Federal Register / Vol. 73, No. 54 / Wednesday, March 19, 2008 / Rules and Regulations

Issued in Washington, DC, on March 7,

2008.

James J. Ballough,

Director, Flight Standards Service.

Adoption of the Amendment

0 Accordingly, pursuant to the authority

delegated to me, under Title 14, Code of

Federal Regulations, part 97 (14 CFR

part 97) is amended by establishing,

amending, suspending, or revoking

Standard Instrument Approach

Procedures and/or Takeoff Minimums

and/or Obstacle Departure Procedures

effective at 0901 UTC on the dates

specified, as follows:

PART 97-STANDARD INSTRUMENT

APPROACH PROCEDURES

N 1. The authority citation for part 97

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40106,

40113, 40114, 40120, 44502, 44514, 44701,

44719,44721-44722.

* 2. Part 97 is amended to read as.

follows:

Effective 10 Apr 2008

Blytheville, AR, Arkansas Intl, RNAV (GPS)

RWY 18, Amdt 1.

Blytheville, AR, Arkansas Intl, RNAV (GPS)

RWY 36, Amdt 1.

Blytheville, AR, Arkansas Intl, Takeoff

Minimums and Obstacle DP, Orig.

Chicago, IL, Chicago Midway Intl, Takeoff

Minimums and Obstacle DP, Amdt 10.

Wichita, KS, Wichita Mid-Continent, Takeoff

Minimums and Obstacle DP, Orig.

Coldwater, MI, Branch County Memorial,

RNAV (GPS) RWY 7, Amdt 1.

Coldwater, MI, Branch County Memorial,

RNAV (GPS) RWY 25, Orig.

Coldwater, MI, Branch County Memorial,

VOR RWY 7, Amdt 5.

Coldwater, MI, Branch County Memorial,

VOR/DME RWY 25, Orig.

Coldwater, MI, Branch County.Memorial,

VOR RWY 25, Orig-A, CANCELLED.

Coldwater, MI, Branch County Memorial,

Takeoff Minimums and Obstacle DP, Amdt

4.

Jackson, MN, Jackson Muni, NDB RWY 13,

Amdt 10.

Higginsville, MO, Higginsville Industrial

Muni, RNAV (GPS) RWY 16, Amdt 1.

Higginsville, MO, Higginsville Industrial

Muni, RNAV (GPS) RWY 34, Amdt 1.

Tulsa, OK, Tulsa Intl, VOR OR TACAN RWY

26, Amdt 23.

Antigo, WI, Langlade County, RNAV (GPS)

RWY 16, Amdt 1.

Antigo, WI, Langlade County, RNAV (GPS)

RWY 34, Amdt 1.

Antigo, WI, Langlade County, NDB RWY 16,

Amdt 6.

Antigo, WI, Langlade County, Takeoff

Minimums and Obstacle DP, Orig.

Milton, WV, Ona Airpark, Takeoff Minimums

and Obstacle DP, Amdt 2.

Effective 05 Jun 2008

Meeker, CO, Meeker, Takeoff Minimums and

Obstacle DP, Amdt 1.

Telluride, CO, Telluride Rgnl, Takeoff

Minimums and Obstacle DP, Amdt 1.

Bartow, FL, Bartow Muni, Takeoff Minimums

and Obstacle DP, Orig.

Bozeman, MT, Gallatin Field, NDB RWY 12,

Amdt 5, CANCELLED.

Redmond, OR, Roberts Field, NDB OR GPS

RWY 22, Amdt 1A, CANCELLED.

Ephrata, WA, Ephrata Muni, Takeoff

Minimums and Obstacle DP, Amdt 2.

On February 25, 2008 (73 FR 9935), the

FAA published an Amendment in Docket No.

30593, Amdt No. 3256 to Part 97 of the

Federal Aviation Regulations under section

97.33, effective April 10, 2008, which is

hereby rescinded:

Lanai City, HI, Lanai, ILS OR LOC RWY 3,

Orig-A.

On-February 25, 2008 (73 FR 9935), the

FAA published Amendments in Docket No.

30593, Amdt No. 3256 to Part 97 of the

Federal Aviation Regulations under section

97.33, effective April 10, 2008, which are

hereby corrected to be effective March 13,

2008:

Bishop, CA, Eastern Sierra Rgnl, RNAV (GPS)

Y RWY 12, Orig.

Bishop, CA, Eastern Sierra Rgnl, RNAV (GPS)

Z RWY 12, Orig.

On February 25, 2008 (73 FR 9935), the

FAA published an Amendment in Docket No.

30593, Amdt No. 3256 to Part 97 of the

Federal Aviation Regulations under section

97.33, effective April 10, 2008, which are

hereby corrected to be effective July 31, 2008:

Woodward, OK, West Woodward, NDB RWY

17, Amdt 3, CANCELLED.

[FR Doc. E8-5172 Filed 3-18-08; 8:45 am]

BILLING CODE 4910-13-P

COMMERCE DEPARTMENT

Industry and Security Bureau

15 CFR Part 738 *

Commerce Control List Overview and

the Country Chart

CFR Correction

In Title 15 of the Code of Federal

Regulations, Parts 300 to 799, revised as of January 1, 2008, in part 738, in

Supplement No. 1, on page 244, an "X"

is added in the entry for Tonga under

the heading CC3.

[FR Doc. 08-55506 Filed 3-18-08; 8:45 am]

BILUNG CODE 1505-01-D

PEACE CORPS

22 CFR Part 310

Governmentwide Debarment and

Suspension (Nonprocurement)

CFR Correction

In Title 22 of the Code of Federal

Regulations, Parts 300 to 1799, revised

as of April 1, 2007, on page 49, the

appendix to Part 310 is removed.

[FR Doc.. 08-55503 Filed 3-18-08; 8:45 am]

BILLING CODE 1505-01-0

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

Income Taxes

CFR Correction

In Title 26 of the Code of Federal

Regulations, Part I (§ 1.1551 to End),

revised as of April 1, 2007, on page 439,

in § 1.6654-2, in the undesignated

paragraph following-paragraph

(d)(2)(ii)(B), make the following

changes:

1. In the first sentence, after the word "attributable", insert the words "to

months in such partnership taxable";

and

2. At the beginning of the third

sentence, remove the words "In

addition, a partner shall include in his

taxing after December" and add the

words "In addition, a partner shall

include in his taxable income and, for

taxable years beginning after December"

in their place.

[FR Doc. 08-55505 Filed 3-18-08; 8:45 am]

BILLING CODE 1505-01-D

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[EPA-R09-OAR-2006-0583, FRL-8542-6]

Approval and Promulgation of

Implementation Plans; Designation of

Areas for Air Quality Planning

Purposes; State of California; PM-10;

Affirmation of Determination of

Attainment for the San Joaquin Valley

Nonattainment Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing its proposal

to affirm its October 30, 2006,

determination that the San Joaquin

Valley nonattainment area (SJV or the

Valley) in California has attained the

National Ambient Air Quality Standard

(NAAQS) for particulate matter with an

aerodynamic diameter less than or equal

to a nominal 10 micrometers (PM-10).

EPA proposed to affirm the

determination of attainment in order to

take comment on the exclusion from a

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determination of attainment, of PM-10

exceedances that were caused by

exceptional events. EPA i's concurring

with the State's request to flag I

exceedances which occurred in the SJV.

as being caused-by exceptionalevents,

i.e., high winds. EPA is also concurring

with the Santa Rosa Rancheria Tribe's

request to flag, as due to an exceptional

event, PM-10 exceedances which

occurred on tribal lands located within

the boundaries of the SJV. EPA is

further finding that these exceedances at

the Santa Rosa Rancheria (SRR) should

be excluded from use in determining

attainment because the exceedances

occurred while the monitor was

operating in very close proximity to

construction activities and, as such, the

monitor was not properly sited during

that time for purposes of comparison to

the NAAQS. As a result, EPA is

affirming its determination that the SJV

has attained the PM-10 standard based

on EPA's evaluation of quality-assured

data through 2006..

In addition, EPA did not receive

comments on how the Agency

addressed the issues raised in petitions

for reconsideration and withdrawal of

EPA's 2006 determination of attainment,

filed by Earthjustice on behalf of the

Sierra Club, Latino Issues Forum and

others, and thus we are denying the

petitions.

DATES: Effective Date: This rule is

effective on April 18, 2008.

ADDRESSES: EPA has established docket

number EPA-R09-OAR-2006-0583 for

this action. The index to the docket is

available electronically at

www.regulations.gov and in hard copy

at EPA Region IX, 75 Hawthorne Street,

San Francisco, California. While all

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., CBI). 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:

Doris Lo, EPA Region IX, (415) 972-

3959, lo.doris@epa.gov or Bob Pallarino,

EPA Region IX, (415) 947-4128,

pallarino.bob@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, "we," "us"

and "our" refer to EPA.

Table of Contents

I. Summary of Proposed Action

I. Public Comments and EPA Responses

A. Earthjustice Comments

1. Overview Comments

2.. Comments Specific to September 22,

2006--Corcoran, Bakersfield and Oildale

3. Comments Specific to October 25,

2006-Corcoran and Bakersfield

B. Other Comments

C. List of EPA Figures in the Docket

III. Final Action

IV. Statutory and Executive Order Reviews

1. Summary of Proposed Action

On August 27, 2007, EPA proposed to

affirm its determination that the SJV has

attained the 24-hour NAAQS for PM-IO.

72 FR 49046.1 EPA issued this proposed

rule in order to take comment on the

exclusion of several PM-10 exceedances

that were caused by exceptional events,

and, in the case of the SRR, improper

siting of the monitor for purposes of

comparison to the NAAQS. These

exceedances are summarized in Table 1

in the proposed rule. Id. at 49047. For

a more detailed discussion of the related

background for the SJV and of the

proposal, please refer to the proposed

rule.

II. Public Comments and EPA

Responses

EPA received three comment letters

supporting the proposal to affirm the

attainment determination. These

comments were submitted by the

California Cotton Ginners and Growers

Association, the Tulare County Farm

Bureau and the Western United

Dairymen. In general, these commenters

support the cases that are made for the

exceptional event exceedances and

discuss the many control measures and

efforts that have been made to achieve

-attainment. The commenters also point

to the SJV's continued efforts to achieve

further air quality improvements under

the PM-2.5 plan development. One

commenter provides information to

show that no cotton harvesting was

occurring in September 2006. Finally,

the commenters question the

representativeness of the 2000 comment

letters received by EPA in response to

our July 19, 2006, attainment

determination proposal (71 FR 40952)

since the majority of the commenters

appear to reside outside the SJV.

EPA received three adverse comment

letters. Two were from private citizens

from the state of Tennessee and one was

from Earthjustice, representing Sierra

Club, Latino Issues Forum, Medical

Advocates for Healthy Air, the Steven

and Michele Kirsch Foundation, TriValley CAREs, Concerned Residents of

Lockwood Valley, Fresno Coalition

Against the Misuse. of Pesticides,

I On October 17, 2006, EPA finalized its

determination that the SJV attained the NAAQS for

PM-10 and on October 30, 2006, EPA published

this determination in the Federal Register. 71 FR

63642.

Califoia Communities Against Toxics,

FresntPMetro Ministry, Coalition for

Clean Air, Center for Biological

Diversity, and the Association of

Irritated Residents. 2 The majority of the

comments discussed below are raised by

Earthjustice.

EPA notes that although it received

numerous specific comments on the

September 22, 2006, October 25, 2006,

and the SRR exceedances, no adverse

comments are directed specifically at

EPA's finding that exceedances'

monitored on December 8, 2006, at

Corcoran and Bakersfield-Golden State

Highway (Bakersfield) were caused by

an exceptional high wind event. Thus,

EPA does not address any substantive

issues regarding these exceedances in its

responses to comments.

In subsection A. below we respond to

the extensive cdmments raised by

Earthjustice. In subsection B. we

respond to comments raised by other

parties.

A. Earthjustice Comments

1. Overview Comments

Comment 1: Earthjustice explains that

its comments analyze EPA's proposed

affirmation rule under the new

Exceptional Events Rule (EER). 72 FR

13560 (March 22, 2007). In this regard,

Earthjustice states that, "assuming EPA

has the discretion to apply the new

rule," EPA's decision to do so is

completely arbitrary given that the San

Joaquin Valley Air Pollution Control

District (District or SJVAPCD) prepared

its analyses under EPA's prior policies

and did not invoke the new regulatory

requirements.

Response 1: EPA addressed the issue

of the applicability of the new EER to

the events at issue in this rulemaking in

its proposed affirmation rule. EPA

explained that the statutory provision

upon which the new rule is based, CAA

section 319, as amended by section 6013

of the Safe Accountable Flexible

Efficient-Transportation Equity Act: A

Legacy for Users (SAFE-TEA-LU) of

2005, provides that the Agency's preexisting guidance documents continue

to apply until the effective date of the

rule. CAA section 319(b)(4). As

mandated by section 319, EPA finalized

and published the final EER in March

2007. This rule became effective on May

21, 2007, requiring EPA to follow the

rule in making exceptional events

determinations after that date.

2 The proposal provided a 30 day comment

period ending on September 26, 2007. EPA received

a request for an additional 30 days to comment and

granted that request extending the comment period

until October 26, 2007. 72 FR 53743 (September 20,

2007).

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Therefore, in making and publishing its

determination after the effective date of

the EER, EPA followed its procedures

and criteria in evaluating the State's

exceptional events demonstrations. 72

FR at 49048.

Although EPA followed the EER in

this particular instance, and believes it

should be followed in most cases, the

Agency recognized that there might be

certain instances where EPA had not yet

made a decision on a state's already

completed and submitted demonstration

of an exceptional event and these

demonstrations were thus caught

midstream. In those instances, EPA

concluded that a state could choose for

a limited period to comply with either

the provisions of the rule or those of the

Agency's existing policies and, that if

asked, EPA would act under the policy

on a grandfathering rationale for a short

time period. EPA continues to believe

that this transitional policy was

reasonable in the absence of an explicit

statutory directive addressing that

situation. Here, the State did not

indicate that its submissions should be

evaluated under the existing policies.

Therefore, EPA applied the rule, which

was already effective, when it made its

determinations on the exceptional

events in the SJV.

Comment 2: Earthjustice, citing case

law, states that EPA must provide a

rational basis to support its conclusions

regarding the exclusion of monitoring

data showing NAAQS exceedances and

that its decisions must have a "substantial basis in facts." Earthjustice

cites 40 CFR 50.14(c)(3)(iii) and CAA

section 319(b)(3)(B), respectively, for the

propositions that for EPA's

determination here the District must

provide actual evidence to support its

claims and that the occurrence of an

exceptional event must be

"demonstrated by reliable, accurate

data." Earthjustice claims that even

under a weight of evidence standard

there must be evidence supporting the

specific findings and that reliance on a

plausible story is not enough.

Response 2: EPA agrees with

Earthjustice's characterization of the

general demonstration, as stated in our

summary of its comment above, that

must be made in order to exclude data

showing NAAQS exceedances. EPA

believes that it has, both in the proposed

affirmation rule and this final rule,

provided a rational basis supported by

reliable, accurate data for its

conclusions that the September, October

and December 2006 PM-10 exceedances

in the SJV were caused by exceptional

events. See 72 FR at 59050-49063 and

our responses to comments below.

Comment 3: Regarding its contention

concerning the lack of reliable and

accurate data, Earthjustice cites EPA's

statements in the proposed affirmation

rule at 72 FR at 49053 that activity

levels on September 22, 2006 were "constant" and that reasonable controls

were in place to control particulate

matter while providing only general or

anecdotal evidence in the form of nonspecific District inspector observations

and "discussions with representatives of

agricultural and industrial operations."

Citing CAA section 319(b)(3)(B),

Earthjustice claims that this does not

satisfy the statutory requirement that

"exceptionality" be based on reliable,

accurate data.

Response 3: In the section of the

proposed affilnation rule cited by

Earthjustice we discussed our

conclusion that the State's

documentation demonstrates that the

exceedances at Corcoran, Bakersfield

and Oildale on September 22, 2006

would not have occurred but for the

wind event on this day. EPA based this

conclusion on the totality of the

evidence presented by the State which

included, but was not limited to, the

information on activity levels and

control measures singled out by

Earthjustice. For the additional factors

EPA considered in.reaching its

conclusion, see section V.A.2.d. in our

proposed affirmation rule (72 FR at

49053) and our responses to comments

below.

Comment 4: Earthjustice claims that

EPA offers no evidence to support the

construction claims regarding the SRR.

It asserts that EPA cannot say what if

anything was occurring on the days in

question, where it was occurring, or

why it could not be reasonably

controlled. Earthjustice also maintains

that EPA cannot show that construction

activity at the SRR is related to the

measured exceedances and, as a result,

EPA cannot show the required "clear

causal relationship." Further, EPA

cannot say when these events occurred

and why these allegedly ongoing

activities only resulted in exceedances

during the same period that monitors in

other areas of the SJV started monitoring

exceedances. Earthjustice argues that

EPA cannot make the required "but for"

showing at the SRR because EPA cannot

show that there was an event in the first

place. Earthjustice further contends that

EPA did not provide adequate evidence,

including written accounts, that the

construction activity took place on the

days the exceedances occurred.

Earthjustice claims that "no one was

able to produce any written account, in

the form of contractor records, work

orders, schedules, or anything else that

would confirm that construction activity

did, in fact, take place on the days in

question." Finally, Earthjustice states

that "mere post hoc speculation and

anecdotal accounts of what probably

happened does not establish a basis for

waiving these data."

Response 4: First, Earthjustice notes

that EPA proposed to exclude the SRR

violations on two grounds: (1) The

monitor was not properly sited, and (2)

the nearby construction activity was an

exceptional event. Earthjustice concedes

that "[bloth of these conclusions seem

reasonable if the activity can be shown

to have occurred on the days the

monitor recorded violations."

Earthjustice Comments (EC) at 23. 3

Earthjustice contends, however, that

EPA did not provide "any such

evidence."

Contrary to Earthjustice's assertion,

EPA in its proposed affirmation rule

provided a demonstration that

construction activity, involving the

grading and paving of parking lots, took

place in close proximity to the SRR

monitor during the period the

exceedances at the SRR monitor

occurred, and that this activity caused

the exceedances. EPA in its proposal set

forth information derived from

eyewitness accounts, meteorological

data, contemporaneous tracking reports,

and an account of an EPA expert's own

visit to the site. 72 FR at 49060-49063.

EPA did include written documentation

of the events at issue. This written

documentation included sample

tracking reports that accompanied the

filters from the monitors and described

the conditions at the time of the

monitoring, and an EPA expert's report

of his site visit and interviews of

witnesses to the events. There is no

requirement in the EER that

documentation of events include

specific types of written documentation,

such as those cited by Earthjustice.4 Nor

3 Earthjustice concedes, moreover, that under the

EER the requirements for fribal governments appear

to be "much more flexible * * " and "lilt would

not take much to make these demonstrations." EC

at 22.

" Note that we are not specifying what will be

required as a minimum level of documentation in

all cases because facts and circumstances will vary

significantly based on, among other things,

geography, meteorology and the relative complexity

of source contributions to measured concentrations

in any particular location. 72 FR at 13573. A

particular instance may require more or less

documentation, depending on the particular facts or

circumstances. The simplest demonstrations could

consist of newspaper accounts or satellite images to

demonstrate that an event occurred together with

daily and seasonal average ambient concentrations

to demonstrate an unusually high ambient

concentration level, which is clearly indicative of

an exceptional impact. Such is the case with events

such as volcanic eruptions and nearby forest fires.

Continued

14689

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is there any requirement for specific

types of documentation for EPA to

demonstrate its alternative ground for

excluding the data under principles

established in 40 CFR part 58, appendix

E, that during the period of the nearby

construction the monitor was not

properly sited for purposes of collecting

data for comparison to the NAAQS. 72

FR at 49060-49061.

EPA's findings were supported by

information from interviews with three

individuals with firsthand knowledge of

the activities that took place near the

monitor, as well as by contemporaneous

documentation from filter sample

tracking reports. These individuals were

the SRR environmental technician

responsible for overseeing the operation

of the monitor, the SRR construction

superintendent, and a private

environmental consultant working for.

the Santa Rosa Rancheria EPA

(SRREPA). The construction

superintendent and the consultant

concurred with the SRR environmental

technician's recollection that grading

and paving of the parking lots took

place in September and October 2006,

and the environmental technician

concluded that these activities caused

the exceedances on September i4 and

20, 2006 and later in October, when the

initial paving had to be removed and the

parking lot repaved.

EPA's July 18, 2007, Memorandum,

"On-Sfte Visit to Santa Rosa Rancheria,"

from Bob Pallarino, EPA, to Sean Hogan,

EPA (Site Visit Memorandum), contains

the following account:

The construction activity entailed grading

and leveling the ground, application of subbase material, and paving with asphalt. The

par[kling lot was first paved in September

and it is this project which [the SRR

environmental technician] believed caused

the exceedances on September 14 and 20.

* * * the first paving* * * had to be

removed and the parking lot repaved. 5 It is

this second part of the paving project which

[the environmental technician] believed

caused the October exceedance. * * * [T]he

SRR environmental consultant stated that he

had witnessed'these construction activities

during September and October, 2006. * * * The construction supervisor concurred with

[the environmental technician's] recollection

of the construction activity * * *

' Site Visit Memorandum at 2-3.

The information about the timing of

the construction activity, from witnesses

with both firsthand and expert

Id. More documentation would be needed to

support situations that are not as straightforward.

5 The Site Memorandum stated that the first

paving project "did not pass inspection and the

paving had to be removed and the parking lot

repaved." The Facility Manager in his letter of

December 2007 referred to the first paving of the

parking lot as "temporary."

knowledge, is confirmed by

documentation from the California Air

Resources Board (CARB) sample

tracking reports that the SRREPA

environmental technician filled out at

the time the samples were obtained, and

forwarded to CARB along with the

monitored samples. The SRREPA

technician observed the "sampling

conditions" at the time the monitor was

operating and noted on the sample

tracking forms, which are completed

with each sampling run, that there was "construction nearby." This was

signified by the letter "J". Earthjustice

ignores this corroborating

documentation, cited by EPA in its

proposal, and included in the

rulemaking docket. 72 FR at 49062. It is

significant that these sample tracking

forms were prepared before the filters

from the monitors were sent to and

analyzed by the lab. Thus at the time the

technician noted that nearby

construction was occurring during the

monitoring, he could not have known

whether or not an exceedance was

recorded that day.

EPA's proposal also showed that the

meteorological data lend support to the

environmental technician's account of

the events of the days in question. The

winds on the three days that exceeded

the NAAQS were predominantly from

the northwest, north and northeast. This

would indicate that any dust-producing

activity north and northeast of the

monitor would result in high

concentrations of geologic dust being

blown towards the monitor. Site Visit

Memorandum at 2.

Further corroboration of the impact of

the construction on the monitor came

from EPA's assessment of the proximity

of the monitoring site to the nearby °

parking lots. EPA's onsite inspection

ascertained that one of the parking lots

was within 25 feet of the monitor, and

the other was within 100 feet. 72 FR at

49062.

Reinforcing EPA's conclusion that

construction activities near the monitor

caused the exceedances was the fact,

pointed to in the proposed rule, that

after completion of the paving projects,

average PM-10 concentrations dropped

by more than 50 percent. Id.

Since the proposal, EPA has. obtained

further documentation that the

exceedances occurred during the period

of construction activity in close

,proximity to the monitor. The Facility

Director of the Tribe's hotel and casino

has provided EPA with a letter stating

that asphalt work on the parking lots

close to the monitoring station was

completed between August 15 and

November 4, 2006. Enclosed with the

letter was a billing statement from the

Tribe's general contractor for the period

up to August'15, 2006. The statement

shows that work on the parking lots

close to the monitor remained to be

completed after August 15. The letter

from the Facility Director states that at

the time of the monitored exceedances,

there were earthmoving activities

nearby and paving activities near the

site of the monitor "in a large area for

parking for Trib.l Administrators and

for our customers."

Thus, in addition to ihe

documentation available at the time of

the proposal, EPA has provided a letter

from the Tribe and a billing statement

from the general contractor that support

the conclusion that paving wqrk was

occurring at the time of the

exceedances.

Earthjustice argues that because

exceedances did not occur on other days

when construction activities were

occurring, this indicates that

construction did not cause the

exceedances in September and October

2006. But this argument is misleading.

Generally, varying degrees, types and

locations of the construction activity,

and changing meteorological conditions

lead to varying impacts on the monitor.

The fact that construction activities did

not cause exceedances on some days

does not mean that they were not

responsible for the exceedances that

occurred on other days. In addition,

although Earthjustice claims that two

days of violations at the SRR "correlate

well with violations seen in other parts

of the Valley," no other violations were

monitored in the Valley on September

14 and 20 and October 26, 2006.

Earthjustice also claims that EPA

"still needs to make the other required

showings" for exceptional events,

"including that these sources were

reasonably controlled." EC at 22. EPA

made these showings in its proposal,

and Earthjustice did not raise any

specific grounds to challenge them. See

72 FR at 49061-49062. In its proposal

EPA, after discussing whether the

construction activity's impact on the

monitor was reasonably controllable,

concluded that "under the particular set

of circumstances presented here, for the

purposes of evaluating the 'reasonably

controllable' criterion of the EER, we

deem this criterion to have been

satisfied." EPA found that even if

control measures had been employed,

we cannot be certain they would have

prevented exceedances at the monitor,

and that EPA's monitor siting rules

provide that the monitor should not be

operated at such a time and place for the

purposes for determining attainment. 72

FR at 49062. We note that the criteria

under the EER do not apply for the

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purposes of our alternative ground, that

the monitor was not properly sited. See

72 FR at 49060-49061. Thus EPA is

finalizing its determination that there

are two independent bases for

determining that the exceedances

recorded at the SRR in September and

October, 2006 should be excluded from

consideration in determining whether

the SJV has attained the PM-10

standard: (1) The monitor was not

properly sited, under the principles

established in part 58, appendix E, and

(2) the construction activity constitutes

an exceptional event under EPA's EER.

Comment 5: Earthjustice states that

EPA cannot point to any statutory or

regulatory authority that allows it to

treat wind-entrained particulate matter

pollution from land that has been

disturbed by human activities, i.e.,

agriculture or construction as "natural."

Earthjustice observes that, while EPA

cites preamble language in the EER

regarding high winds, this language was

never codified even though the final

rule does contain provisions relating to

the treatment of other anthropogenic

sources such as fireworks and

prescribed fire. Earthjustice suggests

that even though a natural event is

defined in 40 CFR 50.1(k) as "an event

in which human activity plays little or

no direct causal role," EPA attempts to

define an event in which windentrained dust from agricultural and

industrial operations as natural.

Earthjustice cites legislative history of

the 1990 Clean Air Act Amendments

(CAAA) to support its contention that

this result defies logic and flies in the

face of Congressional intent as

evidenced by Congress's refusal to

excuse dust storms from Mono and

Owens lakebeds because they were

human-caused. Earthjustice claims that

if the measures in place are not enough

to prevent exceedances due to windentrained dust, then Congress intended

that additional controls be required.

Response 5: Section 319, as amended,

defines an exceptional event as an event

that affects air quality, is not reasonably

preventable or controllable, is a natural

event or is an event caused by human

activity that is unlikely to recur at a

particular location. Under this

definition, for an event to qualify as an

exceptional event, both natural events

and events caused by human activity

must be events that are not reasonably

preventable or controllable. Therefore,

Earthjustice's conclusion that

designating an event "natural" would

"allow air agencies to avoid controls" is

erroneous. An agency flagging data as

due to an exceptional event, including

a high wind event, will be required to

show that the event was not reasonably

preventable or controllable. In the

preamble to the final rule, EPA

explained how it would evaluate

whether an agency had been able to

successfully demonstrate that an event

met this criteria by taking into account

the controls in place, the wind speed,

and other factors. 72 FR at 13565-

13566, 13576-13577. As explained

elsewhere in our responses to comments

below, in this particular instance the

District's Regulation VIII (general

fugitive dust rules) and Rule 4550

which limits fugitive dust emissions

specifically from agricultural operations

through Conservation Management

Practices (CMPs) were in place. In

addition, the District has adopted and is

implementing EPA-approved best

available control measures (BACM) for

all significant sources of PM-10 in the

SW.

Earthjustice incorrectly states that if

an event is classified as a natural event,

a state would be able to "avoid

controls." In the proposed EER, EPA

explained that it was proposing to treat

high wind events that result in

exceedances or violations as a natural

event provided a clear causal

relationship between the wind event

and the measured exceedance was

established and contributing

anthropogenic activities were "reasonably well-controlled." 6 In the

final rule, after considering the

comments on high wind events

including on the terminology and the

definition, EPA adopted an approach

that considers high winds a natural

event if contributing anthropogenic

activities are controlled through "reasonable and appropriate measures."

72 FR at 13566. To qualify as a natural

event (a subset of exceptional events

under the rule) a state must

demonstrate, among others, that dust

from contributing anthropogenic

sources was "reasonably well-controlled

at the time the event occurred." 72 FR

at 13576. The EER, therefore, has

already defined what constitutes a high

wind event through appropriate notice

and comment rulemaking. Thus, the

question of whether a high wind that

causes exceedances or violations due to

entrainment of dust from anthropogenic

sources can be defined as a natural

event is not an issue that is open for

comment in this rulemaking. In this

6 EPA made this statement in the context of PM2.5 because at the time, the Agency was considering

adopting the PM1O-2.5 standard and noted that

states would be expected to have appropriate

controls for contributing anthropogenic emissions

under the definition of the proposed PM10-2.5

indicator. The Agency, eventually, did not finalize

the PM10-2.5 indicator and instead retained the 24-

hour PM-IO standard.

case, the Agency has only asked for

comments on whether the particular

high wind event met the criteria and

procedures established under the rule,

e.g., establishing a causal connection,

reasonable controls on anthropogenic

sources, wind speed and direction, etc.,

and not on whether these criteria are

appropriate.

Earthjustice cites to the legislative

history of the 1990 CAAA, for the

discussion on Owens and Mono

lakebeds where Congress indicated that

diversion of water from these lakes

created an anthropogenic source of dust.

From this Earthjustice contrives an

overly-broad conclusion that any "dust

from lands disturbed by human

activity" must be treated as an

anthropogenic rather than a natural

event. Under this proposition gale-force

winds, for example of 100 mph, in an

urban area could not be treated as a

natural event because human activity

would be a contributing factor. . As a matter of record, the legislative

history also demonstrates that EPA

concurred with Congress that the

diversion of water created an

anthropogenic source of dust in the

Owens and Mono lakebeds. Pub. L. 101-

549, CAA Amendments of 1990 House

Report No. 101-290(1), May 17, 1990.

EPA, however, does not interpret the

statutory language in a manner that

considers any anthropogenic

contribution to a natural event as

transforming it into an anthropogenic

event. In the Mono and Owens lakebed

situation, EPA believed that the

anthropogenic contribution was such

that dust blown from those areas should

be treated as anthropogenic rather than

natural events. In other high winds

instances, however, where there were

anthropogenic contributions with

adequate controls in place, EPA treated

the high wind events as natural events.

In its Natural Events Policy, EPA

stated that it would treat a high wind

event as a natural event even if the dust

originated from anthropogenic sources,

provided best available control

measures were in place. Memorandum

from Mary D. Nichols, Assistant

Administrator for Air and Radiation to

Regional Air Directors, "Areas Affected

by PM-10 Natural Events," May 30,

1996 (NEP) at 7. Congress was cognizant

of EPA's existing policies on natural and

anthropogenic events and how EPA

interpreted and implemented these

policies. In amending section 319,

Congress specifically required EPA to

continue to apply its NEP during the

exceptional events rulemaking process,

an unlikely action if it disagreed with

EPA's interpretation of natural events.

Section 319 (b)(4)(B). Under the NEP,

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EPA treated high wind events as natural

events and reasonably well-controlled if

contributing anthropogenic sources had

BACM in place. NEP at 7. During the

exceptional events rulemaking, EPA

sought comment on a number of options

for mitigation requirements, including

whether to continue to require BACM

for such events. After considering all

comments on the proposed options,

EPA explained in the preamble to the

final rule that it would continue to

require that anthropogenic sources

contributing to high wind events be

well-controlled through reasonable and

appropriate measures. 72 FR at 13566.

EPA, therefore, believes its

interpretation of a high wind event as

set forth in the preamble to the EER

conforms to congressional intent and

the requirements of section 319.

Also, in response to Earthjustice's

assertion that EPA cites no statutory or

regulatory authority that permits us to

treat high wind as a natural event, as

discussed above, Congress was aware of

EPA's interpretation of natural events as

evidenced by the statutory reference to

the NEP (Section 319(b)(4)(B)) and it is

self-evident that volcanic, seismic, high

wind, and other similar events are

natural events under section 50.1(k) of

the EER. Therefore, EPA did not find it

necessary to specifically list these

events as exceptional events in the final

rule. When asking for comments in the

proposed rule, we noted that some of

these exceptional events (including

volcanic, seismic and high wind events)

have "unusual characteristics" and

needed a fuller discussion in the

preamble regarding how states may

meet the requirements established in the

EER. 71 FR at 12605.EPA believed that

this explanation in the preamble was

sufficient to assist states in developing

their demonstration requirements and

did not make. it necessary to specifically

list these events as exceptional events in

the final rule.

Comment 6: Earthjustice claims that

even if EPA had codified the preamble

language allowing dust from lands

disturbed by human activity to be

excused, EPA offers no evidence to

show whether the sources that allegedly

were responsible for the dust were

reasonably well controlled at the time

the event occurred. Earthjustice states

that EPA must show that the sources

were actually controlled, not just that

they were subject to controls.

Earthjustice believes that reasonable

controls would have prevented dust

from being entrained by the stated wind

speeds and that if the winds at issue

picked up the large amounts of

particulate concentrations claimed, then

by definition, these sources were not

reasonably controlled. With respect to

September 22, 2006, Earthjustice asserts

that the fact that the District claims that

the dust came from anthropogenic

sources being scoured by winds under

25 mph for a short period of time means

that reasonable measures could not have

been in place. Therefore, Earthjustice

claims that either the dust was not

caused by wind or the sources did not

have reasonable controls that would

have prevented the event. With respect

to October 25, 2006, Earthjustice asserts

that none of the 90 inspections

conducted by the District was in or

around the Lemoore/Corcoran area

where the dust allegedly originated.

Response 6: With respect to

reasonable controls, in the preamble to

the EER we explained that "ambient

particulate.matter concentrations due to

dust being raised by unusually high

winds will be treated as due to

uncontrollable natural events where

* * * the dust originated from -

anthropogenic sources within the State,

that are determined to have been

reasonably well-controlled at the time

that the event occurred, or from

anthropogenic sources outside the

State.* * * In cases where

anthropogenic sources are determined

to have contributed to exceedances or

violations due to high wind events at air

quality monitoring sites, per our

decision in this rulemaking concerning

the action that States must take to

mitigate the impact of exceptional

events on public health * * * States

must take reasonable and appropriate.

measures to mitigate the impact

associated with the event on public

health." 72 FR at 13576-13577.

As we observed in our proposed

affirmation rule, Regulation VIII and

District Rule 4550 were in place at the

time of the events in question.

Furthermore, we noted that EPA has

approved the District's BACM

demonstration for all significant sources

of PM-10 in the SJV as meeting CAA

section 189(b)(1)(B). See 72 at 49053

and 49057. Moreover, the District

conducted' numerous inspections of

PM-10 sources in the SJV on September

22 and October 25, 2006. Thus controls

beyond those deemed "reasonable"

were being implemented and enforced

in the SJV on those dates.

Contrary to Earthjustice's apparent

belief, there is nothing in either the

preamble to the EER or the rule itself

that requires EPA to show that all

sources were "actually controlled" at

the time of the events. Moreover, there

are thousands of fugitive dust sources in

the SJV,7 an area of nearly 25,000 square

miles which constitutes approximately

16 percent of the geographic area of

California. 2003 PM1O Plan for the SJV

at 2-1. As a result it would be a

practical impossibility for the District, a

publicly-funded agency, to determine

whether every source was in

compliance with its regulations on any

given day, the standard Earthjustice

evidently espouses. The fact that the

District conducted 90 inspections on

October 25, 2006 and none was in

Lemoore or Corcoran simply illustrates

the magnitude of the task Earthjustice

suggests should be mandatory for the

exclusion of data from an exceptional

event.

Finally, Earthjustice presents no

support for its contention that controls

on anthropogenic sources beyond those

already in place would have prevented

dust from being entrained by the stated

wind speeds. Earthjustice simply asserts

(see comment 7) without evidence that

there are numerous measures available

that could have prevented or reduced

entrainment of particulate matter. As we

have shown, reasonable controls were in

place on the days in question and the*

exceedances occurred notwithstanding

those controls. See also our response to

comment 7 below.

Comment 7: Earthjustice further

asserts that there are numerous

measures available that could have

reduced or prevented the entrainment of

particulate matter by winds above the

entrainment threshold of 18 mph, many

of which are included but not required

by the District's agricultural CMP rule

and Regulation VIII. Earthjustice

provides a number of examples that it

claims are effective in reducing or

eliminating erosion and transport of soil

particles during high wind events.

Earthjustice concludes that even

assuming 100 percent compliance with

the agricultural CMP rule and

Regulation VIII, "not one of these

measures is required to-be in place by

these so-called BACM level controls."

Thus Earthjustice alleges that sources

could be 100 percent in compliance

with District rules and still not be doing

anything to prevent wind-generated

entrainment of particulates.

Response 7: As we stated in the

preamble to the EER, where wind speed

results in particulate matter

exceedances, a clear causal relationship

must be demonstrated between the

exceedances measured at the air quality

monitoring site and the high wind event

7 For example, the District has approved over

6,000 applications under Rule 4550. "Conservation

Management Practices Program Report for 2005,"

January 19, 2006, SJVAPCD at 5.

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in question in order for data affected by

these events to be excluded under the

weight of evidence approach. 72 FR at

13566, footnote 11. We further stated

that "EPA will consider in the weight of

evidence analysis winds that produce

emissions contributed to by

anthropogenic activities that have been

controlled to the extent possible through

use of all reasonably available

reasonable and appropriate measures."

Id.

EPA approved Regulation VIII-as

BACM on February 17, 2006 (71 FR

8461) and Rule 4550 as BACM on

February 14, 2006 (71 FR 7683). The

control measures in these rules are

designed to reduce fugitive dust

emissions. A number of the measures

that sources can choose in compliance

with the rules are also specifically

designed to reduce or prevent

entrainment of particulate matter during

wind events. See, for example, in the

"List of Conservation Management . Practices," May 20, 2004, for Rule 4550

in the "Cropland-Other" category the

following measures: alternate till, bulk

materials control, cover crops,

permanent crops, surface roughening,

wind barrier.

EPA determines what controls

constitute "all reasonably available

reasonable and appropriate measures"

on a case by case basis. With regard to

the SJV, EPA has agreed with the

District's finding that "* * * unlike

other arid western PM-10 serious

nonattainment areas, the SJV does not

have a regular and repeated windblown

dust problem." 71 FR at 7686. In

addition, in responding to a comment

on its proposed approval of the 2003

PM-10 serious area plan for the SJV,

EPA observed that "[oinly five PM-10

exceedance days spanning a 13-year

period were identified as associated

with strong winds." 69 FR 30006, 30033

(May 26, 2004). Under these

circumstances, EPA believes that it was

not necessary for the District's rules to

mandate the selection of windblown

dust measures and that the BACM

controls being implemented in the SJV

constitute "all reasonably available

reasonable and appropriate measures."

Comment 8: Earthjustice argues that

the events at issue cannot be claimed as

exceptional because the District did not

make its demonstration according to the

procedures outlined in the EER.

Specifically, Earthjustice states that

while EPA relies on demonstrations

prepared by the District in April and

May 2007, the only opportunity for

public comment provided by the

District was on the February 2007

version of the analysis. Moreover,

Earthjustice states, only 15 calendar

days were provided for comment on the

February version and the preamble to

EPA's EER provides for a 30-day

comment period. Earthjustice states that

to the extent that EPA believes preamble

statements to be enforceable, the event

cannot be deemed exceptional because

the District did not meet the procedural

requirements in the EER. Earthjustice

also asserts that since the District's

rationale for flagging the September 22,

2006 exceedances changed so markedly

as to make comments on the first draft

irrelevant, the documentation should

have been put out for a second round of

public comment. Earthjustice further

states that insofar as the EER applies to

EPA's affirmation action, the District

also failed to meet its procedural

requirements that documentation

justifying exclusion must be submitted

no later than 12 months before a

regulatory decision is made. Here,

Earthjustice asserts, EPA based its

regulatory decision to find the SJV in

attainment on the exclusion of data

before any demonstration supporting

the exclusion was drafted by the State.

Response 8: The public did have an

adequate opportunity for review and

comment on the State's documentation

of the exceptional events. Earthjustice

complains that the State did not provide

a 30-day comment period on the

documentation of exceptional events,

and further contends that there was no

opportunity to review and comment

after the District revised this.

documentation. EPA's EER provides

that a state that has flagged data as being

due to an exceptional event and that is

requesting exclusion of the data shall

"after notice and opportunity for public

comment, submit a demonstration" to

EPA, along with any public comments

it received. 40 CFR 50.14(c)(3)(i).

With respect to Earthjustice's first

contention regarding the 30-day

comment period, the EER contains no

such requirement. The language cited by

Earthjustice that purports to

characteriz6 30 days as a requirement is

found in the preamble only, 72 FR

13574, and does not reflect the language

of the rule. Thus, while indicative of a

period that EPA would deem

reasonable, the preamble language

regarding a 30-day comment period

does not serve to make such a period

mandatory. Nor does it mean that a

shorter comment period should be

deemed unreasonable. Earthjustice

concedes that in February 2007 the

District provided a two week comment

period for its initial documentation of

the September, October and December

2006 exceedances. The District received

no comments or requests for extension

of the comment period.8 On March 21,

2007, Earthjustice filed with EPA a

petition to withdraw EPA's October

2006 attainment determination, which

cited to and discussed the District's

initial documentation. This petition,

however, was directed to EPA and not

to the District or the State. Earthjustice,

having failed to request an extension of

the comment period and to address

comments to the District and the State,

cannot now be heard to complain about

* the length of the initial comment period.

Subsequently, the District posted on

the "Public Notices" section of its Web

site revised versions of the

documentation for exceedances on these

three days at issue, and thus the revised

documentation was also available for

public review and comment. These

revised versions modified and clarified

the technical analysis of the-high wind

events. For the September 22 event, the

District.posted on its Web site a revised

set of documentation, dated April 20,

and CARB subsequently submitted it to

EPA. The District submitted an

Addendum to CARB on May 23, 2007,

which it again posted on its Web site,

and CARB later submitted it to EPA. 72

FR at 49050. For the October 25 event,

the District posted on its Web site a

revised set of documentation, dated

April 23, and CARB again subsequently

submitted it to EPA. 72 FR at 49054. For

the December 8, 2006 event, which

Earthjustice does not contest is an

exceptional event, the District revised

its documentation and submitted it to

CARB on May 23, 2007, and posted it

on its Web site. At CARB's request the

District made further revisions which it

submitted to CARB on June 6, 2007, and

posted on its Web site. 72 FR at 49057.

The State later submitted it to EPA. Id.

Thus each set of revised

documentation was available to the

public in the "Public Notices" section of

the District's Web site for months prior

to EPA's August 15, 2007 issuance of its

proposed rule, and EPA has found no

indication that comments were

submitted or inquiries received about

the revised documentation. EPA

therefore believes that there was

adequate opportunity for the public to

comment on the revised demonstrations

made by the District and CARB. The fact

remains that no comments were

submitted to the District or CARB on the

original versions of the documentation,

nor does it appear that there were any

requests for an extension of the

comment period that closed on March 5,

6 Contrary to Earthjustice's contention (EC at 3,

footnote 3), EPA in its proposal did nothing to

"hide" the date that the documentation became

available. EPA simply stated that the

documentation became available in February.

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2007. Similarly, EPA knows of no

comments or requests regarding the

comment period that were submitted on

the subsequent versions of the

documentation that were posted on the

District's Web site.

Earthjustice further contends that EPA

has failed to meet the requirement that

a demonstration be submitted to EPA no

later than 12 months "prior to the date"

a regulatory decision "must" be made

by EPA. EER, section 50.14(c)(3)(i). We

note initially that this section of the EER

is designed for EPA's benefit, to furnish

adequate time to review documentation,

and it is thus for EPA to determine

whether we require the full time allotted

by the rule.

Furthermore, in the preamble we "recognize that special circumstances

could dictate more expedited data

delivery, flagging, and minimal

demonstrations * * *." 72 FR at 13571,

In this case, where EPA is acting to

affirm a prior attainment determination

that recognized the need for additional

evaluation of preliminary data, EPA

finds there is value in proceeding

expeditiously to obtain and review the

State's documentation of those data and

surrounding exceptional events.

Moreover, this action to affirm EPA's

attainment determination is not a

regulatory decision that "must" be made

by a certain date, and therefore the 12-

month requirement is not applicable.

Finally we note that the bulk of the

revised documentation for the

September and October 2006

exceedances at issue here was submitted

to EPA in April and May 2007, well in

advance of EPA's final regulatory

decision in this rulemaking. Thus EPA

finds that, for all the reasons set forth

above, the timing of submission of the

documentation here was adequate for

purposes of section 50.14(c)(3)(i) of the

EER.

Earthjustice also complains that in

issuing the October 2006 determination

of attainment, EPA made the

determination to finally concur in the

flagging of exceptional events prior to

receiving the State's documentation.

The procedural validity of the October

2006 determination, and whether it

provided adequate notice and cohnment,

is not at issue in today's rulemaking.

Thus Earthjustice's contentions with

regard to notice and comment issues

arising from the October 2006

rulemaking are misplaced here.

Moreover, Earthjustice's contentions

are belied by the facts. EPA's October

2006 determination of attainment made

clear that the data showing exceedances

on September 22, 2006 were

preliminary. EPA stated that once

quality-assured data were available,

EPA would review those data and

CARB's request with respect to them,

evaluate whether the data qualified. for

exclusion as caused by exceptional

events, and determine whether the

determination should be withdrawn.9

See discussion in EPA's proposed "

affirmation rule, 72 FR at 49064. See

also 71 FR 63642.

In today's rulemaking EPA has

fulfilled its promise by providing ample

opportunity for comment on the State's

documentation and EPA's evaluation of

exceedances under the EER prior to

issuing a final concurrence. As EPA

noted in its proposed affirmation rule,

our purpose here is not to take comment

on the issues raised by the 2006

attainment determination, except to the

extent that they affect EPA's ability to

determine that the SJV continued to

attain the PM-10 standard through

2006. 72 FR at 49047. The October 2006

rulemaking, which is not at issue in this

current action, did not purport to be a

final concurrence on the State's

exceptional events documentation for

the September 22, exceedances. Today's

rulemaking addresses quality-assured

data for September, October and

December 2006, for which the State has

provided exceptional events

documentation.

Comment 9: Earthjustice states that

EPA argues that at the time of the

attainment finding the Agency merely

deferred its determination of the impact

of the preliminary data until they could

be quality assured and the State had an

opportunity to show that.the

exceedance was caused by an

exceptional event. Earthjustice claims

that the data at issue had in fact been

processed by the CARB laboratory and

thus already quality assured by the State

when EPA was notified of the

September 22, 2006 exceedances. In this

respect, Earthjustice believes that EPA

mischaracterized CARB's October 17,

2006 letter to EPA to mean that the data

from the filter analyses were

preliminary. Thus, Earthjustice

concludes that EPA's decision not to

consider the September 22 exceedances

in its October 17, 2006 attainment

finding is a violation of law and an

abuse of discretion. Earthjustice also

states that this violation of the

Administrative Procedure Act (APA)

cannot be cured with this rulemaking's

post-hoc rationalization. Earthjustice

interprets 40 CFR 51.14(c)(2)(ii) to mean

that an exceedance must be considered

9 As EPA noted in its proposed affirmation rule,

EPA's October, 2006 final determination did not

ignore the exceedances that occurred in October

2006 since these occurred eight days after EPA

promulgated its final determination of attainment.

72 FR at 49064.

an exceedance unless and until EPA

gives -final concurrence following a

thorough, convincing, publicly

reviewed demonstration that the data

can be ignored.

Response 9: As noted in the response

to comment 8 above, the adequacy and

validity of the October 2006 rulemaking

is not at-issue in this proceeding.

Whether the APA was violated in that

rulemaking is not at issue here. In this

current rulemaking, EPA thoroughly

reviewed and proposed to concur with

the documentation submitted by the

State, and provided full opportunity for

public review and comment before

finalizing its concurrence with the flags,

and before excluding the data from a

final determination of attainment. The

purpose of this rulemaking is to assess

the quality-assured data and

documentation of exceptional events

claims in the context of notice and

comment rulemaking. Thus, even if, for

the sake of argument, we accept

Earthjustice's contentions that there

were procedural deficiencies in the

October 2006 rulemaking, EPA would

have cured any such deficiencies with

the procedures it has followed in this

rulemaking.

In any event, Earthjustice is incorrect

in its assertions that, at the time of the

October 2006 rulemaking, data for

September 22, 2006 were not

preliminary and had been quality

assured. The data for the September 22

exceedances were plainly preliminary.

*An EPA staff employee e-mailed a

CARB branch chief an informal request

to "find out if there was any preliminary

data available from the ARB lab." E-mail

from Bob Pallarino, EPA, to Karen

Magliano, Chief, Air Quality Data

Branch, Planning and Technical

Support Division, CARB, October 12,

2006. On October 13, 2006 she

forwarded to EPA an informal e-mail

originating from a CARB staffer. The email included data from filter analyses

of several monitors, which set forth

numerical values representing

monitored data. That e-mail stated

clearly: "Of course, all the data is

preliminary." E-mail from Scott

Randall, Inorganic Laboratory Section,

Northern Laboratory Branch, CARB, to

Cliff Popejoy, Inorganic Laboratory

Section, Northern Laboratory Branch,

CARB, October 13, 2006 (forwarded to

Bob Pallarino by Karen Magliano). Thus,

CARB represented and EPA reasonably

believed that the data showing

monitored exceedances were "preliminary" and not quality assured.

Indeed, EPA believed that the normal

data validation and verification

processes had not been undertaken, and

that, in fact, the data had not been

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submitted to EPA's Air Quality System

(AQS) database 10 or certified by CARB.

The message that the CARB staffer sent was in response to an informal request

from EPA staff, and in that context EPA

did not consider it an official CARB

submission of data. The informal and

preliminary nature of the information is

further indicated by the fact that the

numerical values for PM-10 reported in

the e-mail were not accompanied by

scientific units, which would be

essential documentation in any official

submission of quality-assured data, and

could only be inferred by EPA based on

usual practice.

EPA did not therefore, as Earthjustice

contends, "mischaracterize" the data

from the filter analyses, when it

described the data as "preliminary." EC

at 11, footnote 9. CARB itself

characterized the data as preliminary

when it forwarded them to EPA.

In any event, as noted above, what is

at issue in this rulemaking is EPA's

concurrence on the exceptional events

documentation for quality-assured data

subsequent to EPA's October 2006

determination, and not the procedural

validity of that prior determination. It is

clear in this rulemaking that EPA is

determining to finally concur on the

State's flagging of the data only after

EPA has conducted notice and comment

rulemaking on documentation that the

State has submitted to support those

flags.

Comment 10: For the wind events,

Earthjustice maintains that the data

offered by the District and relied upon

by EPA does not demonstrate a "clear

causal relationship" because

exceedances were being measured

before the events occurred.

Response 10: EPA disagrees with

Earthjustice's conclusion for the reasons

discussed below. Initially it is important

to understand that the 24-hour PM-10

NAAQS, 150 gig/m3, is a 24-hour

average concentration. This means that

individual hourly concentrations at any

given monitoring location may exceed

150 gg/m 3 , but until all 24 hours of a

day are sampled a complete daily

reading cannot be calculated. Therefore

it-is incorrect to characterize the data, as

Earthjustice does, as showing that

NAAQS exceedances were measured

before the wind events.

To support its contention, Earthjustice

states that fugitive dust sources in the

Lemoore area on September 22 and

October 25, 2006 could not have caused

the Corcoran NAAQS exceedances since

the first hourly PM-10 concentrations

exceeding 150 gg/m 3 at Corcoran

occurred either an hour before or at the

'same time as the Lemoore

meteorological station recorded wind

speeds exceeding the District's

threshold wind speed. From these facts,

Earthjustice concludes that since the

monitor was already recording an

hourly concentration above the NAAQS

before the dust-laden winds from

Lemoore 11 arrived on September 22 and

October 25, the monitor could not have

been impacted by them.

In evaluating this conclusion it is

instructive to look at any number of

days where the level of an hourly PM10 concentration at Corcoran exceeded

the level of the 24-hour NAAQS, yet the

24-hour average concentration for the

day did not exceed the NAAQS. October

26 and 27, 2006, March 26 and 27, 2007,

April 17, 2007, May 2 and 21, 2007, and

June 5, 2007, all experienced one or

more hours exceeding the level of the

NAAQS yet the NAAQS for the day was

not exceeded. See Table I below. The

most extreme example is April 17, 2007,

on which four continuous hourly

concentrations greater than 150 gg/m 3

were recorded from 4:00 p.m. Pacific

Standard Time (PST) through 7 p.m.

PST (181, 466, 460, 236 gg/m 3

, respectively), yet the overall 24-hour

average concentration for that day was

only 91 gg/m 3.

TABLE 1.-NON-EXCEEDANCE DAYS WITH ONE OR MORE HOURLY PM-10 CONCENTRATIONS ABOVE 150 gG/M3 AS

MEASURED AT CORCORAN

Oct 26 Oct 27 Mar 26 Mar 27 Apr 17 May 2 May 21 Jun 5

Hour* 2006 2006 2007 2007 2007 2007 2007 2007

(gg/m3

) (gg/m3

) (4g/m3 ) (ig/m3

) (gg/m 3) (gg/m 3

) (gg/m 3

) (gg/m3

)

0 .................. 157 79 8 0 27 18 17 21

1 ....................................................................... 143 135 11 0 26 14 16 15

2 ....................................................................... 146 126 8 1 30 13 15 12

3 ....................................................................... 147 89 11 3 31 11. 13 13

4 ....................................................................... 161 69 9 3 29 12 15 24

5 ....................................................................... 175 91 1.0 3 63 26 16 24

6 ....................................................................... 194 221 22 5 73 23 25 22

7 ....................................................................... 232 184 19 7 34 25 28 19

8 ....................... 115 158 16 0 34 20 35 14

9 ....................................................................... 66 149 12 8 33 13 42 18

10 ..................................................................... 53 107 2 1 22 16 59 23

11 ..................................................................... 92 117 6 18 21 16 66 35

12 ..................................................................... 128 86 8 122 15 20 72 61

13 ..................................................................... 128 70 17 162 26 22 74 87

14 .................................................................... 133 91 7 152 54 25 85 77

15 ................................................................... 115 69 7 190 138 28 84 254

16 ..................................................................... 126 87 18 54 181 151 94 169

17 ..................................................................... 152 116 19 86 466 239 195 145

18 ................... : ................................................. 151 140 128 47 460 61 180 173

19 ..................................................................... 145 116 407 8 236 • 27 127 235

20 ..................................................................... 161 126 48 17 136 13 10A Rr

"OData from air monitors operated by state and

local agencies in compliance with EPA monitoring

requirements must be submitted to AQS. Heads of

monitoring agencies annually certify that these data

are accurate to the best of their knowledge. See 71

FR at 40953.

11 Throughout this final rule when we refer to

Lemoore, Corcoran and Bakersfield, we mean the

Lemoore area, the Corcoran area, and the

Bakersfield area. When analyzing data, the State,

District and EPA use information collected from

specific points where the monitors are located,

whether meteorological monitors or PM-10

monitors. Since it is not possible, due to finite

resources, to monitor pollutant or meteorological

parameters in every location, monitoring locations are chosen to be representative of larger areas. The

size of the area represented by a monitor is

dependent on a number of factors, including, but

not limited to, the parameter being measured (e.g.,

wind speed, PM-10 concentration), the overall

terrain (e.g., urban, rural, valley, etc.) and any

localized characteristics that may influence the

parameter being measured (e.g., obstructions such

as buildings or trees).

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TABLE 1.-NON-EXiEEDANCE"DAYS WITH ONE OR MORE-HOURLY PM'10 CONCENiATIONS •ABOVE 150 g/G/M 3-A s

MEASURED AT CORb ORAN-Continued

Oct 26 Oct 27 Mar 26 Mar 27 Apr 17 May 2 May 21 Jun 5

Hour* 2006 2006 2007 2007 2007 2007 2007 2007

(jig/m 3) (jig/m3) (jig/m3

) (gg/m3) (gg/m3) (jig/m3

) (jig/m3) (jig/m3)

21 ...................................................................... 147 118 16 15 34 14 66 34

22 ............................. . ..... 124 141 4 9 14 29 61 27

23 .................................................................... 130 105 0 10 7 16 66 49

Daily Average ................................................... 137 116 34 38 91 36 65 67

Source: EPA Air Quality System Database.

*Hours are in PST. All State and local ambient air pollutant monitoring equipment in California operates on PST all year and is never adjusted

for Daylight Savings Time. For example, hour 12 in the table is 1 p.m. Pacific Daylight Time (PDT).

Thus, as can be seen from Table 1 and

the discussion above, Earthjustice is

incorrect when it concludes that dustladen winds from Lemoore could not

have affected the Corcoran monitor on

September 22 and October 25, 2006

because concentrations above the level

of the NAAQS were recorded at the

monitor before the winds arrived By

failing to account for all 24 hours of the

day, Earthjustice has misinterpreted

how EPA determines compliance with

the 24-hour PM-10 NAAQS.

Earthjustice further states that fugitive

dust sources in the Lemoore area on

September 22 and October 25, 2006

could not have caused the Corcoran

NAAQS exceedances since the first

hourly PM-10 concentrations exceeding

the level of the NAAQS at Corcoran

occurred either an hour before or at the

same time as the Lemoore

meteorological station recorded wind

speeds exceeding the 18 mph threshold

speed. 12 Earthjustice notes that on

September .22 the 6:00 a.m. hourly PM10 concentration at Corcoran exceeded

the. level of the NAAQS and wind

speeds recorded in Lemoore did not

exceed the threshold wind speed until

7 a.m. On October 25 the Corcoran

hourly PM-10 concentration first

exceeded the level of the NAAQS at 6

a.m., the same time the Lemoore

meteorological station recorded winds

in excess of the threshold speed. 13

However, as set forth below, the data

show that on September 22 the winds at

Lemoore began exceeding the threshold

speed at 6 a.m. PST, and likely began

affecting the concentrations at the

Corcoran monitor by the time

concentrations were recorded at 7 a.m.

PST.14 On October 25, the winds

recorded at Lemoore exceeded the

threshold speed at*5 a.m. PST and'likely

affected the concentrations recorded at'

the Corcoran monitor beginning at 6

a.m. PST. Thus on both days there wasat most a period of one or two hours

where the concentrations at the monitor

that exceeded the standard might not

have been attributable to the winds from

Lemoore.

Nevertheless, based upon

meteorological data, EPA believes that

the high concentrations measured

beginning at 7 a.m. PST on September

22 and 6 a.m. on October 25 and

continuing throughout the day were due

to transport of dust by high winds in the

Lemoore area, and thus resulted in the

exceedance of the 24-hour NAAQS. In

reaching this conclusion, EPA evaluated

the available hourly concentration data

from the Corcoran monitoring site 15

from October 1, 2006 through June 30,

2007 to determine how often the

Corcoran site recorded high hourly

concentrations in the morning. While

high morning concentrations were

relatively rare in the data- we evaluated,

when they do occur they do not always

result in a 24-hour average

concentration that exceeds the NAAQS.

Table 2 below compares days with high

morning concentrations, October 26 and

27, 2006, that did not exceed the 24-

hour NAAQS with September 22 and

October 25, 2006, days with high

morning concentrations that ultimately

did exceed the 24-hour NAAQS.

TABLE 2.-CORCORAN HOURLY CONCENTRATIONS ON SEPTEMBER 22, OCTOBER 25, OCTOBER 26 AND OCTOBER 27,

2006

September 22, October 25, October 26, October 27,

Hour (standard time) 2006 2006 2006 2006

(conc. ig/rn3

) (conc. jg/m3) (conc. jg/m3

) (conc. jg/m3

)

0 .......................................................................................................................

1 .......................................................................................................................

2 .......................................................................................................................

3 .................................................................................................................... 4 ................................................... 5 ....................................................................................... : ..............................

157

143

146

147

161

175

12 The State cites a 2002 California Regional PM10/PM-2.5 Air Quality Study (2002 CRPAQS

Study) that established a dust-generating wind

speed threshold of 17.8 mph to support its

conclusion that these wind speeds were sufficient

to erode sojls and entrain dust into the atmosphere

as well as to exacerbate the entrainment of dust

from the anthropogenic activities. See our proposal

at 72 FR at 49052.

13 As will be discussed further below, EPA

uncovered an error in the reporting of the

meteorological data from Lemoore. The data for

Lemoore winds were reported in the State's

documentation in PDT as opposed to the other

meteorological and PM-10 concentration data

which were reported in PST. This means that the

wind speeds increased an hour earlier than had

previously been reported in the State's

documentation. Therefore when Earthjustice refers

to wind data from Lemoore at 6 a.m. and 7 a.m.,

the actual times were 5 a.m. and 6 a.m. PST.

14 Hourly concentrations recorded by PM-10

continuous monitors are reported in the beginning

hour. That is, an hourly average concentration

calculated from readings taken between the hours

of 7 a.m. and 8 a.m. would be reported as the

average hourly concentration for 7 a.m.

15 In October 2006, the SJVAPCD began the

routine submittal of continuois PM-10 data to

EPA's AQS database. These data are recorded with

a special purpose Federal Equivalent Method (FEM)

monitor and the District began submitting these

data in response to new requirements contained in

EPA's revised monitoring regulations (71 FR 61236,

October 17, 2006). Prior to this regulation revision,

air monitoring agencies were not required to submit

special purpose monitoring data to the AQS

database. Therefore, the amount of certified

pollutant data available for our analysis is limited

to October 1, 2006 through September 30, 2007.

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TABLE 2.-CORCORAN HOURLY CONCENTRATIONS ON SEPTEMBER 22, OCTOBER 25, OCTOBER 26 AND OCTOBER 27,

2006-Continued

September 22, October 25, October 26, October 27,

Hour (standard time) 2006 2006 2006 2006

(conc. gg/m3 ) (conc. gg/m3 ) (conc. gg/m 3

) (conc. gg/m3

)

6 ......................................................................................................

170 269 194 221

7 ......................................................................................................

: ....... 306 346 232 184

8 ......................................................................................................

519 651 115 158

9 ......................................................................................................

531 674 66 149

10 .....................................................................................................725 777 53 107

11 .....................................................................................................

695 794 92 117

12 .....................................................................................................521 681 128 86

13 ..................................................................................................... ................. 318 580 128 70

14 .....................................................................................................

276 510 133 91

15 .....................................................................................................

247 302 115 69

16 .....................................................................................................269 179 126 87

17 .....................................................................................................

283 184 152 116

18 .....................................................................................................

258 180 151 140

19 .....................................................................................................

223 178 145 116

20 .....................................................................................................

150 166 161 126

21 .................................................................................................................... 144 201 147 118

22 .....................................................................................................

138 183 124 141

23 .....................................................................................................

144 150 130 105

Daily average ........................................ ................................................... 261 304 137 116

Source: EPA Air Quality System Database, "Natural Event Documentation, Corcoran, Oildale and Bakersfield, California, September 22, 2006"

San Joaquin Valley Unified Air Pollution Control District, April 20, 2007 and "Natural Event Documentation, Corcoran and Bakersfield, California, October 25, 2006," San Joaquin Valley Unified Air Pollution Control District, April 23, 2007.

As can be seen from Table 2, early

morning hourly concentrations on

October 26 and 27, 2006 were

comparable to morning hourly values on

September 22 and October 25, 2006. All

of these days recorded high early

morning hourly values. However, the

hourly concentrations on September 22

and October 25, 2006 continue to

increase throughout the morning and

into the afternoon and evening while

the hourly concentrations for October 26

and 27 begin to decrease after hour 7

and then later increase slightly in the

afternoon and evening. As discussed

above, we believe the increasing

concentrations for the morning and

afternoon for September 22 and October

25 are associated with an increase in

hourly wind speeds, as measured in

Lemoore. Even if we assume that several

of the hours of high early morning

concentrations at Corcoran on

September 22 and October 25 were

caused by something other than

windblown dust, we have shown that

there would not have been an

exceedance of the 24-hour NAAQS that

day without the subsequent high hourly

concentrations that were caused by

windblown dust transported from the

Lemoore area.

Moreover, an evaluation of

meteorology in the Lemoore area on

October 26 and 27, 2007 shows that the

wind conditions on September 22 and

October 25, 2006 were much different

from October 26 and 27, days that had

high morning concentrations but

ultimately did not exceed the 24-hour

NAAQS. Table 3 below summarizes this

information.

TABLE 3.-CORCORAN HOURLY PM-10 CONCENTRATIONS AND LEMOORE HOURLY WIND SPEEDS FOR SEPTEMBER 22,

OCTOBER 25, OCTOBER 26 AND OCTOBER 27, 2006

September 22, 2006 October 25, 2006 October 26, 2006 October 27, 2006

Hour Lemoore Lemoore Lemoore Lemoore

Conc. wind- Conc. wind- Conc. wind- Conc. windjig/m3

) speed (jig/in3) speed (jig/ 3 ) speed (lig/m3

) speed

(mph) (mph) (mph) (mph)

0 .......................................................................

1 .......................................................................

2 .......................................................................

3 .......................................................................

4 .......................................................................

5 .......................................................................

6 .......................................................................

7 .......................................................................

8 .......................................................................

9 .......................................................................

10 .....................................................................

1 1 .....................................................................

12 .....................................................................

13 .....................................................................

14 .....................................................................

15 .......................................

16 ............................................. ........

12

9

10

8 - 10

8

21

21

28

29

23

17

17

21

14

5

10

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TABLE 3.--CORCORAN HOURLY PM-10 CONCENTRATIONS AND LEMOORE HOURLY WIND SPEEDS FOR SEPTEMBER 22,

OCTOBER 25, OCTOBER 26 AND OCTOBER 27, 2006-Continued

September 22, 2006 October 25, 2006 October 26, 2006 October 27, 2006

Hour Lemoore Lemoore Lemoore Lemoore

Conc. wind- Conc. wind- Conc. wind- Conc. windjig/m3

) speed (jig/m3) speed (ig/m3) speed (jig/m3) speed (mph) (mph) (mph) (mph)

17 .................................. 283 9 184 3 152 3 116 5

18 .................................................................... 258 6 180 6 151 5 140 6

19 ..................................................................... 223 8 178 8 145 7 116 ................

20 ..................................... ... ....................... 150 7 166 9 161 6 126 8

21 .................................... ............................ 144 9 201 8 147 8 118 0

22 ..................................................................... 138 0 183 8 124 8 141 3

23 ..................................................................... 144 7 150 130 6 105 8

Daily Average ........................................... 261 304 .............. 137 .............. 116 ........

Source: EPA AQS Database, Mesowest historical meteorological data, Mesowest, http://www.met.utah.edu/mesowesti

From this tabulation we can see that

while hourly concentrations measured

at Corcoran exceeded the level of the

NAAQS during the morning hours on

all four days, it was only on September

22 and October 25, 2006 that sustained

high winds in the central SJV,

represented by data from the Lemoore

area, generated enough fugitive dust to

cause an increase in the hourly

concentrations in Corcoran recorded at

and after 7 a.m. PST on September 22

and at and after 6 a.m. PST on October

25. These increases in hourly

concentrations throughout the morning

hours were a result of the high winds

that occurred in the Lemoore area.

Therefore it is. incorrect to conclude, as

Earthjustice does, that the State cannot

show a causal connection between the

winds and the 24-hour PM-10

exceedances at Corcoran on September

22, 2006 simply because the monitor

recorded an hourly concentration above

the level of the NAAQS at the same time

winds in the Lemoore area began to

exceed the threshold wind speed.

Further, contrary to Earthjustice's

contention, the winds at Lemoore on

October 25, 2006 exceeded the

threshold for entrainment prior to the

time that increased concentrations were

recorded at Corcoran and likely affected

those concentrations.

Finally, the timing of the wind speeds

shows an increase an hour earlier than

was previously reported, and thus a

corresponding earlier impact on the

monitor. In evaluating the State's

documentation we uncovered an error

in how the meteorological data from the

Lemoore meteorological station was

reported. In both its April 20, 2007

"Natural Event Documentation,

Corcoran, Oildale and Bakersfield,

September 22, 2006," and its April 23,

2007 "Natural Event Documentation,

Corcoran and Bakersfield, October 25,

2006," the District reported the Lemoore

meteorological data in PDT as opposed

to PST. This was confirmed when EPA

independently obtained data for the

Lemoore meteorological monitoring

station. As noted previously in Table 1,

all State and local ambient air pollutant

monitoring equipment in California

operates on PST year round and is never

adjusted for Daylight Savings Time.

Therefore, the information presented in

Table 3 of the State's April 20, 2007

documentation and Table 1 of the

State's April 23, 2007 documentation

incorrectly lists the time when winds in

Lemoore reached the threshold wind

speeds.

As can be seen in Table 3 above and

Tables 4 and 5 below, which reflect the

proper times for reported wind speeds,

on September 22, 2006 winds at

Lemoore reached 21 mph, exceeding the

threshold wind speed, at 6 a.m. PST,

which would be 7 a.m. PDT. On October

25, 2006 winds at Lemoore reached 22

mph at 5 a.m. PST, which would be 6

a.m. PDT. This adjustment strengthens

the State's demonstration by showing

that the winds in Lemoore affected the

PM-10 concentrations at Corcoran and

Bakersfield an hour earlier than

originally reported in the

documentation.

Comment 11: Earthjustice asserts that

the one run of the model that EPA relies

on demonstrates that there is no

connection between-the events in and

around Lemoore and the exceedances

measured in Bakersfield and Oildale.

Response 11: The model to which

Earthjustice refers is the Hybrid SingleParticle-Lagrangian Integrated Trajectory

model (HYSPLIT). However, contiary to

Earthjustice's assertion, EPA did not

rely on the State's HYSPLIT analysis to

make its decision to concur with the

State's demonstration of causal

connection. Rather, in its proposal, EPA

noted the limitations of the HYSPLIT

model, describing it merely as offering

some support to the State's

demonstration that winds were of the

appropriate intensity and direction to

move a plume of dust from the central

SJV to the Bakersfield area.16 See 72 FR

at 49052. EPA is concurring with the

State's causal connection demonstration

based on actual meteorological data

recorded on September 22 and October

25, 2006 which show winds of the

appropriate intensity and direction

occurring at the appropriate times.

The State's demonstration included

actual meteorological data that showed

that there were wind speeds between

Corcoran and Bakersfield that exceeded

the threshold wind velocities. For

example, the State's demonstration for

September 22 included meteorological

data from a monitoring station in

Alpaugh (15 miles SSE of Corcoran)

which showed winds in excess of the 18

mph threshold at 9:00 am PST and in

the 15-16 mph range until 12 pm PST.

Wind gusts at Bakersfield Meadow Field

Airport also approached the threshold

wind speed, with a gust speed of 17

mph recorded at 12:30 p.m. PST. The

hourly concentrations in the Bakersfield

area began to exceed the level of the

PM-10 NAAQS at noon and stayed

above 200 hg/m 3 for the remainder of

the day. We discussed the transport of

dust from the Lemoore and Corcoran

16 The Oildale monitoring site does not record

hourly PM-10 concentrations but uses a manual

PM-10 sampler that provides only 24-hour average

concentrations. The Bakersfield-Golden State

Highway monitoring site utilizes both a manual

sampler for average 24-hour PM-10 concentrations

and a continuous PM-la analyzer to provide hourly

concentrations. Since the Bakersfield-Golden State

Highway site and the Oildale site are relatively

close to each other (3.5 miles apart), we believe it

is appropriate to use the Bakersfield-Golden State

Highway continuous analyzer to characterize the

temporal distribution of hourly concentrations at

both sites.

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areas in our proposal at 72 FR at 49052

for September 22 and at 49055-49056

for October 25. As we indicated, the

winds between Lemoore and Corcoran

and Corcoran and Bakersfield were

sufficient to keep entrained dust

suspended so that it could be

transported.

As part of our review of the State's

documentation we researched whether

any other publicly available

meteorological data supported the

State's demonstration and found that

wind data collected at Allensworth

State Park (20 miles SE of Corcoran) also

recorded wind speeds on September 22,

2006 in excess of the 18 mph. While

most of the wind speeds recorded in

Alpaugh and Allensworth State Park in

the late morning and afternoon hours -

did not exceed the threshold wind

speed, we believe these wind speeds.

were sufficient to transport suspended

PM-10 from the Corcoran area to the

Bakersfield area. See our proposed rule

at 72 FR at 49052. The wind direction

from all of the sites on September 22 is

consistent with the south; southeast

transport of dust (i.e., winds from the

north and northwest) from the Lemoore

area to Corcoran and the Bakersfield

area as demonstrated by Table 4 below.

TABLE 4.-SEPTEMBER 22, 2006 DAYTIME HOURLY WINDSPEEDS AND CONCENTRATION DATA FOR THE CENTRAL AND

SOUTHERN SJV

Horconc. Lemoore Corcoran Alpaugh WS*/WD Allensworth WWDconc. State Park Bakersfield

WS/WD/gusts (ggfl, WSIWD (jg/m3 )

6 ............. 21/NW .................................... 170 5.5/W ................... ..................... ..... 74

7 ............. 21/N W ..................................... 306 3.3/N SW ............................. 6/N N E ........................................ 104

8........ .... 28/NNW/35 ..................... 5....... 519 ........ 20/NNW ...................................... 78

9 ............. 29/N NW /37 ............................. 531 19.1/NNW .............................. 35 ................................................ 114

10 ........... 23/NW/30 ................................ 725 15.2/NNW ............... ........................... 103

11 ........... 17/NNW/24 ............................. 695 15.5/NNW .............................. 8/NW .......................................... 139

12 ........... 17/N NW /25 ............................. 521 16.1/NW ................................. N D ............................................... 168

13 ........... 21/N NW .................................. 318 13.6/NW ................................ 2/3 ............................................... 196

14 ........... 14/N N E ................................... 276 12.1/NW ................................. 7/NW ........................................... 239

15 ........... 5/N .......................................... 247 12.1/NW ................................. 8/W N W ........................................ 294

16 ........... 10/N ........................... 269 10.2/NW ................................. 7/NNW ........................................ 285

17 ........... 9/NNW .................................... 283 9.7/N NW ................................ 5/N NW ........................................ 281

18 ........... 6/N ......................................... 258 5.5/N NW ............................... 1I/W SW ..................................... 270

ND--No Data.

Source: "Natural Event Documentation, Corcoran, Oildale and Bakersfield, California, September 22, 2006," San Joaquin Valley Unified Air

Pollution Control District, April 20, 2007; "Addendum, Natural Event Documentation, Corcoran, Oildale and Bakersfield, California, September 22,

2006," San Joaquin Valley Unified Air Pollution Control District, May 23, 2007; Mesowest historical meteorological data, Mesowest, http://

www.met.utah.edu/mesowest.

*Wind Speed data at Alpaugh adjusted to 10 meter AGL based on conversion formula in the "Addendum, Natural Event Documentation, Corcoran, Oildale and Bakersfield, California, September 22, 2006," San Joaquin Valley Unified Air Pollution Control District, May 23, 2007 at 13.

For October 25, the State included all

available meteorological data in its

documentation. 1

7 These data support

the demonstration that winds between'

the Corcoran and Bakersfield areas were

sufficient to transport dust on October

25. We believe that the wind speed and

direction data collected at Alpaugh and

Bakersfield Meadow airport, while not

exceeding the threshold wind speed,

show that the winds in this portion of

the SJV on October 25 were sufficient to

transport suspended PM-10 from the

Corcoran area to the Bakersfield area.

See our proposed rule at 72 FR at 49052.

The wind direction from all of the sites

during the daytime hours on October 25

is consistent with the south, southeast

transport of dust (i.e., winds from the

north and northwest) from the Lemoore

area to Corcoran and the Bakersfield

area as demonstrated by Table 5 below.

TABLE 5.-HOURLY DAYTIME WINDSPEEDS AND CONCENTRATION DATA FOR CENTRAL AND SOUTHERN SJV ON OCTOBER

25, 2006

Lemoore Corcoran Bkrsfld Meadow Airport Bkrsfld conc. Hour WS/WD/gusts conc. Alpaugh WS*/WD WS/WD (gig/m3) (jig/m 3

)

22 NNW /30 ...............................

22/NNW /32 ...............................

26/NW /36 ..................................

29/NNW /39 ..............................

31/NW /37 ..................................

30/NW /40 ..................................

28/N NW /38 .: .............................

26/NNW /35 ...............................

22 NNW /31 ...............................

20/NW /26 .................................

14/NNW ....................................

3/N .........................

3.5/SSW ...................................

2.9/W ........................................

5.6/NW .....................................

17.0/NNW ................................

16.5/NNW ................................

16.8/NNW ................................

15.6/NNW ................................

14.8/NNW ..: ....................

13.2/NNW ....................

13.3/NNW ....................... ........

12.7/NNW ................................

6.5/NW .....................................

5/ESE .....................................

6/E ........................................

0 .............................................

10/NW ....................................

9/W NW ...................................

12/W .......................................

12/W NW .................................

6/ND .......................................

7/ND .......................................

7/NW ......................................

3/W NW ...................................

5/NW .......................

97

89

88

123

148

177

195

222

415

406

393

416

2See "Natural Event Documentation, Corcoran

and Bakersfield, California, October 25, 2006,"

April 23, 2007 at 44-74.

6 .............

7 .............

8 .............

9 .............

10 ...........

11 ...........

12 ... .......

13 ...........

14 ...........

15 ...........

16 ...........

17 ...........

14699

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TABLE 5.-HOURLY DAYTIME WINDSPEEDS AND CONCENTRATION DATA FOR CENTRAL AND SOUTHERN SJV ON OCTOBER

25, 2006-Continued

Lemoore Corcoran Bkrsfld Meadow Airport Bkrsfld conc. Hour WS/ND/gusts conc. Alpaugh WS*/WD WS/WD (lgg/m 3) (gig/m 3

)

18 ........... 6/N ............................................ 180 4.4/W NW .................................. 3/NW " 403

ND-No data available.

Source: "Natural Event Documentation, Corcoran and Bakersfield, California, October 25, 2006," San Joaquin Valley Unified Air Pollution Control District, April 23, 2007; Mesowest historical meteorological data, Mesowest, http://www.met.utah.eduImesowest/.

*Wind Speed data at Alpaugh adjusted to 10 meter above ground level (AGL) based on the conversion formula in "Natural Event Documentation, Corcoran, Oildale and Bakersfield, California, October 25, 2006," San Joaquin Valley Unified Air Pollution Control District, April 23, 2007 at

25.

In its documentation the State also

included the results of a HYSPLIT

model run by the District to identify

source regions for the parcels of air that

impacted the Corcoran and Bakersfield

monitors on September 22 and October

25, 2006. The District explicitly stated

that the models were not intended to

quantify particulate concentrations but

simply .were used to support its view of

the-origin of the particulate matter that

impacted the monitors at Corcoran and

Bakersfield. As stated in the proposed

rule, EPA agrees' that this model run

supports the conclusions drawn from

the meteorological data presented. See

72 FR at 49052 and 49056.

In its comment letter on the proposed

affirmation rule, Earthjustice relies on

its own computer simulations using the

HYSPLIT model and appears to claim

that, based on its own HYSPLIT

analyses, the winds in the Lemoore area

could not have carried sufficient

quantities of particulate matter to

Bakersfield to cause exceedances of the

PM-10 NAAQS. In order to evaluate

Earthjustice's HYSPLIT analyses, EPA

also performed computer simulations

using the HYSPLIT model. However, we

took a different approach because we

believe that Earthjustice's HYSPLIT

analyses do. not represent a

comprehensive depiction of the dust

event."'

While Earthjustice used trajectories

starting at zero meters in height and

took a two-dimensional aproach in

assessing the wind event, we took a

more appropriate three-dimensional

approach. The EPA approach recognizes

that the dust did not stay at zero meters

in height above ground but instead

'EPA does agree in part with the Jan Null

declaration (EC, Exhibit H) in which he states that

the data used by the District in the HYSPLIT model,

EDAS (ETA Data Assimilation System) meso-scale

data, is too coarse to account fully for both the

complex terrain in and around the SJV and for the

close proximity of the stations being examined.

However, Earthjustice and EPA also used the EDAS

meso-scale data which are of sufficient resolution

to account for the general overall wind flow in the

southern SJV and thus provide a coarse simulation

of wind trajectories within the Valley.

mixed up higher into the atmosphere

where stronger winds occurred that

caused the transport to be faster than

Earthjustice's HYSPLIT analyses

indicated. For September 22 and

October 25, 2006, for the morning start

times, EPA ran trajectories at three

heights: 10 meters, 100 meters and 250

meters. These heights were used to

approximate the transport from near the

surface, near the middle and near the

top of the mixed layer 19 as shown by

the HYSPLIT model.

On September 22, 2006, based on the

meteorological data and our HYSPLIT

runs, the high winds that began in the

Lembore area around 6 a.m. PST eroded

apd then transported dust that started to

affect the PM-10 concentrations

measured in the Corcoran area by 7 a.m.

PST. See Figure 1, "Forward

Trajectories at 10, 100, & 250 meters,

Lemoore Area to Corcoran, September

22, 2006, 6 a.m. to 8 a.m. PST." 20 From

Corcoran and eastward, some of the dust

may have been transported more

towards the Sierra foothills. See Figure

2, "Forward Trajectories at 250 meters,

Lemoore to Corcoran and Bakersfield,

September 22, 2006, 6 a.m. to 1 p.m.

PST." West of Corcoran, the dust was

transported southward towards

Bakersfield, beginning to affect that area

between the hours of 12 p.m. and 1 p.m.

PST. See Figure 2 and Figure 3,

"Forward Trajectories at 10, 100, & 250

meters, Lemoore Area to Bakersfield,

September 22, 2006, 6 a.m. to 1 p.m.

PST." Based on hourly PM-10 values,

the peak concentration of dust, 725 pRg/

m3 , occurred at about 10 a.m. PST in

Corcoran and a PM-10 value of 294 Itg/

m3 occurred at about 3- p.m. PST in

19 The mixed layer is the unstable layer of the

atmosphere in direct contact with the surface of the

Earth. The daytime mixed layer is characterized by

vigorous turbulent mixing. This means that air or

dust laden air at any height within the mixed layer

can impact the surface due to the mixing caused by

turbulence. 20

The EPA Figures referenced in this final rule

are available in the docket for this rulemaking

action and are listed in section I.C. below.

Bakersfield. See Table 4 above. See also

our response to comment 21 below.

On October 25, 2006, the scenario was

similar'to September 22, 2006. EPA's

HYSPLIT runs support a finding that the

high winds that began in the Lemoore

area around 5 a.m. PST eroded and then

transported dust that started to affect the

PM-10 concentrations measured in the

Corcoran area by about 6 a.m. PST. See

Figure 4, "Forward Trajectories at 10,

100, & 250 meters, Lemoore Area to

Corcoran, October 25, 2006, 5 a.m. to 7

a.m. PST." From Corcoran and

eastward, some of the dust may have

been transported more towards the

Sierra foothills. West of Corcoran, the

dust was transported southward

towards Bakersfield, starting to affect

that area between 11 a.m. and 12 p.m.

PST. See Figure 5, "Forward

Trajectories at 250 meters, Lemoore to

Corcoran and Bakersfield, October 25,

2006, 5 a.m. to 11 a.m. PST" and Figure

6," Forward Trajectories at 10, 100, &

250 meters, Lemoore Area to

Bakersfield, October 25, 2006, 5 a.m. to

11 a.m. PST." The peak concentration of

dust in Corcoran occurred around 11

a.m. PST with a PM-10 value of 794 gg/

M3 . The peak concentration of dust in

Bakersfield was more obscure with a

peak at about 5 p.m. PST and a PM-10

value of 416 gg/m 3 . See Table 5 above.

EPA believes that our HYSPLIT

analyses depict more accurately than

Earthjustice's runs the windblown dust

events of September 22 and October 25

because, in addition to accounting for

the various heights above ground level,

we accounted for the wind flows within

the Valley more comprehensively. We

recognized that the winds over the

eastern portion of the Valley tended to

move towards the east, winds over the

western portion of the valley tended to

move more towards the south, and that

there was a transition area in between

where winds moved southeast directly

from the Lemoore area to Bakersfield.

See Figures 2 and 5 above. Thus we

believe that our HYSPLIT analyses were

sufficient to provide a general overview

of the direction and speed of dust

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transport in the San Joaquin Valley and

support the contention of dust transport

from the Lemoore area to the Corcoran

and Bakersfield areas. Our analyses are

also in general agreement with the

measured wind data provided by the

State which do account for the complex

terrain of the Valley. We note again that our concurrence

with the State's causal connection

demonstration is based on the

meteorological data for September 22

and October 25, 2006 discussed above.

We believe the HYSPLIT model

supports this demonstration by showing

that the winds were of the appropriate

intensity and direction to move a plume

of dust from the central SJV to the

Bakersfield areas on those days. -

Comment 12: Earthjustice claims that

the exceedances in the SJV cannot be

deemed to be in excess of normal

historical fluctuations because they

occur regularly and at a similar level

every fall and are therefore no different

from the exceedances used to designate

the SfV nonattainment in the first placo.

Thus Earthjustice believes there are no "unusual activities" as EPA states,

because the exceedances at issue here

were caused by the same dustgenerating activities that cause

exceedances every year:

Response 12: As we discussed in our

proposed rule at 72 FR 49052, for EPA

to concur with a state's claim that an

exceptional event caused an

exceedance, the state must show that

the event is associated with

concentrations "that are beyond the

normal historical fluctuations. See 40

CFR 50.14(c)(3)(iii)(C).

When the SJV was designated

nonattainment for PM-10 in 1991 by

operation of law (56 FR 11101, March

15, 1991), the District had not

implemented the BACM for PM-10 that

are currently in place. Since 1991, the

State of California and the SJVAPCD

have adopted many rules and rule

amendments that have led to significant

reductions in PM-10 and oxides of

nitrogen (NOx) emissions. These rules

include, as discussed above, BACM for

fugitive-dust sources such as unpaved

and paved roads, vacant lots,

construction sites, etc. (Regulation VIII)

and BACM for agricultural sources (Rule

4550-Conservation Management

Practices). See Section 8, "Natural Event

Documentation, Corcoran, Oildale and

Bakersfield, California, September 22,

2006," April 20, 2006. These BACM

rules for fugitive dust and agricultural

sources were adopted and implemented

in mid- to late 2004. See 71 FR 8461 and

71 FR 7683. Given the vast changes in

regulatory requirements for PM-10

sources, the dust-generating activities in

the early 1990's are not, as Earthjustice

suggests, comparable to those after the

full implementation of BACM in the

SJV. Therefore we do not believe that

the September 22 and October 25,

2006 21 exceedances are the result of the

same fype of dust-generating activities

that caused the area to originally

become nonattainment. Nor do we

believe that Earthjustice has

substantiated its claim that they are. We originally evaluated whether the

September 22 and October 25, 2006.

exceedances exceeded normal historical

fluctuations in our proposed rule. See

72 FR at 49053 and 49056. In response

to Earthjustice's comment on the

proposed rule that this EER criterion

had not been satisfactorily demonstrated

by the State's documentation, EPA

undertook a further analysis of the data

collected at the sites that exceeded the

24-hour PM-10 NAAQS on September

22, 2006 (Corcoran, Bakersfield-Golden

State Highway and Oildale) and October

25, 2006 (Corcoran and BakersfieldGolden State Highway). EPA included

data from 1993 to 2006 in our

analysis.72 Our statistical analysis

shows the annual percentile values of

the data from each of the three sites. In

the preamble to our EER, we state that

a comparison of the exceedance data to

the historical 95th percentile values is

appropriate for determining the level of

evidence or documentation a state needs

to provide in order for EPA to concur

with its flagging request. Extremely high

concentrations relative to the 95th

percentile values would require a lesser

amount of documentation to

demonstrate that an event affected air

quality. See 72 FR at 13569.

For Corcoran, when we examine all

data collected since 1993,23 it is clear

that the 95th percentile values have

consistently been below the level of the

24-hour PM-10 NAAQS and since 1999

the Corcoran site has not recorded a

95th percentile value greater than 117

21 With respect to the exceedances at the Santa

Rosa Rancheria, in the proposed rule EPA showed

that the concentrations measured during the

construction activity were in excess of normal

historical fluctuations and that after completion of

the paving project average PM-10 concentrations

dropped by more than 50 percent. 72 FR at 49062.

221993 was chosen as the starting point for data

analysis because that is the year that the SJV was classified as a serious PM-10 nonattainment area. 23 From 1993 through 1998, the Corcoran site

collected PM-10 data on a once every sixth day

schedule using a Federal Reference Method (FRM)

monitor. Beginning in 1999 the Corcoran PM-10

site has been collecting data on a once every third

day schedule using FRM monitors. In October 2006

the SJVAPCD began operating a continuoug monitor

designated as a Federal Equivalent Method (FEM)

monitor at the site to provide everyday PM-10 data

to the public, The State and SJVAPCD report all

data from these monitors to the EPA's AQS

database.

g/rm3.The 95th percentile talue

recorded at Corcoran in 2006 was less

than 100 jg/m3. Therefore, our analysis

of all the data collected at Corcoran over

the past 14 years indicates that the

September 22 and October 25, 2006

exceedances were clearly beyond the

normal range of annual concentrations

recorded at this site. See Figure 7,

"Annual Peak Day PM10 Concentrations

at Corcoran."

As with the Corcoran data, we

performed a statistical analysis of the

data collected at the Bakersfield-Golden

State Highway site using data from 1993

to 2006 and calculated the annual

percentile values. From this analysis it

is clear that the 95th percentile values

at Bakersfield were consistently less

than the level of the 24-hour PM-10

NAAQS. In 2006 the 95th percentile

value at Bakersfield-Golden State

Highway was 101 jig/m 3 . Therefore our

analysis of the Bakersfield-Golden State

Highway data.shows that the September

22 and October 25, 2006 exceedances

were beyond the normal range of data

recorded at this site during the past 14

years. See Figure 8, "Annual Peak Day

PM10 Concentrations at Bakersfield."

Finally, our analysis of the data

collected at Oildale also shows that the

exceedance recorded at that site on

September 22, 2006 was outside the

normal range of historical values. As

with the other two sites discussed

above, the 95th percentile values

recorded at Oildale during the past 14

years were consistently below the level

of the NAAQS and the 95th percentile

value in 2006 was 111 gg/m 3. Again, our

analysis of the Oildale data indicates

that the September 22, 2006 exceedance

recorded at this site was outside the

normal historical fluctuation of data for

the past 14 years. See Figure 9, "Annual

Peak Day PM10 Concentrations at

Oildale."

Therefore, our analysis ofall the

annual data from 1993 through 2006

shows that the September 22 and

October 25, 2006 exceedances are in

excess of normal fluctuations.

To address Earthjustice's specific

concern that these exceedances occur

routinely in the fall months, defined by

Earthjustice as the months of

September, October and November, 24

we performed the same statistical test

on the Corcoran data using only those

values recorded during those months.

From this test it is clear that the 95th

percentile values for all years since 1998

do not exceed the level of the 24-hour

PM-10 NAAQS. The highest 95th

percentile value since 1998 was a 146

gg/m 3 recorded in 2003. Again, this

24

EC at 15.

II I II I | I I I II I

14701'

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analysis demonstrates that the

September 22 .and October 25, 2006

exceedances recorded in Corcoran, even

when we use seasonally adjusted data,

were in excess of the normaf historical

fluctuations. See Figure 10, "Annual

Peak Fall Day PM10 Concentrations at

Corcoran."

At the Bakersfield monitor, 95th

percentile values for the fall months

have been lower than the level of 24-

hour PM-10 NAAQS since 2000, with

the highest 95th percentile value

recorded in that year at 145 gtg/m 3. In

2006, the fall months' 95th percentile

value was 100 R.g/m 3

. These values

show that the exceedances measured on

September 22 and October 25 were

outside the historical fluctuation of data

for the fall months. See Figure 11,

"Annual Peak Fall bay PM1O

Concentrations at Bakersfield."

Finally for Oildale, our analysis of the

fall 95th percentile values shows that

since 1996 the 95th percentile values

have not exceeded the level of the

NAAQS and 1996 had the highest 95th

percentile value (138 Lg/m 3

), with the

exception of the September 22, 2006

concentration of 162 jtg/m 3

. Even

though the 95th percentile value in the

fall of 2006 exceeded the level of the -

NAAQS, when we look at the historical

fall data for Oildale this value does

stand out as outside the normal range.

See Figure 12, "Annual Peak Fall Day

PM10 Concentrations at Oildale."

Therefore, our analysis of the data

from 1993 through 2006 for the months

of September through November shows

that the September 22 and October 25,

2006 exceedances were in excess of

normal fluctuations.

Comment 13: Earthjustice argues that

EPA cannot make the required "but for"

showing for the locations other than the

SRR because either the model shows

that the winds did not blow toward the

monitors or the monitoring data show

that the standard was being exceeded

even before the alleged dust-laden

winds arrived.

Response 13: With respect to the

September 22, 2006 exceedance, see our

responses to comments 10, 11, 16 and

21. With respect to October 25, 2006 see

our responses to comments 10, 11 and

43. We also discussed the "but for"

demons tration included in the State's

documentation in detail in our proposed

action. See 72 FR 49053, 49056-49057.

Comment 14: Earthjustice also argues

that to make its "but for" showing EPA

asserts that no "unusual activities"

occurred during the exceedance period

and implies that something "extra"

must have happened which would

mean that an area would either have

violations every day or never and that

EPA would then have to conclude that

unless an area violates every day, any

violation must be the product of some

exceptional, nonrecurring event.

Earthjustice believes that EPA's reliance

on this type of argument to make the

"but for" claim is arbitrary and

capricious."

Response 14: Earthjustice takes out of

context EPA's consideration of the fact

that there were no other unusual

activities at the time of the September

22 and October 25, 2006 exceedances to

draw some extreme conclusions, such as

that the Agency would have to conclude

"that unless an area violates every day,

any violation must be the product of

some exceptional nonrecurring event."

In this connection, Earthjustice

misunderstands EPA's application of

the weight of evidence approach to the

"but for" demonstration. In the . preamble to the EER, EPA explained

that it would use a "weight of evidencebased approach to demonstrate that

there would not have been an

exceedance or violation but for the

event." 72 FR at 13570-13571. EPA

explained that through analyses it was

possible to demonstrate that an

exceedance would not have occurred

but for the event; however, this analysis

does not require a precise estimate of

the estimated air quality impact from

the event. 72 FR at 13570.

In applying this weight of evidence

approach, EPA considered the totality of

circumstances surrounding the events

for the exceedance days. EPA included

in its consideration, an evaluation of the

coarse particles, information about

geologic dust, values representing

excess geologic contributions,

comparison of "adjusted" PM-10 values

with typical average concentrations

during similar periods, information

about control measures, readings on

days before and after the exceedance

days, and whether any unusual or out

of the ordinary activities occurred on

such days. See 72 FR at 49053. Monitor

readings on the days before and after the

event days indicated no violations. EPA

therefore looked to see if on the specific

event days there were activities that

were different or unusual as compared

to the days when there were no

exceedances in order to rule those in or

out as contributing to the exceedance.

Contrary to Earthjustice's contention

that any time there is a violation EPA

would conclude that it is due to some

exceptional nonrecurring event, the lack

of unusual activities was just one of the

factors that EPA considered in reaching

its determination based on the weight of

evidence analyses. Thus, EPA's

consideration of whether or not there

were unusual activities in this context is

neither arbitrary nor capricious as

Earthjustice claims.

2. Comments Specific to September 22,

2006-Corcoran, Bakersfield and

Oildale

Comment 15: Earthjustice claims that

in order to show that an event'has

affected air quality, a demonstration

must be made that the event "caused a

specific air pollution concentration"

and that the data to be waived are

directly due to the event. Earthjustice

asserts that the District did not provide

evidence that demonstrates how enough

particulate matter pollution could have

been generated in and transported from

one remote area of the SJV to multiple

monitors in distant locations within the

time period of the event. In this regard,

Earthjustice states that while the District

cites a study that allegedly establishes a

threshold at which wind begins to erode

PM (sustained winds of 18 mph or gusts

of 22.4 mph), there is no basis for the

claim espoused by both the District and

EPA that winds below this threshold

velocity can then transport particulate

matter pollution long distances. To

support this assertion Earthjustice cites

EPA's recent rulemaking (71 FR 61f44,

61146, October 17, 2006) establishing

new PM standards in which EPA

concluded that "thoracic coarse

particles generally deposit rapidly on

the ground or other surfaces and are not

readily transported across urban or

broader areas."

Response 15: Earthjustice states that

in order to show that an event affected

air quality the State must quantify the

amount of PM-10 initially generated at

a source location. In our proposed rule

we stated that this criterion (affecting air

quality) is met by establishing that the

event is associated with a measured

exceedance in excess of normal

historical fluctuations, including

background, and there is a clear causal

connection between the event and the

exceedance. 72 FR at 49051. We also

discussed how these criteria were met.

Id. at 49051-49052.

Earthjustice seems to be suggesting

that in order to meet the criterion "affects air quality" the State should

have used an air quality model such as

AERMOD or CalPuff to show the

behavior of fugitive dust. In other

words, Earthjustice is asking for a

modeling demonstration that would

show, quantitatively, that a given

amount (either in the form of an

emission rate or initial ambient

concentrations at the source regions)

can produce a partic.ular concentration

at a receptor point (e.g., monitoring site

location). This type of modeling, at the

scale Earthjustice is suggesting, is not an

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appropriate tool for use in this type of

application because it cannot be

performed with any degree of accuracy.

The State included in its

documentation the results of a study

that determined the threshold wind

speed needed to erode geologic material

and entrain the resulting particles into

the atmosphere. 2

5 Earthjustice states

that there is no basis for the claim that

lower wind speeds could transport dust

long distances.

While the State did not provide

information from a specific study to

demonstrate wind speeds sufficient to

transport PM-10 suspended in the

atmosphere, EPA believes it is

reasonable to conclude, as the State did,

that if an 18 mph wind is sufficient to

erode and entrain coarse particles into

the atmosphere, a lower wind speed is

sufficient to keep particles already

entrained in the atmosphere suspended,

and to subsequently transport them

considerable distances. To erode

geological material on the ground and

cause it to be suspended in the air,

winds must have enough kinetic energy

to overcome the attractive forces

between particles, in addition to

gravitational forces. High winds also

tend to cause large particles to collide

with each other, making them break

apart and become more likely to be

lifted up. For particles that have already

been lifted well above ground level,

winds need only have enough

occasional upward component (due to

turbulence) to overcome gravitational

settling. Also, winds aloft may have

been stronger (and had more turbulence)

than suggested by the ground based

measurements.

As presented in Table 3 of the State's

documentation, the wind speeds

between Lemoore and Corcoran,

measured at Corcoran, reached a

maximum speed of 11 mph between

hours 6 and 12. See "Natural Event

Documentation, Corcoran, Oildale and

Bakersfield, California, September 22,

2006," San Joaquin Valley Unified Air

Pollution Control District, April 20,

2007. Winds in the region between

Corcoran and Bakersfield, measured at

Alpaugh and Allensworth State Park,

reached 16 mph and 15 mph,

respectively, between hours 10 and

16.26 EPA believes that wind speeds of

this intensity were sufficient to

transport PM-10 from the central SJV to

the Bakersfield area.

Regarding Earthjustice's reference to

the PM coarse NAAQS final rule, EPA

was noting the difference in expected

transport distances for PM-2.5 versus

PM coarse. Note that we stated that

coarse particles generally deposit

rapidly on the ground or other surfaces

and are not readily transported across

urban or broader areas. 71 at 61146.

When comparing PM-2.5 and PM coarse

in urban settings it is true that PM-2.5

is a more regional pollutant and can

spread over great distances. PM coarse

particles in urban areas, under

meteorological conditions that do not

involve high winds, generally are

considered more of a localized pollutant

problem. The statement cited by

Earthjustice was not meant to imply that

under windy conditions PM coarse

particles would not be subject to

transport. The exceedances that

occurred in both Corcoran and the

Bakersfield area on September 22 and

October 25, 2006 were the result of

windblown and transported dust from a

predominantly rural area.

Comment 16: Earthjustice provides a

chart that it states demonstrates the

range of sustained wind speeds in key

areas of the central and southern SJV on

September 22, 2006 with corresponding

hourly PM-10 concentrations. With

respect to this chart, Earthjustice, citing

EPA Raw Data Reports, asserts the

following:

* * * there was a period of a few hours

where the alleged wind speed threshold was exceeded at the Lemoore Naval Air Station

monitoring site, which is located rorthwest

of the city of Lemoore. The maximum

sustained wind speeds ranged from 21 to 29

miles per hour between the hours of 7 a.m. and 11 a.m., and again exceeded the alleged

threshold at 1 p.m. The maximum peak gusts

(i.e., momentary bursts of wind) recorded at

the Lemoore NAS ranged from 30-40 miles

per hour between the hours of 9 a.m. and 11 a.m. However, just 10 miles southeast of the

TABLE 6.-SEPTEMBER 22, 2006 MORNING WIND SPEEDS AT METEOROLOGICAL

SAN JOAQUIN VALLEY

Lemoore NAS at the Santa Rosa Rancheria,

sustained winds never got any higher than

14.1 miles per hour * * *. In Corcoran,

sustained winds reached only 9.6 miles per

hour, and Bakersfield experienced nothing

stronger than 7.8 mile-per-hour sustained

winds * * *. None of the winds experienced

outside of northwest Lemoore were capable

of eroding soils and so none of these areas

could have contributed any wind-entrained

dust to the PM-10 concentrations recorded

on September 22, 2006.

Response 16: As discussed in our

response to comment 10, the Lemoore

wind speeds included in the Stae's

documentation were reported in PDT

and not in PST. The Corcoran and

Bakersfield PM-10 hourly concentration

data were reported in PST which means

that the winds in Lemoore began to

exceed the threshold wind speed at 6

a.m. PST. The times for the wind speed

data in the Earthjustice chart need to be

adjusted accordingly.

While we do not have monitoring data

at every location, contrary to

Earthjustice's comment, there are data

that show the threshold wind speed was

exceeded not only in the Lemoore area

but at other locations in the central and

southern SJV on September 22, 2006.

The Lemoore station showed the most

intense wind speeds in the area and the

data are used to represent the conditions

in the area centered around Lemoore.

The nearest meteorological station to

Lemoore is the Santa Rosa Rancheria

monitoring station, located about 11

miles SE of Lemoore. However, the fact

that the winds at the SRR did not

exceed the threshold velocity does not

prove that there were no wind speeds

above the threshold between Lemoore

and Corcoran. We obtained wind data

from other meteorological stations in the

central SJV such as Tranquility (30

miles NW of Lemoore), Selma (20 miles

NE of Lemoore), Kettleman Hills (20

miles SSW of Lemoore), Hanford

Municipal Airport (17 miles east of

Lemoore), Hanford (18, miles east of

Lemoore) and Allensworth State Park

(43 miles SW of Lemoore). Wind speed

data from these sites are presented in

the Table 6 below.

MONITORING STATIONS IN THE CENTRAL

Time Tranquility Selma Lemoore Kettleman Hills Hanford Airport Hanford ae Park

(a.m. S ark

PST) (hour/gust) (hour/gust) (hour/gust) (hour/gust) (hour/gust) (hour/gust) (hour)

6:20 ........ 9/12 ..................

6:30 ........ 10/10 ........ 6/7 .................... N D ...................... / ......... ND ..................... 5/9 ................. ND ......................... ND .......... 4/10 ..................

ND ......................... N D ............. 5/8 ....................

25 Subtask Memorandum, "3.3 How Well Do

Measurements Characterize Critical Meteorological

Features," Dave Bush, T & B Systems, August 24,

2004.

26 Wind speeds at Allensworth State park reached additional PM-10 was likely generated by winds in

20 mph and 35 mph at hours 8 and 9. This indicates the region between Corcoran and Bakersfield.

that while the area around Lemoore was identified

as the source for the PM-10 on September 22, 2006,

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TABLE 6.-SEPTEMBER 22, 2006 MORNING WIND SPEEDS AT METEOROLOGICAL MONITORING STATIONS IN THE CENTRAL

SAN JOAQUIN VALLEY-Continued

Time Allensworth

(a.m. Tranquility Selma Lemoore Kettleman Hills "Hanford Airport Hanford Ae rk

(hour/gust) (hour/gust) (hour/gust) (hour/gust) (hour/gust) (hour/gust) (hour)

6:45 ........ 8/12 ........ 5/7 ......... ........... ND............ND ............. ND............ 5/8 3..........

3

7:00 ........ 9/11 ......... 6/9 ........... 21............ 16/24 ..................... 17/ND ............... 517 .................... 6

7:20 ........ 13/12 : 716........7/6 ........... ND.......... .......... ND NO . "ND..........ND......... 5/11 .................. 7

7:35 ......... 13114 ................ 7/7 ........... ND ND ............ ND ............. ND .................... 5/11 .................. ND

7:45 ........ 14/14 ................ 8/9 .......... 28...... .. * ...... . 17/24 ..................... 15/ND ............... 7/10 .................. 38

8:05 ........ 15/19 ................. 10/10 .........26..... 26 ....... ND.............N D .................... 8/12 .................. 5

8:15 ........ 13/19 ................ 12/10 ......... 31............ N .................. ND .................... 9/12 .................. 20

8:30 ........ 21/20 ................ 14/14 ................ 28/35 ......... ......................... ND/26 ............... 9/17 ................. 21

8:45 . 23/23 ................ 8/16 .................. ND/35 .........ND ................ ND .................... 7/18 .................. 9

9:00 ........ 20/23 ................ 12/15 ................ 29/38 .......... 18 ............. 15/ND ............... 5/21 ................ 2

9:20 ........ 18/27 ................ 12/18 ................ 24/40 .......... ND............ND.......... .. 4/18 .................. 35

9:35 ........ 21/25 ................ 9/15 .......... ND............ND.............ND.......... 5/16 .................. 6

9:45 ........ 17/25 ................ 6/16 ......... ND/37 ... ...... ND... ............ ND.......... 8/18 .................. 2

10:05 ...... 17/24 ................ 9/13 .................. 23/ND ......... 20/27 ..................... 10/ND ............... 7/16 .................. 15

10:15 ...... 17/26 ................ 5/13 .................. N D ....................... N D ......................... N D .................... 4/11 ..................3

10:35 ...... 17/23 ................ 7/7 ..........ND ............ ND............ND.......... ND/13 ........... :... 10:50 ...... 14/23 ................ 8/12 .................. ND/30 ......... ND.......................ND .. ........... ND/13 0..........

11:05 ...... 16/21 ................ 7/7 .................... 17/ND ......... 17/32 ..................... 10/ND ............... ND/11 ............... ND

11:15 ...... 12/22 ................ 7/12 .......... ND ....................... ........... N .................... ND ....................8

11:30 ...... 1.4/20 ................ 1/9 .................... N O ........................ N O ......................... N O .................... N O .................... 10

11:35 ...... 15/23 ................ ND/8 ................. ND/24 ......... ND/24 ..........ND.......... ND ......... ........... ND

11:45 ...... N D/23 ............... 6/9 .................... N O ....................... N O ......................... N D ................... ND ........ 0....... 0

11:50 ...... ND/23 ................ ND/. N.............ND............N DD.. .......... ND......... ND ......... ND

12:00 ...... ND/16 ............... 0 ............ 14/ ....................... 17/ND .......... 10/ND ............... ND ......... ND

Source: Mesowest historical meteorological data, Mesowest, http://www.met.utah.edu/mesowest/.

ND-No Data available.

Earthjustice includes data in its chart

only from locations which had recorded

lower wind speeds on the morning of

September 22, 2006. We addressed the

lower intensity winds at Corcoran and

Bakersfield in our proposed rule, and

the fact that the winds between Lemoore

and Corcoran and Bakersfield were

capable of keeping in suspension the.

particulate matter that the winds at

Lemoore had suspended. See 72 FR at

49052. Earthjustice does not indude

data from the other meteorological sites

in the general area of the central SJV

that show winds that were comparable

to those recorded at the Lemoore Naval

Air Station meteorological site. Data

from these other meteorological sites, as

shown above, indicate that nearly all

recorded hourly wind speeds on

September 22, 2006 were in excess of

the threshold wind speed of 18 mph

between 6 a.m. and 12 noon PST.

Recorded gusts at some of these sites

were also in the 20-30 mph range

during the morning hours. It is likely

that there were other places along the

path from Lemoore to Bakersfield that

experienced wind speeds above the

threshold velocity but there were no

wind instruments to document it.

Therefore, Earthjustice's statement

that none of the winds experienced

outside of northwest Lemoore were

capable of eroding soils is simply not

true. Based on actual recorded wind

data, wind speeds in the central SWV on

the morning of September 22, 2006 were

high not just in Lemoore but throughout

this portion of the Valley. Moreover, as

pointed out above, even if the winds

outside of Lemoore were not capable of

eroding soil, the winds between

Lemoore and Corcoran and Bakersfield

were capable of keeping in suspension

the particulate matter that the winds in

the area around Lemoore had entrained.

Comment 17: Earthjustice states that

no attempt was made to explain how

high winds that began at 7 a.m. on

September 22, 2006 caused violating

PM-10 levels at a monitor 25 miles

away starting at 6 a.m.

Response 17: See responses to

comments 10 and 11.

Comment 18: Earthjustice asserts that

EPA failed to demonstrate that the

concentrations measured on September

22, 2006 could have been caused by the

wind-generated erosion of soils from

agricultural and industrial sources in

the Lemoore area. Earthjustice states

that all EPA offered as evidence is a

study establishing a threshold velocity

at which soil erosion may begin to

occur, but that EPA has not analyzed

whether the study's threshold wind

speed is appropriate for the Lemoore

area. Earthjustice argues that the

scouring of soil by winds depends on

much more than simply the speed of the

wind and that EPA has not attempted to

analyze factors pertinent to fugitive dust

generation such as the soil class and

erodibility in the Lemoore area, the

types and stages of crop cover present

at the time the winds occurred, the

specific activities occurring in the area

that contributed to PM-10

concentrations, or the specific measures

employed by sources to reduce or

prevent wind erosion. Earthjustice

maintains that this information should

have been evaluated to help determine

whether or not -the winds in Lemoore

could have realistically generated the

levels of PM-10 observed on September

22, 2006.

Response 18: EPA has demonstrated

that the concentrations measured on

September 22, 2006 were caused by

windblown dust generated in the

Lemoore area. As-stated above in

response to comment 10, the State's

documentation included a threshold

wind speed needed to erode soils and

entrain the resulting particulate matter

in the atmosphere. This wind speed

study was part of the 2002 CRPAQS

Study. The wind speed study was

performed in Angiola, California, which

is located about 8 miles SW of Corcoran

and 34 miles SW of Lemoore. Based on

the soil map included in the State's

documentation, the soil type in Angiola

is the same as those in Lemoore and

Corcoran. See "Natural Event

Documentation, Corcoran, Oildale and

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Bakersfield, California, September 22,

2006," San Joaquin Valley Unified Air

Pollution Control District, April 20,

2007 at 76. Thus the threshold velocity

at which soil erodes identified in the

study is appropriate for the Lemoore

and Corcoran areas.

Reviewing the graphic in the State's

documentation, we see that crop types

throughout the areas in question are

predominantly field crops. Id. at 77.

Other sources in this rural portion of the

SJV could include, but are not limited

to, agricultural activities, unpaved roads

and construction activity. These types of

sources are all subject to BACM. Id. at

32-33. These BACM are part of the

approved serious area PM-10 plan for

the SJV. See 69 FR 30006. Therefore,

EPA did in fact evaluate the principal

factors identified by Earthjustice,

including wind speed, sources and

whether they were controlled. See also

our proposed rule at 72 FR 49051 and

49053.

Comment 19: Earthjustice states that

EPA must find that the documentation

demonstrates a clear causal relationship

between a measured exceedance and the

alleged event. In this respect,

Earthjustice, relying on a declaration of

Jan Null (Null declaration), argues that

the District's documentation concocts a

barely-plausible story of severe scouring

by winds not much greater than the

alleged minimum velocity for

entrainment, followed by rapid

transport from one remote west-Valley

location (Lemoore) down to Corcoran,

where huge amounts of particulate

matter were deposited on the monitor in

order to cause violations, yet enough

pollution was kept entrained by much

slower winds to continue on for 60

miles down to Bakersfield and Oildale

in substantial enough quantities to also

cause violations in those locations.

Earthjustice concludes that this "story"

is unsupported by reliable

meteorological- evidence.

Response 19: As discussed in EPA's

proposed rule (72 FR 49046) and in

responses to comments 11 and 16, the

State did provide reliable

meteorological data to support its

demonstration that winds in the central

and southern SJV were of the

appropriate intensity and direction to

cause and transport fugitive dust to the

affected monitors at Corcoran and

Bakersfield. EPA relied on these data, as

well as other publicly available data, to

concur with the State's request to find

that the exceedances of the NAAQS on

September 22, 2006 were due to an

exceptional event.

Furthermore, Earthjustice

mischaracterizes the data used to

support this action. It is not the case

that winds were not much greater than

the threshold wind speed of 18 mph;

rather they were at times significantly

higher and widespread in the central

SJV. See Table 6 above. Winds between

Lemoore and Corcoran were of the

appropriate direction and intensity to

transport windblown dust to Corcoran,

25 miles away. Winds in the areas south

of Corcoran and north of Bakersfield

were of sufficient intensity to transport

suspended PM-10 the 55 miles from

Corcoran to Bakersfield. 27 The timing,

direction and intensity of the winds and

hourly PM-10 concentrations at

Bakersfield all support the

demonstration of transport presented by

the State. Based on the weight of

evidence presented, EPA has concluded

the State's documentation shows a clear

causal relationship between the wind

event and the exceedances in contrast to

the "barely-plausible story" Earthjustice

alleges.

Comment 20: Earthjustice states that

the Figure 1 in the Null declaration

shows that winds originating in

Lemoore at 7 am, which is when the

data in the record show elevated winds

began, may have traveled to Corcoran,

arriving around noon. However,

Earthjustice states that because the

Corcoran monitor began reading

exceedances of the PM-10 standard at 6

a.m., EPA cannot claim the winds

caused the Corcoran exceedance.

Response 20: See our responses to

comments 10 and 11.

Comment 21: Earthjustice claims that

the Figures 1, 2 and 3 in the Null

declaration show that the winds that did

reach Corcoran proceeded northeast

toward the Sierra foothills and did not

move in the direction of Bakersfield.

Response 21: As discussed in our

response to comment 11 above, EPA

assumed a more realistic threedimensional approach to using the

HYSPLIT model than Earthjustice's twodimensional approach. We also used a

small range of starting points for our

HYSPLIT runs, recognizing that simply

because the available Lemoore

meteorological data were from a single

point at the Lemoore Naval Air Station,

the data from that point represent

meteorological conditions over a wider

area. See footnote 11 above.

Based on our more realistic inputs, we

initiated three HYSPLIT runs, one

27 There may have been some deposition and

dispersion of the dust plume, as discussed in our

proposal at 72 FR at 49052, but enough material

reihained suspended to impact the Bakersfield area.

The fact that the 24-hour average PM-10

concentrations in Bakersfield and Oildale were 157

gg/m3 and 162 gg/m 3 compared to the 215 pg/m 3

recorded at Corcoran certainly indicates that some

deposition or dispersion occurred along the 55 mile

pathway.

starting half way between Lemoore and

Kettleman City (about 11 miles

southwest from Lemoore), one at

Lemoore, and one about 11 miles

northeast of Lemoore. EPA chose these

two different starting locations outside

of Lemoore because, based on the

trajectory model, they more precisely

depict the potential source regions for

Corcoran, which is more east than south

of Lemoore, and Bakersfield, which is

more south than east of Lemoore. Since

the Lemoore station can be considered

representative of a larger area than

Lemoore itself, the starting locations are

considered part of the Lemoore area and

dust was entrained from that entire area.

Also, in support of that assumption,

Hanford, which is about 15 miles east

northeast of Lemoore, and Kettleman

Hills, about 22 miles southwest of

Lemoore, reported wind speeds above

the threshold for the entrainment of

dust.

The results of our HYSPLIT runs

show that from Corcoran and eastward,

some of the dust may have been

transported more towards the Sierra

foothills, but west of Corcoran the dust

was transported southward towards

Bakersfield. See Figures 1, 2, and 3.

These results are in general agreement

with Jan Null's statement that:

* * * winds out of Kettleman City

continued down the western-most side of the

San Joaquin Valley, essentially following the

contours of the Coastal Range. This is not

unusual behavior for winds on the west side

of the Valley, which are generally faster than

winds in the rest of the Valley due to the

orientation of the Sacramento and San

Joaquin Valleys.

Null declaration at 11. Between

Lemoore and Kettleman City, the winds

were in transition from heading towards

the east near Corcoran and following the

Coastal Range as happened around

Kettleman City. This caused the winds

in a portion of that transition area to go

in a direct path towards Bakersfield. In

contrast to EPA's inputs to the HYSPLIT

model, the inputs used by Jan Null did

not reflect the wind flow structure in

the Valley and did not demonstrate a

comprehensive view of the

meteorological events that took place

during that day.

Comment 22: Earthjustice believes

that EPA was "dazzled" by the District's

use of the HYSPLIT model even though

the model is not an appropriate tool for

post hoc simulation of localized

meteorology and EPA did no analyses of

its own. Earthjustice further states that

the District's single run does not show

the connection between Lemoore winds

and the violating monitors that EPA

apparently thinks it does.

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Response 22: See our response to

comments 10, 11 and 21.

Comment 23: Earthjustice maintains

that the winds just south of Lemoore, in

and around Corcoran and between

Corcoran and Bakersfield never

exceeded the "alleged" threshold

velocity to entrain dust and the winds

originating in Lemoore that did exceed

such threshold could not have carried

sufficient particles of PM on to

Bakersfield and Oildale. Earthjustice

concludes therefore that the timing,

wind trajectories and the basic physics

of wind movement do not support a

causal connection between the Lemoore

winds and the September 22, 2006

exceedances.

Response 23: See responses to

comments 11 and 16.

Comment 24: Earthjustice notes that

the District highlights a single data

point showing sustained winds of 15.2

mph for one hour in Alpaugh.

Earthjustice believes this is troubling

because the District is relying on data

from the California Irrigation

Management Information System

(CIMIS) monitoring network that the

T & B Systems Report says should be ,

used with "extreme caution."

Earthjustice also believes that it is

suspicious that the District puts forth

data from this source while

simultaneously providing almost none

of the data it collects from its own

meteorological sensors which are

collocated with the monitors that record

PM-10 concentrations.

Response 24: Earthjustice quotes from

the T & B Systems Report without

providing the context of the warning to

use the data with "extreme caution." In

its report, T & B Systems state:

CIMIS-This data set should be used with

extreme caution. Two significant issues

regarding the CIMIS data were noted. First,

the fact that wind measurements are made at

2 meters instead of 10 meters appears to

result in the reported wind speeds decreasing

by about 30 percent relative to those made at

10 meters. This can be corrected, for the most

part, by using the standard power law

adjustment. Second, the results brought about significant questions about the

alignment of the wind direction system, with

possible misalignments as much as 300

noted. This potential problem was noted at, a significant number of sites investigated.

The QA program for the CIMIS network is

not known.

"T & B Systems Contribution to

CRPAQS Initial'Data Analysis of Field

Program Measurements, Final Report

Contract 2002-06," Technical &

Business Systems, Inc., November 9,

2004 at 3.

The issue of the height of the

measurements taken at CIMIS',

meteorological stations was addressed

by the State in its documentation.28

Winds measured at two meters above

ground level (AGL) are generally lower

than those measured at the standard 10

meters.

Regarding the alignment of the wind

direction system, there were many other

meteorological stations that provided

data on wind direction and these

showed that the winds were

predominantly from the north and

northwest on September 22, 2006.

Any uncertainty regarding the quality

assurance for the CIMIS data would

carry more weight if we were relying

solely on the CIMIS data. Most of the

meteorological data included in the

State's documentation 29 as well as the

additional data obtained by EPA 30 and

used to evaluate this exceptional event

demonstration were from the District's

meteorological stations and National

-Weather Service meteorological

networks. Since the District does not

operate any monitoring stations between

Corcoran and Bakersfield, it did not

have any District-collected

meteorological data for this region.

Comment 25: Earthjustice believes

that the District did little more than a

blind search for the areas of the SJV that

experienced winds that exceeded the "alleged" entrainment level and then

concluded that pollution on September

22, 2006 must have originated from-that

area.

Response 25: EPA believes that the

State and EPA conducted a thorough

evaluation of the possible cause of the

September 22, 2006 exceedances and

considered potential sources, conditions

and control measures at the time of the

exceedances. We discuss in additional

detail in our response to comment 16

the fact that a number of locations in the

central SJV besides Lemoore

experienced high winds on that day.

After a consideration of the most likely

cause of the exceedances and after

evaluating all the circumstances, the

State concluded that the unusually high

winds in the Lemoore area caused the

exceedances in'Cotcoran and

Bakersfield on September 22, 2006. The

State then established in its

documentation the causal connection

between the winds in the Lemoore area

28"Addendum, Natural Event Documentation,

Corcoran, Oildale and Bakersfield, California,

September 22, 2006," May 23, 2007 at 13.

29"Natural Event Documentation, Corcoran,

Oildale and Bakersfield, California, September 22,

2006," San Joaquin Valley Unified Air Pollution

Control District, April 20, 2007; "Addendum,

Natural Event Documentation, Corcoran, Oildale

and Bakersfield, California, September 22, 2006,'

' San Joaquin Valley Unified Air Pollution Control

District, May 23, 2007. 30 Mes5owest historical meteorological data,

Mesowest, http://www.met.utah.edu/mesowest/.

and the exceedances at Corcoran and

Bakersfield.

Comment 26: Earthjustice asserts that

neither the District nor EPA offers any

basis for the statement in the proposed

rule at 72 FR 49051 that "wind speeds

[in Corcoran], though not sufficient to

erode dust, were sufficient to keep

entrained and transported dust from the

.high winds at Lemoore suspended for

the period during which the

exceedances occurred." Earthjustice

further asserts that because winds 10

miles southeast of Lemoore at the SRR

never exceeded the entrainment

threshold and no other relevant location

outside of the area northwest of

Lemoore experienced erosive winds,

there is very little basis f6r the

conclusion that a clear causal

relationship exists between dust

entrained in Lemoore and violations of

the standard in Corcoran, Oildale and

Bakersfield.

Response 26: See responses to

comments 10, 11, 15 and 16.

Comment 27: Earthjustice asserts that

EPA fails to show that the exceedances

at Corcoran, Bakersfield and Oildale

were outside normal historical

concentrations. Earthjustice claims that

dust-intensive agricultural .activities

occur in the fall and that none of the

September 22, 2006 exceedances are

significantly beyond the normal

fluctuating range of air quality

concentrations in the SJV. Earthjustice

presents a chart that it says

demonstrates that the September 22,

2006 readings are within the historical

range of PM-10 concentrations observed

over the past 15 years during the fall

season.

Response 27: See our response to

comment 12 above.

Comment 28: Earthjustice states that

EPA suggests in the Exceptional Events

Rule that a contemporary comparison of

all seasonally-adjusted data is

appropriate for determining historical

frequency of the measurements in

question. However, Earthjustice says,

because fall is the season with the

highest PM-10 concentrations, the

comparison is most appropriately made

by looking at historical data from

September through November.

Earthjustice claims that because the

District's documentation limits its

comparison to September measurements

over a 7 year period, the result is a

"typical value" based only on the

"relatively good days monitored."

Response 28: See our response to

comment 12 above.

Comment 29: Earthjustice maintains

that EPA asserts that because the

September 22, 2006 measurements were

higher than what the District claims is

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the "typical value" for the month of

September, these violations must have

been caused by an exceptional event.

Earthjustice claims that with this

argument EPA is saying that any PM-10

exceedance should be ignored as

exceptional which is an absurd

assumption that would render the

NAAQS meaningless.

Response 29: EPA did not decide to

exclude the data from September 22,

2006 from its attainment finding simply

because the data were outside of the

typical range of values normally seen in

these areas. The EER has a number of

criteria that need to be met in order for

us to concur with a State's request to

exclude data from consideration,

including a demonstration that the

event affected air quality, a causal

connection between the event and the

exceedance value recorded, an analysis

demonstrating that the recorded

exceedance was outside the normal

fluctuation of the data, and a

demonstration that "but for" the event

the exceedance would not have

occurred. EPA evaluates how the State

meets all of these criteria, in addition to

the procedural requirements of the EER

and determines, based on the weight of

the totality of the evidence presented,

whether to concur with the State's

request. In this case, EPA believes that

the State has met the "weight-ofevidence" standard and has

demonstrated that the cause of the

exceedances on September 22, 2006 was

a high wind exceptional event. See also

our response to comment 12.

Comment 30: Earthjustice states that if

EPA had compared the September 22,

2006 data to data from other days on

which exceedances occurred, it would

have found that the September 22, 2006

readings are typical of bad air days in

the fall in the SJV and therefore would

not have been able to dismiss these

violations as 'Vin excess of normal

fluctuations."

Response 30: See response to

comment 12.

Comment 31: Earthjustice states that it

reviewed EPA's AQS reports of

monitoring data from the past ten years

and found that in Corcoran, 50 percent

of all FRM readings showing elevated

levels of PM-IO occur in September and

October and that 95 percent occur in the

period from September to January.

Earthjustice states that although the

numbers are lower in Bakersfield and

Oildale, with 31 percent and 29 percent

of elevated PM-10 readings,

respectively, occurring in September

and October, these numbers do not

paint the picture of exceptionality the

District and EPA claim. Instead,

Earthjustice declares, these numbers

confirm that the concentrations

recorded on September 22, 2006 were

within the normal historical range of

PM-10 concentrations experienced in

the central and southern SJV during the

fall PM season when concentrations are

historically at their highest.

Response 31: As discussed in our

response to comment 12, EPA analyzed

data from these sites and determined

that the concentrations recorded on

September 22 and October 25, 2006

were well outside the normal historical

fluctuation of data normally recorded at

these sites. In its comment, Earthjustice

analyzes what it states are "elevated

levels" of PM-l0 concentrations that

,were recorded at the Corcoran, Oildale,

and Bakersfield-Golden State Highway

sites. Earthjustice asserts that an "elevated level" is "defined by EPA" as 90 gig/m3 or greater. 31 This is not the

-case. For the source of its definition,

Earthjustice cites a Federal Register

notice in which EPA proposed to

approve a PM-10 maintenance plan for

Wallula, Washington. In that proposed

rule the 90 gg/m3 or greater was a figure

employed by the Washington State

Department of Ecology for use in

modeling a PM-10 maintenance

demonstration. 70 FR 38076 (July 1,

2005). EPA did not endorse or adopt

this level as a definition of what

constitutes "elevated levels" of PM-la

for the purposes of performing an

analysis of historical fluctuations for the

EER, and Earthjustice's evaluation of "elevated levels" at the SJV monitoring

sites is not based on an EPA definition

of what constitutes "elevated levels" for

this purpose.

Comment 32: Earthjustice claims that

the "but for" test requires a showing

that without the winds scouring the

soils near Lemoore, the monitors in

Corcoran, Bakersfield, and Oildale

would not have recorded violations of

the PM-10 standard and that such a

showing cannot be made. Specifically,

Earthjustice asserts that the monitor in

Corcoran was violating the PM-la

standard on September 22, 2006 before

the winds in Lemoore even picked up.

Earthjustice states that Table 3 of the

District's April 20, 2007 documentation

shows that the continuous monitor in

Corcoran was recording concentrations

in excess of 150 gg/m3 starting at 6 a.m.

Earthjustice further maintains that Jan

Null in his declaration states that there

is no way the winds in Lemoore could

transport entrained dust instantaneously

from Lemoore to Corcoran.

Response 32: We address these issues

in our responses to comments 10, 11, 16

and 21. In our proposed rule we also

31

EC at 6, footnote 16.

discussed how the State met the "but

for" criteria. 72 FR at 49053.

-Comment 33: Earthjustice further

asserts that the winds In Corcoran never

even got above 11 miles per hour, so

local wind entrainment of particulate

matter is not a factor. Earthjustice

concludes that activities in and around

Corcoran must have been responsible

for the high PM-la concentrations on

September 22, 2006, not winds from

Lemoore.

Response 33: We addressed the lower

wind speed issue in Corcoran in our

proposed rule at 72 FR 49052 and also

in our responses to comments 10 and

15. As we discussed in the proposed

rule, the lower wind speeds in Corcoran

do not preclude the transport of dust

from the areas northwest of Corcoran.

The wind data from September 22, 2006

show high winds in the area centered

around Lemoore. It was this area

northwest of Corcoran that contributed

PM-10 to the air parcel that impacted

the monitors at Corcoran and

Bakersfield. While any sources in the

local area represented by the Corcoran

monitor may have contributed some

PM-10 to the total 24-hour average, it

was the wind-generated dust from the

area of Lemoore that contributed enough

PM-10 to cause the monitor to record an

exceedance of the 24-hour PM-la

NAAQS.

Given the evaluation of all

information and circumstances

surrounding the exceedance at the

Corcoran monitor on September 22,

2006, the weight of evidence supports

the conclusion that the windblown dust

from the area of Lemoore rather than

contributions from sources in the area

represented by the Corcoran PM-la

monitor were the "but for" cause of the

exceedance.

Comment 34: Earthjustice argues that,

even if 6 hours worth of readings from

the Corcoran continuous monitor were

removed starting at 11 a.m., in order to

account for the 6 hours during which

winds in Lemoore exceeded the alleged

threshold velocity, there is still a

violation of the PM-10 standard.

Therefore, Earthjustice concludes, there

is no way the District can argue and

EPA can concur that winds from

Lemoore were the cause of the violation

of the PM-la standard in Corcoran on

September 22, 2006. . Response 34: As discussed in the

preamble to the EER, EPA's historical

practice has been to exclude a daily

measured value in its entirety when an

exceptional event causes that value. See

72 FR at 13572. EPA is not aware of the

existence of precise and universally

applicable techniques that are

administratively and technically

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feasible and that could support partial

adjustment of air quality data. Thus, the

approach suggested by Earthjustice is

not viable and is'not permitted by the -

EER except in some very limited cases

not applicable here. See also response to

comments 10.

Moreover, Earthjustice suggests that

the winds from Lemoore began affecting

the Corcoran monitor at 11 a.m. In fact

the Lemoore area experienced winds

higher than the threshold wind speed

beginning at 6 a.m. PST and these winds

likely began affecting the monitor at

Corcoran between 7 and 8 a.m. PST (the

value reported for 7 a.m. PST). See

response to comment 10. When the

winds at Lemoore decreased to levels

below the threshold wind speed at

2 p.m. PST, the dust entrained in the

atmosphere most likely still continued

to impact the Corcoran monitor, though

we see a leveling off and then gradual

decrease in hourly PM-10

concentrations from that point forward.

See Table 3 above in our response to

comment 10. We further addressed this

timing questionby performing our own

HYSPLIT analyses. See response to

comment 11 above. The result of our

analysis of the winds on September 22

supports the State's demonstration that

winds originating in the area around

Lemoore starting at 6 a.m. PST could

have transported dust and impacted the

Corcoran monitor within one to two

hours. See Figures 1 and 2.

Earthjustice appears to assume that

particles are deposited as soon as winds

decrease below the threshold speed for

entrainment; in fact, PM-10 particles

remain in suspension for many hours

after being entrained and, as in the case

of Corcoran, continued to affect

concentrations recorded at the monitor

until the early evening hours of

September 22, 2006. Thus, Earthjustice

assumes that the windblown dust

started to affect the concentrations

monitored at Corcoran many hours later

than it did in fact, and that it ceased to

impact the monitor many hours before

it did in fact. Thus EPA believes that the

impact on the monitor started earlier

and ended later than Earthjustice

contends, and was thus the "but for"

cause of the exceedance.

Comment 35: Earthjustice maintains

that there is no support for the claim

that but for the winds originating in

Lemoore, the monitors in Bakersfield

and Oildale would not have exceeded

the PM-10 standard. Earthjustice states

that Jan Null shows in Figures 1, 2 and

3 in his declaration that the winds

originating in Lemoore may have

reached Corcoran at some point in the

day, but they certainly did not continue

on to Bakersfield and Oildale.

Earthjustice states that the trajectories of

winds out of Lemoore and Corcoran

were decidedly away from Bakersfield

and could not have carried particulate

matter to Bakersfield and Oildale to

cause the violations of the standard seen

in these locations. Earthjustice states.

that Figure 4 in Jan Null's declaration

shows that, in fact, any winds arriving

in Bakersfield by 1 p.m. were slow and

moving in a circular pattern up from the

southwest. Further, Earthjustice asserts

that, as illustrated in Table A-1 of the

District's May Addendum to its April

20, 2007 documentation, wind speeds in

the Bakersfield area never reached

speeds capable of eroding soils.

Response 35: We have previously

addressed the -issue of dust transport to

Bakersfield in our responses to

comments 10, 11, 15, 16 and 21. EPA

does not contend that the wind speeds

in Bakersfield reached the speeds

necessary to erode and entrain dust, but

rather that windblown dust from the

area beginning in Lemoore and moving

south affected the monitors in

Bakersfield.

The trajectory calculation that Jan

Null used for Bakersfield was not

illustrative of the complete

meteorological scenario. Again, he used

a single trajectory calculation starting at

zero meters height which does not

account for the third dimension of

height of the dust above ground level. In

HYSPLIT runs performed by EPA,

forward trajectory calculations within

the mixed layer starting between

Lemoore and Kettleman Hills show

transport directly to Bakersfield within

7 hours.

In addition, the circular wind pattern

or eddy near Bakersfield discussed by

Earthjustice was produced by a

HYSPLIT analysis using a backward

trajectory. However there appears to be

a discrepancy between forward

trajectories and backward trajectories

produced by the HYSPLIT model. In

source-receptor determinations, forward

trajectories are considered more

appropriate in determining precise

locations of sources because they more

accurately account for where the

weather is coming from. EPA's forward

trajectories did not show any indication

of an eddy. The eddies that Earthjustice

states occurred-around Bakersfield are

around 15 kin in size for September 22,

2006. Since the EDAS meteorological

data used for the trajectories has 40 km

spacing between each grid point or

meteorological data point, it is not of

high enough resolution to accurately

represent an eddy-in the 15 km size

range. There is too much uncertainty to

conclude that there is an eddy because

it is less than one grid cell spacing in

dimension and would be considered a sub-grid scale feature. Thus, EPA's

HYSPLIT runs, using more appropriate

height levels in the atmosphere and

forward trajectories, support the

conclusion that the winds transported

dust from the Lemoore area and caused

the exceedances recorded at the

monitors in the timeframe of the

exceedances.

Comment 36: Earthjustice argues.that,

in evaluating the "but for"

demonstration, no attempt was made to

determine which of the many diverse

sources that contribute to particulate

matter concentrations in the SJV might

have been contributing to the pollution

load and in what quantities on

September 22, 2006. Earthjustice

concludes that for EPA to declare that

no "unusual activities" were taking

place on this day is to say that the same

dust-generating sources that have

always caused periodic violations of the

standards in the fall were again

responsible for exceedances.

Response 36: See responses to

comments 6, 12 and 14.

3. Comments Specific to October 25,

2006-Corcoran and Bakersfield

Comment 37: Earthjustice states that

the documentation for the exceedances

on October 25, 2006 is remarkably

similar to that of September 22, 2006,

and as such, suffers from the same

significant flaws. Earthjustice also states

that since the meteorology for both days

was Very similar, much of its analysis

for September 22, 2006 also applies to

October 25, 2006. Earthjustice provides

a chart which it contends shows that

wind speeds in Lemoore on October 25

were very similar to wind speeds on

September 22. With respect to this

chart, Earthjustice asserts the following:

* * * there was a period of several hours

during which the alleged wind speed

threshold was exceeded in northwest

Lemoore at the Naval Air Station monitor,

though again wind speeds at the Santa Rosa

Rancheria monitor only 10 miles southeast

never reached that threshold. * * * Winds in

Corcoran never got above 11.3 miles per hour

and Bakersfield, likewise, did not exceed the

District's alleged entrainment threshold with

maximum winds just under seven miles per

hour. * * * Further, the District can point to

no data between Lemoore and Bakersfield

that show winds capable of entraining dust,

offering instead only data from CIMIS

stations located far to the north and west that

experienced higher wind speeds on October

25, 2006. As has already been established by

Mr. Null, higher wind speeds on the west

side of the Valley along the Coastal Range are not unusual due to the orientation of the

Sacramento and San Joaquin Valleys. * * *

Response 37: To the extent there are

similarities between Earthjustice's

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analyses for September 22 and October

25, 2006, EPA's responses to comments

regarding September 22 are also

applicable.

In addition, EPA notes that the wind

speeds in the central SJV, as represented

by the meteorological monitoring station

at Lemoore, on October 25 were quite

high, reaching hourly average speeds of

31 mph and gusts of up to 40 mph, and

were sustained at levels above the

threshold wind speed for 11 hours

(5 a.m. to 3 p.m. PST),32 as shown in

Table 5 above. We do not contend that

the wind speeds in the vicinity of

Corcoran and Bakersfield Were ,

sufficient to entrain dust but, like

September 22, 2006, the windblown

dust generated in the Lemoore area in

the central SJV was the "but for" cause

of the exceedances recorded in Corcoran

and Bakersfield on October 25, 2006.

Moreover, the wind speeds that

occurred in between Lemoore and

Corcoran and Bakersfield were of

sufficient speed to transport the

entrained dust from Lemoore to the

affected areas. Id.

Earthjustice again selectively presents

meteorological data to support its own

position and neglects to include other

data that support the State's

demonstration. From the data sipplied

by the State in its documentation as

well as additional publicly available

data, it is clear that wind speeds in

Lemoore, as well as throughout the

central San Joaquin Valley, were either

in excess of the threshold wind speed

for entrainment (18 mph) or of sufficient

intensity to transport dust from the

Lemoore area to Corcoran and the

southern SJV. See Table 7 below.

TABLE 7.-OCTOBER 25, 2006 DAYTIME WIND SPEEDS AT METEOROLOGICAL MONITORING STATIONS IN THE CENTRAL

SAN JOAQUIN VALLEY

HorAirport Mendota Tranquility Lemoore Hanford Ketelan Hills Alpauh (or) (hour/dir/ Wasco

(hour/gust) (hour/gust) (hour/gust) (hour/gust) (hour/gust) our gust)

6 .............................................................. 12/ND 9/15 22/30 17/23 11/21 3.5 2/SW /3

7 ............................................................... 15/20 10/17 22/32 15/ND 20/28 2.9 0

8 ............................................................... 18/25 13/19 26/36 17/ND 15/27 5.6 7/NNW/15

9 .. ............ 17/30 20/22 29/39 24/29 19/32 16.9 5/NNE/18

10 .... ............................. 22/31 17/21 31/37 20/28 25/35 16.5 9/N/22

11 .... ............................. 22/30 15/20 30/40 15/24 25/35 16.8 71N/i5

12 .... ............................. 21/28 17/20 28/38 12/21 24/45 15.6 6/N/16

13 .... ............................. 20/28 15/23 26/35 12/ND 25/34 14.8 8/N/i6

14 ............................................................. 18/29 18/19 22/31 9/ND 21/35 13.2 2iNNE/10

1"5 ............................................................. 12/23 10/18 20/26 12/18 22/33 13.3 ND/N/12

16 ............................................................. 15/20 8/17 14/ND 8/16 15/28 12.7 3/N/7

17 ............................................................. 8/17 4/10 3/ND 8/ND 9/22 6.5 2/N/ND

18 ............................................................. 5/6 1/5 6/ND 6/ND 10/14 4.4 0

Source: Mesowest historical meteorological data, Mesowest, http://www.met.utah.edu/mesowest.

ND-No Data available.

South of Corcoran, wind speeds

measured at Alpaugh,33 15 miles SSE of

Corcoran and 44 miles NW of

Bakersfield, were close to exceeding the

threshold wind speed and as such were

sufficient to transport particulate matter

from the Lemoore area to Bakersfield as

discussed above and in our proposed

action. Furthermore, meteorological

data from a station in Wasco, 40 miles

SSE of Corcoran and 25 miles NW of

Bakersfield and not part of the CIMIS

network, recorded data that indicate

that the daytime winds, while not high

enough to erode soils, were

predominantly from the north.

Comment 38: Earthjustice states that

like the documentation for September

22, 2006, the District's documentation

for the alleged October event also fails

to analyze the actual ability of the area

to generate particulate matter

concentrations in quantities great

enough to cause the exceedances, fails

to provide anything more than

anecdotal evidence of activity levels and

compliance with dust controls, and

32 As discussed in response to comment 10 above,

the meteorological data for Lemoore must be

adjusted to correct for Daylight Savings Time.

therefore fails to demonstrate that the

winds in Lemoore affected air quality at

all. Earthjustice states that, like the case

for the September 22 demonstration, a

claim that the wind entrained

significant amounts of dust requires

looking at more than just the wind

speeds in the area. There are many

factors that EPA and the District failed

to support with any reliable and

accurate data, starting with whether

there was any dust available to be

entrained.

Response 38: See responses to

comments 6, 14 and 18. As is the case

with the September 22, 2006

documentation, the State has evaluated

a variety of factors and circumstances to

demonstrate that windblown dust

caused the exceedances on October 25.

See "Natural Event Documentation,

Corcoran and Bakersfield, California,

October 25, 2006," San Joaquin Valley

Unified Air Pollution Control District,

April 23, 2007 at section 7.

The State also provided information

on the inspection and compliance

3 3

See response to comment 24.

activities that were conducted on

October 25, 2006. Section 9.2 of the

State's documentation lists the number

of inspections and the location of

inspection activity and indicates that

the District was actively enforcing its

rules on October 25, 2006. Two

newspaper accounts of the high winds

that occurred on October 25, 2006

provide independent verification of

meteorological conditions, This type of

documentation has been historically

used to support these types of

exceptional events requests. EPA's EER

states that the simplest demonstrations

could consist of newspaper accounts or

satellite images to demonstrate that an

event occurred together with daily and

seasonal average ambient concentrations

to demonstrate an unusually high

ambient concentration level, which is

clearly indicative of an exceptional

impact. 72 FR at 13573.

Comment 39: Earthjustice states that,

as explained in its comments for

September 22, 2006, the generation of

particulate matter from winds of the

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type experienced on October 25, 2006

could have been controlled or prevented

had reasonable controls been required of

dust-producing sources. Earthjustice

believes that the fact that the District is

trying to blame winds only slightly

above the alleged wind speed threshold,

and significantly below the velocities at

which the aforementioned controls stop

being effective, suggests that either

winds could not have entrained dust or

the reasonable measures referenced in

the proposal were not actually in place

at the time of the event.

Response 39: See responses to

comments 5, 6 and 7. The winds in the

Lemoore area on October 25 were not "slightly above" the wind speed

threshold but rather included sustained

high winds between 26 and 31 mph

with gusts ranging from 26 to 40 mph.

These wind speeds were clearly

sufficient to entrain and transport PM10.

Comment 40: Earthjustice states that

high winds entraining dust may qualify

as a natural event, but it also believes

the source of the dust is of equal

importance under the law. Earthjustice

states that EPA admits that on October

25, 2006, the wind-entrained particulate

matter originated from anthropogenic

sources such as agricultural and

industrial activities, but that under the

EER, only "an event in which human

activity plays little or no direct causal

role" can be considered a natural event.

Earthjustice states that Congress did not

intend for exceptional events to include

sources that are caused by human

activity. Alternatively, Earthjustice

states that the source of the dust cannot

be considered a non-recurring human

activity, as agricultural and industrial

activities are a constant source of

emissions in the Valley.

Response 40: See response to

comment 5. Also, regarding

Earthjustice's argument that dust from

agricultural and industrial activities

cannot be considered a non-recurring

human activity because these activities

are a constant source of emissions in the

Valley, EPA does not consider (and has

not stated anywhere) that normal

agricultural and industrial activities are "non-recurring human activity" because

such human activities often recur on a

regular basis. By contrast, examples of

non-recurring human activities may

include major construction projects

such as highways if they meet the

criteria and requirements established in

the EER. However, a recurring natural

event such as a high wind event may

entrain dust from anthropogenic

sources. The entrainment of dust from "reasonably controlled sources" such as

agricultural sources does not convert a

natural event that qualifies as a high

wind event into a recurring human

activity which appears to be the result

Earthjustice is seeking.

Comment 41: Earthjustice states that,

like the September 22, 2006

documentation, the District did not

provide the requisite amount of time for

public comment on its October 25, 2006

documentation and did not re-publish

its final documentation after radically

changing its rationale. These procedural

deficiencies alone should give EPA

pause in considering the District's

requests to flag this data.

-Response 41: See response to

comment 8.

Comment 42: Earthjustice states that

since the meteorology on October 25,

2006 is so similar to that of September

22, 2006, it is not surprising that a

causal connection cannot be established

for October 25 either. Earthjustice points

out that the Corcoran monitor began

reading concentrations above the

national standard at 6:00 am, the same

time that the winds in Lemoore, 25

miles away, began exceeding the

District's alleged wind speed threshold

at the same time. Earthjustice believes

that it should go without saying that it

is not possible for winds in Lemoore to

transport entrained dust to Corcoran

instantaneously, which is what would

have to be the case if we are to believe

the District's claims that those winds

caused the exceedances in Corcoran,

and that therefore, something other than

the Lemoore winds caused the initial

exceedances recorded at that monitor.

Response 42: See responses to

comments 10 and 11.

Comment 43: Earthjustice states that

even if we were to assume that the

winds carried dust from Lemoore to

Corcoran, the trajectory of those winds

does not support the conclusion that the

dust then moved down to Bakersfield.

Earthjustice cites Figure 7 in the Null

declaration which shows that winds

originating in Lemoore moved on a dueeast path toward Hanford and Corcoran

and continued on toward the Sierra

foothills. Jan Null uses HYSPLIT to

determine the source of wind parcels

arriving in Bakersfield at noon, which is

approximately when the exceedances

began, and shows that the same slow

eddy effect that occurred on September

22, 2006 was also occurring in

Bakersfield on October 25, 2006, which

means that the winds impacting

Bakersfield during the time of the

exceedances were coming in slowly

from the southwest. Figure 8 in the Null

declaration.

Response 43: As discussed in our

responses to comments 11 and 21 above,

EPA assumed a more realistic three

dimensional approach to using the

HYSPLIT model than did Jan Null. We

also used a small range of starting points

for our HYSPLIT runs, recognizing that

although the available Lemoore

meteorological data were from a point

located at the Lemoore Naval Air

Station, the data represent conditions

over a wider area. See footnote 11

above.

As with our analysis of the September

22, 2006 event, we initiated three

HYSPLIT runs for October 25, 2006, one-,

starting half way between Lemoore and

Kettleman City (about 11 miles

southwest from Lemoore), one at

Lemoore, and one about 11 miles

northeast of Lemoore. On October 25,

2006, the HYSPLIT trajectory presented

by Null in Figure 7 of his declaration

indicates that the winds starting in

Lemoore went to the east southeast.

However, EPA's HYSPLIT runs initiated

half way between Lemoore and

Kettleman City, northwest of Corcoran,

demonstrate that the winds continued

down the SJV towards Bakersfield,

along a path just west of Corcoran. See

Figures 5 and 6 above. Between

Lemoore and Kettleman City, the winds

were in transition from heading towards

the east near Corcoran and following the

Coastal Range as happened around

Kettleman City. This caused the winds

in a portion of that transition area to go

in a direct path towards Bakersfield. See

Figure 5.

For Bakersfield, Null used a trajectory

in Figure 8 of his declaration at zero

meters height to show the same eddy

effect occurring on October 25 as on

September 22. Again, this height does

not take into account dust mixing up

into the atmosphere. In EPA's HYSPLIT

runs, more appropriate forward

trajectories were used which showed

that dust coming from the Lemoore area

could have reached Bakersfield within

about 6 hours. See Figure 6. They also

did not show any indication of the eddy

effect near Bakersfield that Earthjustice

found with back trajectories. Id. and

response to comment 35. This supports

the conclusion that dust-laden winds

from the Lemoore area reached

Bakersfield on October 25, 2006

consistent with the impacts reflected at

the Bakersfield monitor.

Comment 44: Earthjustice states that

while the District and EPA cite wind

speeds averaging 12 miles per hour in

Alpaugh, an area 15 miles south of

Corcoran, neither agency provides a

basis for concluding that such winds

could transport and keep suspended the

plume of entrained dust that was

allegedly carried to Bakersfield, nor do

they explain how the evidence provided

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even suggests such transport could have

taken place.

Response 44: See responses to

comments 11, 15 and 43. EPA finds that

the documentation does establish a clear

causal relationship between the winds

in Lemoore and the exceedances in

Corcoran and Bakersfield. See "Natural

Event Documentation, Corcoran and

Bakersfield, California, October 25,

2006," San Joaquin Valley Unified Air

Pollution Control District, April 23,

2007. Earthjustice neglects to consider

that the CIMIS data need to be adjusted,

as discussed in the State's

documentation, due to the fact that

CIMIS stations collect data at 2 meters

above ground level as opposed to the

standard 10 meter height. Id. at 25. See

also response to comment 24. When this

adjustment is made, we can see that the

wind speeds at Alpaugh would have

been approximately 25 percent higher at

10 meters than at 2 meters. Winds at

nearly 17 mph were recorded from 9

a.m. to 11 a.m. PST, dropping to

between 15 mph and 13 mph between

12 p.m. and 3 p.m. PST. The lower wind

speeds recorded at stations farther

south, such as Shafter and Arvin, are

consistent with the State's

demonstration that after the winds in

the central SJV transported particulate

matter southward, lower wind speeds in

the Bakersfield area facilitated the

settling of the particulates at the

monitoring station.

Comment 45: Earthjustice states that

while the readings from October 25,

2006 were relatively high, they were

probably not beyond the normal

historical fluctuations experienced in

the Valley in late October. Earthjustice

also states that fall is when the Valley's

PM-10 concentrations are at their

highest and also the peak season for

many dusty crops in the Valley.

Response 45: See our responses to

comment 7 and 12 above,

Comment 46: Earthjustice states that

EPA's "but for" analysis for the October

25, 2006 event is based entirely on

speculation and conjecture and that

EPA cannot say for sure what activities

were taking place in the areas of

Corcoran or Bakersfield and cannot say

for sure that without the alleged high

winds in Lemoore the monitors in

Corcoran and Bakersfield would not

have exceeded the standard.

Response 46: See responses to

comments 6 and 7 and EPA's "but for"

analysis in our proposed rule at 72 FR

49056-49057. EPA's conclusion is not

based on speculation and conjecture but

rather on the weight of evidence

presented.

Comment 47: Earthjustice states that

since the HYSPLIT analyses provided

both by the District and by

meteorologist Jan Null contradict the

claim that the winds from Lemoore had

a sufficient speed oi trajectory to impact

Corcoran and Bakersfield, and because

the Corcoran and Bakersfield monitors

were already measuring exceedances of

the PM-10 standard before the winds

from Lemoore could have arrived, EPA

cannot conclude that the District has

established that "but for" the winds in

Lemoore, the exceedances would not

have occurred.

Response 47: See responses to

comments 10, 11, 21, 43 and 44.

B. Other Comments

Comment 48: A commenter notes that

the concept of exceptional events for air

quality purposes is "a bad idea" because

they provide a loophole to gut the intent

of the original regulation. The

commenter expresses concern that

discarding data related to exceptional

events would substantially weaken the

regulation designed to protect the health

of residents in an area. In the particular

instance of the SJV, the commenter

notes that the exceptional events were

high winds and construction activity.

According to the commenter, these

events should not be used to justify por

air quality because high winds are a

natural occurrence and construction

activity occurs repeatedly. The

commenter expresses concern that

exceptional events not be used as "additional excuses to rationalize bad

air on certain days."

Response 48: Congress amended

section 319 of the CAA and required

EPA to establish regulations governing

the review and handling of air quality

monitoring data influenced by

exceptional events. In amending section

319, Congress indicated that states

should not have to prepare and

implement regulatory strategies

designed to remedy poor air quality

when their air quality is affected by

events beyond their reasonable control.

To accomplish this goal, Section 319, as

amended, defined an exceptional event

and required EPA to set certain

minimum substantive and procedural

requirements before data could be

excluded as due to an exceptional event..

In response, as described below, EPA

proposed regulations for exceptional

events in March 2006 and sought public

comments on its proposal. See 71 FR

12592 (March, 10, 2006). In March 2007,

after considering all comments received,

EPA published its final rule on

exceptional events which became

effective on May 21, 2007. 72 FR 13560.

During the exceptional events

rulemaking process, EPA took

comments on the definition of

exceptional events, the substantive and

procedural requirements for an event tO

qualify as an exceptional event and

appropriate mitigation measures in

these circumstances. In this rulemaking

on air quality in the SJV, EPA is neither

seeking nor considering comments on

the concept of exceptional events,

which activities would constitute

exceptional events, and/or whether air

quality data may be excluded due to

such events. EPA has already addressed

these issues in its EER. Comments about

the concept of exceptional events and

whether such events should be

considered in air quality determinations

have been decided in the exceptional

events rulemaking process and thus are

outside the scope of this rulemaking.

The commenter also notes that as a

general matter high winds should not be

considered an exceptional event

because they are natural occurrences.

EPA has discussed high wind events

extensively in the preambles to both the

proposed and the final rules on

exceptional events. The EER indicates

the circumstances under which high

winds can qualify for treatment as

exceptional events. Again, these general

issues were decided in the EER and EPA

did not reopen comment on that general

issue in this SJV rulemaking. The

commenter does not provide data

relevant to whether the high winds in

this instance meet the provisions of the

EER, the issue under consideration in

this rulemaking action.

The commenter asserts that "construction is always occurring" and

therefore data related to these events

should not be excluded. Not all

construction activity qualifies as an

exceptional event. A construction

activity, like other exceptional events

must meet the definitional, substantive

and procedural requirements specified

in the EER. For example, for any

construction activity to be considered

an exceptional event, it must meet the

definition of an exceptional event,

including for anthropogenic events such

as construction, that it is an event that

is unlikely to recur at that location.

Thus, by definition, construction

activity that is "always occurring" at a

particular location is not an exceptional

event under the rule.

Comment 49: The commenter states

that he is unfamiliar with details of the

SJV case but wishes to comment on the

concept of exceptional events and

expressed his view that such events

should not be considered in air quality

determinations. The commenter

believes that there are a wide variety of

loopholes such as permitting rounding

down of numbers, exclusion of three

worst days and using three year

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averages for final attainment which

"degrade the rigor of the standard."

According to the commenter, excluding

air quality data affected by exceptional

events further softens the initial

regulation. In the SJV case, the

commenter questions why the

construction activity was not limited to

periods when the atmosphere could

"handle the load." In addition, the

commenter discusses the construction

of an asphalt plant in a local community

and notes that during the construction

of such a plant, officials sought to

exclude data on certain days because

they attributed the poor air quality to

interstate transport. The commenter also

refers to the treatment of fires in his

area.

Response 49: With respect to that

portion of the comment concerning the

concept of exceptional events, see

response to comment .48. In response to

the commenter's question about why the

construction activity was not limited to

periods when the atmosphere could

harndle the load, EPA notes that air

quality "load" is not an issue for the

SRR area where construction

contributed to the exceptional event.

Thiere have been no exqeedances or air

quality issues in the SRR area either

before or after the construction activity.

As explained in the proposed rule, the

monitor in the SRR was affected by the

construction activity because it was in

such close proximity to the construction

activity (25-100 feet). 72 FR at 49062.

The monitor has not recorded any

exceedances since the construction

activity at the parking lot was

completed. The comments on the

construction of the asphalt plant and the

fires do not relate to issues in the SJV

area and thus are outside the scope of

this rulemaking.

C. List of EPA Figures in Docket

* Figure 1. "Forward Trajectories at

10, 100, & 250 meters, Lemoore Area to

Corcoran, September 22, 2006, 6 a.m. to

8 a.m. PST," March 6, 2008.

* Figure 2. "Forward Trajectories at

250 meters, Lemoore to Corcoran and

Bakersfield, September 22, 2006, 6 a.m.

to 1 p.m. PST," March 6, 2008.

* Figurq 3. "Forward Trajectories at

10, 100, & 250 meters, Lemoore Area to

Bakersfield, September 22,-2006, 6 a.m.

to 1 p.m. PST," March 6, 2008.

o Figure 4. "Forward Trajectories at

10, 100, & 250 meters, Lemoore Area to

Corcoran, October 25, 2006, 5 a.m. to 7

a.m. PST," March 6, 2008.

* Figure 5. "Forward Trajectories at

250 meters, Lemoore to Corcoran to

Bakersfield, October 25, 2006, 5 a.m. to

11 a.m. PST," March 6, 2008..

a Figure 6. "Forward Trajectories at

10, 100, & 250 meters, Lemoore Area to

Bakersfield, October 25, 2006, 5 a.m. to

11 a.m. PST," March 6, 2008.

a Figure 7. "Annual Peak Day PM10

Concentrations at Corcoran," March 6,

2008.

* Figure 8. "Annual Peak Day PM10

Concentrations at Bakersfield," March 6,

2008.

• Figure 9. "Annual Peak Day PM10

Concentrations at Oildale," March 6,

2008.

* Figure 10. "Annual Peak Fall Day

PM10 Concentrations at Corcoran

(September, October, November Data

Only)," March 6, 2008.

. Figure 11. "Annual Peak Fall Day

PM10 Concentrations at Bakersfield

(September, October, November Data

Only)," March 6, 2008.

• Figure 12. "Annual Peak Fall Day

PMIO Concentrations at Oildale

(September, October, November Data

Only)," March 6, 2008.

IH. Final.Action

For the reasons set forth in detail in

EPA's proposed rule and in today's final

rule, including ihe responses to

comments, EPA is concurring with the

State's and the Santa Rosa Rancheria

Tribe's requests to flag exceedances

occurring in 2006 as being caused by

exceptional events. (i.e., highwinds and

construction activity in very close

proximity to the monitor, respectively).

In addition, as set forth in its proposed

rule, EPA is finding that the monitor at

the Santa Rosa Rancheria was not

properly sited for purposes of collecting

data for comparison to the NAAQS

during the period that exceedances were

monitored in 2006. EPA is thus

concluding that the exceedances that are

the subject of these requests should be

excluded from use in determining

whether the SJV has attained the PM10 NAAQS. EPA is finalizing its

proposal to affirm the determination of

attainment for the SJV, based on qualityassured data through December, 2006.34

For the reasons set forth in its

proposed rule and in this final rule, EPA

is denying the December 29, 2006

petition for reconsideration and the

March 21, 2007 petition for withdrawal

of EPA's 2006 determination of

attainment filed by Earthjustice on

behalf of the Sierra Club, Latino Issues

Forum, and others.

34 The District has flagged exceedances occurring

on July 4, 2007 and January 4, 2008 as being caused

by exceptional events. We intend to address these

exceedances in the future.

IV. Statutory and Executive Order

Reviews

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a "significant regulatory action" and

therefore is not subject 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 imposes no additional

requirements. Accordingly, the

Administrator certifies that this rule

will not have a significant economic

impact on a substantial number of sihall

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).

Executive Order 13175 (65 FR 67249,

November 9, 2000) requires EPA to

develop an accountable process to

ensure "meaningful and timely input by

tribal officials in the development of

regulatory policies that have tribal

implications." As discussed in our

proposed rule, several Indian tribes

have reservations located within the

boundaries of the SJV. EPA is aware of

only one tribe in the SJV that operates

a PM-10 monitor, the Santa Rosa

Rancheria. Prior to and since the

proposed rule, EPA has consulted with

representatives of the Santa Rosa

Rancheria Tribe on the data recorded by

its monitor, and the flagging of the data,

and will continue to work with the

Tribe, as provided for in Executive

Order 13175. Accordingly, EPA has

addressed Executive Order 13175 to the

extent that it applies to this action. 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 ofpower

and responsibilities established in the

Clean Air Act. Executive Order 12898

establishes a Federal policy for

incorporating environmental- justice into

Federal agency actions by directing

agencies to identify and address, as

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appropriate, disproportionately high

and adverse 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 and affirms that

the SJV attained the PM-10 NAAQS. It

will not have disproportionately high

and adverse effects on any communities

in the area, including minority and lowincome 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 because it would

be inconsistent with applicable law for

EPA, when determining the attainment

status of an area, to use voluntary

consensus standards in place of

promulgated air quality standards and

monitoring procedures that otherwise

satisfy the provisions of the Clean Air.

This rule does not impose an

information collection burden under the

provisions of the Paperwork Reduction

Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5

U.S.C. section 801 et seq., as added by

the Small Business Regulatory

Enforcement Fairness Act of 1996,

generally provides that before a rule

may take effect, the agency

promulgating the rule must submit a

rule report, which includes a copy of

the rule, to each House of the Congress

and to the Comptroller General of the

United States. EPA will submit a report

containing this rule and other required

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

House of Representatives, and the

Comptroller General of the United

States prior to publication of the rule* in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

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

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 May 19, 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

40 CFR Parts 52

Environmental protection, Air

pollution control, Incorporation by

reference, Particulate matter, Reporting

and recordkeeping requirements.

40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

Dated March 7, 2008.

Wayne Nastri,

Regional Administrator, Region 9.

[FR Doc. E8-5188 Filed 3-18-08; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 180

(EPA-HQ-OPP-2007-0876; FRL-8344-1]

Spinetoram; Pesticide Tolerance;

Technical Correction

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule; technical correction.

SUMMARY: EPA issued a final rule in the

Federal Register of October 10, 2007,

concerning the establishment of a

tolerance for the combined residues of

the insecticide spinetoram. This

document is being issued to correct a

technical error, specifically, the

omission of the complete tolerance

expression under Unit V. and in the

regulatory text section of the final rule.

DATES: This final rule is effective March

19, 2008.

ADDRESSES: EPA has established a

docket for this action under docket

identification (ID) number EPA-HQOPP-2007-0876. To access the

electronic docket, go to http://

www.regulations.gov, select "Advanced

Search," then "Docket Search." Insert

the docket ID number where indicated

and select the "Submit" button. Follow

the instructions on the regulations.gov

website to view the docket index or

access available documents. All

documents in the docket are listed in

the docket index available in

.regulations.gov. Although listed in the

index, some information is not publicly

available, e.g., Confidential Business

Information (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 in the electronic docket

at http://www.regulations.gov, or, if only

available in hard copy, at the Office of

Pesticide Programs (OPP) Regulatory

Public Docket in Rm. S-4400, One

Potomac Yard (South Bldg.), 2777 S.

Crystal Dr., Arlington, VA. The hours of

operation of this Docket Facility are

from 8:30 a.m. to 4 p.m., Monday

through Friday, excluding legal

holidays. The Docket Facility telephone

number is (703) 305-5805.

FOR FURTHER INFORMATION CONTACT:

Bonaventure Akinlosotu, Registration

Division (7505P), Office of Pesticide

Programs, Environmental Protection

Agency, 1200 Pennsylvania Ave., NW.,

Washington, DC 20460-0001; telephone

number: (703) 605-0653; e-mail address:

akinlosotu.bonaventure@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A' Does this Action Apply to Me?

The Agency included in the final rule

a list of those who may be potentially

affected by this action. If you have

questions regarding the applicability of

this action to a particular entity, consult

the person listed under FOR FURTHER

INFORMATION CONTACT.

B. How Can I Access Electronic Copies

of this Document and Other Related

Information?

In addition to using regulations.gov,

you may access this Federal Register

document electronically through the

EPA Internet under the "Federal

Register" listings at http://

www.epa.gov/fedrgstr.

II. What Does this Correction Do?

The final rule, identified as FR Doc.

E7-19947 that published in the Federal

Register of October 10, 2007 (72 FR

57492) (FRL-8149-9) is corrected to fix

a technical error, specifically, the

omission of the complete tolerance

expression for the combined residues of

the insecticide spinetoram under Unit

V. (page 51498, second column) and in

the regulatory text section (page 57499,

first column) of the final rule.

Unit V. Conclusion, on page 57498,

second column, is corrected to read as

follows:

"Therefore, the tolerance is established for

the combined residues of the insecticide

spinetoram, expressed as a combination of

XDE-175-J: 1-H-as-indaceno[3,2-

dloxacyclododecin-7,15-dione, 2-[(6-deoxy-3-

O-ethyl-2,4-di-O-methyl-a-Lmannopyranosyloxy-13-[[(2R,5S,6R)-5-

(dimethylamino)tetrahydro-6-methyl-2Hpyran-2-yl]oxy]-9-ethyl-2,3,3a,4,5,5a,5b,

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