[Federal Register Volume 67, Number 191 (Wednesday, October 2, 2002)]
[Rules and Regulations]
[Pages 61784-61786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24912]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA-084-FON; FRL-7387-9]


Finding of Failure To Submit State Implementation Plan Revisions 
for Ozone (1-Hour Standard), 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 
submit state implementation plan (SIP) revisions required under the 
Clean Air Act (CAA or Act) for the severe San Joaquin Valley Ozone 
Nonattainment Area (the San Joaquin Valley or the Valley). The required 
revisions are an attainment demonstration, a reasonable further 
progress demonstration, a reasonably available control technology 
(RACT) rule for lime kilns, an inventory and contingency measures. 
California was required to submit these revisions by May 31, 2002.
    This action triggers the 18-month clock for mandatory application 
of sanctions and 2-year 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 was effective as of September 18, 2002.

FOR FURTHER INFORMATION CONTACT: Doris Lo, U. S. Environmental 
Protection Agency, Region 9, Air Division (AIR-2), 75 Hawthorne Street, 
San Francisco, CA 94105-3901, Telephone: (415) 972-3959; 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The San Joaquin Valley Ozone Nonattainment Area includes the 
following counties in California's central valley: San Joaquin, part of 
Kern,\1\ Fresno, Kings, Madera, Merced, Stanislaus and Tulare.
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    \1\ See 66 FR 56476 (November 8, 2001)(boundary change for the 
San Joaquin Valley establishing the eastern portion of Kern County 
as its own nonattainment area).
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    When the CAA was amended in 1990, each area of the Country that was 
designated nonattainment for the 1-hour ozone standard, including the 
San Joaquin Valley, was classified by operation of law as ``marginal,'' 
``moderate,'' ``serious,'' ``severe'' or ``extreme'' depending on the 
severity of the area's air quality problem. CAA sections 107(d)(1)(C) 
and 181(a). Each of these CAA classifications has different 
requirements, with the most stringent requirements for ``extreme'' 
areas. Based on its air quality during the 1987-1989 period, the San 
Joaquin Valley nonattainment area was initially classified as serious 
with an attainment date of no later than November 15, 1999. See 56 FR 
56694 (November 6, 1991) and CAA section 181(a)(1).
    On June 19, 2000, EPA proposed to find that the San Joaquin Valley 
had failed to attain the 1-hour ozone national ambient air quality 
standards (NAAQS) by the serious area attainment date of November 15, 
1999. 65 FR 37926. A final finding of failure to attain was published 
on October 23, 2001 (66 FR 56476) and the Valley was thus reclassified 
by operation of law as a severe ozone nonattainment area (effective 
December 10, 2001). Along with the severe classification, the Valley 
became subject to new planning requirements under section 182(d) of the 
CAA. Under section 182(d), severe area plans must meet the requirements 
for serious area plans in addition to those for severe areas. Moreover, 
the severe area plan revisions for the area must also meet the more 
general nonattainment provisions of section 172(c). In its final 
reclassification action, EPA set May 31, 2002 as the due date for 
submittal of plan revisions addressing these requirements. 66 FR 56481.
    On June 18 and August 6, 2002, California submitted plan revisions 
addressing several of the severe area requirements for the San Joaquin 
Valley (revised title V operating permit and new source review programs 
to address the new lower 25 ton per year major source cutoff for 
volatile organic compounds (VOCs) and oxides of nitrogen 
(NOX) and the offset ratio of 1.3:1; rule requiring fees for 
major sources should the area fail to attain by 2005; and RACT rules 
for most sources subject to the lower major source applicability 
threshold). Furthermore, on September 6, 2002, California submitted San 
Joaquin Valley Air Pollution Control District commitments to adopt new 
and revised control measures.

II. Final Action

A. Finding of Failure To Submit Required SIP Revisions

    While California's submittals address several of the severe area 
requirements for the San Joaquin Valley and help ensure progress 
towards clean air, there are still requirements which have not been 
addressed. Specifically, the State has not submitted a demonstration of 
attainment of the ozone NAAQS by no later than 2005 (sections 181(a) 
and 182(c)(2)(A)), a demonstration (known as reasonable further 
progress or rate of progress) of creditable emission reductions of 
ozone precursors of at least 3% per year until the attainment year 
(section 182(c)(2)(B)), a RACT rule for lime kilns addressing the 25 
ton per year major source cutoff (section 182(b)(2)(C)), an inventory 
(section 172(c)(3)) and contingency measures (section 172(c)(9)). Thus, 
EPA is today making a finding of failure to submit SIP revisions 
addressing these CAA required elements.
    If California does not submit the required plan revisions 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 submittal 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.\2\ The 18-month clock 
will

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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 addressing these severe area ozone requirements for the San 
Joaquin Valley. 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.
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    \2\ 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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B. Effective Date Under the Administrative Procedures Act

    This final action is effective on September 18, 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 SIP revisions that are 
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.

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).

III. 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.

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

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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 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 December 2, 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, Intergovernmental 
relations, Particular matter, Reporting and recordkeeping requirements.

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

    Dated: September 18, 2002.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 02-24912 Filed 10-1-02; 8:45 am]
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