Designation of Areas for Air Quality Planning Purposes; California; San Joaquin Valley; Reclassification as Serious Nonattainment for the 1997 PM2.5
Federal Register, Volume 80 Issue 7 (Monday, January 12, 2015)
Federal Register Volume 80, Number 7 (Monday, January 12, 2015)
Proposed Rules
Pages 1482-1491
From the Federal Register Online via the Government Printing Office www.gpo.gov
FR Doc No: 2015-00309
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ENVIRONMENTAL PROTECTION AGENCY
EPA-R09-OAR-2014-0813; FRL-9921-22-Region 9
Designation of Areas for Air Quality Planning Purposes; California; San Joaquin Valley; Reclassification as Serious Nonattainment for the 1997 PM2.5 Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to reclassify the San Joaquin Valley (SJV) Moderate nonattainment area, including areas of Indian country within it, as a Serious nonattainment area for the 1997 PM2.5 national ambient air quality standards (NAAQS) based on EPA's determination that the area cannot practicably attain these NAAQS by the applicable attainment date of April 5, 2015. Upon final reclassification as a Serious area, California will be required to submit a Serious area plan including a demonstration that the plan provides for attainment of the 1997 annual and 24-hour PM2.5 standards in the SJV area by the applicable attainment date, which is no later than December 31, 2015, or by the most expeditious alternative date practicable, in accordance with the requirements of part D of title I of the Clean Air Act.
DATES: Comments must arrive by February 11, 2015.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2014-0813, by one of the following methods:
Federal e-Rulemaking Portal: www.regulations.gov. Follow the on-line instructions.
Email: lee.anita@epa.gov.
Mail or delivery: Anita Lee; Air Planning Office (AIR-2); U.S. Environmental Protection Agency, Region 9; 75 Hawthorne Street, San Francisco, California 94105.
Instructions: All comments will be included in the public docket without change and may be made 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 www.regulations.gov or email. The www.regulations.gov Web site is an ``anonymous access'' system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send email directly to EPA, your email address will be automatically captured and included as part of the public comment. If EPA cannot read your comments due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Docket: The index to the docket (docket number EPA-R09-OAR-2014-
0813) for this proposed rule is available electronically on the
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www.regulations.gov Web site and in hard copy at EPA Region 9, 75 Hawthorne Street, San Francisco, California 94105. 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 at either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section below.
FOR FURTHER INFORMATION CONTACT: Anita Lee, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region 9, (415) 972-3958, lee.anita@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and ``our'' refer to EPA.
Table of Contents
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Background for Proposed Action
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Evaluation of Ambient PM2.5 Air Quality Monitoring Data
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Reclassification as Serious Nonattainment and Applicable Attainment Dates
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Reclassification of Areas of Indian Country
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PM2.5 Serious Area SIP Requirements
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Summary of Proposed Action and Request for Public Comment
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Statutory and Executive Order Reviews
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Background for Proposed Action
On July 18, 1997, EPA established new national ambient air quality standards (NAAQS) for PM2.5, particulate matter with a diameter of 2.5 microns or less, including an annual standard of 15.0 micrograms per cubic meter (mug/m\3\) based on a 3-year average of annual mean PM2.5 concentrations, and a 24-hour (daily) standard of 65 mug/m\3\ based on a 3-year average of 98th percentile 24-hour PM2.5 concentrations.\1\ EPA established these standards after considering substantial evidence from numerous health studies demonstrating that serious health effects are associated with exposures to PM2.5 concentrations above the levels of these standards.
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\1\ See 62 FR 36852 (July 18, 1997) and 40 CFR 50.7. Effective December 18, 2006, EPA strengthened the 24-hour PM2.5 NAAQS by lowering the level to 35 mug/m\3\. See 71 FR 61144 (October 17, 2006) and 40 CFR 50.13. Effective March 18, 2013, EPA strengthened the annual PM2.5 NAAQS by lowering the level to 12 microg/m\3\. See 78 FR 3086 (January 15, 2013) and 40 CFR 50.18. In this preamble, all references to the PM2.5 NAAQS, unless otherwise specified, are to the 1997 24-hour PM2.5 standard of 65 mug/m\3\ and annual standard of 15.0 mug/m\3\ as codified in 40 CFR 50.7.
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Epidemiological studies have shown statistically significant correlations between elevated PM2.5 levels and premature mortality. Other important health effects associated with PM2.5 exposure include aggravation of respiratory and cardiovascular disease (as indicated by increased hospital admissions, emergency room visits, absences from school or work, and restricted activity days), changes in lung function and increased respiratory symptoms, as well as new evidence for more subtle indicators of cardiovascular health. Individuals particularly sensitive to PM2.5 exposure include older adults, people with heart and lung disease, and children.\2\
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\2\ See EPA, Air Quality Criteria for Particulate Matter, No. EPA/600/P-99/002aF and EPA/600/P-99/002bF, October 2004.
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PM2.5 can be emitted directly into the atmosphere as a solid or liquid particle (primary PM2.5 or direct PM2.5) or can be formed in the atmosphere as a result of various chemical reactions from precursor emissions of nitrogen oxides, sulfur oxides, volatile organic compounds, and ammonia (secondary PM2.5).\3\
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\3\ See 72 FR 20586, 20589 (April 25, 2007).
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Following promulgation of a new or revised NAAQS, EPA is required by Clean Air Act (CAA) section 107(d) to designate areas throughout the nation as attaining or not attaining the NAAQS. On January 5, 2005, EPA published initial air quality designations for the 1997 annual and 24-
hour PM2.5 NAAQS, using air quality monitoring data for the three-year periods of 2001-2003 and 2002-2004.\4\ These designations became effective on April 5, 2005.\5\ EPA designated the San Joaquin Valley (SJV) area as nonattainment for both the 1997 annual PM2.5 standard (15.0 microg/m\3\) and the 1997 24-hour PM2.5 standard (65 microg/m\3\).\6\
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\4\ See 70 FR 944 (January 5, 2005).
\5\ Id.
\6\ See 40 CFR 81.305.
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The SJV PM2.5 nonattainment area encompasses over 23,000 square miles and includes all or part of eight counties: San Joaquin, Stanislaus, Merced, Madera, Fresno, Tulare, Kings, and the valley portion of Kern.\7\ The area is home to 4 million people and is the nation's leading agricultural region. Stretching over 250 miles from north to south and averaging 80 miles wide, it is partially enclosed by the Coast Mountain range to the west, the Tehachapi Mountains to the south, and the Sierra Nevada range to the east. The San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD or District) has primary responsibility for developing plans to provide for attainment of the NAAQS in this area. The District works cooperatively with the California Air Resources Board (CARB) in preparing these plans.
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\7\ For a precise description of the geographic boundaries of the San Joaquin Valley PM2.5 nonattainment area, see 40 CFR 81.305.
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Between 2007 and 2011, California made six SIP submittals to address nonattainment area planning requirements for the 1997 PM2.5 NAAQS in the SJV.\8\ We refer to these submittals collectively as the ``SJV PM2.5 SIP.'' On November 9, 2011, EPA approved all elements of the SJV PM2.5 SIP except for the contingency measures, which EPA disapproved.\9\ As part of this action and pursuant to CAA section 172(a)(2)(A), EPA granted California's request for an extension of the attainment date for the SJV area to April 5, 2015.\10\ EPA took these actions in accordance with the ``Clean Air Fine Particle Implementation Rule,'' which EPA issued in April 2007 to assist states in their development of SIPs to meet the Act's attainment planning requirements for the 1997 PM2.5 NAAQS (hereafter ``2007 PM2.5 Implementation Rule'').\11\ In July 2013, the State submitted a revised PM2.5 contingency measure plan for the SJV, which EPA fully approved in May 2014.\12\
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\8\ See 76 FR 69896 at n. 2 (November 9, 2011).
\9\ See id. at 69924.
\10\ See id. Under CAA section 172(a)(2)(A), the attainment date for a nonattainment area is ``the date by which attainment can be achieved as expeditiously as practicable, but no later than five years from the date such area was designated nonattainment,'' except that EPA may extend the attainment date as appropriate for a period no greater than ten years from the date of designation as nonattainment, considering the severity of nonattainment and the availability and feasibility of pollution control measures. CAA section 172(a)(2)(A); see also 40 CFR 51.1004(a) and (b).
\11\ See 72 FR 20583 (April 25, 2007), codified at 40 CFR part 51, subpart Z. This rule was premised on EPA's prior interpretation of the Act as allowing for implementation of the PM2.5 NAAQS solely pursuant to the general nonattainment area provisions of subpart 1 and not the more specific provisions for particulate matter nonattainment areas in subpart 4 of part D, title I of the Act.
\12\ See 79 FR 29327 (May 22, 2014).
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On January 4, 2013, the U.S. Court of Appeals for the D.C. Circuit issued its decision in a challenge by the Natural Resources Defense Council (NRDC) to EPA's 2007 PM2.5 Implementation Rule.\13\ In NRDC, the court held that EPA erred in implementing the 1997 PM2.5 standards solely pursuant to the general implementation requirements of subpart 1, without also considering the requirements specific to nonattainment areas for particulate matter with a diameter of 10 microns or less (PM10) in subpart 4, part D of title I of the CAA. The court reasoned that the plain meaning of the CAA requires
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implementation of the 1997 PM2.5 standards under subpart 4 because PM2.5 particles fall within the statutory definition of PM10 and are thus subject to the same statutory requirements as PM10. The court remanded the rule and instructed EPA ``to repromulgate these rules pursuant to Subpart 4 consistent with this opinion.''\14\
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\13\ See Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013).
\14\ Id.
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Consistent with the NRDC decision, on June 2, 2014, EPA published a final rule classifying all areas currently designated nonattainment for the 1997 and/or 2006 PM2.5 standards as Moderate under subpart 4.\15\ EPA also established a deadline of December 31, 2014 for states to submit attainment-related and nonattainment new source review (NNSR) SIP elements required for these areas pursuant to subpart 4.\16\ This rulemaking did not affect any action that EPA had previously taken under section 110(k) of the Act on a SIP for a PM2.5 nonattainment area.\17\ Accordingly, EPA's previous approval of the April 5, 2015 attainment date for the SJV area remains in effect.\18\
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\15\ See 79 FR 31566 (June 2, 2014).
\16\ Id.
\17\ Id. at 31569.
\18\ Id.; see also 79 FR 29327 at 29329 (May 22, 2014) (noting that ``absent an EPA rulemaking to withdraw or revise the November 9, 2011 final rule, which NRDC does not compel, our final action on the SJV PM2.5 SIP remains effective . . .'').
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Under section 188(b)(1) of the CAA, prior to an area's attainment date, EPA has discretionary authority to reclassify as a Serious nonattainment area ``any area that the Administrator determines cannot practicably attain'' the PM2.5 NAAQS by the applicable Moderate area attainment date.\19\ On September 25, 2014, the District requested that EPA reclassify the SJV nonattainment area as Serious nonattainment for the 1997 PM2.5 standards. This request included a demonstration that the SJV cannot practicably attain the 1997 annual PM2.5 standard by the April 5, 2015 attainment date.\20\
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\19\ Section 188(b)(1) of the Act is a general expression of delegated rulemaking authority. See ``State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 FR 13498 (April 16, 1992) (hereafter ``General Preamble'') at 13537, n. 15. Although subparagraphs (A) and (B) of section 188(b)(1) mandate that EPA reclassify by specified timeframes any areas that it determines appropriate for reclassification by those dates, these subparagraphs do not restrict the general authority but simply specify that, at a minimum, EPA's authority must be exercised at certain times. See id.
\20\ See letter dated September 25, 2014 from Seyed Sadredin, Executive Director/Air Pollution Control Officer, SJVUAPCD, to Jared Blumenfeld, Regional Administrator, EPA Region 9, ``RE: San Joaquin Valley Unified Air Pollution Control District Request for Reclassification of the San Joaquin Valley as a Serious PM2.5 Nonattainment Area for the Federal 1997 PM2.5 Standard,'' attaching Memorandum dated August 21, 2014 from Seyed Sadredin, Executive Director/APCO and Sheraz Gill, Project Coordinator, to the SJVUAPCD Governing Board, ``RE: Item Number 9: Review and Approve Actions to Address Air Quality Impacts Resulting from the Exceptional Weather Conditions Caused by the Recent Drought'' (hereafter ``Sadredin Memo'').
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Evaluation of Ambient PM2.5 Air Quality Monitoring Data
A determination of whether an area's air quality currently meets the PM2.5 NAAQS is generally based upon the most recent three years of complete, quality-assured data gathered at established State and Local Air Monitoring Stations (SLAMS) in a nonattainment area and entered into EPA's Air Quality System (AQS) database. Data from air monitors operated by state/local agencies in compliance with EPA monitoring requirements must be submitted to AQS. Monitoring agencies annually certify that these data are accurate to the best of their knowledge. Accordingly, EPA relies primarily on data in AQS when determining the attainment status of areas.\21\
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\21\ See 40 CFR 50.7; 40 CFR part 50, appendix L; 40 CFR part 50, appendix N; 40 CFR part 53; 40 CFR part 58; and 40 CFR part 58, appendices A, C, D, and E.
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Under EPA regulations in 40 CFR 50.7 and in accordance with part 50, appendix N, the 1997 annual PM2.5 standard is met when the ``annual PM2.5 NAAQS design value'' (based on the 3-year average of PM2.5 annual mean mass concentrations) \22\ is less than or equal to 15.0 microg/m\3\ at each eligible monitoring site. The 1997 24-hour PM2.5 standard is met when the ``24-
hour PM2.5 NAAQS design value'' (based on the 3-year average of annual 98th percentile 24-hour PM2.5 mass concentrations) \23\ is less than or equal to 65 microg/m\3\ at each eligible monitoring site.
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\22\ See 40 CFR part 50, appendix N (section 1.0).
\23\ See id.
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PM2.5 Trends in the SJV
Ambient annual and 24-hour PM2.5 NAAQS design value levels in the SJV are the highest recorded in the United States at 18.1 mug/m\3\ (Madera) and 65 mug/m\3\ (Bakersfield), respectively, for the 2011-2013 period.\24\ The levels and composition of ambient PM2.5 in the SJV differ by season.\25\ Higher PM2.5 concentrations occur during the winter, between late November and February, when the SJV experiences extended periods of stagnant weather with cold foggy conditions which encourage wood burning, a source of directly emitted particulates (direct PM2.5), and are conducive to the formation of ammonium nitrate from the reaction of nitrogen oxides (NOX) with ammonia. Tables 1 and 2 show the annual and 24-hour concentrations recorded at PM2.5 monitoring sites in the SJV during the 2005-2013 period.
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\24\ See U.S. EPA, 2013 Design Value Reports, PM2.5 Detailed Information Updated 8/24/14, available at http://www.epa.gov/airtrends/values.html (``PM25_DesignValues_20112013_FINAL_08_28_14'') (hereafter ``2013 p.m.2.5 Design Value Reports''). The Bakersfield monitor also recorded the nation's second highest annual PM2.5 NAAQS design value (17.3 mug/m\3\) during this period. See id.
\25\ See 76 FR 41338 at 41339 (July 13, 2011) (proposed action on SJV PM2.5 Plan).
Table 1--Annual PMihel2.ihel5 NAAQS Design Values \a\ in microg/m\3\ for Monitors in the SJV
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Site AQS ID 2005 2006 2007 2008 2009 2010 2011 2012 2013
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Bakersfield:
Planz................................. 60290016 18.4 18.9 20.3 21.5 22.6 21.2 18.2 15.6 17.3
CA Ave................................ 60290014 18.0 18.5 19.6 20.9 21.0 18.4 16.5 14.5 16.4
Golden State Hwy...................... 60290010 19.0 18.6 19.2 18.8 19.3 n/a n/a n/a n/a
Corcoran.................................. 60310004 17.0 17.2 17.6 17.0 17.3 17.1 16.2 n/a n/a
Hanford................................... 60311004 n/a n/a n/a n/a n/a n/a n/a 15.8 17.0
Visalia................................... 61072002 18.0 18.2 19.3 19.7 18.8 16.5 15.2 14.8 16.6
Fresno:
Pacific............................... 60195025 17.2 17.2 17.1 17.0 16.0 14.9 14.5 13.8 14.7
Garland............................... 60190011 16.9 16.6 17.4 17.7 17.1 15.2 14.5 \b\ 14.3 \b\ 15.4
Clovis.................................... 60195001 17.1 16.4 16.4 16.3 17.0 16.4 17.0 16.0 16.4
Tranquility............................... 60192009 n/a n/a n/a n/a n/a n/a n/a 7.4 7.8
Madera.................................... 60392010 n/a n/a n/a n/a n/a n/a n/a 19.0 18.1
Merced:
M Street.............................. 60472510 15.0 14.7 14.7 n/a n/a n/a 11.7 10.4 11.1
Coffee................................ 60470003 n/a n/a n/a n/a n/a n/a 18.2 14.3 13.3
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Turlock................................... 60990006 n/a n/a n/a n/a n/a n/a 15.3 14.9 15.7
Modesto................................... 60990005 14.0 14.1 14.6 15.3 14.7 n/a n/a 12.9 13.6
Manteca................................... 60772010 n/a n/a n/a n/a n/a n/a n/a n/a 10.2
Stockton.................................. 60771002 13.1 12.9 12.8 13.5 12.9 12.1 11.1 11.4 13.8
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Source: 2013 PM2.5 Design Value Reports. The term ``n/a'' means monitoring data is not available or does not meet minimum data completeness requirements
(40 CFR part 50, appendix N).
\a\ The annual PM2.5 NAAQS design value for each monitor is based on the 3-year average of annual mean PM2.5 concentrations. See 40 CFR part 50,
appendix N. For example, the annual PM2.5 NAAQS design value for 2013 for each monitor is the average of the annual mean PM2.5 concentrations for
2011, 2012, and 2013 at that monitor. The 1997 annual PM2.5 NAAQS is attained when the design value at each eligible monitor is 15.0 microg/m\3\ or
less.
\b\ The Garland site was approved for replaced operation of the First Street site (AQS ID: 60190008) beginning with data collected in calendar year
2012. The design value reported represents a combined site record with the existing Garland site and old First Street site which ceased operation in
early 2012.
Table 2--24-Hour PMihel2.ihel5 NAAQS Design Values \a\ in microg/m\3\ for Monitors in the SJV
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Site AQS ID 2005 2006 2007 2008 2009 2010 2011 2012 2013
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Bakersfield:
Planz................................. 60290016 54 60 68 70 70 65 55 47 60
CA Ave................................ 60290014 58 62 66 66 68 62 62 58 65
Golden State Hwy...................... 60290010 60 64 69 64 66 64 n/a n/a n/a
Corcoran.................................. 60310004 55 58 61 52 53 49 46 43 49
Hanford................................... 60311004 n/a n/a n/a n/a n/a n/a n/a 54 60
Visalia................................... 61072002 55 56 58 57 59 51 47 47 56
Fresno:
Pacific............................... 60195025 57 59 61 52 50 43 48 53 63
Garland............................... 60190011 60 58 63 58 60 54 58 \b\ 59 \b\ 62
Clovis.................................... 60195001 55 56 58 54 53 47 54 54 58
Tranquility............................... 60192009 n/a n/a n/a n/a n/a n/a n/a 31 30
Madera.................................... 60392010 n/a n/a n/a n/a n/a n/a n/a 51 52
Merced:
M Street.............................. 60472510 45 45 48 50 51 45 39 40 49
Coffee................................ 60470003 n/a n/a n/a n/a n/a n/a 43 41 42
Turlock................................... 60990006 n/a n/a n/a n/a n/a 55 51 49 53
Modesto................................... 60990005 49 51 55 54 55 49 50 44 51
Manteca................................... 60772010 n/a n/a n/a n/a n/a n/a n/a 38 37
Stockton.................................. 60771002 40 41 45 51 50 44 38 36 45
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Source: 2013 PM2.5 Design Value Reports. The term ``n/a'' means monitoring data is not available or does not meet minimum data completeness requirements
(40 CFR part 50, appendix N).
\a\ The 24-hour PM2.5 NAAQS design value for each monitor is based on the 3-year average of annual 98th percentile 24-hour PM2.5 concentrations. See 40
CFR part 50, appendix N. For example, the 24-hour PM2.5 NAAQS design value for 2013 for each monitor is the average of the 98th percentile PM2.5
concentrations for 2011, 2012, and 2013 at that monitor. The 1997 24-hour PM2.5 NAAQS is attained when the design value at each eligible monitor is 65
microg/m\3\ or less.
\b\ The Garland site was approved for replaced operation of the First Street site (AQS ID: 60190008) beginning with data collected in calendar year
2012. The design value reported represents a combined site record with the existing Garland site and old First Street site which ceased operation in
early 2012.
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Impracticability of Attaining the 1997 Annual PM2.5 Standard by April 5, 2015
In its September 25, 2014 letter to EPA, the District provided ambient air quality data showing that the SJV area cannot attain the 1997 PM2.5 annual standard by April 5, 2015.\26\ Specifically, the District provided annual average PM2.5 concentrations recorded at monitoring sites in the SJV for 2012 and 2013, and then calculated the maximum 2014 annual average concentration for each monitoring site that would result in a 3-year average PM2.5 concentration of 15.0 mug/m\3\ at that site. According to the District, the maximum 2014 annual average concentration at the Bakersfield-Planz site (which recorded the area's highest annual concentrations in 2013) that will enable the site to show a design value at or below 15.0 mug/m\3\ for 2014 is 7.5 mug/
m\3\.\27\ The annual average value for a given year is calculated based on the quarterly averages for that year.\28\ The District reported that the average PM2.5 concentration measured at the Bakersfield-
Planz site in the first quarter of 2014, however, was 29.7 mug/
m\3\.\29\ Thus, according to the District, average PM2.5 concentrations at this monitoring site for the remaining three quarters of 2014 would have to be zero in order to result in a design value at or below 15.0 mug/m\3\ for 2014.\30\ The remaining three quarters of 2014 include November and December, which, like other winter months in the SJV, tend to experience high PM2.5 concentrations. These preliminary data and analyses indicate that it is not possible for the Bakersfield-Planz monitoring site to show an annual PM2.5 NAAQS design value at or below 15.0 mug/m\3\ by April 5, 2015.
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\26\ See Sadredin Memo at 2-6.
\27\ Id. at Table 3.
\28\ 40 CFR part 50, appendix N, section 4.4.
\29\ See Sadredin Memo at Table 4.
\30\ Id.
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EPA also independently evaluated preliminary 2014 PM2.5 air quality data available in AQS as of August 2014 to assess the District's representations.\31\ Table 3 shows four monitoring locations for which preliminary 2014 AQS data already indicate that the 3-year average PM2.5 concentration for 2012-2014 will likely be well above 15.0 mug/m\3\. Specifically, for each of these monitoring sites, EPA calculated the maximum 2014 average PM2.5 concentration that would enable the site to show a 2014 annual PM2.5 NAAQS design value at or below 15.0 mug/m\3\.\32\
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As shown in Table 3, the 2014 annual average PM2.5 concentration at the Visalia, Corcoran, and Hanford sites would have to be nearly 20 percent lower than the lowest annual averages observed at each of those sites during the 2003-2013 period, and the 2014 annual average PM2.5 concentration at the Bakersfield-Planz site would have to be nearly 50 percent lower than the lowest annual average observed during that same period, in order to result in a 2014 annual PM2.5 NAAQS design value at or below 15.0 mug/m\3\.\33\
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\31\ See Memorandum from Elfego Felix and Scott Bohning to Docket entitled ``Practicability of SJV 2014 attainment of the 1997 PM2.5 NAAQS'' dated December 10, 2014 with attachment entitled ``SJV PM2 5 1997 std impracticable 2014-12-10.xlsx'' (hereafter ``Felix and Bohning Memo'').
\32\ The small differences between the District's and EPA's calculations of ``maximum 2014'' values are due to the use of different rounding conventions. EPA's calculations of maximum 2014 values are based on the rounding convention in 40 CFR part 50, appendix N, which provides that intermediate calculations are not rounded, and that a design value with a decimal lower than 15.05 mug/m\3\ is rounded down to 15.0 mug/m\3\. See 40 CFR part 50, appendix N, section 4.3. In computing the maximum 2014 concentration consistent with attainment and consistent with 2012 and 2013 annual mean concentrations, EPA did not round the 2012 and 2013 means in the intermediate steps of the calculation, and used 15.04 as the highest design value consistent with the standard. In contrast, the Sadredin memo rounded 2012 and 2013 means to one decimal place initially, and used 15.00 as the highest attaining design value.
\33\ See Felix and Bohning Memo and attachment.
Table 3--Preliminary Recorded 2014 Annual Average PMihel2.ihel5 Concentrations (in mug/m\3\) for Selected
Sites in SJV and Comparison to Lowest Recorded Concentrations
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Percent
EPA estimate for difference
Average recorded max 2014 annual Lowest recorded between max 2014
2014 \a\ average allowed annual average and lowest
to attain \b\ (year) \b\ recorded annual
verage
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Bakersfield--Planz...................... 29.7 7.7 14.5 (2011) 47
Visalia................................. 27.9 11.4 13.6 (2010) 16
Corcoran................................ 22.9 13.0 15.6 (2013) 16
Hanford................................. 18.7 12.1 14.8 (2012) 18
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\a\ Source: U.S. EPA, Air Quality System, Combined Site Sample Values Report, PM2.5, 2014 (Report Date: August
7, 2014) (preliminary 2014 1st quarter data for all identified sites and 2nd quarter data for Hanford site).
\b\ See Felix and Bohning Memo and attachment.
If 2014 monitoring data is timely certified by May 1, 2015 (see 40 CFR 58.15) and EPA's determination of whether the SJV area meets the PM2.5 NAAQS occurs after this date, the determination would be based on monitoring data for the 2012-2014 period as this would be the most recent 3-year period for which complete, quality-assured and certified monitoring data is available. Because a determination of attainment requires that each eligible monitoring site in the area show a design value at or below the level of the PM2.5 NAAQS (see 40 CFR part 50, Sec. 50.7 and appendix N), a 2014 design value above this level at one eligible monitor would render attainment by April 5, 2015 impossible.
In sum, air quality data for the 2003-2014 period indicate that it is not practicable for the Bakersfield-Planz monitoring site to show an annual PM2.5 NAAQS design value at or below 15.0 mug/m\3\ by April 5, 2015, and that the SJV area cannot practicably attain the 1997 annual PM2.5 NAAQS by this date.\34\
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\34\ Any reclassification of a Moderate PM2.5 nonattainment area as Serious based on a determination that the area cannot practicably attain the NAAQS by the applicable attainment date will be based on the facts and circumstances of the particular nonattainment area at issue. Monitored air quality and the reductions in ambient concentrations that the area would need to achieve in order to monitor attainment are important factors. Another important factor is whether additional control measures could be implemented in time and reduce emissions adequately to attain the NAAQS. Given the significant reductions in ambient PM2.5 levels that the SJV nonattainment area would need to monitor attainment, and the extremely short time remaining before the applicable attainment date for this area (April 5, 2015), EPA focused its analysis in this proposal on air quality-related information.
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Impracticability of Attaining the 1997 24-Hour PM2.5 Standard by April 5, 2015
The District's September 25, 2014 letter did not specifically address the SJV area's ability to attain the 24-hour PM2.5 standard by April 5, 2015. EPA independently reviewed ambient air quality data available in AQS, however, to consider whether the SJV area can practicably attain the 24-hour standard by this date.
Table 4 shows the 98th percentile 24-hour average PM2.5 concentrations recorded in 2012 and 2013 at selected monitoring sites. The 98th percentile 24-hour concentrations in 2013 were higher than in 2012, and in some cases the 2013 value was significantly higher than the 2012 value, e.g., at the Bakersfield-Planz monitoring site.\35\ Based on these observed 98th percentile values in 2012 and 2013, EPA calculated for each of these monitoring sites the maximum 98th percentile 24-hour concentration in 2014 that would enable the site to show a 2014 24-hour PM2.5 NAAQS design value at or below 65 mug/m\3\. EPA also calculated a low estimate of the 98th percentile 24-hour concentration for 2014 at each of these sites, based on preliminary data reported to AQS for the first quarter of 2014 and a conservative assumption that 24-hour PM2.5 concentrations remain below these levels for the remainder of the year at each monitoring site.\36\ As shown in Table 4, EPA's low estimates of the 98th percentile concentrations for 2014 at the two monitoring sites in Bakersfield (Planz and California Avenue) already exceed the maximum 2014 values that would enable these two sites to show a 24-hour PM2.5 NAAQS design value for 2014 at or below 65 mug/m\3\. Thus, these two monitoring sites in Bakersfield cannot practicably show a 24-hour PM2.5 NAAQS design value at or below 65 mug/m\3\ by April 5, 2015.
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\35\ The Sadredin Memo cites weather conditions associated with the extreme drought in California, including low precipitation, high stagnation, and strong inversions, among the reasons for the high PM2.5 concentrations observed in the winter of 2013-2014. See Sadredin Memo at 3-7.
\36\ Identification of the 98th percentile 24-hour concentration is based on the number of creditable samples in a given year. See 40 CFR part 50, appendix N, section 4.5. Specifically, in any year for which there are at least 351 creditable samples, the 98th percentile is the 8th highest concentration, and as the number of creditable samples decreases the 98th percentile concentration increases. See id. at Table 1. To calculate a low estimate of the 98th percentile 24-hour concentration for 2014 at each monitoring site, EPA assumed conservatively that preliminary 2014 monitoring data available in AQS (see Table 4) represented the highest values for 2014 (i.e., no higher values would be recorded at these sites for the remainder of 2014) and that the total number of creditable samples in 2014 would be consistent with the sampling frequency observed as of August 7, 2014. See Felix and Bohning Memo and attachment. We note that 2014 monitoring data is not due for certification until May 1, 2015. See 40 CFR 58.15.
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Table 4--Preliminary Recorded 2014 24-Hour PM2.5 Concentrations (in mug/m\3\) for Selected Sites in SJV and
Calculation of 98th Percentile Values
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Max 98th
98th 98th Low estimate percentile
percentile in percentile in of 98th allowed in
2012 \a\ 2013 \a\ percentile in 2014 to attain
2014 b b
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Bakersfield--Planz.............................. 40.6 96.7 64.4 58.9
Bakersfield--CA Ave............................. 56.4 71.8 72.6 68.0
Hanford......................................... 48.3 67.6 76.7 80.3
Fresno--Pacific................................. 51.3 71.6 61.8 73.3
Fresno--Garland................................. 52.6 63.8 65.5 79.8
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a Source: See 2013 PM2.5 Design Value Reports.
b See Felix and Bohning Memo and attachment (calculations based on preliminary 2014 1st quarter data for all
identified sites and 2nd quarter data for Hanford site).
If 2014 monitoring data is timely certified by May 1, 2015 (see 40 CFR 58.15) and EPA's determination of whether the SJV area meets the PM2.5 NAAQS occurs after this date, the determination would be based on monitoring data for the 2012-2014 period as this would be the most recent 3-year period for which complete, quality-assured and certified monitoring data is available. Because a determination of attainment requires that each eligible monitoring site in the area show a design value at or below the level of the PM2.5 NAAQS (see 40 CFR part 50, Sec. 50.7 and appendix N), a 2014 design value above this level at one eligible monitor would render attainment by April 5, 2015 impossible.
In sum, air quality data for the 2003-2014 period indicate that it is not practicable for the two Bakersfield monitoring sites to show a 24-hour PM2.5 NAAQS design value at or below 65 mug/m\3\ by April 5, 2015, and that the SJV area cannot practicably attain the 1997 24-hour PM2.5 NAAQS by this date.\37\
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\37\ See note 34 supra.
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Reclassification as Serious Nonattainment and Applicable Attainment Dates
Section 188 of the Act outlines the process for classification of PM2.5 nonattainment areas and establishes the applicable attainment dates. In accordance with section 188 and in response to the NRDC decision, EPA classified the SJV area as Moderate nonattainment for the 1997 PM2.5 NAAQS, effective July 2, 2014.\38\ This classification rulemaking did not affect any prior action that EPA had taken under CAA section 110(k) on a PM2.5 attainment plan for a nonattainment area. Accordingly, the April 5, 2015 attainment date that EPA approved on November 9, 2011 for the SJV area remains the applicable attainment date for the 1997 PM2.5 NAAQS in this area.\39\
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\38\ See 79 FR 31566 at 31587, 31593 (June 2, 2014).
\39\ See notes 17 and 18, supra.
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Under the plain meaning of the terms of section 188(b)(1) of the Act, EPA has general authority to reclassify at any time before the applicable attainment date any area that EPA determines cannot practicably attain the standard by such date. Accordingly, section 188(b)(1) of the Act is a general expression of delegated rulemaking authority. In addition, subparagraphs (A) and (B) of section 188(b)(1) mandate that EPA reclassify ``appropriate'' PM10 nonattainment areas at specified time frames (i.e., by December 31, 1991 for the initial PM10 nonattainment areas, and within 18 months after the SIP submittal due date for subsequent nonattainment areas). These subparagraphs do not restrict EPA's general authority but simply specify that, at a minimum, it must be exercised at certain times.\40\ In accordance with section 188(b)(1) of the Act, EPA is proposing to reclassify the SJV area from Moderate to Serious nonattainment for the 1997 annual and 24-hour PM2.5 standards of 15.0 and 65 mug/m\3\, respectively, based on EPA's determination that the SJV area cannot practicably attain these standards by the applicable attainment date of April 5, 2015.
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\40\ For a general discussion of EPA's interpretation of the reclassification provisions in section 188(b)(1) of the Act, see the General Preamble, 57 FR 13498 at 13537-38 (April 16, 1992).
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Under section 188(c)(2) of the Act, the attainment date for a Serious area ``shall be as expeditiously as practicable but no later than the end of the tenth calendar year beginning after the area's designation as nonattainment. . . .'' The SJV area was designated nonattainment for the 1997 PM2.5 standards effective April 5, 2005.\41\ Therefore, upon final reclassification of the SJV area as a Serious nonattainment area, the latest permissible attainment date under section 188(c)(2) of the Act, for purposes of the 1997 PM2.5 standards in this area, will be December 31, 2015.
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\41\ See 70 FR 944 at 956, 957 (January 5, 2005).
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Under section 188(e) of the Act, a state may apply to EPA for a single extension of the Serious area attainment date by up to 5 years, which EPA may grant if the State satisfies certain conditions. Before EPA may extend the attainment date for a Serious area under section 188(e), the State must: (1) Apply for an extension of the attainment date beyond the statutory attainment date; (2) demonstrate that attainment by the statutory attainment date is impracticable; (3) have complied with all requirements and commitments pertaining to the area in the implementation plan; (4) demonstrate to the satisfaction of the Administrator that the plan for the area includes the most stringent measures that are included in the implementation plan of any State or are achieved in practice in any State, and can feasibly be implemented in the area; and (5) submit a demonstration of attainment by the most expeditious alternative date practicable.\42\ As more fully described in Section V of this proposal, EPA anticipates that California may choose to submit a request for an extension of the Serious area attainment date consistent with
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these requirements when it submits a Serious area attainment plan for the 1997 PM2.5 standards for this area.
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\42\ For a discussion of EPA's interpretation of the requirements of section 188(e), see ``State Implementation Plans for Serious PM10 Nonattainment Areas, and Attainment Date Waivers for PM10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,'' 59 FR 41998 (August 16, 1994) (hereafter ``Addendum'') at 42002; 65 FR 19964 (April 13, 2000) (proposed action on PM10 Plan for Maricopa County, Arizona); 66 FR 50252 (October 2, 2001) (proposed action on PM10 Plan for Maricopa County, Arizona); 67 FR 48718 (July 25, 2002) (final action on PM10 Plan for Maricopa County, Arizona); and Vigil v. EPA, 366 F.3d 1025, amended at 381 F.3d 826 (9th Cir. 2004) (remanding EPA action on PM10 Plan for Maricopa County, Arizona but generally upholding EPA's interpretation of CAA section 188(e)).
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Reclassification of Areas of Indian Country \43\
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\43\ ``Indian country'' as defined at 18 U.S.C. 1151 refers to: ``(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-
of-way running through the same.''
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Eight Indian tribes are located within the boundaries of the San Joaquin Valley PM2.5 nonattainment area: the Big Sandy Rancheria of Mono Indians of California, the Cold Springs Rancheria of Mono Indians of California, the North Fork Rancheria of Mono Indians of California, the Picayune Rancheria of Chukchansi Indians of California, the Santa Rosa Rancheria of the Tachi Yokut Tribe, the Table Mountain Rancheria of California, the Tejon Indian Tribe, and the Tule River Indian Tribe of the Tule River Reservation.
We have considered the relevance of our proposal to reclassify the SJV nonattainment area as Serious for the 1997 PM2.5 standards to each tribe located within the SJV area. We believe that the same facts and circumstances that support the proposal for the non-
Indian country lands also support the proposal for Indian country located within the SJV nonattainment area. EPA is therefore proposing to exercise our authority under CAA section 188(b)(1) to reclassify areas of Indian country geographically located in the SJV nonattainment area. Section 188(b)(1) broadly authorizes EPA to reclassify a nonattainment area--including any area of Indian country located within such area--that EPA determines cannot practicably attain the relevant standard by the applicable attainment date.
Elevated PM2.5 levels are a pervasive pollution problem throughout the SJV area. Directly-emitted PM2.5 and its precursor pollutants (NOX, SOX, VOC, and ammonia) are emitted throughout a nonattainment area and can be transported throughout that nonattainment area. Therefore, boundaries for nonattainment areas are drawn to encompass both areas with direct sources of the pollution problem as well as nearby areas in the same airshed. Initial classifications of nonattainment areas are coterminous with, that is, they match exactly, their boundaries. EPA believes this approach best ensures public health protection from the adverse effects of PM2.5 pollution. Therefore, it is generally counterproductive from an air quality and planning perspective to have a disparate classification for an area located within the boundaries of a larger nonattainment area, such as the areas of Indian country contained within the SJV PM2.5 nonattainment area. Moreover, violations of the 1997 PM2.5 standards, which are measured and modeled throughout the nonattainment area, as well as shared meteorological conditions, would dictate the same conclusion. Furthermore, emissions increases in portions of a PM2.5 nonattainment area that are left classified as Moderate could counteract the effects of efforts to attain the standards within the overall area because less stringent requirements would apply in those Moderate portions relative to those that would apply in the portions of the area reclassified to Serious.
Uniformity of classification throughout a nonattainment area is thus a guiding principle and premise when an area is being reclassified. Equally, if EPA believes it is likely that a given nonattainment area will not attain the PM2.5 standards by the applicable attainment date, then it may be an additional reason why it is appropriate to maintain a uniform classification within the area and thus to reclassify the Indian country together with the balance of the nonattainment area. In this particular case, we are proposing to determine, based on the State's demonstration and current ambient air quality trends, that the SJV nonattainment area in its entirety cannot practicably attain the 1997 PM2.5 standards by the applicable area attainment date of April 5, 2015.
In light of the considerations outlined above that support retention of a uniformly-classified PM2.5 nonattainment area, and our finding that is impracticable for the area to attain by the applicable attainment date, we propose to reclassify the areas of Indian country areas within the San Joaquin Valley nonattainment area as Serious for the 1997 PM2.5 standards.
The effect of reclassification would be to lower the applicable ``major source'' emissions threshold for purposes of the nonattainment new source review program and the Title V operating permit program from its current level of 100 tpy to 70 tpy (CAA sections 189(b)(3) and 501(2)(B)) thus subjecting more new or modified stationary sources to these requirements. The reclassification may also lower the de minimis threshold under the CAA's General Conformity requirements (40 CFR part 93, subpart B) from 100 tpy to 70 tpy. Under the General Conformity requirements, Federal agencies bear the responsibility of determining conformity of actions in nonattainment and maintenance areas that require Federal permits, approvals, or funding. Such permits, approvals or funding by Federal agencies for projects in these areas of Indian country may be more difficult to obtain because of the lower de minimis thresholds.
Given the potential implications of the reclassification, EPA has contacted tribal officials to invite government-to-government consultation on this rulemaking effort.\44\ EPA specifically solicits additional comment on this proposed rule from tribal officials. We note that although eligible tribes may opt to seek EPA approval of relevant tribal programs under the CAA, none of the affected tribes will be required to submit an implementation plan to address this reclassification.
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\44\ We sent letters to tribal officials of seven tribes regarding government-to-government consultation on September 30, 2014. EPA inadvertently did not send a letter to the Tejon Indian Tribe, therefore, concurrently with this proposed action, EPA is sending a letter to the chairperson of the Tejon Indian Tribe inviting consultation on our proposed reclassification of the SJV PM2.5 nonattainment area. All eight letters can be found in the docket for this proposed action.
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PM2.5 Serious Area SIP Requirements
Upon reclassification as a Serious nonattainment area for the 1997 PM2.5 NAAQS, California will be required to submit additional SIP revisions to satisfy the statutory requirements that apply to Serious areas, including the requirements of subpart 4 of part D, title I of the Act.
The Serious area SIP elements that California will be required to submit are as follows:
1. Provisions to assure that the best available control measures (BACM), including best available control technology (BACT) for stationary sources, for the control of direct PM2.5 and PM2.5 precursors shall be implemented no later than 4 years after the area is reclassified (CAA section 189(b)(1)(B));
2. a demonstration (including air quality modeling) that the plan provides for attainment as expeditiously as practicable but no later than December 31, 2015, or where the State is seeking an extension of the attainment date under section 188(e), a demonstration that attainment by December 31, 2015 is impracticable and that the plan provides for attainment by the most expeditious
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alternative date practicable (CAA sections 188(c)(2) and 189(b)(1)(A));
3. plan provisions that require reasonable further progress (RFP) (CAA section 172(c)(2));
4. quantitative milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrate RFP toward attainment by the applicable date (CAA section 189(c));
5. provisions to assure that control requirements applicable to major stationary sources of PM2.5 also apply to major stationary sources of PM2.5 precursors, except where the State demonstrates to EPA's satisfaction that such sources do not contribute significantly to PM2.5 levels that exceed the standard in the area (CAA section 189(e));
6. a comprehensive, accurate, current inventory of actual emissions from all sources of PM2.5 and PM2.5 precursors in the area (CAA section 172(c)(3));
7. contingency measures to be implemented if the area fails to meet RFP or to attain by the applicable attainment date (CAA section 172(c)(9)); and
8. a revision to the nonattainment new source review (NSR) program to lower the applicable ``major stationary source'' \45\ thresholds from 100 tons per year (tpy) to 70 tpy (CAA section 189(b)(3)).
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\45\ For any Serious area, the terms ``major source'' and ``major stationary source'' include any stationary source that emits or has the potential to emit at least 70 tons per year of PM10 (CAA section 189(b)(3)).
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Section 189(b)(2) states, in relevant part, that the State must submit the required BACM provisions ``no later than 18 months after reclassification of the area as a Serious Area'' and must submit the required attainment demonstration ``no later than 4 years after reclassification of the area to Serious.'' Thus, if a final reclassification of the area to Serious becomes effective in early 2015, the Act provides the State with up to 18 months after this date (i.e., until late 2016) to submit a BACM demonstration and up to 4 years after this date (i.e., until early 2019) to submit a Serious area attainment demonstration. Given the December 31, 2015 Serious area attainment date for the 1997 PM2.5 standards in this area under CAA section 188(c)(2), however, EPA expects the State to adopt and submit a Serious area plan for the 1997 PM2.5 standards well before the statutory SIP submittal deadlines in section 189(b)(2).
Additionally, in light of the available ambient air quality data and the short amount of time available before the December 31, 2015 attainment date under CAA section 188(c)(2), EPA anticipates that California may choose to submit a request for an extension of the Serious area attainment date pursuant to section 188(e) simultaneously with its submittal of a Serious area plan for the area. If California fails to submit a request for an extension of the Serious area attainment date that satisfies the requirements of section 188(e) and the SJV area fails to attain the 1997 PM2.5 standards by December 31, 2015, under CAA section 189(d) the State would be required to submit, within 12 months after December 31, 2015, plan revisions which provide for attainment of the PM2.5 standards and, from the date of such submission until attainment, for an annual reduction in emissions within the SJV area of not less than 5 percent of the amount of such emissions as reported in the most recent inventory prepared for the area (hereafter ``section 189(d) plan''). If, however, California submits and EPA approves a section 188(e) request for an extension of the Serious area attainment date prior to the December 31, 2015 attainment date for the SJV area, the requirement to submit a section 189(d) plan would not apply unless and until the SJV area fails to attain the 1997 PM2.5 standards by the extended attainment date approved by EPA under section 188(e).
The Act does not specify a deadline for the State's submittal of nonattainment NSR program revisions to lower the ``major stationary source'' threshold from 100 tons per year (tpy) to 70 tpy (CAA section 189(b)(3)) following reclassification of a Moderate PM2.5 nonattainment area as Serious nonattainment under subpart 4. Pursuant to EPA's gap-filling authority in CAA section 301(a) and to effectuate the statutory control requirements in section 189 of the Act, EPA proposes to require the State to submit these nonattainment NSR SIP revisions no later than 12 months from the effective date of final reclassification of the SJV area as Serious nonattainment for the 1997 PM2.5 standards. We believe this timeframe will give the state sufficient time to make this relatively straightforward revision to its nonattainment NSR SIP while assuring that new or modified major sources locating in the SJV area will be subject to the lower statutory major source thresholds expeditiously. We are requesting comment on this proposed 12-month timeframe for submission of the nonattainment NSR SIP revisions. As noted above, however, if California intends to seek an extension of the Serious area attainment date, the State will need to submit a request that satisfies the requirements of CAA section 188(e), including NSR SIP provisions to implement the major stationary source threshold in CAA section 189(b)(3), in time for EPA to approve such an extension prior to the December 31, 2015 Serious area attainment date.
Given the short amount of time available for California's development of these SIP submittals, EPA anticipates that the Serious area attainment demonstration for the SJV area may rely to some extent on existing photochemical modeling analyses developed for previous PM2.5 plan submittals. EPA commits to work with the District and CARB as they develop the necessary technical support for the Serious area plan and to provide guidance on the requirements that California must meet to qualify for an extension of the Serious area attainment date under CAA section 188(e).
EPA is currently developing a proposed rulemaking to provide guidance to states on the attainment planning requirements in subparts 1 and 4 of part D, title I of the Act that apply to areas designated nonattainment for PM2.5. In the interim, EPA encourages the State to review the General Preamble and Addendum for guidance on how to implement these statutory requirements in the SJV PM2.5 nonattainment area.\46\
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\46\ See generally the General Preamble, 57 FR 13498 (April 16, 1992) and Addendum, 59 FR 41998 (August 16, 1994).
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Summary of Proposed Action and Request for Public Comment
Pursuant to section 188(b)(1) of the Act, EPA is proposing to reclassify the SJV nonattainment area from Moderate to Serious nonattainment for the 1997 annual and 24-hour PM2.5 standards based on EPA's determination that the area cannot practicably attain these NAAQS by the applicable attainment date of April 5, 2015. This proposed action is based upon EPA's evaluation of ambient air quality data for the 2003-2014 period indicating that it is not practicable for certain monitoring sites within the SJV to show PM2.5 design values at or below the level of the 1997 PM2.5 NAAQS by April 5, 2015. Upon reclassification as a Serious nonattainment area, California will be required to submit a Serious area plan that satisfies the requirements of part D of title I of the Act, including a demonstration that the plan provides for attainment of the 1997 annual and 24-hour PM2.5 standards in the SJV area by the applicable attainment date, which is
Page 1490
no later than December 31, 2015, or by the most expeditious alternative date practicable and no later than December 31, 2020, consistent with the requirements of CAA sections 189(b) and 188(e).
In addition, because EPA is proposing to similarly reclassify areas of Indian country within the SJV PM2.5 nonattainment area as Serious nonattainment for the 1997 PM2.5 standards, consistent with our proposed reclassification of the surrounding non-
Indian country lands, EPA has invited consultation with interested tribes concerning this issue. We note that although eligible tribes may seek EPA approval of relevant tribal programs under the CAA, none of the affected tribes will be required to submit an implementation plan to address this reclassification.
EPA is requesting public comment on this proposed action.
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Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.
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Executive Order 12866: Regulatory Planning and Review, and Executive Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR 3821, January 21, 2011), and therefore was not submitted to the Office of Management and Budget (OMB) for review. Reclassification does not itself create any new requirements, and does not impose a materially adverse impact under Executive Order 12866. With respect to lands under state jurisdiction, this proposed reclassification would trigger statutory deadlines for the state to submit Serious area plan elements. With respect to Indian country, reclassifications do not establish deadlines for air quality plans or plan revisions because tribes are not subject to implementation plan submittal deadlines that apply to states as a result of reclassifications.
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Paperwork Reduction Act
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521) because it does not contain any information collection activities.
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Regulatory Flexibility Act
I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. This action will not impose any requirements on small entities. The proposed rule would require the state to adopt and submit SIP revisions to satisfy the statutory requirements that apply to Serious areas, and would not itself directly regulate any small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.
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Unfunded Mandates Reform Act
This action does not contain any unfunded mandate of $100 million or more and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531-1538). This action itself imposes no enforceable duty on any state, local, or tribal governments, or the private sector. The proposed action would reclassify the SJV nonattainment area as Serious nonattainment for the 1997 PM2.5 NAAQS, which would trigger existing statutory timeframes for the state to submit SIP revisions. Such a reclassification in and of itself does not impose any federal intergovernmental mandate. The proposed action would not require any tribes to submit implementation plans.
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Executive Order 13132: Federalism
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). The requirement to submit SIP revisions to meet the 1997 PM2.5 NAAQS is imposed by the CAA. This proposed rule does not alter the distribution of power and responsibilities established in the CAA. Thus, Executive Order 13132 does not apply to this action.
In the spirit of Executive Order 13132 and consistent with EPA policy to promote communications between EPA and state and local governments, EPA specifically solicits comments on this proposed action from state and local officials.
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Executive Order 13175, Consultation and Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure ``meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.'' ``Policies that have Tribal implications'' is defined in the Executive Order to include regulations that have ``substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes.''
Eight Indian tribes are located within the boundaries of the SJV nonattainment area for the 1997 PM2.5 NAAQS: The Big Sandy Rancheria of Mono Indians of California, the Cold Springs Rancheria of Mono Indians of California, the North Fork Rancheria of Mono Indians of California, the Picayune Rancheria of Chukchansi Indians of California, the Santa Rosa Rancheria of the Tachi Yokut Tribe, the Table Mountain Rancheria of California, the Tejon Indian Tribe, and the Tule River Indian Tribe of the Tule River Reservation.
EPA has concluded that this proposed rule might have tribal implications for the purposes of Executive Order 13175, but that it would not impose substantial direct compliance costs upon the tribes, nor would it preempt tribal law. We note that none of the tribes located in the SJV nonattainment area has requested eligibility to administer programs under the Clean Air Act. The proposed rule would affect EPA's implementation of the new source review program because of the lower ``major source'' threshold triggered by reclassification (70 tons per year for direct PM2.5 and precursors to PM2.5). The proposed rule may also affect new or modified stationary sources proposed in these areas that require Federal permits, approvals, or funding. Such projects are subject to the requirements of EPA's General Conformity rule, and Federal permits, approvals, or funding for the projects may be more difficult to obtain because of the lower de minimis thresholds triggered by reclassification.
Given these potential implications, EPA contacted tribal officials during the process of developing this proposed rule to provide an opportunity for the tribes to have meaningful and timely input into its development. On September 30, 2014, we sent letters to leaders of the
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seven tribes with areas of Indian country in the SJV nonattainment area inviting government-to-government consultation on the rulemaking effort. We requested that the tribal leaders, or their designated consultation representatives, provide input or request government-to-
government consultation by October 27, 2014. We did not receive a response from any of the tribes. As noted above, EPA inadvertently did not send a letter to the Tejon Indian Tribe prior to this proposed action. We recognize that the proposed reclassification may be of interest to officials of the Tejon Indian Tribe and we are contacting them presently to offer them an opportunity for government-to-
government consultation. We intend to continue communicating with all eight tribes located within the boundaries of the SJV nonattainment area for the 1997 PM2.5 NAAQS as we move forward developing a final rule. EPA specifically solicits additional comment on this proposed rule from tribal officials.
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Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of ``covered regulatory action'' in section 2-202 of the Executive Order. This proposed action is not subject to Executive Order 13045 because it proposes only to reclassify the SJV nonattainment area as Serious nonattainment for the 1997 PM2.5 NAAQS, which would trigger additional Serious area planning requirements under the CAA. This proposed action does not establish an environmental standard intended to mitigate health or safety risks.
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Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
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National Technology Transfer and Advancement Act
This action is not subject to the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because it does not involve technical standards.
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Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population
Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This proposed action would only reclassify the SJV nonattainment area as Serious nonattainment for the 1997 PM2.5 NAAQS, which would trigger additional Serious area planning requirements under the CAA.
List of Subjects in 40 CFR Part 81
Air pollution control, Incorporation by reference.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 18, 2014.
Jared Blumenfeld,
Regional Administrator, EPA Region 9.
FR Doc. 2015-00309 Filed 1-9-15; 8:45 am
BILLING CODE 6560-50-P
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