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63642 Federal Register/Vol. 71, No. 209/Monday, October 30, 2006/Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[EPA-R09-OAR-2006-0583, FRL-8234-1]

Approval and Promulgation of

Implementation Plans; Designation of

Areas for Air Quality Planning

Purposes; State of California; PM-10;

Determination of Attainment for the

San Joaquin Valley Nonattainment

Area; Determination Regarding

Applicability of Certain Clean Air Act

Requirements

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing its

determination that the San Joaquin

Valley nonattainment area (SJV or the

Valley) in California has attained the

National Ambient Air Quality Standards

(NAAQS) for particu'late matter with an

aerodynamic diameter less than or equal

to a nominal 10 micrometers (PM-10).

This determination is based upon

monitored air quality data for the PM10 NAAQS during the years 2003-2005.

The SJV continues to attain the PM-10

NAAQS in 2006 based on the latest

available quality assured data. EPA is

also finalizing its determination that,

because the SJV has attained the PM-10

NAAQS, certain Clean Air Act (CAA or

the Act) requirements are not applicable

for as long as the SJV continues to attain

the PM-10 NAAQS.

DATES: Effective Date: This rule is

effective October 30, 2006.

ADDRESSES: You can inspect copies of

the docket for this action at EPA's

Region IX office during normal business

hours by appointment at the following

locations:

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105-3901:

Air and Radiation Docket and

Information Center, U.S. Environmental

Protection Agency, Room B-102, 1301

Constitution Avenue, NW. (Mail Code

6102T), Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT:

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

3959, lo.doris@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, "we," "us"

and "our" refer to EPA.

Table of Contents

I. Summary of Proposed and Final Actions

II. Public Comments and EPA Responses

A. Environmental Justice

B. The Clean Data Policy

C. New Particulate Matter (PM) NAAQS

D. EPA Policy on Special Purpose

Monitoring Data

E. Adequacy of the SJV Monitoring

Network

F. Data Not Included in Determining

Attainment

1. Data From September 3, 2004 High Wind

Event

2. Data From BAM and TEOM Monitors

G. Representativeness of Data

H. Other Comments

IM1. Final Action

IV. Effective Date of This Final Action

V. Statutory and Executive Order Reviews

I. Summary of Proposed and Final

Actions

On July 19, 2006, EPA proposed to

determine that the SJV has attained the

24-hour and annual NAAQS for PM-IO.

(71 FR 40952). 1 The proposed

determination was based upon

monitored air quality data during the

years 2003-2005 which indicated that

there were no violations during that

time. This data is summarized in table

1 in the proposed rule. 71 FR at 40953-

54. EPA also based its proposed

determination on monitored air quality

data indicating the area continued to

attain in 2006. EPA also proposed to

determine that certain Clean Air Act

(CAA or the Act) requirements were not

applicable for as long as the SJV

continued to attain the PM-10 NAAQS.

Specifically, for the SJV, EPA proposed

to determine that the CAA section

172(c)(9) contingency measure

requirement for the area is suspended.

For a more detailed discussion of the

related'background for the SW and of

the proposal, please refer to the

proposed rule.

In this notice EPA is finalizing its

determination that the SJV has attained

the NAAQS, based upon three years of

complete, quality-assured monitored air

quality data for 2003-2005, and based

upon its determination that the area

continues to attain the PM-10 NAAQS

in 2006 based on quality assured data

submitted to EPA's AQS Database

through July 31, 2006. See AQS Report

AMP350 titled "SJV PM-10 SLAMS

Raw Data Report January 2003-July

2006" included in the docket for this

notice. In finalizing its determination,

EPA has also reviewed preliminary

monitoring data for monitors in the SJV

that has become available since July 31,

2006.

EPA learned recently of preliminary

data indicating that exceedances of the

standard were monitored on September

1 On September 21, 2006, EPA signed a final rule

revoking the annualPM-10 standard. That

revocation will be effective 60 days from

publication of the rule in the Federal Register.

Since the revocation will not be effective until after

our attainment determination for the SJV, we are

taking final action determining that the area has

attained both the annual and 24-hour PM-10

standard.

22, 2006 at State and Local Air

Monitoring Station (SLAMS) monitors

in Corcoran (215 g/m3), BakersfieldGolden State Hwy. (157 g/m 3), and

Oildale (162 pg/m 3 ).2 The California Air

Resources Board (CARB) and the San

Joaquin Valley Air Pollution Control

District (District) have informed EPA

that, based on preliminary analysis, they

believe that these exceedances are due

to high wind and wildfire natural

events. CARB notified EPA that it

intends to flag these data as caused by

natural events and to request that EPA

concur with these flags. As such the

data would not be included for

consideration in a determination of

attainment for the SJV, pursuant to

EPA's Natural Events Policy.3 Because

these data, which were collected using

manual reference method samplers, are

preliminary and have not been qualityassured, and because EPA believes that

they may qualify as caused by naturalevents, and thus be excluded from

consideration in an attainment

determination, EPA is proceeding to

finalize its determination that the area is

in attainment. If, after the data is

quality-assured, and after further

evaluating CARB's request with respect

to these data, EPA determines that the

data do not qualify for exclusion under

EPA's natural events policy, and EPA

further believes that if included that

they would establish that the area is in

violation of the NAAQS, EPA will

proceed with appropriate rulemaking

action to withdraw its determination of

attainment.

EPA is also finalizing its

determination that, because the SJV has

attained the PM-10 NAAQS, certain

requirements, and specifically the

contingency measure requirement of

section 172(c)(9) of the Clean Air Act,

do not apply to the SJV area for so long

as the area continues to attain the

NAAQS.

II. Public Comments and EPA

Responses

EPA received one comment letter in

support of our proposal from the District

stating that the determination is a result

of "nearly two decades of intense efforts

to reduce emissions of PM-10 and its

precursors." The District also states that

2 24-hour PM-10 exceedances were also recorded

on September 22, 2006 with the automated

equivalent (Beta Attenuation Mass/Tapered

Element Oscillating Microbalance) PM-10 analyzers

operated at the Bakersfield-Golden and Corcoran

sites, as well as the Beta Attenuation Mass monitor

at the Tracy site. See response to conment 15

below. 3 EPA's NEP 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.

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"emissions of PM-10 and its precursors

have decreased by about 24% since

1990" which is significant given the

population growth. Finally the District

states that this determination "does not

in any way imply or allow the District

or CARB to relax air quality strategies"

and will allow the District to better

dedicate resources for upcoming plans

that will focus on PM-2.5 and ozone

attainment.

EPA received one adverse comment

letter from Earthjustice, representing

Medical Advocates for Healthy Air,

Sierra Club, Latino Issues Forum,

Steven and Michele Kirsch Foundation,

the Center for Biological Diversity, El

Comite para el Bienestar de Earlimart/

The Committee for the Well Being of

Earlimart, Fresno Metro Ministry and

the Coalition for Clean Air. EPA also

received approximately 2000 adverse

comment letters from individual

citizens. Many of these comments were

form letters that contained identical

comments. EPA addresses all of the

specific comments raised by

Earthjustice in its responses to

comments numbers I to 24. EPA is

responding to many of the individual

citizens' comments in responses to

comments numbers 25 and 26 and in

the context of the responses to

Earthjustice, since they raised many of

the same issues.

A. Environmental Justice

Comment 1: EPA received comments

arguing that its process for making this

determination did not adequately

consider EPA's environmental justice

mission: "[t]o achieve equal

environmental protection so no segment

of the population, regardless of race,

ethnicity, culture or income bears an

undue burden of environmental

pollution and to ensure that the benefits

of environmental protection are shared

by everyone." The principal

environmental justice commenter,

Earthjustice, argues that most sources of

PM-10 pollution in the Valley are

located in agricultural areas where

population densities are low, but

percentages of minority and low-income

residents are high. The comment claims

that EPA has not adequately

investigated whether such areas,

particularly in the western part of the

Valley, are in attainment and is not

adequately monitoring those areas.

Without more thorough investigation

and monitoring of air quality in the

western part of the Valley, the comment

concludes, EPA cannot "carry out its

environmental justice mandate."

Response: EPA is committed to

environmental justice, and a November

2005 memorandum by Administrator

Johnson has reiterated EPA's "ongoing

commitment to ensure environmental

justice for all people, regardless of race,

color, national origin, or income." EPA

believes that this attainment

determination is fully consistent with

that commitment, and ensures

environmental protection for all

residents of the Valley, including

residents of the western part of the

Valley, and regardless of race, color,

national origin, or income.

The gist of the environmental justice

argument is that EPA has not adequately

investigated and analyzed air quality in

minority and low-income communities

in the western part of the Valley.

Although that is framed as an

environmental justice argument, it is

really a challenge to the adequacy of the

legal basis for EPA's determination that

the entire Valley is in attainment. As

explained more fully elsewhere, EPA

has an adequate factual and legal basis

for that determination, and has assessed

air quality through monitored data that

is representative of all areas of the

Valley, including the west side,

minority and low income communities

addressed in the comment. Thus, the

commenter is mistaken in claiming that

EPA failed to investigate those areas

adequately, or that such a purported

failure prevented the Agency from

adequately implementing

environmental justice.

Similarly, EPA rejects claims that the

monitoring conducted by the State and

District is deficient. As explained more

fully elsewhere, the District's

monitoring network provides for

adequate and accurate assessments of

air quality throughout the Valley,

including minority and low income

communities in the western area.

Comment 2: Commenters, principally

Earthjustice, assert that low income and

minority populations were not provided

an adequate opportunity to comment on

the rule. Earthjustice asserts that "the

concerned people of the Valley" sought

an "opportunity to be heard," and

unsuccessfully requested that EPA hold

a hearing. That comment also points out

that many west side residents "do not

speak English, do not own computers,

and do not have the time or expertise to

draft public comments."

Response: EPA believes that

interested parties were given adequate

opportunities to comment on the

proposed determination of attainment.

Section 553(c) of the Administrative

Procedure Act (APA), which governs

informal rulemaking actions, such as

determinations of attainment, does not

require EPA to provide for a hearing.

Section 553 (c) states that:

The agency shall give interested persons an opportunity to participate in the rulemaking

through submission of written data, views, or arguments with or without opportunity for

oral presentation.

EPA does not, as a matter of standard

practice, conduct hearings on

determinations of attainment. EPA does

not believe a hearing was needed in this

case, or would have been an appropriate

use of the Agency's limited resources.

EPA also does not agree with the

commenters' implicit suggestion that,

without a hearing, Valley residents had

no forum for expressing their concerns. EPA believes that the opportunity to

provide written comments was

sufficient for providing input from the

public. That gave interested parties an

opportunity to present data, views and

arguments through written comments.

No showing has been made that the

opportunity to provide written

comments precluded meaningful public

participation. To the contrary, EPA

received comments that identified and

expansively discussed the concerns of

minority and low income communities

in the Valley. Thus, EPA does not agree

with the suggestion that Valley

residents, or anyone else, did not have

adequate input into Agency decision

making.

B. The Clean Data Policy

Comment 3: The commenter contends

that EPA cannot use its Clean Data

Policy to exempt the District from

subpart 4 requirements. The commenter

notes that EPA cites to two EPA

memoranda incorporated into EPA's

Phase 2 8-hour ozone implementation

rule, and relies on other attainment

findings and redesignations that

interpret the Clean Data Policy to justify

waiving CAA requirements for PM-10

areas. The commenter argues that EPA

provides none of its own analysis for

proposing that the attainment

determination will relieve the District of

the obligation to comply with CAA

requirements for reasonably available

control measures ("RACM"), attainment

demonstrations, reasonable further

progress ("RFP") and contingency

measures. The commenter also alleges

that EPA improperly expands the Clean

Data Policy by claiming that the District

will no longer be subject to the RACM

requirements of the Act. The commenter

further contends that even if one were

to accept EPA's argument, it would not

apply to the SJV because as a serious

PM-10 nonattainment area the Valley. is

subject to the BACM requirements of

section 189(b)(1)(B). The commenter

notes that EPA's Addendum to the

General Preamble makes clear that

unlike RACM, determinations of BACM

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are not tied to what is necessary for

attainment. The commenter points out

that the proposal correctly omits BACM

from the list of CAA requirements

waived under the Clean Data Policy, but

requests that the final rule should be

explicit that the BACM requirement is

maintained.

Response: As noted in the proposal,

EPA has previously approved all of the

serious area PM-10 attainment plan

requirements for the SJV except for the

contingency measure requirements of

CAA section 172(c)(9). See 69 FR 30006

(May 26, 2004) approving the 2003 PM10 Plan for the SJV. In that action, EPA

approved the RFP, attainment and

RACM/BACM demonstrations for the

SJV. Thus the issue of whether these

requirements should be suspended is

not before us, except insofar as our

reasoning for why the contingency

measures requirement is suspended

rests on the rationale for suspending the

attainment demonstration and RFP

requirements. Nevertheless, as

explained below, EPA believes that once

the area attains the standards the RFP,

attainment and RACM demonstrations

would not be needed even though they

have already been approved.

That said, EPA is correct in applying

the Clean Data Policy in its

determination of attainment in the SJV,

add affirms the Agency's interpretation

of subparts 1 and 4 of part D of the CAA.

As EPA noted in its proposal, the Clean

Data Policy has been applied in the

context of the 1-hour and 8-hour ozone

standards as well as in a number of PM10 rulemakings. EPA's discussion of the

application of the Clean Data Policy is

set forth at length in its proposed

rulemaking on Weirton, West Virginia

71 FR 27440, 27443-27445 (May 11,

2006), as well as in the memoranda and

rulemakings cited therein. As we

explained in that notice, the reasons for

relieving an area that has attained the

relevant standard of certain part D,

subpart 1 and 2 obligations, apply

equally as well to part D, subpart 4,

which contains specific attainment

demonstration and RFP provisions for

PM-IO nonattainment areas.

EPA's analysis of the Clean Data

Policy as it applies to PM-10 areas was

contained in the documents cited in the

proposal. Contrary to commenter's

contention, the fact that EPA's analysis

w"was provided in prior memoranda and

rulemakings does not detract from the

fact that it is EPA's own analysis.

Indeed, EPA's consistency in the

application of its interpretation lends it

added weight. We reiterate here that

EPA's analysis of its legal interpretation

can be found in its "Final Rule to

Implement the 8-hour Ozone National

Ambient Air Quality Standard-Phase

2" (Phase 2 Final Rule) 70 FR 71612,

71645-71646 (November 29, 2005) and

the rulemakings and memoranda cited

therein, the May 10, 1995 memorandum

from John S. Seitz, entitled "Reasonable

Further Progress, Attainment

Demonstration, and Related

Requirements for Ozone Nonattainment

Areas Meeting the Ozone National

Ambient Air Quality Standard," the

December 14, 2004 memorandum from

Stephen D. Page, entitled, "Clean Data

Policy for the Fine Particle National

Ambient Air Quality Standards," and

rulemakings concerning the application

of the policy to PM-10 areas-71 FR

6352, 6354 (February8, 2006); 71 FR

13021, 13024 (March 14, 2006); and 71

FR 27440, 27443-27444 (May 11, 2006).

Furthermore, three U.S. Circuit Courts

of Appeals have upheld EPA

rulemakings applying EPA's

interpretation of subparts 1 and 2 with

respect to clean data for ozone. Sierra

Club v. EPA, 99 F.3d 1551 (10th Cir.

1996); Sierra Club v. EPA, 375 F.3d 537

(7th Cir. 2004); Our Children's Earth

Foundation v. EPA, No. 04-73032 (9th

Cir. June 28, 2005) (Memorandum

Opinion). EPA has also set forth its legal

rationale for the Clean Data Policy in

briefs filed in these cases, and hereby

incorporates those briefs insofar as

relevant here. See Sierra Club v. EPA,

No. 95-9541 (10th Cir.), Sierra Club'v.

EPA, No. 03-2839, 03-3329 (7th Cir.),

Our Children's Earth Foundation v.

EPA, No. 04-73032 (9th Cir.). 4

As EPA noted in those memoranda

and rulemakings, EPA believes it is

reasonable to interpret the provisions

regarding attainment demonstrations,

reasonable further progress, RACM

requirements, contingency measures,

and other related requirements as being

suspended and as not requiring further

submissions to achieve attainment for so

long as the area is in fact attaining the

standards. Under the policy, EPA is not

granting an exemption from any

applicable requirements under part D.

Rather, EPA has interpreted these

provisions as not requiring submissions

for so long as the area remains in

attainment with the standard. This is

not a waiver of requirements that by

their terms apply; it is a determination

that certain requirements are written so

as to be operative only if the area is not

attaining the standards. Thus, in making

its determination of attainment, EPA is

also concluding that certain subpart 4

and subpart 1 requirements are no

longer applicable for so long as the area

remains in attainment.

4These briefs are in the docket for this

rulemaking.

With respect to the requirement for

attainment demonstrations, EPA.

believes that the statutory requirement

for an attainment demonstration-a SIP

revision which identifies the level of

future reductions needed to achieve the

NAAQS and any additional adopted

measures needed to. achieve these

reductions " is written so as to be

inapplicable once the NAAQS is

attained. Section 189(a)(1)(B) requires

that the plan provide for "a

demonstration (including air quality

modeling) that the [SIP] will provide for

attainment by the applicable attainment

date. * * " Section 189(b)(1) further

requires that serious PM-10

nonattainment areas submit:

(A) A demonstration (including air quality

modeling)-

(I) that the plan provides for attainment of

the national ambient air quality standard by

the applicable attainment date, or (ii ) for any area for which the State is seeking, pursuant

to section 188(e), an extension of the

attainment date beyond the date set forth in

section 188(c), that attainment by that date

would be impracticable, and that the plan

provides for attainment by the most

expeditious alternative date practicable.

If an area is already monitoring

attainment, EPA believes that Congress

intended no requirement for an area to

make a further submission containing

additional measures to achieve

attainment. Since the SJV area is already

in attainment, there is no need for it to

submit a plan demonstrating how the

area will reach attainment had it not

already done so. This is consistent with

the interpretation of the section

172(c)(1) attainment demonstration

requirement that EPA provided in the

General Preamble and the Page

memorandum, and of the section 182(b)

and (c) requirements set forth in the

Seitz memorandum. As EPA stated in

the General Preamble, no other

measures to provide for attainment

would be needed by areas seeking

redesignation to attainment since

"attainment will have been reached." 57

FR at 13564.

We note that the commenter offered

no specific critique of EPA's

interpretation of the Clean Data Policy

with regard to the attainment

demonstration requirement. In addition,

EPA's conclusion is consistent with the

rule of statutory construction that

statutes should be construed to avoid

absurd results and favor public

convenience. Because the SJV has

already reached attainment based on

existing measures, no additional

measures to demonstrate attainment are

required. Thus, under the language of

section 172(c)(1), section 189(a)(1)(B)

and section 189(b)(1), an attainment

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demonstration would be the empty set.

EPA therefore believes that, in the

context of evaluating whether the

contingency measure requirement is

suspended, because the SJV area is

attaining the standard, the attainment

demonstration requirement would also

be suspended for so long as the area

remains in attainment, had it not

already been approved.

As for the suspension of the RACM

requirement, it does not have

significance in the context of the SJV,

because, as the commenter notes,

BACM, which goes beyond RACM, has

already been approved for the SJV, and

BACM would not be suspended by the

determination of attainment because as

petitioner notes the BACM requirement

is not tied to attainment needs. Thus

EPA need not further address whether

the requirement for RACM is suspended

in accordance with the Clean Data

Policy.

Comment 4: The commenter alleges

that EPA relies heavily on the proposed

redesignation of Weirton, West Virginia,

to provide the analysis for waiving the

RFP requirements for PM-10 areas. The

requirements for PM-10 areas are found

in CAA section 189(c)(1). The

commenter argues that EPA's analysis

ignores the plain language of the CAA.

The commenter claims that the

decisions in Our Children's Earth

Foundation v. EPA, No. 04-73032 (9th

Cir. June 28, 2005) (Memorandum

Opinion) and Sierra Club v. EPA, 99

F.3d 1551, 1555 (10th Cir. 1996) upheld

EPA's interpretation based on the

Court's finding of ambiguity in the

statutory language in sections 172(c)(1),

(2), and (9) and section 182(b)(1)(A)(I).

The commenter asserts that, unlike

those provisions, the language of section

189(c)(1) is perfectly clear. The

commenter contends that milestones are

to be set to show reasonable further

progress and an area is required to

submit revisions demonstrating that it

has achieved those milestones every

three years until the area is "redesignated." The commenter

concludes that there is no ambiguity

and that appeals to policy objections

cannot rewrite clear language into

something ambiguous.

The commenter adds that references

in the Weirton notice to other

provisions in section 189 are unavailing.

Section 189(c)(3) requires areas that fail

to achieve a milestone to submit

revisions to assure the next milestone

will be met. The commenter asserts that

this obligation continues through the

final milestone. Where there is "no next

milestone" the final revision must

ensure that the area will attain the

NAAQS. The commenter states that

nothing in these requirements is

internally inconsistent or prevents areas

from complying with the plain language

of section 189(c)(2).

The commenter contends that

arguments that this amounts to "overcontrol" are without merit. The

commenter argues that a key distinction

between a finding of attainment and

redesignation is that a redesignation

requires EPA to find that "the

improvement in air quality is due to

permanent and enforceable reductions

in emissions." CAA section

107(d)(3)(E)(iii). The commenter argues

that since EPA is not making such a

finding, it is rational for Congress to

have insisted that an area continue to

reduce emissions until that showing can

be made and the area can be

redesignated.

Response: EPA's interpretation does

not "waive" requirements nor does it

ignore the plain language of the statute.

With respect to RFP, it has been EPA's

longstanding interpretation that the

general provisions of part D, subpart 1

of the Act (sections 171 and 172) do not

require the submission of S1P revisions

concerning RFP for.areas already

attaining the ozone NAAQS. In the

General Preamble, we stated:

[Requirements for RFP will not apply in

evaluating a- request for redesignation to

attainment, since, at a minimum, the air

quality data for the area must show that the area has already attained. A showing that the

State will make RFP toward attainment will,

therefore, have no meaning at that point.

57 FR at 13564. EPA believes that the

same reasoning applies to the PM-10

provisions of part D, subpart 4.

Section 171(1) (section 7501 (1)) states

that for purposes of part D of title I, RFP "means such annual incremental

reductions in emissions of the relevant

air pollutant as are required by this part

or may reasonably be required by the

Administrator for the purpose of

assuring attainment of the applicable

national ambient air quality standard by

the applicable date." Thus, whether

dealing with the general RFP

requirement of section 172(c)(2), the

ozone-specific RFP requirements of

sections 182(b) and (c), or the specific

RFP requirements for PM-10 areas of

part D, subpart 4, section 189(c)(1), the

stated purpose of RFP is to ensure

progress towards attainment by the

applicable attainment date. Section

189(c)(1) states that:

Plan revisions demonstrating attainment

submitted to the Administrator for approval

under this subpart shall contain quantitative

milestones which are to be achieved every 3

years until the area is redesignated to

attainment and which demonstrates

reasonable further progress, as defined in

section 7501a(1) of this title, toward

attainment by the applicable date.

Although this section states that

revisions shall contain milestones to be

achieved "until the area is redesignated

to attainment," it further specifies that

these are milestones that "demonstrate

reasonable further progress, as defined

in section 7501(1) of this title, toward

attainment by the attainment date."

They are also to be included in "plan

revisions demonstrating attainment."

Thus such milestones have the purpose

of showing reasonable further progress

"toward attainment by the applicable

date," as defined in section 171. It is

therefore clear from the language of the

statute that once the area has attained

the standard, no further milestones are

necessary or meaningful. By definition,

the "reasonable further progress"

provision requires only such reductions

in emissions as are necessary to attain

the NAAQS by the attainment date. This

interpretation is supported by language

in section 189(c)(3), which mandates

that a state that fails to achieve a

milestone must submit a plan that

assures that the state achieve the next

milestone or attain the NAAQS if there

is no next milestone. Section 189(c)(3)

assumes that the requirement to submit

and achieve milestones does not

continue after attainment of the

NAAQS. Thus, once attainment has

been reached, there are no further

milestones to be achieved, even though

the area has not yet been redesignated

to attainment, for so long as the area

remains in attainment. The commenter

is therefore incorrect in asserting that

section 189(c)(1) is "perfectly clear" in

requiring additional RFP milestones

after attainment has been reached.

In the General Preamble, we noted

with respect to section 189(c) that "the

purpose of the milestone requirement is

to 'provide for emission reductions

adequate to achieve the standards by the

applicable attainment date' (H.R. Rep.

No. 490 101st Cong., 2d Sess. 267

(1990))." 57 FR 13539 (April 16, 1992).

If an area has in fact attained the

standards, the stated purpose of the RFP

requirement will already have been

fulfilled-the only milestones that are

required are those that demonstrate

reasonable further progress toward

attainment, as defined by section 171.

Thus we believe that it is a distinction

without a difference that section

189(c)(1) speaks of the RFP requirement

as one to be achieved until an area is "redesignated to attainment," as

contrasted to section 172(c)(2), which is

silent on the period to which the

requirement pertains, or the ozone

nonattainment area RFP requirements in

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sections 182(b)(1) or 182(c)(2), which

refer to the RFP requirements as

applying until the "attainment date,"

since section 189(c)(1) makes clear that

the milestones that are to be achieved

are those that demonstrate RFP toward

attainment by the applicable attainment

date, and since section 189(c)(1) defines

RFP by reference to section 171(1) of the

Act. Reference to section 171(1) makes

clear that, as with the general RFP

requirements in section 172(c)(2) and

the ozone-specific requirements of

section 182(b)(1) and 182(c)(2), the PMspecific RFP requirements may only be

required "for the purpose of ensuring

attainment of the applicable national

ambient air quality standard by the

applicable date." 42 U.S.C. 7501(1). EPA

interprets the RFP requirements, in light

of the language of section 189(c)(1) and

the definition of RFP in section 171(1)

incorporated therein, to be a

requirement that no longer applies so

long as the standard has been attained.

Similarly, the requirements of section

189(c)(2) with respect to milestones no

longer apply so long as an area has

attained the standard. Section 189(c)(2)

provides in relevant part that:

Not later than 90 days after the date on

which a milestone applicable to the area occurs, each State in which all or part of such

area is located shall submit to the

Administrator a demonstration * * that

the milestone has been met.

Where the area has attained the

standard and there are no further

milestones, there is no further

requirement to make a submission

showing that such milestones have been

met. As noted above, this is consistent

with the position that EPA took with

respect to the general RFP requirement

of section 172(c)(2) in the April 16, 1992

General Preamble and also in the-May

10, 1995 Seitz memorandum with

respect to the requirements of sections

182(b) and (c). In the May 10, 1995 Seitz

memorandum EPA also noted that

section 182(g), the milestone

requirement of Subpart 2, which is

analogous to provisions in section

189(c), is suspended upon a

determination that an area has attained.

The memorandum, also citing

additional provisions related to

attainment demonstration and RFP

requirements, stated

Inasmuch as each of these requirements is

linked with the attainment demonstration or

RP requirements of section 182(b)(1) or

182(c)(2), if an area is not subject to the

requirement to submit the underlying

attainment demonstration or RFP plan, it

need not submit the related SIP submission

either.

199i Seitz memorandum at 5.

That the requirements for

redesignation of an area require EPA to

find that the improvement in air quality

is due to permanent and enforceable

emission controls does not undermine

EPA's interpretation that when EPA

determines an area is in attainment, the

requirement for further emission

reductions beyond that necessary for

attainment is suspended for so long as

the area remains in attainment. EPA

does not contend that a determination of

attainment is equivalent to a

redesignation, which requires additional

showings beyond the fact of attainment

before changing the designation of an

area from nonattainment to attainment.

A determination of attainment merely

suspends certain requirements for so

long as the area remains in attainment.

That permanent emission reductions are

required for a redesignation does not

indicate that Congress intended an area

to keep reducing emissions beyond the

attainment level until an area is

redesignated. There is no statutory

support for the proposition that an area

must keep reducing emissions below the

level needed for attainment until that

area is redesignated. EPA's construction

of the statute recognizes the public

interest in reducing burdens on states

and sources within states associated

with adopting and implementing

additional control measures that are no

longer necessary to attain the NAAQS.

EPA has construed the statutory

provisions as not requiring certain

additional emission reductions above

and beyond what was needed to attain

the NAAQS.

EPA again notes that it has already

approved a demonstration of reasonable

further progress for the SJV. In the

context of considering whether a

determination of attainment suspends

the contingency measures requirement

of section 172(c)(9), however, EPA

concludes that the RFP requirements of

sections 172(c)(2) and 189(c) would also

be suspended for so long as the SJV

remains in attainment, had they not

already been approved.

Comment 5: The commenter contends

that contingency measures are needed to

ensure both reasonable further progress

and attainment. Waiver of the

requirement for these measures in

section 172(c))(9) was premised on the

argument that the RFP requirement of

section 172(c)(2) was tied to attainment.

and thus with an attainment finding

there was no longer a purpose for

contingency measures. The commenter

asserts that because the RFP

requirements 'of section 189(c)(2) cannot

be waived for PM-10 nonattainment

areas, the contingency measure

requirements of section 172(c)(9)

continue to have purpose. The

commenter claims that they are needed

as interim, stop gap measures to protect

public health pending the SIP revisions

required under section 189(c)(3). See 59

FR 42015.

Response: CAA Section 172(c)(9)

provides that SIPs in nonattainment

areas:

Shall provide for the implementation of

specific measures to be undertaken if the area

fails to make reasonable further progress, or to attain the [NAAQS] by the attainment date

applicable under this part. Such measures

shall be included in the plan revision as

contingency measures t6 take effect in any

such case without further action by the State

[or EPA].

This requirement is referred to as "the

contingency measures" requirement,

and is inextricably tied to the

attainment and reasonable further

progress requirements. Where sufficient

progress has been made based on

existing controls so that an area has

already achieved attainment by the

attainment date, it has no need to rely

on "contingency measures" to come

into attainment by the attainment date,

or to assure progress towards

attainment.

We have thus interpreted the

contingency measures requirement of

sections 172(c)(9) (and 182(c))(9) in

subpart 2 of part D) as no longer

applying when an area has attained the

standard because those "contingency

measures are directed at ensuring RFP

and attainment by the applicable date."

57 FR at 13564; May 10, 1995 Seitz

memo at 5-6. As explained at length in

the responses to comments above and in

the memoranda and rulemakings cited

above, the requirements for RFP and

attainment demonstrations no longer

apply once an area has attained the

standard. Thus it follows that the

requirement for contingency measures

to be triggered in the event RFP or

attainment is not reached is also

suspended for as long as the area attains

the standard. As EPA stated in its

Addendum to the General Preamble for

Serious PM-10 Areas, "[s]ection

172(c)(9) requires that SP's provide for

the implementation of specific measures

to be undertaken if the Administrator

finds that the nonattainment area has

failed to make RFP toward attainment or

to attain the primary NAAQS by the

applicable statutory deadline." 59 FR

42014-42015 (August 16, 1994). Where

the area has attained the standards, as

EPA has shown in responses to

comments above, the attainment

demonstration requirements and RFP

requirement under section 189(c)(1) and

(2) are suspended, and thus the

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contingency measure requirements of

section 172(c)(9) are also suspended.

The commenter is incorrect in its

assertion that the RFP provisions under

section 189 remain applicable despite a

determination that the area has attained

the standards. As EPA has demonstrated

in its response to comment 4 above,

once the area has attained the standards,

the RFP milestone requirements in

section 189 are suspended for so long as

the area remains in attainment. Thus no

contingency measures are required to

assure those requirements are met.

Because EPA is finalizing its

determination that the SJV area has

attained the standards, it is also

finalizing its determination that the

requirement for contingency measures

under section 172(c)(9) is suspended for so long as the area remains in

attainment.

C. New Particulate Matter (PM) NAAQS

Comment 6: The commenter argues

that the most troubling implications of

EPA's proposed finding is EPA's

proposal to revoke the PM-10 standards

altogether and eliminate monitors in

areas that are found to be in attainment.

The commenter contends that the

reasonableness of EPA's Clean Data

Policy is premised in part on the assurance of the Clean Air Act that EPA

will eventually demonstrate that air

quality has been permanently resolved

due to the controls being implemented

and that contingency measures will be

in place as part of a plan to maintain

clean air once an area has been

redesignated to attainment. The

commenter argues that under EPA's

then current proposal for coarse PM,

these assurances will be eliminated. The

commenter states that EPA proposes to

revoke the PM-10 standard "everywhere except in areas where

there is at least one monitor that is

located in an urbanized area with a

minimum population of 100,000 people

and that violates the 24-hour PM-10

standard based on the most recent three

years of data." 71 FR at 2674. The

commenter further states that, with the

proposed attainment finding, EPA is

making the determination that the PM10 standard will be revoked in the

Valley without the Act's protections.

The commenter is also concerned about

the potential for EPA to refuse to

consider data collected by monitors in

rural areas. The commenter believes that

EPA should provide an explanation as

to why its determination is reasonable

when there will be no safety net to

recover from the decision if EPA is

wrong.

Response: The commenter's concerns

are misplaced. First, EPA's responses to

comments above indicate that its

decision is reasonable, in accordance

with its prior interpretations of the

CAA, and in accordance with the

statute. EPA reiterates that a

determination of attainment results

merely in a suspension of requirements

for so long as the area remains in

attainment. If the area violates the

standard, then the requirements and

protections of the Act again apply to

ensure that the area attains and makes

reasonable further progress towards

attainment.

Second, as noted above, on September

21, 2006, the EPA Administrator signed

a final rulemaking which, among other

things, revoked only the annual PM-10

standard, but left intact the 24-hour

PM-10 NAAQS. The EPA did not

finalize its proposal to revoke the 24-

hour PM-10 NAAQS. The final

rulemaking did not revoke any

designations under the 24-hour PM-10

standard, and all requirements for the

24-hour standard and all designations

under that standard remain in place.

Based on the most recent three years of

data, all areas that monitored

nonattainment for the annual standard

also monitored nonattainment for the

24-hour standard. Thus the commenter

is incorrect in contending that the

determination of attainment would

relieve the SJV of the protections of the

PM-10 NAAQS. Should EPA determine

that the SJV violates the 24-hour PM-10

NAAQS, it would again become subject

to any requirements that had been

suspended during its period of

attainment. In addition, the area would

still retain the incentive to be

redesignated to attainment for the 24-

hour 'PM-10 NAAQS in order to be

relieved of nonattainment NSR offset

requirements and to avoid further

attainment planning requirements

should the area monitor a violation of

the standard in the future, and the

provisions for a maintenance plan

pursuant to CAA sections 107(d)(3)(E)

and 175A would still apply to any

redesignation request. Thus these

assurances of and motivation for

continued attainment are not

eliminated, and the "safety net" cited by

the commenter remains in place.

The commenter also cites to a portion

of the proposed rule on Ambient Air

Monitoring which discusses a five-part

suitability test to determine whether

potential PM-10-2.5 monitoring sites were suitable for comparison to the

proposed NAAQs. 71 FR 2710, 2736

(January 17, 2006). In the final

monitoring rule signed September 27,

2006 and available at http://

www.epa.gov/air/particles/actionshtnl,

EPA is not adopting the five-part

suitability test or the proposed PM-10-

2.5 monitoring network design. EPA had

proposed the five-part suitability test

along with certain minimum monitoring

requirements and monitor placement

criteria for the primary purpose of

determining compliance with the

proposed PM-10-2.5 particulate

NAAQS. EPA proposed as the indicator

for the NAAQS any ambient mix of PM10-2.5 that is dominated by

resuspended dust from high-density

traffic on paved roads and PM generated

by industrial sources and construction

sources, but excluded any ambient mix

of PM-10-2.5 that is dominated by rural

windblown dust and soils and PM

generated by agricultural and mining

sources. The proposed level for the PM10-2.5 NAAQS was selected so as to be

of equal stringency to the 24 hour PM--

10 NAAQS. However, in its recent rule

revising the NAAQS EPA stated that it

is not adopting the proposed PM-10-2.5

standard and instead, will be retaining

the current 24 hour PM-10 standard.

Therefore, EPA also did not adopt the

proposed PM-10-2.5 monitoring

network design, including the five-part

suitability test to which the commenter

cites above. Thus the commenter's

concerns about this aspect of the rule

have not been realized.

D. EPA Policy on Special Purpose

Monitoring Data

Comment 7: The commenter states

that EPA's use of an August 22, 1997

memorandum from John Seitz on the use of special purpose monitoring data

is based on an illogical reading and is

an insufficient substitution for a

reasoned determination. The commenter

states that nothing in the CAA provides

for this intermediate step of an

attainment determination to be made

independently of a redesignation under

CAA section 107(d)(3)(E). The

commenter contends that to the extent

such a determination can be defended,

it is subject to the rational basis

standard of the Administrative

Procedures Act. The commenter cites

language from the 1997 Seitz

memorandum that discusses the types

of data EPA must consider before

redesignating an area from

nonattainment to attainment and

concludes that the Agency cannot

reasonably ignore data that falls short of

specific part 58 requirements without

explaining why those requirements

undermine the validity of the data.

Response: The commenter contends

that an "attainment determination'is a

beast of EPA's own creation" and that

it must be defended on a rational basis.

In fact, attainment determinations have

a basis in the statute: see e.g., section

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107(d)(3)(E)(i), as well as sections

179(c), 188(b)(2) and 181(b)(2), but there

is nothing that restricts EPA to making

determinations of attainment in the

context solely of those provisions.

Indeed, as noted earlier, both the 9th

and loth U.S. Circuit Courts of Appeals

have upheld EPA's authority to make

attainment determinations outside the

context of redesignation proceedings,

and have also upheld EPA's

interpretation of the statutory

consequences of such determinations.

Sierra Club v. EPA, 99 F.3d 1551 (10th

Cir. 1996), Our Children's Earth

Foundation v. EPA, No. 04-73032 (9th

Cir. June 28, 2005 (memorandum

opinion). Nothing in the Act compels

EPA to wait until an area meets all the

requirements for redesignation before

EPA makes a determination that the area

is in attainment with the standard with

the effect that the requirements for

certain statutory provisions relating to

attainment are suspended by their own

terms. Indeed, section 179(c) of the Act

requires EPA to make an attainment

determination within six months after

an area's applicable attainment date

whether or not EPA has made a finding

with respect to redesignation. EPA's

interpretation of the Act's provisions

not to require, once attainment has been

reached, certain plan submissions

whose purpose is to assure attainment,

is not at odds with the requirements for

redesignation. EPA's rationale for

issuing attainment determinations is set

forth at length in the responses to

comments on the Clean Data Policy,

above. In making determinations of

attainment, which are subject to notice

and comment rulemaking, EPA is

governed by the Clean Air Act and its

regulations.

Similarly, in identifying the data that

should be considered in making a

determination of attainment, EPA is

subject to regulatory provisions that set

forth criteria defining what constitutes

an adequate monitoring schedule,

methodology, and quality assurance for

data that will justify reliance upon it. 40

CFR 58.14 applies to Special Purpose

Monitors (SPMs), and requires that if

intended to be used for purposes of

demonstrating attainment or

nonattaiment, they must meet the

requirements for State and Local Air

Monitoring Stations (SLAMS) set forth

in 40 CFR 58.13 and 58.22 as well as in

appendices A and E of part 58. While

EPA cited to the Seitz memorandum in

its proposal, EPA is not, as commenters

contend, hiding behind a non-binding

policy memorandum. Rather, that

memorandum cited to the regulations

applicable to data from special purpose

monitors intended for use in attainment

determinations. These regulations are

designed to ensure that the data is

accurate and reliable enough to be the

basis for a formal determination as to

whether an area has attained the

relevant standard. The 1997 Seitz

memorandum states that "[the] Agency

policy on the use of special purpose

monitoring data for any regulatory

purpose, with the exception of fine

particulate -matter data (PM-2.5) is that

all quality assured and valid data

meeting 40 CFR part 58 requirements

must be considered within the

regulatory process." 1997 Seitz

memorandum at 1. EPA's regulations

under 40 CFR part 58 provide for

quality assurance and control

requirements to ensure that regulatory

decisions are based on reliable and

accurate information.

Conversely, it follows that data that

does not meet these quality assurance

criteria should not be considered, since

basing regulatory decisions on data that

has not been shown to be reliable would

not further the public interest nor be

consistent with EPA regulations on

special purpose monitors. See 40 CFR

58.14. As set forth below in other

responses to comments, EPA's decision

to consider data from monitors that

meets quality assurance criteria and its

concomitant decision to exclude data

that does not meet these criteria is based

on its regulations, has a rational basis,

and is designed to result in

determinations that reflect accurate and

reliable data.

Here, the data from certain SPMs did

not meet the quality assurance

requirements of part 58, and therefore

were not included for consideration in

the determination of attainment. If in

the future additional data that has been

quality assured demonstrate that the

area is in fact not attaining the standard,

EPA will withdraw its determination of

attainment. Until that-time, there is no''

compelling reason for EPA not to

proceed with an attainment finding

based on all quality assured data where

such data demonstrates that the SJV has

attained the PM-IO standard. . In EPA's Revisions to Ambient Air

Monitoring Regulations, a final rule

signed on September 27, 2006, EPA

issued revised regulations concerning

SPMs, and clarified that data from such

monitors would not be used for

attainment/nonattainment

determinations if the monitors had not

met-the requirements of appendix A.

Section 58.20(b) of the revised

regulation provides in part:

[a]ny SPM data collected by an air

monitoring agency using a Federal reference

method(FRM), Federal equivalent method

(FEM), or approved regional method (ARM)

must meet the requirements of section 58.11,

section 58.12, and appendix A to this part or

an approved alternative to appendix A to this

part* * *

Section 58.20 (c) provides that:

[a]ll data from an SPM using an FRM, FEM

or ARM which has operated for more than 24

months is eligible for comparison to the

relevant NAAQS, subject to the conditions of

section 58.30, unless the air monitoring

agency demonstrates that the data came from

a particular period during which the

requirements of appendix A or an approved

alternative, appendix C, or appendix E were

not met in practice.

Thus EPA's new monitoring regulations

make plain that SPM data from a period

during which appendix A is not

complied with are not eligible for

comparison to the NAAQS and EPA

action in this case is consistent with

that requirement.

E. Adequacy of the SJV Monitoring

Network

One commenter and numerous

individual citizens raised a number of

issues regarding the adequacy of the

PM-10 monitoring network in the SJV.

In a final rule approving the serious area

PM-10 attainment plan for the SV, EPA

evaluated the adequacy of this network

and concluded that it meets all

applicable statutory and regulatory

requirements and is adequate to support

the technical evaluation of the PM-10

nonattainment problem in the plan. 69

FR 30006, 30032-30033. EPA supported

this conclusion in a technical support

document accompanying the final rule,

"Evaluation of the Adequacy of the

Monitoring Network for the San Joaquin

Valley, California for the Annual and

24-Hour PM-10 Standards"; Bob

Pallarino, EPA Region 9, Air Division;

September 22, 2003 (2003 TSD).

Nevertheless, EPA responds below to

the specific comments raised regarding

the network in connection with its

proposed attainment determination for

the SJV.

Comment 8: The commenter states

that CAA Section 110(a)(2)(B) requires

States to establish appropriate air

monitoring networks and that appendix

D of 40 CFR part 58 identifies a

minimum of six objectives that a

SLAMS network should be designed to

meet, as well'as spatial

representativeness criteria in developing

the network. The District fails to address

all six criteria in its annual Monitoring

Network Reports (leaving out

monitoring for regional pollutant

transport and for impacts on rural and

remote places) and the existing monitors

represent only two of the six spatial

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scales established in the regulations

when three are required. Since the

District fails to meet these basic

requirements, EPA should address the

adequacy of the monitoring network

before making an attainment

determination, including whether

system audits were conducted as required by 40 CFR 58.2.5 (sic). EPA's

only evaluation of the network was in'

the 2003 TSD in which EPA identified

several deficiencies in the Valley's PM10 monitoring network but signed off on

the network in spite of the deficiencies.

Response: Pollutant monitoring

networks are designed to serve a

number of purposes. While the primary

purpose of a monitoring network is to

determine an area's attainment status

with regard to the NAAQS, there are a

variety of other purposes networks

serve, including determining maximum

concentration locations; determining the

.effectiveness of air pollution control

programs; evaluating the effects of air

pollution levels on public health;

tracking the progress of SlIPs; providing

dispersion modeling support;

developing responsible, cost-effective

control strategies; reconciling emission

inventories; and developing air quality

trends. 5

The six monitoring objectives 6 in

EPA's regulationswere developed to

assist in designing monitoring networks

to meet these various objectives. Clearly,

monitoring to "determine the welfarerelated impacts in more rural and

remote areas (such as visibility

impairment and effects on vegetation)"

or monitoring to assess regional

transport of pollution are not directly

related to determining whether or not an area is in attainment of the NAAQS.

These are important objectives in terms

of maximizing the utility of the

monitoring network. However, when

determining whether the SJV is

attaining the PM-I0 NAAQS, it is more important to demonstrate that the PM10 network has monitors sited to

capture the maximum concentrations

expected to occur in the Valley and the

representative concentrations of PM-10

5 "SLAMS/NAMS/PAMS Network Review

Guidance" EPA-454/R-981003, March 1998,

section 1.0.

6The six monitoring objectives as discussed in 40

CFR part 58, appendix D, section 1 are (1) to

determine highest concentrations expected to occur in the area covered by the network; (2) to determine

representative concentrations in areas of high

population density; (3) to determine the impact on

ambient pollution levels of significant sources or

source categories; (4] to determine general

background concentrations; (5) to determine the

extent of regional transport among populated areas; and in support of the secondary standards; and (6)

to determine the welfare-related impacts in more

rural and remote areas (such as visibility

impairment and effects on vegetation).

throughout the area that the population

of the SJV are breathing. As discussed

in the 2003 TSD, the SJV PM-10

SLAMS network meets the two primary

and most important objectives by siting

most of its monitors to assess

representative concentrations in areas of

high population and monitoring in the

area where the maximum PM-10

concentrations are expected to occur.

Thus the fact that the District did not

address the two objectives above is not

a significant factor in determining

whether the SJV is in attainment of the

PM-10 NAAQS.

The commenter states that EPA

regulations at 40 CFR part 58, appendix

D, require networks to use at least three

spatial scales 7 in establishing a

monitoring network. However, the

regulations do not in fact require the use

of any minimum number of spatial

scales for PM-10 SLAMS or National

Air Monitoring Station (NAMS) 8

networks. Section 1 of appendix D

discusses the relationship between

monitoring objectives and spatial scales

of representativeness. As our regulations

state in this section, "[plroper siting of

a monitoring station requires precise

specification of the monitoring objective

which usually includes a desired spatial

scale of representativeness."

Table I of appendix D "illustrates the

four basic monitoring objectives and the

scales of representativeness that are

generally most appropriate for that

objective." Emphasis added. Appendix

D, section 1, table 1. It is clear from this

language that EPA did not intend to

dictate specific spatial scales for each

objective. However, it is important to

ensure that the spatial scale of the site "

is appropriate for the monitoring

objective that site is intended to meet.

For example, a site that is intended to

represent typical population exposure

should be a neighborhood or urban scale

site, not a microscale site. While a

microscale site can be used to monitor

for highest concentration, a middle or

neighborhood scale site would also

satisfy this monitoring objective. 9

7

See 40 CFR part 58, appendix D, section 1, for

a discussion of spatial scales and their applicability

in monitoring network design.

8 The NAMS area subset of the SLAMS ambient

air quality monitoring network.

9 While Table 6 in 40 CFR part 58, appendix D,

section 5 could be interpreted to mean that three

spatial scales are required for PM-10 NAMS sites,

EPA's purpose here was to summarize the spatial

scales which would be appropriate for NAMS sites,

i.e. microscale, middle scale, and neighborhood

scale sites are appropriate scales for PM-10 NAMS

sites, but urban and regional scale sites are not. This

is because the objectives for NAMS sites are to

monitor in areas where the pollutant concentration

and population exposure are expected to be the

highest. Furthermore, EPA's recently signed rule

revising the monitoring regulations at 40 CFR part

With respect to the system audit

programs described in 40 CFR part 58,

appendix A, section 2.5, it is important

to note that this type of audit,

commonly referred to as a technical

system audit (TSA, is a qualitative

review of an agency's overall air

monitoring operations designed to

determine whether what the monitoring

organization says is going to be

performed in its quality management

plan, quality assurance project plan, and

standard operating procedures are

performed as specified. A TSA is

required to be "on site" in the sense of

taking place at the monitoring

organization facilities, either at one or

more locations where monitoring

activities are performed or where

monitoring-related documents and

records are kept, but it need not involve

a visit to an actual monitoring site.

When a discrepancy is identified, EPA

asks the monitoring organization to

correct the discrepancy and tracks the

monitoring organization's efforts until

the correction is made. Significantly,

EPA does not disqualify any data

already collected based on the results of a TSA, although the monitoring

organization in principle might do so itself. See "Quality Assurance

Handbook for Air Pollutant

Measurement Systems, Volume II, Part

1, section 15 (EPA-454/R-98-004,

August 1998) and "EPA Requirements

for Quality Assurance Project Plans"

(EPA/240/B-01/003 March 2001) at B4.

In contrast, the measurement quality

checks described in appendix A,

sections 3.1, 3.2, 3.3 and 3.4, are quality

control checks in which quantitative

data generated by quality control

samplers or independent standards are

compared against the routine monitors

operated by the air monitoring agency in

order to evaluate instrument

performance or laboratory procedures.

Id. at B-3. When determining whether

data generated by air quality monitors

can be considered to be valid and

accurate for the purpose of determining

whether an area has attained the

NAAQS, measurement quality checks

are critical.

As a mechanism for helping to ensure

that data generated by air quality

monitors is valid and accurate and thus

suitable for determining whether an area

has attained the NAAQS, it is the

measurement quality checks that are most important. These checks create an incentive for continuous attention to

58, reiterates EPA's intention that urban and

regional scales are not appropriate for PM-10

monitoring and the most important spatial scales

for monitoring PM-10 are the middle and

neighborhood scales.

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proper operation and maintenance of

each monitor, can identify problems

with specific monitors so that the

problems can be corrected, and provide

a basis for the monitoring organization

to disqualify data already collected if

spedific audit findings are found to be

outside of acceptable limits. EPA

discusses these evaluations with respect

to the SJV monitoring network below in

response to comment 13.

EPA Regional Offices are required by

appendix A to perform TSAs of State

reporting organizations once every three

years. A reporting organization, as

defined in 40 CFR part 58, appendix A,

section 3.0.2, is a State, subordinate

organization within a State, or other

organization that is responsible for a set

of stations that monitors the same

pollutant and for which data quality

assessments can be pooled. States must

define one or more reporting

organizations for each pollutant such

.that each monitoring station in the State

SLAMS network is included in one, and

only one, reporting organization.

California has designated four

reporting organizations within the State:

CARB, the South Coast Air Quality

Management District, the Bay Area Air

Quality Management District, and the

San Diego Air Pollution Control District.

All other air quality districts in the

State, including the San Joaquin Valley

Air Pollution Control District, are

included in the CARB reporting

organization. CARB and the Districts in

its reporting organization represent one

of the largest and most experienced air

quality reporting organizations in the

nation.

EPA has audited certain aspects of the

CARB monitoring program recently.

EPA's Office of Air Quality Planning

and Standards (OAQPS) performed

measurement quality checks and TSAs

of the CARB PM laboratories in October

2002 and March 2004. These

evaluations and audits confirmed that

the laboratories used by CARB and the

San Joaquin Valley Air Pollution

Control District for weighing PM filters

were operating consistently with

appendix A requirements. No

deficiencies for the PM lab were noted.

Overall good laboratory practices were

observed during this TSA. See

Technical Memorandum on CARB

Laboratory Audit to Jim Homolya, EPA,

OAQPS, from Michael S. Clark, National

Air and Radiation Environmental

Laboratory, February 26, 2003 and

Technical Memorandum on CARB

Laboratory Audit to Jim Homolya, EPA,

OAQPS, from Eric Boswell, National Air

and Radiation Environmental

Laboratory, dated April 22, 2004.

Moreover, CARB Quality Assurance

Section also conducts its own internal

audits of the PM laboratory.

In October 2004, EPA Region 9

performed a technical evaluation of the

CARB 'Through-the-Probe' (TTP) audit

program for gaseous pollutants to

establish system equivalence between

the CARB and EPA TTP programs and

to independently review the CARB TTP

program. See "Review of California Air

Resources Board's 'Through-the-Probe'

Audit Program", October 6-7, 2004. The

TTP audit is a procedure for performing

measurement quality checks of gaseous

analyzers and is the primary tool used

by CARB to fulfill its audit

responsibility for these types of

analyzers in 40 CFR part 58, appendix

A, section 3.2. While EPA's audit of the

CARB TTP program focused on gaseous

pollutant performance audits, the audit

served as an on-site TSA with respect to*

CARB's corrective actioA procedures

used by CARB following a performance

audit failure of a PM-10 monitor, as

CARB's corrective action procedures are

common to all pollutants including PM10. We have since evaluated the CARB

TTP program three additional times in.

June 2005, October 2005 and April

2006. See memorandums to Catherine

Brown, USEPA Region 9 from Kevin

Woodruff, ESAT TTP Task Manager,

dated July 8, 2005, May 8, 2006, and

May 18, 2006.

CARB has conducted its own TSAlike assessment of the District's

monitoring program. CARB's oversight

includes routine annual performance

audits of PM-10 SLAMS monitors,

verification that sites meet EPA siting

criteria and periodic assessments of the

District's air monitoring program. See

the CARB's Annual Data Quality

Reports and the San Joaquin Valley Air

Pollution Control District Program

Review, Report of Findings and

Recommendations, byCARB Stationary

Source Division, October 2005. Audit

information for individual monitoring

stations in the CARB reporting

organization is available at the CARB

Web site http://www.arb.ca.gov/qaweb/.

The Web site includes maps of each site,

site photographs, and a detailed survey

of the physical parameters and

conditions at each site. These activities,

while performed by CARB, are very

similar to the field operation portion of

EPA's TSAs.

Region 9 continues to keep informed

of CARB and its Districts' monitoring

program developments through our

ability to review revisions to quality

assurance (QA) documents and the

other information described above on

the CARB QA Web site. EPA believes

that these activities as well as the onsite activities described above, EPA's

evaluation in the 2003 TSD, and the

performance audits described below,

can and should be considered to

substantially meet the requirements of

appendix A and are sufficient to ensure

that the data produced by the PM-10

SLAMS network operating in the SJV is

adequate for EPA to base our finding of

attainment.

Furthermore, the District and CARB

annually certify that the data in EPA's

Air Quality System (AQS) database is

correct and accurate. EPA also annually

reviews the precision and accuracy data

(precision and accuracy data are

discussed in more detail in the response

to comment 13 below) submitted along

with the PM-10 concentration data by

CARB and the District.

As stated above, in the 2003 TSD EPA

determined that the PM-10 monitoring

network for the SJV, which includes

monitors operated by both CARB and

the District, meets all applicable

statutory and regulatory requirements.

EPA Region 9 uses the following four

criteria to evaluate whether agencies

operate approvable networks: (1) The

SLAMS network used EPA approved

samplers to collect data, (2) the agency

has a quality assurance plan in place

that meets EPA requirements, (3) the

agency operates the required number of

monitoring sites designated as NAMS,

and (4) the monitoring network is

designed in accordance with the

requirements of 40 CFR part 58,

appendices D and E. These criteria are

based on requirements in 40 CFR part

58 and on EPA guidance documents.10

The only deficiency in The District's

PM-10 network that EPA has identified

relates to the number of sites designated

as NAMS. In the 2003 TSD at 5, we

stated:

According to EPA regulations, the [District]

should have a minimum of 11 sites

designated as NAMS sites, based on the

average PM-10 concentrations during the

years 1999-2001 and the 2000 census

population data. * * * The number of

monitoring sites in the [SJV] designated as

NAMS is less than that required in EPA

regulations. However * * * EPA has been

de-emphasizing the difference between

NAMS and SLAMS sites. * * * EPA is

planning to revise the regulations at 40 CFR

part 58, Appendix D, which discusses the

NAMS requirement, to eliminate the

designation of sites as either NAMS or

SLAMS.

'

0 These guidance documents include "PM-10

SIP Development Guideline", EPA-450/2-86-001,

June 1987; "Network Design and Optimum Site

Exposure Criteria for Particulate Matter", EPA-450/

4-87-009/ May 1987; "Guidance For Network

Design and Optimum Site Exposure For PM-2.5

and PM-10", EPA-454/R-99-022, December 1997;

"SLAMS/NAMS/'AMS Network Review .

Guidance", EPA-454/R-98-003, March 1998.

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In footnote 3 in the 2003 TSD, EPA

explained that:

EPA, in partnership with State and local

air agencies, has been developing a National

Monitoring strategy which no longer makes

a distinction between NAMS and SLAMS

sites. The strategy, once codified in EPA

regulations, will simply establish a certain

minimum number of monitoring sites in a

metropolitan area, still based on population

and pollutant concentration severity. The

current network in the [SJV] will easily meet

these minimum requirements.

At the time we evaluated the SJV PM10 monitoring network, we believed, in

light of the de-emphasis on the

difference between NAMS and SLAMS

sites, that it would be unreasonable to

find the network inadequate because of

this technical deficiency which EPA

was. planning to eliminate. In fact, in

our final Ambient Air Monitoring rule

signed on September 27, 2006 that

amends 40 CFR part 58 we did

eliminate the NAMS designation

requirement completely. Elimination of

the NAMS requirement does not affect

the number of monitors operating in the

PM-10 network. Sites designated as

NAMS simply convert to SLAMS sites.

Based on the above, we believe the data

produced by the SLAMS network is

technically sound and can be used to

determine the SJV's attainment status.

EPA wants to emphasize, however, that

the action today is simply an assessment

of the data collected at the District's

PM-10 monitoring stations from 2003-

2005, and continuing into 2006. This

attainment determination does not

preclude any future assessments of the

PM-10 monitoring network, addition of

new monitoring sites, or shut down of

any existing sites.

,Comment 9: The commenter states

that the monitoring network does not

meet the basic objectives laid out by

federal regulation and leaves vast

portions of the Valley completely

unmonitored. The commenter asserts

that EPA must address this deficiency

before making an attainment

determination. The commenter states

that the majority of the PM-10

monitoring takes place along the

Highway 99 corridor which captures

most of the SJV's major urban centers,

but entirely overlooks the eastern and

western portions of the SJV. The

western portion of the SJV should be of

particular concern to the District and

EPA as it is an area of widespread

poverty and environmental injustice, as well as being an area of intense

agricultural activity.

Response: We disagree with the

commenter's contention that the

network fails to meet the basic

monitoring objectives described in 40

CFR part 58, appendix D, section 1. EPA

regulations do not prescribe the size of

an area's PM-10 monitoring network or

the exact placement of monitors. 40 CFR

part 58, appendix D, section 1, "SLAMS

Monitoring Objectives and Spatial

Scales" states:

It should be noted that this appendix

contains no criteria for determining the total

number of stations in SLAMS networks

* * *. The optimum size of a particular

SLAMS network involves trade offs among

data needs and available resources that EPA

believes can best be resolved during the

network design process."

It is unreasonable and cost prohibitive

to require a monitoring agency to

operate a monitoring station in every

location expected to have high levels of

a particular pollutant. The District

operates SLAMS in a variety of areas

that represent typical emission

scenarios in the SJV including urban

areas of dense population, industrial

areas, and rural areas dominated by

agricultural emission sources. See 2003

TSD at 5.

The monitoring network in the SJV

has both neighborhood and middle scale

sites. As stated previously in this notice

(see response to comment 8 and

footnote 7), these spatial scales are the

most important in monitoring for PM10. Monitoring sites that are

representative of middle scale impacts

cannot only represent the area

immediately around the monitoring site

but also areas of similar emission

characteristics. Similarly, neighborhood

scale sites can represent not only the

immediate neighborhood but also

neighborhoods of similar types in the

city or area. Furthermore, neighborhood

stations provide the most relevant

information about trefnds and

compliance with standards because they

often represent conditions in areas

where people commonly live and work

for periods comparable to those

specified in the NAAQS. See 40 CFR

part 58, appendix D, sections 2.8.0.4

and 2.8.0.5. - Most of the monitors in the SJV

network are neighborhood scale sites

with the objective of assessing

population exposure. Since the majorityof the SJV's population resides in

urbanized areas along the Highway 99

corridor and since many of the emission

sources are mobile or traffic-related, we

believe this is an appropriate focus of

the monitoring network. 2003 TSD at

page 5.

The District also monitors in locations

in addition to the Highway 99 locations,

I ISee also "SLAMS/NAMS/PAMS Network

Review Guidance" EPA-454/R-981003, March

1998, section 2.1.2.

e.g. Corcoran, Taft, and Hanford. 12

Thus, the District network does

represent the source types that make up

the majority of emission sources in the

western and eastern portions of the SJV.

The monitoring locations at Corcoran

and Hanford are both rural locations

surrounded by agricultural sources of

PM-10. Since it is not feasible for the

District to monitor in every rural

location, these sites can be viewed as

representative of other unmonitored

locations in the Valley.

Comment 10: The commenter points

out that back in the 1990s, there were

at least four monitoring sites in what

can be considered the rural west side.

These sites, located at Los Banos, Five

Points, Kern Wildlife Refuge, and

Kettleman City, were all shut down in

the mid-1990s with little or no

explanation, consultation with EPA or

public notification, as required by 40

CFR 58.26(e). These monitors were

mentioned in passing in the District's

1994 Air Monitoring Network Report as "not necessary" and "resource

intensive" and were to be closed to "redirect resources." The commenter

notes that the Five Points monitor

monitored sizeable violations until

1993, the year it disappeared from the

District's network.

Response: The public notification

requirement in 40 CFR 58.26(e) cited by

the commenter was part of the

monitoring regulation revisions made to

implement the PM-2.5 NAAQS (62 FR

38833 (July 18, 1997)) and applies only

to that pollutant:

After 3 years following September 16, 1997

or once a monitoring area has been

determined to violate the NAAQS, then

changes to an MPA monitoring network

affecting the valuating locations shall require

public review and notification.

"MPA" stands for "Monitoring Planning

Area" and "means a contiguous

geographic area * * * having a common

area that is used for planning

monitoring locations for PM 2.5"

Emphasis added. 40 CFR 58.1.

Moreover, EPA generally defers to a

State or local agency's judgment in

determining which SLAMS to operate in

a network as long as the overall

monitoring objectives in our regulations

are being met. However, EPA would

object if an agency discontinued a

design value site or a site with unique

source characteristics that is violating

the NAAQS.

In 1993-1994 the District and CARB

operated 18 monitoring sites in the

12 See "State and Local Air Monitoring Network

Report-2005" San Joaquin Valley Unified Air

Pollution Control District. Planning Division,

August 2005.

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Valley. Three sites were shut down at

the end of 1993: Los Banos, Kern

Wildlife Refuge, and Five Points. Los

Banos and Kern Wildlife Refuge were

never in violation of the PM-10 NAAQS

so the District's decision to shut them

down for any of the reasons cited by the

commenter would not have been

questioned by EPA.

The Kettleman City monitor

continued to run until 1996. This

monitor did record 5 exceedances of the

24-hour PM-10 NAAQS during the

period 1990 to 1993 but was in

attainment of the PM-10 NAAQS from

1994 to 1996 when it was discontinued.

While Five Points was a violating

monitor, it was not unique in that there

were other monitors in the Valley that

operated in areas subject to the same

type of agricultural emission sources. In

the year that it was shut down there

were significantly higher and more

frequent exceedances of the NAAQS at

the Corcoran monitoring site.

Consequently, there was no restriction

preventing the District from

discontinuing it. In addition, because

this site was in a largely uninhabited

area it was not as useful as other sites

in the network for assessing population

exposure to PM-10 air pollution.

The Corcoran monitoring site has

always been one of the highest-reading

sites 1

3 in the District's PM-10 network

and that site has run continuously 14

since the PM-10 NAAQS has been in

existence. The Corcoran site is very

similar to the Five Points site in terms

of the surrounding land use

(agricultural). During the period 1986 to

1993 the Five Points site recorded six

exceedances of the 24-hour NAAQS,

13 The Corcoran site has had multiple PM-10

monitoring instruments in operation during its

history, including three federal reference method

(FRM) high volume samplers, a beta attenuation

mass (BAM) analyzer, and a tapered element

oscillating microbalance (TEOM) analyzer. At

present, the site operates three FRM high volume

samplers and a TEOM analyzer. The BAM and

TEOM analyzers are not FRMs but have been

designated as federal equivalent method (FEM)

monitors by EPA. Two of the three FRM samplers

have been designated by the District as the primary,

or SLAMS, samplers for the Corcoran monitoring

site. The third FRM is operated for quality control

purposes.

FRMs are manual samplers that pull air through

a filter for 24 hours (midnight to midnight). The

filters are then weighed in a lab and a PM

concentration is calculated based on the mass

increase of the filter and the volume of air drawn

through it. The two primary FRMs operate on a

staggered one in six day schedule such that a

sample is collected once every three days.

14 The original Corcoran site was located on Van

Dorsten Avenue and ran from 1986 to 1998. The

current Corcoran site at Patterson Avenue began

monitoring in 1997 and continues at this time. The

Patterson Avenue site is approximately 1.1 miles

north of the Van Dorsten Avenue site and has

similar site characteristics.

and only one year that exceeded the

annual NAAQS (1988 with a 52 pg/m3).

In comparison, during the same time

period, Corcoran showed 21 observed

exceedances of the 24-hour NAAQS and

exceeded the annual NAAQS every year

during that time period (the maximum

annual concentration was 70.2 gg/m 3 in

1991). The Corcoran site also monitors

in an area where there is greater

population, which makes it a more

desirable site.

Comment 11: The commenter and

other individual citizens state that the

unmonitored (since mid-1990s) west

side of Highway 99 is a large area of the

SJV where monitoring is needed in

order to understand the impacts of PM10 pollution on the rural communities

affected by intense agricultural

operations and to fulfill federal

monitoring objectives.

Response: As stated previously, the

District does monitor in areas of intense

agricultural activity that are similar to

and thus representative of conditions in

other rural communities, including the

western portion of the District. There

may be site-specific reasons to monitor

on the west side of the Valley for

reasons beyond measuring attainment of

the NAAQS, e.g. reporting more specific

air quality information for people living

and working in the western portion of

the Valley for other health-related

purposes. However, EPA believes that

for the purposes of determining

attainment, the current monitoring

network, since it meets the requirements

and objectives of the federal monitoring

regulations, is representative of

conditions throughout the Valley and

thus is adequate for making an

attainment determination.

Comment 12: The commenter asserts

that while the District claims that PM10 levels in the SJV have greatly

improved, these improvements come

from a monitoring network that has

gotten significantly smaller. In 1993, the

commenter claims that there were 22

sites monitoring for PM-10 across a

wider swath of the SJV, while today

there are only 15 sites concentrated

along Highway 99. Given this narrow

slice of the SJV under surveillance, it is

unreasonable for EPA to declare the area

in attainment of PM-10 without first

making a meaningful evaluation of the

adequacy of the monitoring network.

Response: As stated above, EPA

evaluated the SJV PM-10 monitoring

network in 2003 and found it to be

adequate under EPA regulations and

guidance. 2003 TSD. That said, the

District's claim that PM-10 levels in the

Valley have improved is correct. The

improvement in air quality is clearly

evident from an examination of the air

quality data for the last 19 years. The

document "United States

Environmental Protection Agency

Quicklook Criteria Parameters" dated

October 5, 2006 provides a summary of

PM-l0 data collected in the SJV since

1987.

While the monitoring network has

seen a reduction in the number of sites

over this time period, from a high of 23

monitoring sites in 1990 to the current

15 sites that have made up the District

network since 1999, most monitoring

networks evolve over time and vary in

size. Most of the sites shut down by the

District during the past 19 years were in

attainment of the PM-10 NAAQS for the

previous three years. Some

discontinued sites were replaced by

new, nearby sites (Fresno, Drummond

replaced Fresno, Olive; Fresno, 1st

Street replaced Fresno, Cal State;

Bakersfield, California Ave. replaced

Bakersfield, Chester Street; Taft College

replaced Taft, lath Street; Corcoran,

Patterson replaced Corcoran, Van

Dorsten; Hanford, Irwin replaced

Hanford, Lacey; Merced, M Street

replaced Merced, E Street; Modesto,

14th Street replaced Modesto, City

Center). 15 Some sites were shut down

and not replaced (Fresno Five Points,

Kern Wildlife Refuge, Kettleman City,

Madera Library, Madera Health Dept.,

Los Banos, Modesto I street, Crows

Landing). Generally these sites were in

attainment of the PM-10 NAAQS. 16

Other new sites were established where

previously there were no monitors.

(Fresno, Clovis; Bakersfield, Golden

State Hwy.; Stockton, Wagner; Turlock).

The following table summarizes the

monitoring sites in the Valley that have

been operational over the past 19 years

and illustrates that the monitors in the

current network are not less

representative of air quality throughout

the SJV than the network that existed in

1993.

15 CARB recommends that Districts perform

"parallel monitoring" when proposing to relocate a

monitoring site. While parallel monitoring is not a

required activity when relocating a site, parallel

monitoring data is often the best way to determine

if important monitoring objectives for the existing

site will be satisfactorily continued at the

replacement site. See the document "Site

Relocation and Parallel Monitoring Guidelines"

June 1997, California Air .Monitoring and Technical

Advisory Committee.

16 Two sites shut down were in violation of the

24-hour PM-10 NAAQS. Fresio Five Points, which

was discontinued in 1993, had recorded a single

exceedance of 190 ag/m 3 in 1993, but had no

exceedances in 1991 and 1992. Crows Landing in

Stanislaus County, which was discontinued in

1991, had a single exceedance in 1990 of

180 pg/m 3

, but recorded no exceedances in 1989 or

1991.

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Year Site -- _ _-- 87 88 89 90 91 92 93 94 95 96 97 98 99 00 01 02 03 04 05

Fresno Olive X X X X

Fresno Drummond X X X X X X X X X X X X X X X X X

Fresno Ist St X X X X X X X X X X X X X X X X

Fresno Cal State X X X X

Fresno Five Points X X X X X X X

Fresno Clovis X X X X X X X X X X X X* X X X

Bakersfield Chester X X X X X X X X

Bakersfield Golden X X X X X X X X X X X X

Bakersfield CA Ave X X X X X X X X X X X X

Oildale X X X X X X X X X X X X X X X X X X X

Kern Wildlife Refuge X X X X X

Taft 10th Street X X X X

Taft College X X X X X X X X X X X X X X X X

Cocoran Van Dorsten X X X X X X X X X X X X

Corcoran Patterson X X X X X X X X X X

Hanford Lacey X X X X X X X

Hanford Irwin X X X X.X X X X X X X X X

Kettleman City X X X X X X X X X X

Madera Library X X X X X X X X X

Madera Health Dept. X X

Los Banos X X X X X X

Merced E Street X X X X X X X X X

Merced M Street X X X X X X X

Stockton Hazelton X X X X X X X X X X X X X X X X X X X

Stockton Wagner X X X X X X X X X X

Modesto I Street X X X X X X X X X X

Modesto City Center X X X X

Modesto 14th Street X X X X X X X X X X X X X X X X X

Turlock X X X X X X X X X X X X

Crows Landing X X X X

Visalia X X X X X X X X X X X X X X X X X X X

X indicates the site was operational in that year.

Source: EPA's AQS Database.

Comment 13: The commenter states determine attainment. While EPA uses record before EPA fails to demonstrate

that, in addition to their failure to claims of improper maintenance to that the network complies with 40 CFR

demonstrate the adequacy of the ignore data from continuous monitors, it part 58 and therefore EPA must collect

network, EPA and the District have also never establishes that the data it is additional information as required by

failed to provide records attesting to the considering is in fact reliable and comes regulations and provide it to the public

proper functioning and maintenance of from a properly maintained network. before it can cherry pick the data to be

the particular monitors used to The commmenter further claims that the used for the attainment determination.

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Response: Contrary to the

commenter's contention, the FRM data

on which EPA is basing its attainment

decision is reliable and from

instruments that are properly

functioning and maintained in

accordance with 40 CFR 58 and its

appendices. EPA's confidence in the

data is based on records submitted by

the State that demonstrate that the

network operations which produced the

data meet, or in some cases exceed, the

requirements in our regulations at 40

CFR part 58.

EPA and its regulations provide for

different types of requirements to assure

the quality of data, depending upon the

types of equipment used to measure

PM-10. There are two categories of

instruments that can be used to measure

PM-10 concentrations in the ambient

air, manual reference method samplers

and automated equivalent method or

continuous analyzers. 17

A manual reference method sampler

provides a 24 hour average

concentration value for PM-10 in the

ambient air. A manual reference method

sampler uses a filter medium through

which ambient air is drawn at a near

constant flow rate'for a period of 24

hours (midnight to midnight). This flow

rate through the filter is an important

parameter and must be recorded

accurately. Monitoring the actual flow

rate to verify that the designed flow rate

is being maintained during the 24-hour

period is important because the inlet of

the sampler will ensure the needed

separation of particles 10 microns or

less in diameter from larger particles

only if the proper flow rate is

maintained. Also, the flow rate

measurement provides us with the total

volume of air drawn through the filter

during the 24-hour period. The total

volume of air is needed to calculate the

PM-10 concentration.

The filters used in PM-10 manual

reference method samplers are weighed

in a laboratory before they are installed

in the sampler and weighed again after

air has been drawn through the sampler

for 24 hours. The pre-sampled mass of

the filter is subtracted from the postsampled mass and the result is the total

mass of PM-10 collected. This total

mass is divided by the total volume of

air to determine the 24 hour average

PM-10 concentration. In the best case a

manual sampler can provide a 24 hour

average concentration in about two days

17 All equipment designated by EPA as approved

for NAAQS comparisons can be found in the

document "List of Designated Reference and

Equivalent Methods", USEPA. National Exposure

Research Laboratory, July 26, 2006 available at the

Web site http://www.epa.gov/ttn/amtic/files!

ambient/criteria/refO7O6.pdf.

from the day a sample was collected. In

practice and depending on a number of

factors (e.g. how many filters the lab has

to process, the distance between the

laboratory and the monitoring site, on

what day of the week a sample was

taken) processing the filters in a

laboratory and calculating the

concentration can take a few weeks, on

average.

Automated equivalent methods or

continuous analyzers, such as Beta

Attenuation Mass (BAM) or Tapered

Element Oscillating Microbalance

(TEOM) monitors, use ofie of two

alternative measurement approaches

(beta ray attenuation or mass-dependent

oscillation frequency) to avoid the need

to collect PM-10 on a filter medium that

-must subsequently be weighed in a

laboratory. Continuous analyzers report

PM-10 concentrations over short

intervals in near real time. The

analyzers can be (and typically are)

configured to report the average 24 hour

PM-la concentration just as a manual

reference method does.

As discussed elsewhere in this action,

the SJV PM-10 SLAMS network

consists of 15 monitoring sites using

manual reference method samplers.

These samplers operate on a once every

six day schedule except for the site at

Corcoran, which operates once every

three days because it has two samplers

operating on staggered once every six

day schedules. Corcoran's sampling

frequency is twice that of other sites in

the SJV PM-10 SLAMS network because

it is historically the highest reading PM10 site in the network.

One of the goals in any data collection

effort is to be able to quantify

measurement uncertainty. Measurement

uncertainties are the errors associated

with the ambient air monitoring agency,

including errors associated with the

field, preparation and laboratory

measurement phases. At each

measurement phase, errors can occur,

that in most cases are additive. Air

quality monitoring agencies aim to

control measurement uncertainty to an

acceptable level through the use of

various quality control and evaluation

techniques. Two of the primary checks

used to evaluate measurement

uncertainty are precision and accuracy

checks. We will discuss each of these

procedures below in more detail. An

important point to understand is that in

addition to allowing an evaluation of

the uncertainty in the data that has been

collected, these checks can reveal

equipment or procedural problems that

can be corrected. They can also lead a

monitoring agency to disqualify or

withdraw data collected in a period

before a check revealed a problem, on

the reasonable assumption that the data

was affected'by the problem.

EPA regulations at 40 CFR part 58,

appendix A, section 3.0.1 states that

"All ambient monitoring methods or

analyzers used in SLAMS shall be tested

periodically, as dbscribed in this

section, to quantitatively assess the

quality of the SLAMS data." Precision

checks are a measurement of mutual

agreement among individual

measurements of the same property

usually under prescribed similar

conditions, expressed generally in terms

of standard deviation. There are

different ways to determine the

precision of PM-10 monitoring

networks depending on whether the

network utilizes manual reference

methods or automated equivalent

methods. Precision checks of manual

and automated methods are addressed

in 40 CFR part 58, Appendix A, sections

3.3 and 3.1, respectively.

The SJV PM-10 SLAMS network is a

subset of the larger California PM-10

SLAMS network.18 Section 3.3 of

Appendix A discusses how to establish

the precision of a PM-10 network made

up of manual method samplers, which

applies to the SJV PM-10 SLAMS

network. The requirement is to operate

a certain number of collocated

monitoring sites, i.e., duplicate

samplers, depending on the total

number of samplers in the network: 1

collocated site for networks consisting

of up to five sites, 2 collocated sites for

networks consisting of 6 to 20 sites, and

3 collocated sites for networks of 20 or

more sites. These collocated samplers

must run on the same days as the

primary samplers and must be run on at

least a once every six days schedule.

The California State PM-10 SLAMS

network consists of 97 monitoring sites

and has five collocated sites located at

Bakersfield, Visalia, Taft, Corcoran, and

Sacramento. The first four of these listed

collocated monitoring sites are located

in the SJV. If the SJV PM-10 network

was evaluated separately from the rest

of the State network, EPA regulations

would only require two collocated

precision sites. From this perspective,

there are twice the'number of collocated

precision sites as required by EPA

regulations. Each of these samplers will

produce a pair of concentrations on a

For the purposes of EPA quality assurance

requirements, the California PM-10 SLAMS

network is defined as those PM-10 monitors

designated as SLAMS in the CARB document

"California State and Local Air Monitoring Network

Plan-2005" Planning and Technical Support

Division, Air Quality Branch, October 2006 with the

exception of PM-10 SLAMS monitors operated by

the South Coast AQMD. the Bay Area AQMD, and

the San Diego APCD.

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given sampling day.19 These

concentrations must be greater than 20

Rg/m 3 in order to be used in

determining the precision of the

network. According to the CARB QA

manual, if concentrations are below 80

gg/m 3, the two paired values must be

within 5 jig/m 3 of each other, or further

investigation and corrective action are

required. If the concentrations are

greater than 80 gg/m 3 they must be

within ±7 percent of each other.20 These

acceptance criteria are consistent with

EPA criteria in the guidance document

"Quality Assurance Handbook for Air

Pollution Measurement Systems,

Volume II: Part 1, Ambient Air Quality

Monitoring Program Quality System

Development", (EPA-454/R-98-004,

August 1998).

EPA's QA guidance cited above

provides a target for the system-wide

precision performance; taken across all

pairs of collocated data. EPA regulations

at 40 CFR part 58, appendix A section

5.3 requires 95 percent upper and lower

probability limits be used to evaluate

the collocated data. The target given in

the guidance for the 95th percentile

upper and lower limits for reporting

organizations is 15 percent. The annual

precision summary statistics for the

CARB PM-10 SLAMS network meet

these requirements as shown in the AQS

Report "P/A Reporting Organization

Summary, AMP 240."

Establishing precision for automated

equivalent method analyzers, such as

BAM or TEOM monitors, consists of

performing a bi-weekly one point

precision check of an analyzer's

operational flow rate. See 40 CFR part

58, appendix A, section 3.1. The check

is made using a flow rate transfer

standard. The actual flow rate measured

by the transfer standard and the

indicated flow rate of the analyzer (the

flow rate as measured by the analyzer's

own flow rate meter) are reported to the

AQS database. In the case of the

automated equivalent analyzers

operated by the District as special

purpose monitors rather than as SLAMS

monitors, these precision checks were

not made in accordance with Appendix

A section 3.1 and therefore EPA cannot

have the same confidence in these data

as we have in the SLAMS data. Without

performing the precision checks, the

District may have overlooked

operational problems and allowed them

to affect the data from the special

purpose monitors, and without the

precision check data we have no way to

evaluate the acceptability of the data.

The other primary data quality control

(QC) check for proper operation and

maintenance of a monitor is the

accuracy check. As with the precision

checks, there are two different

procedures for determining the accuracy

of PM-10 monitors depending on

whether we are checking a manual

reference method or an automated

equivalent (continuous) analyzer. These

two procedures are addressed in 40 CFR

part 58, Appendix A, sections 3.4 and

3.2 respectively.

For the SJV PM-10 SLAMS network

that used manual reference method

samplers, the procedures in section 3.4

are used to determine accuracy. The

procedure entails auditing the flow rate

of each sampler annually such that 25

percent of the network 21 is audited each

calendar quarter. An independent

auditor (i.e., not the person who

regularly operates the sampler) using

dedicated equipment (i.e., not the flow

meter built into the sampler) audits the

flow rate of the sampler and reports the

actual flow rate and the indicated

(sampler) flow rate. Two measurement

quality parameters are calculated from

these measurements: The percent

difference in the flow rate

measurements by the sampler's own

flow rate meter and the auditor's

dedicated flow rate meter, and the

percent difference between the actual

flow rate created by the sampler and the

flow rate it was designed to have.

Percent differences beyond acceptance

limits can cause an incorrect

measurement of PM-10 concentrations.

As the QA oversight agency, CARB's QA

section performs the accuracy audits of

the SJV PM-10 SLAMS network. These

accuracy audits were performed by

CARB as required by EPA regulations,

and showed that the monitors were

operating within the accepted control

limits, i.e., the flow rates had not

deviated enough from their design flow

rates to require any corrective action on

the part of the CARB or District

monitoring staff. The results of the

accuracy checks performed by CARB

were submitted to EPA and are shown

in the AQS Report "P/A Reporting

Organization Summary, AMP 240." The

following table summarizes the

accuracy results for the individual

audits of the PM-10 monitors in the

SJV. The table shows the date of each

audit (one per year) the differences in

the flow rate measurement by the

sampler's own flow rate meter (% Diff.)

and the difference between the actual

flow rate created by the sampler and the

flow rate it was designed to have (%

Diff. Design). This information shows

that the monitors operated in the SJV

PM-10 SLAMS network are performing

within the acceptance criteria

established by EPA in its QA guidance,

which sets a target confidence interval

for the 95th percentile upper and lower

limits aggregated across the reporting

organization of 20 percent, over a three

year period. The CARB PM-10 SLAMS

network easily meets this target based

on the small differences shown in the

table below. CARB's performance of

these audits at the required frequencies

and subsequent submittal of the results

of the audits to EPA's AQS database

meets the requirements of 40 CFR part

58, appendix A, section 3.4.

Bakersfield-Golden ..........................................................................................................

C lovis ...............................................................................................................................

Audit date [Sampler ID % Diff. %_dign.

6/4/2003

7/13/2004

10/5/2005

6/18/2003

7/29/2004

1117/2005

4121

2456

4121

7380

4040

4040

0.0

6.8

5.3

-2.2

- 2'9

0.3

19 Because it operates on a one in three day

sampling schedule and is also a collocated

precision site, the Corcoran monitoring site has

three manual reference method samplers in

operation, two that run concurrently and a third

that runs on the staggered one in six day schedule

that enables the site to produce data every three

days.

20 State of California Air Resources Board, Air

Monitoring Quality Assurance, Volume I, Quality

Assurance Plan, Monitoring and Laboratory

Division, June 2005. " 21 In this case, 25 percent of the network applies

to the California State PM-10 SLAMS network not

the SJV PM-10 SLAMS network.

-6.8

-4.3

-5.7

0.7

3.0

-0.5

63655

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Audit date Sampler ID % Diff. design

Corcoran-Patterson..............................................

Fresno-Drummond.............................................

Hanford......................................................

M erced-M S t . ...................................................................................................................

Stockton- W agner- Holt ................................................................................................

Taft.........................................................

Turlock......................................................

Bakersfield-CA.................................................

Fresno-First .............................................

Modesto-14th St................................................

O ildale ..............................................................................................

Stockton-Hazelton ................ I ....................... ........................

Visalia.......................................................

2/4/2003

2/4/2003

2/4/2003

3/11/2004

3/11/2004

3/11/2004

1/26/2005

1/26/2005

1/26/2005

2/19/2003

2/25/2004

3/1/2005

2/4/2003

3/10/2004

1/25/2005

3/4/2003

2/26/2004

1/25/2005

6/18/2003

12/16/2004

11/28/2005

2/3/2003

2/3/2003

3/15/2004

3/15/2004 3/14/2005

3/14/2005

3/11/2003

3/2/2004

2/24/2005

3/11/2003

3/11/2003

3/16/2004

3/16/2004

3/8/2005

3/8/2005

6/16/2003

7/28/2004

7/26/2005

3/3/2003

3/3/2004

2/23/2005

3/12/2003

3/17/2004

3/10/2005

11/19/2003

12/16/2004

12/1/2005

6/12/2003

6/12/2003

7/27/2004

7/27/2004

7/28/2005

7/28/2005

1885

4645

4120

1885

4645

4120

1885

4645

4120

4069

4069

4069

3048

1884

1884

4756

4756

4756

3519

3519

3519

8008

7787

8008

7787

8008

7787

4161

4161

3519

20018176

20018177

20018176

20018177

20018176

20018177

20018504

7660

7660

20003727

20003727

20003727

20004244

20004244

20004244

20004282

20004282

20004282

7471

7678

7471

7678

7471

7678

-2.6

2.0

-8.0

-0.7

1.3

-0.7

0.0

0.3

0.0

1.8

-2.3

4.3

-8.7

2.5

0.0

-5.3

2.8

6.8

0.0

0.3

4.8

-11.7

-5.4

-9.0

-4.3

5.2

3.6

-1.0

-8.5

0.0

-0.2

0.0

-2.2

-2.2

0.3

1.0

1.0

-1.7

0.7

-1.3

-2.0

0.5

1.8

-1.0

1.0

1.0

0.5

0.8

0.0

1.3

-1.7

-1.4

0.5

2.8

7.0

-2.0

3.0

0.5

-1.5

0.5

-0.7

-1.0

0.0

-2.2

-0.7

-1.0

-2.5

-1.3

-3.8

7.5

-3.5

-8.0

0.5

-2.2

-7.0

7.2

6.5

-2.2

9.5

-4.0

-2.5

-1.8

6.3

-3.8

2.0

2.2

3.8

3.8

-0.3

-0.7

2.5

4.3

1.5

-3.0

2.5

0.0

-0.3

2.8

-1.0

0.5

0.0

-1.8

1.3

0.0

4.7

4.3

2.2

0.0 .1 ____________ .1 J ________

The accuracy audit for the automated

equivalent analyzer is similar to that for

manual reference methods. See 40 CFR

part 58, appendix A, section 3.2.2. Like

the audit performed for the manual

reference methods the audit required for

automated analyzers is a field audit.

However, as discussed in this notice, no

accuracy audits of the automated

analyzers operated by the District were

performed, and therefore EPA cannot

assess the accuracy of these monitors.

Because the flow-related components of

the manual reference method samplers

and of the automated equivalent

analyzers are different in design and

materials, the good performance of the

manual samplers cannot be extrapolated

to the automated analyzers.

Additionally, annual certifications of

quality control standards (e.g., a flow

rate meter) are critical in order to insure

that the checks and measurements being

made are traceable to National Institute

of Standards and Technology (NIST)

standards. See 40 CFR part 58, appendix

A, section 2.3.3. This certification is

achieved by transferring the accuracy or

authority of a primary standard to a

field-usable standard. Also, calibrations

of the internal flow rate meters of PM10 samplers, which are generally

performed annually or after sampler

repairs, also ensure that these meters are

functioning correctly. The following

table lists the calibration dates of the

internal flow rate meters of the SLAMS

monitors in the SJV network.

Calibrations of the flow rate meters are

usually performed when a sampler is

first installed at a site or after repair.

While EPA regulations and guidance do

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not specify a frequency for performing performing them annually regardless of demonstrates a good operation practice

calibrations of flow rate meters, whether the instrument required it by the District and CARB.

Sample ID Cal. date

Bakersfield-Golden .................................................................................................................................... 4121 2/27/2003

2456 5/25/2004

4121 12/15/2004

Clovis ....................................................................................................................................................................... 7380 3/13/2003

4040 7/27/2004

4040 10/6/2005

Corcoran-Patterson .................................................................................................................................................. 1885 10/28/2002

4645 1/30/2003

4120 10/28/2002

1885 11/12/2003

4645 12/9/2003 4120 12/9/2003

1885 10/5/2004

4645 1/5/2005

4120 9/2/2004

Fresno-Drummond ................................................................................................................................................... 4069 11/12/2002

4069 2/24/2004

4069 12/21/2004

Hanrford .................................................................................................................................................................... 3048 10/14/2002

1884 10/15/2003

1884 8/4/2004

Merced-M St ............................................................................................................................................................ 4756 10/9/2002

4756 2/10/2004

4756 12/9/2004

Stockton-W agner- Holt ............................................................... ........................................................................... 3519 2/20/2003

3519 9/10/2004

3519 7/20/2005

Taft ........................................................................................................................................................................... 8008 11/19/2002

7787 10/25/2002

8008 2/26/2004

7778 2/26/2004

8008 8/18/2004

7778 8/18/2004

Turlock ..................................................................................................................................................................... 4161 1/23/2003

4161 7/16/2003

3519 2/23/2005

Bakersfield--CA ....................................................................................................................................................... 20018176 3t7/2002

20018177 317/2002

20018176 3/9/2004

20018177 3/9/2004

20018176 6/3/2004

20018177 6/16/2004

Fresno- First ........................................................................................................................................................... 20018504 6/13/2003

7660 1/21/2004

7660 2/28/2005

Modesto- 14th St .................................................................................................................................................... 20003727 1/17/2003

20003727 2/10/2004

-20003727 2/11/2005

Oildale ...................................................................................................................................................................... 20004244 2/27/2003

20004244 1/8/2004

20004244 1/31/2005

Stockton- Hazelton ................................................................................................................................................. 20004282 11/12/2003

20004282 12/9/2004

20004282 11/9/2005

Visalia .................................................................................................................................................................... 7471 5/20/2003

7678 5/20/2003

7471 5/20/2003

7678 5/20/2003

7471 11/24/2004

7678 11/24/2004

63657

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As detailed above, CARB has certified

and submitted quarterly 22 to EPA's

AQS database, all the supporting QA

data for the SJV SLAMS PM-10

network, including data collected by the

collocated precision network and all

required audit data. This data shows

that the operation and maintenance of

the SLAMS network met the

requirements of sections 3.3 and 3.4 of

Appendix A Part 58. By contrast the

required number of precision checks

and independent flow rate audits were

not performed on the automated

equivalent (BAM and TEOM) method

monitors pursuant to sections 3.1.2 and

3.2.2 nor was data on the precision

checks that were performed on the BAM

monitors submitted to the AQS database

as required by 40 CFR part 58, appendix

A, section 4.1.23 Thus EPA is not, as the

commenter contends, "cherry picking"

data, but rather relying for its

determination on data that has met the

requirements for reliability under its

regulations.

F. Data Not Included in Determining

Attainment

1. Data From September 3, 2004 High

Wind Event

Comment 14: The commenter

questions the validity of waiving the

September 3, 2004 exceedance as a

Natural Events Action Plan (NEAP) 24

event and states that there is no

technical basis for ignoring the

exceedance and that best available

control measures (BACM) were not

being implemented for the largest

sources of dust in the Valley on that

date. The commenter notes that removal

of the flag puts the Valley right at the

limit of violations allowed under the

NAAQS and should make EPA wary to

find the PM-10 problem solved in the

Valley.

Response: The exceedance in question

occurred at the Corcoran-Patterson

Avenue monitoring site. EPA notes in

its proposed rule that "[tlhis exceedance

was flagged by CARB as a high wind

natural event [and] EPA concurred with

CARB's request to exclude this data

from consideration in attainment

findings on July 7, 2005." However, "even if EPA had not concurred with

the exclusion of this data, the Corcoran

site would still attain the 24-hour

NAAQS because the expected number

of exceedances 25 is less than or equal to

one per year, averaged over the three

year period 2003-2005." 71 FR 40952,

40954. In other words, EPA believes that

it need not address here the issue of

whether or not the September 3, 2004

exceedance should be flagged, because

in any event the SJV would still be

attaining the PM-10 standards. In

addition, whether the SJV is "at the

limit" of exceedances allowed under the

NAAQS is not a criterion for making an

attainment determination. Areas are

either attaining or not attaining. EPA

found that the area would still be

attaining even if this exceedance were

included, and on that basis determined

that the area was in attainment. As

noted above, EPA believes that

preliminary data indicating a September

22, 2006 exceedance at the Corcoran

monitor should also not be included in

this attainment determination for the

reasons stated previously relating to

quality assured data and natural events.

Nevertheless, EPA notes that the

attainment determination does not mean

the air quality problem is solved in the

SJV. In order to be redesignated as a

PM-l0 attainment area, the District and

CARB will need to address CAA section

107(d)(3)(E) requirements. In addition,

the SJV is nonattainment for the PM-2.5

and 8-hour ozone standards and will

need to achieve substantial further

reductions in pollution levels to attain

these NAAQS. The commenter's

implicit concern is that EPA's action

will somehow allow the SJV to relax its

efforts to reduce air pollution; however,

EPA does not believe that is the case.

2. Data From BAM and TEOM Monitors

Comment 15: The commenter states

that there are four Beta Attenuation

Mass (BAM) monitors (designated by

EPA as federal equivalent methods and

also referred to as "special purpose

monitors") in the Valley that monitor

PM-10 concentrations and that two of

these monitors (Bakersfield-Golden

State Highway and Corcoran-Patterson

Avenue) have recorded multiple

exceedances of the Federal PM-la

standard from 2003 to 2005. The

commenter states that all valid data

from special purpose monitors must be

considered within the regulatory

process and that EPA's rationale (that

the District did not perform quality

control checks every two weeks and that

CARB did not perform independent

field audits of the BAM sampler) for not

considering data from the Corcoran

BAM monitor is not adequate.

Response: The District and CARB

have operated automated equiR'alent

(continuous) method monitors in the

SJV at a number of PM-l0 SLAMS sites.

The following table summarizes the

type (BAM or TEOM), location and

history of operation of the PM-10

continuous monitors operated in the

Valley.

Monitoring site BAM operational period .TEOM operational period

Bakersfield Golden State Hiy ........................... 7/28/2005-8/8 2006 ......................................... 8/27/2006-Present.

Corcoran ............................................................. Before 1/1/2003-7/22/06 ................................. 1/1/2003-3/31/2005.

'8/24/2006-Present.

Fresno 1st Street ................................................ Before 1/1/2003-Present ................................. Before 1/1/2003-Present.

Stockton .......................... :.................................. NA .................... : ............................... ............... Before 1/1/2003-June 28, 2005.

Tracy ................................................................... 10/25/2005-9/26/2006 .................. 10/1/2006-Present.

22 EPA regulations require the submittal of

precision and accuracy data on a quarterly basis, as

it does for the pollutant concentration data. See 40

CFR 58.35 and 40 CFR part 58, appendix A, section

4.1.

23 The District did perform some precision checks

of the BAM monitor at Corcoran but these were

considerably fewer than required in EPA

regulations. See response to comment 15. Section

3.1.2 requires the checks to be performed at a

designated frequency and the data submitted to the

AQS database.

14 See 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. 15 EPA determines attainment of the 24 hour PM10 NAAQS based on the number of "expected"

exceedances in a given year. Because most manual

PM-10 samplers do not operate every day but on

a one in six day schedule, EPA regulations at 40

CFR part 50, Appendix K require an adjustment to

the observed or actual number of exceedances to

account for days that are not sampled. In the

simplest case, when a monitor operating once every

six days, with 100% data capture, records a single

observed exceedance, that exceedance would be

adjusted to six expected exceedances. In the

specific case of the Corcoran monitoring site and its

one in three day schedule, EPA calculated the

expected exceedances, based on the single observed

exceedance on September 3, 2004, to be three over

a three year period which averages to one

exceedance per year. This expected exceedance rate

of one per year shows that the Corcoran site is still

in attainment of the 24-hour NAAQS. See 40 CFR

part 50, Appendix K, section 3.1 for a cpmplete

discussion on how EPA adjusts data.

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EPA regulations at 40 CFR part 50,

appendix K, section 2.3 address the data

requirements that must be met in order

for EPA to determine the attainment

status of a particular monitoring site. In

general EPA needs three years worth of

monitoring data in order to declare a

site in attainment of the NAAQS. Of the

four BAM monitors operated in the

Valley, only Fresno 1st Street and

Corcoran have been in operation long

enough to have accumulated three years

of data. 26 The Bakersfield-Golden State

Highway site operated a BAM monitor

from July 28, 2005 to August 8, 2006.

The BAM was replaced by a TEOM

monitor on August 27, 2006. The Tracy

site operated a BAM monitor from

October 26, 2005 to September 26, 2006.

The Tracy BAM was replaced by a

TEOM monitor on October 1, 2006.

EPA's attainment determination is based

on three complete years of data from

2003-2005. Therefore, the data from

these BAM and TEOM monitors at

Bakersfield Golden State Highway and

Tracy cannot be used to determine that

these sites are in attainment.

Furthermore, the BAM monitor at

Tracy did not record any exceedances of

the 24-hour PM-10 NAAQS in 2005,

though an exceedance was recorded on

September 22, 2006 (160 g~g/m 3

). The

Bakersfield-Golden State Highway

automated equivalent monitors recorded

three exceedances of the NAAQS during

their operation, a value of 156 Igg/m 3 on

November 22, 2005 and a value of 180

gg/m 3 on November 23, 2005 (recorded

on BAM monitors). Another exceedance

(169 .tg/m 3

) was recorded by the

Bakersfield-Golden State Highway

TEOM on September 22, 2006.27 Under

40 CFR 50.6, "[tlhe standards are

attained when the expected number of

days per calendar year with a 24-hour

average concentration above 150 glg/m 3

* * * is equal or less than one."

Therefore, because neither the Tracy nor

the Bakersfield-Golden State Highway

BAM monitor has averaged more than

one exceedance per year, the

exceedances recorded at these monitors

do not show that the area is in violation

of the 24-hour NAAQS. Even if the

Bakersfield-Golden State Highway BAM

and TEOM data are considered together

(and even if they were quality-assured

data not subject to natural events), the

exceedances recorded at these monitors

would not show that the area is in

violation of the standard. See Responses

18 and 19.

Automated equivalent analyzers are

also operated at the Fresno 1st site and

the Corcoran site. See table on BAM and

TEOM operating histories above. The

Fresno 1st site has operated both a BAM

monitor and a TEOM monitor for long

enough that there is a three year data set

for both analyzers. Neither the BAM nor

the TEOM operated at Fresno 1st Street

recorded any exceedances of the 24-

hour NAAQS during the 2003-2005

period, and both continue to show

attainment through October 11, 2006.

The Corcoran site operated both a

BAM monitor and a TEOM monitor

during its history. See the table above

on BAM and TEOM operating histories.

The automated equivalent analyzers

operated at the Corcoran site did record

exceedances 28 as summarized in the

following table:

CORCORAN AUTOMATED EQUIVALENT ANALYZER-PM-10 EXCEEDANCES 2003-2006

Date Concentration

(type of analyzer) (gig/m 3

)

10/10/2003 (BAM) .......................................................................................................................................................................... 182

10/18/2003 (BAM) .......................................................................................................................................................................... 156

10/21/2003 (BAM) .......................................................................................................................................................................... 157

10/28/2003 (BAM) .......................................................................................................................................................................... 158

9/3/2004 (BAM)......................................................................................."217

11/21/2005 (BAM) .......................................................................................................................................................................... 166

11/22/2005 (BAM) .......................................................................................................................................................................... 177

11/23/2005 (BAM) .......................................................................................................................................................................... 185

11/26/2005 (BAM) .......................................................................................................................................................................... 166

2/27/2006 (BAM) ............................................................................................................................................................................ 179

9/22/2006 (TEOM) ......................................................................................................................................................................... *261

*The manual reference method monitor at Corcoran also recorded an exceedance of the NAAQS on this day that the State flagged as a high

wind event under EPA's Natural Events Policy.

**As noted previously the District and CARB have informed EPA that they believe that exceedances recorded on September 22, 2006 are due

to high wind and wildfire natural events.

However, the data was not considered

by EPA in its attainment determination

because the District did not.perform the

flow rate checks of the BAM monitors

as required by EPA regulations at 40

CFR part 58, appendix A, section 3.1.2

and CARB did not perform independent

flow rate audits as required by 40 CFR

26While it is necessary to have three years of

representative monitoring data to demonstrate that

a monitor is attaining the standard, 40 CFR part 50,

appendix K, section 2.3(c) states that there are less

stringent data requirements for showing that a

monitor has failed to attain. Since the 24-hour PM10 standard is violated once a monitor averages

more than one expected exceedance per year

(averaged over three years), a monitor with four or

more observed or expected exceedances has

violated the 24-hour NAAQS even if there is less

part 58 appendix A, section 3.2.2. See

Response to comments 7 and 13

above.29

In determining which data to use in

regulatory actions, EPA needs to

determine whether the data meets our

basic requirements. If it does not then

we cannot use the data in regulatory

than three years of data (four exceedances divided

by three years is greater than one per year).

27 As noted previously the District and CARB

have informed EPA that they believe that

exceedances recorded on September 22, 2006 are

due to high wind and wildfire natural events.

28 An exceedance is defined as a daily value that

is above the level of the 24-hour standard (150 gg/

m3) after rounding to the nearest 10 gg/m3 (i.e.

values ending in 5 or greater are to be rounded up.

See 40 CFR part 50, appendix K, section 1.0.

decisions. During the three-year period

of 2003-2005, the District only

performed 10 of the 78 required biweekly flow rate checks and CARB

never performed an independent audit

of the BAM monitor's flow rate, which

is required annually. While the

commenter implies that this is a minor

2 9 Under 40 CFR 58.14, because the District did

not intend that data from these continuous monitors

would be used for determining attainment ornonattaimnent, flow rate checks and audits were

not required to be conducted. See May 8, 2006 letter

to Wayne Nastri, Regional Administrator, EPA

Region 9, from Catherine Witherspoon, Executive

Officer, CARB with attached letter dated April 24,

2006 to Catherine Witherspoon, Executive Officer;

CARB from Seyed Sadredin, Executive Director/Air

Pollution Control Officer, San Joaquin Valley Air

Pollution Control District.

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deficiency, EPA believes the lack of QA/

QC raises significant questions about the

reliability of the Corcoran BAM monitor

data and therefore concluded that it

would not be appropriate to rely on data

from this monitor that did not meet our

regulatory requirements.

Comment 16: The commenter states

that EPA cannot ignore the Corcoran

BAM monitor data due to the lack of

precision check of the flow meter. The

commenter states that 40 CFR part 58,

appendix A, section 3.1.2.2 offers an

alternative procedure at section 3.1.2.2.1

for complying with the section 3.1.2

requirement for a precision check of the

operational flow rate of the analyzer.

The alternative procedure involves

checking the BAM monitor's internal

flow meter (vs. using an external flow

rate transfer standard) and requires an

external audit of the flow rate at least

every six months, records of the past

three audits showing that the flow meter

is stable, and no indication of.improper

operation. Section 3.1.2.2.2 even allows

for the precision check to be carried out

remotely. The commenter states that

EPA has not analyzed whether the

District properly maintained the

Corcoran-Patterson Avenue BAM

monitor in accordance with section

3.1.2.2 and that the District's

maintenance records show regular

weekly maintenance, including checks

of the on-screen flow rate, and also

show regular external flow audits.

Response: As stated above, there are

two routine quality assurance checks

that need to be made to monitoring

instruments to ensure that the data they

are producing is reliable. One of these

is a precision check. The precision

check for automated PM-10 analyzers,

of which the BAM monitor is one, is

addressed in 40 CFR part 58, appendix

A, section 3.1.2. See response to

comment 13. This section requires a

one-point precision check to be

performed at least once every two

weeks. There are two procedures that

can be used to satisfy this requirement.

The standard procedure is explained in

section 3.1.2.1 of appendix A and the

alternative procedure is explained in

section 3.1.2.2 of appendix A. One of

our reasons for not using data from the

CorcoranBAM monitor is that the

District did not perform the precision

checks of its BAM monitor and submit

the resulting QA data to the AQS

database. The District performed neither

the standard procedure nor the

alternative procedure.

The conmnenter implies that EPA

rejected the Corcoran BAM monitor data

even though the District had performed

the sanctioned alternative procedure.

This is not true. EPA reviewed all the

maintenance records from the CorcoranPatterson Avenue site and found that

neither precision check was being

performed. While the operator did

check the BAM monitor's internal flow

rate indicator routinely, the other

requirements of 40 CFR part 58,

appendix A, section 3.1.2.2 were not

being met, i.e., the flow rate meter was

not audited every six months and there

was no documentation that the flow

meter is stable, verifiable, and accurate

to ±4 percent (sections 3.1.2.2.1.1,

3.1.2.2.1.2, 3.1.2.2.1.3). See also

response to comment 13 above. As

stated in that response the precision

check is one of the critical measurement

quality checks that are needed to ensure

that the device is performing as

designed.

Comment 17: The commenter states

that EPA also cannot dismiss the

Corcoran BAM data because CARB did

not perform independent field audits as

described in section 3.2.2 without

explaining why these audits are

important in determining the

reasonableness of the data. Moreover,

the commenter also states that EPA

must demonstrate that the FRM

monitors were appropriately audited or

explain why it is reasonable for the FRM

monitors to not be audited while

excluding the BAM monitor data due to

this oversight. EPA needs a compelling

rational basis for continuing to exclude

all of the BAM data- or EPA must

consider the data in determining the

Valley's attainment status.

Response: Regular audits of

monitoring equipment are important in

establishing the validity and accuracy of

the data collected by an agency. Section

2.11.7.0 of EPA's QA Guidance

document "Quality Assurance

Handbook," Volume II, Part II,

September 1997, states that:

[tihe primary goal of an auditing program

is to identify system errors that may result in

suspect or invalid data. The efficiency of the

monitoring system (i.e., labor input vs. valid

data output) is contingent upon effective

quality assurance (QA) activities. This true

assessment of the accuracy and efficiency of

the PM-10 measurement system can only be

achieved by conducting an audit under the

following guidelines: * Without special preparation or adjustment of the system to be audited.

* By an individual with a thorough

knowledge of the instrument or process being

evaluated, but not by the routine operator. * With accurate, calibrated NIST-traceable

transfer standards that are completely independent of those used for routine

calibration and QC flow checks.

* With complete documentation of audit

information for submission to the operating

agency. The audit information includes, but

is not limited to, types of instruments and

audit transfer standards, instrument model

and serial numbers, transfer-standard

traceability, calibration information, and

collected audit data.

The audit procedures described in this

section produce two quantitative estimates of

a PM-10 sampler's performance: The audit

flow-rate percentage difference and the

design flow-rate percentage difference. The

audit flow-rate percentage difference

determines the accuracy of the sampler's

indicated flow rate by comparing it with a

flow rate from the audit transfer standard.

The design flow-rate percentage difference

determines how closely the sampler's flow

rate matches the inlet design flow rate under

normal operational conditions.

It is not clear to EPA why the

commenter believes the FRM

monitoring network operations do not

meet EPA requirements. As discussed

previously, the PM-10 SLAMS

monitoring network meets EPA's QA

requirements, including the requirement

for independent field audits. See also

Response to Comment 13 above.

Comment 18: The commenter states

that neither EPA nor the District

addresses the violations recorded at the

Bakersfield BAM monitor. No attempt is

made to discredit the data coming from

that BAM monitor and no rational basis

is provided by EPA for completely

disregarding those data.

Response: The Bakersfield Golden

State Highway BAM monitor never

recorded any violations of the NAAQS.

As explained above, the Bakersfield

Golden State Highway automated

equivalent method analyzers recorded

three exceedances since the District

began operation of these monitors at the

site in July 28, 2005 while sampling

every day. According to 40 CFR part 50,

appendix K, this does not constitute a

violation of the NAAQS and therefore

we did not discuss it in our proposal.

Since there are no violations at this

BAM monitor, EPA did not need to

determine whether the data was usable

in making the attainment determination

for the SJV. See response to comment

15.

Comment 19: The commenter states

that EPA does not justify ignoring data

from the three. tapered element

oscillating microbalance (TEOM)

monitors that were operated in the

Valley during the 2003-2005 time

period.

Response: The three TEOM monitors

operated during the 2003-2005 period

were located at Fresno 1st Street,

Stockton Hazelton Street, and Corcoran

Patterson Avenue. The TEOMs at Fresno

and Stockton were operated by CARB as

special purpose monitors that

supplement the SLAMS high volume

FRM samplers. The Corcoran TEOM

was operated by the District, also as a

special purpose monitor. In addition, as

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discussed in response to comment 15

above, the District now operates TEOMs

at its Tracy, Bakersfield-Golden State

Hwy. and Corcoran monitoring sites.

GARB has submitted and certified the

TEOM data from the Stockton site to

EPA's AQS database up to the date June

28, 2005, which is when GARB

discontinued the operation of this

TEOM. During the 2003 to 2005 period,

the TEOM at Stockton recorded a single

exceedance of the 24-hour NAAQS.

Because of its everyday sampling

schedule, this single exceedance at

Stockton does not constitute a violation

of the NAAQS. See response to

comment 15.

No data from any other TEOMs

operating in the San Joaquin Valley PM10 network has been submitted to AQS.

However, EPA has obtained data from

these TEOMs from 2003-2005 as well as

a portion of 2006 and these data show

no violations of the PM-10 NAAQS

have been recorded for this period.

As discussed above in response to

comment 15 EPA is aware of TEOMs

currently operating at four monitoring

sites in the San Joaquin PM-10 network:

Bakersfield-Golden State Highway,

Corcoran, Fresno 1st Street and Tracy.

Two of these TEOMs, Fresno and

Tracy, 30 recorded no exceedances of the

NAAQS. Two other TEOMS, Bakersfield

and Corcoran, recorded exceedances on

September 22, 2006, which, as noted

above, is a date associated with a high

wind and fire event. This is the only

exceedance day we are aware of for

these TEOMS. All data EPA has

received from the District and GARB

collected by BAMs and TEOMs have

been included in the Docket. Thus, in

sum these TEOM monitors would not

show that the area is in violation of the

standard.

Comment 20: The commenter states

that EPA must also consider all publicly

available data, including "data available

from other sources including those

special purpose monitors operated by

third parties" (1997 Seitz memo) and

that EPA has not made any assertion

regarding data from third party

monitors. If such data exists, EPA must

consider it or must explain why it is

reasonable to exclude this information.

Response: The commenter has not

provided any data from any so-called

"third party monitors." Nor is EPA

aware of any data available from third

parties that meets our regulatory

requirements and could be used in this

action.

Comment 21: The commenter

maintains that "[tihese continuous

3

0 The Tracy TEOM began monitoring on October

1, 2006.

monitors demonstrate an ongoing PM10 problem in the Valley" and that

monitoring professionals within EPA

and GARB know that these monitors

provide the most accurate, realistic

picture of Valley air quality. These

monitors are used for detailed air

quality studies, public health alerts, and

modeling in the State implementation

plan. In fact, GARB performed a

comparison study of BAM technology

versus FRM technology and found that,

far from the dramatic picture the District

paints of wildly inaccurate monitor

readings, BAM monitors enjoy "good

precision" and may actually capture

certain semi-volatile pollutants that

FRM monitors do not.

Response: The GARB study-cited by

the commenter is one that compared

PM-2.5 BAM and PM-2.5 FRM

performance. PM-2.5 is a different

pollutant from PM-10 even though both

are based on particulates, but the type

of particles that make up PM-IO versus

PM-2.5 can be very different. The issue

for EPA is not what type of equipment

was used by the State or District to

collect PM-10 data, but whether the

data and the monitors used to collect it

met EPA's quality assurance

requirements.

The BAM monitor is a designated

Federal equivalent method for PM-IO. If

the District had performed the

appropriate QA procedures, as

discussed elsewhere in this action, EPA

would have considered the BAM data

when making our attainment finding.

Comment 22: If EPA now wants to

ignore and dismiss this data, EPA needs

to provide a reasonable explanation, not

hide behind technicalities it picks and

chooses in order to support its political

agenda. EPA's proposal provides none

of the necessary technical analysis

needed to give this reasonable basis. As

a result, commenters are unable to

provide meaningful comment on that

basis. EPA must prepare a supplemental

notice of proposed rulemaking to

provide the missing analysis.

Response: EPA did provide a

reasonable explanation for not using the

BAM data in its decision to find that the

SJV has attained the PM-10 NAAQS. As

set forth in the proposal to this action,

the BAM data did not meet our QA/QC

requirements. The SLAMS data from the

FRM network met our requirements.

Thus EPA believes it does not need to

prepare a supplemental notice of

proposed rulemaking because the

substance of its analysis was adequately

included in its proposal.

G. Representativeness of Data

Comment 23: The commenter states

that "EPA should determine whether

conditions of [the] last three years are

typical" or "whether conditions during

this period are representative of normal

conditions for the Valley." The

commenter points to a 1997 progress

report and statements made by the

District recommending caution

regarding any improvements in

monitored PM-10 levels in the SJV. The

commenter also cites a PittsburghBeaver Valley, Pennsylvania area rule

(61 FR 28061, 28063) in which EPA

revoked an attainment determination

and pointed to the varied number of

exceedances over the preceding years

and the failure of the area to adequately

reduce emissions as grounds for not

dismissing new data indicating a

continued pollution problem. Finally,

the commenter notes that the District

recently argued to EPA and the Ninth

Circuit Court of Appeals that there was

absolutely no way the SJV could attain

the PM-1a standard by 2006, further

emphasizing the need to evaluate

whether the conditions of the last few

years are an anomaly.

Response: The requirement to

-determine that clean air is the result of

permanent and enforceablp emissions

reductions is a criterion for the

redesignation of an area to attainment

under CAA section 107(d)(3)(E).3 1 This

criterion need not be met for a

determination of attainment or for the

suspension of the associated RFP,

attainment demonstration, and/or

contingency measure requirements.

That aside, we believe that the

attainment determination itself

addresses in part the concern about

unusually favorable meteorological

conditions. We have long recognized

that yearly variations in meteorological

conditions can have a profound effect

on ambient PM-10 concentrations. In

setting the PM-10 standards in 1987, we

changed the form of the 24-hour and

anniAal standards to a statistical form

which is based on exceedances and

annual averages over 3 consecutive

years. EPA stated that "[t]he problem of

31 The redesignation of an area to attainment

under CAA section 107(d)(3)(E) is a separate

process from a finding of attainment. Unlike an

attainment finding where we need only determine

that the area has had the prerequisite number of

clean years, a redesignation requires multiple

determinations. Under section 107(d)(3)(E) these

determinations are: (1) We must determine, at the

time of the redesignation, that the area has attained

the relevant NAAQS; (2) The state must have a fully

approved SIP for the area; (3) We must determine

that the improvements in air quality are due to

permanent and enforceable re-ductions in emissions

resulting from implementation of the SIP and

applicable federal regulations and other permanent

and enforceable reductions; (4) We must have fully

approved a maintenance plan for the area under

section 175A; (5) The state must have met all the

nonattainment area requirements applicable to the

area.

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year-to-year variability is * * * reduced

by averaging three years of data." See

proposed and final actions promulgating

the PM-10 standards at 49 FR 10408,

10413 (March 20, 1984) and 52 FR

24635, 24639-24641 (July 1, 1987).

In the case of the Pittsburgh-Beaver

Valley, Pennsylvania area rule (61 FR

28061, 28063), EPA revoked an

attainment determination due to

violations of the ozone NAAQS that

occurred after the determination was

made. In response to a comment

suggesting that EPA should ignore the

violations due to year-to-year

variability, EPA stated that "[blecause

the area has not adequately reduced its

VOC and NOx emissions, it is subject to

ozone exceedances whenever

meteorological conditions are conducive

to ozone formation." The commenter on

our proposed attainment determination

for the SJV implies that because EPA

recognizes year-to-year variability in

data and that both the SJV and the

Pittsburgh-Beaver Valley areas had

variable data over the years, EPA should

address whether conditions were typical

or normal before making the attainment

determination for SJV. However, the SJV

has 3 recent years (2003-2005) of clean

data whereas the Pittsburgh-Beaver

Valley area did not have clean data at

the time of the attainment determination

revocation.

The 2003 PM-10 Plan demonstrates

attainment of the PM-10 standards by

2010. 69 FR 30006. The 2003 PM-10

Plan's attainment demonstration is

based on air quality modeling of

emissions reductions from State and

District measures. As such it is a

prediction of what ambient conditions

will, be in the future. In contrast, as

discussed above, a determination of

attainment, based on monitored air

quality data, reflects actual ambient

conditions over a three year period.

Given the margin of error in air quality

modeling, particularly for PM-10, a

disparity between modeling and

monitored data is not unusual. While, as

stated above, the three year requirement

does to a certain extent address

anomalous meteorological conditions,

an analysis of whether . * *the

improvements in air quality are due to

permanent and enforceable reductions

in emissions * * " is primarily

addressed as a prerequisite for

redesignation of an area to attainment

under CAA section 107(d)(3)(E) to

ensure that reductions will remain in

place even where weather variations

occur.

Finally, the commenter also points to

statements made in a SJV 1997 PM-10

_progress report in which the District

discusses the favorable meteorological

conditions (i.e., rain) during 1993-1998

which may or may not have led to fewer

PM-10 exceedances. However, our PM10 attainment determination is based on

the years 2003-2005. Again, whether or

not 2003-2005 was a period of normal

conditions and whether the SJV could

continue to demonstrate attainment

under all predicted weather conditions

is a criterion that must be addressed in

connection with a redesignation, but not

for an attainment determination.

Comment 24: The commenter

contends that EPA's decision is not

reasonable, and that EPA has never

attempted to make an attainment

determination based on so few years of

monitoring and in the face of such

countervailing evidence. The

commenter further contends that EPA is

motivated by a desire to avoid legal

deadlines.

Response: As set forth above, in

responses to comments, EPA believes

that its decision is a reasonable one,

based on three complete years of

quality-assured data, and supported by

the evidence. Moreover, the commenter

is wrong in alleging that EPA has never

before based a determination of

attainment on three years of data. EPA

has in numerous instances done so. See,

for example, 60 FR 37366 (July 20, 1995)

(Grand Rapids), 66 FR 1925 (January 10,

2001) and_66 FR 53094 (October 19,

2001) (Pittsburgh-Beaver Valley), 66 FR

27583 (May 17, 2001) and 66 FR 53655

(October 23, 2001) (Louisville), 68 FR

25418, 25429 (May 12, 2003) (St. Louis),

69 FR 21717 (April 22, 2004) (Bay Area).

The commenter's speculation as to

EPA's motivation is irrelevant. EPA's

determination that the SJV area has

attained the standards is, as shown

elsewhere in this notice, supported by

quality assured data and in compliance

with statutory and regulatory

requirements.

H. Other Comments

Comment 25: Approximately two

thousand commenters sent letters (all

via e-mail except one via postcard) to

EPA stating that they are concerned

about the attainment determination. All

commenters were specifically

concerned about the air quality in the

Valley, about a monitoring network that

reads only once every six days and does

not account for the agriculture-heavy

west side and about EPA ignoring

violations from monitors. Commenters

were also concerned that the finding

would relieve EPA and the District of

obligations to continue to address the

particulate matter problem and air

pollution problems in general. Many

commenters provided personal accounts

of health issues (e.g., asthma, difficulty

breathing, hospital visits, use of

inhalers) while living in the San Joaquin

Valley.

Response: As noted above, the

comments of individual citizens raised

many of the same issues set forth in the

comments of Earthjustice, and EPA has

addressed those comments in the

context of its responses to Earthjustice.

Like the commenters, EPA is concerned

about the air quality of theSJV and the

health of its residents. The SJV is a

nonattainment area for ozone as well as

for PM-10 and PM-2.5. In general in the

SJV, ozone is a summertime problem

and PM is a fall and wintertime

problem. EPA has invested significant

resources in developing clean air plans

and measures to reduce the air pollution

in the SJV to levels considered safe by

.Federal standards. EPA's determination

that the SJV has attained the PM-10

standards does not in any way relieve

the District, State, or EPA of any of the

strategies currently in place to achieve

cleaner air.3 2 CARB and the District

have stated this in their request for an

attainment determination (May 8, 2006

letter to Wayne Nastri, Regional

Administrator, EPA Region 9, from

Catherine Witherspoon, Executive

Officer, CARB) and the District has

restated it in its comment letter in

connection with this rulemaking

(August 14, 2006 letter to Doris Lo, EPA

Region 9, from Seyed Sadredin,

Executive Director/Air Pollution Control

Officer, San Joaquin Valley Unified Air

Pollution Control District). The

measures and commitments approved

by EPA in the 2003 PM-IO Plan

continue to be implemented, and EPA

expects more strategies and measures

that will lead to further reductions as

the District and CARB develop plans to

meet the more stringent PM-2.5 NAAQS

and the 8-hour ozone standard.

Furthermore, while some monitors

may only take ambient air quality

readings once every six days, the data

from these monitors is adjusted to

account for the days that are not

monitored. Thus, as a simplified

example, if a one in six day monitor

records an exceedance of the PM-10

NAAQS, that exceedance must be

multiplied by six to account for the days

it did not monitor. In addition, EPA

disagrees with the commenter's

assertion that the agricultural sources of

the western side of the Valley are not

accounted for. The Corcoran monitoring

3

2 In addition, CARB or the District cannot revise

their SIP to drop any SIP-approved strategies unless

they can demonstrate that the revision will not

". * * interfere with any applicable requirement

concerning attainment and reasonable further

progress * * * or any other applicable requirement * -" of the Act. See section 110(1) of the CAA.

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site does monitor emissions from

agricultural sources and is thus

representative of air quality levels in the

western portion of the Valley. In

addition, the agricultural regulations for

the SJV are applicable to sources

throughout the Valley, including those

in the western portion of the SJV.

Finally, EPA does not ignore actual

violations, but as discussed in response

to comments above, certain data

purporting to show exceedances of the

PM-1p 0tandard may be excluded in

defermining whether an actual violation

has bccurred for various reasons,

including the need to assure that data

are reliable and accurate.

Comment 26: One commenter sent

pictures of dust from combines on an

agricultural field and stated that

incentives were needed to help keep the

dust on the ground. The-commenter also

discussed dusty conditiohs during the

almond and cotton harvest in November

2005 throughout the SJV. The

commenter is a farmer and believes that

farmers are doing a good job of keeping

dust (laden with pesticides and other

residues) on the ground during the

growing season because it benefits the

farmer, but that there are no incentives

for controlling the dust from roads.

Finally, the commenter is concerned

that even with the new NAAQS in the

future, the attainment determination

will lead to relaxation of enforcement

and monitoring when more progressive

and innovative steps are needed. -

Response: The SJV has requirements

that control dust from agricultural

sources such as those discussed by the

commenter. See District Rules 4550 and

8081. These requirements cover almond,

cotton and other types of farming

operations in the SJV and include

measures that reduce dust from roads.

The new more stringent PM-2.5

standards will lead to additional

measures; however, even without these

new standards, because the 24-hour

PM-10 standard remains in effect, the

enforcement of measures to reduce PM10 and monitoring of PM-10 will still be

required (see also above response to

comment 14).

m1. Final Action

Based on 2003-2005 quality-assured

data meeting the requirements of 40

CFR part 50, appendix K, as well as data

showing continued attainment, EPA is

finalizing its determination that the SJV

has attained the 24-hour and annual

PM-10 NAAQS. The SJV continues to

attain the PM-10 NAAQS in 2006 based

on all available quality assured data.

This action does not constitute a

redesignation to attainment under CAA

section 107(d)(3), because we do not yet

have an approved maintenance plan as

required under section 175(A) of the

CAA or a determination that the area

has met the other CAA requirements for

redesignation. The classification and

designation status in 40 CFR part 81

remains serious nonattainment for this

area until such time as California meets

the CAA requirements for redesignation

of the SJV to attainment.

Consistent with the Agency's Clean

Data Policy and its interpretation that

the attainment determination suspends

certain requirements as set forth in

detail above, EPA is also finalizing its

finding that the contingency measure

requirements of CAA section 172(c)(9)

no longer apply to the San Joaquin

Valley PM-10 nonattainment area for so

long as the area continues to attain the

PM-10 NAAQS. If we subsequently

determine, after notice and comment

rulemaking in the Federal Register, that

the area has violated the standard (prior

to a redesignation to attainment), the

requirement for contingency measures

would once again be applicable.

IV. Effective Date of This Final Action

The EPA finds that there is good

cause for this action to become effective

immediately upon publication because a

delayed effective date is unnecessary

due to the nature of this action, which

is a determination, based on air quality

data, that certain Act requirements do

not apply for so long as the area

continues to attain the standard. The

immediate effective date for this action

is authorized under both 5 U.S.C.

553(d)(1) which provides that

rulemaking actions may become

effective less than 30 days after

publication if the rule "grants or

recognizes an exemption or relieves a

restriction" and 5 U.S.C. 553(d)(3),

which allows an effective date less than

30 days after publication "as otherwise

provided by the agency for good cause

found and published with the rule."

V. 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,

suspends certain requirements, and

imposes no additional requirements.

Accordingly, the Administrator certifies

that this rule will not have a significant

economic impact on a substantial

number of small entities under the

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

et seq.). Because this rule does not

impose any additional enforceable duty,

it does not contain any unfunded

mandate or significantly or uniquely

affect small governments, as described

in the Unfunded Mandates Reform Act

of 1995 (Pub. L. 104-4).

This rule also does not have tribal

implications because it will not have a

substantial direct effect on one or more

Indian tribes, on the relationship

between the Federal Government and

Indian tribes, or on the distribution of

power and responsibilities between the

Federal Government and Indian tribes,

as specified by Executive Order 13175

(65 FR 67249, November 9, 2000). This

action also does not have Federalism

implications because it does not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999). This action merely

makes a determination based on air

quality data and suspends certain,

requirements, and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act. 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

Act. This rule does not impose an

information collection burden under the

provisions of the Paperwork Reduction

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

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required infoimation to the US. Senate,"

63663

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63664 Federal Register/Vol. 71, No. 209/Monday, October 30, 2006/Rules and Regulations

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

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

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 December 29,

2006. 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 Part 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: October 17, 2006.

Laura Yoshii,

Acting Regional Administrator, Region 9.

[FR Doc. 06-8902 Filed 10-27-06; £:45 am]

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