appendix K). Section 3.1 states that"(ijn this adjustment, the assumption ismadethat the fraction of missingvalues that would have exceeded the standard level is identicalto the fractionof measured valuesabove this level."

However. some monitoring ofPM-10 occurred prior to the promulgation of part50. appendix K. This istrue ofthe 24-hourexceedance measuredin 1985 at theOrangeGrove Road sampling sitein Tucson. Part 50,appendixK,waspublished onJuly 1.1987 (effective date ofJuly 31, 1937] whenEPA revised theindicator forparticulate matter to PM-10 (see generally 52Fft 24634). When it revised the PM-10 standards and promulgated appendix K, EPA did not designate areas and,therefore, could not have: Intended to subject pre-promulgation data to adjustment due toless thandaily sampling for the purpose ofdesignating an area nonattainment. Further, because those collecting data before the rule's promulgation had no notice ofthe consequences of less-than-every-day sampling, it would be unfair toadjust data collectedprepromulgation at this,time.Thus, EPA interprets appehdix Ksuchthat data collectedprior to'the rule's promulgation and used forestablishing an area's designation is notconstrued asconstituting "incomplete data" within the meaning ofappendix K forthe narrow purpose of adiustingdata for less than daily sampling.

The manner in which theAgency has implemented part 50,appendix K. provides evidence oftheAgency's general concernwith the unfairness ofsubjecting pre-promulgation data to adjustment forincompleteness, even before the newly revised Act provided designation for PM-1O. In aJune1988 policydocument. EPA notedthat ifthefirst exceedance inan area occurred prior to the .promulgation ofthe PM-10standard, Itwould be exemptfrom the daily sampling requirement (see generally Responseto Questions Regardirg PM-10 Statelmplementatibn Plan (SIP] Development at page27). Finally.,there isnoevidence inthe newly, revised Act thatCongress intended EPA to apply. appendix K Inamanner differentfrom howthe Agency hadapplied l'priortoenactment.

LThe caioputations for estimatingexceedances toadjust formissing data are performed quarterly. There are special'appendix Kformulas to address the situationWith unscheduled samples In orderto reduce.a blas which may be introduced by nonuniform aazitpliingdring the quarter. During'the third'quarter of 1988 when thetwo'exeedances occurred, there was achange insampling frequency from every-other-day to every-day.Accordingly, for the purposes ofestimating exceedances, the sample schedule was assuim'ed to be every-other-day for the entire quarter and.forcomputational pdrposes., somd oftheaovety-day samples are treated as unscheduled.

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expected number ofexceedances would be4.1 overa 4-year periodwhich is

- 

### 1.025.After the rounding called forIn §2.1. this would be less than or equal to 1.0 and would not constitute a violation ofthe standard.

The Center commented that elevated levels ofPM-10 were monitored at the Congress Street station. Specifically, the Center states that the annual standard

was violated in 1989 and that three exceedances were monitored in 1989. Tucson was a former Group IIarea. As noted, under section 107(d)(4)(B)(ii) a former Group 1I area can be designated nonattainment by operation oflaw upon enactment ofthe Act only if"monitoring data show a violation ofthe national ambient air quality standard forPM-10 before January 1, 1989 * * *." Because 

### the violations cited by the Center occurred on or after this date, they. would not constitute a basis for designating Tucson as an initial PM-10 nonattainment area.

The Center also commented that the monitor located at Prince Road monitored a violation ofthe 1989 annual standard. Again, EPAnotes that a violation must be monitored priorto 

### January 1, 1989 to constitute a basis for designating Tucson as an initial PM-10 nonattainment area.

Correcting EPA's announcement ofthe initial PM-10nonattainment areas is the

narrow question addressed by the Agency in today's action. Nevertheless, the Center has alerted EPA to possible attainment problems in the Tucson area which may be a basis for redesignating this area as nonattainment pursuant to section i07(d)(3) ofthe Act. TheEPA willreview the PM-10 data collected in Tucson on or afterJanuary 1, 1989 and expects that it will reach a conclusion about Tucson's status (and whether to initiate the section 107(d)(3) redesignation process) sometime this Fall.

e.BonnerCounty,Idaho.The Administrator ofthe IDEQ submitted comments addressing the Banner County nonattainment area. The EPA announced that "Bonner County" was
an initial nonattainment area in the March 1991 notice. The IDEQ submitted

a more detailed description, isolating that portion ofBanner County believed to warrant nonattainment designation. Consistent with the definition of nonattainment area in section 107(d)(1)(A)(i) ofthe Act, in today's notice EPA has refined the boundaries forthis area as requested by IDEQ.

f Oglesby,Illinois. The Governor of Illinois submitted information to EPA requesting that an additional section be added to that portion ofOglesby designated nonattainment for PM-10. Consistent with the definition of nonattainment area in section 107(d)(1](A(i), EPA has added the section and announces that the Oglesby PM-10 nonattainment area is as described in Table I.

InJanuary 28, 1991 correspondence to the Governor ofIllinois, the Regional Administrator ofEPARegion V had initiated the process to redesignate as nonattainment this portion ofLaSalle County. That process has been mooted by the action announced in today's notice. *



### g. Clinton Township,Indiana. The Indiana Department ofEnvironmental Management (IDEM) requested that the boundaries for the Clinton Township nonattainment area be reduced to include eight sections in the Township and submitted technical information supporting theirrequest. The EPAhas reviewed the information submitted by IDEM and agrees that the area should be modified to include onlythe eight sections identified. TheIDEM's information shows that violations ofthe standard are attributable to a coal mine in the area, The EPA believes that limiting theboundaries to theeight sections suggestedby IDEM does not exclude any significant sources orany likely nonattainment portions ofthis

area.Thus, EPA is refining the boundaries ofthat portion ofClinton Township that is designated as nonattainment for PM-10 to include these eight sections, consistent with the definition ofnonattainment area in section 107(d(1)(A)(i) ofthe Act.

h.Rochester, Minnesota.The Minnesota Pollution Control Agency (MPCA) commented on the City of Rochester's nonattainment status.The MPCA requested that the boundaries for the nonattainment area not include the entire city. They submitted information supporting this request including documents indicating that EPAhad intended to include the modified boundaries in its March 1991 notice but through administrative oversight failed to do so.

The EPAbelieves that the nonattainment area should be less than the entire city, and EPA intended to provide more refined boundaries in its March 1991 notice. Violations in Rochester have been attributed to coal storage at a power plant. This facility is the only significant source in the city. The EPA'srefined nonattainment area includes the source and all the area EPA believes to be monitoring violations of the NAAQS due to the source. Thus, consistent with the definition of nonattainment area in section 107(d(1)(A)(i) of the Act. EPAhas refined the nonattainment area. Rochester PublicUtilities (RPU) also 

### submitted comments addressing this

area. The RPU requested that EPA reconsider Rochester's nonattainment designation. TheRPU commented that

no violation ofthe NAAQS has occurred in the area. Specifically, RPU asserted that there has been no violation ofthe NAAQS because onlyone exceedance ofthe standard has been measured and there have never been two exceedances during any 1year.Further, RPU commented thatthe event causing the exceedance was an "exceptional meteorological event" and should not trigger-a nonattainment designation. The RPU also commented that the sampler malfunctioned and did not reliably

measure PM-10 on the day the exceedance occurred.

The PM-10NAAQS is expressed in terms ofan expected value. Section 3.1 of40 CFR part 50,appendix K, describes the adjustments that must be made to 24-hour data in order to estimate the number ofexpected exceedances when PM-10 sampling isnot conducted on a daily basis. Section 3.1 states that "[i]n this adjustment, the assumption is made that the fraction ofmissing values that would have exceeded the standard level is identical to the fraction ofmeasured values above this level." The regulations recognize that this adjustment may lead
to overprediction. Thus, §3.1 also states

as follows: "To reduce the potential for overestimating the number ofexpected exceedances, the correction formissing data will not be required for a calendar quarter in which the first observed exceedance has occurred if: (a) There

was only one exceedance in the calendar quarter, (b) everyday sampling is subsequently initiated and maintained for4 calendar quarters in accordance with 40 CFR58.13, and (c) data capture of75 percent is achieved during the ' required period of everyday sampling."

Sampling is conducted once every B 

### days at the site where the exceedance in Rochesterwas measured. Daily sampling was not commenced after the exceedance. Thus,the regulations' require a correction for the missing data. After applying theadjustment referenced above, the expected exceedances ofthe 24-hour NAAQS at Rochester constitutes a violation of the PM-10NAAQS consistent with part 50, appendix K.

Section 2.4 ofpait50, appendix K, governs the inquiry ofwhether the exceedance measured at the Rochester monitoring site should be treated as an "exceptional event." Thatregulation states that an exceptional event is "an uncontrollable event caused by natural

sources ofparticulate matter or an event

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### Federal Register / Vol. 56, No. 153 / Thursday, August .8. 1991 

## '/ Ruleo and Regulations

that is not expected to recur at a given location." The RPU commented that extremely high winds occurred on the day the exceedance wasmeasured. The RPU cited a memorandum by MPCA requesting thatEPA treat the exceedance as an exceptional event and noting that the Rochester National Weather Service Office measured wind speeds in excess of40 miles perhour on the day the exceedance wasmeasured.

As noted, EPA believes that coal storage at a power plant is responsible for the exceedance. Thus, the event in question would not qualify fortreatment

as an exceptional event under the first prong of the exceptional events standard since it is controllable and was not caused by natural sources. Further, EPA has no basis to believe the event wduld meetthe second prong of the operative legal standard. While high winds were cited, no information was submitted indicating whether that high xind waa the cause ofthe exceedance and, ifso, whether the wind was likely to r3ct..

TheEPA alsobelieves there is insufficient technical basis to cast doubt upon the reliabilityof the measurement. The RPU noted that it had been informed byMPCA that the sampler

was encumbered with large particles and possibly a dirty sampler head "such that quantification ofPM-10could not be actrately and reliably measured * * *." Previously, MPCA had 

### submitted to EPA a microscopist's analysis of the filter sample.The analysis concluded that large particles.

were collected which should nothave been measured and suggested that the sample pointbe invalidated. TheEPA found the microscopist's analysis technically deficient since it did not document the quantity oflarge particles collected and encumbering the sampler. Thus,EPA will not disregard the data, due to the inadequately substantiated claim that the sampler malfunctioned.

In sum, EPA has adjusted the boundaries for this area inlight of MPCA's comments and consistent with the definition ofnonattainment area under section 107(d)(1)(A)(i) ofthe Act. However, for all of thereasons explained above, EPA denies RPU's request to totally eliminate thisarea's nonattainment designation.

i.AudrainCounty,Missouri.The Missouri Department ofNatural ' , Resources (MDNR) submitted comments addressing EPA's designation of Audrain County, Missouri, as an initial PM-10 nonattainment area. TheEPA identified Audrain County as an initial nonattainment area because ofan exceedance of the PM-10 24-hour standard occurring on August 1,1987. The MDNR submitted information suggesting that these data were invalid. After reviewing the technical information associated with this measured exceedance, EPA has concluded that the PM-10 sampler malfunctioned on August 1, 

### 1987 and operated for a period exceeding 24 hours. Section 1.0 ofpart 50, appendix K, specifies thata "daily value" is a "24- hour average concentration ofPM-10 calculated or measured frommidnight to midnight * a." The EPA has 

### invalidated the exceedance since EPA believes the sampler ranfor longer than 24hours and wasnotmeasured-from midnight to midnight. By today's notice EPAremoves Audrain from the list of initial PM-10 nonattainment areas because EPA believes Audrain County has notmeasured a "violation" ofthe PM-10 NAAQS within the meaning of part50, appendix K.



## I. Columbia Falls, Montana(Flathead County).The Governor ofMontana requested thatEPA expand, by adding

one section. the Columbia Falls nonattainment area. In light ofthe Governor's comments and consistent -withthe definition ofnonattainment

area set forth in section 107(d)(1)(A)(i) of the Act, EPAhas adjusted the

- 

### boundaries set forth in the March 1991 notice.

k. Lubbock, Texas.The TACB as well

as the City ofLubbock submitted

comments on the March 15, 1991 Federal 

### Register notice providing an analysis of the Lubbock PM-10 air quality data collected over a 4-year period from 1986-1989. The TACB commented that they had performed an analysis ofall PM-10 filters showing an exceedance of theNAAQS. These analyses included an interpretation and evaluation ofsoil samples and particulate matter collected

on the filters,The results ofthe analysis

- 

### ofthe filter and soil samples indicated

that there was a distinct difference between the.particulate matter deposited on the filters from routine monitoring days and those from the days ofhigh gusty winds and blowing dust.The three exceedances of the PM1024-hour standard at theLubbock monitoring sites since 1986 were determined by the TACB to be influenced by wind-blown dust transported from out ofState sources. As a result, the TACB and the City of Lubbock contend that the days on which exceedances were measured were days with unusually high wind gusts and, as such, these days should be considered

as exceptional events and excluded from the records in accordance with EPA's exceptional events policy under 40 CFR part 50, appendix K, § 2.4. They also contend that ifthe days with the high winds were excluded as exceptional events, the highest 24-hour. concentration recorded at the Lubbock monitoring sites Would be 126 g/m 3

, which Is below the national standard of 150 ig/m3..

The EPA has reviewed all data submitted by the TACB and the City of Lubbock inmaking its decision on the attainment status of the Lubbock area. Section 2.4 ofpart 50, appendix K, indicates that certain exceedances of the PM-10 NAAQS can be adjusted to take exceptional events and trends into
account. The data available indicate that Lubbock has monitored a limited number ofPM-10 levels inexcess ofthe 24-hour PM-0 standard. Further, the influence oflong-range transport of wind-blown dust on these measured exceedances makes it difficult to determine the associated frequency and
nature of these exceedances. This results in uncertainty in how to treat these exceedance events.-Because of thisuncertainty, EPA feels that an unclassified status is appropriate for Lubbock while additional information is collected.

HI..Table Describing the Initial Moderate PM-b0 Nonattainment Areas Corrected by Today's Notice

Based on the foregoing discussion, EPAtoday is changing itsMarch 15, 1991 (56 FR.11101) announcement of the initial PM-10,nonattalnment areas.The nonattainment desigrations for those areas-corrected by today's notice are set forth in the following table. Consistent withEPA's announcement In the March 1991 notice, -allof these areas were .classified as "moderate" PM-10 nonattainment areas by operation of law, pursuant to section 188(a) of the Act. " IIII

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TABLE I.-PM-1 0 INITIAL NONATTAINMENT AREAS 1 4, 1 5

316,1

State and counties

Idaho: Bannock and Power

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

Bonner County

.___.....

llli'.ols:
Cook

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

LaSalle

................ .............. Indiana: Vermillion

... ................ Minnesota: Olmsted

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

Montana: Flathead

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

Lincoln..

.........

Missoula

.............................
Silver Bow.

Ohio: Jefferson

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

Washington: Yakima

. ................ Area of concern

The City of Pocatello: Sections 13-36 of range 33 east and township 5 south; Sections 15-23 and 25-36 of range 34 east and

township 5 south; Section 31 of range 35 east and township 5 south; Sections 1-36 of range 33 east and township 6 south; Sections 1-36 of range 34 east and township 6 south: Sections 5-36 of range 35 east and township 6 south: Sections 7, 8, 15- 22, and 27-35 of range 36 east and township 6 south; Sections 4-6 of range 33 east and township 7 south; Sections 1-4. 10-14. and 24 of range 34 east and township 7 south; Sections 1-30, and 32-36 of range 35 east and township 7 south;r Sections 2-11, 14-23, and 26-35 of range 36 east and township 7 south, Sections 1-4 of range 35 east and township 8 south; Sections 3-6 of range 36 east and township 8 south. The Sandpoint area: Sections 1-3, 9-12, 15, 16, 21, 22 27, 28 of range 2 west and township 57 north; and the western %,,of

Sections 14, 23, and 26 of the same township.and range coordinates.

a. Lyons Township. b. The area bounded on the north by 79th Street, on the west by Interstate 57 between Sibley Boulevard and Interstate 94 and by

Interstate 94 between Interstate 57 and 79th Street, on the south by Sibley Boulevard, and on the east by the Illinos/Indiana State line. Oglesby Including the following Townships, ranges, and sections: T32N, RIE, 1; T32N, R2E, S6; T33N RIE, S24; T33N, RIE,

S25; T33N, R2E, S31; T33N. RiE, S36; and T33N, R2E, S30.

Part of Clinton Township including the following sections- Sections 15, 16, 21, 22, 27, 28, 33 and 34.

The area bounded on the south by U.S. Highway 14; on the west by U.S. Highway 52; on the north by 14th Street NW. between

U.S. Highway 52 and U.S. Route 63 (Broadway Avenue), U.S. Route 63 north to Northern Heights Drive, NE., and Northern Heights Drive NE. extended east to the 1990 City of Rochester Omits; and on the east by the 1990 City of Rochester limits.

The area bounded by lines from Universal Transmercator (UTM) coordinate 700000mE, 534700mN, east to 704000mE, 5347000mN,

south to 704000mE, 5341000mN, west to 703000mE, 5341000mN, south to 703000mE, 5340000mN, west to 702000mE, 5340000mN, south to 702000mE, 5339000mN, east to 703000mE, 5339000mN, south to 703000mE, 5338000mN, east to 704000mE, 5338000mN, south to 704000mE, 5336000mN, west to 702000mE, 5336000mN, south to 702000mE, 5335000mN, west to 700000mE, 5335000mN, north to 700000mE, 5340000mN, west to 695000mE, 5340000mN, north to 695000mE, 5345000mN, east to 700000mE, 5345000mN, north to 700000mE, 5347000mN. Columbia Falls and vicinity: Township T30N, R20W--Sections 7, 8, 9, 16, 17, and 18. Libby and vicinity: T30N, R31W-Sections 2, 3, 4, 5, 9, 10, 11, 14, 15, 23, 26, 35, and west of Section 24, west of Section 25,

and west of Section 36; plus T31N, R31W--Sections 26, 27, 29, the east of Sections 30. 32, 33, 34, and 35. Missoula and vicinity Including the following sections: T13N, R19W-Sections 2, 8, 11, 14, 15, 16, 17,.19, 20, 21, 22. 23, 24, 27, 28.

29, 30, 31, 32, 33, and 34; T12N, R19W-Sections 4, 5, 6, 7; T13N. R20W-Sections 23, 24, 25, 26. 35, and 36. Butte: The Northwest comer of section 2, T.3N., R.8W., thence Easterly to Northeast comer Section 5, T.3N R.7W.; thence

Southerly to Northwest comer Section 9, T.3N., R.7W; thence Easterly to Northeast corner Section 10, T.3N, R.7W.; thence Southerly to Southeast comer Section 22, T.2N., R.7W.; thence Westerly to Southwest comer Section 19, T.2N., R.7W.; thence Northerly to Northwest comer Section 19, T.2N., R.7W.; thence Westerly to Southwest corner Section 14, T.2N., R.AW.; thence Northerly to Southwest comer Section 35, T.3N., R.8W.; thence Westerly to Southwest comer Section 34, T.3N., R.8W.; thence Northerly to Northwest corner Section 27, T.3N., R.AW.; thence Westerly to Southwest corner Section 20, T.3N., R.AW.; thence Northerly to Northwest comer Section 17, T.3N., R.8W.; thence Easterly to Northwest comer Section 14, T.3N., R.8W.: thence northerly to the point of beginning.

The area bounded by Market Street (State Route 43) from the West Virginia/Ohio border west to Sunset Blvd. (U.S. Route 22).

Sunset Blvd. west to the Steubenville Township/Cross Creek Township boundary, the township boundary south to the Steubenville Corporation limit, the corporation boundary east to State Route 7, State Route 7 South to the Steubenville Township/ Wells Township boundary, the township boundary east to the West Virginia/Ohio border, and North on the border to Market Street

The area bounded on the south by a line from UTM coordinate 694000mW, 5157000mN, west to 681000mW, 5157000mN, thence

north along a line to coordinate 681000mN, 5172000mN, thence east to 694000mW, 5172000mN, thence south to the beginning coordinate 694000mW, 5157000mN.

14 When cities or towns are shown, the area of concern is defined by the municipal boundary limits as of November 15, 1990 (the date of enactment of the Act) except for areas which were formerly Group I, in which case the area of concern is defined by the municipal boundary limits as of October 31, 1990 (See 55 FR 45799). (This footnote Isapplicable to today's action and also corrects the first footnote to the table listed In the March 15, 1991 FEDERAL REGISTER notice (56 FR 11105).) 15 When a planning area is shown, the area of concern Includes the entire planning area as of November 15, 1990 (the date of enactment of the Act) except for areas which were formerly Group I,in which case the area of concern is defined by the entire planning area as of October 31, 1990 (see 55 FR 45799). This is true except to the extent the planning area is further defined (e.g., by township, range, and/or section). Such geographical descriptors remain a part of the nonattainment boundaries irrespective of whether they are Included in the planning area. (This footnote is applicable to today's action and also corrects the second footnote to the table listed in the March 15, 1991 FEDERAL REGISTER notice (56 FR 11105).) "6

Audrain County, Missouri, was removed as an Initial PM-t0 nonattainment area. See comments above. "7Lubbock, Texas, was removed as an initial PM-10 nonattainment area. See comments above.

IV. Significance ofToday's Action

By November 15. 1991, States must adopt and submit to EPA a SIPrevision for all those areas that were classified

as moderate PM-10 nonattainment areas by operation oflaw upon enactment of the Act (see subpart 4 ofpart D of title I ofthe Act as amended). In particular, section 189(a) ofthe Act requires that all ofthe initial moderate PM-10 nonattainment areas submit a SIPby November 15, 1991 which includes the following: (1)Either a demonstration (including air quality modeling) that the plan will provide for attainment by December 31, 1994 or a demonstration that attainment by that date is impracticable; and (2) provisions to

assure that reasonably available control

measures (including reasonably available control technology) forthe control ofPM-10 are implemented by December 10, 1993. In addition, a new

source permit program meeting the requirements ofpart D ofthe Act is required for the construction and operation ofnew and modified major stationary sources ofPM-10 (including, in some cases, PM-10 precursors). A SIP revision meeting this requirement is due by June 30, 1992 for all ofthe initial moderate PM-10 nonattainment areas. The EPA will provide additional

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guidance on SIPrequirements forthese

areas in thenear future.Also note that EPA will be reclassifying some ofthese initialPM-10 nonattainment areas from moderate to serious because they cannot practicably attain the PM-10 air quality standards by December 31, 1994 (see section 188(b)(1) oftheAct). If reclassified as serious, these areas will be subject to additional control requirements and a new attainment date. TheEPA will workwith the States in order to develop a proposed listof moderate areas to be reclassified as serious.
V. Effective Date ofThis Notice

As mentioned, the effective date of the announcement ofthe designation and classification ofareas adjusted or corrected in today's notice is August 8, 1991. While 5 U.S.C. 553(d) (the APA) states that the effective date ofcertain administrative actions mustbe 30 days after publication, EPA does not believe that provision ofthe APA is applicable to this action. Section 107(d)(2) ofthe Act expressly states that "promulgation

or announcement" ofa designation under section 107(d)(4) shall notbe subject to 5 U.S.C. 553-557. The provision establishing the PM-10 designations that occurred by operation oflaw upon enactment oftheAct (the designation ofthe "initial PM-10 nonattainment areas") appears at section 107(d)(4)(B). Thus, announcement ofthe initial PM-10 nonattainment areas is exempt from the notice-and-comment rulemaking procedures setforth in 5U.S.C.553-557, including the §553(d) requirement that the effective date ofcertain actions must be 30 days after publication.18



### VI. Finality

The EPAwill take final action on the initial designations forPM-10 (under section 107(d)(4)(B) of the Clean Air Act) for thepurposes ofsection 307(b) ofthe Actwhen EPA formally codifies these designations in 40 CFR part 81. This includes those designations announced in theMarch 15, 1991 notice and any subsequent modifications made in this notice. As noted, EPA is expected to

10 Ifthe APA requirement that publication precede the effective date ofcertain actions by 30 days was deemed applicable to today's action, EPA believes thisaction would be withinthe purview of the good cause exception to thisrequirement See 5 U.S.C. 53(d)[3). TheMarch 15, 1991 Federal Register notice announcing the initial PM-10 nonattainment areas was effective 60 daysafter publication li.e, May 14. 1991) inorder to allow for

a 30-day comment period and any appropriate follow-up adjustments by EPA. In this Federal Register notice. EPA responds tocomments addressing the March 1991 notice. Thus, there Isno
reason to defer the effective date further. complete a part 81 codification forPM10 and other title I air pollutants in the

near future.


### VII. Authority

Sections 107(d)(2), 107(d)(4), 110 (including 110(k)(6), 188(a), and 301 of the Act provide authority for today's action.

Dated: July 31, 1991. Michael Shapiro, Assistant Administrator for Airand Radiation. [FR Doc. 91-18827 Filed 8-7-91; 8:45 am]

BILUNG CODE 58O-50-.M

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 1 [FCC 91-2171

Standards forAssessing Forfeitures

AGENCY: Federal Communications Commission. ACTION: Policy statement.

SUMMARY: This policy statement establishes standards-to be used by the Commission in assessing forfeitures. Adoption ofthe Policy Statement will assist the Commission in ensuring that similarly situated violators are treated in a similar manner and will provide guidance to the public regarding the forfeitures that can be expected in connection with specific violations.

EFFECTIVE DATE: August 8, 1991.
FOR FURTHER INFORMATION CONTACT:. David H. Solomon, Office ofGeneral Counsel, Federal Communications Commission (202) 632-6990. SUPPLEMENTARY INFORMATION: Policy Statement

Adopted: July 11, 1991; Released: August 1, 1991.

By the Commission:

I. Introduction

1. In this Policy Statement, we establish standards for assessing forfeitures. These standards are set forth in the appendix. We intend to be guided in the future by these standards, although we note that we remain "free
to exercise * * * discretion in situations that arise" in specific case. See Guardian Federal Savings&Loan Ass'n v. Federal SavingsandLoan InsuranceCo., 589 F. 2d658, 666 (DC Cir. 1978).
II.Background

2. The Commission has traditionally assessed forfeitures on a case-by-case 

### basis, in lightofrelevant precedent. In 1989, Congress substantially increased the dollar amounts ofour forfeiture authority. Public Law No. 100-239, 103 Stat. 2131. As the Commission 

### implements this increased forfeiture authority, we believe it is appropriate to depart from our traditional case-by-case approach and adopt more specific standards forassessing forfeitures. Such standards will assist the Commission in ensuring that similarly situated violators

are treated in a comparable manner,and will provide guidance to the public regarding the forfeitures that can be expected in connection with specific violations. (TheCommission remains free, ofcourse, to respond to violations 

### with other or additional action, for example, admonishment, revocation or non-renewal.) Establishing forfeiture standards is consistent with a recommendation of the Administrative Conference ofthe United States (ACUS), and is similar to approaches taken by

some other independent regulatory agencies. See Agency Assessment and Mitigation ofCivil Money Penalties, Recommendation No. 79-3, 1CFR 305.79-3; General Statement ofPolicy and Procedure for NRC Enforcement Actions, 10 CFR chapter 1,part 2, appendix C.

IlL Discussion

3. Section503Forfeitures. Most 

### Commission forfeitures are issued under the Commission's general forfeiture authority contained in section 503 ofthe Act.Under section 503(b)(2), foreach violation or each day ofa continuing violation, the Commission may now
assess forfeitures ofup to$25,000 against broadcasters, cable operators or applicants for such facilities,$100,000 against common carriers orapplicants for such facilities, and $10,000 against others. In addition, there is a limit on forfeitures for continuing violations involving a single act orfailure to act of $250,000 for broadcasters, cable operators orapplicants for such facilities and $1,000,000 for common carriers or applicants for such facilities. A limit of$75,000 applies tocontinuing violations involving a single act or failure to act by others.

4. Our new standards for section 503 forfeitures establish base forfeiture amounts for specific classes ofsection 503 forfeitures. The baseforfeiture amounts are based on a ranking ofa relative gravity ofthe violation involved. The base amounts are computed as a percentage ofthe statutory maximum for the service involved. For example, failure to comply withprescribed tower lighting and 

### 3766.5

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marking requirements isgenerally an extremely grave offense and thushas a base forfeiture amount of80 percent of the relevant statutory maximum- $20,000 for broadcasters and cable operators, $80,000 for common carrier and $8,000 for others. In contrast, failure to provide required station identification is generally a more,minor offense and thus has a base forfeiture amount of10 percent ofthe relevant statutory maximum-'$2,510 forbroadcasters and cable operators, $10,000 for common carriers and $1,000for others.We 7 recognize'that one effect ofthis approach isthat licensees in different services will receive different forfeitures for the same offense. We believe this approach is consistent with congressional intent in establishing different statutory maxima for different services, and at the same time ensures that all similarly situated entities are treated similarly.

5.Once the relevant base forfeiture amount is determined for a section 503 forfeiture, the next step under our standards is to apply the relevant upward and downward adjustment criteria to the base amount. Each ofthe upward and downward adjustment criteria is assigned a specific percentage range thatis applied against the base forfeiture amount. The adjustment 

### *criteria we have selected are derived from section 503(b)(2)(D) ofthe-Act, which instructs the Commission to "take into account the nature, circumstances, extent, and gravity ofthe violation and, with respect tothe violator,the degree ofculpability, any history ofprior offenses, abilityto pay, and such other matters asjustice may require." In establishing specific criteria to carry out this statutory mandate, we have also been guided by theACUS recommendation on forfeiture standards. See 1CFR 305.79-3 (suggesting that agencies take into
account the economic benefit ofthe violation, the harm caused by the : violation and the violator's financial condition).

6. How the standards work can be illustrated with the following example involving a broadcast licensee who, for

one day,broadcasts using unauthorized equipment. Under the standards, a base forfeiture amount of$10,000 is ' established. If the relevant upward adjustment criteria were determined to be a 70%increase for intentional violation and a 40% increase for substantial harm, each ofwhich is within the range established in the standards, increases of$7,000 (70% of $10,000) and $4,000 (40%of$10,000) would be added to the base forfeiture, for an adjusted forfeiture of$21,000. If it

were also determined that there should be a 30%downward adjustment for a history ofoverall compliance by the licensee, which is also within the established range, the forfeiture would be reduced by $3,000 (30%of10,000) to $16, 3. If the broadcaster made a specific showing that an $18,000 forfeiture would cause substantial economic hardship, the forfeiture would be further reduced.I If application ofthe criteria led to an amount exceeding the statutory ceiling, the forfeiture amount would-be reduced to the statutory ceiling.

7.Non-Section503Forfeitures. Various sections ofthe Communications Act provide the Commission with forfeiture authority regarding opecific statutory violations. These sections of the Act generally.state a prescribed forfeiture amount (rather than a maximum) for violation of that section. For example, section 220(d) ofthe Act provides that a common carrier that

' Seeappendix, note 6. fails to comply with prescribed. accounting and otherrecord-keeping requirements shall forfeit $6,000 per day. Under our forfeiture standards, such statutory amounts will be used as the base forfeiture amounts fornon-section 503 forfeitures. Consistent with section 504(b).ofthe Act, which permits remission ormitigation ofthe Commission the same downward adjustment criteria tobe used in section 503 forfeiture proceedings will also be used in non-section 503 forfeiture proceedings.

IV.Conclusion

8. We believe adoption and publication ofthese forfeiture policies will assist the Commission in ensuring that similarly situated violators are subjected to comparable forfeitures and will aidour enforcement efforts by making clear in advance the likely consequences ofviolations.

9. Accordingly, itis ordered that this Policy Statement is adopted, to be effective upon publication in the Federal Register.

10. The notice and comment and effective date provisions ofthe Administrative Procedure Act do not apply to this Policy Statement. 5 U.S.C. 553(b)(A), (d)(2).

11.This action is taken pursuant to sections 4(i), 202(c), 203(e), 205(b), 214(d), 219(b), 220(d), 223, 303(r), 30M 386, 503(b), 504, 506 and 634 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 202(c4. 203(e), 205(b), 214(d), 219(b), 220(d), 223 303(r), 362, 386, 503(b), 504, 507, 554.

List of Subjects in 47 CFR Part I

Penalties.

Federal Communications Commission.

Donna R.Searcy, Secretary.

APPENDIX-STANDARDS FOR ASSESSING FCC FORFEITURES

1.BaseAmounts forSection 503Forfeitures

Violation

Misrepresentationflack of candor.....................

...... ............................................................................. Failure to comply with prescribed lighting and marking

..................................................................................... Construction and/or operation without anInstrument of authorization for the service

............ ......... Unauthorized substantial transfer of control

................................................................................................. Violations of rules relating to distress and safety frequencies

.............................. False'distress communications..:

.................................................................................................................................. Failure to permit inspection

......... ................................... Violations of operator services requirements

............................. . ...................................................... Malicio sinterferne

................................................ ................... . Failure to respond to CQmmission communications..

............................................................................................ Importation or marketing of unauthorized equipment

.. ............................................ ...................................... Exceeding authorized antenna height

................................................................................................................... Exceeding power limits

...................... ................... ................................................................................................ Unauthorized emissions,..

.................................................................. ........................................................ Percent of Stat. MaWi' BC/Cabl ($25,000) CC

. ($100,000)
I 1'~4I

20,000 20,000 20,000 20,000 20,000 "20,000 18,750

N:A, 17,500 17,500

N.A. 15,000 12.500 12.500 80,000 80,000. 80.000 00.000 80.000 80.000 75,000 75,000 70.000 70,000 •70.000. 60,000 5q,00 50.000I Other ($10.0)

8.000 8,000 8,000 8.000 B,000 8,000 7,500 7,500 7,000 7,000 7.000 6.000

5.000

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APPENDIX-STANDARDS FOR ASSESSING FCC FORFEITURES-Continued

Violation

Using -unauthorizedfrequency

....................................... ;

.......................................................................................... EBS equipment not Installed or operational................... Transmission of Indecent/obscene material

.............................................................................. ....... . .......... Violation of broadcastEEO rules

...................... ................................................................................................... Violation of political rules: reasonable access, lowest unit charge,equal opportunities and discrimination

........ Unauthorized discontinuance of service

...................................................................................................................... Use of unauthorized equipment.................

............... .......................................................................................... Violation of children's television commercialization or programming requirements

. ............................. Violation of main studio rule

................................................................................................................................... Construction or operation at unauthorized location

.................................................................................................... Failure to engage Inrequired frequency coordination

................................................................................................ Failure to file required forms or Information

................................................................................................................. Violation of public file rules

........................................................................................ ...................................... Violation of sponsorship IDrequirements

............................................................................................................... Violation of requirements pertaining to broadcasting of Iotteries or contests

. ....................................... Violation of technical iogs/time brokerage agreements file requirements

................... . .............. Broadcasting telephone conversations without authorization

.................................................................................... Failure to make required measurements or conduct required monitoring

................ ................ Violation of enhanced underwriting requirements

................................................................................................. Failure to provide station ID

...................... ......................................................................................................... Unauthorized pro forma transferof control

............................................................................................................... Failure to maintain required records

...................................................................... ................................................... Miscellaneous violations

............................................................................................................................................ Percent of BC/Cable CC Other Stat. Max., ($25,000) ($100,000) ($10,000)

12,500 12,500 12,500 12,500 12,500 10,000 10,000 10,000 10,000 '10,000. 10,000 7,500 7,500 6,250 6,250 5,000 5,000 2,500 2,500 2,500 2,500 2,500 1,250 50,000 N.A. N.A. N.A. N.A. 40,000 40,000

N.A. NA, 40,000 40,000 30,000

N.A. NA NA N.A. N.A. 10,000

NA 10,000 10,000 10,000 5,000

The forfeiture ceilings per violation or per day of a continuing violation contained In section 503 of the Communications Act and the Commission's Rules are $100,000 for common carriers or applicants, $25,000 for broadcasters and cable operators or applicants, and $10,000 for all others. 47 U.S.C. 503(b)(2); 47 CFR 1.80. In addition, for continuing violations involving a single act or failure to act, there is an overall limit of $1,000,000 for common carriers or applicants. $250,000 for broadcasters and cable operators or applicants, and $75,000 for all others. Id The base amounts listed are for a single violation or single day of a continuing violation. Unless Commission authorization is required forthe behavior involved, a section 503 forfeiture proceeding against a non-licensee or non-applicant who is not a cable operator or is not operating in the radio control or citizens band radio services can only be initiated for a second violation, after issuance of a citation in connection with a first violation. 47 U.S.C. 503(b)(5). Forfeitures issued under other sections of the Act are dealt with separately in Section III below.

I.Adjustment Crteria forSection 503 Forfeitures

UpwardAdustment COtea 2 (1) Egregious misconduct

........................................................................................................................................................................................................................ 50-90%. (2)Ability to pay/relative disincentive 3

....................................................................................................................................................................................................... 50-9 0 %

. (3) Intentional violation

.......................................................................................................................................................................................................................... 50-90%. (4) Substantial harm

. . . ................................... ................................................................................................................................................................................ 40-70%. (5) Prior violations of same or other requirements

..................................................................................................................................................................................... 40-70%. (6) Substantial economic gain

......................................................................................................................................... .... 20-50%. (7) Repeated or continuous violation

........................................................................................................................................................................................................ Varies. DownwardAdjustment Critena (1) Minor violation 0 ' ....... ...................................... . ............ 50-90%. (2) Good faith or voluntary disclosure

...................................................................................................................................................................................................... 30-60%. (3) History of overall compliance

................................................................................................................................................................................................................. 20-50%. (4) Inability to pay

.......................................................................................................................................................................................................................................... Varies.'

2 Both upward and downward adjustments are applied to the base forfeiture amount. More than one factor may apply In a given case.
3 The Commission is required by the Communications Act to take ability to pay Into consideration in assessing forfeiture amounts. 47 U.S.C. 503(b)(2)(D). 'The percentage adjustment for this criterion could vary up to the statutory maximum per violation or per day of a continuing violation. 'A "mino(' violation is misconduct which is at a low level of seriousness within the violation category. A minor violation Is the opposite of "egregious misconduct."
oAs noted above, the Commission is required by the Communications Act to take ability to pay Into consideration In assessing forfeiture amounts. 47 U.S.C. 503(b)(2)(D). The application of a downward adjustment for inabilityto pay is based upon a showing of substantial financial hardship. Inability to pay would generally be considered as a downward adjustment factor only upon a specific showing by the entity against whom forfeiture action is taken. //I. Non-Section 503 Forfeitures

Violation Statutory amount1

Section 202(c)....... Common carrier discrimination

............................................................................................................................................................... $6,000+$300/day. Section 203(e)

. Common carrier tariffs

......................................................................................................................................................................... $6,000+$300/day. Section 205(b)

. Common carrier prescritions

................................................................ ................................................................ $12,000. Section 214(d).......... Common carrier line extensions.

........................................................................................................................................................ $1,200/day. Section 219(b)

......... Common carrier reports

.............................................................................................................. ......... $1,200. Section 220(d)........ Common carrier records &accounts

.......................................................... $6,000/day. Section 223

....... Dial-a-Por. 7

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

..................................................................................................................................................................... $50,000 maximum. Section 364/386

. Ship radio

............................................................................................................................................................................................. $5,000 (owner). $1,000 (master). Section 506

.............. Great Lakes Agreement

................................................................................................................................................................ $500 (owner). $100 (master). Section 634

............. Cable EEO

............................................... ..................................................................................................................... $.2................... $200.
NOTE: Non-section 503 forfeitures may be adjusted downward using the "Downward Adjustment Criteria" shown for section 503 forfeitures In section It above. I Unlike section 503, which establishes maximum forfeiture amounts, other sections of the Act, with one exception, state prescribed amounts of forfeitures for violations of the relevant section. These amounts are then dubject to mitigation or remission under section 504 of the Act. The one exception is section 223 of the Act, which provides a maximum of $50,000. For convenience, the Commission will treat the $50,000 set forth In section 223 as ifit were a prescribed base amount subject to downward adjustments.
[FR Doc.91-18900 Filed 8-7-91; 8:45 am]
BILLING CODE 6712-01-M 5,000 NA 5,000
N.A NA 4,000 4,000

N.A. N.A. 4,000 4,000 3,000

N.A. NA NA NA N.A. 1,000 NA 1,000 1,000 1,000

5oo

HeinOnline -- 56 Fed. Reg. 37667 1991

### 37616 Federal Register / Vol. 56, No.. 153 

## / Thursday, August 8, 1991 / Rules and Regulations

[D)EPARTMENT OFHEALTH AND HUMAN SERVICES

Office of the Secretary

43 CFR Parot352

Acquisition Regulation; Pubflcatdon; Correction

AGENCY.Department ofHealth and Human Services (HHS). ACTDoN: Interm rule With request for comments; correction.

SUMMARY: The Department ofHealth and Human Services is correcting the signature block in the preamble which appeared in the Federal Register on July 24, 1991 (56 FR 33881). FOR FURTHER 0NFORMATION CONTACT: Mr. Ed Lanham at (202) 245-8890. SUPPLEMENTARY INFORMAflON The signature block which appeared in the referenced Federal Register is corrected
to read as follows:

Terrence #f. Tychan, ActingDeputy AssistantSecretary for Management andAcquwsition.
Dated: August 1,1991.

Terrence D. Tychan, Director, Officeof AcquisitionandGrants Management. [FR Doe. 91-188 8 Filed8--7-91;8:45 amin

BIU.N CODE 418-O4-N

DEPARTMENT OIFTHE INTERIOR

Fish and Wildlfe Service

50 CFR Part 17



### RON 1018-ASS7

Endangered and Threatened Wildlife and Plants; Emergency Rule to Listthe Kanab Ambersnaig as Endangered

AGENCY: Fish and Wildlife Service, Interior. ACTOON: Emergency rule.

SUMMARY: The U.S. Fish and Wildlife Service (Service) exercises its emergency authority to determine the Kanab ambersnail (Oxylomahaydem asp. kanabensis)to be an endangered species pursuant to the Endangered Species Act of1973 (Act), as amended. Only two populations ofthis snail are known to exist,both on wetlands on private lands in Kane County, Utah. A
status survey completed in 1991 discovered that one population is nearly 

### extirpated, while the other population has been subjected to major habitat alteration and destruction. Both populations are exceptionally vulnerable to extinction from natural or human-caused events. Immediate listing would trigger theprotections Insections 7 and 9 ofthe Act, and allow the Service to begin pursuing land acquisition. 'he Service finds that goodcause exists to make this emergency rule effective upon publication. The emergency rule will inplement Federal protection for 240 days. A proposed rule to listthe Kanab ambersnail as endangered will follow this emergency rulemaking, and will allowfor public comment.

DATESnhis emergency deterination 

### ts effective on August 8, 1991, and expires

on April 3, 1992. 

### ADDRESSES: The complete file for this rule is available forinspection, by appointment, during normal business 

### hours at the U.S. Fish and Wildlife Service, Salt Lake City Fish and Wildlife Enhancement Field Office, 2078 Administration Building, 1745 West 1700 South, Salt Lake City, Utah 84104.

FOR FURTHER ONFORMATOON CONTACrt 

### Clark D.Johnson at the above address, telephone 801/524-4430 or FTS588-4430.

SUPPLEMENTARY I NFORMATION.: 

### Background

The Kanab ambersnail is a terrestrial snail in the family Succineidae. Ithas a mottled grayish-amber to yellowishamber colored shell. The shell is dextral, thin-walled, with an elevated spire and

a broad, patulous (expanded) aperture. Fully mature individuals are about 14 to 19 mm (V to /4 inch) long, 7 to 9 mm 

### (V to V inch) in diameter, with 3% to 3% whorls in a drawn outspire. Its eyes are borne at the ends oflong peduncles (stalks),while the tentacles are reduced to smallprotuberances at thebase ofthe eye stalks (Pilsbry 1948, Clarke.1991).

Specimens ofthe Kanab ambersnail

were first collected in 1909 by James IFerriss from" 'The Greens, 6miles above Kanab, on Kanab Wash, on a wet ledge amongmoss and cypripediums" (Ferriss 1910, Pilsbry 1948). These specimens were originally placed in 

### the species Succineahawkinsi(Ferriss 1910, Chamberlin andJones 1929). Henry Pilsbry (1948)transferred these specimens to the genus Oxyloma and erected the subspecies kanabensisin the species haydemfor them. Clarke (1991) notes that Pilsbry's decision to accord the Kanab ambersnail subspecific status was based on shell features alone, and that, as Pilsbry himself noted,its taxonomic status should be reevaluated. Clarke (1991) suggests that the Kanab ambersnail may deserve species status. Forthe purpose of this:listing action, the Service will recognize this taxon at the subspecies level. Ifthe Kanab ambersnail is later recognized as a species, this willnot .affect its designation as endangered. The Kanab ambersnail lives in marshes watered by springs and seeps at the base ofsandstone cliffs. It is absolutely associated with a perennially
wet soil surface or shallow standing
water. None were found in drier areas,

even under logs or in other microhabitats commonly frequented by other land snails (Clarke 1991).

The presence of cattail (Typha domnngensis), orat least the permanently wet ground which Typlha indicates, is believed to be a critical component of the species habitat. It is
most densely aggregated under fallen Typha stalks at the edges ofthick Typha stands. The snails are also frequently

seenjust within the mouths ofvole burrows. Typha may provide crucial vegetative cover for the snails. The American robin (Turdasmigratorius) has been observed to feed on the Kanab ambersnail and may be the snail's princ:pal natural predator (Clarke 1991).

The Kanab ambersnail is known from
two populations about'2.1 km (1.3 milesl apart. Bothpopulations are on privately owned lands. Other likely sites in the

area have been searched on foot by a knowledgeable local biologist (Mr. Blame Lunceford) and during the recent status survey effort (Clarke 1991), but no other snail colonies were discovered.

The nearly extirpated population is located in a marsh at the foot ofa cliff in Kanab Creek Canyon.The Kanab ambersnail was once common at this site. Though once larger, this habitat

was discovered to have been reduced to

a long narrow marsh measuring about 46

m (150 feet) long and 15 cm (6 inches) wide in 1990.The marsh is watered by a seep,but had been partially dewatered by the installation ofa ditch and drainpipe by the landowner to provide
water for domestic livestock which graze in a field below. An intensive search of thishabitat in 1990 revealed only three live snails (Clarke 1991).

The larger population is located in Three Lakes Canyon, a tributary drainage ofKanab Creek, about 10 km (6 miles) northwest of the town ofKanab, Utah. The Kanab ambersnail occurs throughout the marshes and wet meadows which surround the "Three Lakes" ponds, an area about 0.8 km (0.5 miles) long and up to91 m (100 yards) wide. This populationwas estimated to have as many as 100,000'individuals in June 1990. Soon thereafter, a significant portion of this snail colony was

HeinOnline -- 56 Fed. Reg. 37668 1991