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Citation: 71 Fed. Reg. 40952 2006

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### Federal Register/Vol. 71, No. 138/Wednesday, July 19, 2006/Proposed Rules

SUPPLEMENTARYINFORMATION: See 

### the information provided in the Direct Final action ofthe same title which is located 

### in the Rules and Regulations section of thisFederal Register.

Authority:42 U.S.C. 7401 etseq. Dated: June 13, 2006. Andrew M.Gaydosh, ActingRegional Administrator, Region 8. [FRDoc. E6-11345 Filed 7-18-06; 8:45 am]

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### ENVIRONMENTAL PROTECTION

AGENCY
40 CFR Parts 52 and 81
[EPA-R09-OAR-2006-0583; FRL-8199-6] Approval and Promulgation of Implementation Plans; Designation of AreasforAir Quality Planning Purposes; State of California; PM-10; Determination of Attainment forthe San JoaquinValley Nonattainment Area; Determination Regarding Applicabilityof Certain Clean AirAct Requirements

AGENCY: Environmental Protection 

### Agency (EPA). ACTION: Proposed rule.

SUMMARY: EPA is proposing to 

### determine that the San Joaquin Valley nonattainment area (SJV) in California has attained the National Ambient Air Quality Standards (NAAQS) for particulate matter with an aerodynamic diameter less thanor equal to a nominal 10 micrometers (PM-IO). Thisproposed determination isbaseduponmonitored air quality data forthe PM-10 NAAQS during the years 2003-2005. The SJV continues to attain the PM-10 NAAQS, in 2006; noexceedances ofthe 24 hour NAAQS have beenrecorded atany of the SJV monitoring sites from January 1, 2006 through March 31, 2006. EPA is alsoproposing to determine that, because the SJV has attained the PM-la NAAQS, certain CleanAir Act (CAA or the Act) requirements arenot applicable for as long asthe SJV continues to attain the PM-10 NAAQS. DATES: Written comments must be 

### received on orbefore August 18, 2006. ADDRESSES: Submit comments, 

### identifiedby docket numberEPA-ROgOAR-2006-0583, by one ofthe following methods:

(1)Federal eRulemaking portal: http://www.regulations.gov. Follow the 

### on-line instructions.

(2) E-miil: lo.doris@epa.gov. 

### .3) Mail or deliver: DorisLo (AIR-2), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Instructions: All comments will be included in the public docket without change and maybe inade available online at www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI)

or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through the www.regulations.govor e-mail. www.regulations.govis an anonymous

access system, and EPA will notknow your identity or contact information unless you provide itin thebody of your comment. Ifyou send e-mail directly to EPA, your e-mail address willbe automatically captured and included aspart ofthe public comment. IfEPA cannot read your comment due
to ttchnical difficulties and cannot contact you forclarification, EPA may not be able to consider your comment.

Docket:The index to the docket for this action is available electronically at www.regulations.govand in hard copy atEPA-Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only atthe hard copy location (e.g., copyrighted material), and

some may notbe publicly available'in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed directly below.
FOR FURTHER INFORMATION CONTACT: Doris Lo, EPA Region IX, (415)972- 3959, lo.doris@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, wherever "we," "us," or "our" are used, we mean EPA.
Table ofContents I.Background

A. The NAAQS for PM-10 B.Designation, Classification and Air

Quality Planning for PM-10 inthe SJV C.AttainmentDeterminations II. Proposed Attainment Determination for the SJV III. Applicability ofClean Air Act Planning Requirements IV. EPA'sProposed Action V. Statutory and Executive OrderReviews

I. Background

A. TheNAAQSforPM-10
Particulate matter with an aerodynamic diameter ofless than or equal to 10micrometers (PM-lO) is the subject ofthis action. The NAAQS are 

### limits forcertain ambient airpollutants
setby EPA to protect public health and welfare. PM-10 is among the ambient air pollutants forwhich EPA has established ahealth-based standard.

On July 1,1987 (52 FR 24634), EPA revised the NAAQS for particulate
matter with an indicator that includes only those particles with an aerodynamic diameter less than or equal
to a nominal 10 micrometers. The 24- hour primary PM-10 standard is 150 micrograms per cubic meter (gg/m 3) with no more than one expected exceedance per year. The annual primary PM-10 standard is 50 lig/m 3 as

an annual arithmetic mean. The secondary PM-10 standards, promulgated to protect against adverse welfare effects; are identical to the primary standards. See 40 CFR 50.6.

B. Designation,Classificationand Air QualityPlanning forPM-i0in theSNV
In 1990, Congress amended the Clean Air Actto address, among other things, continued nonattainment ofthe PM-10 NAAQS. On the date ofenactment of the 1990 Clean AirAct Amendments, PM-10 areas, including the SJV, meeting the qualifications ofsection 107(d)(4)(B) ofthe amended Act, were designated nonattainment by operation oflaw. See 56 FR 11101 (March 15, 1991). EPA codified theboundaries of the SJV at 40 CFR 81.305.1

Once an area is designated nonattainment for PM-10, section 188 ofthe CAA outlines the process for classifying the area and establishes the area's initial attainment deadline. In 

### accordance with section 188(a), atthe time ofdesignation, all PM-10 

### nonattainment areas, including the SJV,

were initially classified asmoderate nonattainment. OnDecember 24, 1991, California submitted a moderate area PM-10 Planfor the SJV which demonstrated that the.area could not attain the PM-10 NAAQS by the moderate area attainment date, December 31, 1994.



### Section 188(b)(1) ofthe Actprovides that moderate areas can subsequently be reclassified as seriousbefore the applicable moderate area attainment date ifat any timeEPA determines that the area cannot "practicably" attain the PM-10 NAAQS by that deadline. On January 8, 1993 (58 FR 3337),EPA made such a determination andreclassified the SJV as serious.

On August 19, 2003, the State'of California submitted the "2003 PM-10

1 The SanJoaquin Valley PM-10nonattainment

area includes the following counties in California's central valley: Fresno, western portion ofKern, Kings, Tulare, San Joaquin, Stanislaus, Madera and Merced. 

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Plan, San Joaquin Valley Plan to Attain Federal Standards forParticulate Matter 10 Microns and Smaller" and submitted Amendments to that plan on December 30, 2003 (collectively, 2003 PM-10 Plan). The State submitted the 2003 PM-10 Plan to address, among other CAA requirements, those ofsection 189(d) following EPA's determination that the SJV failed to meet its serious

area attainment deadline ofDecember 31, 2001. See 67 FR48039 (July 23, 2002). On May 26, 2006, EPA approved the 2003 PM-10 Plan except forthe section 172(c)(9) contingency measure requirement. The approved elements include emissions inventories as meeting the requirements of 172(c)(3), a demonstration ofbestavailable control

measures forall significant source categories as meeting therequirements ofsection 189(b)(1)(B), a demonstration ofattainment by December 31, 2010 as meeting the requirements ofsections 179(d)(3) and 189(d), and a demonstration ofreasonable further progress as meeting the requirements of sections 172(c)(2) and 189(c)(1). A more detailed discussion ofthe history of air quality planning and the contents ofthe approved plan can be found in EPA's proposed and final actions at 69 FR 5412 (February 4, 2004) and 69 FR 30006.

C.AttainmentDeterminations

OnMay 8, 2006,.the State requested that EPA find that the SJV has attained the PM-10 standards based on the area's air quality for'2003-2005. See letter from Catherine Witherspoon, California Air Resources Board (CARB), to Wayne Nastri, EPA Region 9, May 8, 2006 (Witherspoon Letter). Generally, we will determine whether an area's air quality meets the PM-10 NAAQS forpurposes of sections 179(c)(1) and 188(b)(2) based
upon data gathered at established state and local air monitoring stations (SLAMS) and national air monitoring stations (NAMS) in the nonattainment

area and entered into the EPA's Air Quality System (AQS) database. Data from air monitors operated by state/ local agencies in compliance withEPA monitoring requirements must be submitted to AQS. Heads ofmonitoring agencies annually certify that these data

are accurate to the best oftheir knowledge. Accordingly, EPA relies primarily on data in AQS when determining the attainment status of

areas. See 40 CFR 50.6; 40 CFR part 50, appendix J;40 CFR part 53; 40 CFR part 58, appendix A. We will also consider air quality data from other air monitoring stations in the nonattainment area even ifthey have
not been entered into theAQS ifthe stations meet the federal monitoring requirements for SLAMS. See August 22, 1997 Memorandum "Agency Policy

onthe Use ofSpecial Purpose Manitoring Data," from John S. Seitz, Director, Office ofAirQuality Planning and Standards, to the Regional Air Directors (Seitz Memo). All data are reviewed to determine the area's air quality status in accordance with our guidance at40 CFR.part 50, appendix K.

Attainment ofthe annual PM-IO standard is achieved when the annual arithmetic mean PM-10 concentration

over athree-year period is equal to or less than 50 gg/m 3

.Attainment ofthe 24-hour standard is determined by calculating the expected number of days ina year with PM-10 concentrations greater than 150 gig/m3. The 24-hour standard is attained when the expected number ofdays per year with levels above 150 gg/m 3 (averaged over athreeyear period)is less than orequal to one. Three consecutive years ofair quality data are necessary to show attainment of the 24-hour and annual standards for PM-10. See 40 CFR part 50, appendix K. A complete year ofair quality data,

as referred to in40 CFR part 50, appendix K, includes all four calendar quarters with each quarter containing data from atleast 75 percent ofthe scheduled sampling days.

II. Proposed AttainmentDetermination for the SJV

The SJV has 15 SLAMS sites operated bythe San Joaquin Valley Unified Air Pollution Control District (District or SJVUAPCD) and CARB. These monitoring stations are located throughout the SJV.2 The District and CARB measure ambient (24-houraverage) PM-l0 concentrations inthe SJV at a frequency ofonce every six days, except atthe Corcoran SLAMS site which operates on a one in three day schedule.3

Table 1 summarizes the PM-10 data collected inthe SJVfrom 2003-2005 and reported by CARB to the AQS database. As shown inTable 1, no exceedances ofthe 24-hour PM-10 NAAQS of150 gg/m 3were measured in 

### SJV during the 2003-2005 period and the annual-average PM-10 concentrations measured during that period werebelow thecorresponding standard of50 jg/m3.

TABLE 1.- SAN JOAQUIN VALLEY 

### SLAMS NETWORK PM-10 DATA 2003-2005

24 hour average 3year annual Monitoring site Maximum Expected number arithmetic average (!tg/m3) of exceedances (g/m3)

Bakersfield- California Ave

....................................................................................... Bakersfield-Golden State Hwy

................................................................................ Clovis

......................................................... ............................................................... Corcoran*

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

........................................................................... ...................... Fresno First St

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

....................................................................................................................... M

erced

....................................................................................................................... Modesto

....................................................................................................... ............... Oildale

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

.................................................................................................. Stockton- Wagner/Holt

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

..'

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

2EPA evaluated theadequacy ofthe SJV monitoring network in connection with its approval of the 2003 PM-10 Plan, See 69 FR at30032-30033 and "Evaluation ofthe Adequacy ofthe Monitoring Network forthe SanJoaquin Valley, California for the Annual and 24-Hour PM-10 Standards," Bob Pallarino, EPARegion 9, September 22, 2003. 3Most PM-10 monitoring sites utilize a manual sampler, designated as a Federal Reference Method (FRM), operated ona once every six day schedule. These samplers draw ambient air through a quartz fiber filter which is weighed before and after sampling in order to determine the mass ofPM-10 that is collected after the 24-hour run period. At Corcoran two manual FRM samplers are operated

ona staggered once every six day schedule that enables theDistrict to collect a 24-hour PM-10 sample every three days. 44- 46 34 44 41 33 43 29 29 42 29 22 31 

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TABLE 1.-SAN JOAQUIN VALLEY 

### SLAMS NETWORK PM-10 DATA 2003-2005-Continued

24 hour average 3year annual Monitoring site Maximum Expected number arithmetic average (gtg/m 3) of exceedances (Ilg/m 3)

Turlock

....................................................................................................................... 87 0 30 Visalia

............................ .............................. .. ......... ............................ 122 0 43

Source: U.S. EPA AQS Database. *The Federal Reference Monitor at Corcoran did record an exceedance of the 24 hour PM-10 NAAQS on September 3, 2004 (217 gg/m3). This exceedance was.flagged by CARB as a high wind natural event. EPA concurred with CARB's request to exclude this data from consideration inattainment findings on July 7,2005.

-

See May 30, 1996 Memorandum "Areas Affected by PM-10 Natural Events," from Mary D. Nichols, Assistant Administrator for Air and Radiation, to the Regional Air Directors. Moreover, even if EPA had not concurred with the exclusion of this data, the Corcoran site vould still attain the 24-hour NAAQS because the expected number of exceedances is less than or equal to one per year, averaged over the three year period 2003-2005.

As noted above, the 24-hour PM-10 standard is attained when the expected number ofdays per year with levels above 150 gg/m 3 (averaged over a threeyearperiod) is less than orequal to one. As can be seen from Table 1,there were
no exceedances ofthe 24-hour PM-l0 NAAQS forthe 2003-2005 period and thus the expected number ofdays per year with levels above 150 gg/m 3 (averaged over that three-year period) is.

zero. Thus we propose to find that the SJV has attained the 24-hour PM-10 NAAQS. Also as noted above, attainment ofthe annual PM-10 standard is achieved when the annual arithmetic mean PM-10 concentration

over a three-year period is equal to or less than 50 gg/m 3

. Our review ofthe data for calendar years 2003-2005 reveals that none ofthe 15 SLAMS sites averaged greater than 50 ag/m 3

. Thus

we propose to find that the SJV has attained the annual PM-10 NAAQS. The SJV continues to attain thePM-10 NAAQS based on data collected through March 31, 2006. 4

EPA is aware that the District operates

a beta attenuation mass (BAM) special purpose monitor atthe Corcoran monitoring site to support the District's daily air quality forecasts. This BAM monitor has recorded a sufficient number ofPM-10 concentrations above 150 ag/m 3 during the years 2003-2005 to prevent EPA from making a finding ofattainment ifthe data were suitable for use in an attainment determination. However, in the Seitz Memo, EPA stated that "[t]he Agency policy on the use of all special purpose monitoring data for any regulatory purpose, with the exception offine particulate matter data (PM-2.5), is all quality-assured and valid data meeting 40 CFR 58 requirements mustbe considered within th6 regulatory process." Seitz Memo, p.1. With respect to the Corcoran BAM

4If EPAmakes a final deteimination of attainment, theAgency will consider the most current data available at thattime. monitor, EPA has determined that the District did not perform quality control checks ofthe sampler every two weeks (see 40 CFR part 58, appendix A, section 3.1.2). Nor did CARB perform independent field audits ofthe BAM sampler as described in 40 CFR part 58, appendixA, section 3.2.2. See pp. 5-6 ofattachment ("Supporting Information for the San Joaquin Valley PM-10 Attainment Determination Request") to letter from Seyed Sadredin, SJVUAPCD, to Catherine Witherspoon, CARB, April .24,2006, attached to Witherspoon Letter. Therefore the BAM data are not valid foruse in a determination of whether the SJV has attained the PM10 standards and, as a result, we have
not considered them.

III. Applicability ofClean Air Act Planning Requirements

The air quality planning requirements for PM-10 nonattainment areas are set out in.subparts 1 and 4 oftitle Iofthe Act. EPA has issued a General Preamble 5 and Addendum to the General Preamble 6 describing our preliminary views on how the Agency intends to review state implementation plans (SIPs) submitted to meet.the CAA's requirements for PM-10 plans. These documents provide detailed discussions of our interpretation ofthe title I requirements.

In nonattainment areas where monitored data demonstrate that the NAAQS have already been achieved, EPA has determined that certain requirements ofpart D, subparts 1 and 2 ofthe Act do not apply. Therefore we do notrequire certain submissions for

5"General Preamble forthe Implementation of TitleI ofthe Clean Air Act Amendments of 1990,' 57 FR 13498 (April 16, 1992), as supplemented at 57 FR 18070 (April 28, 1992).

6,,State Implementation Plans for Serious PM-lO Nonattainment Areas, and Attainment Date Waivers for PM-la Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation ofTitleI ofthe Clean Air Act Amendments of 1990," 59 ER 41998 (August 16, 1994). an area that has attained the NAAQS. These include reasonable furthr progress (RFP)requirements, attainment, demonstrations, RACM, and contingency measures, because these provisions have the purpose ofhelping achieve attainment ofthe NAAQS.

This interpretation ofthe CAA is known as,the Clean Data Policy and is the subject oftwo EPA memoranda. EPA also finalized the statutory interpretation set forth in the policyin

a final rule, 40 CFR 51.918, as part of its "Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard-Phase 2" (Phase 2 Final Rule). See discussion inthe preamble to the rule at 70 FR 71612, 71645-46 (November29, 2005).

EPA believes that the legal bases set forth in detail in our Phase 2 Final rule,

our 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," and our December 14, 2004 memorandum from Stephen D. Page entitled "Clean Data Policy forthe Fine Particle National Ambient Air Quality Standards" are equally pertinent to the interpretation of provisions ofsubparts 1 and 4 applicable to PM-10. Our interpretation that an area that is attaining the standards is relieved ofobligations to demonstrate RFP and to provide an attainment demonstration, RACM and contingency measures pursuant to part D ofthe CAA, pertains whether the standard is PM-10, ozone orPM- 2.5. 7
For detailed discussions ofthis interpretation with respect to the CAA's PM-10 requirements for RFP,

7Three U.S. Circuit Courts ofAppeals have upheld EPA rulemdkings applying its interpretation ofsubparts 1and 2 with respect to ozone. Sierra Clubv. EPA,99F.3d 1551 (loth Cir. 1996); Sierra Clubv. EPA, 375 F. 3d 537 (7th Cir. 2004); Our Children's EarthFoundationv.EPA, N. 04-73032 (9thCir. June 28, 2005) (memorandum opinion). 

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attainment demonstrations, RACM and contingency measures, see 71 FR 6352, 6354 (February 8, 2006); 71 FR 13021, 13024 (March 14, 2006); and 71 FR 27440, 27443-27444 (May 11, 2006). We

arerelying on these discussions here. We also discuss our interpretation with respect to contingency measures below.

As set forth in Section Iof this proposed rule, we have previously approved all ofthe serious area PM-10 attainment plan requirements for the
SJV except forthe contingency measure requirements ofCAA section 172(c)(9). Section 172(c)(9) requires that part D nonattainment area plans "provide for the implementation ofspecific measures to be undertaken ifthe area fails to make reasonable further progress, or to attain the national primary ambient air quality standard by the attainment date applicable under this part. Such

measures shall be included in the plan revision as contingency measures to take effect in any such case without further action by the State orthe Administrator."

EPA has determined that these contingency measure requirements of CAA section 172(c)(9) no longer apply when an area has attained the standard because those "contingency measures
are directed atensuring RFP and attainment by the applicable date." (57 FR at 13564); May 10, 1995 memorandum at 5-6. As explained at length in the memoranda and rulemakings cited above, the requirements for RFP and attainment demonstrations no longer apply once an

area has attained the standard, since their purpose-to achieve attainment by the applicable attainment date-will already have been fulfilled. Thus it follows that the requirement for contingency measures is also suspended for as long as the area attains the standard. Consequently, we propose that any final findingthat the SJVhas attained the PM-10 NAAQS would also suspend the contingency measure requirements for the SJV.

Consistent with our Clean Data Policy, we propose that this suspension exist only for as long as the area continues to monitor attainment ofthe standards. Ifthe SJV experiences a violation ofthe PM-10NAAQS in the future, the basis forthe contingency

measure requirement being suspended would no longer exist.In that event, we would notify the State that we have determined that the area is no longer attaining the PM-10 standards and provide notice to the public in the Federal Register. IV. EPA's Proposed Action
Based on quality-assured data meeting the requirements of40 CFR part 50, appendix K, we propose to determine that the SJV has attained the PM-10 NAAQS. This proposed action, if finalized, would not constitute a redesignation to attainment under CAA section 107(d)(3), because we would not yet have approved a maintenance plan

asrequired under section 175(A) ofthe CAA ordetermined that the area has met the other CAArequirements for redesignation. The classification and designation status in40 CFR part 81 would remain serious non.attainment for this area until such time as California
meets the CAA requirements for redesignation ofthe SJVto attainment.

Consistent with the Agency's Clean Data Policy, EPA also proposes to find that the contingency measure requirements ofCAA section 172(c)(9) would no longer apply to the San Joaquin Valley PM-10 nonattainment

area.
V. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a "significant regulatory action" and therefore is not subject to review by the Office ofManagement 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 proposes
a determination based on air quality data and does not impose any additional requirements. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic-impact on asubstantial number ofsmall entities under the Regulatory Flexibility Act (5 U.S.C. 601
etseq.). Because this proposed rule does' not impose any additional enforceable duty, it does not contain any unfunded mandate or significantly oruniquely affect smaltgovernments, as described in the Unfunded Mandates Reform Act of 1995 (Pub.L. 104-4).

This proposed 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, oron the distribution of power and responsibilities between the Federal Government and Indian tribes,

as specified by Executive Order 13175 (65 FR 97249, November 9, 2000). This proposed action also does not have federalism implications because it does not have substantial direct effects onthe States, onthe relationship between the national government and the States, or
on the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132 (64FR 43255, August 10, 1999). This proposed action merely makes a determination based on air quality data and does not alter the relationship or the distribution ofpower and responsibilities established inthe CAA. This proposed rule also is not subject to Executive Order 13045 "Protection ofChildren from Environmental Health Risks and Safety Risks" (62 FR 19885, April 23, 1997), because it is noteconomically significant.

The requirements ofsection 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does notimpose an information collection burden under the provisions ofthePaperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List ofSubjects

40 CFRPart 52
Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting and recordkeeping requirements.

40 CFRPart 81
Environmental protection, Air pollution control, National parks, Wilderness areas.

Dated: July 6,2006. Jane Diamond, ActingRegionalAdministrator, Region 9. [FRDac. E6-11450 Filed 7-18-06; 8:45 am]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 67 [Docket No. FEMA-B-7463]
Proposed Flood Elevation Determinations

AGENCY: Federal Emergency Management Agency (FEMA), Department ofHomeland Security, Mitigation Division. ACTION: Proposed rule.
SUMMARY: Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations (BFEs) and proposed BFEs modifications forthe communities 

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