Clean Air Act Reclassification and Finding of Failure to Implement a State Implementation Plan; California, San Joaquin Valley Nonattainment Area; Ozone

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Other Related Documents

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: June 19, 2000 (Volume 65, Number 118)]
[Proposed Rules]
[Page 37926-37932]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jn00-25]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[CA-019-FOI, FRL-6719-2]

Clean Air Act Reclassification and Finding of Failure to
Implement a State Implementation Plan; California, San Joaquin Valley
Nonattainment Area; Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to find that the San Joaquin Valley serious ozone
nonattainment area did not attain the 1-hour ozone national ambient air
quality standard by November 15, 1999, the Clean Air Act's (CAA)
attainment deadline for serious ozone nonattainment areas. If EPA makes
final this proposed finding, the San Joaquin Valley nonattainment area
will be reclassified by operation of law to severe.
EPA also proposes to find that the approved serious area ozone
State Implementation Plan for the San Joaquin Valley nonattainment area
has not been fully implemented. If EPA makes final this proposed
nonimplementation finding, the San Joaquin Valley Unified Air Pollution
Control District will have to correct the specified deficiencies within
18 months of the final finding or be subject to sanctions pursuant to
section 179(b) of the CAA.

DATES: Comments on these proposed actions must be received by July 19,
2000.

ADDRESSES: Comments may be mailed to: John Ungvarsky, Planning Office
(AIR-2), Air Division, EPA Region IX, 75 Hawthorne Street, San
Francisco, CA 94105; ungvarsky.john@epa.gov.
Copies of the proposed rule, the technical support document for
this rulemaking, and EPA policies governing nonattainment and
nonimplementation findings are contained in the docket for this
rulemaking. The docket is available for inspection during normal
business hours at the address listed above. A copy of this proposed
rule and the TSD are also available in the air programs section of EPA
Region 9's website, http://www.epa.gov/region09.

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.

SUPPLEMENTARY INFORMATION:

[[Page 37927]]

I. The Proposed Finding of Failure To Attain

A. The San Joaquin Valley's Current Status for the 1-Hour Ozone
Standard

The San Joaquin Valley ozone nonattainment area includes the
southern portion of California's central valley and the eastern part of
Kern County that is located in the Southeast Desert Air Basin. The
local air pollution control agency for the Valley portion of the
nonattainment area is the San Joaquin Valley Unified Air Pollution
Control District (SJVUAPCD) and for eastern Kern, the Kern County Air
Pollution Control District (KCAPCD). The area is currently classified
as serious for the 1-hour ozone national ambient air quality standard
(NAAQS). 40 CFR Sec. 81.305.
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 standard, including the San Joaquin Valley, was classified by
operation of law as ``marginal,'' ``moderate,'' ``serious,''
``severe,'' or ``extreme'' depending on the severity of the area's air
quality problem. CAA sections 107(d)(1)(C) and 181(a). Based on its air
quality during the 1987-1989 period, the San Joaquin Valley
nonattainment area was initially classified as serious with an
attainment date of no later than November 15, 1999. See 56 FR 56694
(November 6, 1991) and CAA section 181(a)(1).

B. Clean Air Act Requirements 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 1-hour ozone standard. If we find that a serious area
has not attained the standard and does not qualify for an extension, it
is reclassified by operation of law to severe.\1\ CAA section
181(b)(2)(A) requires us to base our determination of attainment or
failure to attain on the area's design value as of its applicable
attainment date, which for the San Joaquin Valley nonattainment area is
November 15, 1999.
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\1\ If a state does not have the clean data necessary to show
attainment of the 1-hour standard but does have clean air in the
year immediately preceding the attainment date and has fully
implemented its applicable SIP, it may apply to us, under CAA
section 181(a)(5), for a one-year extension of the attainment date.
We do not discuss this provision further in today's proposal because
California did not apply for an extension of the attainment date for
the San Joaquin Valley nonattainment area, the area did not have the
requisite clean air data, and, as we propose to find, the State has
not implemented its applicable SIP.
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The 1-hour ozone NAAQS is 0.12 ppm not to be exceeded on average
more than one day per year over any three year period. 40 CFR Sec. 50.9
and Appendix H. Under our policies, we determine if an area has
attained the one-hour standard by calculating, at each monitor, the
average number of days over the standard per year during the preceding
three year period.\2\ 40 CFR part 50, Appendix H. This means that if an
area has four or more exceedances at a single monitor during a 3-year
period, the average number of exceedance days per year exceeds one and
the area has not attained the standard. For this proposal, we have
based our determination of whether the San Joaquin Valley nonattainment
area attained the 1-hour ozone standard by November 15, 1999 on both
the area's design value and the average number of exceedance days per
year during the 1997 to 1999 period.
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\2\ 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. 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 Clean Air Act requirements in section 181(b)(2).
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The effect of a reclassification to severe on the San Joaquin
Valley nonattainment area is to set a new attainment deadline for the
area of November 15, 2005 and to require the State to submit a new
attainment plan that meets the CAA's requirements for severe ozone
nonattainment areas. CAA sections 181(a) and 182(i). Under section
182(i), we may set the submittal deadlines for these new planning
requirements.

C. The San Joaquin Valley Nonattainment Area Failed to Attain by its
CAA Deadline

Table 1 lists each monitoring site in the San Joaquin Valley
nonattainment area that experienced 4 or more days over the standard in
the period 1997 to 1999. For each of these monitors, the table lists
the number of days over the standard, average number of days per year
over the standard, and the design value during the 1997 to 1999 period.
For each of these sites, the average number of exceedance days per year
over the 3-year period 1997-1999 exceeds one. The area's design value,
which is the highest design value among the area's monitors, is 0.161
at the Clovis monitor. Because the average number of exceedance days
per year for 1997-99 exceeds one and the area's design value is above
the 1-hour ozone standard of 0.12 ppm, we are proposing the find that
the San Joaquin Valley serious ozone nonattainment area failed to
attain by its applicable CAA deadline of November 15, 1999.

Table 1.--Ozone Air Quality in the San Joaquin Valley Nonattainment Area
(1997-1999)
------------------------------------------------------------------------
Number of Average
days over number of
Monitoring site the exceedance Site design
standard days per value (ppm)
1997-1999 year
------------------------------------------------------------------------
Fresno--4706 E. Drummond........ 12 4.0 0.137
Fresno--3425 N. First........... 20 6.7 0.146
Fresno--Sierra Skypark#2........ 15 5.0 0.141
Parlier......................... 36 12.0 0.145
Clovis.......................... 40 13.3 0.161
Edison.......................... 27 8.3 0.154
Maricopa (97-98 only)........... 8 4 0.137
Arvin........................... 28 6.3 0.137
Hanford......................... 7 2.3 0.128
Turlock......................... 4 1.3 0.127
Visalia......................... 8 2.7 0.127
Merced.......................... 5 1.7 0.132

[[Page 37928]]

Edwards \3\..................... 6 2.0 0.139
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D. Failure To Attain Triggers Reclassification to Severe Nonattainment
and Required Submittal of a Severe Area Plan

Under section 181(a)(1) of the Act, the attainment deadline for
serious ozone nonattainment areas reclassified to severe under section
181(b)(2) is as expeditiously as practicable but no later than November
15, 2005. Under section 182(i), such areas are required to submit SIP
revisions addressing the severe area requirements for the 1-hour ozone
NAAQS. These requirements are found in CAA section 182(d). Section
182(i) further provides that we may adjust the CAA deadlines for
submitting these severe area SIP requirements.
Pursuant to section 182(i), we intend to require submittal of the
severe area SIP revisions no later than 18 months from the effective
date of the area's reclassification. We believe that an 18-month
schedule is appropriate because of the complexities of developing a
revised attainment and rate of progress plan for the area and then
preparing a new, severe area plan. Furthermore, it allows the San
Joaquin Valley to incorporate into the federally-required severe area
plan elements of the California Clean Air Act-mandated revisions to its
state plan that are due in December 2000.\4\
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\3\ The Edwards monitor is a special purpose monitor (SPM)
operated by the Air Force on Edwards Air Force Base in eastern Kern
County. Under applicable Agency policy, we make attainment
determinations for ozone nonattainment areas using all available,
quality-assured air quality data including any available quality-
assured data from SPM sites that meet the requirements of 40 CFR
Sec. 58.13. See Memorandum John Seitz, Director, OAQPS, to Regional
Air Directors; ``Agency Policy on the Use of Ozone Special Purpose
Monitoring Data,'' August 22, 1997. We have evaluated the Edwards
site and its quality assurance information and have determined that
its data are valid for this attainment determination and therefore
should be used in making the finding of nonanttainment.
\4\ Under the California Clean Air Act, air districts must
submit a progress report and plan revision to the State every three
years. The deadline for the next triennial update is December 2000.
(See California Health & Safety Code Sections 40924(b) and
40925(a).)
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Under section 182(d), severe area plans are required to meet all
the requirements for serious area plans plus the requirements for
severe areas, including, but not limited to: (1) a 25 ton per year
major stationary source threshold; (2) additional reasonably available
control technology (RACT) rules for sources subject to the new lower
major source applicability cutoff; (3) a new source review (NSR) offset
requirement of at least 1.3 to 1; (4) a rate of progress in emission
reductions of ozone precursors of at least 3 percent per year from 2000
until the attainment year; and (5) a fee requirement for major sources
of volatile organic compounds (VOC) and nitrogen oxides
(NO_X) \5\ should the area fail to attain by 2005.\6\ We have
issued a ``General Preamble for the Implementation of Title I of the
Clean Air Act Amendments of 1990'' that sets forth our preliminary
views on these section 182 requirements and how we will act on SIPs
submitted under Title I. See generally 57 FR 13498 (April 16, 1992) and
57 FR 18070 (April 28, 1992).
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\5\ Ozone is not emitted directly into the air, but is formed
through the photochemical reaction of NO_X and VOCs.
\6\ 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. This date can be adjusted pursuant to CAA
section 182(i). We propose to adjust this date to coincide with the
submittal deadline for the rest of the severe area plan
requirements.
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The San Joaquin Valley's severe area plan must also contain adopted
regulations, and/or enforceable commitments to adopt and implement
control measures in regulatory form by specified dates, sufficient to
make the required rate of progress and to attain the 1-hour ozone NAAQS
as expeditiously as practicable but no later than November 15, 2005. It
is the responsibility of the California Air Resources Board (CARB) and
the air districts to determine the appropriate mix of measures.
Nevertheless, for the SJVUAPCD, we strongly suggest that consideration
be given to including in the revised plan measures for source
categories where CARB has identified the current San Joaquin Valley
requirements as not meeting the State's ``all feasible measures''
criteria. These source categories are: Restaurants, Chain Driven
Charbroilers; Stationary IC Engines; Bakery Ovens; Fugitive Emissions
of VOC from Oil and Gas Production and Processing Facilities;
Refineries; Chemical Plants and Pipeline Transfer Stations; Refinery
Boilers (also Small Industrial, Institutional and Commercial Boilers,
Steam Generators and Process Heaters); Adhesives and Sealants;
Automotive Refinishing; Pleasure Craft Coating Operations; Stationary
Gas Turbines; and Polymeric Foam Product Manufacturing.\7\
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\7\ The CCAA requires that California air districts develop
attainment plans that achieve a five percent per year reduction in
each nonattainment pollutant (or its precursors) or that rely on the
implementation of all feasible measures to reach attainment
(California Health & Safety Code Section 40914). CARB continually
evaluates State air plans against the all feasible measures
criteria. CARB's most recent evaluation of the San Joaquin Valley's
compliance with the all feasible measures provision of the CCAA was
released in the October 8, 1999 staff report entitled ``Public
hearing to Consider Approval of the San Joaquin Valley Unified Air
Pollution Control District's Triennial Progress Report and Plan
Revision 1995-1997 Under the California Clean Air Act.''
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The new attainment demonstration should be based on the best
information available. Currently, there is a comprehensive ozone study
being undertaken in the Central Valley, called the Central California
Ozone Study (CCOS). While we realize that the results from CCOS may not
be completed in time to develop a new air quality model for use in the
severe area plan, the State should, to the extent possible, use
available new data from CCOS to improve the performance of the existing
model.
Two of the new severe area SIP requirements, the 25 ton per year
(tpy) major source cutoff for VOC and NO_X and the NSR offset
ratio of 1.3:1, will require revisions to existing SJVUAPCD and KCAQMD
regulations. We discuss the timeframes for these revisions below.
1. San Joaquin Valley Unified APCD
We propose that San Joaquin Valley Rule 2201, which implements the
federal NSR program, must be revised within 180 days of the final date
of the reclassification to ensure that the District's definitions of
``Major Source'' and ``Distance Offset Ratio'' reflect the new severe
area requirements.\8\ We

[[Page 37929]]

propose to set the deadline to complete and submit such rule revisions
at 180 days because it is consistent with the 6 month time frame we
gave Sacramento to revise its NSR rule following a reclassification to
severe \9\ and with the time frame provided for similar changes in the
Title V operating permits arena (40 CFR part 70.4(i)). See below. If
SJVUAPCD fails to submit NSR rule revisions that address the new severe
area requirements within the 180-day deadline, we will start a
sanctions clock pursuant to CAA section 179(a)(1) for failure to submit
a required SIP revision.
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\8\ Section 182(i) of the CAA allows EPA to adjust any
applicable deadlines ``* * * to the extent such adjustment is
necessary or appropriate to assure consistency among the required
submissions.''
\9\ Letter from David P. Howekamp, Director of the Air & Toxics
Division, EPA Region IX, to James Boyd, Executive Officer, CARB,
dated June 8, 1995.
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San Joaquin Valley Rule 2520, which implements the federal Title V
operating permits program, must also be revised within 180 days of the
final date of the reclassification to ensure that the District's
definition of ``major source'' (and hence, Title V applicability)
reflects the lower VOC and NO_X threshold (40 CFR part
70.4(i)). Since the District's definition of ``Major Source'' in Rule
2520 references the District's NSR definition of ``New and Modified
Stationary Source,'' the necessary revision could be accomplished
simply by modifying NSR Rule 2201. If the required revision is not made
within 180 days, then the San Joaquin Valley will be subject to the
sanctions provisions outlined in 40 CFR sections 70.10(a)(1)(i) and
(ii).
The lowering of the major source threshold from 50 tpy to 25 tpy
will make sources previously considered nonmajor to become major,
thereby subjecting them to Title V. These newly major sources must
submit Title V permit applications within one year of the date that the
SJVUAPCD makes the required revision to Rule 2520. The District then
has 18 months from receipt of a complete application to take final
action on each permit application (40 CFR part 70.7(a)(2)). We
recognize that the new lower threshold of 25 tpy is expected to result
in an almost doubling of Title V sources in the San Joaquin Valley. We
will work with the District in meeting the 18-month permit issuance
deadline and will evaluate their progress at that time.
2. Kern County APCD
We propose that Kern County Rule 210.1, which implements the
federal NSR program, must be revised within 180 days of the final date
of the reclassification to ensure that the District's definition of
``Major Source'' reflects the new severe area requirements. We propose
to set the deadline to complete and submit such rule revisions at 180
days because it is consistent with the 6 month time frame we gave
Sacramento to revise its NSR rule following a reclassification to
severe and with the time frame provided for similar changes in the
Title V operating permits arena (40 CFR part 70.4(i)). (See below.) If
KCAPCD fails to submit NSR rule revisions that address the new severe
area requirements within the 180-day deadline, we will start a
sanctions clock pursuant to CAA section 179(a)(1) for failure to submit
a required SIP revision.\10\
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\10\ Kern County Rule 210.1 already requires an offset ratio of
1:1.3, so the District does not have to revise the rule to meet this
CAA requirement for severe areas.
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Kern County Rule 201.1, which implements the federal Title V
operating permits program, must also be revised within 180 days of the
final date of the reclassification to ensure that the District's
definition of ``major source'' (and hence, Title V applicability)
reflects the lower VOC and NO_X threshold (40 CFR part
70.4(i)). If the required revision is not made within 180 days, then
KCAPCD will be subject to the sanctions provisions outlined in 40 CFR
sections 70.10(a)(1)(i) and (ii).
The lowering of the major source threshold from 50 tpy to 25 tpy
will make sources previously considered nonmajor become major, thereby
subjecting them to Title V. These newly major sources must submit Title
V permit applications within one year of the date that KCAPCD makes the
required revision to Rule 210.1. The District then has 18 months from
receipt of a complete application to take final action on each permit
application (40 CFR part 70.7(a)(2)). We recognize that the new lower
threshold of 25 tpy will likely increase the number of Title V sources
in eastern Kern County. We will work with the District in meeting the
18-month permit issuance deadline and will evaluate its progress at
that time.

E. Transportation Conformity Implications of Reclassification

The ozone reclassification would not immediately affect the
transportation conformity budgets in the San Joaquin Valley. The
existing approved VOC and NOx serious attainment budgets limit
emissions of ozone precursors for the attainment year 1999. Currently,
since no future year ozone budgets have been developed, these budgets
apply to all future years. However, once new severe area budgets are
submitted and have been determined adequate, those severe budgets would
set emission caps for any milestone years (2002), the new attainment
year (2005), and all years beyond the attainment year. The serious
budgets would only apply for the year 1999 and all subsequent years
until the new milestone or attainment budget dates.
Establishing new severe budgets in the San Joaquin Valley is
particularly challenging because there are eight separate
transportation agencies within the nonattainment boundary. The severe
area SIP should clearly identify and precisely quantify conformity
budgets for any milestone years (2002), the attainment year (2005),
and, if desired, future years. To be adequate, the severe attainment
demonstration must also contain emissions and air dispersion modeling
that show motor vehicle emissions at the budget levels will achieve the
required rate of progress milestones and timely attainment (taking into
consideration all emission sources and growth). The modeling should be
done for all years that establish conformity budgets. The data (vehicle
miles traveled [VMT]) for the modeling and the budgets should be
established in consultation with appropriate local, state and federal
agencies to assure that the latest estimates of growth are incorporated
into the SIP.
The attainment demonstration may establish emissions budgets for
subareas within the region only if the modeling in the SIP demonstrates
that, when all subarea budgets are considered, the area will still
result in attainment of the standard. Establishment of subarea budgets,
however, must be fully supported in the SIP documentation since
development of the subarea budgets would allow individual subareas
(e.g., counties) to complete separate conformity determinations. In
addition, the subarea budgets would limit growth of emissions in each
individual area--there would be no allowance for shifting of growth
from one subarea to another subarea within the nonattainment area.

II. The Proposed Nonimplementation Finding

A. San Joaquin Valley Serious Area Ozone Nonattainment Plan

The CAA required California to submit a serious area ozone SIP for
the San Joaquin Valley that demonstrated a minimum rate of progress
towards attainment and attainment of the 1-hour ozone NAAQS as
expeditiously as practicable but no later than November 15, 1999. CAA
sections 181(a) and 182(c). The deadline for the submittal of this SIP
was November 15, 1994. CAA section 182(c)(2).

[[Page 37930]]

On November 15, 1994, the California Air Resources Board (CARB)
submitted ``The 1994 California State Implementation Plan for Ozone,''
a comprehensive ozone plan for the State of California that included a
local nonattainment plan developed for the San Joaquin Valley by the
SJVUAPCD (1994 San Joaquin Valley plan).

B. EPA's Approval of the San Joaquin Valley Serious Area Ozone Plan

In order to be approved, the 1994 San Joaquin Valley plan had to
meet the requirements for serious ozone nonattainment areas in CAA
section 182(c). We reviewed the 1994 San Joaquin Valley plan against
these requirements and approved it as part of the California Ozone SIP
on January 8, 1997. Among other things, the plan demonstrated that,
through a combination of State and local control measures, the San
Joaquin Valley would attain the 1-hour ozone standard by November 15,
1999. For a detailed discussion of our approval, please refer to the
proposed and final rulemakings published in the Federal Register on
March 18, 1996 (61 FR 10920) and January 8, 1997 (62 FR 1150).

C. CAA Requirements for Plan Implementation and NAAQS Attainment

Following our approval of a nonattainment plan, the plan must be
implemented to assure that the necessary progress toward and attainment
of the relevant air quality standard by the applicable deadline. CAA
section 179(a)(4).
Under CAA section 179(a)(4), we have the discretionary authority to
make a finding of nonimplementation if we determine that a state has
failed to implement any requirement of an approved plan or approved
part of a plan. If we make a final finding of nonimplementation after
public notice and comment, the State must correct the failure to
implement within 18 months or sanctions will be applied to the area
pursuant to CAA sections 179(a) and (b).

D. Proposed Finding of Failure To Implement the 1994 San Joaquin Valley
Plan

In its most basic sense, plan implementation means that the control
(and other) measures relied on for attainment are being adopted, are in
effect, and are achieving their specified emissions reductions. Plan
implementation can also apply to any other requirement in a plan such
as a requirement for a reasonable further progress demonstration. When
a requirement in a plan has a future date associated with it, there can
be no failure to implement that requirement until the date associated
with it has passed.
The 1994 San Joaquin Valley plan identifies 20 local stationary and
area source control measures or control measure revisions and several
transportation control measures that together were projected to achieve
a 31.9 ton per day (tpd) reduction in volatile organic compounds (VOCs)
and a 37.2 tpd reduction in nitrogen oxides (NO_X).\11\ These
measures were to be adopted by the SJVUAPCD. We are proposing to find
that the SJVUAPCD has failed to implement the 1994 San Joaquin Valley
plan because the deadlines in the plan for adopting and implementing
six of the 20 measures (see list in Table 2) have passed and the
measures have not been adopted or implemented. These six measures were
projected to achieve a total of 8.09 tpd reductions in VOC emissions in
1999.\11\
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\11\ See Table 4-1 in ``The Ozone Attainment Demonstration
Plan,'' SJVAPCD, adopted November 14, 1994.

Table 2.--Implementation Deficiencies in the 1994 San Joaquin Valley Plan
----------------------------------------------------------------------------------------------------------------
Date when rule was
Control measure title Date when rule was required to be Projected emissions
required to be adopted implemented reductions
----------------------------------------------------------------------------------------------------------------
Rule 4601 Architectural Coatings...... 1Q/96.................. 1Q/98.................. 1.51 tpd VOC.
Rule 4662 Organic Solvent Degreasing.. 1Q/96.................. 1Q/98.................. 2.44 tpd VOC.
Rule 4692 Commercial Charbroiling..... 2Q/96.................. 2Q/98.................. 0.39 tpd VOC.
Rule 4623 Organic Liquid Storage...... 3Q/95.................. 3Q/98*................. 3.0 tpd VOC.
Rule 4411 Oil Production Well Cellars. 2Q/96.................. 2Q/98.................. 0.56 tpd VOC.
Rule 4663 Organic Solvent Waste....... 2Q/96.................. 2Q/98.................. 0.19 tpd VOC.
----------------------------------------------------------------------------------------------------------------
The SIP indicated that implementation of this Rule could extend beyond 1999.

If we make final this proposed nonimplementation finding, SJVUAPCD
must correct the implementation deficiencies in order to stop sanction
clocks triggered by the finding under CAA section 179(a). In order to
correct the implementation deficiencies and stop the sanction clocks,
SJVUAPCD must adopt as rules and implement the measures listed in Table
2 in a manner that will achieve in total the 8.09 tpd of emissions
reductions specified in the SIP for them. SJVUAPCD must adopt these
rules as expeditiously as practicable. Additionally, it must also
provide for the implementation of the rules as expeditiously as
practicable but implementation should be no later than November 15,
2002, the first rate of progress milestone.

E. Sanction Clocks for the Failure To Implement

Under CAA section 179(a)(4), if we make a finding that a
requirement of an approved plan is not being implemented, then the
deficiency identified in the finding must be corrected within 18 months
or sanctions will be applied. There are two types of sanctions: (1)
Highway sanctions (CAA section 179(b)(1)) and (2) offset sanctions (CAA
section 179(b)(2)).
Under these sanction provisions, if SJVUAPCD has not adopted the
measures listed in Table 2 with implementation deadlines of on or
before November 15, 2002 within 18 months of the effective date of a
final finding, the 2 to 1 offset sanction in CAA section 179(b) will
apply to that portion of the San Joaquin Valley nonattainment area
under the jurisdiction of the SJVUAPCD.\12\ This sanction requires a
company that is constructing a new or modifying an existing facility
over a certain size to reduce emissions in the area by 2 tons of VOCs
or NO_X for every new ton of

[[Page 37931]]

VOC or NOx the new/modified facility will emit.
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\12\ As noted before, the SJV nonattainment area also includes
eastern Kern County which is under the separate jurisdiction of the
Kern County APCD. Because we are proposing no sanctionable findings
applicable to the area under the jurisdiction of the KCAPCD, any
sanctions that go into effect in the rest of the SJV nonattainment
area because of this proposed nonimplementation finding will not
apply to eastern Kern County. We note that a finding of failure to
attain pursuant to CAA section 181(b)(1)(A) is not sanctionable
under the Act.
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If the SJVUAPCD still has not corrected the deficiencies six months
after the offset sanction is imposed, then the highway approval and
funding sanction will apply in the San Joaquin Valley portion of
nonattainment area. This sanction prohibits the U.S. Department of
Transportation from approving or funding all but a few specific types
of transportation projects.
The order of sanctions, offsets sanctions first then highway
sanctions, is set in EPA's regulations at 40 CFR 52.31. If sanctions
have been imposed, they will be lifted when we determine, after an
opportunity for public comment, that the implementation deficiencies
have been corrected.

III. Summary of EPA Proposals

We propose to find that the San Joaquin Valley ozone nonattainment
area has failed to attain the federal 1-hour ozone standard by its CAA
deadline of November 15, 1999. If we make final this finding, the San
Joaquin Valley nonattainment area will be reclassified by operation of
law to severe and California must submit to EPA, within 18 months of
the effective date of the finding, a severe area nonattainment plan
that provides for the attainment of the federal 1-hour ozone standard
as expeditiously as practicable, but no later than November 15, 2005
and meets the requirements of CAA section 182(d).
We also propose to find that the SJVUAPCD has failed to fully
implement the approved 1994 San Joaquin Valley ozone plan. If we make
final this finding, in order to avoid CAA sanctions, SJVUAPCD must
adopt within 18 months the six measures listed in Table 2 of this
preamble and provide for their implementation as expeditiously as
practicable but no later than November 15, 2002. These measures must be
sufficient to achieve an 8.09 tpd reduction in VOC. If sanctions are
imposed, they will be terminated once we find that all the deficiencies
have been corrected.

IV. Administrative Requirements

A. Executive Order 12866 (E.O. 12866)

Under E.O. 12866, (58 FR 51735, October 4, 1993), EPA is required
to determine whether today's proposal is a ``significant regulatory
action'' within the meaning of the E.O., and therefore should be
subject to OMB review, economic analysis, and the requirements of the
E.O. See E.O. 12866, sec. 6(a)(3). The E.O. defines, in sec. 3(f), a
``significant regulatory action'' as a regulatory action that is likely
to result in a rule that may meet at least 1 of 4 criteria identified
in section 3(f), including, (1) have an annual effect on the economy of
$100 million or more or adversely affect in a material way the economy,
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
EPA has determined that neither the finding of failure to attain,
nor the finding of nonimplementation, would result in any of the
effects identified in E.O. 12866 sec. 3(f). As discussed above,
findings of failure to attain under section 181(b)(2) of the Act are
based upon air quality considerations, and reclassifications must occur
by operation of law in light of certain air quality conditions. These
findings 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 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 and therefore does not adversely affect entities.

B. Executive Order 13132

Executive Order 13132, ``Federalism,'' (64 FR 43255, August 10,
1999) revokes and replaces Executive Orders 12612, ``Federalism,'' and
12875, ``Enhancing the Intergovernmental Partnership.'' Executive Order
13132 requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
These proposed findings will not have substantial direct effects on
California, on the relationship between the national government and
California, or on the distribution of power and responsibilities among
the various levels of government, as specified in Executive Order
13132.
EPA is proposing two actions: a finding that the San Joaquin Valley
ozone nonattainment area has failed to attain the ozone NAAQS by the
statutory deadline and a finding that the San Joaquin Valley ozone
plan, adopted by the State and approved by EPA, has not been fully
implemented. Findings of failure to attain under section 181(b)(2) of
the Act are based upon air quality considerations, and
reclassifications must occur by operation of law in light of certain
air quality conditions. These findings do not, in and of themselves,
impose any new requirements. 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 impact on State, local,
or tribal governments or communities. A finding of nonimplementation
has no direct effects on the State; there is simply a potential for the
imposition of sanctions if the State does not adopt the rules to which
it has committed under its own State plan. Thus, the requirements of
section 6 of the Executive Order 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),

[[Page 37932]]

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. These
proposed findings are not subject to E.O. 13045 because they do 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
proposed findings do 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 rulemaking.

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. These proposed findings will not have a significant
impact on a substantial number of small entities for the reasons set
forth in section VI.B. above. Therefore, because these proposed
findings do not create any new requirements, I certify that they 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 proposed findings do 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 for the reasons set forth in
section IV.B. above. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from these
actions.

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Nitrogen oxides, Ozone, Volatile organic
compounds.

40 CFR Part 81

Environmental protection, Air pollution control, National parks,
Wilderness areas.

Authority: 42 U.S.C. 7401 et seq.

Dated: June 7, 2000.
Felicia Marcus,
Regional Administrator, Region IX.
[FR Doc. 00-15391 Filed 6-16-00; 8:45 am]
BILLING CODE 6560-50-P

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Clean Air Act Reclassification and Finding of Failure to Implement a State Implementation Plan; California, San Joaquin Valley Nonattainment Area; Ozone

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