Federal Register, Volume 62 Issue 169 (Tuesday, September 2, 1997)

[Federal Register Volume 62, Number 169 (Tuesday, September 2, 1997)]
[Proposed Rules]
[Pages 46234-46238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23235]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[CA-002-BU; FRL-5886-6]

Clean Air Act Reclassification; California-Santa Barbara
Nonattainment Area; Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to determine that the Santa Barbara moderate
ozone nonattainment area has not attained the 1-hour ozone national
ambient air quality standard (NAAQS) by the Clean Air Act (CAA)
mandated attainment date for moderate nonattainment areas, November 15,
1996. The proposed determination is based on EPA's review of monitored
air quality data for compliance with the 1-hour ozone NAAQS. If EPA
takes final action on the determination as proposed, the Santa Barbara
ozone nonattainment area will be reclassified by operation of law as a
serious nonattainment area. The effect of such a reclassification would
be to continue progress toward attainment of the 1-hour ozone NAAQS
through development of a new State implementation plan (SIP) addressing
attainment of the standard by November 15, 1999.

DATES: Comments on this proposal must be received in writing by October
2, 1997. Comments should be addressed to the Region 9 office under
ADDRESSES.

ADDRESSES: Copies of EPA's draft technical support document (TSD) for
this rulemaking and EPA's policies governing attainment findings and
extension requests are contained in the docket for this rulemaking. A
copy of this notice and the TSD are also available in the air programs
section of EPA Region 9's website, http://www.epa.gov/region09. The
docket is available for inspection during normal business hours at the
following locations:

U.S. Environmental Protection Agency, Region 9, Office of Air
Planning, Air Division, 17th Floor, 75 Hawthorne Street, San
Francisco, California 94105. (415) 744-1248;
California Air Resources Board; 2020 L Street; Sacramento,
California; and
Santa Barbara Air Pollution Control District; 26 Castilian Drive B-
23; Goleta, California.

FOR FURTHER INFORMATION CONTACT: Dave Jesson, Office of Air Planning
(AIR-2), U.S. Environmental Protection Agency, Region 9, 75 Hawthorne
Street, San Francisco, California 94105. (415) 744-1288.

SUPPLEMENTARY INFORMATION:

I. Background

A. CAA Requirements and EPA Actions Concerning Designation and
Classifications

The Clean Air Act Amendments of 1990 (CAA) were enacted on November
15, 1990. Under section 107(d)(1)(C) of the CAA, each ozone area
designated nonattainment for the 1-hour ozone NAAQS prior to enactment
of the 1990 Amendments, such as the Santa Barbara nonattainment area,
was designated nonattainment by operation of law upon enactment of the
1990 Amendments.¹ Under section 181(a) of the Act, each
ozone area designated nonattainment under section 107(d) was also
classified by operation of law as ``marginal,'' ``moderate,''
``serious,'' ``severe,'' or ``extreme'' depending on the severity of
the area's air quality problem. Ozone

[[Page 46235]]

nonattainment areas with design values between 0.138 and 0.160 parts
per million (ppm), such as the Santa Barbara area, were classified as
moderate. These nonattainment designations and classifications were
codified in 40 CFR part 81. See 56 FR 56694 (November 6, 1991). The
Santa Barbara nonattainment area comprises the entire County of Santa
Barbara. See 40 CFR 81.305.
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\1\ On July 18, 1997 (62 FR 38856), PA revised the ozone NAAQS
to establish a 8-hour standard; however, in order to ensure an
effective transition to the new 8-hour standard, EPA also retained
the 1-hour NAAQS for an area until such time as it determines that
the area meets the 1-hour standard. See revised 40 CFR 50.9 at 62 FR
38894. As a result of retaining the 1-hour standard, CAA part D,
subpart 2 Additional Provisions for Ozone Nonattainment Areas,
including the reclassification provisions of section 181(b), remain
applicable to areas that are not attaining the 1-hour standard.
Unless otherwise indicated, all references in this notice are to the
1-hour ozone NAAQS.
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States containing areas that were classified as moderate
nonattainment by operation of law under section 107(d) were required to
submit State implementation plans (SIPs) designed to show progress
towards attainment, and attainment of the ozone NAAQS as expeditiously
as practicable but no later than November 15, 1996. Moderate area SIP
requirements are found primarily in section 182(b) of the CAA.

B. Reclassification to Serious

EPA has the responsibility, pursuant to section 181(b)(2)(A) of the
CAA, of determining, within six months of the applicable attainment
date (including any extension of that date) ² whether an
ozone nonattainment area has attained the ozone NAAQS. Under section
181(b)(2)(A), if EPA finds that a moderate area has not attained the
ozone NAAQS, it is reclassified by operation of law to the higher of
the next higher classification or to the classification applicable to
the area's design value at the time of the finding. Pursuant to section
186(b)(2)(B) of the Act, EPA must publish a notice in the Federal
Register identifying areas which failed to attain the standard and
therefore must be reclassified by operation of law.
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\2\ Under section 181(a)(5) of the CAA, if a state does not have
the clean data necessary to show attainment of the NAAQS, it may
apply for, and EPA may issue, up to two one-year attainment date
extensions if the state has: (1) Complied with the requirements and
commitments pertaining to the applicable implementation plan for the
area, and (2) the area has measured no more than one exceedance of
the ozone NAAQS at any monitoring site in the nonattainment area in
the year preceding the extension year. See memorandum from D. Kent
Berry, Acting Director, Air Quality Management Division, EPA, to
Regional Air Office Directors, entitled ``Procedures for Processing
Bump Ups and Extensions for Marginal Ozone Nonattainment Areas,''
February 3, 1994 (Berry memorandum). The State has not applied for
an extension for the Santa Barbara area and, as discussed below, the
area does not meet the second statutory criterion for such an
extension.
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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 50.9 and
Appendix H. EPA makes attainment determinations for ozone nonattainment
areas using the most recently available, quality-assured air quality
data covering the 3-year period up to and including the attainment
date.³ Consequently, EPA will determine whether the Santa
Barbara area's air quality has met the moderate area attainment
deadline of November 15, 1996 based upon all 1994, 1995, and 1996
(through November 15) quality-assured air quality data available to the
Agency.⁴ From the available data, EPA determines the average
number of exceedances per year at each ozone monitor during this
period. If this number is greater than one at any monitor, then the
area is determined to have not attained by November 15, 1996. EPA then
calculates the design value for the area to determine the correct new
classification.⁵
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\3\ See generally 57 FR 13506 (April 16, 1992) and Berry
memorandum. While explicitly applicable only to marginal areas, the
general procedures for processing reclassifications and extension
requests described in this memorandum apply regardless of the
initial classification of an area because all reclassification are
made pursuant to the same Clean Air Act requirements in section
181(b)(2).
\4\ All quality-assured available data includes all data
available from the state and local/national air monitoring (SLAMS/
NAMS) network as submitted to EPA's AIRS system and all data
available to EPA from special purpose monitoring (SPM) sites that
meet the requirements of 40 CFR 58.13.
\5\ See memorandum from William G. Laxton, Director Technical
Support Division, entitled ``Ozone and Carbon Monoxide Design Value
Calculations,'' June 18, 1990.
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II. Proposal in Regard to the Santa Barbara Ozone Nonattainment
Area

A. Current Air Quality

The Santa Barbara County Air Pollution Control District (SBCAPCD)
and the California Air Resources Board (CARB) have worked hard to
improve the County's air quality. The early introduction of cleaner
burning gasoline and the strictest vehicle emission standards in the
country, reflect CARB's leadership on air quality issues. In addition,
SBCAPCD has been recognized for it's innovative approaches toward clean
air. For its efforts, SBCAPCD received the 1996 Presidential Award for
Sustainable Development and the 1996 Governor's Environmental and
Economic Leadership Award.
While CARB and SBCAPCD continue to make progress in addressing the
ozone problem, more still needs to be done. EPA will work with the
State, District, local communities, business and environmental
interests to develop additional approaches to improving Santa Barbara
County's air quality.
Attainment of the 1-hour ozone NAAQS is demonstrated in an area
when the expected number of days per calendar year with maximum hourly
average ozone concentrations above 0.12 ppm is equal to or less than
one. 40 CFR 50.9. The average number of days is calculated for a three-
year period. 40 CFR part 50, Appendix H and Laxton memo. The 1994-1996
period is used to demonstrate attainment by November 15, 1996.
The SBCAPCD and CARB operate an ozone monitoring network in Santa
Barbara County which consists of six ozone monitoring stations
designated as State or Local Air Monitoring Stations (SLAMS). In
addition to its SLAMS network the SBCAPCD also oversees the operation
of a number of special purpose monitors (SPMs). These SPMs are operated
independently by certain permitted stationary sources in the county but
all data collected at these SPMs are validated and audited by a SBCAPCD
contractor. All data produced by these SPMs are submitted to the EPA's
Aerometric Information Retrieval System--Air Quality Subsystem (AIRS-
AQS) database. While these SPMs are not part of the county's SLAMS
network, data from these sites are used to augment the data from the
SLAMS network.
The following table lists the 3-year average number of days over
the 1-hour ozone standard at each SLAMS/SPM monitoring site in the
Santa Barbara area for the period 1994 to 1996 and each monitor's
design value for that period. Design values are calculated following
the procedures in the Laxton memo. A complete listing of the ozone
exceedances at each monitor as well as EPA's calculations of the design
values can be found in the TSD.

[[Page 46236]]

Average Number of Ozone Exceedance Days Per Year in the Santa Barbara Area
[1994-1996]
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Number of days
over the Average number Site design
Site standard (1994- of exceedance value (PPM)
1996) days per year
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El Capitan St (SLAMS)........................................... 2 0.7 0.119
Goleta (SLAMS).................................................. 2 0.7 0.119
Gaviota West (SPM).............................................. 1 0.3 0.110
Gaviota East (SPM).............................................. 1 0.3 0.111
Gaviota GTC B (SPM)............................................. 1 0.3 0.103
Gaviota GTC C (SPM)............................................. 4 1.3 0.125
Carpinteria (SPM)............................................... 4 1.3 0.128
Capitan LFC #1 (SPM)............................................ 8 2.7 0.130
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As can be seen from preceding table, three SPM monitoring sites
(Gaviota GTC C, Carpinteria, and Capitan LFC #1) have averaged more
than 1 exceedance day per year in the 1994-1996 period. EPA is,
therefore, proposing to find that the Santa Barbara area did not attain
the 1-hour ozone NAAQS by the November 15, 1996, statutory deadline for
a moderate area.
EPA is also proposing that the appropriate reclassification of the
area is to serious. Section 181(b)(2) requires the area to be
reclassified to the higher of the next higher classification or the
classification appropriate to the design value at the time of the
nonattainment finding. The next highest classification for Santa
Barbara is serious. The other potential classification is severe. Based
on the design value calculated using data from the SLAMS/SPM network,
the area's design value is 0.130 ppm. This design value is well below
the range required for a severe classification, that is 0.180 to 0.280
ppm.
In an August 19, 1997 letter, SBCAPCD requested that EPA consider
applying the reclassification to only the South County ⁶
portion of Santa Barbara nonattainment area. Monitoring data from 1990-
1996 indicate that the North County ⁷ portion of the
nonattainment area is in compliance with the existing 1-hour ozone
standard. These two areas are separated by the Santa Ynez Mountains.
EPA is proposing to reclassify the entire Santa Barbara nonattainment
area. However, EPA is requesting comment on the technical rationale for
only reclassifying the South County portion of the nonattainment area.
The technical rationale should include information on North County's
contribution to the South County's air quality. In addition, EPA is
requesting information on the current status of and future outlook for
the North County's air quality in relation to meeting the new 8-hour
ozone standard.
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\6\ The SBCAPCD is recommending the following boundaries for the
South County portion of the nonattainment area: Beginning at the
Pacific Ocean outfall of Jaluma Creek and running east and north
along Jaluma Creek to a point of intersection with the west boundary
of the San Julian Land Grant; then south along the San Julian Land
Grant boundary to its southwest corner; then east along the south
boundary of the San Julian Grant to the northeast corner of partial
Section 20, T. 5 N, R. 32 W, San Bernardino Base and West; then
south and east along the boundary of the Las Cruces Land Grant to
the southwest corner of partial Section 13, T. 5 N, R. 32 W; then
northeast along the Las Cruces Land Grant boundary; then east along
the north boundaries of Section 13, T. 5 N, R. 32 W, and Sections
18, 17, 16, 15, 14, 13, T. 5 N, R. 31 W, and Sections 18, 17, 16,
15, 14, 13, T. 5 N, R. 30 W, and Sections 18, 17, 16, 15, T. 5 N, R.
29 W; then south along the east boundary of Section 15, T. 5 N, R 29
W; then east along the north boundaries of Sections 23 and 24, T. 5
N, R. 29 W, and Sections 19, 20, 21, 22, 23, T. 5 N, R. 28 W, and
Sections 19 and 20, T. 5 N, R. 27 W; then south along the east
boundary of Section 20, T. 5 N, R. 27 W, then east along the north
boundaries of Sections 28, 27, 26, 25, T. 5 N, R. 27 W, and Section
30 T. 5 N, R. 26 W; then south along the east boundary of Section
30, T. 5 N, R. 26 W; then east along the north boundaries of
Sections 32, 33, 34, T. 5 N, R. 26 W; then south along the east
boundary of Section 35, T. 5 N, R. 26 W to the township line common
to T. 4 N and T. 5 N; then east along this township line to the
Santa Barbara-Ventura County boundary; State waters offshore of that
portion of the Santa Barbara County lying south of the latitude of
the mouth of the Jalama Creek and those areas of the Outer
Continental Shelf waters for which the District has been designated
the corresponding onshore area by the Environmental Protection
Agency.
\7\ SBCAPCD is recommending that the North County boundary be
the remainder of Santa Barbara County and corresponding State waters
located offshore not included in the previous footnote describing
the South County boundary.
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B. SIP Requirements for Serious Ozone Areas

Under section 181(a)(1) of the Act, the attainment deadline for
moderate area ozone nonattainment areas reclassified to serious under
section 181(b)(2) will be as expeditiously as practicable but no later
than November 15, 1999. Under section 182(i), these reclassified areas
are required to submit SIP revisions addressing the serious area
requirements for the 1-hour ozone NAAQS in section 182(c). Section
182(i) further provides that the Administrator may adjust the statutory
schedules for submittal of these SIP revisions. Accordingly, EPA is
exercising this authority to require submittal of the serious area SIP
revisions no later than 12 months from the effective date of the area's
reclassification. EPA believes that a 12 months schedule is appropriate
because attainment date for serious areas, November 15, 1999, is little
more than 2 years away and the State will need to expedite adoption and
implementation of controls to meet that deadline. EPA is requesting
comment on the proposed 12 month schedule.
Under section 182(c), the requirements for serious ozone
nonattainment areas include, but are not limited to, the following: (1)
Attainment and reasonable further progress demonstrations; (2) an
enhanced vehicle inspection and maintenance program; (3) clean-fuel
vehicle programs; (4) a 50 ton-per-year major source threshold; (5)
more stringent new source review requirements; (6) an enhanced
monitoring program; and (7) contingency provisions.
EPA has issued a ``General Preamble for the Implementation of Title
I of the Clean Air Act Amendments of 1990'' that sets forth the
Agency's preliminary views on how it will act on SIPs submitted under
Title I of the Act. See generally 57 FR 13498 (April 16, 1992) and 57
FR 18070 (April 28, 1992).
EPA has recently promulgated an 8-hour ozone standard (62 FR 38856,
July 18, 1997). In order to facilitate the transition from the 1-hour
to the 8-hour NAAQS, EPA may issue additional guidance to assist states
in meeting the serious area requirements.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future action. Each
finding of failure to attain or request for an extension of an
attainment date shall be considered separately and shall be based on
the factual situation of the area under

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consideration and in relation to relevant statutory and regulatory
requirements.

III. Administrative Requirements

A. Executive Order (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, section 6(a)(3). The E.O. defines, in section
3(f), a ``significant regulatory action'' as a regulatory action that
is likely to result in a rule that may meet at least one of four
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 the finding of failure to attain proposed
today, as well as the establishment of SIP submittal schedules
resulting from a reclassification, would result in none of the effects
identified in E.O. 12866, section 3(f). Under section 181(b)(2) of the
Act, findings of failure to attain 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 establishment of new SIP submittal schedules merely
establishes the dates by which SIPs must be submitted, and does not
adversely affect entities.

B. Regulatory Flexibility

Under the Regulatory Flexibility Act, 5 U.S.C. 601 et. seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C 603 and 604.
Alternatively, EPA may certify 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 government entities with jurisdiction over populations
of less than 50,000.
A finding of failure to attain (and the consequent reclassification
by operation of law of the nonattainment area) under section 181(b)(2)
of the Act, and the establishment of a SIP submittal schedule for a
reclassified area, do not, in and of themselves, directly impose any
new requirements on small entities. See Mid-Tex Electric Cooperative,
Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985) (agency's certification
need only consider the rule's impact on entities subject to the
requirements of the rule). Instead, this rulemaking simply proposes to
make a factual determination and to establish a schedule to require
States to submit SIP revisions, and does not propose to directly
regulate any entities. Therefore, pursuant to 5 U.S.C. 605(b), EPA
certifies that today's proposed action does not have a significant
impact on a substantial number of small entities within the meaning of
those terms for RFA purposes.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, when EPA promulgates ``any general notice of proposed
rulemaking that is likely to result in promulgation of any rule that
includes any Federal mandate that may result in the expenditures by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more'' in any one year. A ``Federal
mandate'' is defined, under section 101 of UMRA, as a provision that
``would impose an enforceable duty'' upon the private sector or State,
local, or tribal governments'', with certain exceptions not here
relevant. Under sec. 203 of UMRA, EPA must develop a small government
agency plan before EPA ``establish[es] any regulatory requirements that
might significantly or uniquely affect small governments''. Under
section 204 of UMRA, EPA is required to develop a process to facilitate
input by elected officers of State, local, and tribal governments for
EPA's ``regulatory proposals'' that contain significant Federal
intergovernmental mandates. Under section 205 of UMRA, before EPA
promulgates ``any rule for which a written statement is required under
[UMRA sec.] 202'', EPA must identify and consider a reasonable number
of regulatory alternatives and either adopt the least costly, most
cost-effective or least burdensome alternative that achieves the
objectives of the rule, or explain why a different alternative was
selected.
Sections 202, 204, and 205 of UMRA do not apply to today's action
because the proposed factual determination that Santa Barbara County
failed to reach attainment does not, in and of itself, constitute a
Federal mandate because it does not impose an enforceable duty on any
entity. Although the establishment of a SIP submission schedule may
impose such a duty on the State, this requirement merely establishes
due dates, does not set out any requirements not otherwise already
present, and thus cannot be considered to cost $100 million or more.
Finally, section 203 of UMRA does not apply to today's action because
the regulatory requirements proposed today--the SIP submittal
schedule--affect only Santa Barbara County, which is not a small
government under UMRA.

D. Rule vs. Adjudication

It should be noted that each of the three administrative
requirements described above--E.O. 12866, the Regulatory Flexibility
Act, and UMRA--apply only with respect to agency actions that fall into
the category of ``rules'', as defined under those provisions or under
the Administrative Procedures Act. E.O. 12866 sec. 3 (d)-(e);
Regulatory Flexibility Act, 5 U.S.C. sec. 603(a), 601(2); Unfunded
Mandates Reform Act, secs. 202-205, 421. EPA is considering the
possibility that today's action, to the extent it consists of a
determination that Santa Barbara County failed to attain the ozone
NAAQS as of the end of 1996, might not be considered a ``rule'' as
defined under these provisions, and instead might be considered an
informal adjudication. The basis for this distinction could be that
today's action constitutes a specific factual determination applicable
only to the area in question, based on pre-existing facts. Under these
circumstances, the administrative

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requirements discussed above might not apply. However, EPA is taking
this approach under consideration; it is not today proposing this
approach.

List of Subjects in 40 CFR Part 81

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

Authority: 42 U.S.C. 7401-7671q.

Dated: August 25, 1997.
Felicia Marcus,
Regional Administrator, Region IX.
[FR Doc. 97-23235 Filed 8-29-97; 8:45 am]
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