Approval and Promulgation of Implementation Plans; California Owens Valley Nonattainment Area; PM-10

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA-221-158; FRL-6366-6]

Approval and Promulgation of Implementation Plans; California--

Owens Valley Nonattainment Area; PM-10

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the State Implementation Plan

(SIP) submitted by the State of California for attaining the

particulate matter (PM-10) national ambient air quality standards

(NAAQS) in the Owens Valley Planning Area, along with the State's

request for an extension to December 31, 2006 to attain the PM-10 NAAQS

in the area.

[[Page 34174]]

EPA is proposing to approve the SIP revision and extension request

under provisions of the Clean Air Act (CAA) regarding EPA action on SIP

submittals, SIPs for national primary and secondary standards, and plan

requirements for nonattainment areas.

DATES: Written comments on this proposal must be received by July 9,

1999.

ADDRESSES: Comments should be addressed to the EPA contact below.

Copies of the State's submittal and other information are contained in

the docket for this rulemaking. The docket is available for inspection

during normal business hours at the following location:

U. S. Environmental Protection Agency, Region 9, Air Division, 75

Hawthorne Street, San Francisco, CA 94105-3901.

Copies of the SIP materials are also available for inspection at

the addresses listed below:

California Air Resources Board, 2020 L Street, P.O. Box 2815,

Sacramento, CA 95814.

Great Basin Unified Air Pollution Control District, 157 Short

Street, Suite 6, Bishop, CA 93514.

FOR FURTHER INFORMATION CONTACT: Larry Biland, U. S. Environmental

Protection Agency, Region 9, Air Division (AIR-2), 75 Hawthorne Street,

San Francisco, CA 94105-3901, (415) 744-1227.

Supplementary Information:

I. Background

A. Executive Summary

1. The Particulate Matter Problem in Owens Valley

Owens Lake is located in Inyo County in eastern-central California.

The lake is part of a chain of lakes formed during the late Pleistocene

Epoch. In 1913, the Los Angeles Department of Water and Power (LADWP)

completed an aqueduct system and began diverting the waters of the

Owens River to the City of Los Angeles. By 1930, these diversions had

drained Owens Lake almost completely dry.

Strong winds over the dry, alkaline bed of Owens Lake have produced

among the highest measured concentrations of PM-10 ever recorded, more

than 25 times the federal 24-hour standard. 1 Analysis of

meteorological data and PM-10 samples in the Owens Valley Planning Area

during days when violations are recorded shows that 94 percent of PM-10

concentrations come from the Owens Lake bed and another 5 percent come

from reentrained Owens Lake dust already deposited in the area. Annual

PM-10 emissions from Owens Lake may exceed 400,000 tons, and dust

transport from the Lake can result in violations of the 24-hour PM-10

NAAQS more than 40 miles to the South. 2

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\1\ EPA revised the NAAQS for particulate matter on July 1, 1987

(52 FR 24672), replacing standards for total suspended particulates

with new standards applying only to particulate matter up to 10

microns in diameter (PM-10). At that time, EPA established two PM-10

standards. The annual PM-10 standard is attained when the expected

annual arithmetic mean of the 24-hour samples averaged over a 3-year

period does not exceed 50 micrograms per cubic meter (ug/m3). The

24-hour PM-10 standard of 150 ug/m3 is attained if samples taken for

24-hour periods have no more than one expected exceedance per year,

averaged over 3 years. See 40 CFR 50.6 and 40 CFR part 50, appendix

K.

On July 18, 1997, EPA reaffirmed the annual PM-10 standard, and

slightly revised the 24-hour PM-10 standard (62 FR 38651). In the

same action, EPA also established two new standards for PM, both

applying only to particulate matter up to 2.5 microns in diameter

(PM-2.5).

This SIP submittal addresses the 24-hour and annual PM-10

standards as originally promulgated. A recent opinion issued by the

U.S. Court of Appeals for the D.C. Circuit in American Trucking

Assoc., Inc., et al. v. USEPA, No. 97-1440 (May 14, 1999), among

other things, vacated the new standards for PM-10 that were

published on July 18, 1997 and became effective September 16, 1997.

However, the PM-10 standards promulgated on July 1, 1987 were not an

issue in this litigation, and the Court's decision does not affect

the applicability of those standards in this area. Codification of

those standards continues to be recorded at 40 CFR 50.6. In the

notice promulgating the new PM-10 standards, the EPA Administrator

decided that the previous PM-10 standards that were promulgated on

July 1, 1987, and provisions associated with them, would continue to

apply in areas subject to the 1987 PM-10 standards until certain

conditions specified in 40 CFR 50.6(d) are met. See 62 FR 38701. EPA

has not taken any action under 40 CFR 50.6(d) for the Owens Valley

Planning Area.

\2\ Owens Valley PM-10 Planning Area Demonstration of Attainment

State Implementation Plan (``1998 SIP''), pp. S-5 and S-3.

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Approximately 40,000 permanent residents live in the area affected

by Owens Lake particulate emissions. Included in this number are

members of 4 tribes: the Lone Pine Paiute/Shoshone Tribe, the Fort

Independence Tribe, the Big Pine Tribe, and the Bishop Tribe. Residents

and visitors to the area suffer the health effects from high PM-10

concentrations, including lung damage, increased respiratory disease,

and premature death. Children, the elderly, and people suffering from

heart and lung disease, such as asthma, are especially at risk.

Moreover, the dust from the lake bed contains carcinogenic compounds,

including arsenic, nickel, and cadmium. 3

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\3\ 1998 SIP, pp. S-3 and 3-12.

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Elevated levels of Owens Valley particulate matter harm visibility

and vegetation as far as 150 miles away. Included in the impact area

are 3 national parks (Death Valley, Kings Canyon, and Sequoia), 4

wilderness areas (Domeland, Golden Trout, John Muir, and South Sierra),

1 national historic site (Manzanar), and 2 national forests (Inyo and

Sequoia). Finally, Owens Lake dust events adversely affect operations

at China Lake Naval Air Weapons Station, since many of the Navy's

operations require good visibility. 4

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\4\ 1998 SIP, pp. 3-13 through 3-15.

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2. The Owens Valley PM-10 Plan

On November 16, 1998, after over a decade of planning, research,

analysis, and negotiation, the Governing Board of the Great Basin

Unified Air Pollution Control District (``the District'') unanimously

adopted the 1998 Revision to the Owens Valley PM-10 Planning Area

Demonstration of Attainment State Implementation Plan (``the 1998 SIP''

or ``the plan''). While the District was principally responsible for

the plan, there were many participants in the planning process,

including the California Air Resources Board (CARB), LADWP, the City of

Los Angeles, the tribal governments, Federal land managers, the Navy,

the State Lands Commission, and members of the public.

In preparing the 1998 SIP, the District and the other plan

participants confronted one of the most challenging air quality

problems: how to reduce peak PM-10 concentrations from almost 4000

micrograms per cubic meter (ug/m3) to the 24-hour NAAQS of 150 ug/m3.

5 While the origin of the PM-10 problem was well

understood--the draining of Owens Lake by the City of Los Angeles in

the early part of this century, and continued LADWP withdrawals from

Owens River--the solution to the problem, particularly over the

relatively short time allowed under the CAA, proved controversial.

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\5\ A 24-hour PM-10 concentration of 3,929 ug/m3 was recorded at

Keeler on April 13, 1995 (1998 SIP, p. A1-27).

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Among the unique complexities of the Owens Valley PM-10 planning

process are the competing authorities and responsibilities of the

District to protect Owens Valley residents from the harmful effects of

air pollution and the City of Los Angeles to provide its residents with

an adequate water supply.

In 1983, the California Legislature attempted to resolve these

contentious issues by enacting Senate Bill 270 (California Health and

Safety Code section 42316). This law has the following provisions:

(a) it exempts water-gathering operations from State air quality

permit regulations;

[[Page 34175]]

(b) it provides that the City of Los Angeles must fund control

measure development and must implement reasonable measures ordered by

the District to mitigate the impacts of its water diversion activities

at Owens Lake, on the basis of substantial evidence establishing that

the City's activities cause or contribute to violations of federal or

State air quality standards;

(c) it prevents the District from mandating measures that affect

the City's right to produce, divert, store, or convey water; and

(d) it provides opportunities for the City to appeal to CARB any

measures or fees imposed by the District.

Before settling on the 3 primary control measures in the plan, the

District examined many strategies but found them not to be feasible or

effective in significantly reducing dust emissions from the lake bed.

Rejected measures include use of sprinklers, chemical dust

suppressants, surface compaction, sand fences, and brush fences.

In cooperation with LADWP, the District designed and issued a

unique order to the City. 6 The order requires the City to

implement 3 measures: shallow flooding, managed vegetation, and

application of gravel cover. The order further provides that

implementation will proceed in 2 increments, each divided into 3

phases, and covering the period 1999 through 2006.

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\6\ Great Basin Unified Air Pollution Control District Board

Order #981116-01, November 16, 1998, adopted as part of Governing

Board Resolution No. 98-05. The order and control measures are

discussed in more detail below, in section I.F.

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Although small scale tests have been performed, the plan's

technically difficult dust controls have never been applied over an

area the size of the Owens Lake project--a 35-square mile control area

within the 110-square mile lake bed. 7 For this reason, the

order provides that the District will periodically assess the actual

effectiveness of the controls, and will revise the SIP by December 31,

2003, to incorporate the knowledge gained by previous implementation of

control measures, in order to ensure sufficient reductions to attain

the NAAQS by 2006. EPA agrees with the District and the City that this

empirical approach is appropriate in view of the area's challenging

control strategies and unique emission reduction requirements.

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\7\ The SIP control measures are discussed in detail in section

I.F., below.

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As discussed below, EPA proposes to approve this SIP as a

critically important blueprint for clean air in one of the country's

most difficult PM-10 nonattainment areas. Primary credit for this

remarkable achievement is shared by the District and LADWP, and

successful plan implementation will require that both agencies continue

to work effectively together. However, the other participating members

of the public and the State's air pollution professionals should also

be commended for assisting in the identification and refinement of the

control approaches included in the plan, and their continued

involvement will be vital as the plan is carried forward and evolves in

the future.

B. CAA Requirements

The Federal CAA was substantially amended in 1990 to establish new

planning requirements and attainment deadlines for the NAAQS. The most

fundamental of these nonattainment area provisions applicable to Owens

Valley is the requirement that the State submit a SIP demonstrating

attainment of the PM-10 NAAQS. This demonstration must be based upon

enforceable measures to achieve emission reductions leading to

emissions at or below the level predicted to result in attainment of

the NAAQS throughout the nonattainment area. The measures must meet the

standard for Best Available Control Measures (BACM), and the measures

must be implemented expeditiously and ensure attainment no later than

the applicable CAA deadline.

EPA has issued a ``General Preamble'' describing the Agency's

preliminary views on how EPA intends to act on SIPs submitted under

Title I of the Act. See 57 FR 13498 (April 16, 1992), 57 FR 18070

(April 28, 1992). EPA later issued an Addendum to the General Preamble

providing guidance on SIP requirements for serious PM-10 areas. 59 FR

41998 (August 16, 1994). The reader should refer to these documents for

a more detailed discussion of EPA's preliminary interpretations of

Title I requirements. In this proposed rulemaking action, EPA applies

these policies to the Owens Valley PM-10 SIP submittal, taking into

consideration the specific factual issues presented.

C. Designation and Classification

On the date of enactment of the 1990 CAA Amendments, PM-10 areas,

including the Owens Valley Planning Area, meeting the qualifications of

section 107(d)(4)(B) of the amended Act, were designated nonattainment

by operation of law. See 56 FR 11101 (March 15, 1991). The boundaries

of the Owens Valley nonattainment area (Hydrologic Unit #18090103) are

codified at 40 CFR 81.305.

Once an area is designated nonattainment, section 188 of the CAA

outlines the process for classification of the area and establishes the

area's attainment date. In accordance with section 188(a), at the time

of designation, all PM-10 nonattainment areas, including Owens Valley,

were initially classified as moderate by operation of law. Section

188(b)(1) of the Act further provides that moderate areas can

subsequently be reclassified as serious before the applicable moderate

area attainment date if at any time EPA determines that the area cannot

``practicably'' attain the PM-10 NAAQS by this attainment date.

CARB submitted a moderate area PM-10 SIP for Owens Valley on

January 9, 1992. Based on this submittal, EPA determined on January 8,

1993, that Owens Valley could not practicably attain by the applicable

attainment deadline for moderate areas (December 31, 1994, per section

188(c)(1) of the Act), and reclassified Owens Valley as serious (58 FR

3334). In accordance with section 189(b)(2) of the Act, the applicable

deadline for submittal of a SIP for Owens Valley addressing the

requirements for serious PM-10 nonattainment areas in section 189(b)

and (c) of the Act is February 8, 1997--4 years after the effective

date of the reclassification (58 FR 3340-1).

D. Adoption and Submittal of the 1998 SIP

Because of controversy regarding appropriate control requirements,

the plan was not adopted until November 16, 1998. Following adoption by

the District, CARB also adopted the 1998 SIP and submitted it to EPA on

December 10, 1998. On February 2, 1999, EPA deemed the submittal

complete.8

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\8\ EPA adopted the completeness criteria on February 16, 1990

(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA,

revised the criteria on August 26, 1991 (56 FR 42216).

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Both the District and CARB satisfied applicable statutory and

regulatory requirements for reasonable public notice and hearing prior

to adoption of the plan. The District conducted numerous public

workshops and properly noticed the public hearing at which the plan was

adopted. The SIP submittal includes proof of publication for notices of

the public hearing. Therefore, EPA proposes to approve the 1998 SIP as

meeting the public notice and involvement requirements of section

110(a)(1) of the CAA.

[[Page 34176]]

E. Emissions Inventories

The plan includes 1995 baseline emissions inventories for peak 24-

hour and annual emissions in tons per day. The inventory covers the

expected control area for the plan, the southern half of the

nonattainment area, which includes all sources that have been found to

contribute to PM-10 violations. Because future emissions are not

expected to change significantly in this rural and relatively

undeveloped area, the attainment year inventories are assumed to be

identical to the 1995 inventories.

The peak 24-hour PM-10 inventory includes 8,346 tons per day (tpd)

from wind erosion on the exposed Owens dry lake bed; 516 tpd from off-

lake sources of lake bed dust; and 42 tpd from prescribed burning. The

Owens Valley inventory has insignificant emissions from major source

categories in typical PM-10 nonattainment areas, including reentrained

dust from motor vehicles (0.15 tpd unpaved roads, 0.19 paved roads),

residential wood burning (0.24 tpd), and industrial facilities (0.23

tpd, plus a proposed soda ash project projected to emit 0.51 tpd).

Secondary aerosols are also insignificant PM-10 sources in Owens

Valley, and so the inventories are for primary particulate only.

Where appropriate, the District used EPA emission factors

(Compilation of Air Pollution Emissions Factors, AP-42, USEPA, 1985).

The District relied on permitted emissions for the area's 4 industrial

facilities. Finally, the District developed specific emission

algorithms for wind erosion based on wind tunnel studies (1998 SIP,

section 4-3). The plan provides adequate documentation of the wind

erosion emission factor development and validation.

EPA concludes that the emissions inventories are comprehensive,

accurate, and current, and that they are consistent with EPA's

guidance.9 EPA proposes to approve the emissions inventories

as meeting the requirements of section 172(c)(3) of the CAA.

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\9\ PM-10 Emission Inventory Requirements (EPA-450/2-93), USEPA

1993.

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F. Control Measures

1. Description of Control Measures

The plan includes 3 control measures, each of which is designed to

reduce emissions from the Owens Lake bed. They are shallow flooding,

managed vegetation, and gravel cover. The following is a brief summary

of each of the measures, which are described at more length in Chapter

5 of the 1998 SIP.

a. Shallow Flooding

This control measure consists of releasing water along the upper

edge of the Owens Lake bed and allowing it to spread and flow down-

gradient toward the center of the lake. To attain the required PM-10

control efficiency, the District concludes that at least 75 percent of

each square mile of the control area must be wetted to produce standing

water or surface saturated soil, between September 15 and June 15 of

each year. The District estimates that a maximum of 4 acre-feet of

water is required annually to control PM-10 emissions from an acre of

lake bed.

To maximize project water use efficiency, flows to the control area

will be precisely regulated so that only the exact amount of water is

released to keep the soil wet. Although the quantity of excess water

will be minimized through system operation, any water that does reach

the lower end of the control area will be collected in berms keyed into

lake bed sediments and pumped back to the outlets to be reused.

Shallow flooding will require the City to construct a large-scale

water transmission, distribution, and outlet infrastructure; electrical

power lines; access roads; and water control berms. The City will take

appropriate steps to minimize adverse environmental impacts during this

construction and after flooding. The project will include a program to

remove any salt cedar (Tamarix ramosissima) and other undesirable non-

native plant and grass species that invade wet playa areas. The City

must also prevent disruption of shorebird breeding activities when

water delivery is reduced on June 15 of each year. Finally, the City

will design and implement mosquito abatement programs, including the

erection of bat roosting structures, and will monitor the impact of any

pesticide usage to ensure that mosquito control activities do not

result in unacceptable rates of egg thinning and failure.

b. Managed Vegetation

This control measure consists of creating a farm-like environment

containing a mosaic of small (approximately 4 to 20 acre) confined

fields constructed of saltgrass (Distichlis spicata) that are irrigated

with shallow pulses of water. The City will need to carefully monitor

release of water to leach soils to within a level suitable for

saltgrass. Saltgrass will be the only plant species to be introduced to

the fields. It is tolerant of relatively high soil salinity, spreads

rapidly via rhizomes, and provides good protective cover year-round

even when dead or dormant. Saltgrass stands can subsist with minimal

amounts of applied water during the summer. Dust control effectiveness

should remain undiminished, provided that adequate irrigation has

stimulated plant growth and has delivered stored water in the rooting

zone during the spring months. Biological, mechanical, and chemical

control methods will be used to remove pest plants and noxious grasses.

Program implementation will require construction of earthen

infrastructure for water distribution, including ditches, berms,

channels, and reservoirs that allow for level border irrigation

strategies that leach and drain readily through the fractured structure

of the soil. The drainage system will be designed and constructed to

allow for mixing of fresh water and saline drain water to achieve an

ideal irrigation salinity. This will serve to maintain a downward

gradient of salts in the rooting column of the soil in order to prevent

salt from the shallow water table from rising into the rooting zone by

capillary action. The drainage system must also be managed to prevent

the rise of the water table into the rooting zone. Finally, the project

will involve construction of special areas for saturated evaporite

deposits.

c. Gravel Cover

A 4-inch layer of coarse gravel laid on the surface of the Owens

Lake playa will prevent PM-10 emissions by: (1) preventing the

formation of efflorescent evaporite salt crusts, because the large

spaces between the gravel particles interfere with the capillary forces

that transport the saline water to the surface where it evaporates and

deposits salts; and (2) raising the threshold wind velocity required to

lift the large gravel particles so that transport of the particles is

not possible by wind speeds typical of the Owens Lake area.

Gravel blankets can work effectively on essentially any type of

soil surface. Under certain limited conditions of sandy soils combined

with high groundwater levels, it may be possible for some of the gravel

blanket to settle into lake bed soils and thereby lose effectiveness in

controlling PM-10 emissions. To prevent the loss of any protective

gravel material into lake bed soils, a permeable geotextile fabric may

be placed between the soil and the gravel where necessary. This will

prevent the loss of any gravel.

Gravel areas must be protected from water- and wind-borne soil and

dust. The gravel blanket will be the last control measure to be

implemented in order to eliminate wind-borne depositions. Gravel areas

will be

[[Page 34177]]

protected from flood deposits with flood control berms, drainage

channels and desiltation and retention basins, which will ensure that

the gravel blanket will remain an effective PM-10 control measure for

many years.

To attain the required PM-10 control efficiency, 100 percent of all

areas designated for gravel must be covered with a layer of gravel 4

inches thick. All gravel material shall be screened to a size greater

than \3/8\-inch in diameter.

d. Additional Measures

In addition to these three control measures, the City is authorized

to implement one or more control measures of its choosing on 3.5 square

miles of the lake bed in the ``Dirty Socks'' area, at the southern

boundary of the lake and near State Highway 190. The controls placed in

this area may be one of the 3 identified measures, modified versions of

these measures, or other unidentified measures. The control measures

placed in this area do not need to be approved by the District.

However, if the City elects to apply controls in the Dirty Socks area,

the City is responsible for assuring that the Dirty Socks control

measures are integrated into an entire control strategy that meets the

PM-10 NAAQS by December 31, 2006.

2. Implementation Schedule

The proposed control strategy will be implemented in 2 increments.

The first increment will take place between November 16, 1998, and

December 31, 2003. This requires the implementation of control measures

on 16.5 square miles of the Owens Lake bed, unless the District finds

that attainment is achieved by placing controls on a smaller area.

During this time the emphasis will be on controlling those portions of

the lake bed that are most emissive in terms of the frequency and

severity of emissions. The focus will be on improving control measure

efficiencies and on identifying those remaining areas of the lake bed

that will continue to contribute to PM-10 NAAQS violations, if any.

The second increment will take place between January 1, 2004 and

December 31, 2006. This will require implementation of any additional

control measures necessary to provide for attainment of the PM-10 NAAQS

by December 31, 2006.

The District commits to revise the SIP in 2003 to incorporate new

knowledge and provide for attainment of the PM-10 NAAQS by December 31,

2006. If the District determines that additional or fewer controls are

required to meet the NAAQS by December 31, 2006, the 2003 SIP will

provide for implementation of the appropriate control measures for the

final step of the control strategy.

3. BACM Requirement

The Owens Valley serious area SIP must include control measures

consistent with the requirements for Reasonably Available Control

Measures (RACM), Reasonably Available Control Technology (RACT), BACM,

and Best Available Control Technology (BACT). RACM and RACT are control

technology requirements applicable to moderate areas. The requirements

for RACT and BACT, which apply to stationary and area sources, are

generally not applicable within the Owens Valley area, in which all PM-

10 sources except for wind erosion are de minimis. The 1998 SIP's BACM

provision for wind erosion sources is more stringent than the RACM

mandate.

EPA defines BACM as ``the maximum degree of emissions reduction of

PM-10 and PM-10 precursors from a source * * * which is determined on a

case-by-case basis, taking into account energy, environmental, and

economic impacts and other costs, to be achievable for such source

through application of production processes and available methods,

systems, and techniques for control of each such pollutant.'' General

Preamble Addendum, 59 FR 42010 (August 16, 1994). EPA exempts from the

BACM requirement de minimis source categories, which do not contribute

significantly to nonattainment. 59 FR 42011. CAA section 189(b)(1)(B)

requires that the plan contain provisions to assure that BACM for the

control of PM-10 shall be implemented 4 years after the effective date

of the reclassification, or by February 8, 1997.10

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\10\ Because the statutory BACM implementation deadline has

passed, the plan must assure that BACM will be implemented ``as soon

as possible.'' Delaney v. EPA, 898 F.2d 687, 691 (9th Cir. 1990).

EPA has interpreted this requirement to be ``as soon as

practicable.'' 55 FR 36458, 36505 (September 9, 1990).

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In the plan and in the appendices to the plan, the District has

provided extensive documentation on both the control measures included

in the plan and those rejected. The documentation quantifies the costs

of construction, materials, operation, and maintenance, and examines

other factors, including energy and environmental impacts. EPA agrees

that adequate time must be allowed to carry out the control measures

successfully, since the measures are uniquely vast in scale, materiel,

and required construction activity. The District's order to the City

establishes an aggressive, but phased, implementation schedule, which

is shown to be as expeditious as practicable.

4. EPA Proposed Action on Control Measures

EPA concludes that the plan demonstrates that:

(a) Only wind erosion emissions from the lake bed cause or

contribute to PM-10 violations in the area and, hence, applying BACM to

other source categories would not contribute significantly to achieving

the NAAQS as expeditiously as practicable;

(b) The plan's 3 control measures for wind erosion are consistent

with the BACM requirement in terms of the timing, degree, and extent of

the control program; and

(c) There is insufficient evidence, at this time, to support the

economic and technological feasibility of any alternative or additional

measures for the control of wind erosion emissions in Owens Valley,

even assuming the high degree of control stringency associated with the

BACM requirement.

EPA therefore proposes to approve the control measures contained in

the SIP under CAA section 110(k)(3), as meeting the requirements of CAA

sections 110(a) and 189(b)(1)(B).

G. Reasonable Further Progress (RFP)

The plan must also include measurable milestones which are to be

achieved every 3 years and show RFP toward attainment by the applicable

attainment deadline. The District order to the City includes

enforceable schedules for annual implementation of the specified

control measures, beginning with the completion, by December 31, 2001,

of the phase 1 control of 10 square miles. The order requires control

of an additional 3.5 square miles by 2002; 3 square miles by 2003; and

2 square miles in each of the remaining 3 years through 2006.

EPA proposes to approve this aggressive and enforceable annual

schedule as meeting the RFP requirements of CAA section 189(c).

H. Contingency Measures

The CAA requires that the SIP include contingency measures to be

implemented if the area fails to meet progress requirements or to

attain the NAAQS by the applicable deadline. As discussed above, the

District commits to revise the SIP in 2003 to implement additional

controls if necessary to attain the NAAQS by 2006. If in 2006 the

District determines that the area will not attain by the end of that

year, the District order requires the City to

[[Page 34178]]

implement controls on an additional 2 square miles of the Owens Lake

bed each year. Implementation of this contingency measure is automatic,

and requires no further action by the District or any other agency.

EPA concludes that the plan satisfies the contingency requirements,

and proposes to approve the SIP's contingency provisions under section

172(c)(9).

I. Extension of the Attainment Deadline

CAA section 188(e) allows states to apply for up to a 5-year

extension of the serious area attainment deadline of December 31, 2001.

In order to obtain the extension, there must be a showing that: (1)

Attainment by 2001 would be impracticable, (2) the state complied with

all requirements and commitments pertaining to the area in the

implementation plan for the area, and (3) the state demonstrates that

the plan for the area includes the most stringent measures that are

included in the SIP of any state or are achieved in practice in any

state, and can feasibly be implemented in the area.

The 1998 SIP has demonstrated that the plan includes all feasible

and effective control measures for wind erosion, and that the

implementation schedule for the control measures is as expeditious as

practicable, considering the massive projects that must be undertaken.

EPA agrees that no other SIP contains measures and no other area

implements measures for control of wind erosion that would be feasible

and effective in the Owens Valley area. Finally, EPA believes that

attainment could not feasibly be achieved before 2006. Therefore, EPA

proposes to grant, under CAA section 188(e), a 5-year attainment date

extension to December 31, 2006.

J. Attainment Demonstration

The SIP must provide a detailed demonstration (including air

quality modeling) that the specified control strategy will reduce PM-10

emissions so that the standards will be attained as soon as practicable

but no later than December 31, 2006, assuming final EPA approval of the

attainment deadline extension. CAA section 189(b)(1)(A). EPA considers

the area to be in attainment of the NAAQS if 24-hour concentrations are

150 ug/m3 or less and the annual arithmetic mean is 50 ug/m3 or less.

See footnote 1. The attainment demonstration in the Owens Valley area

focuses on the 24-hour NAAQS, since the area does not violate the

annual NAAQS. The 3-year annual arithmetic mean for the most recent

period (1996-1998) is 37.0 ug/m3.11

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\11\ Preliminary information from EPA's Aerometric Information

Retrieval System (AIRS). The 1998 SIP's wind erosion control

measures should be effective in reducing not only 24-hour PM-10

concentrations but also annual concentrations, since primary and

secondary wind erosion is 99 percent of the anthropogenic PM-10

emissions on an annual basis, and 99.5 percent on a 24-hour basis.

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Air quality modeling techniques were applied to assess control

scenarios developed by the District to reduce PM-10 concentrations and

bring the airshed into attainment. The specific computer model used by

the District is called the Industrial Source Complex Short-Term Version

3 model or ISCST3. ISCST3 is the EPA recommended dispersion model for

regulatory assessment of fugitive dust sources (40 CFR part 51,

appendix W). The modeling analysis itself comports with existing

modeling guidelines.12

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\12\ PM-10 SIP Development Guideline (USEPA 450/2-86-001, 6/87);

Guideline on Air Quality Models (Revised); Memorandum from Joseph

Tikvart and Robert Bauman dated July 5, 1990.

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A performance evaluation was also conducted to determine the

uncertainty and reliability of these modeling methods based on a

comparison of model predictions with ambient PM-10 measurements.

Chapter 6 of the 1998 SIP contains a detailed description of the air

quality modeling used for the Owens Valley.

The objectives of the air quality modeling are:

(1) To conduct the dispersion modeling in accordance with the

regulatory guidance for PM-10 SIPs using EPA recommended modeling tools

and procedures.

(2) To perform an evaluation of the proposed dispersion modeling

techniques using 2 years of ambient data and focus the evaluation on

the higher observed 24-hour PM-10 concentrations. The performance

evaluation was used to assess model uncertainty and aid in the

selection of several aspects of the modeling procedures.

(3) To assess and refine control strategies until the modeling

approach demonstrates attainment of the PM-10 NAAQS.

The air quality model shows that the proposed set of control

strategies would reduce ambient PM-10 impacts at shoreline almost 97

percent. After implementation of the control strategies, the number of

PM-10 exceedances at the shoreline will be less than one per year,

which complies with the PM-10 standard.

To achieve the emission reductions necessary to meet the PM-10

standard, the controlled emission rate must be 1.25 metric tons of PM-

10 per square kilometer per day (approximately 1.4 tons per 250 acres

per day). This is based on the emissions for the design day meteorology

on March 12, 1994. The 3 control measures (shallow flooding, managed

vegetation and gravel) each would result in emissions below this

controlled emission rate.

EPA concludes that the air quality modeling and attainment

demonstration contained in the 1998 SIP are consistent with existing

EPA guidelines. EPA proposes to approve the attainment demonstration

under CAA section 189(b)(1)(A).

II. Summary of EPA's Proposed Action

EPA is proposing to approve the serious area PM-10 SIP submitted by

the State of California for the Owens Valley PM-10 nonattainment area.

Specifically, EPA is proposing to approve the 1998 SIP with respect to

the CAA requirements for public notice and involvement under section

110(a)(1); emissions inventories under section 172(c)(3); control

measures under section 110(k)(3), as meeting the requirements of

sections 110(a) and 189(b)(1)(B); RFP and rate-of-progress milestones

under section 189(c); contingency measure(s) under section 172(c)(9);

and demonstration of attainment under section 189(b)(1)(A). EPA is also

proposing to approve the State's request for an extension of the

attainment date from December 31, 2001 to December 31, 2006, under CAA

section 188(e).

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, Regulatory

Planning and Review.

B. Executive Order 12875

Under Executive Order 12875, Enhancing the Intergovernmental

Partnership, EPA may not issue a regulation that is not required by

statute and that creates a mandate upon a State, local or tribal

government, unless the Federal government provides the funds necessary

to pay the direct compliance costs incurred by those governments, or

EPA consults with those governments. If EPA complies by consulting,

Executive Order 12875 requires EPA to provide to the Office of

Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, copies of any written

[[Page 34179]]

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of State, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on State, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

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 E.O.

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. This rule is not subject to E.O. 13045 because it does

not involve decisions intended to mitigate environmental health or

safety risks.

D. Executive Order 13084

Under Executive Order 13084, Consultation and Coordination with

Indian Tribal Governments, EPA may not issue a regulation that is not

required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.'' Today's rule

does not significantly or uniquely affect the communities of Indian

tribal governments. Accordingly, the requirements of section 3(b) of

E.O. 13084 do not apply to this rule.

E. 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. This final rule will not have a significant impact on a

substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the Clean Air Act do not create

any new requirements but simply approve requirements that the State is

already imposing. Therefore, because the Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

F. 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

annual costs to State, local, or tribal governments in the aggregate;

or to 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.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated annual costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This Federal action approves

pre-existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental

relations, Oxides of nitrogen, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Volatile organic compounds.

Dated: June 18, 1999.

Felicia Marcus,

Regional Administrator, Region IX.

[FR Doc. 99-16227 Filed 6-24-99; 8:45 am]

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