[Federal Register Volume 66, Number 217 (Thursday, November 8, 2001)]
[Rules and Regulations]
[Pages 56476-56484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27289]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[CA-059-RECL, FRL-7093-4]


Clean Air Act Reclassification, San Joaquin Valley Nonattainment 
Area; Designation of East Kern County Nonattainment Area and Extension 
of Attainment Date; California; Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to change the boundary for the San 
Joaquin Valley (SJV) serious ozone nonattainment area by separating out 
the eastern portion of Kern County into its own nonattainment area. EPA 
is extending the attainment deadline for the new East Kern County 
serious ozone nonattainment area from November 15, 1999 to November 15, 
2001.
    EPA is taking final action to find that the SJV area did not attain 
the 1-hour ozone national ambient air quality standard (NAAQS) by the 
November 15, 1999 Clean Air Act (CAA) deadline. As a result, the SJV 
ozone nonattainment area with its revised boundaries is reclassified by 
operation of law as a severe area. The State must submit by May 31, 
2002, a severe area ozone nonattainment plan for the SJV (now excluding 
the East Kern County ozone nonattainment area) that provides for the 
attainment of the ozone NAAQS as expeditiously as practicable, but no 
later than November 15, 2005. This plan must meet the specific 
provisions of CAA section 182(d).
    EPA is taking final action to find that the approved serious area 
ozone State Implementation Plan (SIP) for the SJV has not been fully 
implemented. As a result of this finding, the State must adopt and 
implement the specified measures by November 15, 2002 or be subject to 
sanctions pursuant to sections 179(a) and (b) of the CAA. This finding 
and any potential sanctions do not apply to the newly established East 
Kern County ozone nonattainment area, where the SIP is being fully 
implemented.

EFFECTIVE DATE: December 10, 2001.

ADDRESSES: The rulemaking docket is available for inspection during 
normal business hours in the Air Docket, EPA Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105. This rule and the Technical Support 
Documents for the proposed actions are also available in the air 
programs section of EPA Region 9's website, http://www.epa.gov/region09/air.

FOR FURTHER INFORMATION CONTACT: John Ungvarsky, Planning Office (AIR-
2), Air Division, EPA Region IX, 75 Hawthorne Street, San Francisco, CA 
94105, (415) 744-1286, or [email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction

    On June 19, 2000, EPA proposed to find that the SJV serious ozone 
nonattainment area did not attain the 1-hour ozone NAAQS by November 
15, 1999, the attainment deadline for serious ozone nonattainment areas 
under CAA section 181(a). 65 FR 37926. The current SJV nonattainment 
area includes the counties of San Joaquin, Kern, Fresno, Kings, Madera, 
Merced, Stanislaus and Tulare. 40 CFR 81.301. EPA also proposed to find 
that the SJV SIP had not been fully implemented, because the San 
Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) had 
failed to adopt and implement six measures by the deadlines in the SIP.

[[Page 56477]]

    During the public comment period for the proposal, EPA received 
comments requesting that EPA remove the eastern portion of Kern County 
from the SJV ozone nonattainment area and designate it a separate ozone 
nonattainment area. On August 28, 2000, the California Air Resources 
Board (CARB) formally requested that EPA create a separate ozone 
nonattainment area for East Kern County and grant this area two 1-year 
attainment date extensions.
    EPA found the State's request compelling and, on May 18, 2001, 
issued a reproposal to revise the SJV ozone nonattainment area by 
changing its boundaries to remove eastern Kern County.\1\ 66 FR 27616. 
In order to reflect this proposed boundary change, EPA reproposed the 
Agency's finding that the remaining portion of SJV did not attain the 
ozone NAAQS by the statutory deadline and, accordingly, would be 
reclassified by operation of law as a severe ozone nonattainment area 
if EPA finalized the finding. EPA proposed that the East Kern County 
ozone nonattainment area would keep its serious classification because 
the area had not recorded more than one exceedance of the ozone NAAQS 
over the past two years and the East Kern County area otherwise 
qualified for two 1-year extensions of the November 15, 1999 attainment 
deadline pursuant to CAA section 181(a)(5). EPA therefore proposed that 
the attainment deadline for East Kern County ozone nonattainment area 
be extended to November 15, 2001.
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    \1\ The new boundary line requested by the State is the same as 
the current boundary between the Kern County and San Joaquin Valley 
air districts and generally follows the ridge line of the Sierra 
Nevada and Tehachapi Mountain Ranges. The precise description of the 
new boundary appears at the end of this notice in the revision to 40 
CFR part 81.
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II. Response to Public Comments and Final Action

    In this document, EPA is responding to comments submitted in 
response to the initial proposal (65 FR 37926) and the reproposal (66 
FR 27616).

A. Establishment of East Kern County as a Separate Ozone Nonattainment 
Area With a Serious Ozone Nonattainment Area Classification and an 
Extended Attainment Date

    As discussed in the reproposal, the public comments submitted in 
response to the initial proposal supported removal of East Kern County 
from the SJV ozone nonattainment area and establishment of this new 
area as a serious ozone nonattainment area with an extended attainment 
deadline. No commenters on either the initial proposal or the 
reproposal opposed these actions. Therefore, for the reasons set forth 
in the reproposal (66 FR 27617-27620), EPA is today taking final action 
to grant the State's requests: (1) To split the SJV ozone nonattainment 
area into two separate ozone nonattainment areas pursuant to CAA 
section 107(d)(3)(D); (2) to retain for the new East Kern County ozone 
nonattainment area the serious nonattainment area ozone classification; 
and (3) to grant two 1-year attainment date extensions pursuant to CAA 
section 181(a)(5), thus establishing an attainment deadline of November 
15, 2001.

B. Finding of Failure To Attain for the San Joaquin Valley Ozone 
Nonattainment Area

    EPA received no comments opposing the Agency's finding that the SJV 
ozone nonattainment area failed to attain the 1-hour ozone standard by 
the November 15, 1999 deadline. Accordingly, and for the reasons set 
forth in the proposals (65 FR 37927-37928 and 66 FR 27617), EPA is 
today issuing the final finding under CAA section 181(b)(2)(A).

C. Attainment Deadline for the San Joaquin Valley Ozone Nonattainment 
Area

    As a consequence of EPA's finding of failure to attain, the SJV 
ozone nonattainment area is reclassified by operation of law to severe. 
The CAA provides that severe ozone nonattainment areas must attain the 
ozone NAAQS as expeditiously as practicable, but no later than 15 years 
after enactment of the 1990 CAA Amendments, or November 15, 2005. CAA 
section 181(a)(2) also establishes a ``severe 17'' classification for 
areas with a 1988 ozone design value between 0.190 parts per million 
(ppm) and 0.280 ppm.\2\ Areas meeting this criterion are required to 
attain the ozone NAAQS as expeditiously as practicable but no later 
than 17 years after enactment of the 1990 CAA Amendments (i.e., by 
November 15, 2007).
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    \2\ The 1-hour ozone NAAQS is 0.12 ppm. A monitor's design value 
is the fourth highest ambient concentration recorded at that monitor 
over the previous three-year period. An area's design value is the 
highest of the design values from the area's monitors. A design 
value is one indication of the severity of the ozone problem in an 
area. It is also used in determining the level of emission 
reductions needed to attain the standard.
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    In the reproposal, EPA noted that the design value for the SJV 
ozone nonattainment area is 0.161 ppm. 66 FR 27617. Although this value 
is below the CAA criterion for the severe-17 classification, EPA 
referenced a State suggestion that attainment by 2005 may not be 
possible for the SJV ozone nonattainment area, given the area's air 
quality problem. Accordingly, EPA solicited comment on the viability of 
the 2005 deadline, and on any legal, policy, and technical rationale 
for allowing a 2007 attainment deadline.
1. Comments Supporting a 2007 Attainment Deadline
    State legislators, local governments, CARB, and SJVUAPCD provided 
the following arguments in support of a severe-17 classification.
    (a) It is not feasible to attain by 2005 based on preliminary 
photochemical modeling which identifies the need for an additional 150 
tons per day (tpd) of the two principal ozone precursors--volatile 
organic compounds (VOCs) and oxides of nitrogen (NOX). This 
is a 30 percent reduction in ozone precursors beyond projected 2005 
levels with all adopted controls. CARB observed that the only extreme 
ozone nonattainment area in the country, the South Coast (metropolitan 
Los Angeles) area, requires the same 150 tpd reduction of VOC emissions 
to attain but is allowed, by its CAA classification, until 2010 to 
achieve these reductions.
    (b) SJV's design value is higher than the design value for all 
other areas in the country with a 2005 attainment deadline. In 
addition, the magnitude of the attainment task is reflected in the 
number of days over the standard. SJV has not only a higher design 
value but also a greater number of days over the standard compared to 
other areas with a 2007 deadline. Although the 1990 CAA Amendments 
based classifications solely on design value, it is relevant to 
consider the fact that SJV had at that time the third highest number of 
exceedance days in the country. SJV has already achieved larger 
emissions reductions than have any areas that are assigned a 2007 date, 
both in the percentage of emissions reduced and the actual tons of 
emissions reduced. SJV has achieved these reductions but has not been 
able to reduce its design value. This makes clear that SJV has one of 
the most severe ozone problems in the country, requiring additional 
time to achieve the NAAQS.
    (c) Any new controls would have to be implemented by 2003, which is 
the first year that counts towards a 2005 attainment date. The SJV area 
already has in place stringent controls. More time is needed for 
technology advancements in order to implement the measures required to 
bring SJV into attainment. More time will also decrease the impact of 
new controls on businesses.

[[Page 56478]]

    (d) Additional time is also critically needed to achieve mobile 
source fleet turnover to meet more stringent standards, and to secure 
and distribute incentive funding to support replacement of older 
vehicles. The problem is greater because State incentive money to 
retrofit engines is being diverted to buy emissions offsets for new 
electricity generators required to meet the energy crisis.
    (e) New State and federal controls on heavy-duty trucks, low 
emission vehicles, and reformulation of diesel fuel will be much more 
effective in 2007 than in 2005 due to phase-in schedules, since many of 
these controls go into effect in 2004 and the penetration rate in the 
first two years is extremely low.
    (f) A 2007 deadline meets the CAA requirement for attainment as 
expeditiously as practicable based on SJV's air quality, emission 
reduction, and control strategy issues.
    (g) The SJV ozone nonattainment area is greatly impacted by 
pollution from the San Francisco Bay Area. Assuming that the Bay Area 
is granted a 2006 attainment date, the SJV's attainment date should be 
later.
    (h) Emissions reductions from post-2003 federal Congestion 
Mitigation and Air Quality (CMAQ) transportation funding will be needed 
for attainment, and these funds cannot be secured until the 
Transportation Equity Act is reauthorized, which is expected in 2004.
    (i) Smart Growth policies have the potential to reduce emissions 
but require more time for implementation than would be available 
assuming a 2005 attainment deadline.
    (j) Sources under federal control are a significant fraction of the 
SJV emission inventory, especially interstate trucks, farm and 
construction equipment, and locomotives, and the problem is exacerbated 
by the fact that the sources are particularly active in the harvest 
(and smog) season. Given the scale of reductions needed for attainment, 
the federal government must reduce its share of the inventory. Like 
California, EPA will need to consider not just new standards but also 
retrofits and accelerated turnover of the existing fleet. As a 
regulatory partner, EPA would agree that a 2005 date does not allow 
sufficient time to accomplish these necessary reductions. The SJV 
attainment problem is compounded by the presence of two major 
transportation corridors (Interstate 5 and Freeway 99) and by EPA's 
failure to enforce adequately the existing national standard for heavy-
duty engines and failure to act in a timely manner on the 
manufacturers' consent degree, resulting in a significant increase in 
NOX emissions.
    (k) EPA has sufficient authority and discretion under CAA sections 
172 and 181 to set a 2007 deadline, based on the severity of 
nonattainment, and the availability and feasibility of control 
measures.
2. Comments Supporting a 2005 Attainment Deadline
    The Center on Race, Poverty & the Environment (CRPE) and 
Earthjustice Legal Defense Fund submitted comments opposing the 2007 
attainment deadline. These groups stated that EPA lacks the authority 
to grant an extension of the attainment deadline from 2005 to 2007. The 
2005 deadline is explicit in the CAA and so EPA has no administrative 
discretion to grant an extension beyond that date. In addition to being 
patently illegal, granting the 2007 deadline would force the millions 
of Valley residents to breathe dangerous levels of smog at least two 
years longer than necessary. This 2007 extension would result in human 
suffering and medical costs far in excess of the temporarily-avoided 
compliance costs. Granting the SJVUAPCD additional time when it is not 
implementing its own inadequate plan would reward and perpetuate 
further inaction. In contrast to the SJVUAPCD, other agencies (such as 
the South Coast Air Quality Management District) have adopted stringent 
controls and are on a trajectory to attain the ozone NAAQS, so 
technical arguments for delaying full implementation of public health 
protections in the SJV should not be taken seriously.
3. EPA Response to Comments and Final Action
    EPA agrees with many of the comments supporting the difficulty of 
developing a plan to demonstrate attainment of the NAAQS by the 2005 
date. This deadline presents a remarkable challenge for an area with 
SJV's characteristics: meteorology and topography providing diverse 
conditions favorable to the formation of ozone; large numbers of small 
emissions sources already subject, in many cases, to stringent controls 
and, in other cases, capable of further control only through costly 
retrofit, rebuild, or replacement programs; substantial mobile source 
and process emissions sources associated with the area's dominant 
agricultural economy and therefore operating at peak levels during the 
ozone season; and large interstate transportation emissions from truck 
and rail operations that are not generally susceptible to control at 
local and state levels. Equitable considerations suggest that a 2007 
attainment deadline might be at least as appropriate for the SJV ozone 
nonattainment area as for other areas that were assigned severe-17 
classifications in accordance with the provisions of 1990 CAA 
Amendments.
    EPA has concluded, however, that the CAA does not provide the 
Agency authority to set a 2007 attainment deadline for the SJV ozone 
nonattainment area based on these considerations. When EPA finds that 
an ozone nonattainment area failed to attain the ozone standard by its 
attainment date pursuant to section 181(b)(2), that section provides 
that the area ``shall be reclassified by operation of law in accordance 
with table 1 of subsection (a) to the higher of--(i) the next higher 
classification for the area, or (ii) the classification applicable to 
the area's design value as determined at the time of the notice 
required under subparagraph (B).'' The phrase ``in accordance with 
table 1'' prevents EPA from providing a 2007 attainment date for the 
SJV in this action because, for the severe area class, table 1 
establishes an attainment date of ``15 years after enactment [i.e., 
2005].'' CAA 181(a). The 2007 attainment deadline is set forth not in 
table 1 but in CAA section 181(a)(2), which states: ``Notwithstanding 
table 1, in the case of a severe area with a 1988 ozone design value 
between 0.190 and 0.280 ppm, the attainment date shall be 17 years (in 
lieu of 15 years) after the date of enactment of the Clean Air Act 
Amendments of 1990.'' Thus, the 2007 attainment date is not provided 
for in Table 1, which is what Congress required EPA to act in 
accordance with when an area is reclassified pursuant to section 
181(b). Consequently, EPA does not believe that it has the authority to 
provide the SJV with a 2007 attainment date in this action. However, 
under section 181(b)(3) of the Act, the State may request a 
reclassification and receive a 2010 attainment deadline in order to 
have the additional time the State believes is necessary to attain 
ozone NAAQS.
    Although EPA cannot agree with the State and other commenters that 
the Agency has the discretion to grant the State's request for a 2007 
attainment deadline, EPA does agree that attainment by 2005 requires 
emission reductions from all quarters, and EPA intends to work closely 
with the State and local agencies to explore opportunities for the 
federal government to contribute additional controls or other 
assistance to advance attainment in the SJV ozone nonattainment area.

[[Page 56479]]

D. Deadline for Submittal of a Revised SIP Addressing the CAA 
Provisions for Severe Ozone Nonattainment Areas

1. EPA's Proposal
    EPA's initial proposed finding of failure to attain, proposed that 
the State be required to submit a severe area SIP revision no later 
than 18 months from the effective date of the area's reclassification. 
65 FR 37928. However, EPA also proposed that the SJVUAPCD be required 
to submit a revised new source review (NSR) rule within 180 days of the 
final date of the reclassification, in order to ensure that the 
District's definitions of ``Major Source'' and ``Distance Offset 
Ratio'' reflect the severe area requirements. 65 FR 37928-37929.
    EPA's reproposal noted that CAA section 182(i) authorizes EPA to 
adjust applicable deadlines as appropriate. EPA proposed a SIP 
submittal deadline of May 31, 2002, in order to ensure that control 
measures are put in place as quickly as possible and there is ample 
time for the measures to take effect before the attainment deadline. 
The reproposal stated that this deadline is reasonable given the 
advance notice provided by our initial proposal, issued on June 19, 
2000, and the planning efforts already underway at State and local 
levels. 66 FR 27617.
2. Public Comments
    No commenters on the initial proposal addressed the SIP submittal 
deadline issue. In response to the reproposal, EPA received four 
comments. The San Joaquin Valley Transportation Planning Agencies 
Director's Association (TPA) and Tulare County Association of 
Governments (TCAG) requested that the deadline be changed to August 31, 
2002, in order to allow the revised SIP to incorporate updated 
transportation planning assumptions. TPA also noted that the 
reproposal's May 31, 2002 deadline is inconsistent with EPA's policy of 
allowing 18 months for SIP development. The Western States Petroleum 
Association (WSPA) requested a six-month extension of the SIP sumittal 
deadline for the following reasons: The May 31, 2002 deadline would not 
allow enough time for the regulatory review process necessary for new 
District rules; WSPA has serious concerns about basing a control 
strategy on a single design-day ozone episode; the Central California 
Ozone Study (CCOS) is now available but has yet to be fully considered; 
the SIP needs to focus more on mobile source reduction strategies 
because previous significant stationary source reductions have not 
resulted in a corresponding improvement in air quality. Earthjustice 
supported EPA's May 31, 2002 deadline, noting that this date affords 
ample time to prepare the revision since it is 30 months after the 
area's November 15, 1999 attainment deadline.
3. EPA Response to Comments and Final Action
    EPA agrees with TPA and TCAG that the revised SIP should include 
updated transportation emissions and the latest planning assumptions. 
However, the commenters submitted no evidence demonstrating that these 
updates cannot be completed in time to be incorporated in a SIP 
submitted by May 31, 2002. EPA believes that the transportation plan 
and emissions updates can, in fact, be prepared on this schedule. EPA 
is also concerned that the SIP needs to be prepared no later than this 
date in order to provide a reasonable opportunity for the State, local 
agencies, and affected public to meet the SIP emission reduction 
milestone requirements for 2002 under CAA section 182(c)(2)(B).
    Regarding the WSPA comments, neither the District nor the State 
commented that the May 31, 2002 deadline would present any of the 
problems suggested by WSPA. EPA announcements concerning the pending 
reclassification began in late 1999 and became official in June 2000. 
This has given the responsible agencies adequate time to plan their 
rulemaking calendars. EPA acknowledged in its June 2000 proposal that 
the results from CCOS may not be fully available to meet the SIP 
deadlines. The planning process is dynamic and new information will 
continue to be developed even after the CCOS information is available; 
the State always has the option of revising its SIP based on new 
information. Regarding mobile sources versus stationary sources, EPA 
relies on the state to develop a control strategy the takes into 
account the mix of sources affecting the area. EPA is therefore not 
extending the SIP deadline, both because neither the State nor the 
local air pollution control agencies requested the additional time, and 
because the six-month delay would further postpone reductions and 
planning efforts necessary for air quality improvements in the SJV.
    Therefore, EPA is using the authority provided in the CAA to 
finalize May 31, 2002, as the SIP submittal deadline. By this date, the 
State must submit a plan addressing all of the severe area 
requirements.
    As noted in the initial proposal, CAA section 182(d)(3) sets a 
deadline of December 31, 2000, to submit the plan revision requiring 
fees for major sources should the area fail to attain. Pursuant to CAA 
section 182(i), EPA proposed to adjust this date to coincide with the 
submittal deadline for the rest of the severe area requirements. EPA is 
here finalizing that proposal and establishing May 31, 2002, as the 
deadline for submitting the emissions fee rule responsive to CAA 
sections 182(d)(3) and 185.
    In the initial proposal, EPA proposed to require that the more 
stringent severe-area NSR rule, which includes a higher offset ratio 
and lower applicability level, must be submitted no later than 180 days 
from the effective date of the SJV area's reclassification to severe. 
Since this 180-day deadline would now approximate the May 31, 2002 
deadline set for the comprehensive severe area plan, EPA is not 
finalizing the proposed 180-day deadline for the NSR rule revision. 
Instead, the State will be required to submit by May 31, 2002, a 
revised NSR rule meeting the severe area provisions of CAA section 
182(d).

E. Adoption and Implementation of Reasonably Available Control 
Technology (RACT) Rules

    EPA's initial proposal indicated that the revised severe ozone SIP 
for SJV needed to meet the RACT requirement for sources subject to the 
new lower major source applicability cutoff of 25 tons per year (tpy), 
pursuant to CAA section 182(d). As discussed above, the initial 
proposal set the deadline for submitting the severe ozone SIP as 18 
months from the effective date of the reclassification of the SJV to 
severe, and the reproposal set the deadline as May 31, 2002. In 
response to the initial proposal, SJVUAPCD indicated that ``the 
District should be able to adopt RACT rules shortly before the 18-month 
sanction deadline.'' \3\ EPA presumes that this comment indicates that 
the District expected to be able to meet the rule adoption deadline in 
the reproposal, which is more than 23 months after the initial proposal 
was published. EPA is finalizing the May 31, 2002 SIP deadline as 
applicable to the RACT rule revisions provided in CAA section 182(d) 
for major stationary sources at the severe area applicability level of 
25 tpy.
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    \3\ Letter from David L. Crow, SJVUAPCD APCO/Executive Officer, 
to John Ungvarsky, EPA, dated August 24, 2000.
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    SJVUAPCD's comment on the initial proposal indicated that the 
District would set the final RACT compliance dates to coincide with the 
2005 attainment date, ``in order to allow as much time as possible for 
source operators to install controls.'' Under CAA section 172(c)(1), 
nonattainment

[[Page 56480]]

plans must ``provide for the implementation of all reasonably available 
control measures as expeditiously as practicable (including such 
reductions in emissions from existing sources in the area as may be 
obtained through the adoption, at a minimum, of reasonably available 
control technology) * * *.'' The SJVUAPCD's RACT compliance schedule 
should be as expeditious as practicable, both to address this 
fundamental CAA provision and to speed progress in public health 
protection. EPA cannot approve RACT compliance schedules that are not 
as expeditious as practicable but are rather designed to allow as much 
time as possible for source operators to install controls. Given that 
the District has known about this RACT requirement since EPA's June 19, 
2000 proposal, EPA does not believe that 2005 represents expeditious 
implementation of the RACT requirement. Neither the State nor District 
has provided a compelling reason why the new RACT rules could not be 
implemented prior to 2005. Accordingly, EPA is finalizing the May 31, 
2002 deadline for submittal of new RACT rules, and EPA strongly 
encourages the District to implement the rules within 18 months of the 
effective date of the reclassification.

F. Transportation Conformity Budgets

1. EPA's Proposal
    EPA's initial proposal indicated that the revised SJV attainment 
demonstration may establish motor vehicle emissions budgets for 
subareas within the region if the modeling in the SIP shows that 
attainment will result when all subarea budgets are met. The initial 
proposal further stated that there would be no allowance for shifting 
of growth from one subarea to another. 65 FR 37929.
2. Public Comments
    In response to the initial proposal, CARB supported a single budget 
as providing better alignment with the new region wide attainment 
demonstration, while providing greater flexibility by allowing higher 
than expected emissions in one portion of the valley to be offset by 
lower emissions in the rest of the region. On the other hand, several 
of the SJV transportation planning agencies, TPA, and SJVUAPCD endorsed 
the establishment of separate budgets for each subarea, with trading 
allowed between subareas so long as the total of all subarea budgets 
does not exceed the region wide total emission budget. SJVUAPCD further 
indicated that the new SJV SIP will address the maximum amount of 
emissions that can be traded and the distance over which these 
emissions are traded, and a requirement that all subareas not included 
in a trade should have currently valid conformity findings for their 
Regional Transportation Plan and Transportation Improvement Programs.
3. EPA Response to Public Comments and Final Action
    EPA appreciates the complexity of transportation planning in a vast 
nonattainment area where the responsibility for preparing, adopting, 
and amending transportation plans and programs is assigned to 8 
separate councils of government. The State and local agencies may elect 
to address the CAA section 176(c) transportation conformity provisions 
by means of either a region wide budget or separate budgets for 
subareas. EPA intends to work with all involved parties to ensure that 
the SIP's budget (or budgets) and conformity provisions provide needed 
flexibility without jeopardizing the attainment demonstration or the 
integrity of the regional and local transportation planning processes. 
In this final action, EPA cautions that subarea budgets must be fully 
documented and that the budgets and future conformity determinations 
must be consistent with the region wide attainment demonstration. A 
significant shift in growth from one subarea to another may therefore 
require a new modeled attainment demonstration with revised subarea 
budgets.

G. Nonimplementation Finding

1. EPA's Proposal
    The initial proposal included a proposed nonimplementation finding, 
based on the failure of the SJVUAPCD to meet its SIP commitments to 
adopt and implement 6 rules to achieve specified emissions reductions 
totaling 8.09 tpd of VOC emissions. Because the proposed 
nonimplementation finding is based on a failure of the SJVUAPCD to 
adopt and implement regulations, the finding would apply to western 
Kern County (which is under the jurisdiction of the SJVUAPCD) but not 
to East Kern County, which is under the jurisdiction of the Kern County 
Air Pollution Control District. 65 FR 37930, footnote 12. 65 FR 37929-
31. The rules and associated emission reductions are listed in Table 1 
below. EPA proposed that the rules should be adopted and implemented as 
expeditiously as practicable but implementation should be no later than 
November 15, 2002, the first rate of progress milestone under the 
severe area provisions of the CAA. EPA proposed that the 2 to 1 offset 
sanction in CAA section 179(b)(2) would apply if SJVUAPCD failed to 
adopt the 6 measures within 18 months of the effective date of the 
final finding. EPA further proposed that the highway approval and 
funding sanction would apply under CAA section 179(b)(1) if SJVUAPCD 
did not correct the deficiencies within 6 months after the offset 
sanction is imposed.
2. Public Comments
    CRPE commented that an implementation deadline of November 15, 
2002, is too late and this delay will unnecessarily threaten the health 
of San Joaquin Valley residents. EPA should require actual 
implementation of the rules before the end of the 18 month period. EPA 
should impose the highway sanctions first, in order to motivate the 
political forces that will have to be harnessed in order to adopt the 
rules. EPA should also determine that SJVUAPCD has failed to implement 
the SIP because the District has excluded agricultural operations from 
its NSR rule.
    SJVUAPCD and CARB commented that the District should be allowed the 
flexibility to correct the nonimplementation by achieving the 8.09 tpd 
of VOC emissions through any combination of the six control measures in 
the SIP or newly identified substitute measures. ARB stated that there 
has been a substantial change in the inventory for several of the rule 
categories, and SJVUAPCD indicated that the 8.09 tpd of VOC reductions 
might be achieved by implementing fewer than the six delinquent 
rules.\4\ SJVUAPCD requested the EPA extend the implementation deadline 
to May 15, 2003, in order to allow source operators time to get 
controls in place but still achieve the reductions before the beginning 
of the 2003 ozone season.
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    \4\ Of the six measures EPA identified, one measure (i.e., Rule 
4662--Organic Solvent Degreasing) has been adopted by the District 
and three measures (i.e., Rule 4601-Architectural Coatings, Rule 
4623--Organic Liquid Storage, and Rule 4663--Organic Solvent Waste) 
are scheduled for adoption by the District in late 2001 or early 
2002. The other two measures (i.e., Rule 4692--Commercial 
Charbroiling and Rule 4411--Oil Production Well Cellars) are not 
scheduled for adoption by the District at this time.
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3. EPA Response to Comments and Final Action
    EPA agrees with CRPE that prompt remedy to the nonimplementation is 
important, but EPA believes that it may be unreasonable to require the 
SJVUAPCD and affected sources to implement the delinquent measures more 
quickly than EPA proposed. EPA

[[Page 56481]]

disagrees with CRPE that the agricultural operations exemption in the 
SJVUAPCD NSR rule constitutes SIP nonimplementation, since the 
exemption, although inconsistent with CAA provisions, does not evince a 
failure to carry out provisions in the approved SIP. Finally, EPA sees 
no compelling need to reverse the presumptive order of sanction 
implementation, and therefore the Agency intends to follow the sequence 
set in 40 CFR 52.31: the offset sanction at the 18th month and the 
highway sanction at the 24th month following the finding.
    EPA believes that the SJVUAPCD is obliged by its existing SIP to 
meet the specific requirements of its commitments. However, CARB and 
the District have the opportunity to amend the SIP by showing that 
reasonable further progress and other requirements of the CAA can be 
met with a revised schedule of controls and associated emission 
reductions. This is especially the case where emissions inventory 
changes after the original control measure commitment show that far 
less actual emission reductions can be achieved by controls on 
individual source categories. However, in view of the magnitude of the 
emission reductions needed for attainment, SJVUAPCD is not free to 
abandon or postpone any control measure that continues to be available, 
even though the original SIP's cumulative emission reduction commitment 
could be met without implementing the measure. EPA therefore finalizes 
the proposed nonimplementation finding and sets November 15, 2002, as 
the outside date for adoption and implementation of the delinquent 
control measures.

III. Summary of the Final Action and the State's SIP 
Responsibilities.

A. East Kern County

    EPA is taking final action to split the SJV ozone nonattainment 
area into two separate ozone nonattainment areas pursuant to CAA 
section 107(d)(3)(D). EPA is retaining for the new East Kern County 
ozone nonattainment area the serious nonattainment area ozone 
classification but granting two 1-year attainment date extensions 
pursuant to CAA section 181(a)(5), thus establishing an attainment 
deadline of November 15, 2001. If East Kern County does not record a 
violation in 2001, the area will be eligible for redesignation to 
attainment for the 1-hour ozone NAAQS, following submittal by the State 
and approval by EPA of a redesignation request and maintenance plan 
addressing the provisions of CAA section 175A.

B. San Joaquin Valley

    Pursuant to CAA section 181(b)(2), EPA is finalizing its finding 
that the SJV area failed to attain the 1-hour ozone NAAQS by the 
statutory deadline. By operation of law, the area is reclassified to 
severe and is therefore required, under CAA section 181(a)(1), to 
attain the NAAQS as expeditiously as practicable but no later than 
November 15, 2005. Under CAA section 182(i), the State must submit a 
SIP addressing the severe area requirements. EPA is establishing May 
31, 2002, as the deadline for the submission of the severe area 
requirements. Under CAA section 182(d), severe area plans must meet all 
requirements for serious area plans plus the requirements for severe 
areas, including, but not limited to: (1) A 25 tpy major stationary 
source threshold; (2) additional reasonably available control 
technology (RACT) rules for sources subject to the new lower major 
source applicability cutoff; (3) an NSR rule requiring offsets of at 
least 1.3 to 1; (4) a rate of progress in creditable emission 
reductions of ozone precursors of at least 3 percent per year from 2000 
until the attainment year; (5) a fee requirement for major sources 
should the area fail to attain by 2005; and (6) a demonstration of 
attainment as expeditiously as practicable but no later than November 
15, 2005. The more stringent RACT provisions must be scheduled for 
implementation as expeditiously as practicable, and EPA strongly 
encourages an implementation deadline of no later than 18 months after 
the effective date of the reclassification to severe.
    Upon the effective date of EPA's finding of failure to implement 
the SIP, SJVUAPCD has until November 15, 2002 to adopt and implement 
the six delinquent measures shown in Table 1.

   Table 1.--Delinquent Rule Commitments in the San Joaquin Valley SIP
------------------------------------------------------------------------
                                                             Emission
            Rule No.                    Rule title        reductions  in
                                                              tpd VOC
------------------------------------------------------------------------
4601...........................  Architectural Coatings.            1.51
4662...........................  Organic Solvent                    2.44
                                  Degreasing.
4692...........................  Commercial Charbroiling            0.39
4623...........................  Organic Liquid Storage.            3.0
4411...........................  Oil Production Well                0.56
                                  Cellars.
4663...........................  Organic Solvent Waste..            0.19
------------------------------------------------------------------------

    If SJVUAPCD has not adopted the measures listed in Table 1 with 
implementation deadlines of on or before November 15, 2002, the 2 to 1 
offset sanction in CAA section 179(b)(2) would apply after 18 months of 
the effective date of the finding. If the deficiencies have still not 
been corrected six months after the offset sanction is imposed, then 
the highway approval and funding sanction would apply under CAA section 
179(b)(1).

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget.
    EPA has determined that neither the finding of failure to attain, 
nor the finding of nonimplementation, would result in any of the 
effects identified in Executive Order 12866 sec. 3(f). As discussed 
above, findings of failure to attain under section 188(b)(2) of the CAA 
are based solely upon air quality considerations and the subsequent 
nonattainment area reclassification must occur by operation of law in 
light of those air quality conditions. These actions do not, in and of 
themselves, impose any new requirements on any sectors of the economy.
    In addition, because the statutory requirements are clearly defined 
with respect to the differently classified areas, and because those 
requirements are automatically triggered by classifications that, in 
turn, are triggered by air quality values, findings of failure to 
attain and reclassification cannot be said to impose a materially 
adverse

[[Page 56482]]

impact on State, local, or tribal governments or communities. 
Similarly, the finding of failure to implement the SIP merely ensures 
the implementation of already existing requirements by creating the 
potential for the imposition of sanctions if the State does not adopt 
the rules to which it has committed under its own State plan, and 
therefore the finding does not adversely affect entities.
    The designation of East Kern County as a new, separate 
nonattainment area with a serious classification and the attainment 
date extensions will not impose any new requirements on any sectors of 
the economy because the area is already classified as serious.
    For the aforementioned reasons, this action is also not subject to 
Executive Order 32111, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001). Accordingly, the Administrator certifies that 
this rule will not have a significant economic impact on a substantial 
number of small entities under the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.).
    These actions do not contain any unfunded mandate or significantly 
or uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4) for the following 
reasons: (1) The finding of failure to attain is a factual 
determination based on air quality considerations; (2) the resulting 
reclassification must occur by operation of law and will not impose any 
federal intergovernmental mandate; (3) the designation of East Kern 
County as a separate nonattainment area with a serious classification 
will not impose any new requirements on any sectors of the economy; and 
(4) the finding of nonimplementation does not impose any new federal 
mandates but rather obliges the State to adopt rules to which it has 
committed under its State plan.
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 
FR 67249, November 9, 2000). For these same reasons, this rule also 
does not have Federalism implications because it does not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
These actions are also not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because they are not economically significant.
    As discussed above, findings of failure to attain under section 
188(b)(2) of the CAA are based solely upon air quality considerations 
and the subsequent nonattainment area reclassification must occur by 
operation of law in light of those air quality conditions. In addition, 
the finding of failure to implement the SIP merely ensures the 
implementation of already existing requirements to which the State has 
committed under its own plan, and therefore the finding does not 
adversely affect entities. In this context, it would thus be 
inconsistent with applicable law for EPA, when it makes a finding of 
failure to attain and finding of failure to implement the SIP, to use 
voluntary consensus standards. Thus, the requirements of section 12(d) 
of the National Technology Transfer and Advancement Act of 1995 (15 
U.S.C. 272 note) do not apply. This rule does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement 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 action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 January 7, 2002. 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: October 23, 2001.
Wayne Nastri,
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 as 
follows:
    a. By adding ``East Kern County'' as a designated area immediately 
before the entry for ``San Joaquin Valley Area''; and
    b. By revising the entry for ``San Joaquin Valley Area.''


Sec. 81.305  California.

* * * * *

[[Page 56483]]



                                                                    California--Ozone
                                                                    [1-hour standard]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Designation                                           Classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
East Kern County
    That portion of Kern County that         12/10/01  Nonattainment............................   12/10/2001  Serious.\2\
     lies east and south of a line
     described below: Beginning at the
     Kern-Los Angeles County boundary
     and running north and east along
     the northwest boundary of the
     Rancho La Liebre Land Grant to the
     point of intersection with the
     range line common to Range 16 West
     and Range 17 West, San Bernardino
     Base and Meridian; north along the
     range line to the point of
     intersection with the Rancho El
     Tejon Land Grant boundary; then
     southeast, northeast, and northwest
     along the boundary of the Rancho El
     Tejon Grant to the northwest corner
     of Section 3, Township 11 North,
     Range 17 West; then west 1.2 miles;
     then north to the Rancho El Tejon
     Land Grant boundary; then northwest
     along the Rancho El Tejon line to
     the southeast corner of Section 34,
     Township 32 South, Range 30 East,
     Mount Diablo Base and Meridian;
     then north to the northwest corner
     of Section 35, Township 31 South,
     Range 30 East, then northeast along
     the boundary of the Rancho El Tejon
     Land Grant to the southwest corner
     of Section 18, Township 31 South,
     Range 31 East; then east to the
     southeast corner of Section 13,
     Township 31 South, Range 31 East;
     then north along the range line
     common to Range 31 East and Range
     32 East, Mount Diablo Base and
     Meridian, to the northwest corner
     of Section 6, Township 29 South,
     Range 32 East; then east to the
     southwest corner of Section 31,
     Township 28 South, Range 32 East;
     then north along the range line
     common to Range 31 East and Range
     32 East to the northwest corner of
     Section 6, Township 28 South, Range
     32 East, then west to the southeast
     corner of Section 36, Township 27
     South, Range 31 East, then north
     along the range line common to
     Range 31 East and Range 32 East to
     the Kern-Tulare County boundary.
San Joaquin Valley Area:
    Fresno County.......................     11/15/90  Nonattainment............................   12/10/2001  Severe-15.

[[Page 56484]]

 
Kern County (part) That portion of Kern      11/15/90  Nonattainment............................   12/10/2001  Severe-15.
 County that lies west and north of a
 line described below: Beginning at the
 Kern-Los Angeles County boundary and
 running north and east along the
 northwest boundary of the Rancho La
 Liebre Land Grant to the point of
 intersection with the range line common
 to Range 16 West and Range 17 West, San
 Bernardino Base and Meridian; north
 along the range line to the point of
 intersection with the Rancho El Tejon
 Land Grant boundary; then southeast,
 northeast, and northwest along the
 boundary of the Rancho El Tejon Grant
 to the northwest corner of Section 3,
 Township 11 North, Range 17 West; then
 west 1.2 miles; then north to the
 Rancho El Tejon Land Grant boundary;
 then northwest along the Rancho El
 Tejon line to the southeast corner of
 Section 34, Township 32 South, Range 30
 East, Mount Diablo Base and Meridian;
 then north to the northwest corner of
 Section 35, Township 31 South, Range 30
 East; then northeast along the boundary
 of the Rancho El Tejon Land Grant to
 the southwest corner of Section 18,
 Township 31 South, Range 31 East; then
 east to the southeast corner of Section
 13, Township 31 South, Range 31 East;
 then north along the range line common
 to Range 31 East and Range 32 East,
 Mount Diablo Base and Meridian, to the
 northwest corner of Section 6, Township
 29 South, Range 32 East; then east to
 the southwest corner of Section 31,
 Township 28 South, Range 32 East; then
 north along the range line common to
 Range 31 East and Range 32 East to the
 northwest corner of Section 6, Township
 28 South, Range 32 East, then west to
 the southeast corner of Section 36,
 Township 27 South, Range 31 East, then
 north along the range line common to
 Range 31 East and Range 32 East to the
 Kern-Tulare County boundary.
Kings County............................     11/15/90  Nonattainment............................   12/10/2001  Severe-15.
Madera County...........................     11/15/90  Nonattainment............................   12/10/2001  Severe-15.
Merced County...........................     11/15/90  Nonattainment............................   12/10/2001  Severe-15.
San Joaquin County......................     11/15/90  Nonattainment............................   12/10/2001  Severe-15.
Stanislaus County.......................     11/15/90  Nonattainment............................   12/10/2001  Severe-15.
Tulare County...........................     11/15/90  Nonattainment............................   12/10/2001  Severe-15.
 
                    *                  *                  *                  *                  *                  *              *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.
\2\ Attainment date is extended to November 15, 2001.


[FR Doc. 01-27289 Filed 11-7-01; 8:45 am]
BILLING CODE 6560-50-P