![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Clean Air Act Reclassification, San Joaquin Valley Nonattainment Area; California; Ozone
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 23, 2004 (Volume 69, Number 35)]
[Proposed Rules]
[Page 8126-8128]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23fe04-18]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[CA 112-RECLAS, FRL-7625-7]
Clean Air Act Reclassification, San Joaquin Valley Nonattainment
Area; California; Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to grant a request by the State of California
to voluntarily reclassify under the Clean Air Act (``CAA'' or ``the
Act'') the San Joaquin Valley Ozone Nonattainment Area (``San Joaquin
Valley Air Basin'' or ``SJVAB'') from a severe to an extreme 1-hour
ozone nonattainment area. EPA is also proposing that the State submit,
by no later than October 1, 2004, an extreme ozone nonattainment area
plan addressing the requirements of CAA section 182(e) and that the
State submit revised Title V and New Source Review rules that reflect
the extreme area requirements no later than 12 months from the
effective date of the final reclassification.
Final reclassification of the SJVAB will stop the sanctions and
federal implementation plan clocks that were started under CAA section
179(a) upon EPA's 2002 finding that the State failed to submit the
statutorily required severe area attainment demonstration for the area.
Several Indian tribes have reservations located within the
boundaries of the SJVAB. EPA implements relevant reclassification
provisions of the CAA in these reservations and is also proposing that
these areas be reclassified from a severe to an extreme 1-hour ozone
nonattainment area. Thus, this action could potentially affect these
tribes. Accordingly, EPA has notified the affected tribal leaders of
our proposed action and is inviting consultation with interested
tribes.
EPA will accept comments on all aspects of this proposed rule.
However, as discussed in section II. below, EPA believes that the CAA
compels the Agency to grant a voluntary reclassification when requested
by a State.
DATES: Comments on this proposed action must be received by March 24,
2004.
ADDRESSES: Send comments to David Wampler, Planning Office (AIR-2),
U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street,
San Francisco, CA 94105-3901 or e-mail to wampler.david@epa.gov, or
submit comments at http://www.regulations.gov. 
You can inspect and copy the docket for this action at our Region
IX office during normal business hours (see ADDRESSES above). Due to
increased security, we suggest that you call at least 24 hours prior to
visiting the Regional Office so that we can make arrangements to have
someone meet you. The Federal Register notice is also available as an
electronic file on EPA's Region 9 Web Page at
http://www.epa.gov/region09/air.
FOR FURTHER INFORMATION CONTACT: David Wampler, Planning Office (AIR-
2), Air Division, EPA Region IX, 75 Hawthorne Street, San Francisco, CA
94105, (415) 972-3975.
SUPPLEMENTARY INFORMATION: Throughout this document, the words ``we,''
``us,'' or ``our'' mean U.S. EPA.
I. Background
The San Joaquin Valley Ozone Nonattainment Area (``San Joaquin
Valley Air Basin'' or ``SJVAB'') consists of the following counties in
California's central valley: San Joaquin, the western portion of
Kern,\1\ Fresno, Kings, Madera, Merced, Stanislaus and Tulare.
---------------------------------------------------------------------------
\1\ See 66 FR 56476 (November 8, 2001) (boundary change for the
San Joaquin Valley establishing the eastern portion of Kern County
as its own nonattainment area).
---------------------------------------------------------------------------
Upon the date of enactment of the 1990 Clean Air Act Amendments,
the SJVAB was classified as a serious ozone nonattainment area for the
1-hour ozone National Ambient Air Quality Standard (``NAAQS''). (56 FR
56694, November 6, 1991 and CAA section 181(a)(1)).
In December 2001, EPA reclassified the SJVAB from a serious to a
severe nonattainment area for the 1-hour ozone NAAQS. (66 FR 56476,
November 8, 2001). This reclassification resulted from the failure of
the SJVAB to attain the standard by November 15, 1999 as required for
serious nonattainment areas. CAA section 181(a) and (b)(2). In our
final action, we explained that the State of California would need to
submit by May 31, 2002 a state implementation plan (``SIP'') revision
addressing the severe area planning requirements including, but not
limited to, a demonstration of attainment of the severe 1-hour ozone
standard by November 15, 2005, and a rate of progress (``ROP'')
demonstration of creditable ozone precursor emission reductions of at
least 3 percent per year until attainment. (66 FR 56476, 56481,
November 8, 2001).
On October 2, 2002 (67 FR 61784; effective September 18, 2002), EPA
found that the State failed to submit by May 31, 2002 the following
required severe area SIP revisions for the SJVAB: (1) A demonstration
of attainment of the 1-hour ozone NAAQS by no later than 2005; (2) a
ROP demonstration as described above; (3) an emission control rule for
lime kilns; (4) an emissions inventory; and (5) contingency measures.
In our final action, we stated that, pursuant to CAA section 179(a), if
the State did not submit the required plan revisions, the offset
sanction identified in CAA section 179(b) would be applied in the
affected area followed by the highway sanction 6 months after the
offset sanction was imposed. We also stated that the sanction clock
would stop upon a finding by EPA that the State has made complete \2\
submittals addressing these severe area requirements. Finally, we
explained that, under CAA section 110(c), EPA must promulgate a federal
implementation plan (``FIP'') no later than two years after the finding
under section 179(a) unless the Agency takes
[[Page 8127]]
final action to approve the required SIP revisions within that time.
---------------------------------------------------------------------------
\2\ The requirements regarding completeness of SIP submittals
are found in CAA section 110(k)(1) and 40 CFR part 51, appendix V.
---------------------------------------------------------------------------
The State has submitted all of the required severe area plan
requirements except for a demonstration of attainment of the ozone
standard by 2005 and EPA has found these submittals to be complete.\3\
---------------------------------------------------------------------------
\3\ Rule 4313--Lime Kilns was submitted to EPA on June 5, 2003,
EPA found the submittal complete on July 18, 2003 and approved the
rule on September 4, 2003 (68 FR 52510). The District's Amended 2002
and 2005 Ozone Rate of Progress Plan for San Joaquin Valley, with
its associated emissions inventory and contingency measures, was
submitted to EPA on April 10, 2003. EPA found the submittal complete
on September 4, 2003.
---------------------------------------------------------------------------
II. Reclassification of the SJVAB to Extreme Ozone Nonattainment
By letter dated January 9, 2004, The State requested that EPA
reclassify the SJVAB from a severe to an extreme nonattainment area for
the 1-hour ozone standard.\4\ The State made the request because they
and the San Joaquin Valley Unified Air Pollution Control District
(``District'') believe that sufficient emission reductions to
demonstrate attainment of the 1-hour ozone NAAQS by 2005 in the SJVAB
have not yet been defined.
---------------------------------------------------------------------------
\4\ Letter from Catherine Witherspoon, Executive Officer,
California Air Resources Board, to Mr. Wayne Nastri, Regional
Administrator, EPA Region IX, dated January 9, 2004.
---------------------------------------------------------------------------
Section 181(b)(3) of the CAA provides for ``voluntary
reclassification'' and states that ``* * * [t]he Administrator shall
grant the request of any State to reclassify a nonattainment area in
that State * * * to a higher classification'' and that ``* * * [t]he
Administrator shall publish a notice in the Federal Register of any
such request and of action by the Administrator granting the request.''
Emphasis supplied.
EPA intends to take final action granting the State's request for a
voluntary reclassification. We believe that the plain language of
section 181(b)(3) mandates that we approve such a request and, as such,
gives the Agency no discretion to deny it.\5\ We are, however,
considering the relevance of the State's request to reclassification of
Indian Country areas located within the SJVAB. Typically, states have
no jurisdiction under the Clean Air Act in Indian country, and
California has not been approved by EPA to administer any CAA programs
in Indian country. CAA actions in Indian country would thus generally
be taken either by EPA, or by a tribe itself under an EPA-approved
program. Irrespective of that issue, however, we believe that, as a
matter of EPA's federal implementation of relevant provisions of the
CAA over Indian country within the SJVAB, these areas of Indian country
should similarly be reclassified to extreme. Ground-level ozone
continues to be a pervasive pollution problem in areas, such as the
SJVAB, throughout the United States. Ozone and precursor pollutants
that cause ozone can be transported into an area from pollution sources
found many miles away. Therefore EPA recommends that boundaries for
nonattainment areas be drawn to encompass both areas with direct
sources of the pollution problem as well as nearby areas in the same
airshed. Classifications of nonattainment areas are coterminous with
their boundaries. EPA believes that this approach best ensures public
health protection from the adverse effects of ozone pollution.
Therefore, it is generally counterproductive from an air quality and
planning perspective to segregate land areas located well within the
boundaries of a nonattainment area, such as the seven Indian
reservations in the SJVAB. Moreover, violations of the one-hour ozone
standard, which are measured and modeled throughout the nonattainment
area, as well as shared meteorologic conditions, would dictate the same
result. EPA does, however, recognize the significance of Indian country
boundaries within the nonattainment area and, as described below, will
consult with the affected Tribes regarding the need for
reclassification of their Indian country.
---------------------------------------------------------------------------
\5\ Compare CAA reclassifications based on the failure of a
nonattainment area to attain a NAAQS. See, e.g., section
181(b)(2)(A): ``Within 6 months following the applicable attainment
date * * * the Administrator shall determine, based on the area's
design value * * * whether the area attained the standard by that
date.'' Emphasis supplied.
---------------------------------------------------------------------------
III. Consequences of Reclassification
A. Sanctions and FIP
EPA believes that when a nonattainment area is reclassified, the
CAA attainment requirements of the new classification supersede those
of the previous classification; therefore the former attainment
requirements are moot. In other words, once a nonattainment area has
been reclassified and, as a result, has a new statutory attainment
deadline, the deadline applicable to the previous classification no
longer has any logical, practical or legal significance. See, e.g., 61
FR 54972, 54974 (October 23, 1996). Consequently, when the SJVAB is
reclassified to extreme,\6\ the failure of the State to submit a severe
area ozone attainment demonstration will no longer have any
significance. Therefore, upon the effective date of the
reclassification, the sanction and FIP clocks that were started as a
result of the Agency's October 2, 2002 finding that the State failed to
submit the severe area attainment demonstration will stop.
---------------------------------------------------------------------------
\6\ Under section 181(b)(3) of the Act, the attainment deadline
for a severe area voluntarily reclassified to extreme is as
expeditiously as practicable but no later than November 15, 2010.
---------------------------------------------------------------------------
B. Required Plan, New Source Review and Title V Permit Program
Revisions
As discussed below, the extreme classification, once effective,
will require revisions to the SJVAB portion of California's SIP. We
propose that the State submit, by no later than October 1, 2004, an
extreme ozone nonattainment area plan for the SJVAB. In addition, we
propose that the State submit revised New Source Review rules and Title
V program revisions for the areas within the District's jurisdiction
within 12 months from the effective date of the final reclassification.
1. Extreme Area Plan Requirements. Under 182(e), extreme area plans
are required to meet all the requirements for severe area plans \7\
plus the requirements for extreme areas, including, but not limited to:
(1) A 10 ton per year major source definition; (2) additional
reasonably available control technology (RACT) rules for sources
subject to the new lower major source cutoff; (3) a new source review
offset requirement of at least 1.5 to 1; (4) a rate of progress
demonstration of emission reductions of ozone precursors of at least 3
percent per year from 2005 until the attainment date;\8\ (5) clean
fuels for boilers as required for at CAA section 182(e)(3); and
contingency measures.
---------------------------------------------------------------------------
\7\ The CAA specifically excludes certain severe area
requirements from the extreme area requirements, e.g., section
182(c)(6), (7) and (8).
\8\ The CAA does not allow the state to use the provision at CAA
182(c)(2)(B)(ii) that would allow the state to demonstrate to the
satisfaction of the Administrator that less than 3 percent reduction
per year is approvable if the plan reflecting such lesser amount
includes all measures that can feasibly be implemented in the area.
---------------------------------------------------------------------------
The extreme area plan for the SJVAB 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, 2010.
The new attainment demonstration should be based on the best
information available. While we realize that modeling based on Central
California Ozone Study (CCOS)\9\ data may not be
[[Page 8128]]
completed in time for use in the extreme area plan, the State should,
to the extent possible, use available new data.
---------------------------------------------------------------------------
\9\ The Central California Ozone Study is a large field
measurement program conducted during the summer of 2000 to provide a
more comprehensive and liable data base for future ozone analyses.
Information regarding the CCOS is available on-line at
http://www.arb.ca.gov/airways/ccos/ccos.htm.
---------------------------------------------------------------------------
In anticipation of the reclassification of the SJVAB, work on the
extreme area plan has been ongoing since 2002 but has not yet been
completed because of a delay in the photochemical modeling. The
District now projects completion of the plan in May 2004, and Board
adoption in the summer of 2004.\10\ Given the current status of the
plan development, EPA believes that a submittal deadline of October 1,
2004 is reasonable.
---------------------------------------------------------------------------
\10\ See the District's Draft Status Report for the January 6
and 7, 2004 Workshop and related documents.
---------------------------------------------------------------------------
2. NSR and Title V Program Revisions. In addition to the required
plan revisions discussed above, the District must revise its New Source
Review (NSR) rule to reflect the extreme area definitions for major new
sources and major modifications and to increase the offset ratio for
these sources from the ratio for severe areas in CAA section 182(d)(2)
to 1.5 to 1. CAA section 182(e)(1) and (2). The District must also make
any changes in its Title V operating permits program necessary to
reflect the change in the threshold from 25 tpy for severe areas to 10
tpy for extreme areas. We are proposing that the State submit any
required revisions to these programs by no later than 12 months from
the effective date of the final reclassification.
IV. Effect of EPA's Implementation of the New 8-hour Ozone NAAQS on
Today's Proposed Action
On June 2, 2003, EPA published in the Federal Register a proposed
rule that outlined two distinct options on how EPA would implement the
revised 8-hour ozone air quality standard issued by EPA in 1997,
including the transition from implementation of the 1-hour standard to
implementation of the 8-hour standard. (68 FR 32802). EPA issued draft
regulatory text on August 6 (68 FR 46536), and on October 21 (68 FR
60054) invited comments on alternative classification options. At this
time, EPA is in the process of evaluating comments we received on the
proposed implementation rule--and subsequent notices--and we expect to
finalize the rule soon. At the same time, we are working with the
states and tribes to finalize the 8-hour designations by April 15,
2004. After the implementation rule is final and the 8-hour area
designations are set, we will be able to fully evaluate how the
transition to the revised 8-hour standard will impact the existing
requirements to implement the 1-hour ozone standard.
V. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. EPA has
determined that the voluntary reclassification would not result in any
of the effects identified in Executive Order 12866 sec. 3(f). Voluntary
reclassifications under 181(b)(3) of the CAA are based solely upon
requests by the State and EPA is required under the CAA to grant them.
These actions do not, in and of themselves, impose any new requirements
on any sectors of the economy. In addition, because the statutory
requirements are clearly defined with respect to the differently
classified areas, and because those requirements are automatically
triggered by classifications, reclassification cannot be said to impose
a materially adverse impact on State, local, or tribal governments or
communities. For the aforementioned reasons, this action is also not
subject to Executive Order 32111, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use''
(66 FR 28355, May 22, 2001). Accordingly, the Administrator certifies that
this rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). These actions do not contain any unfunded mandate or
significantly or uniquely affect small governments, as described in the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) for the following
reasons: EPA is required to grant requests by States for voluntary
reclassifications and such reclassifications in and of themselves do
not impose any federal intergovernmental mandate. Several Indian tribes
have reservations located within the boundaries of the SJVAB. EPA is
responsible for the implementation of federal Clean Air Act programs in
Indian country, including reclassifications. EPA has notified the
affected tribal officials and will be consulting with all interested
tribes, as provided for by Executive Order 13175 (59 FR 22951, November
9, 2000). EPA will ensure that each tribe is contacted and given the
opportunity to enter into consultation on a government-to-government
basis. Because EPA is required to grant requests by States for
voluntary reclassifications and such reclassifications in and of
themselves do not impose any federal intergovernmental mandate, this
rule also does not have Federalism implications as it does not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This
action is also not subject to Executive Order 13045 (62 FR 19885, April
23, 1997), because it is not economically significant. As discussed
above, a voluntary reclassification under section 181(b)(3) of the CAA
is based solely on the request of a State and EPA is required to grant
such a request. In this context, it would thus be inconsistent with
applicable law for EPA, when it grants a State's request for a
voluntary reclassification to use voluntary consensus standards. Thus,
the requirements of section 12(d) of the National Technology Transfer
and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This
rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, National parks, Nitrogen oxides, Ozone,
Volatile organic compounds, Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 13, 2004.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 04-3823 Filed 2-20-04; 8:45 am]
BILLING CODE 6560-50-P