[Federal Register Volume 69, Number 35 (Monday, February 23, 2004)]
[Proposed Rules]
[Pages 8126-8128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-3823]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[CA 112-RECLAS, FRL-7625-7]


Clean Air Act Reclassification, San Joaquin Valley Nonattainment 
Area; California; Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to grant a request by the State of California 
to voluntarily reclassify under the Clean Air Act (``CAA'' or ``the 
Act'') the San Joaquin Valley Ozone Nonattainment Area (``San Joaquin 
Valley Air Basin'' or ``SJVAB'') from a severe to an extreme 1-hour 
ozone nonattainment area. EPA is also proposing that the State submit, 
by no later than October 1, 2004, an extreme ozone nonattainment area 
plan addressing the requirements of CAA section 182(e) and that the 
State submit revised Title V and New Source Review rules that reflect 
the extreme area requirements no later than 12 months from the 
effective date of the final reclassification.
    Final reclassification of the SJVAB will stop the sanctions and 
federal implementation plan clocks that were started under CAA section 
179(a) upon EPA's 2002 finding that the State failed to submit the 
statutorily required severe area attainment demonstration for the area.
    Several Indian tribes have reservations located within the 
boundaries of the SJVAB. EPA implements relevant reclassification 
provisions of the CAA in these reservations and is also proposing that 
these areas be reclassified from a severe to an extreme 1-hour ozone 
nonattainment area. Thus, this action could potentially affect these 
tribes. Accordingly, EPA has notified the affected tribal leaders of 
our proposed action and is inviting consultation with interested 
tribes.
    EPA will accept comments on all aspects of this proposed rule. 
However, as discussed in section II. below, EPA believes that the CAA 
compels the Agency to grant a voluntary reclassification when requested 
by a State.

DATES: Comments on this proposed action must be received by March 24, 
2004.

ADDRESSES: Send comments to David Wampler, Planning Office (AIR-2), 
U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, 
San Francisco, CA 94105-3901 or e-mail to [email protected], or 
submit comments at http://www.regulations.gov.
    You can inspect and copy the docket for this action at our Region 
IX office during normal business hours (see ADDRESSES above). Due to 
increased security, we suggest that you call at least 24 hours prior to 
visiting the Regional Office so that we can make arrangements to have 
someone meet you. The Federal Register notice is also available as an 
electronic file on EPA's Region 9 Web Page at http://www.epa.gov/region09/air.

FOR FURTHER INFORMATION CONTACT: David Wampler, Planning Office (AIR-
2), Air Division, EPA Region IX, 75 Hawthorne Street, San Francisco, CA 
94105, (415) 972-3975.

SUPPLEMENTARY INFORMATION: Throughout this document, the words ``we,'' 
``us,'' or ``our'' mean U.S. EPA.

I. Background

    The San Joaquin Valley Ozone Nonattainment Area (``San Joaquin 
Valley Air Basin'' or ``SJVAB'') consists of the following counties in 
California's central valley: San Joaquin, the western portion 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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    Upon the date of enactment of the 1990 Clean Air Act Amendments, 
the SJVAB was classified as a serious ozone nonattainment area for the 
1-hour ozone National Ambient Air Quality Standard (``NAAQS''). (56 FR 
56694, November 6, 1991 and CAA section 181(a)(1)).
    In December 2001, EPA reclassified the SJVAB from a serious to a 
severe nonattainment area for the 1-hour ozone NAAQS. (66 FR 56476, 
November 8, 2001). This reclassification resulted from the failure of 
the SJVAB to attain the standard by November 15, 1999 as required for 
serious nonattainment areas. CAA section 181(a) and (b)(2). In our 
final action, we explained that the State of California would need to 
submit by May 31, 2002 a state implementation plan (``SIP'') revision 
addressing the severe area planning requirements including, but not 
limited to, a demonstration of attainment of the severe 1-hour ozone 
standard by November 15, 2005, and a rate of progress (``ROP'') 
demonstration of creditable ozone precursor emission reductions of at 
least 3 percent per year until attainment. (66 FR 56476, 56481, 
November 8, 2001).
    On October 2, 2002 (67 FR 61784; effective September 18, 2002), EPA 
found that the State failed to submit by May 31, 2002 the following 
required severe area SIP revisions for the SJVAB: (1) A demonstration 
of attainment of the 1-hour ozone NAAQS by no later than 2005; (2) a 
ROP demonstration as described above; (3) an emission control rule for 
lime kilns; (4) an emissions inventory; and (5) contingency measures. 
In our final action, we stated that, pursuant to CAA section 179(a), if 
the State did not submit the required plan revisions, the offset 
sanction identified in CAA section 179(b) would be applied in the 
affected area followed by the highway sanction 6 months after the 
offset sanction was imposed. We also stated that the sanction clock 
would stop upon a finding by EPA that the State has made complete \2\ 
submittals addressing these severe area requirements. Finally, we 
explained that, under CAA section 110(c), EPA must promulgate a federal 
implementation plan (``FIP'') no later than two years after the finding 
under section 179(a) unless the Agency takes

[[Page 8127]]

final action to approve the required SIP revisions within that time.
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    \2\ The requirements regarding completeness of SIP submittals 
are found in CAA section 110(k)(1) and 40 CFR part 51, appendix V.
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    The State has submitted all of the required severe area plan 
requirements except for a demonstration of attainment of the ozone 
standard by 2005 and EPA has found these submittals to be complete.\3\
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    \3\ Rule 4313--Lime Kilns was submitted to EPA on June 5, 2003, 
EPA found the submittal complete on July 18, 2003 and approved the 
rule on September 4, 2003 (68 FR 52510). The District's Amended 2002 
and 2005 Ozone Rate of Progress Plan for San Joaquin Valley, with 
its associated emissions inventory and contingency measures, was 
submitted to EPA on April 10, 2003. EPA found the submittal complete 
on September 4, 2003.
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II. Reclassification of the SJVAB to Extreme Ozone Nonattainment

    By letter dated January 9, 2004, The State requested that EPA 
reclassify the SJVAB from a severe to an extreme nonattainment area for 
the 1-hour ozone standard.\4\ The State made the request because they 
and the San Joaquin Valley Unified Air Pollution Control District 
(``District'') believe that sufficient emission reductions to 
demonstrate attainment of the 1-hour ozone NAAQS by 2005 in the SJVAB 
have not yet been defined.
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    \4\ Letter from Catherine Witherspoon, Executive Officer, 
California Air Resources Board, to Mr. Wayne Nastri, Regional 
Administrator, EPA Region IX, dated January 9, 2004.
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    Section 181(b)(3) of the CAA provides for ``voluntary 
reclassification'' and states that ``* * * [t]he Administrator shall 
grant the request of any State to reclassify a nonattainment area in 
that State * * * to a higher classification'' and that ``* * * [t]he 
Administrator shall publish a notice in the Federal Register of any 
such request and of action by the Administrator granting the request.'' 
Emphasis supplied.
    EPA intends to take final action granting the State's request for a 
voluntary reclassification. We believe that the plain language of 
section 181(b)(3) mandates that we approve such a request and, as such, 
gives the Agency no discretion to deny it.\5\ We are, however, 
considering the relevance of the State's request to reclassification of 
Indian Country areas located within the SJVAB. Typically, states have 
no jurisdiction under the Clean Air Act in Indian country, and 
California has not been approved by EPA to administer any CAA programs 
in Indian country. CAA actions in Indian country would thus generally 
be taken either by EPA, or by a tribe itself under an EPA-approved 
program. Irrespective of that issue, however, we believe that, as a 
matter of EPA's federal implementation of relevant provisions of the 
CAA over Indian country within the SJVAB, these areas of Indian country 
should similarly be reclassified to extreme. Ground-level ozone 
continues to be a pervasive pollution problem in areas, such as the 
SJVAB, throughout the United States. Ozone and precursor pollutants 
that cause ozone can be transported into an area from pollution sources 
found many miles away. Therefore EPA recommends that boundaries for 
nonattainment areas be drawn to encompass both areas with direct 
sources of the pollution problem as well as nearby areas in the same 
airshed. Classifications of nonattainment areas are coterminous with 
their boundaries. EPA believes that this approach best ensures public 
health protection from the adverse effects of ozone pollution. 
Therefore, it is generally counterproductive from an air quality and 
planning perspective to segregate land areas located well within the 
boundaries of a nonattainment area, such as the seven Indian 
reservations in the SJVAB. Moreover, violations of the one-hour ozone 
standard, which are measured and modeled throughout the nonattainment 
area, as well as shared meteorologic conditions, would dictate the same 
result. EPA does, however, recognize the significance of Indian country 
boundaries within the nonattainment area and, as described below, will 
consult with the affected Tribes regarding the need for 
reclassification of their Indian country.
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    \5\ Compare CAA reclassifications based on the failure of a 
nonattainment area to attain a NAAQS. See, e.g., section 
181(b)(2)(A): ``Within 6 months following the applicable attainment 
date * * * the Administrator shall determine, based on the area's 
design value * * * whether the area attained the standard by that 
date.'' Emphasis supplied.
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III. Consequences of Reclassification

A. Sanctions and FIP

    EPA believes that when a nonattainment area is reclassified, the 
CAA attainment requirements of the new classification supersede those 
of the previous classification; therefore the former attainment 
requirements are moot. In other words, once a nonattainment area has 
been reclassified and, as a result, has a new statutory attainment 
deadline, the deadline applicable to the previous classification no 
longer has any logical, practical or legal significance. See, e.g., 61 
FR 54972, 54974 (October 23, 1996). Consequently, when the SJVAB is 
reclassified to extreme,\6\ the failure of the State to submit a severe 
area ozone attainment demonstration will no longer have any 
significance. Therefore, upon the effective date of the 
reclassification, the sanction and FIP clocks that were started as a 
result of the Agency's October 2, 2002 finding that the State failed to 
submit the severe area attainment demonstration will stop.
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    \6\ Under section 181(b)(3) of the Act, the attainment deadline 
for a severe area voluntarily reclassified to extreme is as 
expeditiously as practicable but no later than November 15, 2010.
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B. Required Plan, New Source Review and Title V Permit Program 
Revisions

    As discussed below, the extreme classification, once effective, 
will require revisions to the SJVAB portion of California's SIP. We 
propose that the State submit, by no later than October 1, 2004, an 
extreme ozone nonattainment area plan for the SJVAB. In addition, we 
propose that the State submit revised New Source Review rules and Title 
V program revisions for the areas within the District's jurisdiction 
within 12 months from the effective date of the final reclassification.
    1. Extreme Area Plan Requirements. Under 182(e), extreme area plans 
are required to meet all the requirements for severe area plans \7\ 
plus the requirements for extreme areas, including, but not limited to: 
(1) A 10 ton per year major source definition; (2) additional 
reasonably available control technology (RACT) rules for sources 
subject to the new lower major source cutoff; (3) a new source review 
offset requirement of at least 1.5 to 1; (4) a rate of progress 
demonstration of emission reductions of ozone precursors of at least 3 
percent per year from 2005 until the attainment date;\8\ (5) clean 
fuels for boilers as required for at CAA section 182(e)(3); and 
contingency measures.
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    \7\ The CAA specifically excludes certain severe area 
requirements from the extreme area requirements, e.g., section 
182(c)(6), (7) and (8).
    \8\ The CAA does not allow the state to use the provision at CAA 
182(c)(2)(B)(ii) that would allow the state to demonstrate to the 
satisfaction of the Administrator that less than 3 percent reduction 
per year is approvable if the plan reflecting such lesser amount 
includes all measures that can feasibly be implemented in the area.
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    The extreme area plan for the SJVAB must also contain adopted 
regulations and/or enforceable commitments to adopt and implement 
control measures in regulatory form by specified dates, sufficient to 
make the required rate of progress and to attain the 1-hour ozone NAAQS 
as expeditiously as practicable but no later than November 15, 2010. 
The new attainment demonstration should be based on the best 
information available. While we realize that modeling based on Central 
California Ozone Study (CCOS)\9\ data may not be

[[Page 8128]]

completed in time for use in the extreme area plan, the State should, 
to the extent possible, use available new data.
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    \9\ The Central California Ozone Study is a large field 
measurement program conducted during the summer of 2000 to provide a 
more comprehensive and liable data base for future ozone analyses. 
Information regarding the CCOS is available on-line at http://www.arb.ca.gov/airways/ccos/ccos.htm.
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    In anticipation of the reclassification of the SJVAB, work on the 
extreme area plan has been ongoing since 2002 but has not yet been 
completed because of a delay in the photochemical modeling. The 
District now projects completion of the plan in May 2004, and Board 
adoption in the summer of 2004.\10\ Given the current status of the 
plan development, EPA believes that a submittal deadline of October 1, 
2004 is reasonable.
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    \10\ See the District's Draft Status Report for the January 6 
and 7, 2004 Workshop and related documents.
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    2. NSR and Title V Program Revisions. In addition to the required 
plan revisions discussed above, the District must revise its New Source 
Review (NSR) rule to reflect the extreme area definitions for major new 
sources and major modifications and to increase the offset ratio for 
these sources from the ratio for severe areas in CAA section 182(d)(2) 
to 1.5 to 1. CAA section 182(e)(1) and (2). The District must also make 
any changes in its Title V operating permits program necessary to 
reflect the change in the threshold from 25 tpy for severe areas to 10 
tpy for extreme areas. We are proposing that the State submit any 
required revisions to these programs by no later than 12 months from 
the effective date of the final reclassification.

IV. Effect of EPA's Implementation of the New 8-hour Ozone NAAQS on 
Today's Proposed Action

    On June 2, 2003, EPA published in the Federal Register a proposed 
rule that outlined two distinct options on how EPA would implement the 
revised 8-hour ozone air quality standard issued by EPA in 1997, 
including the transition from implementation of the 1-hour standard to 
implementation of the 8-hour standard. (68 FR 32802). EPA issued draft 
regulatory text on August 6 (68 FR 46536), and on October 21 (68 FR 
60054) invited comments on alternative classification options. At this 
time, EPA is in the process of evaluating comments we received on the 
proposed implementation rule--and subsequent notices--and we expect to 
finalize the rule soon. At the same time, we are working with the 
states and tribes to finalize the 8-hour designations by April 15, 
2004. After the implementation rule is final and the 8-hour area 
designations are set, we will be able to fully evaluate how the 
transition to the revised 8-hour standard will impact the existing 
requirements to implement the 1-hour ozone standard.

V. 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 the voluntary reclassification would not result in any 
of the effects identified in Executive Order 12866 sec. 3(f). Voluntary 
reclassifications under 181(b)(3) of the CAA are based solely upon 
requests by the State and EPA is required under the CAA to grant them. 
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, reclassification cannot be said to impose 
a materially adverse impact on State, local, or tribal governments or 
communities. 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 (Pub. L. 104-4) for the following 
reasons: EPA is required to grant requests by States for voluntary 
reclassifications and such reclassifications in and of themselves do 
not impose any federal intergovernmental mandate. Several Indian tribes 
have reservations located within the boundaries of the SJVAB. EPA is 
responsible for the implementation of federal Clean Air Act programs in 
Indian country, including reclassifications. EPA has notified the 
affected tribal officials and will be consulting with all interested 
tribes, as provided for by Executive Order 13175 (65 FR 67249, November 
9, 2000). EPA will ensure that each tribe is contacted and given the 
opportunity to enter into consultation on a government-to-government 
basis. Because EPA is required to grant requests by States for 
voluntary reclassifications and such reclassifications in and of 
themselves do not impose any federal intergovernmental mandate, this 
rule also does not have Federalism implications as 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 is also not subject to Executive Order 13045 (62 FR 19885, April 
23, 1997), because it is not economically significant. As discussed 
above, a voluntary reclassification under section 181(b)(3) of the CAA 
is based solely on the request of a State and EPA is required to grant 
such a request. In this context, it would thus be inconsistent with 
applicable law for EPA, when it grants a State's request for a 
voluntary reclassification 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.).

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, National parks, Nitrogen oxides, Ozone, 
Volatile organic compounds, Wilderness areas.

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

    Dated: February 13, 2004.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 04-3823 Filed 2-20-04; 8:45 am]
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