# Petition for Writ of Certiorari — Imperial County Air Pollution Control District v. Sierra Club > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1248%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 542 U.S. 919 ## Text Supreme Court, |! FILEC 031334 MAR 17 2004 pr EAICE OF THE CLERK IN THE Supreme Court of the United States IMPERIAL COUNTY AIR POLLUTION CONTROL DISTRICT, PETITIONER Vv. SIERRA CLUB PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI JOHN REESE R. RAYMOND ROTHMAN BINGHAM MCCUTCHEN LLP Counsel of Record Three Embarcadero Center MICHAEL S. MCDONOUGH San Francisco, CA 94111 BINGHAM MCCUTCHEN LLP (415) 393-2000 355 South Grand Avenue Suite 4400 RALPH CORDOVA, JR. Los Angeles, CA 90071 County Counsel (213) 680-6400 County of Imperial, California 940 Main Street Suite 405 E1 Centro, CA 92243 (760) 482-4400 Attorneys for Petitioner LT a IA aa A ae Se LN a a FA PPOs MN CURRY & TAYLOR @ WASH D.C. @ (202) 223-3160 ¢ USSCINFO.COM PO IRONS St LITE | i QUESTIONS PRESENTED The questions presented in this case are: (1) whether the Ninth Circuit Court of Appeals’ de novo review of technical findings of fact made by the Environmental Protection Agency (“EPA”) under Section 179B(d) of the Clean Air Act (“CAA”), 42 U.S.C. § 7509a(d), in an area of EPA’s special expertise, can be reconciled with decisions of this Court and the other federal Circuits; and (2) whether the Ninth Circuit may rely on that de novo, lay interpretation of selected facts to mandate that EPA reclassify the nonattainment area at issue to “serious” nonattainment under CAA Section 179B(d), foreclosing further agency consideration. il RULE 14.1 STATEMENT Petitioner (intervener below) is Imperial County Air Pollution Control District, a governmental agency created by state statute as the body with primary responsibility for the control of air pollution from all non-motor vehicle sources within Imperial County, California. Respondent here (petitioner below) is Sierra Club. Respondent below was EPA. we hc ert st ili - TABLE OF CONTENTS QUESTIONS PRESENTED ....ccccsscssssscccssssssssssssssseececooooosecccc... i RULE 14.1 STATEMENT w.oecccccccsscsccccsssssssssssssssssssssssosssscs.... ii TABLE OF CONTENTS.............. SEERA ee eo Ree ili TABLE OF AUTHORITIES ....sssssssssssssssssssssssssseseeseseessssssss... vii PETITION FOR WRIT OF CERTIORARI cesssssssssssssessssssssss..,.. 1 OPINION AND RULEMAKING BELOW. cessesssssssssssssssssssss...... 1 EIT si satiesttndonhseiveinsusensnenisisiisastesinsveararsanasenc,.. yy - . lv STE Footnotes fnl “State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-10 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. fn2 There are currently seven PM-10 monitoring sites in Imperial County. The Calexico-East monitor was initiated in 1996. The data from this monitor are currently being reviewed by EPA and the California Air Resources Board (CARB) due to siting deficiencies based on federal monitoring guidelines in 40 CFR Part 58, Appendix E. fn3 A windrose is a diagram showing the percentage-of time that wind blows from each compass direction for various ranges of wind speeds. -fn4 The Imperial Valley/Mexicali Cross Border PM-10 Transport Study (Final Report, January 30, 1997, Prepared for EPA Region IX by Desert Research Institute) also provided an analysis of transport for three of the days which exceeded the PM-10 standard. The report concluded that January 19, 1993 was determined to be associated with stagnation conditions, so that little transport took place. January 25, 1993 was determined to be not affected by transport. August 23, 1993 appeared to be dominated by transport. fn5 Modeled annual average concentrations at all of the sites are below 43 pg/m’ for each of the 3 years, 64a assuming only emissions from the United States side of the border. fn6 The Southern California Ozone Study (SCOS) was a large-scale field measurement program carried out in southern California during the summer of 1997 to collect sufficient gerometric data to allow data, analysts and modelers to characterize and simulate ozone formation and fate in the region. Several agencies and others participated during the planning and operational phases of the field study, including GARB, EPA, local air districts, the US Navy, and the marine industry. fn7 Since the applicable attainment date for the CAA section 179B(d) demonstration is December 31, 1994, post 1994 years were not addressed in the State’s 179B(d) demonstration. [Attachments 1 and 2 not reproduced here. The petition contains the relevant Excerpt of Record citations to this material.] HS he Se ROE Bree NRC aN: ERO 65a [Federal Register: October 19, 2001 (Volume 66, Number 203, Pages 53106-53112) ENVIRONMENTAL PROTECTION AGENCY 40 CFR PART 81 [CA058-FOA; FRL-7087-1] Clean Air Act Finding of Attainment; California- Imperial Valley Planning Area; Particulate Matter of 10 Microns or Less (PM-10) AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is taking final action to find that the State of California has established to EPA’s satisfaction that the Imperial Valley Planning Area (Imperial County), a PM-10 moderate nonattainment area, would have attained the national ambient air quality tandards (NAAQS) for particulate matter of ten microns or less (PM-10) by the applicable Clean Air Act (CAA or the Act) attainment date, December 31, 1994, but for emissions emanating from outside the United States, 1.e., Mexico. As a result of this final action, Imperial County will not be subject to a finding of failure to attain and reclassification to serious at this time and will remain a moderate PM-10 nonattainment area. EFFECTIVE DATE: This action is effective on November 19, 2001. 66a ADDRESSES: You can, inspect copies of the administrative record for this action at EPA’s Region 9 office during normal _ business hours. U.S. Environmental Protection Agency, Region 9, Air Division, Planning Office (AIR-2), 75 -Hawthorne Street, San Francisco, California 94105. Electronic Availability: This document is also available as an electronic file on EPA’s Region 9 Web Page at http://www.epa.gov/region09/air. FOR FURTHER INFORMATION CONTACT: Doris Lo, U.S. Environmental Protection Agency, Region 9, Air Division, Planning Office (AIR-2), 75 Hawthorne Street, San Francisco, California 94105, (415) 744-1287, lo.doris@epa.gov. SUPPLEMENTARY INFORMATION: I. Background Imperial County is a moderate PM-10 nonattainment area located on the California border with Mexico, with a December 31, 1994 attainment deadline. Under CAA section 188(b)(2)(A), moderate PM-10 nonattainment areas must be reclassified as serious by operation of law after the statutory attainment date if the Administrator finds that the area has failed to attain the NAAQS. However, CAA section 179(B)(d) provides that any area that establishes to the satisfaction of EPA that it would have attained the PM-10 NAAQS by the applicable attainment date but for emissions emanating from outside the United States shall not be subject to the provisions of CAA section 182(b). 67a Imperial County and the California Air Resources Board submitted evidence that the County would have attained the PM-10 NAAQS but for transport from Mexico. The primary information prepared by the Imperial County Air Pollution Control District (ICAPCD) is “Imperial County PM-10 Attainment Demonstration” (hereafter referred to as the “179B(d) Demonstration”) which was transmitted to EPA by the California Air Resources Board (CARB) on July 18, 2001 letter from Michael P. Kenny, Executive Officer, CARB, to Ms. Laura Yoshii, Acting Regional Administrator, EPA Region 9). Pursuant to CAA section 188(b)(2)(B) of the Act, EPA must publish a notice in the Federal Register identifying those areas that failed to attain the standard and reclassifying the areas to serious. On August 6, 2001, EPA issued two alternative proposals: (1) To find that the State of California had established to EPA’s satisfaction that Imperial County, a PM-10 moderate nonattainment area, would have attained the NAAQS PM-10 by the applicable Clean Air Act attainment date, December 31, 1994, but for emissions emanating from outside the United States, i.e., Mexico. (2) Alternatively, to find that Imperial County did not attain the PM-10 NAAQS by its CAA mandated attainment date. This proposed finding was based on monitored air quality data for the PM-10 NAAQS during the years 1992-1994. A final action would result in a reclassification to serious PM-10 nonattainment for Imperial County. 68a These proposed alternative actions were published in a Federal Register notice (66 FR 42187) on August 10, 2001 (proposed rule or notice of proposed rulemaking, NPR). The 30-day public comment period ended on September 10, 2001. EPA requested public comments on both proposals and received ten comment letters from the following: Sierra Club/EarthJustice Legal Defense Fund (David S. Baron, Attorney) Imperial County Air Pollution Control District (Stephen L. Birdsall, Air Pollution Control Officer) Congressman Duncan Hunter, U.S. House of Representatives, Washington, D.C. 20515-0552 Imperial Valley Vegetable Growers Association (Lauren S. Grizzle, Executive Director) Imperial County Farm Bureau (Lauren S. Grizzle, Executive Director) California Farm Bureau Federation (Cynthia L. Cory, Director, Environmental Affairs) Mar Vista Farms, Inc. (Michael B. Cox, President) Nisei Farmers League (Manuel Cunha, Jr., President) California Cotton Ginners and Growers Association- (Roger A. Isom, Vice President & Director of Technical Services) . ibaa a ~ manent ani TRS SRE ARE PRE ah ee SN ern Ape pata iy: I na i a 3 - PY rs nisl Naa di i as LG SIELEELE AACR A AIR is ike tel Aaa 69a Granite Construction Company (Jeff Mercer, Area manager) All of the commenters supported EPA’s proposed finding of attainment pursuant to section 179B(d) of the CAA, except for the Sierra Club/EarthJustice Legal Defense Fund (Sierra Club). While the Sierra Club raises some important issues, EPA was aware of these issues prior to the proposed rulemaking and has not been convinced by Sierra Club that the State’s 179B(d) demonstration is inadequate and that the finding of nonattainment and reclassification to serious should be finalized. Thus, EPA is finalizing its action to find that the State of California has established that Imperial County would have attained the NAAQS for PM-10 by the applicable CAA attainment date, December 31, 1994, but for emissions emanating from Mexico. Today’s rulemaking provides EPA’s responses to public comments and finalizes EPA’s proposed action. II. Public Comments and EPA Responses A. Sierra Club/EarthJustice Legal Defense Fund (David S. Baron, Attorney) Comments were submitted by the EarthJustice Legal Defense Fund on behalf of the Sierra Club. In general, the Sierra Club opposes our proposed finding of attainment and asserts that the 179B(d) demonstration does not adequately demonstrate attainment but for the emissions emananting from Mexico. The Sierra Club believes we must finalize our proposed finding of 70a nonattainment and reclassification to serious PM-10 nonattainment for Imperial County. 1. CAA Requires Modeling The Sierra Club’s first group of coniments address the need for a modeling demonstration. The Sierra Club asserts that air quality modeling is a requirement under CAA Section 179B(d) and that in order to qualify for a 179B(d) waiver, the state must make a showing that is the equivalent of an attainment demonstration which the Act and EPA’s own regulations and guidelines require to be based on air quality modeling. The Sierra Club then discusses how the State’s air quality modeling does not adequately demonstrate attainment of the 24-hour and annual PM-10 NAAQS due to deficiencies with the modeling inventory and modeling assumptions which are summarized in EPA’s responses below. EPA’s response: EPA disagrees with the Sierra Club that a CAA Section 179(B)(d) waiver must be based on air quality modeling. CAA section 179B(d) does not require air quality modeling for PM-10 nonattainment areas at international borders, and EPA’s guidance relating to serious PM-10 nonattainment areas suggests modeling as one of five methods that may be used to determine attainment but for international transport.fnl In issuing guidance on CAA section 179(B), EPA considered it appropriate to grant states more flexibility in making the “but-for” attainment determination for border areas due to the special difficulties that can be encountered at these areas. Tla For example, it may be particularly difficult for States to acquire the necessary input data for a valid modeling analysis, including monitored meteorological and air quality data, accurate speciated emissions inventories with temporal and spatial breakdown, and information on day-specific emissions, when such data must be collected in areas outside of the U.S. The acquisition of such data is resource intensive both in terms of money and expert staff time, and the exercise may consume years of preparatory work and then require additional time and expense for quality assurance and data preparation and analysis. In cases where the critical modeling input data are not available or are incomplete or inaccurate, EPA believes that Congress could not have intended to disallow areas from presenting, and EPA from approving, non-modeling evidence of “attainment but for transport.” Although modeling input data were recognized to be sparse, the State’s 179B(d) demonstration did attempt to address each of the 5 allowable approaches specified in the General Preamble, including an air quality modeling “but-for” attainment demonstration for both the annual and 24-hour PM-10 NAAQS. As discussed in the proposed rule, EPA did not base the proposed finding of attainment for the 24-hour PM- 10 NAAQS on the State’s air quality modeling demonstration. The sensitivity of the 24-hour PM-10 NAAQS to the modeling inputs, coupled with the lack of model validation, led EPA to conclude that, unlike the annual PM-10 NAAQS, the air quality modeling could not be relied upon for the 24-hour PM-10 NAAQS attainment demonstration. Instead, EPA based its finding of attainment for the 24-hour PM-10 NAAQS on 72a the State’s analysis of monitoring sites, meteorological conditions (which involves an analysis of spatial plots, wind roses and back trajectories) and inventory estimates for both sides of the border. EPA believes that these are valid alternative methods for determining attainment but for international transport (see General Preamble at 59 FR 42001). For the annual PM-10 NAAQS, model performance assessment also raises issues, although these concerns are less than for the 24-hour NAAQS because day- specific modeling inputs and predictions are not needed. Moreover, to determine whether or not Imperial County would have attained the annual PM-10 NAAQS but for international transport does not require modeling precision, due to the fact that the annual arithmetic mean concentrations for 1992-1994 are only slightly above the annual PM-10 NAAQS (51 g/m\3\ at Brawley and 56 g/m\3\ at Calexico Dichot-Grant Street). All that is required of the model in support of a “but for” demonstration is evidence that at least a small portion of the monitored concentrations was due to transport of pollution from Mexico. 2. Adequacy of the State’s Emissions Inventory Input to the Modeling The Sierra Club comments that the State’s modeling inventory is insufficient because it was not developed for PM-10 modeling, does not reflect peak PM-10 levels, is not a “current” and “accurate” inventory, and does not contain data on actual PM-10 emissions, but is based on the SCOS inventory which is adjusted with invalid assumptions (i.e., percentage of TSP that is PM- 10 and correlation of PM-10 emissions to population). 73a EPA Response: While the modeling inventory for Imperial County was not developed specifically for PM- 10 modeling, it does include PM-10 emissions and represents the best available inventory at this time. As discussed in EPA’s Technical Support Document (TSD) for the proposed rule, the modeling inventory was derived from the Southern California Ozone Study (SCOS) modeling inventory for a typical summer day. Seasonal adjustments were made to the inventory, and the inventory was scaled, based on population changes, for the years 1992 to 1994. The use of this modeling inventory to represent average annual PM-10 concentrations is an acceptable approach, but the use of this modeling inventory to represent peak PM-10 days is less reliable because emissions of PM-10 are likely to be higher than the seasonal average on peak days. In other words, this inventory is more reliable for the determining attainment of the annual PM-10 NAAQS than for the 24-hour PM-10 NAAQS. EPA does not agree that the modeling inventory is insufficient because it is based on the SCOS inventory and adjustments made to that inventory (Ze., percentage of TSP that is PM-10 and correlation of PM- 10 emissions to population). As discussed above, the modeling inventory developed is the best available inventory and information at this time. In order to develop a modeling inventory for Imperial County, the State took the SCOS modeling inventory and made adjustments to reflect the PM-10 emissions in Imperial county. For example, the SCOS inventory included emissions of total suspended particulates (TSP). PM-10 is a subset of TSP. In order to to adjust for the SCOS inventory for PM-10 emissions, the State used an adjustment factor of 1.93 which is based on a 74a comparison of the 1997 SCOS inventory to Imperial County’s 1995 PM-10 emissions inventory (best available PM-10 inventory). The State aiso adjusted the inventory for changes in the population since the “vast majority of PM-10 emission in Imperial County are from area sources such as unpaved roads, paved roads and agriculture.”fn2 While these may not be the most precise adjustment techniques for the Imperial County PM-10 modeling inventory, EPA believes these adjustments are reasonable for the annual PM-10 NAAQS. In general, there are many uncertainties in developing PM-10 inventories. This is partly due to intrinsic variability, but also because socioeconomic surrogate data and location-specific data needed to build a spatially and temporally resolved inventory is sometimes not available. However, EPA believes that the fugitive PM-10 emission estimates and the modeling that uses them are an adequate basis for this action. The State is continuously improving and updating inventory information. The inventory used in the State’s demonstration represents the best available PM-10 inventory for the 1992-1994 timeframe. 3. Background Concentration in the Model The Sierra Club comments that there is no basis for using the annual background concentration of 25 g/m? and that it is “the product of pure speculation.” EPA Response: The background concentration level was based on a frequency distribution analysis of measured PM-10 concentrations at monitors in the Imperial County and Mexicali from 1992 to 2000.fn3 75a EPA believes the 25 g/m’ background concentration level is a conservative levei. 4. Secondary Particles in the Model The Sierra Club comments that the State’s modeling demonstration includes no analysis for secondary particle formation. EPA Response: While there is no specific discussion of secondary particulates in EPA’s proposed rule (66 FR 42187), the analysis provided by the state did account for the formation of secondary particulates. See Imperial County PM10 Attainment Demonstration, Chapter III.B, page 4. In addition the Imperial Valley/Mexicali Cross Border PM-10 Transport Study (Transport Study) provides a filter analysis which indicates that secondary particulates are measured in the range of 2 to 4 g/m’® for secondary ammonium sulfates and 2 to 3 g/m® for secondary ammonium nitrates (Transport Study, Summary and Conclusion, page 9-5) and are thus a small portion of the particulate matter in Imperial County. 5. Proof That Mexico Emissions Impact U.S. Monitors and Adequacy of Alternative Demonstration The Sierra Club asserts that the state has faiied to demonstrate that PM-10 violations in Imperial County are actually being caused by emissions from Mexico and that, even if air quality modeling was not required, the state’s “alternative” 179B(d) demonstration (i.e., based on analysis of wind patterns and population densities) is grossly inadequate. The Sierra Club believes that the State’s analysis of wind patterns and population 76a densities does not show that any quantifiable amount of particulates traveled to the U.S. monitors, let alone any amount that would contribute to nonattainment and that there is nothing in the record relating to an actual amount of PM-10 emissions traveling from Mexico to Imperial County. Also, the Sierra Club states that the Imperial Valley/Mexicali Cross Border PM-10 Transport Study (Transport Study), which indicates that international transport is not always the cause of PM-10 violations, were not refuted and are more reliable than the more recent analysis by the state which the Sierra Club claims to be speculative. Finally, the Sierra Club asserts that there is no analysis of the PM-10 transport to Imperial County’s border from places other than Mexico (i.e., on the U.S. side). EPA’s response: The State’s 179B(d) demonstration, which includes a detailed analysis of spatial plots, wind roses and back trajectories for each of the PM-10 exceedance days during 1992-1994, provides the best qualitative analysis of the emissions from Mexico possible for the Imperial County area for the period in question. Filter analyses often can provide more specificity on where the monitoring emissions are coming from but, since the types of PM-10 sources are similar on both sides of the border, analysis of the Imperial County samples would not show what portion of the catch originated on the Mexican side of the border.fn4 The Sierra Club suggests that the analyses found in the State’s 179B(d) demonstration prove nothing about whether or not emissions from Mexico are impacting U.S. monitors. EPA believes that given the available information, the State has made a good argument that T7a Imperial County is being impacted by Mexico emissions. Additional activities (tracer studies, air monitoring studies, establishment of more meteorology stations at border) could have been conducted, but it is not now possible to create information from new studies for the 1992-1994 timeframe. Thus, EPA believes that the State’s 179B(d) analysis of spatial plots, wind roses and back trajectories provides the best determination of PM-10 emissions transport from Mexico. EPA does not have to refute the Transport Study results in order to make this finding of attainment but for international transport. As discussed in the proposed rule, the additional windfield analyses (Attachment 2 to EPA’s TSD, Additional windroses and windfields for January 25, 1993) provided a more detailed analysis, supplementing information from the Transport Study.fn5 The Transport Study is simply an effort to collect air quality data on exceedance days and analyze the data based on wind direction and speed, and the study is thus very similar to the analyses found in the State’s demonstration. The Transport Study indicates that several of the exceedance days appear to have stagnant wind conditions (1/19/93, 1/25/93, 7/7/94, 10/17/94 and 12/16/94), but the State’s demonstration uses more meteorological data and finds evidence that transport from Mexico is likely even with the stagnant conditions at the surface. For each of the exceedances, the State’s analysis took into account additional information not included in the Transport Study. This information included: (a) The number of hours with southerly wind directions that have the potential to carry emissions from Mexico into Imperial County; (b) the back trajectories and back trajectories based on upper-air synoptic wind data, which show the existence 78a of much higher winds from the south that are de- coupled from the surface stagnant conditions, and (c) the windroses developed for all meteorological stations, suggesting that emissions from Mexico _ likely contributed to the concentrations measured at Brawley. Based on this additional information and the further analyses, the State concluded that Imperial County would not have violated the PM-10 NAAQS but for transport from Mexico. In weighing the “but-for” evidence, EPA also considered it important to consider the relatively low level of the 24-hour exceedances (162 g/m*), 175 g/m*, 165 g/m’, 159 g/m’, and 153 g/m*). EPA concedes that information is not available to determine with confidence the exact quantity of PM-10 coming from Mexico, but EPA continues to believe that the State has diligently collected and analyzed available evidence and has successfully demonstrated for each of the exceedance days the probability that Imperial County would not have violated the NAAQS but for the emissions emanating from Mexico. Finally, EPA believes that there were insufficient data to support a modeling assessment of the potential for long range transport from the South coast or other California areas to Mexico and back again to Imperial. The Sierra Club presents no evidence that there is transport from U.S. sources outside of Imperial County. Even if evidence existed that the Imperial County monitors were being impacted by long range transport from within the U.S., such evidence would not invalidate the State’s demonstration that Imperial County would have attained the NAAQS but for emissions emanating from Mexico. 79a 6. Emissions Inventories The Sierra Club asserts that the comparison of emissions inventories between Imperial and Mexicali is inadequate due to the uncertainty in the Mexicali inventory, that the Mexicali inventory has not been analyzed for transportability of particles and that the emissions inventory for Imperial County has never been approved by EPA, and thus cannot be used to support a “but-for” finding. EPA’s response: The comparison of Imperial and Mexicali emissions was intended to provide support for the attainment finding. EPA agrees that there is uncertainty in the Mexicali inventory, however, EPA also believes it is useful to examine all available data for this attainment finding. Even if the Mexicali emissions were one-half of 257, as suggested by the Sierra Club, the emissions in the city of Mexicali (200 square miles) would be about half of the emissions in all of Imperial County (4060 square miles), but the emissions density in Mexicali would still be much greater than in Imperial County. As far as determining the transportability of emissions from Mexicali, as discussed above and in the proposed rule, filter analyses have been examined for the border area and provided some information on the particles characteristics. Finally, as discussed above, the emission inventories used in the State’s 179B(d) demonstration are the most current and best available. EPA plans to take action on the inventories when they are submitted as part of the State Implementation Plan (SIP) for Imperial County. 80a 7. Post-1994 Exceedances The Sierra Club asserts that the 179B(d) determination is inadequate because it fails to consider the post-1994 exceedances. The Sierra Club states that the post-1994 exceedances are numerous, in some cases extreme, and relevant to the attainment but for international transport determination. EPA’s response: EPA believes that the post-1994 exceedances are irrelevant to the determinations at issue. The statutory attainment date for the Imperial County PM-10 moderate nonattainment area is December 31, 1994. EPA believes the State’s 179B(d) demonstration adequately demonstrates attainment by examining the air quality data from 1992-1994. If this demonstration is adequate, reclassification to serious is not required. Section 188(b)(2) provides that: “Within 6 months following the applicable attainment date for a PM-10 nonattainment area, the Administrator shall determine whether the area attained the standard by that date. If the Administrator finds that any Moderate Area is not in attainment after the applicable attainment date * * *” the area shall be reclassified. While the second sentence of section 188(b)(2) contains the language quoted by the commentor “is not in attainment after the applicable attainment date,” it is clear that in the context of the first sentence of the provision, which is the sentence that establishes the duty to make an attainment determination, the duty is to “determine whether the area attained the standard by that date [referring to the phrase “applicable attainment date” in the opening clause of the sentence].” Thus, EPA’s duty is to determine whether the area attained by its attainment date and the 8la language in the second sentence regarding a finding after the attainment date may reasonably be interpreted as referring to the date the finding is made, which would necessarily be after the attainment date, not to the date used in the determination as the benchmark for determining attainment. The question of whether an area should be reclassified is considered along with whether an area has achieved attainment by the attainment date. Thus, the air quality data from the years 1992-1994 are the relevant data for determining whether Imperial County should be reclassified to serious. 8. SIP Requirements Finally, the Sierra Club asserts that a 179B(d) waiver cannot be granted unless all moderate area SIP requirements (e.g. RACM, RACT, New Source Review, etc.) are being met. EPA’s response: As discussed in the EPA’s proposal, this rulemaking does not address the SIP requirements for Imperial County but only the question of whether or not the State has established that Imperial County attained the NAAQS by December 31, 1994, but for international transport. CAA section 179B(d) states that “any State that establishes to the satisfaction of the Administrator * * * that such State has attained the national ambient air quality standard for [PM-10] by the applicable attainment date, but for emissions emanating from outside of the United States, shall not be submit to the provisions of section 7512(b)(2) * * *” which requires reclassification upon failure to attain. This provision does not require a SIP submittal in order for the waiver to be granted. EPA is currently working 82a with the Imperial County Air Pollution Control District and the California Air Resources Board on developing an approvable State Implementation Plan for Imperial County. A draft of this plan was issued for public review in July 2001. B. Other Comments Supporting EPA’s Final Action Besides the Sierra Club, all of the commentors support EPA’s finding of attainment but for international transport and are extremely opposed to the finding of nonattainment and reclassification to a serious PM-10 nonattainment area. -Commentors discussed the overwhelming pollution problem coming from Mexico, the measures their industries have taken to reduce pollution and that it would be unfair to impose additional controls on sources in Imperial County. The Imperial County Air Pollution Control District also provided additional technical analysis supporting the methods used in the State’s 179B(d) demonstration. III. Summary of Final Action EPA’s proposed rule (66 FR 42187) discusses how the State’s 179B(d) demonstration is based on a competently collected and examined set of the relevant available information, and reaches a_ reasoned conclusion that each of the 1992-94 exceedances, which are only slightly above the NAAQS, would likely not have occurred without pollutant transport from Mexico. In summary, EPA continues to believe that CAA section 179B(d) does not mandate a modeling demonstration, and that the State has provided evidence sufficient to show that, but for international 83a transport of PM-10, Imperial County would have attained the annual and 24-hour PM-10 NAAQS by the December 31, 1994 deadline. IV. Administrative Requirements A. Executive Order 12866 Under E.O. 12866, 58 FR 51735 (October 4, 1993), EPA is required to determine whether regulatory actions are significant and therefore should be subject to OMB review, economic analysis, and the requirements of the Executive Order. The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may meet at least one of the four criteria identified in section 3(f), including, (1) have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a . sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients therof; or (4) raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order. EPA has determined that the final finding of attainment pursuant to CAA section 179B(d) would result in none of the effects identified in section 3(f). A finding of attainment under section 179B(d) of the CAA dees not impose any additional requirements on an 84a area. This actions does not, in-and-of-itself, impose any new requirements on any sectors of the economy. B. Executive Order 13211 The final finding of attainment under CAA 179B(d) is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 Fed. Reg. 98355 (May 22, 2001)) because it is not a significant regulatory actions under Executive Order 12866. C. Executive Order 13045 Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. The final finding of attainment under CAA 179B(d) is not subject to Executive Order 13045 because it does not involve decisions intended to _ mitigate environmental health or safety risks. 85a D. Executive Order 13132 Executive Order 13132, “Federalism,” (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612, “Federalism,” and 12875, “Enhancing the Intergovernmental Partnership.” Executive Order 13132 requires EPA to deve'op an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 18132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation. The final finding of attainment will not have substantial direct effects on California, on the relationship between the national government and California, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. As stated above, a finding of attainment 86a under section 179B(d) of the CAA does not impose any additional requirements on an area. This action does not, in-and-of-itself, impose any new requirements on any sectors of the economy. Thus, the requirements of section 6 of the Executive Order do not apply to this final action. E. Executive Order 13175 Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 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.” The final finding of attainment under CAA 179B(d) does not have tribal implications. For the reasons discussed above, the final action will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule. 87a F’. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small _ businesses, small not-for-profit enterprises, and small governmental jurisdictions. As discussed above, the final finding of attainment under CAA 179B(d) does not impose additional requirements on small entities. Therefore, I certify that this final action will not have a significant economic impact on a substantial number of small entities. G. Unfunded Mandates Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. 88a With respect to EPA’s final finding of attainment under CAA 179B(d), EPA notes that this actions in-and-of itself establishes no new requirements. Furthermore, EPA is not directly establishing any regulatory requirements that may significantly impact or uniquely affect small governments, including tribal governments. Thus, EPA is not obligated to develop under section 203 of UMRA a small government agency plan. H. National Technology Transfer and Advancement Act Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical. EPA believes that VCS are inapplicable to today’s final action because they do not require the public to perform activities conducive to the use of VCS. I. Submission to Congress and the Comptroller General 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 89a submit a report containing this rule 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 rule is not a “major” rule as defined by 5 U.S.C. 804(2). J. Petitions for Judicial Review Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 18, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Authority: 42 U.S.C. 7401-7671q. Dated: October 9, 2001. Sally Seymour, Acting Regional Administrator, Region IX. [FR Doc. 01-26406 Filed 10-18-01; 8:45 am] 90a BILLING CODE 6560-50-P Footnotes fnl EPA’s guidance appears in “State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-10 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. The guidance lists 5 types of information that could be used to qualify for treatment under section 179B, and provides that “States may use one or more of these types of information or other techniques, depending on their feasibility and applicability, to evaluate the impact of emissions emanating from outside the U.S. on the nonattainment area.” The General Preamble goes on to note that “the first 3 examples do not require the State to obtain information from a foreign country.” Only the fifth method employs modeling. 59 FR 42001. As discussed in the proposed action, the State submitted information addressing each of the 5 methods. 66 FR 42189-90. fn2 See the State’s 179B(d) demonstration (Chapter III.B. Modeling Emissions Inventory) for more detailed information on the how the State’s modeling inventory was developed. fn3 See the State’s 179B(d) demonstration (Chapter II.D. Background Concentrations) for more information. fn4 As discussed in the proposed rule, the 1992-1993 Imperial Valley/Mexicali Cross Border PM-10 9la Transport Study (Final Report, January 30, 1997) includes an analysis of the particles collected in areas within Imperial County where violations have been recorded. This sample analysis determined that geological dust (70-90%), motor vehicle exhaust (10- 15%) and vegetative burning (10%) account for the highest contribution to PM-10 concentrations. These are the predominant emissions sources on both sides of the border. Thus, the filter analysis by itself could not be used to determine the extent to which violations might result from international transport. fn5 See Attachment 2 to EPA’s TSD, Additional windroses and windfields for January 25, 1993. 92a (Federal Register: August 16, 1994 (Volume 59, Number 157, Pages 41998-42002) | ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [FRL-5052-2] State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 AGENCY: Environmental Protection Agency (EPA). ACTION: Addendum to General Preamble for future proposed rulemakings. SUMMARY: This addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 principally describes EPA’s preliminary views on how the Agency should interpret various provisions of title I with regard to requirements for PM-10 (particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers) serious nonattainment area State implementation plans (SIP’s). This document also addresses policy and guidance on attainment date waivers potentially applicable to all areas that have been designated nonattainment for PM-10, waivers of certain requirements applicable to PM-10 serious nonattainment areas, and requirements for international border areas in PM-10 nonattainment 93a areas. Although the guidance includes’ various statements that States must take certain actions, these statements are made pursuant to EPA’s preliminary interpretations, and thus do not bind States and the public as a matter of law. This addendum is an advance notice of how EPA generally intends to take action on SIP submissions and to interpret various PM-10 related title I provisions. FOR FURTHER INFORMATION CONTACT: Charlene E. Spells, Air Quality Management Division, Mail Drop 15, Office of Air Quality Planning and Standards, U.S. EPA, Research Triangle Park, North Carolina 27711, (919) 541-5255. ADDRESSES: References cited herein are available from the Public Docket No. A-92-23. The docket is located at the Air and Radiation Docket and Information Center, Room M-1500, Waterside Mall, Mail Code 6102, 401 M Street SW., Washington, DC 20460. The docket may be inspected from 8:30 a.m. to 12 noon and from 1:30 p.m. to 3:30 p.m. on weekdays, except for legal holidays. A reasonable fee may be charged for copying. Supplementary Information: Table of Contents I. Introduction II. Designations and Classifications A. Designations B. Classifications C. Reclassifications D. Appendix K and Waivers 94a ITI. International Border Areas A. Statutory Requirement B. Policy IV. Serious Area SIP Requirements V. Waivers for Certain PM-10 Nonattainment Areas A. Historical Perspectives B. Waiver Provisions C. Application of Waiver Provisions D. Waiver Policy Description VI. Best Available Control Measures (BACM) A. Requirement for BACM B. EPA’s Historical Interpretation of Control Technology Terminology C. BACM for Serious PM-10 Nonattainment Areas D. Procedures for Determining BACM E. Selection of BACM for Area Sources F’. Selection of Best Available Control Technology (BACT) for Point Sources VII. Contingency Measures VIII. Quantitative Milestones and Reasonable Further Progress A. General Discussion B. Reasonable Further Progress C. Quantitative Milestones IX. Other Requirements A. Executive Order 12866 B. Regulatory Flexibility Act In accordance with 1 CFR 5.9(c), this document is published in the proposed rules category. I. Introduction Issues are discussed in this document regarding policy and guidance that will be applicable to areas that have 95a been designated nonattainment for PM-10 and reclassified as serious areas. This document also discusses issues regarding policy and guidance on attainment date waivers potentially applicable to all areas that have been designated nonattainment for PM- 10, as well as policy and guidance on waivers of certain other requirements applicable to PM-10 serious nonattainment areas, and _ requirements for international border areas in PM-10 nonattainment areas. Initially, all areas designated as nonattainment for PM- 10 are classified as moderate areas (see section 188(a) of the Clean Air Act (Act)).fnl Subsequently, in accordance with section 188(b) of the Act, “The Administrator may reclassify as a serious PM-10 nonattainment area * * * any area that the Administrator determines cannot practicably attain the national ambient air quality standard for PM-10 by the attainment date (as prescribed in subsection (c)) for moderate areas” or any area that fails to timely attain. The EPA took final action on January 8, 1993 to reclassify 5 moderate areas that were initially designated as nonattainment for PM-10 upon enactment of the 1990 Amendments (see 58 FR 3334). The EPA is considering reclassifying additional areas from moderate to serious. This guidance document is being published as an addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 (General Preamble) published April 16, 1992 (57 FR 13498).fn2 Among other things, this PM-10 nonattainment area guidance document describes EPA’s preliminary views on how EPA should 96a interpret various provisions of title I with regard to requirements for PM-10 serious area SIP’s. Although the guidance includes various statements that States must take certain actions, these statements are made pursuant to EPA’s preliminary interpretations, and thus do not bind the States and the public as a matter of law. Of course, the use of prescriptive language is appropriate in those instances where the policy is simply reiterating statutory mandates which provide that States must take certain actions. Possible approaches to implementing the provisions in section 179B applicable to international border areas, general SIP requirements of section 172(c), the specific requirements in subpart 4 of part D of title I in serious PM-10 nonattainment areas, the issues involved and the means of resolving those issues are discussed in the following sections. The topics discussed include SIP requirements such as provisions to assure that best available control measures (BACM) are implemented; waivers for areas impacted by nonanthropogenic sources; treatment of international border areas; requirements for quantitative milestones, reasonable further progress (RFP) and contingency measures. II. Designations and Classifications A. Designations Section 107(d) of the Act provides generally for the designation of areas of each State as attainment, nonattainment or unclassifiable for each pollutant for which there is a national ambient air quality standard (NAAQS). Certain areas meeting the qualifications of section 107(d)(4)(B) of the Act were designated 97a nonattainment for PM-10 by operation of law upon enactment of the 1990 Amendments (initial PM-10 nonattainment areas). A Federal Register notice announcing all of the areas designated nonattainment for PM-10 at enactment and classified as moderate was published on March 15, 1991 (56 FR 11101). A follow-up notice correcting some of these area designations was published August 8, 1991 (56 FR 37654). The nonattainment areas were formally codified in 40 CFR part 81, effective January 6, 1992 (56 FR 56694, November 6, 1991). All those areas of the country not designated nonattainment for PM-10 at enactment were designated unclassifiable (see section 107(d)(4)(B)(iii) of the Act). B. Classifications Once an area is designated nonattainment, section 188 of the Act outlines the process for classification of the area and establishes the area’s attainment date. In accordance with section 188(a), all PM-10 nonattainment areas are initially classified as moderate by operation of law upon their designation as nonattainment. C. Reclassifications 1. General Conditions A moderate area can subsequently be reclassified as a serious nonattainment area under two. general conditions. First, EPA has general discretion under section 188(b)(1) to reclassify a moderate area as a serious area at any time the Administrator determines 98a the area cannot practicably attain the NAAQS by the statutory attainment date for moderate areas.fn3 Second, under section 188(b)(2) a moderate area is reclassified as serious by operation of law after the statutory attainment date has passed if the Administrator finds that the area has not attained the NAAQS. The EPA must publish a Federal Register notice identifying the areas that have failed to attain and were reclassified, within 6 months following the attainment date (see section 188(b)(2)(B)). 2 Reclassification of Initial PM-10 Nonattainment Areas Section 188(b)(1)(A) provides an accelerated schedule by which EPA is to reclassify appropriate initial PM-10 nonattainment areas. The EPA proposed on November 21, 1991 (56 FR 58656) to reclassify 14 of the 70 initial moderate areas as serious. The 14 areas EPA proposed to reclassify were identified largely based on the magnitude and frequency of ambient PM-10 measurements above the 24-hour NAAQS of 150 micrograms per cubic meter (g/m3) during calendar years 1988-1990. The EPA took final action on January 8, 1993 (58 FR 3334) to reclassify 5 of the 14 areas. The final decision to reclassify the 5 areas was based on the criteria utilized in the proposal, comments received in response to the proposal and on EPA’s preliminary review of the SIP’s for the areas. In the future, EPA anticipates that, generally, any decision to reclassify an initial PM-10 nonattainment area before the attainment date will be based on specific facts or circumstances demonstrating that the 99a NAAQS cannot practicably be attained in the area by December 31, 1994 (the statutory attainment date specified in section 188(c)(1) for initial PM-10 nonattainment areas). 3. Reclassification of Future PM-10 Nonattainment Areas Section 188(b)(1)(B) provides a timeframe within which EPA is to reclassify appropriate areas designated nonattainment for PM-10 subsequent to enactment of the 1990 Amendments. Appropriate areas are to be reclassified as serious within 18 months after the required date for the State’s submission of a moderate area PM-10 SIP.fn4 The statute requires that these moderate area PM-10 SIP’s be submitted within 18 months after the area is designated nonattainment (see section 189(a)(2)(B)). Taking these provisions together, the statute thus requires that EPA reclassify appropriate PM-10 moderate areas designated nonattainment after 1990 as serious within 3 years of such designation. Because the moderate area SIP’s are due before this reclassification deadline, EPA anticipates that any determination that such areas should be reclassified will be based upon facts contained in the moderate area SIP demonstrating that the NAAQS cannot practicably be attained by the statutory deadline. The EPA may also consider reclassifying moderate areas for which a SIP has not been submitted whenever it becomes apparent (e.g., because of an extensive delay in submitting the SIP) that an area cannot practicably attain the standards by the applicable attainment date. The EPA may also determine that an area cannot 100a practicably attain the standards by the applicable date when the State submits an incomplete or otherwise inadequate SIP for the area (i.e., a SIP which would not assure timely attainment) and the State does not act expeditiously to correct such deficiencies. The EPA does not believe that generally reclassifying moderate areas as serious rewards areas which delay development and implementation of PM-10 control measures. Rather, EPA believes its policy creates an incentive for the timely submittal and effective implementation of moderate area SIP requirements and facilitates the PM-10 attainment objective. For example, if an area that fails to submit a timely moderate area SIP is reclassified, this does not obviate the requirement that the area submit and implement the moderate area SIP requirements. Accordingly, in addition to reclassifying such areas, EPA would also determine that the State had failed to submit a PM-10 SIP and the area could be subject to sanctions under sections 110(m) and 179 for its delay. As provided under section 179(a) of the Act, States containing areas for which EPA has made such determinations have up to 18 months from EPA’s determination to submit a complete plan or plan revision before EPA is required to impose either the highway funding sanction or the requirement to provide two-to-one new source offsets described in section 179(b). If the deficiency has not been corrected 6 months after the first sanction applies, then the second sanction must apply.fn5 The EPA’s determination also triggers a requirement for EPA to impose a Federal implementation plan under section 110(c)(1) of the Act. In conjunction with the possible imposition of sanctions, EPA may issue a determination to reclassify the area to serious. 10la D. Appendix K and Waivers Appendix K to 40 CFR part 50 provides guidance on the interpretation of ambient air quality data to determine the air quality status of an area. Appendix K and accompanying guidance (both preceding the 1990 Amendments to the Act) provide in part that measured exceedances of the PM-10 NAAQS which are believed to be influenced by uncontrollable events caused by natural sources of particulate matter or by events that are not expected to recur at a given location are flagged and excluded from decisions as to whether or not the area should be designated nonattainment.fn6 Therefore, if it is established that exceedances are caused by natural sources, a State may be permitted to avoid designating the area as nonattainment, even though the exceedances are expected to recur. The savings provision of section 193 of the amended Act provides, among other things, that regulations and guidance promulgated or issued by the Administrator prior to enactment of the 1990 Amendments are to remain in effect according to their terms except to the extent that they are inconsistent with any provision of the amended Act. Section 188(f) of the amended Act provides EPA with the discretionary authority to waive a specific date of attainment for a PM-10 nonattainment area where it is determined that nonanthropogenic sources contribute significantly to the violation of the standard in the area, and to waive certain nonattainment area SIP requirements where the Administrator determines that anthropogenic sources of PM-10 do not contribute significantly to the violation of the standard in the area. These provisions take as a fundamental premise that areas experiencing 102a violations of the NAAQS due to nonanthropogenic sources are to be designated as nonattainment. If areas were permitted to avoid being designated as nonattainment because their violations are caused in whole or part by uncontrollable natural events, then this statutory provision would have to be read as having no legal effect or significance. However, this would violate canons of statutory construction, which direct that statutory language not be treated as mere surplusage. Consequently, although appendix K appears to be preserved in part by section 193, the provision permitting the treatment of “uncontrollable events caused by natural sources” as exceptional events, and therefore excludable from nonattainment decisions, is inconsistent with the provisions of section 188(f) and should therefore be regarded as no longer having legal effect. Similarly, any EPA guidance permitting such exclusion of these events is inconsistent with the amended Act. For this reason, exceedances which are attributable to uncontrollable nonanthropogenic events may not be discounted or deweighted in any manner, but must be fully considered in determining whether violations of the NAAQS have occurred and whether designation as nonattainment is warranted. Future determinations relevant to exceptional events should therefore focus on the remaining type of exceptional event identified under section 2.4 of 40 CFR part 50, appendix K, namely whether the events--anthropogenic or nonanthropogenic—are likely to recur at the same location. The EPA plans to make perfunctory modifications to section 2.4 of 40 CFR part 50, appendix K. In addition, 103a guidance on the interpretation of air quality data believed to be influenced by special events and conditions will be addressed in a separate publication that will replace the 1986 Exceptional Events Guideline. III. International Border Areas A. Statutory Requirement Section 818 of the 1990 Amendments added a new section, 179B, to subpart 1, part D of title I. Section 179B applies to areas that could attain the relevant NAAQS by the statutory attainment date but for emissions emanating from outside the United States (U.S.). For PM-10 nonattainment areas, section 179B(a) provides that EPA mist approve the moderate area SIP if (1) the SIP meets all the applicable requirements under the Act other than a requirement that such plan or revision demonstrate attainment and maintenance of the PM-10 NAAQS by the applicable attainment date, and (2) the State demonstrates to EPA’s satisfaction that the SIP would be adequate to attain and maintain the PM-10 NAAQS by the attainment date but for emissions emanating from outside the U.S. In addition, section 179B(d) provides that if a State demonstrates that an area would have timely attained the PM-10 NAAQS but for emissions emanating from outside the U.S., the area must not be subject to the reclassification provisions of section 188(b)(2). Section 188(b)(2) provides that any moderate PM-10 nonattainment area that EPA determines is not in attainment after the applicable attainment date shall be reclassified to serious by operation of law. Therefore, the statute provides that areas that could attain but for emissions 104a emanating from outside the U.S. must not be reclassified as serious after failing to attain by the applicable date.fn7 B. Policy Assuming that a plan or revision meets all applicable requirements, the State must show that an area is eligible to have its SIP approved and not be reclassified as serious under section 179B by evaluating the impact of emissions emanating from outside the U.S. and demonstrating that the SIP would bring about attainment but for those emissions. Several types of information may be used to evaluate the impact of emissions emanating from outside the U.S. The EPA will consider the information presented by the State for individual nonattainment areas on a case-by-case basis in determining whether an area may qualify for treatment under section 179B. Five examples of such _ information are listed below in increasing order of sophistication (the State may use one or more of these types of information or other techniques, depending on their feasibility and applicability, to evaluate the impact of emissions emanating from outside the U.S. on the nonattainment area; the first three examples do not require the State to obtain information from a foreign country): 1. Place several ambient PM-10 monitors and a meteorological station, measuring wind speed and direction, in the U.S. nonattainment area near the international border.fn8 Evaluate and quantify any changes in monitored PM-10 concentrations with a change in the predominant wind direction. 105a 2. Comprehensively inventory PM-10 emissions within the U.S. in the vicinity of the nonattainment area and demonstrate that the impact of those sources on the nonattainment area after application of reasonably available controls does not cause the NAAQS to be exceeded. This analysis must include an influx of background PM-10 in the area. Background PM-10 levels could be based, for-example, on concentrations measured in a similar nearby area not influenced by emissions from outside the U.S. 3. Analyze ambient sample filters for specific types of particles emanating from across the border (although not required, characteristics of emissions from foreign sources may be helpful). 4. Inventory the sources on both sides of the border and compare the magnitude of PM-10 emissions originating within the U.S. to those emanating from outside the US. 5. Perform air dispersion and/or receptor modeling to quantify the relative impacts on the nonattainment area of sources located within the U.S. and of foreign sources of PM-10 emissions (this approach combines information collected from the international emission inventory, meteorological stations, ambient monitoring network, and analysis of filters). In addition to demonstrating that the SIP for the area would be adequate to timely attain and maintain the NAAQS but for emissions emanating outside the U.S., the SIP must continue to meet all applicable moderate area SIP requirements in order to qualify for the special SIP approval under section 179B. Among other 106a things, the SIP must provide for the implementation of reasonably available contro! measures (RACY), including reasonably available control technology (RACT) (see 57 FR 13540). In international border areas, RACM/RACT must be implemented to the extent necessary to demonstrate attainment by the applicable attainment date if emissions emanating from outside the U.S. were not included in the analysis. The EPA believes that this interpretation of the degree of RACM the State is required to implement in moderate PM-10 areas affected by emissions emanating from outside the U.S. is consistent with the purpose of section 179B. By directing EPA, under section 179B, to approve the plan or plan revision of a moderate PM-10 area which shows it would attain the NAAQS but for foreign emissions and by excluding such an area from reclassification to serious, Congress clearly wanted to avoid penalizing States containing such areas by not making them responsible for control of emissions emanating from a foreign country over which they have no jurisdiction. Moreover, by excluding the area from reclassification, Congress also elected to avoid subjecting such areas to the more stringent control measures applicable in serious PM-10 areas. In addition, as set forth in section 179B(a)(2), the second condition which must be met before EPA may approve a moderate area plan showing attainment but for foreign emissions, by its plain terms, requires the State to establish only that the plan submitted would be “adequate” to timely attain and maintain the NAAQS, but for emissions from outside the U.S. Nothing in section 179B relieves the State from meeting all its applicable moderate area PM-10 SIP requirements, including the requirement to implement RACM. Nonetheless, if, in doing so, States containing such an 107a area were also required, because of contributions to PM-10 violations caused by foreign emissions, to shoulder more of a regulatory and economic burden than States not similarly affected (i.e., by implementing measures which go well beyond those which the SIP demonstrates would otherwise be adequate to timely attain and maintain the PM-10 NAAQS) such a requirement would unfairly penalize States containing international border areas and effectively undermine the purpose of section 179B. Indeed, to the extent an affected State can satisfactorily demonstrate that implementation of such measures clearly would not advance the attainment date, EPA could conclude they are unreasonable and hence do not constitute RACM. Notwithstanding the above, in light of the overall health and clean air objectives of the Act, EPA does encourage affected States to reduce emissions beyond the minimum necessary to satisfy the “but for” test in order to reduce the PM-10 concentrations to which their populations are exposed. The SIP for an international border area must also include contingency measures as required under section 172(c)(9) of the Act. Under section 179B(a)(1), such SIP’s must meet “all the requirements applicable to it under the Act” except that they may demonstrate timely attainment by discounting emissions emanating from outside the U.S. Contingency measures are additional measures included in the SIP that can be undertaken to reduce emissions if the area fails to make RFP or to attain the primary NAAQS by the applicable attainment date. In international border areas, EPA will not require the contingency measures for PM-10 to be implemented after the area fails to attain if EPA determines that the area would have attained the NAAQS, but for emissions emanating from outside the U.S. However, 108a the EPA will require contingency measures to be implemented if it determines that the area failed to make RFP in achieving the required reductions in PM- 10 emissions from sources within the U.S., or if the area does not, in fact, obtain the emission reductions that were necessary to demonstrate timely attainment of the NAAQS, but for emissions emanating from outside the U.S. IV. Serious Area SIP Requirements The Act requires States to submit several SIP revisions, as necessary, providing for implementation of increasingly stringent control measures and demonstrating when those control measures will bring about attainment of the PM-10 NAAQS. The first SIP revision was due November 15, 1991 for the initial ‘ moderate PM-10 nonattainment areas. For areas redesignated nonattainment for PM-10 in the future under section 107(d)(8), the first SIP revision will be due within 18 months after the area is redesignated (see section 189(a)(2)). This SIP revision must, among other things, provide for implementation of RACM on sources in the area (see sections 189(a)(1)(C) and 172(c)(1)). All available technologically and economically feasible control measures would be considered RACM, and therefore reasonable for adoption, for areas that cannot attain the NAAQS by the applicable attainment date (December 31, 1994 for initial moderate PM-10 nonattainment areas) (see 57 F'R 13544).fn9 If EPA determines that a moderate area cannot practicably attain the NAAQS by the applicable attainment date (or determines the area has failed to 109a attain) and reclassifies the area as a_ serious nonattainment area under section 188(b), a second SIP revision for the area is required under section 189(b). This revision must, among other things, include provisions to assure that BACM (including BACT) will be implemented in the area (see section 189(b)(1)(B)). In addition, a demonstration (including air quality modeling) must be submitted showing that the plan will attain the NAAQS either by the applicable attainment date or, if an extension is granted under section 188(e), by the most expeditious alternative date practicable (see section 189(b)(1)(A)). The SIP revisions to require the implementation of BACM must be submitted to EPA within 18 months after an area is reclassified as serious (see section 189(b)(2)). The BACM are to be implemented no later than 4 years after an area is reclassified (see section 189(b)(1)(B)). The EPA’s policies regarding the requirement to implement BACM in serious areas are discussed in section VI of this document. The serious area attainment demonstration required under section 189(b)(1)(A) must be submitted to EPA within 4 years after an area is reclassified based on a determination by EPA that the area cannot practicably attain the NAAQS by the statutory deadline for moderate areas. It is due within 18 months after an area is reclassified for actually having failed to attain the NAAQS by the moderate area attainment date (see section 189(b)(2)). The new attainment date for initial PM-10 nonattainment areas that are reclassified as serious is to be as expeditious as practicable but not later than 110a December 31, 2001. For areas that are designated nonattainment for PM-10 in the future and subsequently become serious, the attainment date is to be as expeditious as practicable but no later than the end of the tenth calendar year beginning after the area’s designation as nonattainment (see _ section 188(c)(2)). If the State demonstrates to the satisfaction of EPA that attainment by the statutory deadline for serious areas (as set forth in section 188(c) of the Act) is impracticable, the State must demonstrate that the SIP provides for attainment by the most expeditious alternative date practicable. The State may apply to EPA for a single extension of the serious area attainment date, under section 188(e) of the Act, not to exceed 5 years beyond the serious area attainment date. A State requesting an extension under section 188(e) for an area must, among other things, demonstrate 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. The EPA intends to issue guidance in the future, as appropriate, on applying for an extension of the serious area attainment date. If a serious area fails to attain by the applicable attainment date (which may be an extended attainment date), another SIP revision is required within 12 months that provides for attainment and until then for annual reductions in PM-10 or PM-10 precursor emissions within the area of not less than 5 percent of the amount of such emissions as reported in the most llla recent emission inventory for the area (see section 189(d)). In addition to the specific PM-10 SIP requirements contained in subpart 4 of part D, title I, States containing serious areas must meet all of the applicable general SIP requirements set forth in section 110(a)(2) and the nonattainment area SIP requirements set forth in subpart 1 of part D, title I, to the 2xtent that these provisions are not otherwise subsumed by, or integrally related to, the more specific PM-10 requirements.fn10 The general SIP requirements applicable to all nonattainment areas are discussed in the General Preamble at 57 FR 13556-13557. The requirements specifically applicable to serious areas under subpart 4 are found primarily in section 189. Those requirements include: a. Current actual and allowable emissions inventories that meet EPA guidelines fnll (see section VI.D. below). b. Submission of a SIP, under section 189(b)(1)(A), that includes a demonstration that the plan provides for attainment by the applicable attainment date (December 31, 2001 for the areas initially designated nonattainment for PM-10 by operation of law under section 107(d)(4) and no later than the end of the tenth year beginning after the area’s redesignation for areas subsequently redesignated nonattainment), or a demonstration that attainment by the above date is not practicable and that the plan provides for attainment by the most expeditious alternative date practicable.fn12 112a Footnotes fnl The 1990 Amendments to the Clean Air Act made significant changes to the air quality planning requirements for areas that do not meet (or that significantly contribute to ambient air quality in a nearby area that does not meet) the PM-10 national ambient air quality standards (see Pub. L. No. 101-549, 104 Stat. 2399). References herein are to the Clean Air Act, as amended, 42 U.S.C. 7401, et seq. fn2 A supplemental notice was published at 57 FR 18070, April 28, 1992, which provides certain appendices to the April 16, 1992 General Preamble. Subsequent references in this notice to the General Preamble are inclusive of both documents. fn3 The EPA’s interpretation of the reclassification provisions in section 188(b)(1) is discussed in detail in section III.C.1(b) of the General Preamble (57 FR at 13537-38). fn4 This directive does not restrict EPA’s general authority, but simply specifies that it is to be exercised, as appropriate, in accordance with certain dates. fn5 See 58 FR 51270 (October 1, 1993). fn6 See section 2.4 of appendix K of 40 CFR part 50 and “The Guideline on the Identification and Use of Air Quality Data Affected by Exceptional Events,” EPA- 450/4-86-007, July 1986. fn7 As noted, section 179B(d) states that areas demonstrating attainment of the standards, but for 113a emissions emanating from outside the U.S., shall not be subject to section 188(b)(2) (reclassification for failure to attain). By analogy to this provision and applying canons of statutory construction, EPA will not reclassify before the applicable attainment date areas which can demonstrate attainment of the standards, but for emissions emanating from outside the U.S. (see section 188(b)(1)). First, section 179B evinces a general congressional intent not to penalize areas where emissions emanating from outside the country are the but-for cause of the PM-10 nonattainment problems. Further, if EPA were to reclassify such areas before the applicable attainment date, EPA, in effect, would be reading section 179B(d) out of the statute. Specifically, if EPA proceeded to reclassify, before the applicable attainment date, thuse areas qualifying for treatment under section 179B, an area would never be subject to the provision in section 179B(d) which prohibits EPA from reclassifying such areas after the applicable attainment date. Canons of statutory construction counsel against interpreting the law such that language is rendered mere surplusage. Finally, note that section 179B(d) contains a clearly erroneous reference to carbon monoxide instead of P®.-10, and that this section contains other clear errors ‘*e, e.g., section 179B(c) reference to section 186(b)(9), which does not exist). fn8 See 40 CFR part 58 for guidance on locating PM-10 monitors and “On-site Meteorological Program Guidance for Regulatory Modeling Applications,” EPA- 450/4-87-013, June 1987 for guidance on _ locating meteorological stations. fn9 Note that if it can be shown that measures are unreasonable because emissions from the sources 114a affected are insignificant or de minimis, such measures may be excluded from consideration as they would not represent RACM for that area (see 57 FR 13540). Moreover, in international border areas, measures which go beyond those which the SIP demonstrates would be adequate to attain and maintain the standard, but for emissions emanating from outside the U.S., would not be considered “reasonably” available--and therefore would not be required by RACM--since they would not advance the attainment date (although States may elect to implement such measures in order to reduce the public’s exposure to PM-10) (see discussion under International Border Areas of this guidance document). fn10 See 57 FR 13538 (April 16, 1992). fnl1 “PM-10 Emission Inventory Requirements,” EPA- 450/2-93-XX, U.S. Environmental Protection Agency, Research Triangle Park, NC, 1993. fn12 Subsequent to adopting requirements for BACM shortly after the nonattainment area is reclassified as serious, it may be necessary for the State to adopt additional control measures in order to demonstrate that the SIP provides for attainment of the PM-10 NAAQS in accordance with section 189(b)(1)(A)(i). If the State demonstrates, in accordance with section 189(b)(1)(A)@ii), that attainment by the applicable serious area attainment date is impracticable and seeks an extension of the attainment date pursuant to section 188(e), the State must demonstrate to the best of its ability 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 115a practice in any State, and can be feasibly implemented in the area. area ream 116a Code of Federal Regulations Title 40, Section 50.6 § 50.6 National primary and secondary ambient air quality standards for PM10. (a) The level of the national primary and secondary 24- hour ambient air quality standards for particulate matter is 150 micrograms per cubic meter g/m3), 24- hour average concentration. The standards are attained when the expected number of days per calendar year with a 24-hour average concentration above 150g/m3, as determined in accordance with appendix K to this part, is equal to or less than one. (b) The level of the national primary and secondary annual standards for particulate matter is 50 micrograms per cubic meter g/m3), annual arithmetic mean. The standards are attained when the expected annual arithmetic mean concentration, as deter-mined in accordance with appendix K to this part, is less than or equal to 50 g/m3. (ec) For the purpose of determining attainment of the primary and secondary standards, particulate matter shall be measured in the ambient air as PM10 (particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers) by: (1) A reference method based on appendix J and designated in accordance with part 53 of this chapter, or (2) An equivalent method designated in accordance with part 53 of this chapter. 117a [52 FR 24663, July 1, 1987, as amended at 62 FR 38711, July 18, 1997; 65 FR 80779, Dec. 22, 2000] 118a 42 U.S.C. Section 7407. Air quality control regions (a) Responsibility of each State for air quality; submission of implementation plan Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State by submitting an implementation plan for such State which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in such State. (b) Designated regions For purposes of developing and carrying out implementation plans under section 7410 of this title - (1) an air quality control region designated under this section before December 31, 1970, or a region designated after such date under subsection (c) of this section, shall be an air quality control region; and (2) the portion of such State which is not part of any such designated region shall be an air quality control region, but such portion may be subdivided by the State into two or more air quality control regions with the approval of the Administrator. (c) Authority of Administrator to designate regions; notification of Governors of affected States The Administrator shall, within 90 days after December 31, 1970, after consultation with appropriate State and local authorities, designate as an air quality control region any interstate area or major intrastate area which he deems necessary or appropriate for the attainment and maintenance of ambient air quality standards. The Administrator shall immediately notify the Governors of the affected States of any designation made under this subsection. (d) Designations 119a (1) Designations generally (A) Submission by Governors of initial designations following promulgation of new or revised standards By such date as the Administrator may reasonably require, but not later than 1 year after promulgation of a new or revised national ambient air quality standard for any pollutant under section 7409 of this title, the Governor of each State shall (and at any other time the Governor of a State deems appropriate the Governor may) submit to the Administrator a list of all areas (or portions thereof) in the State, designating as - (i) nonattainment, any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant, (ii) attainment, any area (other than an area identified in clause (i)) that meets the national primary or secondary ambient air quality standard for the pollutant, or (iii) unclassifiable, any area that cannot be classified on the basis of available information as meeting or not meeting the national primary or secondary ambient air quality standard for the pollutant. The Administrator may not require the Governor to submit the required list sooner than 120 days after promulgating a new or revised national ambient air quality standard. (B) Promulgation by EPA of designations (i) Upon promulgation or revision of a national ambient air quality standard, the Administrator shall promulgate the designations of all areas (or portions thereof) submitted under subparagraph (A) as 120a expeditiously as practicable, but in no case later than 2 years from the date of promulgation of the new or revised national ambient air quality standard. Such period may be extended for up to one year in the event the Administrator has insufficient information to promulgate the designations. (ii) In making the promulgations required under clause (i), the Administrator may make such modifications as the Administrator deems necessary to the designations of the areas (or portions thereof) submitted under subparagraph (A) (including to the boundaries of such areas or portions thereof). Whenever the Administrator intends to make a modification, the Administrator shall notify the State and provide such State with an opportunity to demonstrate why any proposed modification is inappropriate. The Administrator shall give such notification no later than 120 days before the date the Administrator promulgates the designation, including any modification thereto. If the Governor fails to submit the list in whole or in part, as required under subparagraph (A), the Administrator shall promulgate the designation that the Administrator deems appropriate for any area (or portion thereof) not designated by the State. Gii) If the Governor of any State, on the Governor’s own motion, under subparagraph (A), submits a list of areas (or portions thereof) in the State designated as nonattainment, attainment, or unclassifiable, the Administrator shall act on such designations in accordance with the procedures under paragraph (3) (relating to redesignation). (iv) A designation for an area (or portion thereof) made pursuant to this subsection shall remain in effect 12la until the area (or portion thereof) is redesignated pursuant to paragraph (8) or (4). (C) Designations by operation of law (i) Any area designated with respect to any air pollutant under the provisions of paragraph (1)(A), (8), or (C) of this subsection (as in effect immediately before November 15, 1990) is designated, by operation of law, as a nonattainment area for such pollutant within the meaning of subparagraph (A)(i). (ii) Any area designated with respect to any air pollutant under the provisions of paragraph (1)(E) (as in effect immediately before November 15, 1990) is designated by operation of law, as an attainment area for such pollutant within the meaning of subparagraph (A)Gii). (iii) Any area designated with respect to any air pollutant under the provisions of paragraph (1)(D) (as in effect immediately before November 15, 1990) is designated, by operation of law, as an unclassifiable area for such pollutant within the meaning of subparagraph (A)(iii). (2) Publication of designations and redesignations (A) The Administrator shall publish a notice in the Federal Register promulgating any designation under paragraph (1) or (5), or announcing any designation under paragraph (4), or promulgating any redesignation under paragraph (8). (B) Promulgation or announcement of a designation under paragraph (1), (4) or (5) shall not be subject to the provisions of sections 553 through 557 of title 5 (relating to notice and comment), except nothing herein shall be construed as precluding such public notice and comment whenever possible. (3) Redesignation 122a (A) Subject to the requirements of subparagraph (E), and on the basis of air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate, the Administrator may at any time notify the Governor of any State that available information indicates that the designation of any area or portion of an area within the State or interstate area should be revised. In issuing such notification, which shall be public, to the Governor, the Administrator shall provide such information as the Administrator may have available explaining the basis for the notice. (B) No later than 120 days after receiving a notification under subparagraph (A), the Governor shall submit to the Administrator such redesignation, if any, of the appropriate area (or areas) or portion thereof within the State or interstate area, as the Governor considers appropriate. (C) No later than 120 days after the date described in subparagraph (B) (or paragraph (1)(B)(ii)), the Administrator shall promulgate the redesignation, if any, of the area or portion thereof, submitted by the Governor in accordance with subparagraph (B), making such modifications as the Administrator may deem necessary, in the same manner and under the same procedure as is applicable under clause (ii) of paragraph (1)(B), except that the phrase “60 days” shall be substituted for the phrase “120 days” in that clause. If the Governor does not submit, in accordance with subparagraph (B), a redesignation for an area (or portion thereof) identified by the Administrator under subparagraph (A), the Administrator shall promulgate such redesignation, if any, that the Administrator deems appropriate. 123a (D) The Governor of any State may, on the Governor’s own motion, submit to the Administrator a revised designation of any area or portion thereof within the State. Within 18 months of receipt of a complete State redesignation submittal, the Administrator shall approve or deny — such redesignation. The submission of a redesignation by a Governor shall not affect the effectiveness or enforceability of the applicable implementation plan for the State. (E) The Administrator may not promulgate a redesignation of a nonattainment area (or portion thereof) to attainment unless - (i) the Administrator determines that the area has attained the national ambient air quality standard; (ii) the Administrator has fully approved the applicable implementation plan for the area under section 7410(k) of this title; (iii) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (iv) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 7505a of this title; and (v) the State containing such area has met all requirements applicable to the area under section 7410 of this title and part D of this subchapter. (F) The Administrator shall not promulgate any redesignation of any area (or portion thereof) from nonattainment to unclassifiable. (4) Nonattainment designations for ozone, carbon monoxide and particulate matter (PM-10) 124a (A) Ozone and carbon monoxide (i) Within 120 days after November 15, 1990, each Governor of each State shall submit to the Administrator a list that designates, affirms or reaffirms the designation of, or redesignates (as the case may be), all areas (or portions thereof) of the Governor’s State as attainment, nonattainment, or unclassifiable with respect to the national ambient air quality standards for ozone and carbon monoxide. (ii) No later than 120 days after the date the Governor is required to submit the list of areas (or portions thereof) required under clause (i) of this subparagraph, the Administrator shall promulgate such designations, making such modifications as the Administrator may deem necessary, in the same manner, and under the same procedure, as is applicable under clause (ii) of paragraph (1)(B), except that the phrase “60 days” shall be substituted for the phrase “120 days” in that clause. If the Governor does not submit, in accordance with clause (i) of this subparagraph, a designation for an area (or portion thereof), the Administrator shall promulgate the designation that the Administrator deems appropriate. (iii) No nonattainment area may be redesignated as an attainment area under this subparagraph. (iv) Notwithstanding paragraph (1)(C)(ii) of this subsection, if an ozone or _ carbon monoxide nonattainment area located within a metropolitan statistical area or consolidated metropolitan statistical area (as established by the Bureau of the Census) is classified under part D of this subchapter as a Serious, Severe, or Extreme Area, the boundaries of such area are hereby revised (on the date 45 days after such classification) by operation of law to include the entire metropolitan statistical area or consolidated 125a metropolitan statistical area, as the case may be, unless within such 45-day period the Governor (in consultation with State and local air pollution control agencies) notifies the Administrator that additional time is necessary to evaluate the application of clause (v). Whenever a Governor has submitted such a notice to the Administrator, such boundary revision shall occur on the later of the date 8 months after such classification or 14 months after November 15, 1990, unless the Governor makes the finding referred to in clause (v), and the Administrator concurs in such finding, within such period. Except as otherwise provided in this paragraph, a boundary revision under this clause or clause (v) shall apply for purposes of any State implementation plan revision required to be submitted after November 15, 1990. (v) Whenever the Governor of a State has submitted a notice under clause (iv), the Governor, in consultation with State and local air pollution control agencies, shall undertake a study to evaluate whether the entire metropolitan statistical area or consolidated metropolitan statistical area should be included within the nonattainment area. Whenever a Governor finds and demonstrates to the satisfaction of the Administrator, and the Administrator concurs in such finding, that with respect to a portion of a metropolitan statistical area or consolidated metropolitan statistical area, sources in the portion do not contribute significantly to violation of the national ambient air quality standard, the Administrator shall approve the Governor’s request to exclude such portion from the nonattainment area. In making such finding, the Governor and the Administrator shall consider factors such as population density, traffic congestion, EE eo 126a commercial development, industrial development, meteorological conditions, and pollution transport. (B) PM-10 designations r By operation of law, until redesignation by the Administrator pursuant to paragraph (3) - (i) each area identified in 52 Federal Register 29383 (Aug. 7, 1987) as a Group I area (except to the extent that such identification was modified by the Administrator before November 15, 1990) is designated nonattainment for PM-10; (ii) any area containing a site for which air quality monitoring data show a violation of the national ambient air quality standard for PM-10 before January 1, 1989 (as determined under part 50, appendix K of title 40 of the Code of Federal Regulations) is hereby designated nonattainment for PM-10; and (iii) each area not described in clause (i) or (ii) is hereby designated unclassifiable for PM-10. Any designation for particulate matter (measured in terms of total suspended particulates) that the Administrator promulgated pursuant to this subsection (as in effect immediately before November 15, 1990) shall remain in effect for purposes of implementing the maximum allowable increases in concentrations of particulate matter (measured in terms of total suspended particulates) pursuant to section 7473(b) of this title, until the Administrator determines that such designation is no longer necessary for that purpose. (5) Designations for lead The Administrator may, in the Administrator’s discretion at any time the Administrator deems appropriate, require a State to designate areas (or portions thereof) with respect to the national ambient air quality standard for lead in effect as of November 15, 1990, in accordance with the procedures under 127a subparagraphs (A) and (B) of paragraph (1), except that in applying subparagraph (B)(i) of paragraph (1) the phrase “2 years from the date of promulgation of the new or revised national ambient air quality standard” shall be replaced by the phrase “1 year from the date the Administrator notifies the State of the requirement to designate areas with respect to the standard for lead”. (e) Redesignation of air quality control regions (1) Except as otherwise provided in paragraph (2), the Governor of each State is authorized, with the approval of the Administrator, to redesignate from time to time the air quality control regions within such State for purposes of efficient and effective air quality management. Upon such redesignation, the list under subsection (d) of this section shall be modified accordingly. (2) In the case of an air quality control region in a State, or part of such region, which the Administrator finds may significantly affect air pollution concentrations in another State, the Governor of the State in which such region, or part of a region, is located may redesignate from time to time the boundaries of so much of such air quality control region as is located within such State only with the approval of the Administrator and with the consent of all Governors of all States which the Administrator determines may be significantly affected. (3) No compliance date extension granted under section 7413(d)(5) (FOOTNOTE 1) of this title (relating to coal conversion) shall cease to be effective by reason of the regional limitation provided in section 7413(d)(5) (FOOTNOTE 1) of this title if the violation of such limitation is due solely to a redesignation of a region under this subsection. 128a Footnotes (FOOTNOTE 1) Section 7413 of this title, referred to in subsec. (e)(3), was amended generally by Pub. L. 101- 549, title VII, Sec. 701, Nov. 15, 1990, 104 Stat. 2672, and, as so amended, subsec. (d) of section 7413 no longer relates to final compliance orders. —