[Federal Register Volume 66, Number 217 (Thursday, November 8, 2001)]
[Rules and Regulations]
[Pages 56476-56484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27289]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[CA-059-RECL, FRL-7093-4]
Clean Air Act Reclassification, San Joaquin Valley Nonattainment
Area; Designation of East Kern County Nonattainment Area and Extension
of Attainment Date; California; Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to change the boundary for the San
Joaquin Valley (SJV) serious ozone nonattainment area by separating out
the eastern portion of Kern County into its own nonattainment area. EPA
is extending the attainment deadline for the new East Kern County
serious ozone nonattainment area from November 15, 1999 to November 15,
2001.
EPA is taking final action to find that the SJV area did not attain
the 1-hour ozone national ambient air quality standard (NAAQS) by the
November 15, 1999 Clean Air Act (CAA) deadline. As a result, the SJV
ozone nonattainment area with its revised boundaries is reclassified by
operation of law as a severe area. The State must submit by May 31,
2002, a severe area ozone nonattainment plan for the SJV (now excluding
the East Kern County ozone nonattainment area) that provides for the
attainment of the ozone NAAQS as expeditiously as practicable, but no
later than November 15, 2005. This plan must meet the specific
provisions of CAA section 182(d).
EPA is taking final action to find that the approved serious area
ozone State Implementation Plan (SIP) for the SJV has not been fully
implemented. As a result of this finding, the State must adopt and
implement the specified measures by November 15, 2002 or be subject to
sanctions pursuant to sections 179(a) and (b) of the CAA. This finding
and any potential sanctions do not apply to the newly established East
Kern County ozone nonattainment area, where the SIP is being fully
implemented.
EFFECTIVE DATE: December 10, 2001.
ADDRESSES: The rulemaking docket is available for inspection during
normal business hours in the Air Docket, EPA Region IX, 75 Hawthorne
Street, San Francisco, CA 94105. This rule and the Technical Support
Documents for the proposed actions are also available in the air
programs section of EPA Region 9's website, http://www.epa.gov/region09/air.
FOR FURTHER INFORMATION CONTACT: John Ungvarsky, Planning Office (AIR-
2), Air Division, EPA Region IX, 75 Hawthorne Street, San Francisco, CA
94105, (415) 744-1286, or [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
On June 19, 2000, EPA proposed to find that the SJV serious ozone
nonattainment area did not attain the 1-hour ozone NAAQS by November
15, 1999, the attainment deadline for serious ozone nonattainment areas
under CAA section 181(a). 65 FR 37926. The current SJV nonattainment
area includes the counties of San Joaquin, Kern, Fresno, Kings, Madera,
Merced, Stanislaus and Tulare. 40 CFR 81.301. EPA also proposed to find
that the SJV SIP had not been fully implemented, because the San
Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) had
failed to adopt and implement six measures by the deadlines in the SIP.
[[Page 56477]]
During the public comment period for the proposal, EPA received
comments requesting that EPA remove the eastern portion of Kern County
from the SJV ozone nonattainment area and designate it a separate ozone
nonattainment area. On August 28, 2000, the California Air Resources
Board (CARB) formally requested that EPA create a separate ozone
nonattainment area for East Kern County and grant this area two 1-year
attainment date extensions.
EPA found the State's request compelling and, on May 18, 2001,
issued a reproposal to revise the SJV ozone nonattainment area by
changing its boundaries to remove eastern Kern County.\1\ 66 FR 27616.
In order to reflect this proposed boundary change, EPA reproposed the
Agency's finding that the remaining portion of SJV did not attain the
ozone NAAQS by the statutory deadline and, accordingly, would be
reclassified by operation of law as a severe ozone nonattainment area
if EPA finalized the finding. EPA proposed that the East Kern County
ozone nonattainment area would keep its serious classification because
the area had not recorded more than one exceedance of the ozone NAAQS
over the past two years and the East Kern County area otherwise
qualified for two 1-year extensions of the November 15, 1999 attainment
deadline pursuant to CAA section 181(a)(5). EPA therefore proposed that
the attainment deadline for East Kern County ozone nonattainment area
be extended to November 15, 2001.
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\1\ The new boundary line requested by the State is the same as
the current boundary between the Kern County and San Joaquin Valley
air districts and generally follows the ridge line of the Sierra
Nevada and Tehachapi Mountain Ranges. The precise description of the
new boundary appears at the end of this notice in the revision to 40
CFR part 81.
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II. Response to Public Comments and Final Action
In this document, EPA is responding to comments submitted in
response to the initial proposal (65 FR 37926) and the reproposal (66
FR 27616).
A. Establishment of East Kern County as a Separate Ozone Nonattainment
Area With a Serious Ozone Nonattainment Area Classification and an
Extended Attainment Date
As discussed in the reproposal, the public comments submitted in
response to the initial proposal supported removal of East Kern County
from the SJV ozone nonattainment area and establishment of this new
area as a serious ozone nonattainment area with an extended attainment
deadline. No commenters on either the initial proposal or the
reproposal opposed these actions. Therefore, for the reasons set forth
in the reproposal (66 FR 27617-27620), EPA is today taking final action
to grant the State's requests: (1) To split the SJV ozone nonattainment
area into two separate ozone nonattainment areas pursuant to CAA
section 107(d)(3)(D); (2) to retain for the new East Kern County ozone
nonattainment area the serious nonattainment area ozone classification;
and (3) to grant two 1-year attainment date extensions pursuant to CAA
section 181(a)(5), thus establishing an attainment deadline of November
15, 2001.
B. Finding of Failure To Attain for the San Joaquin Valley Ozone
Nonattainment Area
EPA received no comments opposing the Agency's finding that the SJV
ozone nonattainment area failed to attain the 1-hour ozone standard by
the November 15, 1999 deadline. Accordingly, and for the reasons set
forth in the proposals (65 FR 37927-37928 and 66 FR 27617), EPA is
today issuing the final finding under CAA section 181(b)(2)(A).
C. Attainment Deadline for the San Joaquin Valley Ozone Nonattainment
Area
As a consequence of EPA's finding of failure to attain, the SJV
ozone nonattainment area is reclassified by operation of law to severe.
The CAA provides that severe ozone nonattainment areas must attain the
ozone NAAQS as expeditiously as practicable, but no later than 15 years
after enactment of the 1990 CAA Amendments, or November 15, 2005. CAA
section 181(a)(2) also establishes a ``severe 17'' classification for
areas with a 1988 ozone design value between 0.190 parts per million
(ppm) and 0.280 ppm.\2\ Areas meeting this criterion are required to
attain the ozone NAAQS as expeditiously as practicable but no later
than 17 years after enactment of the 1990 CAA Amendments (i.e., by
November 15, 2007).
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\2\ The 1-hour ozone NAAQS is 0.12 ppm. A monitor's design value
is the fourth highest ambient concentration recorded at that monitor
over the previous three-year period. An area's design value is the
highest of the design values from the area's monitors. A design
value is one indication of the severity of the ozone problem in an
area. It is also used in determining the level of emission
reductions needed to attain the standard.
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In the reproposal, EPA noted that the design value for the SJV
ozone nonattainment area is 0.161 ppm. 66 FR 27617. Although this value
is below the CAA criterion for the severe-17 classification, EPA
referenced a State suggestion that attainment by 2005 may not be
possible for the SJV ozone nonattainment area, given the area's air
quality problem. Accordingly, EPA solicited comment on the viability of
the 2005 deadline, and on any legal, policy, and technical rationale
for allowing a 2007 attainment deadline.
1. Comments Supporting a 2007 Attainment Deadline
State legislators, local governments, CARB, and SJVUAPCD provided
the following arguments in support of a severe-17 classification.
(a) It is not feasible to attain by 2005 based on preliminary
photochemical modeling which identifies the need for an additional 150
tons per day (tpd) of the two principal ozone precursors--volatile
organic compounds (VOCs) and oxides of nitrogen (NOX). This
is a 30 percent reduction in ozone precursors beyond projected 2005
levels with all adopted controls. CARB observed that the only extreme
ozone nonattainment area in the country, the South Coast (metropolitan
Los Angeles) area, requires the same 150 tpd reduction of VOC emissions
to attain but is allowed, by its CAA classification, until 2010 to
achieve these reductions.
(b) SJV's design value is higher than the design value for all
other areas in the country with a 2005 attainment deadline. In
addition, the magnitude of the attainment task is reflected in the
number of days over the standard. SJV has not only a higher design
value but also a greater number of days over the standard compared to
other areas with a 2007 deadline. Although the 1990 CAA Amendments
based classifications solely on design value, it is relevant to
consider the fact that SJV had at that time the third highest number of
exceedance days in the country. SJV has already achieved larger
emissions reductions than have any areas that are assigned a 2007 date,
both in the percentage of emissions reduced and the actual tons of
emissions reduced. SJV has achieved these reductions but has not been
able to reduce its design value. This makes clear that SJV has one of
the most severe ozone problems in the country, requiring additional
time to achieve the NAAQS.
(c) Any new controls would have to be implemented by 2003, which is
the first year that counts towards a 2005 attainment date. The SJV area
already has in place stringent controls. More time is needed for
technology advancements in order to implement the measures required to
bring SJV into attainment. More time will also decrease the impact of
new controls on businesses.
[[Page 56478]]
(d) Additional time is also critically needed to achieve mobile
source fleet turnover to meet more stringent standards, and to secure
and distribute incentive funding to support replacement of older
vehicles. The problem is greater because State incentive money to
retrofit engines is being diverted to buy emissions offsets for new
electricity generators required to meet the energy crisis.
(e) New State and federal controls on heavy-duty trucks, low
emission vehicles, and reformulation of diesel fuel will be much more
effective in 2007 than in 2005 due to phase-in schedules, since many of
these controls go into effect in 2004 and the penetration rate in the
first two years is extremely low.
(f) A 2007 deadline meets the CAA requirement for attainment as
expeditiously as practicable based on SJV's air quality, emission
reduction, and control strategy issues.
(g) The SJV ozone nonattainment area is greatly impacted by
pollution from the San Francisco Bay Area. Assuming that the Bay Area
is granted a 2006 attainment date, the SJV's attainment date should be
later.
(h) Emissions reductions from post-2003 federal Congestion
Mitigation and Air Quality (CMAQ) transportation funding will be needed
for attainment, and these funds cannot be secured until the
Transportation Equity Act is reauthorized, which is expected in 2004.
(i) Smart Growth policies have the potential to reduce emissions
but require more time for implementation than would be available
assuming a 2005 attainment deadline.
(j) Sources under federal control are a significant fraction of the
SJV emission inventory, especially interstate trucks, farm and
construction equipment, and locomotives, and the problem is exacerbated
by the fact that the sources are particularly active in the harvest
(and smog) season. Given the scale of reductions needed for attainment,
the federal government must reduce its share of the inventory. Like
California, EPA will need to consider not just new standards but also
retrofits and accelerated turnover of the existing fleet. As a
regulatory partner, EPA would agree that a 2005 date does not allow
sufficient time to accomplish these necessary reductions. The SJV
attainment problem is compounded by the presence of two major
transportation corridors (Interstate 5 and Freeway 99) and by EPA's
failure to enforce adequately the existing national standard for heavy-
duty engines and failure to act in a timely manner on the
manufacturers' consent degree, resulting in a significant increase in
NOX emissions.
(k) EPA has sufficient authority and discretion under CAA sections
172 and 181 to set a 2007 deadline, based on the severity of
nonattainment, and the availability and feasibility of control
measures.
2. Comments Supporting a 2005 Attainment Deadline
The Center on Race, Poverty & the Environment (CRPE) and
Earthjustice Legal Defense Fund submitted comments opposing the 2007
attainment deadline. These groups stated that EPA lacks the authority
to grant an extension of the attainment deadline from 2005 to 2007. The
2005 deadline is explicit in the CAA and so EPA has no administrative
discretion to grant an extension beyond that date. In addition to being
patently illegal, granting the 2007 deadline would force the millions
of Valley residents to breathe dangerous levels of smog at least two
years longer than necessary. This 2007 extension would result in human
suffering and medical costs far in excess of the temporarily-avoided
compliance costs. Granting the SJVUAPCD additional time when it is not
implementing its own inadequate plan would reward and perpetuate
further inaction. In contrast to the SJVUAPCD, other agencies (such as
the South Coast Air Quality Management District) have adopted stringent
controls and are on a trajectory to attain the ozone NAAQS, so
technical arguments for delaying full implementation of public health
protections in the SJV should not be taken seriously.
3. EPA Response to Comments and Final Action
EPA agrees with many of the comments supporting the difficulty of
developing a plan to demonstrate attainment of the NAAQS by the 2005
date. This deadline presents a remarkable challenge for an area with
SJV's characteristics: meteorology and topography providing diverse
conditions favorable to the formation of ozone; large numbers of small
emissions sources already subject, in many cases, to stringent controls
and, in other cases, capable of further control only through costly
retrofit, rebuild, or replacement programs; substantial mobile source
and process emissions sources associated with the area's dominant
agricultural economy and therefore operating at peak levels during the
ozone season; and large interstate transportation emissions from truck
and rail operations that are not generally susceptible to control at
local and state levels. Equitable considerations suggest that a 2007
attainment deadline might be at least as appropriate for the SJV ozone
nonattainment area as for other areas that were assigned severe-17
classifications in accordance with the provisions of 1990 CAA
Amendments.
EPA has concluded, however, that the CAA does not provide the
Agency authority to set a 2007 attainment deadline for the SJV ozone
nonattainment area based on these considerations. When EPA finds that
an ozone nonattainment area failed to attain the ozone standard by its
attainment date pursuant to section 181(b)(2), that section provides
that the area ``shall be reclassified by operation of law in accordance
with table 1 of subsection (a) to the higher of--(i) the next higher
classification for the area, or (ii) the classification applicable to
the area's design value as determined at the time of the notice
required under subparagraph (B).'' The phrase ``in accordance with
table 1'' prevents EPA from providing a 2007 attainment date for the
SJV in this action because, for the severe area class, table 1
establishes an attainment date of ``15 years after enactment [i.e.,
2005].'' CAA 181(a). The 2007 attainment deadline is set forth not in
table 1 but in CAA section 181(a)(2), which states: ``Notwithstanding
table 1, in the case of a severe area with a 1988 ozone design value
between 0.190 and 0.280 ppm, the attainment date shall be 17 years (in
lieu of 15 years) after the date of enactment of the Clean Air Act
Amendments of 1990.'' Thus, the 2007 attainment date is not provided
for in Table 1, which is what Congress required EPA to act in
accordance with when an area is reclassified pursuant to section
181(b). Consequently, EPA does not believe that it has the authority to
provide the SJV with a 2007 attainment date in this action. However,
under section 181(b)(3) of the Act, the State may request a
reclassification and receive a 2010 attainment deadline in order to
have the additional time the State believes is necessary to attain
ozone NAAQS.
Although EPA cannot agree with the State and other commenters that
the Agency has the discretion to grant the State's request for a 2007
attainment deadline, EPA does agree that attainment by 2005 requires
emission reductions from all quarters, and EPA intends to work closely
with the State and local agencies to explore opportunities for the
federal government to contribute additional controls or other
assistance to advance attainment in the SJV ozone nonattainment area.
[[Page 56479]]
D. Deadline for Submittal of a Revised SIP Addressing the CAA
Provisions for Severe Ozone Nonattainment Areas
1. EPA's Proposal
EPA's initial proposed finding of failure to attain, proposed that
the State be required to submit a severe area SIP revision no later
than 18 months from the effective date of the area's reclassification.
65 FR 37928. However, EPA also proposed that the SJVUAPCD be required
to submit a revised new source review (NSR) rule within 180 days of the
final date of the reclassification, in order to ensure that the
District's definitions of ``Major Source'' and ``Distance Offset
Ratio'' reflect the severe area requirements. 65 FR 37928-37929.
EPA's reproposal noted that CAA section 182(i) authorizes EPA to
adjust applicable deadlines as appropriate. EPA proposed a SIP
submittal deadline of May 31, 2002, in order to ensure that control
measures are put in place as quickly as possible and there is ample
time for the measures to take effect before the attainment deadline.
The reproposal stated that this deadline is reasonable given the
advance notice provided by our initial proposal, issued on June 19,
2000, and the planning efforts already underway at State and local
levels. 66 FR 27617.
2. Public Comments
No commenters on the initial proposal addressed the SIP submittal
deadline issue. In response to the reproposal, EPA received four
comments. The San Joaquin Valley Transportation Planning Agencies
Director's Association (TPA) and Tulare County Association of
Governments (TCAG) requested that the deadline be changed to August 31,
2002, in order to allow the revised SIP to incorporate updated
transportation planning assumptions. TPA also noted that the
reproposal's May 31, 2002 deadline is inconsistent with EPA's policy of
allowing 18 months for SIP development. The Western States Petroleum
Association (WSPA) requested a six-month extension of the SIP sumittal
deadline for the following reasons: The May 31, 2002 deadline would not
allow enough time for the regulatory review process necessary for new
District rules; WSPA has serious concerns about basing a control
strategy on a single design-day ozone episode; the Central California
Ozone Study (CCOS) is now available but has yet to be fully considered;
the SIP needs to focus more on mobile source reduction strategies
because previous significant stationary source reductions have not
resulted in a corresponding improvement in air quality. Earthjustice
supported EPA's May 31, 2002 deadline, noting that this date affords
ample time to prepare the revision since it is 30 months after the
area's November 15, 1999 attainment deadline.
3. EPA Response to Comments and Final Action
EPA agrees with TPA and TCAG that the revised SIP should include
updated transportation emissions and the latest planning assumptions.
However, the commenters submitted no evidence demonstrating that these
updates cannot be completed in time to be incorporated in a SIP
submitted by May 31, 2002. EPA believes that the transportation plan
and emissions updates can, in fact, be prepared on this schedule. EPA
is also concerned that the SIP needs to be prepared no later than this
date in order to provide a reasonable opportunity for the State, local
agencies, and affected public to meet the SIP emission reduction
milestone requirements for 2002 under CAA section 182(c)(2)(B).
Regarding the WSPA comments, neither the District nor the State
commented that the May 31, 2002 deadline would present any of the
problems suggested by WSPA. EPA announcements concerning the pending
reclassification began in late 1999 and became official in June 2000.
This has given the responsible agencies adequate time to plan their
rulemaking calendars. EPA acknowledged in its June 2000 proposal that
the results from CCOS may not be fully available to meet the SIP
deadlines. The planning process is dynamic and new information will
continue to be developed even after the CCOS information is available;
the State always has the option of revising its SIP based on new
information. Regarding mobile sources versus stationary sources, EPA
relies on the state to develop a control strategy the takes into
account the mix of sources affecting the area. EPA is therefore not
extending the SIP deadline, both because neither the State nor the
local air pollution control agencies requested the additional time, and
because the six-month delay would further postpone reductions and
planning efforts necessary for air quality improvements in the SJV.
Therefore, EPA is using the authority provided in the CAA to
finalize May 31, 2002, as the SIP submittal deadline. By this date, the
State must submit a plan addressing all of the severe area
requirements.
As noted in the initial proposal, CAA section 182(d)(3) sets a
deadline of December 31, 2000, to submit the plan revision requiring
fees for major sources should the area fail to attain. Pursuant to CAA
section 182(i), EPA proposed to adjust this date to coincide with the
submittal deadline for the rest of the severe area requirements. EPA is
here finalizing that proposal and establishing May 31, 2002, as the
deadline for submitting the emissions fee rule responsive to CAA
sections 182(d)(3) and 185.
In the initial proposal, EPA proposed to require that the more
stringent severe-area NSR rule, which includes a higher offset ratio
and lower applicability level, must be submitted no later than 180 days
from the effective date of the SJV area's reclassification to severe.
Since this 180-day deadline would now approximate the May 31, 2002
deadline set for the comprehensive severe area plan, EPA is not
finalizing the proposed 180-day deadline for the NSR rule revision.
Instead, the State will be required to submit by May 31, 2002, a
revised NSR rule meeting the severe area provisions of CAA section
182(d).
E. Adoption and Implementation of Reasonably Available Control
Technology (RACT) Rules
EPA's initial proposal indicated that the revised severe ozone SIP
for SJV needed to meet the RACT requirement for sources subject to the
new lower major source applicability cutoff of 25 tons per year (tpy),
pursuant to CAA section 182(d). As discussed above, the initial
proposal set the deadline for submitting the severe ozone SIP as 18
months from the effective date of the reclassification of the SJV to
severe, and the reproposal set the deadline as May 31, 2002. In
response to the initial proposal, SJVUAPCD indicated that ``the
District should be able to adopt RACT rules shortly before the 18-month
sanction deadline.'' \3\ EPA presumes that this comment indicates that
the District expected to be able to meet the rule adoption deadline in
the reproposal, which is more than 23 months after the initial proposal
was published. EPA is finalizing the May 31, 2002 SIP deadline as
applicable to the RACT rule revisions provided in CAA section 182(d)
for major stationary sources at the severe area applicability level of
25 tpy.
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\3\ Letter from David L. Crow, SJVUAPCD APCO/Executive Officer,
to John Ungvarsky, EPA, dated August 24, 2000.
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SJVUAPCD's comment on the initial proposal indicated that the
District would set the final RACT compliance dates to coincide with the
2005 attainment date, ``in order to allow as much time as possible for
source operators to install controls.'' Under CAA section 172(c)(1),
nonattainment
[[Page 56480]]
plans must ``provide for the implementation of all reasonably available
control measures as expeditiously as practicable (including such
reductions in emissions from existing sources in the area as may be
obtained through the adoption, at a minimum, of reasonably available
control technology) * * *.'' The SJVUAPCD's RACT compliance schedule
should be as expeditious as practicable, both to address this
fundamental CAA provision and to speed progress in public health
protection. EPA cannot approve RACT compliance schedules that are not
as expeditious as practicable but are rather designed to allow as much
time as possible for source operators to install controls. Given that
the District has known about this RACT requirement since EPA's June 19,
2000 proposal, EPA does not believe that 2005 represents expeditious
implementation of the RACT requirement. Neither the State nor District
has provided a compelling reason why the new RACT rules could not be
implemented prior to 2005. Accordingly, EPA is finalizing the May 31,
2002 deadline for submittal of new RACT rules, and EPA strongly
encourages the District to implement the rules within 18 months of the
effective date of the reclassification.
F. Transportation Conformity Budgets
1. EPA's Proposal
EPA's initial proposal indicated that the revised SJV attainment
demonstration may establish motor vehicle emissions budgets for
subareas within the region if the modeling in the SIP shows that
attainment will result when all subarea budgets are met. The initial
proposal further stated that there would be no allowance for shifting
of growth from one subarea to another. 65 FR 37929.
2. Public Comments
In response to the initial proposal, CARB supported a single budget
as providing better alignment with the new region wide attainment
demonstration, while providing greater flexibility by allowing higher
than expected emissions in one portion of the valley to be offset by
lower emissions in the rest of the region. On the other hand, several
of the SJV transportation planning agencies, TPA, and SJVUAPCD endorsed
the establishment of separate budgets for each subarea, with trading
allowed between subareas so long as the total of all subarea budgets
does not exceed the region wide total emission budget. SJVUAPCD further
indicated that the new SJV SIP will address the maximum amount of
emissions that can be traded and the distance over which these
emissions are traded, and a requirement that all subareas not included
in a trade should have currently valid conformity findings for their
Regional Transportation Plan and Transportation Improvement Programs.
3. EPA Response to Public Comments and Final Action
EPA appreciates the complexity of transportation planning in a vast
nonattainment area where the responsibility for preparing, adopting,
and amending transportation plans and programs is assigned to 8
separate councils of government. The State and local agencies may elect
to address the CAA section 176(c) transportation conformity provisions
by means of either a region wide budget or separate budgets for
subareas. EPA intends to work with all involved parties to ensure that
the SIP's budget (or budgets) and conformity provisions provide needed
flexibility without jeopardizing the attainment demonstration or the
integrity of the regional and local transportation planning processes.
In this final action, EPA cautions that subarea budgets must be fully
documented and that the budgets and future conformity determinations
must be consistent with the region wide attainment demonstration. A
significant shift in growth from one subarea to another may therefore
require a new modeled attainment demonstration with revised subarea
budgets.
G. Nonimplementation Finding
1. EPA's Proposal
The initial proposal included a proposed nonimplementation finding,
based on the failure of the SJVUAPCD to meet its SIP commitments to
adopt and implement 6 rules to achieve specified emissions reductions
totaling 8.09 tpd of VOC emissions. Because the proposed
nonimplementation finding is based on a failure of the SJVUAPCD to
adopt and implement regulations, the finding would apply to western
Kern County (which is under the jurisdiction of the SJVUAPCD) but not
to East Kern County, which is under the jurisdiction of the Kern County
Air Pollution Control District. 65 FR 37930, footnote 12. 65 FR 37929-
31. The rules and associated emission reductions are listed in Table 1
below. EPA proposed that the rules should be adopted and implemented as
expeditiously as practicable but implementation should be no later than
November 15, 2002, the first rate of progress milestone under the
severe area provisions of the CAA. EPA proposed that the 2 to 1 offset
sanction in CAA section 179(b)(2) would apply if SJVUAPCD failed to
adopt the 6 measures within 18 months of the effective date of the
final finding. EPA further proposed that the highway approval and
funding sanction would apply under CAA section 179(b)(1) if SJVUAPCD
did not correct the deficiencies within 6 months after the offset
sanction is imposed.
2. Public Comments
CRPE commented that an implementation deadline of November 15,
2002, is too late and this delay will unnecessarily threaten the health
of San Joaquin Valley residents. EPA should require actual
implementation of the rules before the end of the 18 month period. EPA
should impose the highway sanctions first, in order to motivate the
political forces that will have to be harnessed in order to adopt the
rules. EPA should also determine that SJVUAPCD has failed to implement
the SIP because the District has excluded agricultural operations from
its NSR rule.
SJVUAPCD and CARB commented that the District should be allowed the
flexibility to correct the nonimplementation by achieving the 8.09 tpd
of VOC emissions through any combination of the six control measures in
the SIP or newly identified substitute measures. ARB stated that there
has been a substantial change in the inventory for several of the rule
categories, and SJVUAPCD indicated that the 8.09 tpd of VOC reductions
might be achieved by implementing fewer than the six delinquent
rules.\4\ SJVUAPCD requested the EPA extend the implementation deadline
to May 15, 2003, in order to allow source operators time to get
controls in place but still achieve the reductions before the beginning
of the 2003 ozone season.
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\4\ Of the six measures EPA identified, one measure (i.e., Rule
4662--Organic Solvent Degreasing) has been adopted by the District
and three measures (i.e., Rule 4601-Architectural Coatings, Rule
4623--Organic Liquid Storage, and Rule 4663--Organic Solvent Waste)
are scheduled for adoption by the District in late 2001 or early
2002. The other two measures (i.e., Rule 4692--Commercial
Charbroiling and Rule 4411--Oil Production Well Cellars) are not
scheduled for adoption by the District at this time.
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3. EPA Response to Comments and Final Action
EPA agrees with CRPE that prompt remedy to the nonimplementation is
important, but EPA believes that it may be unreasonable to require the
SJVUAPCD and affected sources to implement the delinquent measures more
quickly than EPA proposed. EPA
[[Page 56481]]
disagrees with CRPE that the agricultural operations exemption in the
SJVUAPCD NSR rule constitutes SIP nonimplementation, since the
exemption, although inconsistent with CAA provisions, does not evince a
failure to carry out provisions in the approved SIP. Finally, EPA sees
no compelling need to reverse the presumptive order of sanction
implementation, and therefore the Agency intends to follow the sequence
set in 40 CFR 52.31: the offset sanction at the 18th month and the
highway sanction at the 24th month following the finding.
EPA believes that the SJVUAPCD is obliged by its existing SIP to
meet the specific requirements of its commitments. However, CARB and
the District have the opportunity to amend the SIP by showing that
reasonable further progress and other requirements of the CAA can be
met with a revised schedule of controls and associated emission
reductions. This is especially the case where emissions inventory
changes after the original control measure commitment show that far
less actual emission reductions can be achieved by controls on
individual source categories. However, in view of the magnitude of the
emission reductions needed for attainment, SJVUAPCD is not free to
abandon or postpone any control measure that continues to be available,
even though the original SIP's cumulative emission reduction commitment
could be met without implementing the measure. EPA therefore finalizes
the proposed nonimplementation finding and sets November 15, 2002, as
the outside date for adoption and implementation of the delinquent
control measures.
III. Summary of the Final Action and the State's SIP
Responsibilities.
A. East Kern County
EPA is taking final action to split the SJV ozone nonattainment
area into two separate ozone nonattainment areas pursuant to CAA
section 107(d)(3)(D). EPA is retaining for the new East Kern County
ozone nonattainment area the serious nonattainment area ozone
classification but granting two 1-year attainment date extensions
pursuant to CAA section 181(a)(5), thus establishing an attainment
deadline of November 15, 2001. If East Kern County does not record a
violation in 2001, the area will be eligible for redesignation to
attainment for the 1-hour ozone NAAQS, following submittal by the State
and approval by EPA of a redesignation request and maintenance plan
addressing the provisions of CAA section 175A.
B. San Joaquin Valley
Pursuant to CAA section 181(b)(2), EPA is finalizing its finding
that the SJV area failed to attain the 1-hour ozone NAAQS by the
statutory deadline. By operation of law, the area is reclassified to
severe and is therefore required, under CAA section 181(a)(1), to
attain the NAAQS as expeditiously as practicable but no later than
November 15, 2005. Under CAA section 182(i), the State must submit a
SIP addressing the severe area requirements. EPA is establishing May
31, 2002, as the deadline for the submission of the severe area
requirements. Under CAA section 182(d), severe area plans must meet all
requirements for serious area plans plus the requirements for severe
areas, including, but not limited to: (1) A 25 tpy major stationary
source threshold; (2) additional reasonably available control
technology (RACT) rules for sources subject to the new lower major
source applicability cutoff; (3) an NSR rule requiring offsets of at
least 1.3 to 1; (4) a rate of progress in creditable emission
reductions of ozone precursors of at least 3 percent per year from 2000
until the attainment year; (5) a fee requirement for major sources
should the area fail to attain by 2005; and (6) a demonstration of
attainment as expeditiously as practicable but no later than November
15, 2005. The more stringent RACT provisions must be scheduled for
implementation as expeditiously as practicable, and EPA strongly
encourages an implementation deadline of no later than 18 months after
the effective date of the reclassification to severe.
Upon the effective date of EPA's finding of failure to implement
the SIP, SJVUAPCD has until November 15, 2002 to adopt and implement
the six delinquent measures shown in Table 1.
Table 1.--Delinquent Rule Commitments in the San Joaquin Valley SIP
------------------------------------------------------------------------
Emission
Rule No. Rule title reductions in
tpd VOC
------------------------------------------------------------------------
4601........................... Architectural Coatings. 1.51
4662........................... Organic Solvent 2.44
Degreasing.
4692........................... Commercial Charbroiling 0.39
4623........................... Organic Liquid Storage. 3.0
4411........................... Oil Production Well 0.56
Cellars.
4663........................... Organic Solvent Waste.. 0.19
------------------------------------------------------------------------
If SJVUAPCD has not adopted the measures listed in Table 1 with
implementation deadlines of on or before November 15, 2002, the 2 to 1
offset sanction in CAA section 179(b)(2) would apply after 18 months of
the effective date of the finding. If the deficiencies have still not
been corrected six months after the offset sanction is imposed, then
the highway approval and funding sanction would apply under CAA section
179(b)(1).
IV. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget.
EPA has determined that neither the finding of failure to attain,
nor the finding of nonimplementation, would result in any of the
effects identified in Executive Order 12866 sec. 3(f). As discussed
above, findings of failure to attain under section 188(b)(2) of the CAA
are based solely upon air quality considerations and the subsequent
nonattainment area reclassification must occur by operation of law in
light of those air quality conditions. These actions do not, in and of
themselves, impose any new requirements on any sectors of the economy.
In addition, because the statutory requirements are clearly defined
with respect to the differently classified areas, and because those
requirements are automatically triggered by classifications that, in
turn, are triggered by air quality values, findings of failure to
attain and reclassification cannot be said to impose a materially
adverse
[[Page 56482]]
impact on State, local, or tribal governments or communities.
Similarly, the finding of failure to implement the SIP merely ensures
the implementation of already existing requirements by creating the
potential for the imposition of sanctions if the State does not adopt
the rules to which it has committed under its own State plan, and
therefore the finding does not adversely affect entities.
The designation of East Kern County as a new, separate
nonattainment area with a serious classification and the attainment
date extensions will not impose any new requirements on any sectors of
the economy because the area is already classified as serious.
For the aforementioned reasons, this action is also not subject to
Executive Order 32111, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001). Accordingly, the Administrator certifies that
this rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.).
These actions do not contain any unfunded mandate or significantly
or uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4) for the following
reasons: (1) The finding of failure to attain is a factual
determination based on air quality considerations; (2) the resulting
reclassification must occur by operation of law and will not impose any
federal intergovernmental mandate; (3) the designation of East Kern
County as a separate nonattainment area with a serious classification
will not impose any new requirements on any sectors of the economy; and
(4) the finding of nonimplementation does not impose any new federal
mandates but rather obliges the State to adopt rules to which it has
committed under its State plan.
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). For these same reasons, this rule also
does not have Federalism implications because it does not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
These actions are also not subject to Executive Order 13045 (62 FR
19885, April 23, 1997), because they are not economically significant.
As discussed above, findings of failure to attain under section
188(b)(2) of the CAA are based solely upon air quality considerations
and the subsequent nonattainment area reclassification must occur by
operation of law in light of those air quality conditions. In addition,
the finding of failure to implement the SIP merely ensures the
implementation of already existing requirements to which the State has
committed under its own plan, and therefore the finding does not
adversely affect entities. In this context, it would thus be
inconsistent with applicable law for EPA, when it makes a finding of
failure to attain and finding of failure to implement the SIP, to use
voluntary consensus standards. Thus, the requirements of section 12(d)
of the National Technology Transfer and Advancement Act of 1995 (15
U.S.C. 272 note) do not apply. This rule does not impose an information
collection burden under the provisions of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this 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 action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
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 January 7, 2002. 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 et seq.
Dated: October 23, 2001.
Wayne Nastri,
Regional Administrator, Region IX.
Part 81 of chapter I, title 40 of the Code of Federal Regulations
is amended as follows:
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. In Sec. 81.305 the ``California-ozone'' table is amended as
follows:
a. By adding ``East Kern County'' as a designated area immediately
before the entry for ``San Joaquin Valley Area''; and
b. By revising the entry for ``San Joaquin Valley Area.''
Sec. 81.305 California.
* * * * *
[[Page 56483]]
California--Ozone
[1-hour standard]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area ---------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
East Kern County
That portion of Kern County that 12/10/01 Nonattainment............................ 12/10/2001 Serious.\2\
lies east and south of a line
described below: Beginning at the
Kern-Los Angeles County boundary
and running north and east along
the northwest boundary of the
Rancho La Liebre Land Grant to the
point of intersection with the
range line common to Range 16 West
and Range 17 West, San Bernardino
Base and Meridian; north along the
range line to the point of
intersection with the Rancho El
Tejon Land Grant boundary; then
southeast, northeast, and northwest
along the boundary of the Rancho El
Tejon Grant to the northwest corner
of Section 3, Township 11 North,
Range 17 West; then west 1.2 miles;
then north to the Rancho El Tejon
Land Grant boundary; then northwest
along the Rancho El Tejon line to
the southeast corner of Section 34,
Township 32 South, Range 30 East,
Mount Diablo Base and Meridian;
then north to the northwest corner
of Section 35, Township 31 South,
Range 30 East, then northeast along
the boundary of the Rancho El Tejon
Land Grant to the southwest corner
of Section 18, Township 31 South,
Range 31 East; then east to the
southeast corner of Section 13,
Township 31 South, Range 31 East;
then north along the range line
common to Range 31 East and Range
32 East, Mount Diablo Base and
Meridian, to the northwest corner
of Section 6, Township 29 South,
Range 32 East; then east to the
southwest corner of Section 31,
Township 28 South, Range 32 East;
then north along the range line
common to Range 31 East and Range
32 East to the northwest corner of
Section 6, Township 28 South, Range
32 East, then west to the southeast
corner of Section 36, Township 27
South, Range 31 East, then north
along the range line common to
Range 31 East and Range 32 East to
the Kern-Tulare County boundary.
San Joaquin Valley Area:
Fresno County....................... 11/15/90 Nonattainment............................ 12/10/2001 Severe-15.
[[Page 56484]]
Kern County (part) That portion of Kern 11/15/90 Nonattainment............................ 12/10/2001 Severe-15.
County that lies west and north of a
line described below: Beginning at the
Kern-Los Angeles County boundary and
running north and east along the
northwest boundary of the Rancho La
Liebre Land Grant to the point of
intersection with the range line common
to Range 16 West and Range 17 West, San
Bernardino Base and Meridian; north
along the range line to the point of
intersection with the Rancho El Tejon
Land Grant boundary; then southeast,
northeast, and northwest along the
boundary of the Rancho El Tejon Grant
to the northwest corner of Section 3,
Township 11 North, Range 17 West; then
west 1.2 miles; then north to the
Rancho El Tejon Land Grant boundary;
then northwest along the Rancho El
Tejon line to the southeast corner of
Section 34, Township 32 South, Range 30
East, Mount Diablo Base and Meridian;
then north to the northwest corner of
Section 35, Township 31 South, Range 30
East; then northeast along the boundary
of the Rancho El Tejon Land Grant to
the southwest corner of Section 18,
Township 31 South, Range 31 East; then
east to the southeast corner of Section
13, Township 31 South, Range 31 East;
then north along the range line common
to Range 31 East and Range 32 East,
Mount Diablo Base and Meridian, to the
northwest corner of Section 6, Township
29 South, Range 32 East; then east to
the southwest corner of Section 31,
Township 28 South, Range 32 East; then
north along the range line common to
Range 31 East and Range 32 East to the
northwest corner of Section 6, Township
28 South, Range 32 East, then west to
the southeast corner of Section 36,
Township 27 South, Range 31 East, then
north along the range line common to
Range 31 East and Range 32 East to the
Kern-Tulare County boundary.
Kings County............................ 11/15/90 Nonattainment............................ 12/10/2001 Severe-15.
Madera County........................... 11/15/90 Nonattainment............................ 12/10/2001 Severe-15.
Merced County........................... 11/15/90 Nonattainment............................ 12/10/2001 Severe-15.
San Joaquin County...................... 11/15/90 Nonattainment............................ 12/10/2001 Severe-15.
Stanislaus County....................... 11/15/90 Nonattainment............................ 12/10/2001 Severe-15.
Tulare County........................... 11/15/90 Nonattainment............................ 12/10/2001 Severe-15.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.
\2\ Attainment date is extended to November 15, 2001.
[FR Doc. 01-27289 Filed 11-7-01; 8:45 am]
BILLING CODE 6560-50-P