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Approval and Promulgation of Implementation Plans and Determination of Attainment of the 1-Hour Ozone Standard for the San Francisco Bay Area, California, and Determination Regarding Applicability of Certain Clean Air Act Requirements
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: October 31, 2003 (Volume 68, Number 211)]
[Proposed Rules]
[Page 62041-62046]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31oc03-23]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[CA 106-FOA; FRL-7580-7]
Approval and Promulgation of Implementation Plans and
Determination of Attainment of the 1-Hour Ozone Standard for the San
Francisco Bay Area, California, and Determination Regarding
Applicability of Certain Clean Air Act Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to determine that the San Francisco Bay Area
has attained the 1-hour ozone air quality standard by the deadline
required by the Clean Air Act. Based on this proposal, we also propose
to determine that the CAA's requirements for reasonable further
progress, attainment demonstration, and contingency provisions are not
applicable to the area for so long as the Bay Area continues to attain
the 1-hour ozone standard.
DATES: Comments on this proposal must be received by December 1, 2003.
ADDRESSES: Please address your comments to:
Ginger Vagenas, Air Planning Office (AIR-2), Air Division, U.S.
http://www.regulations.gov. 
Copies of the docket for this rulemaking are available for public
inspection during normal business hours at EPA's Region 9 office.
FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, U.S. EPA Region 9, at
(415) 972-3964, or vagenas.ginger@epa.gov
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. Attainment Finding
A. Bay Area's Ozone Designations and State Implementation Plans
B. Clean Air Act Provisions for Attainment Findings
C. Attainment Finding for the Bay Area
1. Adequacy of the Bay Area Ozone Monitoring Network
2. Bay Area's Ozone Design Value for the 2001-2003 Period
D. Attainment Findings and Redesignations to Attainment
II. Applicability of Clean Air Act Planning Requirements
A. EPA's Policy and its Legal Basis
1. Reasonable Further Progress
2. Attainment Demonstration
3. Contingency Measures
4. Remaining Nonattainment Area SIP Requirements
B. Effects of the Proposed Determination on the Bay Area and
Effects of a Future Violation on this Proposed Determination
C. Effect of the Proposed Determination on Transportation
Conformity
III. Summary of EPA Actions
IV. Administrative Requirements
I. Attainment Finding
A. Bay Area's Ozone Designations and State Implementation Plans
When the Clean Air Act (CAA) Amendments were enacted in 1990, each
area of the country that was designated nonattainment for the 1-hour
ozone National Ambient Air Quality Standard (NAAQS), including the San
Francisco Bay Area (``Bay Area''), was classified by operation of law
as marginal, moderate, serious, severe, or extreme depending on the
severity of the area's air quality problem.\1\ CAA sections
107(d)(1)(C) and 181(a). The Bay Area was classified as moderate. See
56 FR 56694 (November 6, 1991).
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\1\ The 1-hour ozone nonattainment area is the ``San Francisco-
Bay Area,'' which comprises Alameda, Contra Costa, Marin, Napa, San
Francisco, San Mateo, and Santa Clara Counties, and portions of
Solano and Sonoma Counties. See 40 CFR 81.305 (http://
www.access.gpo.gov/nara/cfr/waisidx_00/40cfr81_00.html).
EPA's 1-hour ozone standard of 0.12 ppm was promulgated in 1979
(44 FR 8202, February 8, 1979). On July 18, 1997, we promulgated a
revised ozone standard of 0.08 ppm, measured over an 8-hour period.
In general, the 8-hour standard is more protective of public health
and more stringent than the 1-hour standard. This proposed finding
addresses only the 1-hour standard. Areas will be designated
attainment or nonattainment for the 8-hour standard in 2004.
Ground-level ozone can irritate the respiratory system, causing
coughing, throat irritation, and uncomfortable sensations in the
chest. Ozone can also reduce lung function and make it more
difficult to breathe deeply, thereby limiting a person's normal
activity. Finally, ozone can aggravate asthma and can inflame and
damage the lining of the lungs, leading to permanent changes in lung
function. More details on ozone's health effects and the ozone NAAQS
can be found at the following Web site: http://www.epa.gov/ttn/naaqs/
standards/ozone/s_o3_index.html.
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EPA redesignated the Bay Area to attainment in 1995, based on then
current air quality data (60 FR 27029, May 22, 1995), and subsequently
redesignated the area back to nonattainment without classification on
July 10, 1998 (63 FR 37258), following renewed violations of the 1-hour
ozone standard. Upon the Bay Area's redesignation to nonattainment, we
required the State to submit a state implementation plan (SIP)
addressing applicable CAA provisions, including a demonstration of
attainment as
[[Page 62042]]
expeditiously as practicable but no later than November 15, 2000.
The Bay Area Air Quality Management District (BAAQMD), along with
its co-lead agencies--the Metropolitan Transportation Commission and
the Association of Bay Area Governments--prepared a 1-hour ozone
attainment plan, which was submitted by the California Air Resources
Board (CARB) on August 13, 1999. On September 20, 2001 (66 FR 48340),
we approved the emissions inventories, reasonable further progress
(RFP) provisions, control measure commitments, and contingency
measures. In the same rulemaking, we disapproved the remaining portions
of the SIP, i.e., the attainment demonstration and reasonably available
control measure (RACM) provision, issued a finding that the area failed
to attain by the applicable deadline, and set a new attainment deadline
of ``as expeditiously as practicable'' but no later than September 20,
2006.
On November 30, 2001, CARB submitted the Bay Area's 2001 Plan,
addressing the new attainment deadline.\2\ On July 16, 2003 (68 FR
42174), we proposed to approve the following elements of the 2001 Plan:
attainment assessment, motor vehicle emissions budgets, and commitments
to adopt control measures and to adopt and submit a plan revision by
April 15, 2004, based on new modeling. On the same date, we issued an
interim final determination that the 2001 Plan corrects the
deficiencies in the 1999 Plan, thereby staying the CAA section 179
offset sanction and deferring the imposition of the highway sanction
triggered by our September 20, 2001 disapproval. 68 FR 42172.
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\2\ An electronic copy of the plan is available at
http://www.baaqmd.gov/planning/2001sip/2001sip.htm and at the BAAQMD
offices at 939 Ellis Street, San Francisco, CA 94105.
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On October 16, 2003, William C. Norton, Executive Officer of the
BAAQMD, sent a letter to Catherine Witherspoon, CARB Executive Officer,
reporting that the Bay Area has attained the national 1-hour ozone
standard and stating that, based on the monitoring data, a finding of
attainment would be appropriate. Mr. Norton also stated that: ``We are
continuing our air quality planning and rule development work in order
to achieve additional reductions in ozone precursor emissions. We want
to reduce local ozone and transport, and to maintain progress toward
the state standard. The District's and ARB's staffs have been working
intensively on the modeling and rule review phases of our mid-course
review for the 2004 ozone planning process.''
On October 21, 2003, CARB formally requested that we make a finding
of attainment for the 1-hour ozone NAAQS for the Bay Area (letter from
Catherine Witherspoon to Wayne Nastri, Regional Administrator, EPA
Region 9). The CARB letter endorsed the BAAQMD's commitment to continue
to reduce ozone precursor emissions in order to ensure progress toward
attaining the national 8-hour ozone standard in the Bay Area and
downwind areas, the more protective State ozone standard, and the
national fine particulate matter (PM2.5) standards.
B. Clean Air Act Provisions for Attainment Findings
Under CAA section 181(b)(2)(A), we must determine within six months
of the applicable attainment date whether an ozone nonattainment area
has attained the standard, basing our determination on the area's
design value as of its applicable attainment date. Although the Bay
Area is not subject to this provision and the attainment deadline for
the area has not yet been reached, we are making an attainment finding
based on the Bay Area's current air quality data and design value,
which is in attainment of the 1-hour ozone NAAQS.
The 1-hour ozone NAAQS is 0.12 ppm, not to be exceeded on average
more than 1 day per year over any 3-year period. 40 CFR 50.9 and
appendix H. Under our policies, we determine if an area has attained
the 1-hour standard by calculating, at each monitor, the average number
of days over the standard per year during the preceding 3-year
period.\3\ For this proposal, we have based our determination of
attainment on both the design value and the average number of
exceedance days per year for the period 2001 through 2003.
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\3\ See generally 57 FR 13506 (April 16, 1992) and Memorandum
from D. Kent Berry, Acting Director, Air Quality Management
Division, EPA, to Regional Air Office Directors; ``Procedures for
Processing Bump Ups and Extensions for Marginal Ozone Nonattainment
Areas,'' February 3, 1994 (http://www.epa.gov/ttn/oarpg/t1/memoranda/
o_bump.pdf). While explicitly applicable only to marginal
areas, the general procedures for evaluating attainment in this
memorandum apply regardless of the initial classification of an area
because all findings of attainment are made pursuant to the same
procedures.
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The design value is an ambient ozone concentration that indicates
the severity of the ozone problem in an area and is used to determine
the level of emission reductions needed to attain the standard, that
is, it is the ozone level around which a state designs its control
strategy for attaining the ozone standard. A monitor's design value is
the fourth highest ambient concentration recorded at that monitor over
the previous 3 years. An area's design value is the highest of the
design values from the area's monitors.\4\
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\4\ The fourth highest value is used as the design value because
a monitor may record up to 3 exceedances of the standard in a 3-year
period and still show attainment, since 3 exceedances over 3 years
would average 1 day per year, the maximum allowed to show attainment
of the 1-hour ozone standard. If the monitor records a fourth
exceedance in that period, it would average more than 1 exceedance
day per year and would no longer show attainment. Therefore, if a
state can reduce the fourth highest ozone value to below the
standard, thus preventing a fourth exceedance, then it will be able
to demonstrate attainment.
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We make attainment determinations for ozone nonattainment areas
using all available, quality-assured air quality data for the current
or applicable 3-year period.\5\ Consequently, we used all of the 2001,
2002, and 2003 data available to determine whether the Bay Area
attained the 1-hour ozone standard by the end of the 2003 ozone season.
From the available air quality data, we have calculated the average
number of days over the standard and the design value for each ozone
monitor in the Bay Area nonattainment area.
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\5\ This includes all data that are available from the state and
local/national air monitoring station (SLAMS/NAMS) network as
submitted to EPA's Aerometric Information Retrieval System-Air
Quality Subsystem (AIRS-AQS) database and certified as final. Also
included are all data available to EPA from special purpose
monitoring (SPM) sites that meet the requirements of 40 CFR 51.18.
See Memorandum dated August 22, 1997, from John Seitz to Regional
Air Directors, entitled ``Agency Policy on the Use of Ozone Special
Purpose Monitoring Data'' (http://www.epa.gov/ttn/naaqs/ozone/
ozonetech/spm82297.htm). Monitoring data for the 2003 ozone
season must be certified by the BAAQMD prior to publication of the
final attainment finding.
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C. Attainment Finding for the Bay Area
1. Adequacy of the Bay Area Ozone Monitoring Network
Determining whether or not an area has attained under CAA section
181(b)(1)(A) is based on monitored air quality data. Thus, the validity
of a determination of attainment depends on whether the monitoring
network adequately measures ambient ozone levels in the area.
We evaluate 4 basic elements in determining the adequacy of an
area's ozone monitoring network. The network needs to meet the design
requirements of 40 CFR part 58, appendix D; the network needs to
utilize monitoring equipment designated as reference or equivalent
methods under 40 CFR part 53; the agency or agencies operating the
equipment need to have a quality assurance plan in place that meets the
[[Page 62043]]
requirements of 40 CFR part 58, appendix A; and, for urban areas with
populations greater than 200,000, at least two monitoring sites must be
designated as National Air Monitoring Stations (NAMS). The ozone
network in the Bay Area meets or exceeds these requirements and is
therefore adequate for use in determining the ozone attainment status
of the area.\6\
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\6\ These requirements are addressed in ``System Audit of the
Ambient Monitoring Program of Bay Area Air Quality Management
District, November 26-30, 2001.'' The system audit report is
included in the docket for this rulemaking.
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2. The Bay Area's Ozone Design Value for the 2001-2003 Period
We have listed in Table 1 the design values and the average number
of exceedance days per year for the 2001 to 2003 period for each
monitoring site in the Bay Area. We calculated the design values
following the procedures in the Laxton memo.\7\ We have used the
established rounding conventions set forth in our guidance documents
and regulations.\8\
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\7\ See memorandum, William G. Laxton, Director, Technical
Support Division, Office of Air Quality Planning and Standards to
Regional Air Directors, ``Ozone and Carbon Monoxide Design Value
Calculations,'' June 18, 1990 (http://www.epa.gov/oar/oaqps/greenbk/
laxton.html).
\8\ Although the 1-hour ozone NAAQS itself includes no
discussion of specific data handling conventions, our publicly
articulated position and the approach long since universally adopted
by the air quality management community is that the interpretation
of the 1-hour ozone standard requires rounding ambient air quality
data consistent with the stated level of the standard, which is 0.12
parts per million (ppm). 40 CFR 50.9(a) states that: ``The level of
the national 1-hour primary and secondary ambient air quality
standards for ozone * * * is 0.12 parts per million. * * * The
standard is attained when the expected number of days per calendar
year with maximum hourly average concentrations above 0.12 parts per
million * * * is equal to or less than 1, as determined by appendix
H to this part.'' (http://a257.g.akamaitech.net/7/257/2422/
08aug20031600/edocket.access.gpo.gov/cfr_2003/julqtr/pdf/40cfr50.9.pdf)
We have clearly communicated the data handling
conventions for the 1-hour ozone NAAQS in regulation and guidance
documents, as discussed below. In the 1990 CAA Amendments, Congress
expressly recognized the continuing validity of EPA guidance.
As early as 1977, EPA issued guidance that the level of our
NAAQS dictates the number of significant figures to be used in
determining whether the standard was exceeded. Guidelines for the
Interpretation of Air Quality Standards, OAQPS No. 1.2-008, February
1977 (http://www.epa.gov/ttn/amtic/files/ambient/criteria/reldocs/
12008-77.pdf).
In addition, the regulations governing the reporting
of annual summary statistics from ambient monitoring stations for
use by EPA in determining national air quality status clearly
indicate the rounding convention to be used for 1-hour ozone data.
``The air quality concentration should be rounded to the number of
significant digits used in specifying the concentration intervals.
The digit to the right of the last significant digit determines the
rounding process. If this digit is greater than or equal to 5, the
last significant digit is rounded up. The insignificant digits are
truncated. For example, 100.5 ug/m3 rounds to 101 up/m3 and 0.1245
ppm rounds to 0.12 ppm.'' 40 CFR part 58, appendix F, 2 Required
Information (http://www.access.gpo.gov/nara/cfr/waisidx_00/
40cfr58_00.html).
Table 1.--Average Number of 1-Hour Ozone Exceedance Days per Year and
Design Values by Monitor in the Bay Area, 2001-2003
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Average number of
Site exceedance days per Site design value
year (ppm)
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Bethel Island (SLAMS)......... 0.3 0.102
Concord (NAMS)................ 0.3 0.106
Crockett (SPM)................ 0 0.081
Fairfield (SLAMS)............. 0 0.101
Fremont (NAMS)................ 0 0.106
Gilroy (SLAMS)................ 0 0.116
Hayward (SLAMS)............... 0 0.097
Livermore (NAMS).............. 1.0 0.123
Los Gatos (NAMS).............. 0 0.113
Napa (SLAMS).................. 0 0.099
Oakland (SLAMS)............... 0 0.069
Oakland--Fruitvale (SPM)...... 0 0.068
Pittsburg (SLAMS)............. 0 0.103
Redwood City (SLAMS).......... 0 0.090
San Francisco (SLAMS)......... 0 0.061
San Jose Central (SLAMS)...... 0 0.099
San Jose East (SLAMS)......... 0 0.091
San Leandro (SLAMS)........... 0 0.093
San Martin (SLAMS)............ 0 0.115
San Pablo (SLAMS)............. 0 0.071
San Rafael (SLAMS)............ 0 0.077
Santa Rosa (SLAMS)............ 0 0.086
Sunnyvale (SLAMS)............. 0 0.096
Vallejo (SLAMS)............... 0 0.091
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Note: Each of these sites is operated by BAAQMD. All data are reported
to EPA's AIRS-AQS database.
From Table 1, it is apparent that the highest design value at any
monitor, and thus the design value for the Bay Area, is 0.123 ppm at
the Livermore site. No monitor in the Bay Area recorded an average of
more than 1 exceedance of the 1-hour ozone standard per year during the
2001 to 2003 period.
Because the area's design value is below the 0.12 ppm 1-hour ozone
standard for the 2001 to 2003 period, we propose to find that the Bay
Area has attained the 1-hour ozone standard.
D. Attainment Findings and Redesignations to Attainment
A finding that an area has attained the 1-hour ozone standard does
not redesignate the area to attainment for the 1-hour standard nor does
it guarantee a future redesignation to attainment.
The redesignation of an area to attainment under CAA section
107(d)(3)(E) is a separate process from a finding of attainment. Unlike
an attainment finding where we need only determine that the area has
had the pre-requisite number of clean years, a redesignation requires
multiple determinations. Under section 107(d)(3)(E), these
determinations are:
[[Page 62044]]
1. We must determine, at the time of the redesignation, that the
area has attained the relevant NAAQS.
2. The state must have a fully approved SIP for the area.
3. We must determine that the improvements in air quality are due
to permanent and enforceable reductions in emissions resulting from
implementation of the SIP and applicable federal regulations and other
permanent and enforceable reductions.
4. We must have fully approved a maintenance plan for the area
under CAA section 175A.
5. The state must have met all the nonattainment area requirements
applicable to the area.
It is possible, although not expected, that the Bay Area could
violate the 1-hour ozone NAAQS before a maintenance plan is adopted,
submitted, and approved, and the area is redesignated to attainment. If
such a violation were to occur after our finding of attainment, and if
expedited implementation of contingency measures were to prove
insufficient to eliminate future violations, we believe that issuance
of a SIP call under section 110(k)(5) would be an appropriate response.
This SIP call could require the State to submit, by a reasonable
deadline not to exceed 18 months, a revised plan demonstrating
expeditious attainment and complying with other requirements applicable
to the area at the time of this finding.
In proposed implementation guidance for the 8-hour ozone NAAQS, we
have also discussed other options for areas that have attained the 1-
hour ozone standard but subsequently violate the 1-hour NAAQS in the
transition period before implementation of the 8-hour ozone SIP
provisions. EPA's final guidance may establish approaches for ensuring
continued clean air progress while minimizing any inefficiencies and
diversions of air quality planning resources.
II. Applicability of Clean Air Act Planning Requirements
A. EPA's Policy and Its Legal Basis
When we redesignated the Bay Area back to nonattainment, we
concluded that the Bay Area became subject to the provisions of subpart
1 rather than subpart 2 of the Clean Air Act. 63 FR 37258 (July 10,
1998). CAA subpart 1 at section 172(c) requires states to submit plans
with certain revisions. These provisions include: emissions
inventories, attainment demonstration, reasonable further progress
(RFP), reasonably available control measures (RACM), contingency
measures, and new source review (NSR).
For the reasons described below and discussed in our Ozone Clean
Data Policy, we believe that it is reasonable to interpret the CAA not
to require the 3 provisions discussed below for ozone nonattainment
areas that are determined to be meeting the 1-hour ozone standard.\9\
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\9\ See memorandum, John S. Seitz, Director, OAQPS, EPA, to
Regional Air Directors, ``Reasonable Further Progress, Attainment
Demonstrations, and Related Requirements for Ozone Nonattainment
Areas Meeting the Ozone National Ambient Air Quality Standard,'' May
10, 1995 (http://www.epa.gov/ttn/oarpg/t1/memoranda/clean15.pdf). We
have also explained at length in other actions our rationale for the
reasonableness of this interpretation of the Act and incorporate
those explanations by reference here. See 61 FR 20458 (May 7, 1996)
(Cleveland-Akron-Lorrain, Ohio); 60 FR 36723 (July 18, 1995) (Salt
Lake and Davis Counties, Utah); 60 FR 37366 July 20, 1995) and 61 FR
31832-31833 (June 21, 1996) (Grand Rapids, MI); and 65 FR 31859 (May
19, 2000) and 66 FR 29230 (May 30, 2001) (Phoenix, Arizona). Our
interpretation has also been upheld by the United States Court of
Appeals for the 10th Circuit in Sierra Club v. EPA, 99 F.3d 1551
(10th Cir. 1996) (http://www.law.emory.edu/10circuit/nov96/
95-9541.wpd.html).
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1. Reasonable Further Progress
CAA Section 171(1) states that, for purposes of part D of Title I,
RFP ``means such annual incremental reductions in emissions of the
relevant air pollutant as are required by [Part D]
or may reasonably be
required by the Administrator for the purpose of ensuring attainment of
the applicable national ambient air quality standard by the applicable
date.'' Thus, the stated purpose of RFP is to ensure attainment by the
applicable attainment date. If an area has in fact attained the
standard, the stated purpose of the RFP requirement will have already
been fulfilled.
Consequently, we do not believe that a state needs to submit
revisions providing for the further emission reductions to meet the RFP
provisions of section 172(c)(2) for areas meeting the 1-hour ozone
standard. We note that we took this view with respect to the general
RFP requirement of section 172(c)(2) in our ``General Preamble for the
Interpretation of Title I of the Clean Air Act Amendments of 1990'' at
57 FR 13498 (April 16, 1992). In the General Preamble, we stated, in
the context of a discussion of the requirements applicable to the
evaluation of requests to redesignate nonattainment areas to
attainment, that the ``requirements for RFP will not apply in
evaluating a request for redesignation to attainment since, at a
minimum, the air quality data for the area must show that the area has
already attained. Showing that the State will make RFP towards
attainment will, therefore, have no meaning at that point.'' (57 FR
13564.) See also ``Procedures for Processing Requests to Redesignate
Areas to Attainment,'' from John Calcagni, Director, Air Quality
Management Division, to Regional Air Division Directors, September 4,
1992 (``Calcagni memo'') (http://www.epa.gov/ttn/naaqs/ozone/ozonetech/
940904.pdf). The memo states that the ``requirements for reasonable
further progress * * * will not apply for redesignations because they
only have meaning for areas not attaining the standard'' (page 6).
2. Attainment Demonstration
Analogous reasoning applies to the attainment demonstration
requirement. Section 172(c)(1) requires that a state submit a SIP
revision that will provide for attainment of the NAAQS. If an area has
in fact monitored attainment of the standard based on existing
controls, we believe that it is not necessary for the state to make a
further submission containing additional measures or demonstrations to
show attainment.
This belief is also consistent with our interpretation of certain
section 172(c) requirements in the General Preamble to Title I, where
we stated there that no other measures to provide for attainment would
be needed by areas seeking redesignation to attainment since
``attainment will have been reached.'' (57 FR 13564; see also Calcagni
memo at page 6.)
Upon attainment of the NAAQS, the focus of state planning efforts
shifts to the maintenance of the NAAQS and the development of a
maintenance plan under section 175A.
3. Contingency Measures
CAA section 172(c)(9) requires a state to submit contingency
measures that will be implemented if an area fails to make RFP or fails
to attain by the applicable attainment date. We have previously
interpreted the contingency measure requirement of section 172(c)(9) as
no longer applying once an area has attained the standard since those
``contingency measures are directed at ensuring RFP and attainment by
the applicable date.'' See 57 FR 13564; see also the Calcagni memo at
page 6.
4. Remaining Nonattainment Area SIP Requirements
A number of CAA subpart 1 SIP requirements for nonattainment areas
are not tied to whether the area has attained the 1-hour standard. The
State remains obligated to submit these requirements for the Bay Area
even if
[[Page 62045]]
we finalize today's proposed determination that the area has attained
the 1-hour standard and that the CAA planning requirements discussed
above no longer apply to the area. These requirements include: A
current, comprehensive, and accurate emission inventory of actual
emissions (section 172(c)(3)); reasonable available control measures
(section 172(c)(1)); and an NSR program (sections 172(c)(5) and 173(a).
When we take final action on this finding of attainment, we intend to
take final action on the 2001 Plan, including whether the emissions
inventories and control measures in the plan satisfy the applicable
subpart 1 requirements. We have previously acted on the Bay Area's NSR
program. See, for example, 65 FR 56284 (September 18, 2000).
B. Effects of the Proposed Determination on the Bay Area and Effects of
a Future Violation on This Proposed Determination
If we finalize today's proposed determinations for the Bay Area,
then the State will no longer be required to submit an RFP plan, an
attainment demonstration, or contingency measures for the area. Any
sanction clocks under CAA section 179(a) or requirements that we
promulgate a federal implementation plan under CAA section 110(c) for
these SIP requirements are suspended.
The suspension of the requirement to submit these SIP revisions and
the suspension of sanction clocks/FIP requirements will exist only as
long as the Bay Area continues to attain the 1-hour ozone standard. If
we subsequently determine that the Bay Area has violated the 1-hour
ozone standard (prior to a redesignation to attainment), the basis for
the determination that the area need not make these SIP revisions would
no longer exist. Thus, a determination that an area need not submit
these SIP revisions amounts to no more than a suspension of the
requirement for so long as the area continues to attain the standard.
Should the Bay Area begin to violate the 1-hour standard, we will
notify the State that we have determined that the area is no longer
attaining the 1-hour standard. We also will provide notice to the
public in the Federal Register, and we will at that time indicate what
pertinent SIP provisions apply and when a SIP revision addressing those
provisions must be submitted.
California must continue to operate an appropriate air quality
monitoring network, in accordance with 40 CFR part 58, to verify the
attainment status of the area. The air quality data relied upon to
determine that the area is attaining the ozone standard must be
consistent with 40 CFR part 58 requirements and other relevant EPA
guidance.
C. Effect of the Proposed Determination on Transportation Conformity
CAA section 176(c) requires that federally funded or approved
transportation actions in nonattainment areas ``conform'' to the area's
air quality plans. Conformity ensures that federal transportation
actions do not worsen an area's air quality or interfere with its
meeting the air quality standards.
One of the primary tests for conformity is to show that
transportation plans and improvement programs will not cause motor
vehicle emissions higher than the levels needed to make progress toward
and to meet the air quality standards. These motor vehicle emissions
levels are set in an area's attainment, maintenance and/or RFP
demonstrations and are known as the ``transportation conformity
budgets.''
We found the motor vehicle emissions budgets in the 2001 Plan
adequate on February 14, 2002. 67 FR 8017 (February 21, 2002). A
finding that the Bay Area has attained the 1-hour standard and that the
State no longer needs to submit attainment and RFP demonstrations will
not affect the continued applicability of these budgets. If the
attainment demonstration is withdrawn, however, the continued
applicability of the budgets could be affected.
III. Summary of EPA Actions
We are proposing to find that the Bay Area has attained the 1-hour
ozone NAAQS. We are also proposing to determine that certain CAA
requirements (RFP, attainment assessment, and contingency measures) no
longer apply to the Bay Area should the attainment finding be
finalized.
IV. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
proposed action merely proposes to find that an area has attained a
previously-established national ambient air quality standard based on
an objective review of measured air quality data. It also proposed to
determine that certain Clean Air Act requirements no longer apply to
the Bay Area because of the attainment finding. If finalized, it would
not impose any new regulations, mandates, or additional enforceable
duties on any public, nongovernmental, or private entity. Accordingly,
the Administrator certifies that this proposed 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.). Because
this proposed rule does not impose any additional enforceable duty, it
does not contain any unfunded mandate or significantly or uniquely
affect small governments, as described in the Unfunded Mandates Reform
Act of 1995 (Pub. L. 104-4).
This proposed 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 (59 FR 22951, November 9, 2000). This action 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). This action
merely proposes to determine that an area has attained a Federal
standard and thus is not subject to certain specific requirements, and
does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. This proposed rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C.
[[Page 62046]]
272 note) do not apply. This proposed 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.).
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, 2003.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 03-27487 Filed 10-30-03; 8:45 am]
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