[Federal Register Volume 66, Number 151 (Monday, August 6, 2001)]
[Rules and Regulations]
[Pages 40908-40911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19456]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[CA-038-EXTa; FRL-7023-9]


Clean Air Act Promulgation of Extension of Attainment Date for 
the San Diego, California Serious Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is extending the attainment date for the San Diego serious 
ozone nonattainment area from November 15, 2000, to November 15, 2001. 
This extension is based in part on monitored air quality readings for 
the 1-hour national ambient air quality standard (NAAQS) for ozone 
during 2000. Accordingly, we are updating the table concerning 
attainment dates for the State of California. In this action, we are 
approving the State's request through a ``direct final'' rulemaking. 
Elsewhere in this Federal Register, we are proposing approval and 
soliciting written comment on this action; if adverse written comments 
are received, we will withdraw the direct final rule and address the 
comments received in a new final rule; otherwise no further rulemaking 
will occur on this attainment date extension request.

DATES: This direct final rule is effective October 5, 2001 unless 
before September 5, 2001 adverse comments are received. If adverse 
comment is received, EPA will publish a timely withdrawal of the direct 
final rule in the Federal Register, and inform the public that the rule 
will not take effect.

ADDRESSES: Please address your comments to the EPA contact below. You 
may inspect and copy the rulemaking docket for this notice at the 
following location during normal business hours. We may charge you a 
reasonable fee for copying parts of the docket. Environmental 
Protection Agency, Region 9, Air Division, Air Planning Office (AIR-
2),75 Hawthorne Street, San Francisco, CA 94105-3901.
    Copies of the SIP materials are also available for inspection at 
the addresses listed below:

California Air Resources Board, 1001 I Street Sacramento, CA 95812
San Diego County Air Pollution Control District, 9150 Chesapeake Drive, 
San Diego, CA 92123-1096

FOR FURTHER INFORMATION CONTACT: Dave Jesson, Air Planning Office (AIR-
2), Air Division, U.S. EPA, Region 9, 75 Hawthorne Street, San 
Francisco, CA 94105-3901. Telephone: (415) 744-1288. E-mail: 
[email protected]

SUPPLEMENTARY INFORMATION:

Request for Attainment Date Extension for the San Diego Area

    The San Diego serious ozone nonattainment area, which consists of 
San Diego County, is currently designated a serious ozone nonattainment 
area. The statutory ozone attainment date, as prescribed by section 
181(a) of the Clean Air Act (``the Act''), was November 15, 1999. On 
May 15, 2000, the State of California requested a one-year attainment 
date extension to November 15, 2000. EPA granted that extension on 
October 11, 2000 (65 FR 60362). On February 7, 2001, California 
requested a second one-year extension to November 15, 2001.

CAA Requirements Concerning Designation and Classification

    Section 107(d)(4) of the Act required the States and EPA to 
designate areas as attainment, nonattainment, or unclassifiable for 
ozone as well as other pollutants for which national ambient air 
quality standards (NAAQS) have been set. Section 181(a)(1) required 
that ozone nonattainment areas be classified as marginal, moderate, 
serious, severe, or extreme, depending on their air quality.
    In a series of Federal Register documents, we completed this 
process by designating and classifying all areas of the country for 
ozone. See, e.g., 56 FR 58694 (Nov. 6, 1991), and 57 FR 56762 (Nov. 30, 
1992). San Diego County was originally classified as severe, but was 
reclassified as serious based upon our determination that the ozone 
value used in the original classification was incorrect. See 60 FR 3771 
(Jan. 19, 1995).
    Areas designated nonattainment for ozone are required to meet 
attainment dates specified under the Act. As noted, the San Diego ozone 
nonattainment area was reclassified as serious. By this classification, 
its attainment date became November 15, 1999. A discussion of the 
attainment dates is found in EPA's General Preamble for Implementation 
of Title I of the Clean Air Act Amendments of 1990. See 57 FR 13498 
(April 16, 1992).

CAA Requirements Concerning Meeting the Attainment Date

    Section 181(b)(2)(A) requires the Administrator, within six months 
of the attainment date, to determine whether ozone nonattainment areas 
attained the NAAQS. For ozone, we determine attainment status on the 
basis of the expected number of exceedances of the NAAQS over the 
three-year period up to, and including, the attainment date. See 
General Preamble, 57 FR 13506. In the case of serious ozone 
nonattainment areas, the three-year period is 1997-1999.
    A review of the actual ambient air quality ozone data from the EPA 
Aerometric Information Retrieval System (AIRS) shows that three air 
quality monitors located in the San Diego ozone nonattainment area 
recorded exceedances of the NAAQS for ozone during the three-year 
period from 1997 to 1999 and the three-year period from 1998 to 
2000.\1\ (See Table 1.) Over the three-year period of 1997 to 1999, 
there were 9 exceedances at the Alpine monitor. There were 8 
exceedances at the Alpine monitor for the period 1998 to 2000, all of 
which occured in 1998. For both of these three-year periods, this 
constitutes a violation of the ozone NAAQS for the San Diego area, 
since the average annual exceedance at the Alpine monitor is more than 
1.0. Thus, the area met neither the November 15, 1999 attainment date 
nor the November 15, 2000 extended attainment date, and the area 
continues to violate the 1-hour ozone NAAQS because of multiple 
exceedances recorded in 1998, which must be included in the calculation 
of average annual exceedances over the most recent 3-year period.
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    \1\ AIRS Data Monitor Values Reports are available 
electronically at http://www.epa.gov/airsdata/monvals.htm.

[[Page 40909]]



                     Table 1.--Exceedances of the 1-Hour Ozone NAAQS in San Diego 1997-2000
                                                 [Source: AIRS]
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                                                                                    Exceedances
                                                                  ----------------------------------------------
                        Monitoring station                                                               Total
                                                                     1997     1998     1999     2000   1998-2000
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Chula Vista......................................................        0        0        0        0         0
El Cajon.........................................................        0        1        0        0         1
Oceanside........................................................        0        0        0        0         0
San Diego (Overland).............................................        0        1        0        0         1
Del Mar..........................................................        0        0        0        0         0
Escondido........................................................        0        0        0        0         0
Alpine...........................................................        1        8        0        0         8
San Diego (12th St.).............................................        0        0        0        0         0
Camp Pendleton...................................................        0        0        0        0         0
Otay Mesa........................................................        0        0        0        0         0
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CAA Provisions Authorizing a One-Year Extension of the Attainment 
Date

    CAA section 181(b)(2)(A) states that, for areas classified as 
marginal, moderate, or serious, if the Administrator determines that 
the area did not attain the standard by its attainment date, the area 
must be reclassified upwards. However, CAA section 181(a)(5) provides 
an exemption from these bump up requirements. Under this exemption, we 
may grant up to 2 one-year extensions of the attainment date under 
specified conditions:
    Upon application by any State, the Administrator may extend for 1 
additional year (hereinafter referred to as the ``Extension Year'') the 
date specified in table 1 of paragraph (1) of this subsection if--
    (A) the State has complied with all requirements and commitments 
pertaining to the area in the applicable implementation plan, and
    (B) no more than 1 exceedance of the national ambient air quality 
standard level for ozone has occurred in the area in the year preceding 
the Extension Year.
    No more than 2 one-year extensions may be issued under this 
paragraph for a single nonattainment area.
    We interpret this provision to authorize the granting of a one-year 
extension under the following minimum conditions: (1) The State 
requests a one-year extension; (2) all requirements and commitments in 
the EPA-approved SIP for the area have been complied with; and (3) The 
area has no more than one measured exceedance of the NAAQS during the 
year at any one monitor that includes the attainment date (or the 
subsequent year, if a second one-year extension is requested).

EPA Action

    We have determined that the requirements for a second one-year 
extension of the attainment date have been fulfilled as follows:
    (1) California has formally submitted the attainment date extension 
request, in a letter dated February 7, 2001, from Michael P. Kenny, 
Executive Officer, California Air Resources Board, to Laura Yoshii, 
Acting Regional Administrator, EPA Region 9.
    (2) California is currently implementing the EPA-approved SIP. The 
State's letter, cited above, discusses implementation of State measures 
in the SIP, and shows that these measures plus new State measures have 
achieved an overall surplus of emission reductions beyond those assumed 
in the SIP. The State also attached a letter dated December 4, 2000, 
from R.J. Sommerville, Director, San Diego County Air Pollution Control 
District, which states that the District continues to fully implement 
the SIP.
    (3) California has certified that the area has monitored no 
exceedances during 2000. This is also reflected in the quality-assured 
ambient ozone data shown in Table 1 above.
    Because the statutory provisions have been satisfied, we approve 
California's attainment date extension request for the San Diego ozone 
nonattainment area. As a result, the chart in 40 CFR 81.305 entitled 
``California--Ozone'' is being modified to extend the attainment date 
for the San Diego ozone nonattainment area from November 15, 2000, to 
November 15, 2001.
    We are approving the attainment date extension without prior 
proposal because the Agency views this as a noncontroversial amendment 
and anticipates no adverse comments. However, elsewhere in the proposed 
rule section of today's Federal Register we are publishing a proposal 
to approve this part 81 action should adverse or critical comments be 
filed. This action will be effective October 5, 2001 unless before 
September 5, 2001 adverse or critical comments are received.
    If we receive such comments, this action will be withdrawn before 
the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. We will not institute a second comment period on this 
action. Any parties interested in commenting on this action should do 
so at this time. If no such comments are received, the public is 
advised that this action will be effective on October 5, 2001.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866, entitled ``Regulatory Planning and 
Review.''

B. Executive Order 13211

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

[[Page 40910]]

C. Executive Order 13045

    Executive Order 13045, entitled 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 13132

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999) revokes and replaces Executive Orders 12612, Federalism and 
12875, Enhancing the Intergovernmental Partnership. Executive Order 
13132 requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will 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, because it 
merely approves a state request for an attainment date extension, and 
does 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 this 
rule.

E. 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 final 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.

F. 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.
    Extension of an area's attainment date under the CAA does not 
impose any new requirements on small entities. Extension of an 
attainment date is an action that affects a geographical area and does 
not impose any regulatory requirements on sources. EPA certifies that 
the approval of the attainment date extension will not have a 
significant economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

G. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does 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 Federal action approves a 
State request for an attainment date extension, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    EPA believes that VCS are inapplicable to today's action because it 
does not require the public to perform activities conducive to the use 
of VCS.

I. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement

[[Page 40911]]

Fairness Act of 1996, generally provides that before a rule may take 
effect, the agency promulgating the rule must submit a rule report, 
which includes a copy of the rule, to each House of the Congress and to 
the Comptroller General of the United States. EPA will submit a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
United States prior to publication of the rule in the Federal Register. 
A major rule cannot take effect until 60 days after it is published in 
the Federal Register. This rule is not a ``major'' rule as defined by 5 
U.S.C. 804(2).

J. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 5, 2001. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 81

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

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

    Dated: July 25, 2001.
Jane Diamond,
Acting Regional Administrator, Region IX.

    Part 81 of chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 81--[AMENDED]

    1. The authority citation for part 81 continues to read as follows:

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

    2. In Sec. 81.305 the ``California-ozone'' table is amended by 
revising the entry for San Diego area to read as follows:


Sec. 81.305  California.

* * * * *

                                                California--Ozone
                                                [1-Hour Standard]
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                                                   Designation                         Classification
           Designated area           ---------------------------------------------------------------------------
                                        Date\1\              Type             Date \1\             Type
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*                  *                  *                  *                  *                  *
                                                        *
San Diego Area:
    San Diego County................     11/15/90  Nonattainment..........      2/21/95  Serious \2\
 
*                  *                  *                  *                  *                  *
                                                        *
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\1\ This date is November 15, 1990, unless otherwise noted.
\2\ Attainment date is extended to November 15, 2001.

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[FR Doc. 01-19456 Filed 8-3-01; 8:45 am]
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