[Federal Register Volume 68, Number 211 (Friday, October 31, 2003)]
[Proposed Rules]
[Pages 62041-62046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27487]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[CA 106-FOA; FRL-7580-7]


Approval and Promulgation of Implementation Plans and 
Determination of Attainment of the 1-Hour Ozone Standard for the San 
Francisco Bay Area, California, and Determination Regarding 
Applicability of Certain Clean Air Act Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to determine that the San Francisco Bay Area 
has attained the 1-hour ozone air quality standard by the deadline 
required by the Clean Air Act. Based on this proposal, we also propose 
to determine that the CAA's requirements for reasonable further 
progress, attainment demonstration, and contingency provisions are not 
applicable to the area for so long as the Bay Area continues to attain 
the 1-hour ozone standard.

DATES: Comments on this proposal must be received by December 1, 2003.

ADDRESSES: Please address your comments to:
    Ginger Vagenas, Air Planning Office (AIR-2), Air Division, U.S. 
EPA, Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901 or e-
mail to [email protected], or submit comments at http://www.regulations.gov.
    Copies of the docket for this rulemaking are available for public 
inspection during normal business hours at EPA's Region 9 office.

FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, U.S. EPA Region 9, 
at(415) 972-3964, or [email protected]

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. Attainment Finding
    A. Bay Area's Ozone Designations and State Implementation Plans
    B. Clean Air Act Provisions for Attainment Findings
    C. Attainment Finding for the Bay Area
    1. Adequacy of the Bay Area Ozone Monitoring Network
    2. Bay Area's Ozone Design Value for the 2001-2003 Period
    D. Attainment Findings and Redesignations to Attainment
II. Applicability of Clean Air Act Planning Requirements
    A. EPA's Policy and its Legal Basis
    1. Reasonable Further Progress
    2. Attainment Demonstration
    3. Contingency Measures
    4. Remaining Nonattainment Area SIP Requirements
    B. Effects of the Proposed Determination on the Bay Area and 
Effects of a Future Violation on this Proposed Determination
    C. Effect of the Proposed Determination on Transportation 
Conformity
III. Summary of EPA Actions
IV. Administrative Requirements

I. Attainment Finding

A. Bay Area's Ozone Designations and State Implementation Plans

    When the Clean Air Act (CAA) Amendments were enacted in 1990, each 
area of the country that was designated nonattainment for the 1-hour 
ozone National Ambient Air Quality Standard (NAAQS), including the San 
Francisco Bay Area (``Bay Area''), was classified by operation of law 
as marginal, moderate, serious, severe, or extreme depending on the 
severity of the area's air quality problem.\1\ CAA sections 
107(d)(1)(C) and 181(a). The Bay Area was classified as moderate. See 
56 FR 56694 (November 6, 1991).
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    \1\ The 1-hour ozone nonattainment area is the ``San Francisco-
Bay Area,'' which comprises Alameda, Contra Costa, Marin, Napa, San 
Francisco, San Mateo, and Santa Clara Counties, and portions of 
Solano and Sonoma Counties. See 40 CFR 81.305 (http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr81_00.html).
    EPA's 1-hour ozone standard of 0.12 ppm was promulgated in 1979 
(44 FR 8202, February 8, 1979). On July 18, 1997, we promulgated a 
revised ozone standard of 0.08 ppm, measured over an 8-hour period. 
In general, the 8-hour standard is more protective of public health 
and more stringent than the 1-hour standard. This proposed finding 
addresses only the 1-hour standard. Areas will be designated 
attainment or nonattainment for the 8-hour standard in 2004.
    Ground-level ozone can irritate the respiratory system, causing 
coughing, throat irritation, and uncomfortable sensations in the 
chest. Ozone can also reduce lung function and make it more 
difficult to breathe deeply, thereby limiting a person's normal 
activity. Finally, ozone can aggravate asthma and can inflame and 
damage the lining of the lungs, leading to permanent changes in lung 
function. More details on ozone's health effects and the ozone NAAQS 
can be found at the following Web site: http://www.epa.gov/ttn/naaqs/standards/ozone/s_o3_index.html.
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    EPA redesignated the Bay Area to attainment in 1995, based on then 
current air quality data (60 FR 27029, May 22, 1995), and subsequently 
redesignated the area back to nonattainment without classification on 
July 10, 1998 (63 FR 37258), following renewed violations of the 1-hour 
ozone standard. Upon the Bay Area's redesignation to nonattainment, we 
required the State to submit a state implementation plan (SIP) 
addressing applicable CAA provisions, including a demonstration of 
attainment as

[[Page 62042]]

expeditiously as practicable but no later than November 15, 2000.
    The Bay Area Air Quality Management District (BAAQMD), along with 
its co-lead agencies--the Metropolitan Transportation Commission and 
the Association of Bay Area Governments--prepared a 1-hour ozone 
attainment plan, which was submitted by the California Air Resources 
Board (CARB) on August 13, 1999. On September 20, 2001 (66 FR 48340), 
we approved the emissions inventories, reasonable further progress 
(RFP) provisions, control measure commitments, and contingency 
measures. In the same rulemaking, we disapproved the remaining portions 
of the SIP, i.e., the attainment demonstration and reasonably available 
control measure (RACM) provision, issued a finding that the area failed 
to attain by the applicable deadline, and set a new attainment deadline 
of ``as expeditiously as practicable'' but no later than September 20, 
2006.
    On November 30, 2001, CARB submitted the Bay Area's 2001 Plan, 
addressing the new attainment deadline.\2\ On July 16, 2003 (68 FR 
42174), we proposed to approve the following elements of the 2001 Plan: 
attainment assessment, motor vehicle emissions budgets, and commitments 
to adopt control measures and to adopt and submit a plan revision by 
April 15, 2004, based on new modeling. On the same date, we issued an 
interim final determination that the 2001 Plan corrects the 
deficiencies in the 1999 Plan, thereby staying the CAA section 179 
offset sanction and deferring the imposition of the highway sanction 
triggered by our September 20, 2001 disapproval. 68 FR 42172.
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    \2\ An electronic copy of the plan is available at http://www.baaqmd.gov/planning/2001sip/2001sip.htm and at the BAAQMD 
offices at 939 Ellis Street, San Francisco, CA 94105.
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    On October 16, 2003, William C. Norton, Executive Officer of the 
BAAQMD, sent a letter to Catherine Witherspoon, CARB Executive Officer, 
reporting that the Bay Area has attained the national 1-hour ozone 
standard and stating that, based on the monitoring data, a finding of 
attainment would be appropriate. Mr. Norton also stated that: ``We are 
continuing our air quality planning and rule development work in order 
to achieve additional reductions in ozone precursor emissions. We want 
to reduce local ozone and transport, and to maintain progress toward 
the state standard. The District's and ARB's staffs have been working 
intensively on the modeling and rule review phases of our mid-course 
review for the 2004 ozone planning process.''
    On October 21, 2003, CARB formally requested that we make a finding 
of attainment for the 1-hour ozone NAAQS for the Bay Area (letter from 
Catherine Witherspoon to Wayne Nastri, Regional Administrator, EPA 
Region 9). The CARB letter endorsed the BAAQMD's commitment to continue 
to reduce ozone precursor emissions in order to ensure progress toward 
attaining the national 8-hour ozone standard in the Bay Area and 
downwind areas, the more protective State ozone standard, and the 
national fine particulate matter (PM2.5) standards.

B. Clean Air Act Provisions for Attainment Findings

    Under CAA section 181(b)(2)(A), we must determine within six months 
of the applicable attainment date whether an ozone nonattainment area 
has attained the standard, basing our determination on the area's 
design value as of its applicable attainment date. Although the Bay 
Area is not subject to this provision and the attainment deadline for 
the area has not yet been reached, we are making an attainment finding 
based on the Bay Area's current air quality data and design value, 
which is in attainment of the 1-hour ozone NAAQS.
    The 1-hour ozone NAAQS is 0.12 ppm, not to be exceeded on average 
more than 1 day per year over any 3-year period. 40 CFR 50.9 and 
appendix H. Under our policies, we determine if an area has attained 
the 1-hour standard by calculating, at each monitor, the average number 
of days over the standard per year during the preceding 3-year 
period.\3\ For this proposal, we have based our determination of 
attainment on both the design value and the average number of 
exceedance days per year for the period 2001 through 2003.
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    \3\ See generally 57 FR 13506 (April 16, 1992) and Memorandum 
from D. Kent Berry, Acting Director, Air Quality Management 
Division, EPA, to Regional Air Office Directors; ``Procedures for 
Processing Bump Ups and Extensions for Marginal Ozone Nonattainment 
Areas,'' February 3, 1994 (http://www.epa.gov/ttn/oarpg/t1/memoranda/o_bump.pdf). While explicitly applicable only to marginal 
areas, the general procedures for evaluating attainment in this 
memorandum apply regardless of the initial classification of an area 
because all findings of attainment are made pursuant to the same 
procedures.
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    The design value is an ambient ozone concentration that indicates 
the severity of the ozone problem in an area and is used to determine 
the level of emission reductions needed to attain the standard, that 
is, it is the ozone level around which a state designs its control 
strategy for attaining the ozone standard. A monitor's design value is 
the fourth highest ambient concentration recorded at that monitor over 
the previous 3 years. An area's design value is the highest of the 
design values from the area's monitors.\4\
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    \4\ The fourth highest value is used as the design value because 
a monitor may record up to 3 exceedances of the standard in a 3-year 
period and still show attainment, since 3 exceedances over 3 years 
would average 1 day per year, the maximum allowed to show attainment 
of the 1-hour ozone standard. If the monitor records a fourth 
exceedance in that period, it would average more than 1 exceedance 
day per year and would no longer show attainment. Therefore, if a 
state can reduce the fourth highest ozone value to below the 
standard, thus preventing a fourth exceedance, then it will be able 
to demonstrate attainment.
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    We make attainment determinations for ozone nonattainment areas 
using all available, quality-assured air quality data for the current 
or applicable 3-year period.\5\ Consequently, we used all of the 2001, 
2002, and 2003 data available to determine whether the Bay Area 
attained the 1-hour ozone standard by the end of the 2003 ozone season. 
From the available air quality data, we have calculated the average 
number of days over the standard and the design value for each ozone 
monitor in the Bay Area nonattainment area.
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    \5\ This includes all data that are available from the state and 
local/national air monitoring station (SLAMS/NAMS) network as 
submitted to EPA's Aerometric Information Retrieval System-Air 
Quality Subsystem (AIRS-AQS) database and certified as final. Also 
included are all data available to EPA from special purpose 
monitoring (SPM) sites that meet the requirements of 40 CFR 51.18. 
See Memorandum dated August 22, 1997, from John Seitz to Regional 
Air Directors, entitled ``Agency Policy on the Use of Ozone Special 
Purpose Monitoring Data'' (http://www.epa.gov/ttn/amtic/files/ambient/criteria/spms3.pdf). Monitoring data for the 2003 ozone 
season must be certified by the BAAQMD prior to publication of the 
final attainment finding.
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C. Attainment Finding for the Bay Area

1. Adequacy of the Bay Area Ozone Monitoring Network
    Determining whether or not an area has attained under CAA section 
181(b)(1)(A) is based on monitored air quality data. Thus, the validity 
of a determination of attainment depends on whether the monitoring 
network adequately measures ambient ozone levels in the area.
    We evaluate 4 basic elements in determining the adequacy of an 
area's ozone monitoring network. The network needs to meet the design 
requirements of 40 CFR part 58, appendix D; the network needs to 
utilize monitoring equipment designated as reference or equivalent 
methods under 40 CFR part 53; the agency or agencies operating the 
equipment need to have a quality assurance plan in place that meets the

[[Page 62043]]

requirements of 40 CFR part 58, appendix A; and, for urban areas with 
populations greater than 200,000, at least two monitoring sites must be 
designated as National Air Monitoring Stations (NAMS). The ozone 
network in the Bay Area meets or exceeds these requirements and is 
therefore adequate for use in determining the ozone attainment status 
of the area.\6\
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    \6\ These requirements are addressed in ``System Audit of the 
Ambient Monitoring Program of Bay Area Air Quality Management 
District, November 26-30, 2001.'' The system audit report is 
included in the docket for this rulemaking.
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2. The Bay Area's Ozone Design Value for the 2001-2003 Period
    We have listed in Table 1 the design values and the average number 
of exceedance days per year for the 2001 to 2003 period for each 
monitoring site in the Bay Area. We calculated the design values 
following the procedures in the Laxton memo.\7\ We have used the 
established rounding conventions set forth in our guidance documents 
and regulations.\8\
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    \7\ See memorandum, William G. Laxton, Director, Technical 
Support Division, Office of Air Quality Planning and Standards to 
Regional Air Directors, ``Ozone and Carbon Monoxide Design Value 
Calculations,'' June 18, 1990 (http://www.epa.gov/oar/oaqps/greenbk/laxton.html).
    \8\ Although the 1-hour ozone NAAQS itself includes no 
discussion of specific data handling conventions, our publicly 
articulated position and the approach long since universally adopted 
by the air quality management community is that the interpretation 
of the 1-hour ozone standard requires rounding ambient air quality 
data consistent with the stated level of the standard, which is 0.12 
parts per million (ppm). 40 CFR 50.9(a) states that: ``The level of 
the national 1-hour primary and secondary ambient air quality 
standards for ozone * * * is 0.12 parts per million. * * * The 
standard is attained when the expected number of days per calendar 
year with maximum hourly average concentrations above 0.12 parts per 
million * * * is equal to or less than 1, as determined by appendix 
H to this part.'' (http://a257.g.akamaitech.net/7/257/2422/08aug20031600/edocket.access.gpo.gov/cfr_2003/julqtr/pdf/40cfr50.9.pdf) We have clearly communicated the data handling 
conventions for the 1-hour ozone NAAQS in regulation and guidance 
documents, as discussed below. In the 1990 CAA Amendments, Congress 
expressly recognized the continuing validity of EPA guidance.
    As early as 1977, EPA issued guidance that the level of our 
NAAQS dictates the number of significant figures to be used in 
determining whether the standard was exceeded. Guidelines for the 
Interpretation of Air Quality Standards, OAQPS No. 1.2-008, February 
1977 (http://www.epa.gov/ttn/amtic/files/ambient/criteria/reldocs/12008-77.pdf). In addition, the regulations governing the reporting 
of annual summary statistics from ambient monitoring stations for 
use by EPA in determining national air quality status clearly 
indicate the rounding convention to be used for 1-hour ozone data. 
``The air quality concentration should be rounded to the number of 
significant digits used in specifying the concentration intervals. 
The digit to the right of the last significant digit determines the 
rounding process. If this digit is greater than or equal to 5, the 
last significant digit is rounded up. The insignificant digits are 
truncated. For example, 100.5 ug/m3 rounds to 101 up/m3 and 0.1245 
ppm rounds to 0.12 ppm.'' 40 CFR part 58, appendix F, 2 Required 
Information (http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr58_00.html).

  Table 1.--Average Number of 1-Hour Ozone Exceedance Days per Year and
           Design Values by Monitor in the Bay Area, 2001-2003
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                                  Average number of
             Site                exceedance days per   Site design value
                                        year                 (ppm)
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Bethel Island (SLAMS).........                   0.3               0.102
Concord (NAMS)................                   0.3               0.106
Crockett (SPM)................                   0                 0.081
Fairfield (SLAMS).............                   0                 0.101
Fremont (NAMS)................                   0                 0.106
Gilroy (SLAMS)................                   0                 0.116
Hayward (SLAMS)...............                   0                 0.097
Livermore (NAMS)..............                   1.0               0.123
Los Gatos (NAMS)..............                   0                 0.113
Napa (SLAMS)..................                   0                 0.099
Oakland (SLAMS)...............                   0                 0.069
Oakland--Fruitvale (SPM)......                   0                 0.068
Pittsburg (SLAMS).............                   0                 0.103
Redwood City (SLAMS)..........                   0                 0.090
San Francisco (SLAMS).........                   0                 0.061
San Jose Central (SLAMS)......                   0                 0.099
San Jose East (SLAMS).........                   0                 0.091
San Leandro (SLAMS)...........                   0                 0.093
San Martin (SLAMS)............                   0                 0.115
San Pablo (SLAMS).............                   0                 0.071
San Rafael (SLAMS)............                   0                 0.077
Santa Rosa (SLAMS)............                   0                 0.086
Sunnyvale (SLAMS).............                   0                 0.096
Vallejo (SLAMS)...............                   0                 0.091
------------------------------------------------------------------------
Note: Each of these sites is operated by BAAQMD. All data are reported
  to EPA's AIRS-AQS database.

    From Table 1, it is apparent that the highest design value at any 
monitor, and thus the design value for the Bay Area, is 0.123 ppm at 
the Livermore site. No monitor in the Bay Area recorded an average of 
more than 1 exceedance of the 1-hour ozone standard per year during the 
2001 to 2003 period.
    Because the area's design value is below the 0.12 ppm 1-hour ozone 
standard for the 2001 to 2003 period, we propose to find that the Bay 
Area has attained the 1-hour ozone standard.

D. Attainment Findings and Redesignations to Attainment

    A finding that an area has attained the 1-hour ozone standard does 
not redesignate the area to attainment for the 1-hour standard nor does 
it guarantee a future redesignation to attainment.
    The redesignation of an area to attainment under CAA section 
107(d)(3)(E) is a separate process from a finding of attainment. Unlike 
an attainment finding where we need only determine that the area has 
had the pre-requisite number of clean years, a redesignation requires 
multiple determinations. Under section 107(d)(3)(E), these 
determinations are:

[[Page 62044]]

    1. We must determine, at the time of the redesignation, that the 
area has attained the relevant NAAQS.
    2. The state must have a fully approved SIP for the area.
    3. We must determine that the improvements in air quality are due 
to permanent and enforceable reductions in emissions resulting from 
implementation of the SIP and applicable federal regulations and other 
permanent and enforceable reductions.
    4. We must have fully approved a maintenance plan for the area 
under CAA section 175A.
    5. The state must have met all the nonattainment area requirements 
applicable to the area.
    It is possible, although not expected, that the Bay Area could 
violate the 1-hour ozone NAAQS before a maintenance plan is adopted, 
submitted, and approved, and the area is redesignated to attainment. If 
such a violation were to occur after our finding of attainment, and if 
expedited implementation of contingency measures were to prove 
insufficient to eliminate future violations, we believe that issuance 
of a SIP call under section 110(k)(5) would be an appropriate response. 
This SIP call could require the State to submit, by a reasonable 
deadline not to exceed 18 months, a revised plan demonstrating 
expeditious attainment and complying with other requirements applicable 
to the area at the time of this finding.
    In proposed implementation guidance for the 8-hour ozone NAAQS, we 
have also discussed other options for areas that have attained the 1-
hour ozone standard but subsequently violate the 1-hour NAAQS in the 
transition period before implementation of the 8-hour ozone SIP 
provisions. EPA's final guidance may establish approaches for ensuring 
continued clean air progress while minimizing any inefficiencies and 
diversions of air quality planning resources.

II. Applicability of Clean Air Act Planning Requirements

A. EPA's Policy and Its Legal Basis

    When we redesignated the Bay Area back to nonattainment, we 
concluded that the Bay Area became subject to the provisions of subpart 
1 rather than subpart 2 of the Clean Air Act. 63 FR 37258 (July 10, 
1998). CAA subpart 1 at section 172(c) requires states to submit plans 
with certain revisions. These provisions include: emissions 
inventories, attainment demonstration, reasonable further progress 
(RFP), reasonably available control measures (RACM), contingency 
measures, and new source review (NSR).
    For the reasons described below and discussed in our Ozone Clean 
Data Policy, we believe that it is reasonable to interpret the CAA not 
to require the 3 provisions discussed below for ozone nonattainment 
areas that are determined to be meeting the 1-hour ozone standard.\9\
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    \9\ See memorandum, John S. Seitz, Director, OAQPS, EPA, to 
Regional Air Directors, ``Reasonable Further Progress, Attainment 
Demonstrations, and Related Requirements for Ozone Nonattainment 
Areas Meeting the Ozone National Ambient Air Quality Standard,'' May 
10, 1995 (http://www.epa.gov/ttn/oarpg/t1/memoranda/clean15.pdf). We 
have also explained at length in other actions our rationale for the 
reasonableness of this interpretation of the Act and incorporate 
those explanations by reference here. See 61 FR 20458 (May 7, 1996) 
(Cleveland-Akron-Lorrain, Ohio); 60 FR 36723 (July 18, 1995) (Salt 
Lake and Davis Counties, Utah); 60 FR 37366 July 20, 1995) and 61 FR 
31832-31833 (June 21, 1996) (Grand Rapids, MI); and 65 FR 31859 (May 
19, 2000) and 66 FR 29230 (May 30, 2001) (Phoenix, Arizona). Our 
interpretation has also been upheld by the United States Court of 
Appeals for the 10th Circuit in Sierra Club v. EPA, 99 F.3d 1551 
(10th Cir. 1996) (http://www.law.emory.edu/10circuit/nov96/95-9541.wpd.html).
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1. Reasonable Further Progress
    CAA Section 171(1) states that, for purposes of part D of Title I, 
RFP ``means such annual incremental reductions in emissions of the 
relevant air pollutant as are required by [Part D] or may reasonably be 
required by the Administrator for the purpose of ensuring attainment of 
the applicable national ambient air quality standard by the applicable 
date.'' Thus, the stated purpose of RFP is to ensure attainment by the 
applicable attainment date. If an area has in fact attained the 
standard, the stated purpose of the RFP requirement will have already 
been fulfilled.
    Consequently, we do not believe that a state needs to submit 
revisions providing for the further emission reductions to meet the RFP 
provisions of section 172(c)(2) for areas meeting the 1-hour ozone 
standard. We note that we took this view with respect to the general 
RFP requirement of section 172(c)(2) in our ``General Preamble for the 
Interpretation of Title I of the Clean Air Act Amendments of 1990'' at 
57 FR 13498 (April 16, 1992). In the General Preamble, we stated, in 
the context of a discussion of the requirements applicable to the 
evaluation of requests to redesignate nonattainment areas to 
attainment, that the ``requirements for RFP will not apply in 
evaluating a request for redesignation to attainment since, at a 
minimum, the air quality data for the area must show that the area has 
already attained. Showing that the State will make RFP towards 
attainment will, therefore, have no meaning at that point.'' (57 FR 
13564.) See also ``Procedures for Processing Requests to Redesignate 
Areas to Attainment,'' from John Calcagni, Director, Air Quality 
Management Division, to Regional Air Division Directors, September 4, 
1992 (``Calcagni memo'') (http://www.epa.gov/ttn/naaqs/ozone/ozonetech/940904.pdf). The memo states that the ``requirements for reasonable 
further progress * * * will not apply for redesignations because they 
only have meaning for areas not attaining the standard'' (page 6).
2. Attainment Demonstration
    Analogous reasoning applies to the attainment demonstration 
requirement. Section 172(c)(1) requires that a state submit a SIP 
revision that will provide for attainment of the NAAQS. If an area has 
in fact monitored attainment of the standard based on existing 
controls, we believe that it is not necessary for the state to make a 
further submission containing additional measures or demonstrations to 
show attainment.
    This belief is also consistent with our interpretation of certain 
section 172(c) requirements in the General Preamble to Title I, where 
we stated there that no other measures to provide for attainment would 
be needed by areas seeking redesignation to attainment since 
``attainment will have been reached.'' (57 FR 13564; see also Calcagni 
memo at page 6.)
    Upon attainment of the NAAQS, the focus of state planning efforts 
shifts to the maintenance of the NAAQS and the development of a 
maintenance plan under section 175A.
3. Contingency Measures
    CAA section 172(c)(9) requires a state to submit contingency 
measures that will be implemented if an area fails to make RFP or fails 
to attain by the applicable attainment date. We have previously 
interpreted the contingency measure requirement of section 172(c)(9) as 
no longer applying once an area has attained the standard since those 
``contingency measures are directed at ensuring RFP and attainment by 
the applicable date.'' See 57 FR 13564; see also the Calcagni memo at 
page 6.
4. Remaining Nonattainment Area SIP Requirements
    A number of CAA subpart 1 SIP requirements for nonattainment areas 
are not tied to whether the area has attained the 1-hour standard. The 
State remains obligated to submit these requirements for the Bay Area 
even if

[[Page 62045]]

we finalize today's proposed determination that the area has attained 
the 1-hour standard and that the CAA planning requirements discussed 
above no longer apply to the area. These requirements include: A 
current, comprehensive, and accurate emission inventory of actual 
emissions (section 172(c)(3)); reasonable available control measures 
(section 172(c)(1)); and an NSR program (sections 172(c)(5) and 173(a). 
When we take final action on this finding of attainment, we intend to 
take final action on the 2001 Plan, including whether the emissions 
inventories and control measures in the plan satisfy the applicable 
subpart 1 requirements. We have previously acted on the Bay Area's NSR 
program. See, for example, 65 FR 56284 (September 18, 2000).

B. Effects of the Proposed Determination on the Bay Area and Effects of 
a Future Violation on This Proposed Determination

    If we finalize today's proposed determinations for the Bay Area, 
then the State will no longer be required to submit an RFP plan, an 
attainment demonstration, or contingency measures for the area. Any 
sanction clocks under CAA section 179(a) or requirements that we 
promulgate a federal implementation plan under CAA section 110(c) for 
these SIP requirements are suspended.
    The suspension of the requirement to submit these SIP revisions and 
the suspension of sanction clocks/FIP requirements will exist only as 
long as the Bay Area continues to attain the 1-hour ozone standard. If 
we subsequently determine that the Bay Area has violated the 1-hour 
ozone standard (prior to a redesignation to attainment), the basis for 
the determination that the area need not make these SIP revisions would 
no longer exist. Thus, a determination that an area need not submit 
these SIP revisions amounts to no more than a suspension of the 
requirement for so long as the area continues to attain the standard.
    Should the Bay Area begin to violate the 1-hour standard, we will 
notify the State that we have determined that the area is no longer 
attaining the 1-hour standard. We also will provide notice to the 
public in the Federal Register, and we will at that time indicate what 
pertinent SIP provisions apply and when a SIP revision addressing those 
provisions must be submitted.
    California must continue to operate an appropriate air quality 
monitoring network, in accordance with 40 CFR part 58, to verify the 
attainment status of the area. The air quality data relied upon to 
determine that the area is attaining the ozone standard must be 
consistent with 40 CFR part 58 requirements and other relevant EPA 
guidance.

C. Effect of the Proposed Determination on Transportation Conformity

    CAA section 176(c) requires that federally funded or approved 
transportation actions in nonattainment areas ``conform'' to the area's 
air quality plans. Conformity ensures that federal transportation 
actions do not worsen an area's air quality or interfere with its 
meeting the air quality standards.
    One of the primary tests for conformity is to show that 
transportation plans and improvement programs will not cause motor 
vehicle emissions higher than the levels needed to make progress toward 
and to meet the air quality standards. These motor vehicle emissions 
levels are set in an area's attainment, maintenance and/or RFP 
demonstrations and are known as the ``transportation conformity 
budgets.''
    We found the motor vehicle emissions budgets in the 2001 Plan 
adequate on February 14, 2002. 67 FR 8017 (February 21, 2002). A 
finding that the Bay Area has attained the 1-hour standard and that the 
State no longer needs to submit attainment and RFP demonstrations will 
not affect the continued applicability of these budgets. If the 
attainment demonstration is withdrawn, however, the continued 
applicability of the budgets could be affected.

III. Summary of EPA Actions

    We are proposing to find that the Bay Area has attained the 1-hour 
ozone NAAQS. We are also proposing to determine that certain CAA 
requirements (RFP, attainment assessment, and contingency measures) no 
longer apply to the Bay Area should the attainment finding be 
finalized.

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
proposed action merely proposes to find that an area has attained a 
previously-established national ambient air quality standard based on 
an objective review of measured air quality data. It also proposed to 
determine that certain Clean Air Act requirements no longer apply to 
the Bay Area because of the attainment finding. If finalized, it would 
not impose any new regulations, mandates, or additional enforceable 
duties on any public, nongovernmental, or private entity. Accordingly, 
the Administrator certifies that this proposed 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.). Because 
this proposed rule does not impose any additional enforceable duty, it 
does not contain any unfunded mandate or significantly or uniquely 
affect small governments, as described in the Unfunded Mandates Reform 
Act of 1995 (Pub. L. 104-4).
    This proposed 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). This action 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). This action 
merely proposes to determine that an area has attained a Federal 
standard and thus is not subject to certain specific requirements, and 
does not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This proposed rule 
also is not subject to Executive Order 13045 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 
23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C.

[[Page 62046]]

272 note) do not apply. This proposed 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.).

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, 2003.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 03-27487 Filed 10-30-03; 8:45 am]
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