Approval and Promulgation of Ozone Attainment Plan and Finding of
Failure To Attain; State of California, San Francisco Bay Area
[Federal Register: March 30, 2001 (Volume 66, Number 62)]
[Proposed Rules]
[Page 17379-17387]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30mr01-25]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA-232-0219, FRL-6960-4]
Approval and Promulgation of Ozone Attainment Plan and Finding of
Failure To Attain; State of California, San Francisco Bay Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve in part and disapprove in part a
state implementation plan (SIP) revision, the 1999 San Francisco Bay
Area Ozone Attainment Plan (1999 Plan), submitted by the State of
California to EPA to attain the 1-hour ozone national ambient air
quality standard (NAAQS) in the San Francisco Bay Area. Specifically,
EPA is proposing to approve the baseline emissions inventory, the
Reasonable Further Progress (RFP) demonstration, control measure
commitments, and contingency measures in the 1999 Plan as meeting the
requirements of the Clean Air Act (CAA) applicable to the Bay Area
ozone nonattainment area. We are proposing to disapprove the attainment
assessment, its associated motor vehicle emissions budgets, and the
reasonably available control measure (RACM) demonstration.
If EPA takes a final disapproval action, it will trigger the 18-
month clock for mandatory application of sanctions, a 2-year time clock
for a federal implementation plan (FIP), and a transportation
conformity freeze.
EPA is also proposing to find that the San Francisco Bay Area ozone
nonattainment area did not attain the 1-hour ozone NAAQS by November
15, 2000, the attainment deadline set by EPA when the area was
designated to nonattainment in 1998. If EPA takes final action on this
proposal, the State will be required to submit a new plan no later than
12 months thereafter.
DATES: Comments on the proposed actions must be received on or before
May 14, 2001.
ADDRESSES: Comments may be mailed to: Celia Bloomfield, Planning
Office, [AIR-2], Air Division, U.S. Environmental Protection Agency,
[[Page 17380]]
Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901; or to
bloomfield.celia@epa.gov.
A copy of this proposed rule and related information are available
in the air programs section of EPA Region 9's website, http://
www.epa.gov/region09/air. The docket for this rulemaking is available
for inspection during normal business hours at EPA Region 9, Planning
Office, Air Division, 17th Floor, 75 Hawthorne Street, San Francisco,
California 94105. A reasonable fee may be charged for copying parts of
the docket. Please call (415) 744-1249 for assistance.
FOR FURTHER INFORMATION CONTACT: Celia Bloomfield (415) 744-1249,
Planning Office (AIR-2), Air Division, EPA Region 9, 75 Hawthorne
Street, San Francisco, CA 94105; bloomfield.celia@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. 1998 Redesignation to Nonattainment
B. Nonattainment Area Requirements
C. Ozone Attainment Plan Submission
II. Evaluation of the State's Submittal
A. Baseline Emissions Inventory
B. Attainment Assessment
C. Reasonable Further Progress Demonstration
D. Reasonably Available Control Measure Demonstration
E. Control Measures
F. Contingency Measures
G. Transportation Conformity Budgets
H. Transportation Control Measure Deletions
I. Environmental Justice
III. Summary of Proposed Action on the 1999 Plan
A. Proposed Approval
B. Proposed Disapproval
C. Consequences of the Proposed Disapproval
D. Correcting the Deficiencies
IV. Proposed Finding of Failure to Attain
A. Clean Air Act Requirements for Attainment Findings under Part
D, Subpart 1
B. The Bay Area Failed to Attain by its CAA Deadline
C. Consequences of Failure to Attain
V. Administrative Requirements
I. Background
A. 1998 Redesignation to Nonattainment
The San Francisco Bay Area (Bay Area) was originally designated
under section 107 of the 1977 CAA as nonattainment for ozone in 1978.
Following the 1990 Clean Air Act Amendments, the Bay Area retained its
nonattainment designation and was classified as ``moderate'' under
section 181 by operation of law. 56 FR 56694 (Nov. 6, 1991). The Bay
Area was then redesignated to attainment in 1995 based on then current
air quality data (60 FR 27028, May 22, 1995) and subsequently
redesignated back to nonattainment with the federal 1-hour ozone
standard on July 10, 1998 (63 FR 37258). See 40 CFR 81.305 (1999).\1\
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\1\ As a moderate nonattainment area, the Bay Area was subject
to the moderate classification provisions of title I, part D,
subpart 2 of the CAA that were added as part of the 1990 Amendments.
In redesignating the Bay Area back to nonattainment, EPA looked at
the longstanding general nonattainment provisions of subpart 1 of
the CAA as well as the subpart 2 provisions. EPA concluded, based on
a number of legal and policy reasons described at length in the
proposed and final redesignation actions, that the Act is best
interpreted as placing the Bay Area under subpart 1 upon
redesignation back to nonattainment. Thus the Bay Area was not
classified under section 181 upon redesignation. (See 62 FR 66578,
December 19, 1997; 63 FR 3725, July 10, 1998.)
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EPA's action in 1998 was prompted by persistent air quality
problems in the two years following the redesignation to attainment.
Ozone levels exceeded the federal 1-hour ozone standard on 11 days in
1995 and 8 days in 1996. As provided under section 107(d)(3) of the
CAA, EPA revised the Bay Area's designation on the basis of those air
quality data. The intent of the redesignation was to return healthy air
as quickly as possible to the Bay Area.
B. Nonattainment Area Requirements
In an effort to focus on near term air quality gains, EPA set an
expedited attainment deadline of November 15, 2000 under CAA section
172(a)(2) in its redesignation action. At that time, EPA believed the
Bay Area could attain by that date. EPA also required the Bay Area to
submit an attainment plan by June 15, 1999 that addressed the section
172(c) requirements and specifically included a 1995 baseline emissions
inventory, an assessment of the emissions reductions needed for
attainment, and adopted control measures (or commitments to adopt and
implement control measures) sufficient to meet reasonable further
progress (RFP) and to attain the 1-hour ozone standard by the
attainment deadline. The plan was also required to provide for the
implementation of all reasonably available control measures (RACM) as
expeditiously as practicable. Finally, the Bay Area was also required
to include contingency measures that would take effect automatically
should attainment not be achieved by November 15, 2000, and new
transportation conformity emissions budgets capping volatile organic
compounds (VOC) and nitrogen oxides (NOX) emissions for
ozone consistent with the new attainment plan. 63 FR at 37275-37276.
See also CAA section 172(c)(1)-(3), (6)-(7) and (9).
C. Ozone Attainment Plan Submission
On August 13, 1999, the California Air Resources Board (CARB)
submitted the 1999 San Francisco Bay Area Ozone Attainment Plan (1999
Plan) to EPA. The attainment plan was submitted as a proposed revision
to the California State Implementation Plan (SIP) by CARB on behalf of
the Bay Area Air Quality Management District (BAAQMD), the Metropolitan
Transportation Commission (MTC), and the Association of Bay Area
Governments (ABAG).
EPA found the submittal complete in a letter to the State of
California on October 28, 1999.\2\ EPA determined that the submittal
met the criteria for completeness as set forth in 40 CFR part 51,
appendix V.\3\
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\2\ Letter from David P. Howekamp, Director, Air Division, U.S.
EPA, to Michael Kenny, Executive Officer, California Air Resources
Board, dated October 28, 1999.
\3\ EPA adopted the completeness criteria pursuant to section
110(k)(1)(A) of the CAA on February 16, 1990 (55 FR 5830), and
revised the criteria on August 26, 1991 (56 FR 42216).
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II. Evaluation of the State's Submittal
EPA evaluated the Bay Area ozone plan according to the general
nonattainment plan requirements contained in section 172(c) of the CAA.
Section 172(c) formed the basis for the nonattainment plan requirements
set out in the final redesignation rulemaking. For a more complete
discussion of section 172(c) as it applies to the Bay Area ozone plan,
please refer to the proposed redesignation rulemaking, 62 FR 66580.
A. Baseline Emissions Inventory
CAA section 172(c)(3) requires nonattainment plans to include a
comprehensive, accurate and current inventory of actual emissions from
all sources. The purpose of this inventory is to provide a benchmark
for attainment planning, and it is often referred to as a baseline
inventory. To satisfy this requirement, EPA stated in the final
redesignation rulemaking that the Bay Area must submit a 1995 emissions
inventory for VOC and NOX (63 FR 37274).
EPA has determined that the 1995 baseline emissions inventory
contained in section 4 of the 1999 Plan satisfies the requirements of
CAA section 172(c)(3). It is a seasonal inventory (typical summer day)
representing emissions when ozone levels are at their highest. It is
based on actual emissions in 1995 and addresses the full spectrum of
stationary, mobile and miscellaneous
[[Page 17381]]
sources of VOC and NOX in the Bay Area. The inventory also
takes rule effectiveness into account. Therefore, EPA proposes to
approve the inventory as meeting the requirements of section 172(c)(3).
B. Attainment Assessment
As required by section 172(c)(1) and our final redesignation
rulemaking, the plan for the Bay Area was required to provide for
attainment of the ozone NAAQS by November 15, 2000. As EPA recognized
at the time of the redesignation, there had been a sufficient number of
exceedances of the standard in 1998 such that it was not possible for
the Bay Area to attain the 1-hour standard based on data for the three
year period 1998-2000.\4\ However, EPA interprets the attainment
planning requirement to mean that a State must show that it will have
``clean data'' as of the attainment year, such that the area would be
eligible for an attainment date extension under section 181(a)(5), if
applicable, or section 172(a)(2)(C). In the redesignation action for
the Bay Area, EPA indicated that for the Bay Area this meant that the
attainment assessment must show that there would be no more than one
exceedance at any monitor in the attainment year (63 FR 37273, July 10,
1998).
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\4\ See 40 CFR 50.9 and appendix H.
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The specific attainment assessment requirement set out in EPA's
redesignation rulemaking was as follows: ``[a]ssessment, employing
available data and technical analyses, of the level of emissions
reductions needed to attain the current 1-hour ozone National Ambient
Air Quality Standard (NAAQS).'' EPA further noted that the assessment
must ``take into account the meteorological conditions and ambient
concentrations associated with the violations of the ozone NAAQS in the
period 1995-6 * * *'' (63 FR 37276).
The 1999 Plan's attainment assessment looks at air quality in 1995
and then uses modeling to determine how much improvement in air quality
would be needed between 1995 and 2000 to attain the standard. The
difference between the level of emissions in 1995 and 2000 is the
emissions reduction target. According to the analysis in the 1999 Plan,
if VOCs were reduced by 128 tons per day (tpd) and NOX
emissions were reduced by 92 tpd between 1995 and 2000, the Bay Area
would come into compliance with the federal 1-hour ozone standard. CARB
submitted a SIP that included adopted measures or commitments to adopt
measures to achieve those levels of reduction.
However, prior to the time EPA could take final action on the
submitted plan, monitoring data for the attainment year became
available. According to the monitoring data recorded by the Bay Area's
official monitoring network, the Bay Area experienced three exceedance
days in 2000, and two of those exceedances occurred at the same
monitor.\5\ Because the Bay Area had air quality data inconsistent with
attainment in the attainment year, EPA must propose to disapprove the
1999 Plan's attainment demonstration.
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\5\ Attainment of the 1-hour ozone NAAQS is measured over a
three-year period and is based on the number of exceedances that
occur that period. An exceedance of the 1-hour ozone standard occurs
when the hourly average ozone concentration at a given monitoring
site is greater than or equal to 0.12 parts per million (ppm) (40
CFR 50.9(a); 40 CFR part 58, appendix F, section 2). An area is not
attaining the 1-hour ozone NAAQS if, over a three-year period, the
average number of exceedances per year exceeds one. The monitor with
two exceedances was located on First Street in Livermore. See
October 25, 2000 memorandum from Bob Pallarino, EPA Region 9
Technical Support Office, to Julia Barrow and Celia Bloomfield, EPA
Region 9 Planning Office.
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C. Reasonable Further Progress Demonstration
In our final redesignation rulemaking, we required the Bay Area
plan to provide for reasonable further progress toward attainment. 63
FR 37275. Section 172(c)(2) contains the requirement for reasonable
further progress (RFP). RFP is defined as ``such annual incremental
reductions in emissions * * * as are required by this part [D] or may
reasonably be required by the Administrator for the purpose of ensuring
attainment * * * by the applicable date.'' Section 171(1). In the
proposed rule, we explained that ``[b]ecause EPA is not proposing to
require submission of adopted measures until September 1998, the Agency
believes that the RFP requirement would be satisfied if all required
emission reductions occur by * * * [the] attainment year.'' 62 FR
66581. Because the Bay Area did adopt and implement the control
measures in the 1999 Plan by the November 15, 2000 attainment deadline,
we are proposing to find that the 1999 Plan provides for RFP through
2000.
D. Reasonably Available Control Measure Demonstration
In our proposed and final redesignation rulemakings, we indicated
that the State's plan must comply with the general nonattainment plan
requirements of CAA section 172 (62 FR 66580, December 19, 1997; and 63
FR 37275, July 10 1999). In the proposal, we summarized the section 172
requirements and specifically stated that the plan would have to
provide for ``implementation of all reasonably available control
measures (RACM) as expeditiously as practicable * * * to the extent
that it [RACM] has not already been complied with.'' 62 FR 66580.
EPA's preliminary RACM guidance is set out in the General Preamble
at 57 FR 13498, 13560 (April 16, 1992). Under this guidance, States
must consider available control measures, adopt such measures as are
reasonably available, and provide a justification why measures that may
be available, were not considered RACM and were not adopted in the SIP.
EPA also stated that ``[t]he section 108(f) measures should be
considered by States as potential air quality control options'' and
that states should consider ``any measure that a commenter indicates
during the public comment period is reasonably available for a given
area.''\6\
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\6\ The section 108(f) measures are transportation control
measures listed in section 108(f) of the CAA. They include measures
such as programs for improved public transit and trip-reduction
ordinances.
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In the documentation accompanying the 1999 Plan submittal, there
were a number of public comments made requesting consideration of
specific transportation and stationary source control measures. Because
the plan fails to justify why these or other potential measures are not
reasonably available and would not advance the attainment date,\7\ we
are proposing to disapprove the RACM demonstration in the 1999 Plan.
However, as discussed below, while we are not proposing to approve the
control measure commitments in the 1999 Plan as meeting the CAA's RACM
requirement, we are proposing to approve those commitments under CAA
sections 110(k)(3) and 301(a) because they will strengthen the SIP.
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\7\ See EPA guidance memorandum from John Seitz, Director,
Office of Air Quality Planning and Standards, to Regional Air
Division Directors entitled, ``Guidance on the Reasonably Available
Control Measures (RACM) Requirement and Attainment Demonstration
Submissions for Ozone Nonattainment Areas,'' dated November 30,
1999.
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E. Control Measures
Section 172(c)(6) requires attainment plans to contain enforceable
emissions limitations and other control measures, means or techniques,
necessary to provide for attainment by the applicable date. The 1999
Plan relies on both previously approved SIP measures and new measures
to demonstrate emissions reductions consistent with the 128 tpd VOC and
92 tpd NOX targets. One
[[Page 17382]]
hundred percent of the NOX reductions and about ninety
percent of the VOC reductions are expected to come from already SIP-
approved stationary, area, and mobile source measures.\8\ The 1999 Plan
describes ten new stationary, area, and mobile source control measures
and includes a commitment to ``achieve an additional 11 tpd reduction
in VOC emissions by June 2000 through adoption and implementation of
any combination of the control measures listed in Table 10 and Table 12
[of the 1999 Plan]'' (1999 Plan, p. 25).
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\8\ Existing SIP-approved control measures and their associated
emissions reductions between 1995 and 2000 are listed in Table 9 and
11 of the 1999 Plan. The Plan also relies on one federally
promulgated EPA measure related to gasoline-powered recreational
boats to achieve 0.7 tpd of the VOC target.
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All of the new measures have been adopted and submitted to EPA for
approval into the SIP with the exception of the single mobile source
control measure, MS-01 (which requires new golf cart purchases to be
electric in ozone nonattainment areas throughout California). This rule
was adopted by CARB in 1994 and became applicable to the Bay Area upon
redesignation to nonattainment.
In this action, EPA is proposing to approve the adoption and
implementation dates of the new measures and the commitment to achieve
11 tpd of VOC reductions from any combination of those measures. EPA is
making this proposal pursuant to CAA sections 110(k)(3) and 301(a) for
the purpose of strengthening the SIP.
A summary of the 1999 Plan's new control measures, along with their
adoption dates, implementation dates, and estimated emissions
reductions, are listed below in Table 1 labeled ``New Bay Area
Measures.''
Table 1.--New Bay Area Measures
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Estimated VOC
VOC measure (BAAQMD regulation reductions
No.) Adoption date Implementation date (tpd), 1995-
2000
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SS-01: Can and Coil Coating (8-11) 11/19/97...................... 1/1/98, 1/1/2000............. 0.35
SS-02: Equipment Leaks at 1/7/98........................ 1/7/98....................... 1.20
Refineries and Chemical Plants (8-
18).
SS-03: Pressure Relief Devices (8- 12/17/97, 3/18/98............. 7/1/98....................... 0.13
28).
SS-04: Solvent Cleaning (8-16).... 9/16/98....................... 9/1/99....................... 2.10
SS-05: Graphic Arts Operations (8- 3/2/99........................ 7/1/99, 1/1/2000............. 0.80
20).
SS-06: Polystyrene Manufacturing 1999.......................... 6/2000....................... 0.26
(8-52).
SS-07: Organic Liquid Storage: Low 1999.......................... 6/2000....................... 0.48
Emitting Retrofits for Slotted
Guide Poles (8-5).
SS-08: Gasoline Dispensing 1999.......................... 6/2000....................... 3.20
Facilities (8-7).
SS-09/SS-10: Prohibit Aeration of 1999.......................... 6/2000....................... 2.68
Petroleum Contaminated Soil or
Industrial Sludge at Landfills (8-
40).
MS-01: Electric Golf Carts: 1994.......................... 3/2000....................... 0.1
Require New Golf Cart Purchases
to be Electric (ARB State Rule).
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F. Contingency Measures
Under CAA section 172(c)(9), a plan must contain contingency
measures that go into effect if the area fails to attain the standard.
The Act specifies that the measures must be implemented without further
action by the air district or its co-lead agencies in the event of a
failure to attain by the required date (CAA section 172(c)(9)). The
general planning requirements of the CAA do not specify how many
measures or what level of reductions must be included in a plan for
contingency purposes. EPA, however, has stated that the contingency
measures should, at a minimum, ensure that an appropriate level of
emissions reduction progress continues to be made if attainment or RFP
is not achieved and additional planning by the State is needed. 57 FR
13511.
EPA is proposing to approve as contingency measures the measures in
Table 18 of the State submission, which are part of the SIP and can be
implemented without further agency action. These measures are listed
below in Table 2, ``Bay Area Contingency Measures.'' These measures
provide for substantial emissions reductions of both VOC and
NOX in the years following the attainment year. (See Table 2
below.) We believe that these measures provide for sufficient emissions
reductions to ensure continued progress toward attainment while the
State is preparing its next plan and should be approved as meeting the
requirements of section 172(c)(9).\9\
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\9\ As explained in section IV.C. below, a new plan is required
one year after a final finding of failure to attain is published. If
EPA takes final action on the finding, we anticipate that we will do
so in the summer of 2001. Therefore, a new plan would be due in the
summer of 2002.
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The obligation to implement the contingency measures is clearly
stated in the 1999 Plan: ``If the Bay Area records more than one
exceedance at a single monitoring site in 2000 (or in 2001 [if the
attainment date is extended]), a requirement to implement contingency
measures will be triggered.'' (See 1999 Plan, p. 27.) In fact, all of
the measures are already being implemented as they were triggered by
the area's failure to attain in 2000.
Table 2.--Bay Area Contingency Measures
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Estimated VOC reductions (tpd) Estimated NOX reductions (tpd)
Adopted control measure (BAAQMD regulation or -----------------------------------------------------------------
State/Federal measure) 2001 2002 2003 2001 2002 2003
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Gasoline Dispensing Facilities (8-7).......... 0.5 0.9 1.1 ......... ......... .........
Graphic Arts Printing and Coating Operations 0.8 0.7 0.7 ......... ......... .........
(8-20).......................................
[[Page 17383]]
Aeration of Contaminated Soil and Removal of 0.5 1.0 1.5 ......... ......... .........
Underground Storage Tanks (8-40).............
On Road motor Vehicles-Light and Medium Duty 14.4 26.8 39.1 16.8 26.4 35.3
Cars and Trucks (ARB)........................
On Road Motor Vehicles--Heavy Duty Trucks (??) 0.1 0.5 0.7 3.3 5.0 6.7
Off Road Mobile Sources (ARB)................. 0.1 0.1 0.2 3.8 7.8 9.5
Gasoline-Powered Recreational Boats--Exhaust 0.7 1.6 3.6 (.1) (.1) (.2)
Emission Standards (EPA).....................
Stationary Internal Combustion Engines (9-8).. ......... ......... ......... 1.0 1.0 0.9
Stationary Gas Turbines (9-9)................. ......... ......... ......... 0.9 0.9 0.8
Glass Melting Furnaces (9-12)................. ......... ......... ......... 0.2 0.2 0.1
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G. Transportation Conformity Budgets
EPA's conformity rule, 40 CFR part 93, requires that transportation
plans, programs, and projects conform to the SIP and establishes the
criteria and procedures for determining whether or not they do conform.
Conformity to a SIP means that transportation activities will produce
no new air quality violations, will not worsen existing violations, and
will not delay timely attainment of the NAAQS (CAA section 176(c)(1)).
Transportation activities must not exceed the emissions budgets in the
SIP.\10\
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\10\ The Bay Area's conformity rules, which include consultation
procedures, were approved into the SIP on October 21, 1997 (62 FR
54587).
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The 1999 Plan includes a budget of 175.2 tpd for VOC and 247.1 tpd
for NOX, both for the year 2000. These budgets are based on
projected emissions for motor vehicles in the attainment year and take
into account expected growth. Since we know that the attainment year
emissions levels were insufficient to provide for attainment (See II.B.
above) and the attainment assessment cannot be approved, the budgets
that are based on those levels are inadequate and cannot be used for
conformity purposes.\11\ (See 40 CFR 93.118(e)).
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\11\ EPA proposed in 1999 to find these budgets adequate (64 FR
55220, October 12, 1999). Several public comments were received
objecting to the proposal. Commenters argued that the budgets were
not adequate to protect air quality and that they were not adequate
to prevent environmental justice problems. The proposal was never
finalized. Some of these same commenters are party to the January 8,
2001 lawsuit compelling EPA action on the 1999 plan, which is the
subject of this notice. Bayview Hunters Point Community Advocates et
al. v. Whitman, C 01 0050 BZ (N.D.Ca).
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H. Transportation Control Measure Deletions
The Bay Area's SIP currently includes 28 transportation control
measures (TCMs) that were developed to reduce emissions from
automobiles. The first 12 TCMs were approved into the SIP in 1983 when
EPA approved the Bay Area's 1982 attainment plan (48 FR 57130, December
28, 1983). EPA approved TCMs numbered 13 through 28 in 1995 as part of
the Bay Area Maintenance Plan (60 FR 27028, May 22, 1995).
TCMs, like other control measures, remain in the SIP and must
continue to be implemented until they are either substituted or removed
from the SIP in accordance with section 110(l) and, if applicable,
section 193. (See also 64 FR 66832, November 30, 1999.) Section 110(l)
states that the ``Administrator shall not approve a revision to a plan
if the revision would interfere with any applicable requirement
concerning attainment and reasonable further progress * * *;''
Substitution or removal of TCMs that are in a nonattainment plan and
that were approved prior to 1990 or based on a plan established before
1990 must also ``insure equivalent or greater emission reductions''
(CAA section 193). For more information on TCM replacement and removal,
please see 58 FR 62188, 62198 (Nov. 24, 1993).
The Bay Area's 1999 Plan proposes to remove four TCMs from the
ozone SIP: TCMs 6, 11, 12, and 16. Two of the TCMs identified for
removal were intended as carbon monoxide (CO) control measures and not
ozone control measures. The Bay Area is therefore requesting to remove
TCMs 11 and 12 from the SIP for ozone purposes but to keep them in the
SIP for CO purposes. In addition, the Bay Area requests removal from
the SIP of TCMs 6 and 16 because these measures require transit
construction activities that have been completed, are permanent, and
cannot be reversed.
EPA is proposing to approve the request to remove TCMs 11 and 12
from the Bay Area ozone SIP as the measures were not intended to
provide ozone reductions and will remain in the SIP as part of the CO
maintenance plan. In short, the requirement to implement them will
continue.
EPA is also proposing to approve the deletion of TCMs 6 and 16 from
the approved SIP. TCM 6 is a measure to improve light rail construction
in the Guadalupe Corridor and various BART extensions. No emissions
reductions were credited for TCM 6 in the SIP indicating that the TCM
did not assume future implementation. EPA believes that the TCM 6
projects have been fully constructed, cannot be reversed, and that
removal of TCM 6 will not result in the loss of any air quality benefit
credited in the SIP. TCM 16 is a measure to extend BART to Colma.
Unlike TCM 6, TCM 16 does take credit for emissions reductions,
implying continued future operation of the Colma BART station. EPA is
specifically requesting comment on our proposal to remove TCM 16 from
the SIP, as the Colma BART extension has been constructed, and we
believe, given the investment in the construction and future
transportation needs in the area, its operation is certain to continue
with or without TCM 16 remaining in the SIP.
Table 3.--TCMs Proposed for Deletion From the SIP
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TCM 6..................................... Construction of Guadalupe
light rail in Santa Clara
County and design work for
the North Concord BART
extension and Warm Springs
extension.
TCM 11.................................... Gasoline Conservation
Awareness Program (GasCAP).
TCM 12.................................... Santa Clara Commuter
Transportation Program.
TCM 16.................................... Construction of BART
extension to Colma.
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[[Page 17384]]
I. Environmental Justice
Environmental justice (EJ) was a significant issue in public
comments to EPA on its proposal to find the conformity budgets in the
1999 submittal adequate (64 FR 55220, October 12, 1999). It has also
been an issue in subsequent discussions between EPA and other parties
regarding conformity budgets and air quality plans. These parties
include community groups, local and State agencies, and the U.S.
Department of Transportation (U.S. DOT).
Executive Order 12898 mandates that each federal agency ``[t]o the
greatest extent practicable * * * shall make achieving environmental
justice part of its mission.'' EPA intends to fulfill its obligation to
avoid disproportionate adverse impacts on minority and low-income
populations.
Some of the specific issues raised by commenters were that the
budgets adopted by the local agencies and CARB were not sufficiently
protective of air quality. They also argued that approving such budget
caps would allow the area to increase driving substantially, and that
this would have disproportionate adverse impacts on people and
communities near major roads. Many members of these communities have
low incomes and/or are people of color. Commenters also expressed
objections to the budgets on the basis that they would decrease
pressure on local agencies to increase transit ridership. They stated
that this harms transit-dependent communities and public health.
EPA has made it clear to the State and local agencies that in
developing a new air quality plan there must be a full public
involvement process that provides opportunities to satisfy
environmental justice concerns. The U.S. DOT has also issued guidance
on environmental justice (``Implementing Title VI Requirements in
Metropolitan and Statewide Planning'', Linton and Wykle, Administrators
respectively of the Federal Transit Administration and the Federal
Highway Administration). We believe that this means that the
transportation planning process must include a comprehensive and
transparent public component. MTC has just initiated an EJ Workgroup to
begin addressing that need. The BAAQMD adopted ``Guiding Principles for
Environmental Justice'' on May 12, 1999, including the principle to
``continue outreach and education programs to strengthen the public's
ability to participate in the District's Plan and rule development * *
*'' and has convened an environmental working group to advise it in
implementing those principles. EPA will work with and support the local
agencies and CARB in addressing these concerns and issues. EPA also
intends to address EJ principles as appropriate in its review of and
action on new air quality plan submittals and in reviewing
transportation planning activities and commenting on them.
III. Summary of Proposed Action on the 1999 Plan
A. Proposed Approval
EPA is proposing to approve the following portions of the 1999
Plan: The baseline emissions inventory; the RFP demonstration through
2000; the commitment to achieve additional reductions from
implementation of new control measures (see Table 1 above); and
contingency measures for failure to attain in 2000 (see Table 2 above).
EPA has determined that these plan elements meet the requirements of
CAA section 172(c) and EPA's final redesignation rulemaking (63 FR
37258, July 10, 1998). EPA is also proposing to approve removal of TCMs
6, 11, 12, and 16 (see Table 3 above) from the SIP for ozone purposes
as EPA has concluded that the removal is consistent with sections
110(l) and 193 of the CAA. EPA's evaluation of the baseline emissions
inventory, RFP demonstration, control measure commitments, contingency
measures, and TCM deletions are discussed in sections II.A., II.C.,
II.E., II.F., and II.H. above.
B. Proposed Disapproval
EPA is proposing to disapprove the attainment assessment contained
in the 1999 Plan because monitoring information indicates that the area
failed to attain the ozone NAAQS by November 15, 2000 (CAA section
172(c)(1) and (2)). EPA is proposing this disapproval without issuing a
protective finding for the motor vehicle emissions budgets contained in
the 1999 Plan because the attainment assessment did not provide for
attainment in 2000. EPA can only issue a protective finding for budgets
from an attainment SIP that is based on control measures that fully
satisfy statutory requirements for demonstrating attainment. EPA is
also proposing to disapprove the RACM demonstration as not meeting the
requirements of CAA section 172(c)(1). EPA's evaluation of the
attainment assessment, emissions budgets, and RACM and reasons for
proposed disapproval of these plan elements are discussed in sections
II.B., II. D. and II.G. above.
C. Consequences of the Proposed Disapproval
The CAA establishes specific consequences if EPA disapproves a
state plan. Section 179(a) sets forth four findings that form the basis
for application of mandatory sanctions, including disapproval by EPA of
a state's submission based on its failure to meet one or more required
CAA elements. EPA has issued a regulation, codified at 40 CFR 51.31,
interpreting the application of sanctions under section 179 (a) and
(b).
If EPA has not approved a SIP revision correcting the deficiency
within 18 months of the effective date of a final disapproval
rulemaking, pursuant to CAA section 179(a) and 40 CFR 52.31, the offset
sanction identified in CAA section 179(b) will be applied in the
affected area. If EPA has still not approved a SIP revision correcting
the deficiency 6 months after the offset sanction is imposed, then the
highway funding sanction will also apply in the affected area, in
accordance with 40 CFR 52.31. In addition, CAA section 110(c)(1)
provides that EPA must promulgate a FIP no later than 2 years after a
finding under section 179(a) unless EPA takes final action to approve a
revised plan correcting the deficiency within 2 years of EPA's
findings.
For more details on the timing and implementation of the sanctions,
see 59 FR 39859 (August 4, 1994), promulgating 40 CFR 52.31,
``Selection of sequence of mandatory sanctions for findings made
pursuant to section 179 of the Clean Air Act.'' There are, however,
certain exceptions to the general rule for the application of sanctions
described above. The reader is referred to 40 CFR 52.31(d) for the
circumstances under which the application of sanctions may be stayed or
deferred.
In addition, one of the conformity consequences of the plan
disapproval without a protective finding is commencement of a
transportation conformity freeze. Under a conformity freeze, the area
can proceed only with transportation projects included in the first
three years of the current transportation plan and transportation
improvement program (TIP) or with exempt projects. No new or amended
transportation plans or TIPs can be adopted until the freeze is lifted.
This would mean that no significant changes could be made to the design
concept or scope of projects in the existing Regional Transportation
Plan (RTP) or TIP. If the area submits a new attainment assessment with
associated motor vehicle emissions budgets for
[[Page 17385]]
VOC and NOX, the freeze will be lifted once EPA finds the
new attainment budgets to be adequate. Note that the conformity freeze
would not begin until the effective date of the final plan disapproval.
(62 FR 43796, August 15, 1997 and EPA guidance memorandum from Gay
McGregor, Director, Regional and State Programs Division, Office of
Mobile Sources, to EPA Regional Air Offices entitled, ``Conformity
Guidance on Implementation of March 2, 1999 Conformity Court
Decision,'' dated May 14, 1999, p. 9.)
The Bay Area's current RTP is scheduled to expire in January 2002,
if it is not updated by then. If a conformity freeze is in effect when
the current transportation plan or program expires, then a conformity
lapse will result. A new transportation plan and TIP would need to be
approved to end the conformity lapse, but as discussed above, a new
plan and TIP cannot be approved until the conformity freeze is lifted.
Under a conformity lapse, no transportation projects can proceed except
for safety projects, transit projects, projects using transit operating
funds, and projects implementing TCMs in the approved SIP.
D. Correcting the Deficiencies
In order to correct the deficiencies, the State must submit a new
RACM demonstration, a new attainment assessment and new motor vehicle
emissions budgets that remedy the deficiencies noted above, and are
otherwise approvable under section 110 of the Act. Because the 2000
attainment deadline has already passed and EPA is proposing to make a
finding that the Bay Area has failed to attain that deadline, the new
attainment deadline would be governed by section 179(d)(3). Thus the
new attainment assessment must demonstrate attainment ``as
expeditiously as practicable'' but no later than 5 years from the
finding of failure to attain. See section IV.C. of this proposal for
further details on the requirements for the new plan.
IV. Proposed Finding of Failure To Attain
A. Clean Air Act Requirements for Attainment Findings Under Part D,
Subpart 1
Under CAA section 179(c), we must determine within six months of
the applicable attainment date whether an ozone nonattainment area has
attained the 1-hour ozone standard. As noted above, 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. We determine if an area has attained
the 1-hour standard by calculating, at each monitor, the average number
of days per year during the preceding three year period that the area
has monitored levels above the standard. 40 CFR part 50, appendix H.
This means that if an area has four or more exceedances at a single
monitor during a three-year period, the average number of exceedance
days per year exceeds one and the area has not attained the standard.
B. The Bay Area Failed To Attain by Its CAA Deadline
Table 5 lists each monitoring site in the Bay Area nonattainment
area that experienced four or more days over the standard in the period
1998 to 2000. The table lists the number of days over the standard in
all three years as well as the three-year average. For each of these
sites, the average number of exceedance days per year over the three-
year period 1998-2000 exceeds one.
Table 4.--Ozone Air Quality in the San Francisco Bay Area Nonattainment Area (1999-2000)
----------------------------------------------------------------------------------------------------------------
Average
number of
Monitoring station Exceedance Exceedance Exceedance exceedance
days 1998 days 1999 days 2000 days per year
1998-2000
----------------------------------------------------------------------------------------------------------------
Concord......................................... 2 2 1 1.7
Livermore....................................... 6 2 2 3.3
San Martin...................................... 3 1 0 1.3
----------------------------------------------------------------------------------------------------------------
C. Consequences of Failure To Attain
Under section 179(d) of the Act, areas that fail to attain are
required to submit a revision to the SIP that meets the requirements of
CAA sections 110 and 172, including, but not limited to: (1)
Demonstrations of attainment and RFP; (2) all reasonably available
control measures (RACM); (3) baseline and attainment year inventories;
and (4) motor vehicle emissions budgets. The plan must be submitted no
later than one year after EPA publishes its final finding (CAA section
179(d)(1)).
Such a plan must demonstrate attainment as expeditiously as
practicable, but no later than five years from the date of the final
notice (CAA section 179(d)(3)). If the attainment deadline is before
2005, we propose that post-2000 RFP can be satisfied by implementing
the reductions needed for attainment by the attainment date. If the
attainment deadline is 2005 or later, EPA is proposing that the RFP
requirement can be satisfied by phasing in 50% of the needed reductions
half way between the time of the attainment demonstration and the
attainment date.
At the same time that the State submits the plan described above,
it must also submit new contingency measures meeting the requirements
of CAA section 172(c)(9).
V. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted these
regulatory actions from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
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
[[Page 17386]]
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 actions 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. The proposed actions do not alter the relationship or the
distribution of power and responsibilities established in the Clean Air
Act. Thus, the requirements of section 6 of the Executive Order do not
apply to these proposed actions.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
D. Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this rule.
In the spirit of Executive Order 13175, and consistent with EPA
policy to promote communications between EPA and tribal governments,
EPA specifically solicits additional comment on this proposed rule from
tribal officials.
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.
EPA's proposed partial approval/partial disapproval of the Bay Area
SIP revision under section 110 and subchapter I, part D of the Clean
Air Act does not affect any existing requirements applicable to small
entities. Any pre-existing federal requirements remain in place after
this partial approval/partial disapproval. Federal disapproval of the
state submittal does not affect state-enforceability. Moreover, EPA's
partial approval/partial disapproval of the submittal does not impose
any new Federal requirements. EPA's proposed finding of failure to
attain also does not impose additional requirements on small entities.
Therefore, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
F. Unfunded Mandates
Under sections 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the proposed actions do not include a
Federal mandate that may result in estimated costs of $100 million or
more to either State, local, or tribal governments in the aggregate, or
to the private sector. This proposed partial approval/partial
disapproval acts on pre-existing requirements under State or local law,
and imposes no new requirements. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, result
from this action.
With respect to the proposed finding of EPA's failure to attain,
EPA notes that action in and of itself establishes no new requirements,
and EPA believes that it is questionable whether a requirement to
submit a SIP revision constitutes a federal mandate. The obligation for
a State to revise its SIP arises out of sections 110(a) and 179(d) of
the CAA and is not legally enforceable by a court of law, and at most
is a condition for continued receipt of highway funds. Therefore, it is
possible to view an action requiring such a submittal as not creating
any enforceable duty within the meaning of section 421(5)(9a)(I) of
UMRA (2 U.S.C. 658(a)(I)). Even if it did, the duty could be viewed as
falling within the exception for the condition of Federal assistance
under section 421(5)(a)(i)(I) of UMRA (2 U.S.C. 658(5)(a)(i)(I)).
In addition, even if the obligation for a State to revise its SIP
does create an enforceable duty within the meaning of UMRA, this action
does not trigger section 202 of UMRA because the aggregate to the
State, local, and tribal governments to comply are less than
$100,000,000 in any one year. Because this action does not trigger
section 202 of UMRA, the requirement in section 205 of UMRA that EPA
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, most effective, or least burdensome
alternative that achieves the objectives of the rule is not applicable.
Furthermore, EPA is not directly establishing any regulatory
requirements that may significantly impact or uniquely affect small
governments, including tribal governments. Thus, EPA is not obligated
to develop under section 203 of UMRA a small government agency plan.
[[Page 17387]]
G. National Technology Transfer and Advancement Act of 1995 (NTTAA)
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. 272 note) do not apply.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 21, 2001.
Michael Schulz,
Acting Regional Administrator, Region IX.
[FR Doc. 01-7919 Filed 3-29-01; 8:45 am]
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