[Federal Register Volume 67, Number 52 (Monday, March 18, 2002)]
[Rules and Regulations]
[Pages 11925-11928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6270]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA073-FON; FRL-7157-9]


Finding of Failure To Submit a Required State Implementation Plan 
for Particulate Matter, California--San Joaquin Valley

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to find that California failed to 
make a particulate matter (PM-10) nonattainment area state 
implementation plan (SIP) submittal required for the San Joaquin Valley 
Planning Area under the Clean Air Act (CAA or Act). The San Joaquin 
Planning Area is a serious PM-10 nonattainment area. Under the Act, 
states are required to submit SIPs providing for, among other things, 
reasonable further progress and attainment of the PM-10 national 
ambient air quality standards (NAAQS) in areas classified as serious. 
The State of California submitted a serious area plan for the San 
Joaquin Valley in 1997. On February 26, 2002, prior to action on the 
plan by EPA, the State withdrew the submittal from the Agency's 
consideration. As a result of that withdrawal, EPA is today finding 
that California failed to make the PM-10 nonattainment area SIP 
submittal required for the San Joaquin Valley Planning Area under the 
Act.
    This action triggers the 18-month time clock for mandatory 
application of sanctions and 2-year time clock for a federal 
implementation plan (FIP) under the Act. This action is consistent with 
the CAA mechanism for assuring SIP submissions.

EFFECTIVE DATE: This action is effective as of February 28, 2002.

FOR FURTHER INFORMATION CONTACT: Celia Bloomfield, U. S. Environmental 
Protection Agency, Region 9, Air Division (AIR-2), 75 Hawthorne Street, 
San Francisco, CA 94105-3901, Telephone: (415) 947-4148.

SUPPLEMENTARY INFORMATION:

I. Background

A. CAA Planning Requirements

    In 1990, Congress amended the Clean Air Act to address, among other 
things, continued nonattainment of the PM-10 NAAQS.\1\ Public Law 101-
549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q (1991). On the 
date of enactment of the 1990 Clean Air Act Amendments, PM-10 areas, 
including the San Joaquin Valley planning area, meeting the 
qualifications of section 107(d)(4)(B) of the amended Act, were 
designated nonattainment by operation of law. See 56 FR 11101 (March 
15, 1991). EPA codified the boundaries of the San Joaquin Valley PM-10 
nonattainment area at 40 CFR 81.305.
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    \1\ EPA revised the NAAQS for PM-10 on July 1, 1987 (52 FR 
24672), replacing standards for total suspended particulates with 
new standards applying only to particulate matter up to 10 microns 
in diameter (PM-10). At that time, EPA established two PM-10 
standards. The annual PM-10 standard is attained when the expected 
annual arithmetic average of the 24-hour samples for a period of one 
year does not exceed 50 micrograms per cubic meter (ug/
m3). The 24-hour PM-10 standard of 150 ug/m3 
is attained if samples taken for 24-hour periods have no more than 
one expected exceedance per year, averaged over 3 years. See 40 CFR 
50.6 and 40 CFR part 50, appendix K.
    Breathing particulate matter can cause significant health 
effects, including an increase in respiratory illness and premature 
death.
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    Once an area is designated nonattainment for PM-10, section 188 of 
the CAA outlines the process for classifying the area and establishing 
the area's attainment deadline. In accordance with section 188(a), at 
the time of designation, all PM-10 nonattainment areas, including the 
San Joaquin Valley, were initially classified as moderate.
    Section 188(b)(1) of the Act provides that moderate areas can 
subsequently be reclassified as serious before the applicable moderate 
area attainment date if at any time EPA determines that the area cannot 
``practicably'' attain the PM-10 NAAQS by the moderate area attainment 
deadline, December 31, 1994. On January 8, 1993 (58 FR 3334, 3337), EPA 
made such a determination and reclassified the San Joaquin Valley 
nonattainment area as serious.
    In accordance with section 189(b)(2) of the Act, SIP revisions for 
the San Joaquin Valley addressing the requirements for serious PM-10 
nonattainment areas in section 189(b) and (c) of the Act were required 
to be submitted by August 8, 1994 and 1994 and February 8, 1997.
    The serious area PM-10 requirements, as they pertain to the San 
Joaquin Valley nonattainment area, include: \2\
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    \2\ EPA has concluded that certain moderate area PM-10 
requirements continue to apply after an area has been reclassified 
to serious. For a more detailed discussion of the planning 
requirements applicable to the San Joaquin Valley and the 
relationship between the moderate area and serious area requirements 
after reclassification of the area to serious, see, e.g., 65 FR 
37324 (June 14, 2000).
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    (a) A comprehensive, accurate, and current inventory of actual 
emissions from all sources of the relevant pollutant, here, PM-10 and 
its precursors (CAA section 172(c)(3));
    (b) A demonstration (including air quality modeling) that the plan 
will provide for attainment as expeditiously as practicable but no 
later than December 31, 2001, or an alternative demonstration that 
attainment by that date would be impracticable and that the plan 
provides for attainment by the most expeditious alternative date 
practicable (CAA section 189(b)(1)(A)(i) and (ii));
    (c) Quantitative milestones that are to be achieved every 3 years 
and that demonstrate reasonable further progress toward attainment by 
December 31, 2001 (CAA section 189(c)); and
    (d) Provisions to assure that the best available control measures 
(BACM), including best available control technology (BACT), shall be 
implemented no later than four years after the reclassification of the 
area to a serious nonattainment area (CAA section 189(b)(1)(B).

B. California's Serious Area PM-10 SIP Submittals for the San Joaquin 
Valley

    The State of California submitted on October 12, 1994 the ``San 
Joaquin Valley PM-10 BACM SIP Submittal'' to EPA as a proposed revision 
to the California PM-10 SIP. On July 17, 1997, CARB submitted to EPA 
the serious area ``PM-10 Attainment Demonstration Plan'' (Serious PM-10 
Plan). The 1997 Plan incorporated and superseded the 1994 San Joaquin 
Valley PM-10 BACM SIP (1997 Plan, p. 1-1).

II. EPA Actions Relating to the San Joaquin Valley PM-10 
Nonattainment Area

    As discussed further in section III below, EPA intended to propose 
to

[[Page 11926]]

disapprove the Serious PM-10 Plan for the San Joaquin Valley by March 
1, 2002. However, just as the Agency was preparing the proposed 
disapproval notice for signature by the Regional Administrator and 
publication in the Federal Register, the State notified EPA that it had 
withdrawn the Plan from consideration by the Agency. See letter (with 
enclosures) from Michael Kenny, Executive Officer, California Air 
Resources Board, to Wayne Nastri, Regional Administrator, EPA Region 9, 
faxed to EPA on February 26, 2002. As a result, EPA is unable to move 
forward with its proposed plan disapproval.
    The CAA establishes specific consequences if EPA finds that a State 
has failed to meet certain requirements of the CAA. Of particular 
relevance here is CAA section 179(a)(1), the mandatory sanctions 
provision. Section 179(a) sets forth four findings that form the basis 
for application of a sanction. The first finding, that a State has 
failed to submit a plan required under the CAA, is the finding relevant 
to this rulemaking because withdrawal of a plan is tantamount to 
failing to submit it.
    If California has not made the required complete submittal (in this 
case resubmittal) within 18 months of the effective date of today's 
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 the State has still not made a complete submission 6 
months after the offset sanction is imposed, then the highway funding 
sanction will apply in the affected area, in accordance with 40 CFR 
52.31.\3\ The 18-month clock will stop and the sanctions will not take 
effect if, within 18 months after the date of the finding, EPA finds 
that the State has made a complete submittal of a plan addressing the 
applicable serious area PM-10 requirements for the San Joaquin Valley.
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    \3\ In a 1994 rulemaking, EPA established the Agency's selection 
of the sequence of these two sanctions: the offset sanction under 
section 179(b)(2) shall apply at 18 months, followed 6 months later 
by the highway sanction under section 179(b)(1) of the Act. EPA does 
not choose to deviate from this presumptive sequence in this 
instance. For more details on the timing and implementation of the 
sanctions, see 59 FR 39832 (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.''
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    In addition, CAA section 110(c)(1) provides that EPA must 
promulgate a federal implementation plan (FIP) no later than 2 years 
after a finding under section 179(a) unless EPA takes final action to 
approve the submittal within 2 years of EPA's finding.
    In a separate action, EPA is today also proposing to find that the 
San Joaquin Valley failed to attain the PM-10 NAAQS by the statutory 
deadline, December 31, 2001. EPA has the responsibility, pursuant to 
sections 179(c) and 188(b)(2) of the Act, of determining within 6 
months of the applicable attainment date (i.e., June 30, 2002), whether 
the area has attained the annual and 24-hour NAAQS. Section 179(c)(1) 
of the Act provides that these determinations are to be based upon an 
area's ``air quality as of the attainment date,'' and section 188(b)(2) 
is consistent with this requirement. Under CAA section 189(d), serious 
PM-10 nonattainment areas that fail to attain are required to submit 
within 12 months of the applicable attainment date, ``plan revisions 
which provide for attainment of the PM-10 air quality standards and, 
from the date of such submission until attainment, for an annual 
reduction in PM-10 or PM-10 precursor emissions within the area of not 
less than 5 percent of the amount of such emissions as reported in the 
most recent inventory prepared for such area.''

III. Ongoing Planning Efforts in the San Joaquin Valley

    As noted above, California now has an obligation to develop and 
submit a new PM-10 attainment plan for the San Joaquin Valley. In order 
to assist in these efforts, we outline below some of the bases on which 
we intended to disapprove the Serious PM-10 Plan:\4\
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    \4\ EPA's review of the 1997 Plan is based on section 189 of the 
CAA; EPA guidance, known as the ``General Preamble,'' which 
describes EPA's preliminary views on how the Agency intends to 
review SIPs and SIP revisions submitted under title I of the Act, 
and an Addendum to the General Preamble (``Addendum'') describing 
the Agency's preliminary views on how it intends to review SIPs and 
SIP revisions containing serious area PM-10 plan provisions. See 
``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 
57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992) and 
``State Implementation Plans for Serious PM-10 Nonattainment Areas, 
and Attainment Date Waivers for PM-10 Nonattainment Areas Generally; 
Addendum to the General Preamble for the Implementation of Title I 
of the Clean Air Act Amendments of 1990,'' 59 FR 41998 (August 16, 
1994).
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    (a) The emissions inventory is neither accurate nor comprehensive 
because, among other reasons, it contains no emissions for ammonia, a 
PM-10 precursor that contributes to PM-10 exceedances; the inventory 
combines together in one category a number of sources that constitute 
83% of the total primary PM-10 inventory; the inventory is not 
representative of a number of areas in the Valley; and there is no 
supporting documentation for the motor vehicle emissions;
    (b) The Plan does not provide for attainment of the annual standard 
by December 31, 2001 as evidenced by NAAQS exceedances cited in our 
proposed finding of failure to attain. For the 24-hour standard, the 
State in the Plan sought an extension of the attainment deadline to 
December 31, 2006 pursuant to CAA section 188(e), but did not provide 
the supporting documentation required by that section;
    (c) The Plan does not meet the requirements of CAA section 
189(b)(1)(B) and EPA guidance for best available control measures 
(BACM): the Plan does not provide for BACM for each significant source 
category; it does not document the State's selection of BACM; and the 
Plan's BACM commitments are not being met; and
    (d) The Plan does not provide for quantitative milestones to be 
achieved every three years until the area is redesignated attainment 
and does not demonstrate reasonable further progress (RFP) toward 
attainment by December 31, 2001.
    Efforts are underway by the State and local air district to develop 
a plan that will bring clean air to Valley residents as quickly as 
possible. EPA is committed to working closely with the State and local 
regulators, the regulated community, and the public to ensure that such 
plan is technically sound and protective of public health.

IV. Final Action

A. Rule

    EPA is today making a finding that the State of California failed 
to submit a SIP revision addressing the CAA's serious area PM-10 
requirements to attain the 24-hour and annual PM-10 NAAQS for the San 
Joaquin Valley PM-10 nonattainment area.

B. Effective Date Under the Administrative Procedures Act

    Today's action will be effective on February 28, 2002. Under the 
Administrative Procedures Act (APA), 5 U.S.C. 553(d)(3), an agency 
rulemaking may take effect before 30 days after the date of publication 
in the Federal Register if an agency has good cause to mandate an 
earlier effective date. Today's action concerns a SIP submission that 
is already overdue and the State has been aware of applicable 
provisions of the CAA relating to overdue SIPs. In addition, today's 
action simply starts a ``clock'' that will not result in sanctions for 
18 months, and that the State may ``turn off'' through the submission 
of a complete SIP submittal. These reasons support an effective date 
prior to 30 days after the date of publication.

[[Page 11927]]

C. Notice-and-Comment Under the Administrative Procedures Act

    This final agency action is not subject to the notice-and-comment 
requirements of the APA, 5 U.S.C. 533(b). EPA believes that because of 
the limited time provided to make findings of failure to submit 
regarding SIP submissions, Congress did not intend such findings to be 
subject to notice-and-comment rulemaking. However, to the extent such 
findings are subject to notice-and-comment rulemaking, EPA invokes the 
good cause exception pursuant to the APA, 5 U.S.C. 553(d)(3). Notice 
and comment are unnecessary because no EPA judgment is involved in 
making a nonsubstantive finding of failure to submit SIPs required by 
the CAA. Furthermore, providing notice and comment would be 
impracticable because of the limited time provided under the statute 
for making such determinations. Finally, notice and comment would be 
contrary to the public interest because it would divert Agency 
resources from the critical substantive review of submitted SIPs. See 
58 FR 51270, 51272, note 17 (October 1, 1993); 59 FR 39832, 39853 
(August 4, 1994).

V. 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 Fed. Reg. 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866.

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 
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.
    This final rule will not have a significant impact on a substantial 
number of small entities because findings of failure to submit required 
SIP revisions do not by themselves create any new requirements. 
Therefore, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.

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 today's action 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

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aggregate, or to the private sector. The CAA provision discussed in 
this notice requires states to submit SIPs. This notice merely provides 
a finding that California has not met that requirement. 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 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 May 17, 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 52

    Environmental protection, Air pollution control, Particulate 
matter, Intergovernmental relations, Reporting and recordkeeping 
requirements.

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

    Dated: February 28, 2002.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 02-6270 Filed 3-15-02; 8:45 am]
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