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###### Environmental Protection Agency

          - 40 CFR Parts 52 and 81
          - [EPA-R09-OAR-2010-0172; FRL-9153-3]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Final rule.

# SUMMARY:

EPA is finalizing its determination that the Coso Junction nonattainment area (CJNA) has attained the 24-hour National Ambient Air Quality Standard (NAAQS) for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM-10). This determination is based upon quality-assured and certified air quality monitoring data for the PM-10 NAAQS from 2006-2008. In addition, reported data in EPA's Air Quality System (AQS) show that the CJNA continued to attain the PM-10 NAAQS through 2009 and preliminary data available to date for 2010 show that the CJNA continues to attain. Also, EPA is finalizing its determination that, because the CJNA has attained the PM-10 NAAQS, the State's obligation to make submissions to meet certain Clean Air Act (CAA or the Act) requirements is not applicable for as long as the CJNA continues to attain the PM-10 NAAQS.

# DATES:

*Effective Date:*                         This rule is effective on June 18, 2010.                    

# ADDRESSES:

You may inspect the supporting information for this action, identified by docket number EPA-R09-OAR-2010-0172, by one of the following methods:
      - Federal eRulemaking portal, http://www.regulations.gov,                          please follow the on-line instructions; or,                    
      - Visit our regional office at, U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

*Docket:*                         The index to the docket for this action is available electronically at                         *http://www.regulations.gov*                         and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (                        *e.g.,*                         copyrighted material), and some may not be publicly available in either location (                        *e.g.,*                         Confidential Business Information). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed directly below.                    

# FOR FURTHER INFORMATION CONTACT:

                        Jerry Wamsley, EPA Region IX, (415) 947-4111,                         *Wamsley.Jerry@epa.gov.*

# SUPPLEMENTARY INFORMATION:

Throughout this document, wherever “we,” “us,” or “our” are used, we mean EPA.

## Table of Contents

I. Summary of Proposed Actions

II. Public Comments and EPA Responses

III. Additional Preliminary Air Quality Data Since Proposed Rule

IV. EPA's Final Action

V. Statutory and Executive Order Reviews

## I. Summary of Proposed Actions

                    On March 23, 2010, EPA proposed to determine that the CJNA has attained the 24-hour NAAQS for PM-10 (75 FR 13710). Our proposed determination was based on complete, quality-assured and certified data gathered at established state and local air monitoring stations (SLAMS) in the nonattainment area and entered into the EPA AQS database for the period 2006-2008. In addition, EPA found that quality-assured AQS data showed that the CJNA continued to attain through 2009 and that preliminary data then available for 2010 showed no exceedances of the 24-hour PM-10 NAAQS.                     *Id.*

EPA also proposed, under its Clean Data Policy, to determine that the obligation to submit certain CAA requirements was not applicable for as long as the CJNA continued to attain the PM-10 NAAQS. Specifically, we proposed that the State's obligation to submit the following CAA requirements would be suspended if EPA finalized its rulemaking: The part D, subpart 4 obligations to provide an attainment demonstration pursuant to section 189(a)(1)(B), the reasonably available control measure (RACM) provisions of 189(a)(1)(C), the reasonable further progress (RFP) provisions established by section 189(c)(1), and the attainment demonstration, RACM, RFP and contingency measure provisions of part D, subpart 1 contained in section 172 of the Act.

For a more detailed discussion of our proposed action, including background topics, such as development of the PM-10 NAAQS, the designation, classification and air quality planning history for the CJNA; our Clean Data Policy; and our general requirements for making attainment determinations, please refer to our proposed rule.

## II. Public Comments and EPA Responses

EPA provided for a 30-day public comment period on our proposed action. This period ended on April 22, 2010. We received no comments.

## III. Additional Preliminary Air Quality Data Since Proposed Rule

                    Subsequent to our proposal, and after the close of the comment period, the Great Basin Unified Air Pollution Control District (GBUAPCD) informed EPA that preliminary data showed two exceedances of the 24-hour PM-10 standard were recorded at the CJNA monitor in March 2010, one on March 9, 2010 (222 micrograms per cubic meter (μg/m3                    )) and another on March 18, 2010 (157 μg/m3                    ).                     *See*                     May 4, 2010 e-mail from Duane Ono, Deputy Air Pollution Control Officer, GBUAPCD, to Doris Lo, Environmental Protection Specialist, EPA, with CosoJunction2010_MetAndTEOM.xlsx attachment. The preliminary air quality data for the first quarter of 2010 (January through March), which contain these exceedances, have not been verified through the GBUAPCD's data validation process, nor have they been entered into EPA's AQS database. The GBUAPCD is still in the process of reviewing the first quarter data which does not have to be submitted into the AQS database until June 30, 2010.                     *See*52 FR 24634 and 40 CFR 58.16(b).                

                    The preliminary 24-hour concentrations for March 9 and 18, if confirmed after quality assurance and control procedures are completed, would exceed the 24-hour PM-10 standard of 154 μg/m[3]                     . 40 CFR 50.6.[1]                                          The District has also indicated that it may flag the March 9, 2010 exceedance for possible exclusion from consideration in a determination of attainment.                

                    The determination of whether an area has attained the PM-10 standard is based on the most recent three consecutive calendar years of quality-assured data. As discussed above and in our proposed rule, the CJNA has attained the PM-10 standard based on complete, quality-assured and certified data for the three-year period 2006-2008                           ( print page 27945)                        and data in AQS for the period 2007-2009. 75 FR 13710, 13712. These quality-assured data show that the CJNA monitor has an expected number of exceedances of less than or equal to one per year, averaged over the three-year period.                

                    Because 2010 has not ended, EPA cannot determine whether the area has attained the standard based on the three-year period from 2008 through 2010. We can, however, determine with less than three years of data whether the CJNA has failed to attain in the period from 2008 to date.                     *See*40 CFR part 50, appendix K, section 2.3(c).[2] 

                    In 2008 there were no exceedances of the PM-10 NAAQS and in 2009 there was one exceedance on December 22, 2009. 75 FR 13710. If we include the preliminary data showing two additional exceedances in March 2010, the expected number of exceedances at the CJNA monitor during the period from 2008 through 2010 would be three. Thus, even with two additional exceedances in March 2010, the CJNA continues to attain the PM-10 NAAQS to date because the CJNA monitor has an expected number of exceedances of less than or equal to one per year, averaged over the three-year period from 2008 through 2010.[3] 

While to date the CJNA continues to attain, EPA will continue to assess the attainment status of the CJNA as additional data are received, reviewed, and entered into the AQS database.

## IV. EPA's Final Action

Based on a three-year period (2006-2008) of complete, quality-assured and certified data meeting the requirements of 40 CFR part 50, appendix K, EPA is finalizing its determination that the CJNA has attained the 24-hour PM-10 NAAQS. In addition, EPA's determination is based on reported data in EPA's AQS database for 2009 showing that the CJNA continued to attain the PM-10 NAAQS for the period 2007-2009, and available preliminary data to date for 2010 that are consistent with continued attainment.

This determination of attainment of the PM-10 NAAQS for the CJNA does not constitute a redesignation to attainment under CAA section 107(d)(3) because we have neither approved a maintenance plan as required under section 175(A) of the CAA, nor determined that the area has met the other CAA requirements for redesignation. The classification and designation status in 40 CFR part 81 remains moderate nonattainment for the CJNA until such time as California meets the CAA requirements for redesignation of the CJNA to attainment.

                    EPA is also finalizing its determination that, because the CJNA is attaining the NAAQS, the obligation to submit the following CAA requirements is not applicable for so long as the area continues to attain the PM-10 standard: The part D, subpart 4 obligations to provide an attainment demonstration pursuant to section 189(a)(1)(B), the RACM provisions of 189(a)(1)(C), the RFP provisions established by section 189(c)(1), and the attainment demonstration, RACM, RFP and contingency measure provisions of part D, subpart 1 contained in section 172 of the Act. Subsequently, if we determine after notice and comment rulemaking in the                     **Federal Register**                     that the CJNA has violated the standard (prior to a redesignation to attainment), these requirements would once again become applicable.                

## V. Statutory and Executive Order Reviews

This final action makes a determination of attainment based on air quality and results in the suspension of certain Federal requirements, and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
    - Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866  ( 58 FR 51735 , October 4, 1993);
    - Does not impose an information collection burden under the provisions of the Paperwork Reduction Act ( 44 U.S.C. 3501  et seq. );                
    - Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act ( 5 U.S.C. 601  et seq. );                
    - 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 );
    - Does not have Federalism implications as specified in Executive Order 13132  ( 64 FR 43255 , August 10, 1999);
    - Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045  ( 62 FR 19885 , April 23, 1997);
    - Is not a significant regulatory action subject to Executive Order 13211  ( 66 FR 28355 , May 22, 2001);
    - Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 ( 15 U.S.C. 272 note ) because application of those requirements would be inconsistent with the Clean Air Act; and
    - Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898  ( 59 FR 7629 , February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the final action does not apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

                    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 action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the                     **Federal Register**                    . A major rule cannot take effect until 60 days after it is published in the                     **Federal Register**                    . This action is not a “major rule” as defined by 5 U.S.C. 804(2).                

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 19, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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)).

      ( print page 27946)    

# 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: May 13, 2010.

Jared Blumenfeld,

Regional Administrator, Region 9.

# Footnotes

1.                             An exceedance is defined as a daily value that is above the level of the 24-hour standard (150 μg/m3.                            ) after rounding to the nearest 10 μg/m3.                             (i.e., values ending in 5 or greater are to be rounded up). Thus, a recorded value of 154 μg/m3.                             would not be an exceedance since it would be rounded down to 150 μg/m3.                             whereas a recorded value of 155 μg/m3.                             would be an exceedance since it would be rounded up to 160 μg/m3.                            . See 40 CFR part 50, appendix K, section 1.0.                    
        Back to Citation      

2.                             While 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 PM-10 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 are fewer than three years of data (four exceedances divided by three years is greater than one per year).                    
        Back to Citation      

3.                             The status of the preliminary exceedances may change after the data validation process is concluded and after any flagging issues are addressed.                    
        Back to Citation      

[FR Doc. 2010-12093 Filed 5-18-10; 8:45 am]

BILLING CODE 6560-50-P