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###### Environmental Protection Agency

          - 40 CFR Part 81 
          - [Docket WA-00-01; FRL-6902-6] 

# AGENCY:

EPA. 

# ACTION:

Proposed rule.

# SUMMARY:

                        EPA proposes to determine that the Wallula nonattainment area has not attained the National Ambient Air Quality Standards for particulate matter with an aerodynamic diameter of less than or equal to 10 microns (PM10) by the attainment date of December 31, 1997, as required by the Clean Air Act. EPA's proposed finding is based on EPA's review of monitored air quality data reported for the years 1995 through 1999. If EPA takes final action on this proposal, the Wallula PM10      ( print page 69276)                            nonattainment area will be reclassified by operation of law as a serious PM10                         nonattainment area.                     

# DATES:

Comments on this proposal must be received in writing by December 1, 2000. 

# ADDRESSES:

Submit written comments to Donna Deneen, EPA, Region 10, Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101. You may view documents supporting this action during normal business hours at the following location: EPA, Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101. 

# FOR FURTHER INFORMATION CONTACT:

Donna Deneen, EPA Region 10, Office of Air Quality, at (206) 553-6706. 

# SUPPLEMENTARY INFORMATION:

The supplementary information is organized as follows:

I. What action are we taking? 

II. What is the background for this action? 

III. How does EPA determine whether an area has attained the standard by the attainment date? 

                        IV. What information supports EPA's finding that the Wallula area has not attained the PM10                         standard by the attainment date?                     

V. Does the Wallula area qualify for a permanent waiver of the December 31, 1997 attainment date? 

VI. What are the implications of this proposed finding? 

VII. Administrative Requirements 

A. Executive Order 12866

B. Executive Order 13045

C. Executive Order 13084

D. Regulatory Flexibility Act 

E. Unfunded Mandates Reform Act 

F. Executive Order 13132

G. National Technology Transfer and Advancement Act

## I. What Action Are We Taking? 

                    In this action, we are proposing to find that the Wallula nonattainment area has not attained the National Ambient Air Quality Standards (NAAQS) for particulate matter with an aerodynamic diameter of less than or equal to 10 microns (PM10                    ) by the attainment date of December 31, 1997, as required by the Clean Air Act. [1]                                          This proposed finding is based on EPA's review of monitored PM10                     air quality data reported for the years 1995 through 1999, inclusive. If EPA takes final action on this proposal, the Wallula PM10                     nonattainment area will be reclassified by operation of law as a serious PM10                     nonattainment area.                 

## II. What is the Background for This Action? 

                    The Wallula area was designated nonattainment for PM10                     and classified as moderate under sections 107(d)(4)(B) and 188(a) of the Clean Air Act upon enactment of the Clean Air Act Amendments of 1990 (Act or CAA). [2]                                          See 40 CFR 81.348 (PM10                     Initial Nonattainment Areas); see also 56 FR 56694 (November 6, 1991). Under subsections 188(a) and (c)(1) of the Act, all initial moderate PM10                     nonattainment areas had the same applicable attainment date of December 31, 1994.                

                    States containing initial moderate PM10                     nonattainment areas were required to develop and submit to EPA by November 15, 1991, a state implementation plan (SIP) revision providing for, among other things, implementation of reasonably available control measures (RACM), including reasonably available control technology (RACT), and a demonstration of attainment of the PM10                     NAAQS by December 31, 1994. See section 189(a) of the CAA. [3]                                          In response to this submission requirement, the Washington Department of Ecology (Ecology) submitted a SIP revision for Wallula on November 15, 1991. Subsequently, Ecology submitted additional information indicating that nonanthropogenic sources may be significant in the Wallula nonattainment area during windblown dust events. Based on our review of the State's submissions, we deferred action on several elements in the Wallula SIP, approved the control measures in the SIP as meeting RACM/RACT, and, under section 188(f) of the CAA, granted a temporary waiver to extend the attainment date for Wallula to December 31, 1997. See 60 FR 63109 (December 6, 1995)(proposed action); 62 FR 3800 (January 27, 1997) (final action). The temporary waiver was intended to provide Ecology time to evaluate further the Wallula nonattainment area and to determine the significance of the anthropogenic and nonanthropogenic sources impacting the area. Once these activities were complete or the temporary waiver expired, EPA was to make a decision on whether the area was eligible for a permanent waiver under section 188(f) of the CAA or whether the area had attained the standard by the extended attainment date. See 62 FR 3802. Based on all the information currently available to EPA, we do not believe that nonanthropogenic sources of PM10                     contribute significantly to violations of the PM10                     standards in the Wallula nonattainment area. We therefore do not believe that the State has demonstrated that the area qualifies for a permanent waiver of the attainment date. Accordingly, in this action, we are proposing to find that the Wallula area has not attained the PM10                     standards by the applicable attainment date of December 31, 1997.                 

## III. How does EPA Determine Whether an Area has Attained the Standard by the Attainment Date? 

                    EPA has the responsibility, pursuant to sections 179(c)(1) and 188(b)(2) of the CAA, to determine within six months of the applicable attainment date, whether PM10                     nonattainment areas attained the PM10                     NAAQS by the attainment date. Determinations under section 179(c)(1) of the Act are to be based upon an area's “air quality as of the attainment date.” Section 188(b)(2) is consistent with this requirement. Generally, EPA will determine whether an area's air quality is meeting the PM10                     NAAQS for purposes of sections 179(c)(1) and 188(b)(2) based upon data gathered at monitoring sites in the nonattainment area and entered into the Aerometric Information Retrieval System (AIRS). Data entered into the AIRS has been determined by EPA to meet federal monitoring requirements (see 40 CFR 50.6 and appendix J, 40 CFR part 53, 40 CFR part 58, appendices A and B). The data are reviewed in accordance with 40 CFR part 50, appendix K, to determine the area's air quality status.                 

                    Pursuant to appendix K, the annual PM10                     standard is attained when the expected annual arithmetic average of the 24-hour samples for a period of one year does not exceed 50 micrograms per cubic meter (μg/m3                    ). The 24-hour PM10                     standard is attained when the expected number of days in a year with PM10                     concentrations greater than 150 μg/m3                    , averaged over a three year period, is less than or equal to one. To calculate “the expected number of days,” we use the number of exceedances that are observed in a year, then adjust that number to account for the sampling schedule of the monitor and any                           ( print page 69277)                        missing data. A total of three consecutive years of non-violating air quality data is generally necessary to show attainment of the 24-hour and annual standard for PM10. See 40 CFR 50.6 and 40 CFR part 50, appendix K.                 

                    EPA is publishing this proposal pursuant to section 188(b)(2) of the Act. Under subpart (A) of that section, a moderate PM10                     nonattainment area is reclassified as serious by operation of law if EPA finds that the area is not in attainment by the applicable attainment date. Pursuant to section 188(b)(2)(B) of the Act, EPA must publish a                     **Federal Register**                     document within six months after the applicable attainment date identifying those areas that have failed to attain the standard and that have been reclassified to serious by operation of law. See section 188(b)(2); see also section 179(c)(1).                 

##                     IV. What Information Supports EPA's Finding That the Wallula Area has not Attained the PM10                     Standard by the Attainment Date?                 

                    As explained above, attainment determinations are based upon an area's “air quality as of the attainment date.” Since Wallula's attainment date was extended to December 31, 1997, we first looked at the PM10                     air quality data for 1995, 1996, and 1997. These data show that, for this three year period, there were no violations of the annual PM10                     standard. For the 24-hour standard, however, there were two measured exceedances: 160 μg/m[3]                      on June 21, 1997, and 210 μg/m[3]                      on July 3, 1997. After adjusting these two 24-hour exceedances to account for the sampling schedule [4]                                          and missing data, the expected number of days with PM10                     concentrations greater than 150 μg/m3                     was 4.1. Since this value is greater than one, these data show that Wallula was not in attainment of the 24-hour PM10                     standard as of its December 31, 1997, attainment date.                 

                    In addition to the 1995 through 1997 data, we also looked at the most recent data for Wallula. In 1998 and 1999 there were no violations of the annual standard. However, since January 1, 1998, there have been two additional exceedances of the 24-hour standard: 215 μg/m3                     on July 10, 1998, and 297 μg/m3                     on June 23, 1999. Using these values, along with the 1997 exceedances of 160 μg/m3                     and 210 μg/m3                    , we calculated the expected number of days with PM10                     concentrations greater than 150 μg/m3                     for the 1997 through 1999 period (i.e., the most recent three-year period). Accounting for the sampling schedule and missing data, the expected number of days for this period was 8.4. Because this value is greater than one, these data show that Wallula is still not in attainment of the 24-hour PM10                     standard.                 

                    In a May 30, 1996, Memorandum from EPA's Assistant Administrator for Air and Radiation to EPA Regional Air Directors entitled “Areas Affected by Natural Events” (EPA's Natural Events Policy), EPA has stated that in some circumstances it is appropriate to exclude PM10                     air quality data that are attributable to uncontrollable natural events, such as unusually high winds, from decisions regarding an area's attainment status. Under the policy, where a State believes natural events have caused a violation of the NAAQS, the State enters the exceedance in the AIRS data base, flags the exceedance as being attributable to a natural event, documents a clear causal relationship between the measured exceedance and the natural event, and develops a natural events action plan (NEAP) to address future natural events. In the case of high-wind events where the sources of dust are anthropogenic, the State should also document that Best Available Control Measures (BACM) were required for those sources and the sources were in compliance with BACM at the time-of the high-wind event. EPA's Natural Events Policy also contains guidance for notifying the public of the occurrence of natural events and the health effects of such events, as well as minimizing public exposure to high concentrations of PM10                     due to natural events.                 

                    Ecology has flagged certain exceedances of the PM10                     NAAQS in the Wallula area under EPA's Natural Events Policy and has also developed a Natural Events Action Plan for High Wind Events in the Columbia Plateau (March 1998), which includes the Wallula PM10                     nonattainment area. Since January 1, 1995, the beginning of the time period for the data considered by EPA in this action, we are aware of one exceedance of the PM10                     standard in the Wallula area—June 21, 1997— that Ecology has flagged as attributable to high winds under EPA's Natural Events Policy.[5]                                          EPA has no information indicating Ecology has claimed any of the other exceedances of the 24-hour PM10                     standard in the Wallula area since January 1, 1995, as attributable to natural events.[6]                                          Even if the June 21, 1997, exceedance is excluded from the attainment determination, the expected number of days during the 1995-1997 time period with PM10                     concentrations greater than 150 μg/m3                     is 2.0 and still demonstrates nonattainment of the 24-hour PM10                     standard. Similarly, for the 1997-1999 time period, the expected number of days with PM10                     concentrations greater than 150 μg/m3                     is 6.4 and demonstrates nonattainment of the 24-hour standard even if the June 21, 1997, exceedance is excluded.                 

## V. Does the Wallula Area Qualify for a Permanent Waiver of the December 31, 1997, Attainment Date? 

                    Section 188(f) of the Act provides that EPA may, on a case-by-case basis, waive a specific date for attainment of the PM10                     standards where EPA determines that nonanthropogenic sources of PM10                     contribute significantly to the violation of the PM10                     standards in the nonattainment area. Based on the currently available information, we do not believe the Wallula area qualifies for a permanent waiver of the moderate area extended attainment date of December 31, 1997. EPA also has not received a request from Ecology for a permanent waiver of the attainment date under section 188(f). In addition, the information available to EPA does not establish that nonanthropogenic sources of PM10                     contribute significantly to the violations of the PM10                     standards in the Wallula PM10                     nonattainment area. As discussed above, only one of the exceedances of the PM10                     standards since January 1, 1995, has been claimed by Ecology as attributable to a natural event. EPA therefore believes that the other exceedances were due to anthropogenic sources of PM10                    . Accordingly, in light of the data showing the Wallula area was in violation of the 24-hour PM10                     standard as of the December 31, 1997, attainment date, as well as the data showing the area continues to violate the 24-hour PM10                     standard, we are proposing to find, in accordance with section 188(b)(2) of the Act, that the Wallula PM10                     nonattainment area did not attain the                           ( print page 69278)                        PM10                     NAAQS by the applicable attainment date of December 31, 1997.                 

## VI. What are the implications of this proposed finding? 

                    If EPA takes final action on this proposed finding, the Wallula PM10                     nonattainment area will be reclassified by operation of law as a serious PM10                     nonattainment area under section 188(b)(2)(A) of the Act. PM10                     nonattainment areas reclassified as serious under section 188(b)(2) of the Act are required to submit, within 18 months of the area's reclassification, SIP provisions providing for, among other things, the adoption and implementation of best available control measures (BACM), including best available control technology (BACT), for PM10                     no later than four years from the date of reclassification. The SIP also must contain, among other things, a demonstration that the implementation of BACM will provide for attainment of the PM10                     NAAQS no later than December 31, 2001.[7]                                          In addition, the terms “major source” or “major stationary source” include any stationary source or group of stationary sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 70 tons per year of PM10                    . See sections 188(c)(2) and 189(b). These requirements are in addition to the moderate PM10                     nonattainment requirements of RACT/RACM, which, as discussed above, were approved for the Wallula nonattainment area on January 27, 1997. See 62 FR 3800.                 

## VII. Administrative Requirements 

### A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), EPA is required to determine whether regulatory actions are significant and therefore should be subject to Office of Management and Budget (OMB) review, economic analysis, and the requirements of the Executive Order. The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may meet at least one of the four criteria identified in section 3(f), including, under paragraph (1), that the rule may “have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities.” 

The Agency has determined that the finding of failure to attain proposed today would result in none of the effects identified in section 3(f). Under section 188(b)(2) of the CAA, findings of failure to attain are based upon air quality considerations and the resulting reclassifications must occur by operation of law in light of certain air quality conditions. They do not, in and of themselves, impose any new requirements on any sectors of the economy. In addition, because the statutory requirements are clearly defined with respect to the differently classified areas, and because those requirements are automatically triggered by classifications that, in turn, are triggered by air quality values, findings of failure to attain and reclassification cannot be said to impose a materially adverse impact on State, local or tribal governments or communities. 

### B. Executive Order 13045

Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be economically significant as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed action is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866.

### C. Executive Order 13084

Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities. 

Today's proposed finding of failure to attain does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this proposed finding of failure to attain. 

### D. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. 

Findings of failure to attain and the resulting reclassification of nonattainment areas by operation of law under section 188(b)(2) of the CAA do not in and of themselves create any new requirements. Instead, this rulemaking only proposes to make a factual determination, and does not propose to directly regulate any entities. Therefore, pursuant to 5 U.S.C. 605(b), I certify that today's proposed action does not have a significant impact on a substantial number of small entities within the meaning of those terms for RFA purposes. 

### E. Unfunded Mandates Reform Act 

                    Under section 202 of the Unfunded Mandates Reform Act of 1995 (“UMRA”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to state, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be                           ( print page 69279)                        significantly or uniquely impacted by the rule.                 

EPA believes, as discussed above, that the proposed finding of failure to attain is a factual determination based upon air quality considerations and that the resulting reclassification of the area must occur by operation of law. Thus, the finding does not constitute a Federal mandate, as defined in section 101 of the UMRA, because it does not impose an enforceable duty on any entity. 

### F. Executive Order 13132

Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612, Federalism, and 12875, Enhancing the Intergovernmental Partnership. Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation. 

This finding of failure to attain and reclassification of nonattainment area will 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), because these actions do not, in-and-of-themselves, impose any new requirements on any sectors of the economy, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to these actions. 

### G. National Technology Transfer and Advancement Act 

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical. 

The EPA believes that VCS are not relevant to this action because today's action does not involve the application of new technical standards. 

# List of Subjects in 40 CFR Part 81

      - Environmental protection
      - Air pollution control
      - Intergovernmental relations
      - Particulate matter

Dated: November 6, 2000.

Charles E. Findley, 

Acting Regional Administrator, Region 10. 

# Footnotes

1.                             On July 18, 1997, EPA promulgated revised and new standards for PM10                         and PM2.5                         (62 FR 38651). The U.S. Court of Appeals for the D.C. Circuit in                         *American Trucking Assoc., Inc., et al.*                        v.                         *USEPA,*                        175 F.3d 1027 (D.C. Cir. 1999), issued an opinion that, among other things, vacated the new standards for PM10                         that were published on July 18, 1997, and became effective September 16, 1997. However, the PM10                         standards promulgated on July 1, 1987, were not an issue in this litigation, and the Court's decision does not affect the applicability of those standards in the Wallula area. Codification of those standards continue to be recorded at 40 CFR 50.6. Today's proposed action relates only to the CAA requirements concerning the PM10                         standards as originally promulgated in 1987.                    
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2.                             The 1990 Amendments to the CAA made significant changes to the CAA.                         *See*                        Public Law No. 101-549, 104 Stat. 2399. References herein are to the CAA as amended in 1990. The Clean Air Act is codified, as amended, in the United States Code at 42 U.S.C. 7401,                         *et seq.*
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3.                             The moderate area SIP requirements are set forth in section 189(a) of the CAA.                    
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4.                             Because the Wallula monitor is scheduled to sample once every six days, each measured exceedance is generally counted as six expected exceedances. If there is missing data, the measured exceedance may count for more than that.                    
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5.                             Ecology subsequently submitted documentation to EPA to support its claim that the June 21, 1997 exceedance was due to a “natural event,” although it is unclear when EPA received this documentation. In addition, because the documentation from Ecology was marked “draft,” it was not clear to EPA that this was intended to be treated as the State's final submission and EPA has therefore not confirmed this flag. EPA now understands from Ecology that Ecology intended the submission marked “draft” to serve as its final submission, and EPA will therefore proceed with reviewing the documentation submitted by the State.                    
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6.                             Indeed, the State has specifically confirmed that it does not consider the July 10, 1998, exceedance to be due to high winds.                    
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7.                             If certain conditions are met, EPA may extend this attainment deadline to no later than December 31, 2006. CAA 188(e).                    
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[FR Doc. 00-29360 Filed 11-15-00; 8:45 am] 

BILLING CODE 6560-50-u