[Federal Register Volume 66, Number 62 (Friday, March 30, 2001)]
[Proposed Rules]
[Pages 17379-17387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-7919]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 
[email protected].
    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; [email protected].

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\
---------------------------------------------------------------------------

    \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.)
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    \4\ See 40 CFR 50.9 and appendix H.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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
----------------------------------------------------------------------------------------------------------------
                                                                                                   Estimated VOC
  VOC measure (BAAQMD regulation                                                                     reductions
               No.)                          Adoption date               Implementation date       (tpd),  1995-
                                                                                                        2000
----------------------------------------------------------------------------------------------------------------
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).
----------------------------------------------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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
----------------------------------------------------------------------------------------------------------------
                                                 Estimated VOC reductions (tpd)   Estimated NOX reductions (tpd)
 Adopted control measure (BAAQMD regulation or -----------------------------------------------------------------
            State/Federal measure)                 2001       2002       2003       2001       2002       2003
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \10\ The Bay Area's conformity rules, which include consultation 
procedures, were approved into the SIP on October 21, 1997 (62 FR 
54587).
---------------------------------------------------------------------------

    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)).
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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
------------------------------------------------------------------------
 
------------------------------------------------------------------------
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.
------------------------------------------------------------------------


[[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'' (65 FR 67249, 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]
BILLING CODE 6560-50-P