70222 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Rules and Regulations 

1Effective December 18, 2006, EPA revoked the 

annual PM–10 standard. 71 FR 61144 (October 17, 

2006). References to the annual standard in this 

proposed rule are for historical purposes only. EPA 

is not taking any regulatory action with regard to 

this former standard. 

contained in any of the voluntary 

national model codes acceptable upon 

review by RHS.’’

■ B. Revising the third sentence in the 

definition for ‘‘Replacement housing’’ to 

read ‘‘The overall condition of the unit 

or dwelling must meet Thermal 

Standards adopted by the locality/ 

jurisdiction for new or existing 

structures and applicable development 

standards for new or existing housing 

recognized by RHS in subpart A of part 

1924 or standards contained in any of 

the voluntary national model codes 

acceptable upon review by RHS.’’

PART 3550—DIRECT SINGLE FAMLY 

HOUSING LOANS AND GRANTS 

■ 5. The authority citation for part 3550 

continues to read as follows: 

Authority: 5 U.S.C. 301; 42 U.S.C. 1480. 

Subpart B—Section 502 Origination 

§ 3550.57 [Amended] 

■ 6. Section 3550.57(c) is amended by 

adding the word ‘‘and’’ after the word 

‘‘systems;’’ and by removing ‘‘and meet 

the thermal performance requirements 

for existing dwellings of 7 CFR part 

1924, subpart A’’. 

Subpart C—Section 504 Origination 

and Section 306C Water and Waste 

Disposal Grants 

§ 3550.106 [Amended] 

■ 7. Section 3550.106(b) is amended by 

removing the words ‘‘or thermal 

performance standards’’. 

Dated: November 28, 2007. 

Russell T. Davis, 

Administrator, Rural Housing Service. 

[FR Doc. 07–6009 Filed 12–10–07; 8:45 am] 

BILLING CODE 3410–XV–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 68 

Provision of Free Public Education for 

Eligible Children Pursuant to Section 

6, Public Law 81–874 

AGENCY: Department of Defense. 

ACTION: Final rule. 

SUMMARY: The Department of Defense is 

removing 32 CFR Part 68, ‘‘Provision of 

Free Public Education for Eligible 

Children Pursuant to Section 6, Public 

Law 81–874.’’ The part has served the 

purpose for which it was intended and 

is no longer valid. 

DATES: Effective Date: December 11, 

2007. 

FOR FURTHER INFORMATION CONTACT: L.M. 

Bynum, 703–696–4970. 

SUPPLEMENTARY INFORMATION: DoD 

Directive 1342.16 was originally 

codified as 32 CFR Part 68. This 

Directive was canceled by DoD Directive 

1342.20. Copies of DoD Directive 

1342.20 may be obtained at http:// 

www.dtic.mil/whs/directives/. 

List of Subject in 32 CFR Part 68 

Elementary and secondary education, 

Government employees, Military 

personnel. 

■ Accordingly, by the authority of 10 

U.S.C. 301, title 32 of the Code of 

Federal Regulations is amended by 

removing part 68: 

PART 68—[REMOVED] 

Dated: December 5, 2007. 

L.M. Bynum, 

Alternate OSD Federal Register Liaison 

Officer, DoD. 

[FR Doc. 07–6006 Filed 12–10–07; 8:45 am] 

BILLING CODE 5001–06–M 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81 

[EPA–R09–OAR–2005–CA–0017; FRL–

8504–2] 

Finding of Failure To Attain; 

California—Imperial Valley 

Nonattainment Area; PM–10 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finding that the 

Imperial Valley serious PM–10 

nonattainment area did not attain the 

24-hour particulate matter (PM–10) 

National Ambient Air Quality Standard 

(NAAQS) by the deadline mandated in 

the Clean Air Act (CAA), December 31, 

2001. In response to this finding, the 

State of California must submit a 

revision to the California State 

Implementation Plan (SIP) that provides 

for attainment of the PM–10 standard in 

the Imperial Valley area and at least five 

percent annual reductions in PM–10 or 

PM–10 precursor emissions until 

attainment as required by CAA section 

189(d). The State must submit the SIP 

revision by December 11, 2008. 

DATES: Effective Date: This finding is 

effective on January 10, 2008. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2006–0583 for 

this action. The index to the docket is 

available electronically at http:// 

www.regulations.gov and in hard copy 

at U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. While 

documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., Confidential 

Business Information). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Adrienne Priselac, EPA Region IX, (415) 

972–3285, priselac.adrienne@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document ‘‘we,’’ ‘‘us,’’

and ‘‘our’’ refer to EPA. 

I. Background 

On August 11, 2004, EPA reclassified 

under the Clean Air Act (CAA or the 

Act) the Imperial Valley PM–10 

nonattainment area (Imperial area) from 

moderate to serious in response to the 

opinion of the U.S. Court of Appeals for 

the Ninth Circuit in Sierra Club v. 

United States Environmental Protection 

Agency, et al., 346 F.3d 955 (9th Cir. 

2003), amended 352 F.3d 1186, cert. 

denied, 542 U.S. 919 (2004). See 69 FR 

48792 (August 11, 2004). 

Also on August 11, 2004 (69 FR 

48835), EPA proposed to find under the 

CAA that the Imperial area failed to 

attain the annual 1 and 24-hour PM–10 

standards by the serious area deadline 

of December 31, 2001. Our proposed 

finding of failure to attain was based on 

monitored air quality data for the PM–

10 NAAQS from January 1999 through 

December 2001. A summary of these 

data was provided in the proposed rule 

and is not reproduced here. 

EPA has the responsibility, pursuant 

to sections 179(c) and 188(b)(2) of the 

Act, of determining within 6 months of 

the applicable attainment date (i.e., June 

30, 2002), whether the Imperial area 

attained the PM–10 NAAQS. Because 

the June 30, 2002 date has passed, EPA 

is required to make that determination 

as soon as practicable. Delaney v. EPA, 

898 F.2d 687 (9th Cir. 1990). 

Section 179(c)(1) of the Act provides 

that attainment determinations are to be 

based upon an area’s ‘‘air quality as of 


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Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Rules and Regulations 70223 

2Pursuant to appendix K, attainment of the 24- 

hour PM–10 NAAQS is achieved when the 

expected number of exceedances of the 24-hour 

NAAQS (150 mg/m3) per year at each monitoring 

site is less than or equal to one. A total of three 

consecutive years of clean air quality data is 

generally necessary to show attainment of the 24- 

hour standard for PM–10. A complete year of air 

quality data, as referred to in 40 CFR part 50, 

appendix K, is comprised of all four calendar 

quarters with each quarter containing data from at 

least 75 percent of the scheduled sampling days. 

3Section 188(e) provides for a one-time extension 

of the attainment deadline for serious PM–10 

nonattainment areas if certain conditions are met. 

However such an extension cannot extend beyond 

December 31, 2006. Because that date has now 

passed, a section 188(e) extension for the Imperial 

area is unavailable under any circumstances. 

Nevertheless we address in this final rule the 

comments we received relating to section 188(e) 

insofar as doing so enables us to fully respond to 

those comments. For example, here a discussion of 

section 188(e) is relevant to the District’s claim, 

among others, that EPA’s action subjects the area to 

more stringent requirements than otherwise would 

have been imposed. 

4See Washington, DC, 68 FR 3410, 3413 (January 

24, 2003). See also Santa Barbara, California, 62 FR 

65025 (December 10, 1997); Phoenix, Arizona, 62 

FR 60001 (November 6, 1997); and Dallas-Fort 

Worth, Texas, 63 FR 8128 (February 18, 1998). 

5The District also cites Georgetown University 

Hospital v. Bowen in which a federal agency 

reissued a procedurally defective rule and gave it 

retroactive effect. Both the D.C. Circuit and the U.S. 

Supreme Court invalidated the action, finding, 

among other things, that under the APA legislative 

rules must be given future effect only. 821 F.2d 759 

(D.C. Cir. 1987); 488 U.S. 204 (1988). 

the attainment date,’’ and section 

188(b)(2), which is specific to PM–10, is 

consistent with that requirement. EPA 

determines whether an area’s air quality 

is meeting the PM–10 NAAQS based 

upon air quality data gathered at 

monitoring sites in the nonattainment 

area and entered into EPA’s Air Quality 

System (AQS) database. These data are 

reviewed to determine the area’s air 

quality status in accordance with EPA 

regulations at 40 CFR part 50, appendix 

K.2 For details about EPA’s proposed 

failure to attain finding, please see the 

proposed rule. 

II. EPA’s Responses to Comments on the 

Proposed Rule 

EPA received eight comment letters 

on the proposed finding. Summaries of 

the comments and EPA’s responses are 

set forth below. 

1. Retroactive Finding of Failure To 

Attain Is Unlawful 

The Imperial County Air Pollution 

Control District (District or ICAPCD) 

claimed that EPA’s proposed finding 

that the Imperial area failed to attain the 

serious area deadline of December 31, 

2001, issued the same day as the 

reclassification of the area from 

moderate to serious, constitutes an 

unlawful and unjust retroactive 

rulemaking in that the area would be at 

once reclassified and punished for 

failing to meet the requirements of the 

new classification. The District strongly 

urged EPA to refrain from finalizing any 

rule that makes a nonattainment finding 

under these circumstances. 

In support of its position that this 

type of rulemaking is illegal under the 

Administrative Procedure Act (APA), 

the District cited a number of federal 

court decisions and EPA rulemakings. 

The District believes that these 

decisions and rulemakings support its 

position that the nonattainment finding 

could create liabilities and penalties for 

missing long past deadlines associated 

with serious nonattainment areas and/or 

impose more rigorous requirements than 

would otherwise be justified, e.g., the 

requirement under CAA section 189(d) 

to submit a revised plan in 12 months 

rather than the 18 months allowed 

under section 189(b)(2) when a 

moderate area fails to meet its 

attainment deadline. 

Response: At bottom, the argument 

that the District makes is that if the 

Imperial area had been reclassified as 

the CAA envisioned, the area would not 

now be subject to the requirements of 

section 189(d). In other words, EPA 

would have found that the area failed to 

attain the moderate area deadline of 

December 31, 1994 well before the 

serious area deadline of December 31, 

2001. Consequently, the serious area 

plan for the Imperial area would have 

been due 18 months from the 

reclassification pursuant to section 

189(b)(2) instead of being subject to the 

12-month deadline in section 189(d). 

Furthermore, the argument goes, if the 

State had been able to demonstrate that 

attainment by 2001 was impracticable 

the area would have been able to avail 

itself of the attainment date extension 

provisions of section 188(e),3 thereby 

potentially avoiding both the 

substantive and procedural 

requirements of section 189(d) entirely. 

Instead, the District argues, EPA’s action 

has illegally circumvented the statutory 

scheme by precluding the area from 

taking advantage of allegedly more 

lenient submittal and substantive 

requirements. 

The cases and EPA actions cited by 

the District, however, do not support its 

position. With respect to the Imperial 

PM–10 nonattainment area, EPA 

reclassified it from moderate to serious 

and immediately proposed to find that 

the area had failed to attain the serious 

area deadline. The result of these 

actions is that the State will be required 

to submit in the future a plan for the 

area under CAA section 189(d). In 

contrast, in Sierra Club v. EPA, 356 F.3d 

296 (D.C. Cir. 2004), EPA set a 

prospective submittal date pursuant to 

CAA section 182(i) upon reclassification 

of the Washington, D.C. ozone 

nonattainment area from serious to 

severe because the severe area plan 

submittal deadline in the CAA had 

already passed. Similarly, in several 

other ozone reclassification actions, 

EPA also determined that where a 

submittal date had passed and was 

therefore impossible to meet, the 

Agency could administratively establish 

a later date. EPA’s reasoning in these 

cases was that to do otherwise would 

have subjected these areas to an 

immediate finding of failure to submit 

and the immediate initiation of 

sanctions clocks.4

In the case of Washington, DC, EPA 

stated in its final rule that ‘‘the 

Administrative Procedure Act * * * 

requires that before a rule takes effect, 

persons affected will have advance 

notification of its requirements. A 

failure to meet an obligation, especially 

one accompanied by sanctions, cannot 

occur in advance of the imposition of 

that obligation.’’ 68 FR at 3414. The 

Court of Appeals agreed, quoting EPA, 

‘‘that adopting petitioner’s suggestion 

[that EPA retain the original submittal 

deadlines] ‘would give the 

reclassification retroactive effect by 

holding the States in default of their 

submission obligations before the events 

necessary to trigger that obligation 

(reclassification) * * * occurred.’ ’’ 356 

F.3d at 309. 

In Sierra Club v. Whitman, 130 

F.Supp. 2d. 78 (D.D.C. 2001), cited by 

the D.C. Circuit in Sierra Club v. EPA 

above and the District in its comment 

letter, and affirmed in Sierra Club v. 

Whitman, 285 F.3d 63, 68 (D.C. Cir 

2002), the plaintiffs sought to compel 

EPA to backdate a nonattainment 

determination to the date on which the 

Agency was statutorily required to make 

such a determination. In affirming the 

District Court’s denial of the relief 

sought, the D.C. Circuit opined that: 

Although EPA failed to make the 

nonattainment determination within the 

statutory time frame, Sierra Club’s proposed 

solution only makes the matter worse. 

Retroactive relief would likely impose large 

costs on the States, which would face fines 

and suits for not implementing air pollution 

prevention plans in 1997, even though they 

were not on notice at the time. 

Id. at 68.5

In the instant case, however, by giving 

the State the benefit of a future plan 

submittal deadline for the Imperial area, 

EPA’s action is consistent with the 

holdings of the cases and with the EPA 

regulatory actions cited by the District. 


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70224 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Rules and Regulations 

6Our rationale for this plan submittal deadline is 

discussed in the proposed rule. See at 69 FR at 

48837. 

7 59 FR 41998 (August 16, 1994) (‘‘State 

Implementation Plans for Serious PM–10 

Nonattainment Areas, and Attainment Date Waivers 

for PM–10 Nonattainment Areas Generally; 

Addendum to the General Preamble for the 

Implementation of Title I of the Clean Air Act 

Amendments of 1990’’ (Addendum)). 

8 Development of a Wind Blown Fugitive Dust 

Model and Inventory for Imperial County, 

California, ENVIRON International Corporation and 

Eastern Research Group, 2004 (Wind Blown Dust 

Study). 

9Technical Memorandum: Latest Revisions of the 

Windblown Dust Study, ENVIRON International 

Corporation, September 20, 2005 (Revised Study), 

attached as Appendix A to Draft Final Technical 

Memorandum, Regulation VIII BACM Analysis, 

ENVIRON, October 2005 (Regulation VIII BACM 

Analysis). 

10With respect to the section 188(f) waiver of 

serious area requirements, EPA cautions that while 

the District in its comment appears to characterize 

the predominant issue in the Imperial area to be 

nonanthropogenic sources, the District has 

identified anthropogenic PM–10 source categories 

that contribute significantly to peak 24-hour average 

PM–10 values in the area. See Regulation VIII 

BACM Analysis. 

Under section 189(d), the State must 

submit a plan revision for the Imperial 

area ‘‘within 12 months after the 

applicable attainment date. * * *’’ That 

date was December 31, 2002. However, 

because, at the time of EPA’s proposed 

finding of failure to attain, that date had 

already passed, EPA proposed that the 

section 189(d) plan revision be due 

‘‘within one year of publication of a 

final finding of nonattainment pursuant 

to CAA section 179(d).’’ 69 FR at 48837. 

Thus, rather than invoking the long past 

submittal deadline in section 189(d), 

EPA looked to another provision of the 

Act to supply a prospective deadline. In 

doing so, EPA alleviated the problem of 

imposing a retroactive deadline without 

imposing immediate sanctions. 

While it is true, as the District points 

out, that a serious PM–10 area 

proceeding initially under section 

189(b) instead of section 189(d) would 

in theory have had more time to submit 

a plan (18 rather than 12 months), in 

both instances the submittal deadlines 

are prospective and not retroactive. 

Furthermore, as we point out in our 

response to comment #3 below, the 

section 189(d) plan that the State is now 

required to submit is actually due later 

than the serious area plan would have 

been due under the scenario preferred 

by the District. Therefore, the retroactive 

penalty the District complains of with 

respect to the plan submittal deadline 

simply does not exist. 

Moreover, while it is also true that, as 

a result of EPA’s nonattainment finding, 

the Imperial area must comply with the 

substantive requirements of CAA 

section 189(d) instead of those of 

section 188(e), this consequence cannot 

be construed as ‘‘punishment.’’ Under 

both sections 189(d) and 188(e), 

implementation of best available control 

measures (BACM) under section 

189(b)(1) and attainment of the PM–10 

standards as expeditiously as 

practicable are required. In addition, 

while the respective substantive 

requirements of sections 188(e) and 

189(d) are different, neither are 

necessarily more onerous than the other. 

See Corrected Brief of Respondent EPA, 

pages 40–42, in Association of Irritated 

Residents, et al. v. EPA, 423 F.3d 989 

(9th Cir. 2005). Only if the State fails to 

submit the new plan in the future could 

sanctions come into play. Thus the 

substantive consequences here of EPA’s 

nonattainment finding are not in fact 

retroactive, nor do they impose a 

penalty. 

For the reasons discussed in its 

proposed finding, EPA is legally 

compelled to finalize the nonattainment 

finding with the result that section 

189(d) applies to the Imperial area. The 

section 189(d) plan is due within one 

year of publication of this final finding 

of nonattainment.6

2. Waive the Attainment Date and 

Related Requirements 

Several commenters suggested that 

instead of finding that the Imperial area 

failed to attain the serious area 

attainment date, EPA should waive that 

date and the related submittal 

requirements and penalties to reduce 

the burden of the Agency’s action on 

Imperial County. While two 

commenters who suggested this 

approach did not describe EPA’s legal 

authority to grant a waiver, one 

commenter, the District, cited CAA 

section 188(f) as providing EPA with the 

authority to waive a specific attainment 

date where the Agency determines that 

nonanthropogenic sources contribute 

significantly to violations in the area 

and to waive any requirement 

applicable to any serious PM–10 area 

where anthropogenic sources do not 

contribute significantly to violations. 

The District stated that in the Imperial 

area, dry soil from vast barren lands are 

entrained by high winds producing an 

impact on the monitors. The District 

asserted that EPA has determined that 

this type of dust raised by high wind 

events constitutes a nonanthropogenic 

source of PM–10 pursuant to section 

188(f) and, citing a May 30, 1996 EPA 

memorandum, that monitoring data 

impacted by such events may be 

excluded from consideration in 

attainment decisions. 

Response: Congress recognized in the 

Clean Air Act that there may be areas 

where the NAAQS may never be 

attained because of PM–10 emissions 

from nonanthropogenic sources, and 

that the imposition in such areas of 

certain state planning requirements may 

not be justified. Therefore, under 

section 188(f), Congress provided a 

means for EPA to waive a specific date 

for attainment and certain control and 

planning requirements when specified 

conditions are met in a nonattainment 

area. Section 188(f) provides two types 

of waivers. First, EPA may, on a caseby-case basis, waive any PM–10 

nonattainment planning requirement 

applicable to any serious nonattainment 

area where EPA determines that 

anthropogenic sources of PM–10 do not 

contribute significantly to violation of 

the standards in the area. Second, EPA 

may waive a specific date for attainment 

of the standards where EPA determines 

that nonanthropogenic sources of PM–

10 contribute significantly to the 

violation of the standards in the area.7

In the Addendum, EPA set forth 

threshold levels for determining 

whether areas qualify for waivers under 

section 188(f). Addendum at 42004–

42005. 

In its comment letter, the District 

included and discussed a report 8 that it 

characterized as showing that 

windblown dust from barren lands 

represents over 92% or 792 tons per day 

(tpd) of the total PM–10 inventory in 

Imperial County. The District 

maintained that ‘‘high winds frequently 

entrain large amounts of this dry soil 

into the ambient air, producing a 

documented impact on County 

monitors.’’ As a result of comments 

provided to the District by EPA and the 

California Air Resources Board (CARB), 

the Windblown Dust Study was revised 

in 2005.9 The Revised Study concluded, 

among other things, that there are 157 

tpd of fugitive dust emissions from 

barren lands. Revised Study at A–15. 

The Windblown Dust Study and the 

Revised Study are primarily inventories 

of windblown dust emissions in 

Imperial County. These documents do 

not address the requirements of section 

188(f) and EPA’s guidance on that 

provision. Therefore they do not 

provide sufficient analysis and 

documentation to support a waiver of 

either the December 31, 2001 attainment 

deadline or any of the serious area 

requirements. However, the section 

188(f) waivers, if the conditions for 

them can be met, are available to the 

State in the context of the section 189(d) 

serious area plan.10

The May 30, 1996 memorandum cited 

by the District is entitled ‘‘Areas 

Affected by PM–10 Natural Events’’ and 


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Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Rules and Regulations 70225 

11On March 22, 2007, EPA issued a final rule, 

intended to replace the NEP, governing the review 

and handling of air quality data influenced by 

exceptional events. 72 FR 13560. The rule became 

effective on May 21, 2007 and is codified at 40 CFR 

50.1, 50.14 and 51.920. 72 FR 13560, 13580–13581. 

However, as discussed below, the 1999–2001 data 

relevant to this final action are not eligible for 

exclusion under the transition policy for the rule 

because the State did not meet the provisions of the 

NEP that were applicable at the time of the 

exceedances. See 72 FR 49046, 49048 (August 27, 

2007). 

12The AIRS database is the predecessor to the 

AQS database. 

13Note that even if adequate documentation had 

been submitted for the flagged events, the Imperial 

area would not have attained the PM–10 standard 

because of the number of unflagged exceedances. 

See ‘‘Imperial valley PM10 Exceedances 1999–

2001,’’ Excel Spreadsheet, Bob Pallarino, EPA. 

is from Mary Nichols, Assistant 

Administrator for Air and Radiation to 

EPA Regional Division Directors 

(Natural Events Policy or NEP). This 

policy provides, among other things, 

that EPA believes it is appropriate to 

exclude air quality data attributable to 

uncontrollable natural events from the 

Agency’s decisions regarding an area’s 

attainment status. NEP at p. 2.11 In the 

case of high winds, under the NEP EPA 

considers ambient PM–10 

concentrations due to dust raised by 

unusually high winds as due to 

uncontrollable natural events (and thus 

excludable from attainment 

determinations) if either (1) the dust 

originated from nonanthropogenic 

sources or (2) the dust originated from 

anthropogenic sources controlled with 

BACM. NEP at pp. 4–5. 

The NEP sets forth a process for 

declaring an exceedance as due to 

natural events and for documenting a 

natural events claim. NEP at pp. 7–10. 

Where a state believes that natural 

events caused the NAAQS exceedances 

it must establish through supporting 

documentation a clear causal 

relationship between the exceedance 

and the natural event. The amount and 

type of documentation must be 

sufficient to demonstrate that the 

natural event occurred and that it 

impacted a particular monitoring site in 

such a way as to cause the PM–10 

concentrations measured. The 

documentation also should provide 

evidence that, absent the natural event 

emissions, concentrations at the 

monitoring site would not cause an 

exceedance. 

Under the NEP, when air quality data 

affected by a natural event are submitted 

to EPA for inclusion into the AIRS 

database,12 the state is to request that a 

flag be placed on the data to indicate 

that a natural event was involved. NEP 

at 8–9. A number of exceedances in 

1999–2001 in the Imperial area were 

flagged as high wind and other natural 

events. Under the NEP, the 

documentation supporting a natural 

events flag was required to be submitted 

no later than 180 days from the time the 

exceedance occurred. However no 

documentation with respect to the 

1999–2001 exceedances was submitted 

to EPA.13 Because the State did not 

comply with the provisions of the NEP, 

the flagged 1999–2001 data cannot be 

excluded as affected by natural events 

from EPA’s determination of whether 

the Imperial area attained the PM–10 

standard by December 31, 2001. 

3. EPA Should Grant a 5-Year Extension 

To Allow More Time To Develop Plan 

Several commenters opposing our 

proposed action stated that our 

proposed time frame for the 

development and submittal of a serious 

area PM–10 plan, including a CAA 

section 189(d) plan, was too short, and 

that EPA should grant a 5-year 

extension of the attainment date for the 

Imperial area to provide time for 

preparation, submittal and 

consideration of an attainment 

demonstration. Of the commenters 

making this request, only the District 

cited any legal authority for a 5-year 

extension: ‘‘* * * The District requests 

that EPA withdraw its proposed 12- 

month deadline for the County’s serious 

area SIP submittal * * * and instead 

grant a five-year extension under 

Section 188(e) to allow sufficient time 

for preparation, submittal and 

consideration of the County’s final PM–

10 attainment demonstration.’’ The 

District characterized the 12-month plan 

submittal schedule as ‘‘abbreviated’’ and 

as a ‘‘penalty.’’ One of the commenters 

suggesting the 5-year extension 

approach urged EPA to utilize our 

discretion under the CAA to extend the 

time allowed to prepare a plan so that 

unwarranted imposition of additional 

measures could be avoided. 

Another commenter stated that 

although a preferable outcome would 

have been an extension of the 

attainment date, it was clear that no 

attainment date extension was in place, 

and thus, the finding of failure to attain 

by EPA was mandatory under the Clean 

Air Act with the one-year deadline for 

an attainment demonstration. 

Response: CAA section 188(e) 

provides that, upon application by a 

state, EPA may extend the attainment 

deadline for a serious PM–10 

nonattainment area no more than 5 

years beyond, in this case, December 31, 

2001, if: (a) Attainment by that date 

would be impracticable; (b) the state has 

complied with all requirements and 

commitments in the implementation 

plan for the area; and (c) the state 

demonstrates that the plan contains the 

most stringent measures (MSM) in the 

plan of any state or are achieved in 

practice in any state, and can feasibly be 

implemented in the area. The state must 

submit at the time of its extension 

application a demonstration of 

attainment by the most expeditious 

alternative date practicable. 

As stated above, the Imperial area is 

no longer eligible for an attainment date 

extension under section 188(e) because 

that extension cannot extend beyond 

2006. Regardless, the attainment date 

extension provided for in section 188(e) 

does not relate in any way to the 

submittal date for a serious area plan. 

Rather, under the Act, submittal dates 

for serious area PM–10 plans are 

initially governed by subpart 4 of part 

D of the CAA, i.e, either by section 

189(b)(2) or 189(d). As explained in the 

proposed rule, EPA believes that section 

189(d) applies to the Imperial area’s 

situation. 69 FR at 48837. In the first 

instance, EPA looked to this provision, 

which applies exclusively to PM–10 

nonattainment areas, for the applicable 

submittal date for the Imperial area’s 

section 189(d) plan. Because the 

deadline for plan submittal under that 

section, December 31, 2002 has passed, 

EPA looked to subpart 1 of part D of the 

CAA in order to determine 

Congressional intent. Section 179(d) 

requires submittal of a plan revision 

within one year after EPA publishes a 

notice of a finding of failure to attain. 

In case of the Imperial area, the 

application of the deadline provided for 

in section 179(d) has already resulted in 

a significantly longer time for submittal 

of the serious area plan than the 

deadline that would otherwise have 

applied. If the Imperial area had been 

reclassified to serious prior to the end 

of 2001, it would have been subject to 

section 189(b)(2). As such, the deadline 

for submittal of a serious area plan 

would be 18 months from the date of the 

reclassification. The effective date of the 

reclassification here was September 10, 

2004; therefore, the alternative to the 

due date provided in section 179(d) 

would result in the plan having been 

due by March 10, 2006. Instead, the 

area’s serious area plan is not due until 

one year from publication of the Federal 

Register notice of this action. EPA 

knows of no legal theory that would 

allow the Agency to provide the 5 years 

apparently sought by the commenters 


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70226 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Rules and Regulations 

14We note that subpart 4 of part D of title I which 

contains the Act’s provisions specific to PM–10 

does not have a provision that is analogous to 

section 182(i) which grants EPA considerable 

latitude to adjust submittal and other schedules 

upon an ozone area’s reclassification. See also 

section 187(f). 

for the development and submittal of a 

serious area PM–10 plan.14

4. Economic Hardship 

A number of commenters claimed that 

an EPA finding of failure to attain 

would result in adverse economic 

consequences for Imperial County. One 

commenter stated that the County has 

one of the poorest economies in the 

State, that EPA’s finding will place an 

undue hardship on an economy that is 

already on the brink of breaking, and 

that the Agency should take economic 

justice into account. Another 

commenter suggested that another set of 

government-imposed regulations would 

place an unnecessary financial hardship 

on area companies and could possibly 

disrupt farming operations. Another 

commenter cited the County’s high 

unemployment rate that would increase 

under severe emission control 

requirements that undermine an 

agriculture-dependent economy. The 

commenters attributed these perceived 

hardships to various factors they believe 

to be related to a nonattainment finding: 

the five percent and BACM 

requirements applicable to serious PM–

10 attainment areas; the inability of the 

County to control Mexican emissions; 

and the prevalence of high wind natural 

events. We address each of these factors 

below. 

A. Five Percent and BACM 

Requirements 

A number of commenters opposed to 

our proposed rule requested that EPA 

reduce or remove entirely the proposed 

requirement that Imperial County 

submit a plan that achieves at least 5 

percent annual reductions in PM–10 or 

PM–10 precursor emissions as required 

by CAA section 189(d). Some 

commenters stated that this requirement 

was not feasible or was too burdensome 

for Imperial County. Another 

commenter attributed severe economic 

consequences to the serious area plan 

requirements for expeditious 

implementation of BACM. 

Response: As stated above and in the 

proposed rule, EPA is legally compelled 

to finalize the nonattainment finding 

with the result that the 5 percent 

requirement of section 189(d) applies. 

Under section 189(b)(1)(B), the serious 

area PM–10 plan for the Imperial area is 

required to provide for the expeditious 

implementation of BACM. This 

requirement applies as a result of the 

Imperial area’s reclassification to 

serious which was mandated by the U.S. 

Court of Appeals for the Ninth Circuit 

in Sierra Club v. U.S. Environmental 

Protection Agency, et al., 346 F.3d 955 

(9th Cir. 2003), amended 352 F.3d 1186, 

cert. denied, 542 U.S. 919 (2004). 

Therefore BACM would have to be 

implemented in the Imperial area even 

in the absence of EPA’s finding that the 

area failed to attain the PM–10 

standards by the end of 2001. 

EPA has defined BACM as: ‘‘* * * 

The maximum degree of emissions 

reduction of PM–10 and PM–10 

precursors from a source * * * which is 

determined on a case-by-case basis, 

taking into account energy, 

environmental, and economic impacts 

and other costs, to be achievable for 

such source through application of 

production processes and available 

methods, systems, and techniques for 

control of each such pollutant.’’

Addendum at 42010. Therefore, while 

EPA cannot take into account the 

general economy of a nonattainment 

area in determining what statutory 

requirements apply in a serious 

nonattainment area, it can consider the 

cost of reducing emissions from a 

particular source category and costs 

incurred by similar sources that have 

implemented emission reductions. In 

addition, where the economic feasibility 

of a measure depends on public 

funding, an appropriate consideration is 

past funding of similar activities as well 

as availability of funding sources. Id. at 

42013. Nevertheless, the CAA still 

requires that the State submit a plan for 

the Imperial area to, among other things, 

attain the PM–10 NAAQS as 

expeditiously as practicable. Moreover, 

there are economic benefits to attaining 

the NAAQS. 

B. Mexican Emissions 

Several commenters felt that the 

economic hardship was a result of the 

failure of EPA, in its proposed action, to 

consider the fact that significant 

amounts of particulate matter air 

pollution in Imperial County emanate 

from the large and growing city of 

Mexicali, Mexico. Many commenters 

opposing our proposed rule stated that 

EPA ignored the fact that emissions 

from Mexico are one of the reasons that 

poor air quality exists in Imperial 

County. Some commenters pointed out 

that in the past, EPA has agreed that 

Imperial County would have attained 

the PM–10 NAAQS but for emissions 

from Mexico (e.g., EPA’s approval of 

CAA section 179B demonstration; 66 FR 

53106, October 2001). Additionally, the 

commenters claimed that the PM–10 

plan needs to include consideration of 

how emissions from Mexico impact the 

attainment of the PM–10 NAAQS in 

Imperial County. 

Response: As explained in our 

proposed rule, EPA has the 

responsibility, pursuant to CAA sections 

179(c) and 188(b)(2), to determine 

within 6 months of the applicable 

attainment date whether a PM–10 

nonattainment area attained the 24-hour 

NAAQS. Section 179(c)(1) of the Act 

provides that determinations of failure 

to attain are to be based upon an area’s 

‘‘air quality as of the attainment date,’’

and section 188(b)(2) is consistent with 

this requirement. EPA determines 

whether an area’s air quality is meeting 

the PM–10 NAAQS based upon air 

quality data gathered at monitoring sites 

in the nonattainment area and entered 

into EPA’s AQS database. These data are 

reviewed to determine the area’s air 

quality status in accordance with EPA 

regulations at 40 CFR part 50, appendix 

K. 69 FR at 48836. Thus, neither the 

CAA nor EPA regulations authorize the 

Agency to consider the economic 

circumstances of an area in making a 

finding of attainment or nonattainment; 

the determination is to be made solely 

on the basis of the ambient air quality 

in the area. Similarly, neither the CAA 

nor EPA regulations allow EPA to ignore 

the actual attainment status of an area 

based on the influx of a pollutant from 

another country. The attainment status 

is intended to reflect the actual ambient 

pollutant levels. 

Section 179B(d) of the Act does allow 

a moderate PM–10 nonattainment area 

to avoid a reclassification to serious if 

a state establishes to the satisfaction of 

EPA that such an area would have 

attained but for emissions emanating 

from outside the United States. EPA did 

approve such a demonstration for the 

Imperial area but that approval was 

overturned by the Ninth Circuit in 

Sierra Club. See the discussion of this 

case and its aftermath, 69 FR at 48835. 

The State can, however, take the effect 

of Mexican emissions into account in 

addressing the CAA section 189(d) 

attainment demonstration requirement. 

See CAA section 179B(a) and the 

Addendum at 42000–42002. In this 

regard, note that section 179B does not 

provide authority to exclude monitoring 

data influenced by international 

transport from regulatory 

determinations related to attainment 

and nonattainment. Thus, even if EPA 

approves a section 179B ‘‘but for’’

demonstration for an area, the area 

would continue to be designated as 

nonattainment and subject to the 

applicable requirements, including 

nonattainment new source review, 


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Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Rules and Regulations 70227 

15See footnote 11. 

16Under EPA’s NEP, if natural events caused 

ambient concentrations of PM–10 that exceeded the 

NAAQS in an area, the State was responsible for 

developing a NEAP meeting certain specified 

requirements to address future events. NEP at 5–8. 

Under EPA’s exceptional events rule NEAPs are not 

required, although similar requirements apply 

under 40 CFR 51.920. 72 FR at 13581. 

nonattainment conformity, and other 

measures prescribed for nonattainment 

areas by the CAA. 

C. High Wind Events 

Several commenters felt that the 

economic hardship was a result of the 

failure of EPA’s proposal to consider the 

fact that significant amounts of 

particulate matter air pollution in 

Imperial County are the result of high 

wind natural events. To support their 

claims, commenters cited the Wind 

Blown Dust Study. 

Response: As discussed in our 

response to comment #2, EPA will 

under certain circumstances exclude 

from attainment determinations ambient 

PM–10 concentrations due to dust 

raised by unusually high winds. 

However, the State did not provide 

documentation to support the flagged 

high wind events from 1999–2001 and 

the data are therefore not eligible for 

exclusion here.15 Moreover, as noted 

previously, even if the State had met the 

provisions of EPA’s NEP that were 

applicable at the time of the relevant 

exceedances, the Imperial area would 

not have attained the PM–10 standard 

by December 31, 2001. The State can, 

however, if it meets the requirements of 

EPA’s exceptional events rule, take 

future unusually high winds into 

account in developing its CAA section 

189(d) attainment demonstration. See 72 

FR at 13565–13566 and 13576–13577. 

5. Governmental Entities Should Work 

Together 

One commenter urged EPA to 

immediately initiate a coordinated effort 

involving the federal government, 

Mexican government counterparts and 

County officials to develop a federally 

funded international plan to reduce 

emissions. Another commenter 

requested that, given the short time 

provided in the CAA to develop and 

submit a plan in this case, and the need 

for the plan to consider international 

transport, and perhaps, 

nonanthropogenic sources, EPA be 

involved early in the plan development 

to ensure a timely plan submittal. One 

commenter also stated that EPA needs 

to work with other governmental 

agencies to implement reasonable 

policies for controlling PM–10 pollution 

in the Imperial area. 

Response: EPA agrees with the 

commenters who encourage 

governmental entities to work together 

to address air pollution from Mexicali to 

Imperial County. Reducing air pollution 

anywhere along the U.S./Mexico border 

requires binational cooperation and 

coordination. Since 1983, EPA has been 

working with the Mexican Government 

and other stakeholders to reduce air 

pollution along the border region. 

Pursuant to the 1983 La Paz Agreement, 

the U.S. and Mexico developed the 

Border XXI Program and more recently 

its successor, the Border 2012 U.S.- 

Mexico Environmental Program. 

Through these programs, EPA and 

Mexico have worked together with 

border tribal, state, and local 

governments, as well as academia and 

the general public, to improve our 

understanding of the relative impacts of 

contributing international sources of air 

pollution and have developed and 

implemented cost-effective control 

strategies to reduce those emissions. 

EPA continues to implement the 

Border 2012 regionally-based border 

program in the Mexicali-Imperial area. 

We are active participants in the 

Imperial/Mexicali Air Quality Task 

Force which provides a forum for the 

federal, state, and local governments to 

discuss and analyze with community 

stakeholders how to improve air quality 

in the binational region. EPA continues 

to fund numerous projects that study 

and manage air pollution in various 

crossborder airsheds like the Imperial/ 

Mexicali area. In addition to supporting 

the District’s work to develop its PM–10 

plan, EPA also provides direct funding 

for the Mexicali-Imperial Air Quality 

Task Force for binational public forums 

to discuss the air quality of the 

Mexicali-Imperial region, and to carry 

out projects, including projects to 

monitor air quality (especially in 

Mexico), to demonstrate retrofit 

equipment technologies for diesel 

trucks, and to provide real time air 

quality information to residents of 

Imperial County. 

Regarding the comment that EPA be 

involved early in the development of 

the air quality plan, we intend to 

provide guidance and assistance to the 

District and the State to support a 

technically sound and timely submittal. 

Lastly, regarding the need to develop 

reasonable policies, EPA has worked 

closely with the State and District to 

improve the PM–10 emissions inventory 

for the Imperial area, to develop a 

natural events action plan (NEAP),16

and to develop rules to control certain 

sources of fugitive dust in the 

nonattainment area. 

6. Finding of Failure To Attain Is 

Mandatory Under the CAA and Fully 

Supported by Ambient Monitoring Data 

One commenter stated that the 

proposal correctly reflects that the 

Imperial Valley is a serious PM–10 

nonattainment area that has missed its 

attainment date and does not have an 

extension of the attainment date in 

place. The same commenter stated 

further that EPA correctly assessed that 

areas in situations like this have oneyear to submit a plan including a 5 

percent plan. Another commenter who 

agreed with EPA’s proposed rule stated 

that EPA’s proposal had omitted some 

statutory requirements (e.g., BACM 

implemented expeditiously, major 

source cutoffs), and reserved the right to 

comment further on EPA’s proposed 

action on the PM–10 SIP. 

Response: EPA agrees with comments 

supporting the proposal. We did not 

include a comprehensive list of the CAA 

requirements applicable to the Imperial 

area, but expect the plan to address all 

of them. See Section III below. 

7. PM–10 Is Not a Regulated Pollutant 

One commenter, California 

Cattlemen’s Association (CCA), notes 

that the U.S. Court of Appeals for the 

District of Columbia Circuit in 

American Trucking Ass’n v. Browner 

vacated EPA’s 1997 PM–10 standard 

because it included both coarse and fine 

PM and therefore was ‘‘inherently 

confounded.’’ CCA claims that the 1987 

standard suffers from the same defect. 

Therefore, CCA argues, there is no 1987 

standard and, as a result, the Imperial 

area cannot be out of compliance with 

it. CCA states that if EPA’s response is 

that the 1987 standard was re-instituted 

in a final rule (65 FR 80776; December 

22, 2000), there was not sufficient notice 

as that rule was noticed within a ruling 

for Ada County, Idaho (65 FR 39321; 

June 26, 2000). Also, CCA believes that 

because the same problem exists with 

the 1987 standard as the 1997 standard, 

simply reinstating the old standard was 

not the court’s intention. Finally, CCA 

discusses EPA’s then current process of 

revising the PM NAAQS and finds, 

among other things, similar 

confounding problems in measurements 

contained in studies that EPA is using 

to consider setting its new NAAQS. 

Response: In a portion of American 

Trucking Ass’ns v. EPA, 175 F. 3d 1027, 

not later reversed by the Supreme Court, 

the D.C. Circuit held that, although 

there was ‘‘ample support’’ for EPA’s 

decision to regulate coarse-fraction 

particles, EPA had not provided a 


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70228 Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Rules and Regulations 

17For a brief discussion of these requirements, 

see our proposed approval of the San Joaquin 

Valley PM–10 plan at 69 FR 5413, 5414 (February 

4, 2004). See also the final rule at 69 FR 30006 (May 

26, 2004). 

reasonable justification for its choice of 

PM–10 as an indicator for coarse 

particles, especially given that PM–10 

includes not only coarse particles but 

PM fine as well. 175 F. 3d at 1054–55. 

Pursuant to the D.C. Circuit’s 

decision, EPA deleted 40 CFR 50.6(d), 

the regulatory provision controlling the 

transition from the pre-existing 1987 

PM–10 standards to the 1997 PM–10 

standards. 65 FR 80776. EPA proposed 

this deletion in the context of a 

proposed rule to rescind a finding, made 

prior to the D.C. Circuit’s vacatur of the 

1997 standards, that the 1987 PM–10 

standards no longer applied in Ada 

County, Idaho. As EPA explained in the 

proposed rule, the Ada County finding 

was based on the existence of the 1997 

standards as well as the transition 

policy. Because the court vacated those 

standards, leaving in place the finding 

would have resulted in no federal 

protection from high levels of coarse 

particulate matter pollution. Finding 

that result untenable, EPA concluded 

that it was appropriate to restore the 

pre-existing PM–10 standards with 

respect to Ada County. 65 FR at 39323. 

As is clear from the final rule, however, 

the 1987 standards were never revoked 

with respect to the rest of the country. 

Therefore, although EPA deleted 40 CFR 

50.6(d)(as required by the mandate of 

ATA I), the pre-existing NAAQS 

continue to apply. 65 FR at 80777. If 

CCA believes that insufficient notice 

was provided in connection with this 

final action, it was required under CAA 

section 307(b)(1) to file a petition for 

review of that action in the U.S. Court 

of Appeals within 60 days of December 

22, 2000. CCA did not do so and is 

therefore foreclosed from raising this 

issue now. 

Moreover, to the extent that CCA 

raises issues with respect to the preexisting 1987 PM–10 standards, we note 

that those standards were upheld in 

Natural Resources Defense Council, 

Inc., et al. v. EPA, et al., 902 F.2d 962 

(D.C. Cir. 1990). In any case, the 1987 

standards do not use PM–10 as an 

indicator exclusively for coarse 

particles, but rather are intended to 

address both PM–2.5 and PM–10–2.5, 

i.e. both fine and coarse particles. 52 FR 

24634, 24639 (July 1, 1987). Thus, any 

concerns that PM–10 may be an 

inappropriate indicator for coarse 

particles exclusively are inapplicable to 

the 1987 standard. 

When CCA submitted its comment 

letter in 2004, EPA was in the process 

of developing proposed regulations to 

again address thoracic coarse particles. 

The Agency subsequently finalized such 

regulations in 2006. 71 FR 61144 

(October 17, 2006). CCA’s concerns 

regarding new standards for PM–10, 

including putative confounding 

problems, were properly raised in the 

context of that rulemaking. In fact, 

challenges to the use of PM–10 as an 

indicator for coarse particles, as well as 

challenges to the scientific bases for the 

2006 final rule have been raised by 

various petitioners in the pending D.C. 

Circuit cases (American Farm Bureau 

Fed. et al. v. EPA and consolidated 

cases) challenging the rule. CCA can, 

and is, pursuing its concerns in that 

forum. 

III. Final Action 

EPA is finding that the Imperial area 

failed to attain the 24-hour PM–10 

NAAQS by the December 31, 2001 

attainment deadline and is requiring the 

State to submit under section 189(d) of 

the Act ‘‘plan revisions which provide 

for attainment of the PM–10 air quality 

standards and, from the date of such 

submission until attainment, for an 

annual reduction in PM–10 or PM–10 

precursor emissions within the area of 

not less than 5 percent of the amount of 

such emissions as reported in the most 

recent inventory prepared for such 

area.’’ The plan must be submitted to 

EPA no later than one year from the 

publication of this final rule. 

The pollutant-specific requirements 

for moderate and serious PM–10 

nonattainment areas are found in 

section 189 of the CAA, and the general 

planning and control requirements for 

nonattainment plans are found in CAA 

sections 110 and 172. In addition to the 

attainment demonstration and 5 percent 

annual reductions requirements 

referenced above, the PM–10 plan for 

the Imperial area must include the 

following elements: 17

• Transportation conformity and 

motor vehicle emissions budgets; 

• Emissions inventories; 

• Best available control measures for 

significant sources of PM–10; 

• Reasonably available control 

measures for significant sources of PM–

10; 

• Control requirements applicable to 

major stationary sources of PM–10 

precursors pursuant to section 189(e); 

and 

• Reasonable further progress and 

quantitative milestones. 

The District must also revise its new 

source review (NSR) rule to reflect the 

serious area definitions for major new 

sources in CAA section 189(b)(3) and 

must make any changes in its Title V 

operating permits program necessary to 

reflect the change in the major source 

threshold from 100 tpy for moderate 

areas to 70 tpy for serious areas. 

Revisions to the NSR and Title V rules 

must also be submitted no later than one 

year from the publication of this final 

rule. 

IV. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this final action 

is not a ‘‘significant regulatory action’’

and therefore is not subject to review by 

the Office of Management and Budget. 

For this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

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

22, 2001). This action merely makes a 

determination based on air quality data 

and does not impose any additional 

requirements. Accordingly, the 

Administrator certifies that this final 

rule will not have a significant 

economic impact on a substantial 

number of small entities under the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.). Because this rule does not 

impose any additional enforceable duty, 

it does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4). This rule also 

does not have tribal implications 

because it will not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes, as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). 

This action merely makes a 

determination based on air quality data 

and does not alter the relationship or 

the distribution of power and 

responsibilities established in the CAA. 

Executive Order 12898 establishes a 

Federal policy for incorporating 

environmental justice into Federal 

agency actions by directing agencies to 

identify and address, as appropriate, 

disproportionately high and adverse 


rfrederick on PROD1PC67 with RULES
Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Rules and Regulations 70229 

human health or environmental effects 

of their programs, policies, and 

activities on minority and low-income 

populations. Today’s action involves 

determinations based on air quality 

considerations. It will not have 

disproportionately high and adverse 

effects on any communities in the area, 

including minority and low-income 

communities. This rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

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

because it is not economically 

significant. The requirements of section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(15 U.S.C. 272 note) do not apply. This 

rule does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by February 11, 

2008. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 

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

Dated: November 30, 2007. 

Laura Yoshii, 

Acting Regional Administrator, Region IX. 

[FR Doc. E7–23943 Filed 12–10–07; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 271 

[EPA–R01–RCRA–2007–0999; FRL–8504–4] 

Rhode Island: Final Authorization of 

State Hazardous Waste Management 

Program Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Immediate final rule. 

SUMMARY: The State of Rhode Island has 

applied to EPA for final authorization of 

certain changes to its hazardous waste 

program under the Resource 

Conservation and Recovery Act (RCRA). 

EPA has determined that these changes 

satisfy all requirements needed to 

qualify for final authorization, and is 

authorizing the State’s changes through 

this immediate final action. 

DATES: This final authorization will 

become effective on February 11, 2008 

unless EPA receives adverse written 

comment by January 10, 2008. If EPA 

receives such comment, it will publish 

a timely withdrawal of this immediate 

final rule in the Federal Register and 

inform the public that this authorization 

will not take immediate effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R01–

RCRA–2007–0999, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: biscaia.robin@epa.gov. 

• Fax: (617) 918–0642, to the 

attention of Robin Biscaia. 

• Mail: Robin Biscaia, Hazardous 

Waste Unit, EPA New England—Region 

1, One Congress Street, Suite 1100 

(CHW), Boston, MA 02114–2023. 

• Hand Delivery or Courier: Deliver 

your comments to Robin Biscaia, 

Hazardous Waste Unit, Office of 

Ecosystem Protection, EPA New 

England—Region 1, One Congress 

Street, 11th Floor, (CHW), Boston, MA 

02114–2023. Such deliveries are only 

accepted during the Office’s normal 

hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Identify your comments 

as relating to Docket ID No. EPA–R01–

RCRA–2007–0999. EPA’s policy is that 

all comments received will be included 

in the public docket without change and 

may be made available online at 

http://www.regulations.gov, including 

any personal information provided, 

unless the comment includes 

information claimed to be Confidential 

Business Information (CBI) or claimed 

to be other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: EPA has established a docket 

for this action under Docket ID No. 

EPA–R01–RCRA–2007–0999. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although it may be listed in the 

index, some information might not be 

publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

www.regulations.gov or in hard copy at 

the following two locations: (i) EPA 

Region 1 Library, One Congress Street—

11th Floor, Boston, MA 02114–2023; by 

appointment only; tel: (617) 918–1990; 

and (ii) Rhode Island Department of 

Environmental Management, 235 

Promenade St., Providence, RI 02908–

5767, by appointment only through the 

Office of Technical and Customer 

Assistance, tel: (401) 222–6822. 

FOR FURTHER INFORMATION CONTACT: 

Robin Biscaia, Hazardous Waste Unit, 

EPA New England—Region 1, One 

Congress Street, Suite 1100 (CHW), 

Boston, MA 02114–2023; telephone 

number: (617) 918–1642; fax number: 

(617) 918–0642, e-mail address: 

biscaia.robin@epa.gov. 

SUPPLEMENTARY INFORMATION: 

A. Why Are Revisions to State 

Programs Necessary? 

States which have received final 

authorization from EPA under RCRA 

section 3006(b), 42 U.S.C. 6926(b), must 

maintain a hazardous waste program 

that is equivalent to, consistent with, 

and no less stringent than the Federal 

program. As the Federal program 

changes, States must change their 


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