[Federal Register Volume 69, Number 74 (Friday, April 16, 2004)]
[Rules and Regulations]
[Pages 20550-20554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8677]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[CA 112-RECLAS, FRL-7648-8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action 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.
    We are also taking final action to require the State to submit by 
November 15, 2004 an extreme area ozone plan for the areas within the 
SJVAB under the State's jurisdiction that provides for the attainment 
of the ozone National Ambient Air Quality Standard (``NAAQS'') as 
expeditiously as practicable, but no later than November 15, 2010. This 
plan must meet the specific provisions of CAA section 182(e). The State 
must also submit within 12 months of the effective date of this rule, 
revised Title V and New Source Review rules that reflect the extreme 
area statutory requirements.
    Once effective, this reclassification of the SJVAB terminates the 
federal offset sanction that was imposed on March 18, 2004 and also 
terminates the highway sanction and federal implementation plan clocks. 
The sanction and FIP clocks 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.

EFFECTIVE DATE: This rule is effective on May 17, 2004.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. CA 112-RECLAS. Docket materials are available in hard copy at EPA's 
Region IX office during normal business hours by appointment. The 
address is U.S. EPA Region IX--Air Division, 75 Hawthorne Street, San 
Francisco, CA 94105-3901. This Regional Office is open from 8 am to 5 
pm, Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: David Wampler, EPA Region IX, Air 
Division (AIR-3), 75 Hawthorne Street, San Francisco, CA, 94105; 
telephone: (415) 972-3975; fax: (415) 947-3579; e-mail: 
[email protected].

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

I. Proposed Action

    On February 23, 2004 (69 FR 8126), EPA proposed to grant a request 
by the State of California to voluntarily reclassify under Clean Air 
Act (``CAA'') section 181(b)(3), the San Joaquin Valley Ozone 
Nonattainment Area (``San Joaquin Valley Air Basin'' or ``SJVAB'') from 
a severe to an extreme nonattainment area for the 1-hour ozone 
standard.\1,\ \2\ In addition, we proposed that the State submit, by no 
later than October 1, 2004, an extreme area plan addressing the 
requirements of CAA section 182(e) and 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.
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    \1\ Letter from Catherine Witherspoon, Executive Officer, 
California Air Resources Board (``CARB''), to Mr. Wayne Nastri, 
Regional Administrator, EPA Region IX, dated January 9, 2004. In the 
letter, CARB transmits to EPA and endorses San Joaquin Valley 
Unified Air Pollution Control District (''District'') Resolution No. 
03-12-10 requesting the reclassification.
    \2\ In the very near future, EPA expects to issue new 
regulations to implement the 8-hour ozone standard. At that time we 
will be able to fully evaluate how the transition to the 8-hour 
standard will impact existing requirements to implement the 1-hour 
ozone standard.
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    There are several Indian reservations located within the SJVAB. In 
our proposed action, we noted that states typically have no 
jurisdiction under the CAA in Indian country and that California has 
not been approved by EPA to administer any CAA programs in Indian 
country. We also stated that, as a matter of EPA's federal 
implementation of relevant provisions of the CAA over Indian country 
within the SJVAB, we believe these areas of Indian country should be 
reclassified to extreme. We contacted all seven tribes with 
reservations located within the SJVAB to inform them that we intend to 
include their reservations in the reclassification and to provide the 
tribes the opportunity for consultation. None of the seven tribes we 
contacted requested consultation or submitted comments on our proposed 
action.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we received three comment letters.\3\ Our response 
immediately follows our summary of each comment letter.
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    \3\ On April 5, 2004, EPA received an additional comment letter 
from ChevronTexaco dated March 25, 2004 and postmarked April 1. 
Although that letter is outside the comment period, EPA has decided 
to include it in the docket for this rule. ChevronTexaco makes the 
same comment as the Western States Petroleum Association (``WSPA'') 
(discussed below) regarding additional time for the District to 
submit required SIP revisions and the extreme area plan.
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    Comment #1: On behalf of the Association of Irritated Residents 
(``AIR''), The Center on Race Poverty and The Environment requested 
that EPA approve the State's reclassification request with a 
contingency that would allow us to rescind the extreme

[[Page 20551]]

classification and revert the SJVAB to a severe nonattainment area if 
the California State Court of Appeal invalidates the District Board 
resolution requesting the reclassification (03-12-10, December 
18, 2003), or otherwise holds that the District violated State 
procedural law when it adopted the resolution. AIR added that the 
contingency should also restart any pending sanctions and FIP clocks 
and re-apply sanctions already in place. To justify their request, AIR 
cited their anticipated appeal of the State Superior Court decision.\4\
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    \4\ On March 22, 2004 the Kern County Superior Court denied 
AIR's Petition for Writ of Mandate and Complaint for Declaratory 
Relief in Association of Irritated Residents v. San Joaquin Valley 
Unified APCD, Case No. S-1500-CV 252128 KCT.
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    EPA Response to Comment #1: EPA does not believe it is necessary to 
attach the contingency requested by AIR to the final reclassification 
of the SJVAB to extreme. In this instance, EPA is granting the January 
9, 2004 request of the State under CAA section 181(b)(3) for a 
voluntary reclassification. In the event that the State Court of Appeal 
overturns the March 22, 2004 Kern County Superior Court's decision and 
invalidates the District Board's December 2003 resolution, State law 
would determine what effect, if any, such a result would have on the 
State's reclassification request. EPA, in consultation with CARB, will 
evaluate the impact of any State appellate decision on the 
reclassification and the pre-existing sanctions clocks and take any 
appropriate action, including rescission. Moreover, under the 
Administrative Procedure Act, any interested person can petition EPA 
for the repeal of any rule. 5 U.S.C. 553(e).
    Comment #2: The District asked that the submittal date for the 1-
hour extreme area ozone plan be delayed 45 days from the October 1, 
2004 date we proposed to a new date of November 15, 2004.\5\
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    \5\ The District also stated that they could meet our proposed 
schedule that they submit, through CARB, necessary revisions to 
their Title V and NSR rules within 12 months from the effective date 
of the final rule.
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    The District cited two reasons for needing additional time to 
submit the extreme area plan. First, the District stated that continued 
model performance concerns for Central California Ozone Study 
(``CCOS'') ozone episodes have delayed the availability of reliable 
model runs predicting year 2010 ozone levels for the San Joaquin Valley 
Air Basin. Second, the District said they needed additional time to 
conduct their environmental review of the plan under the California 
Environmental Quality Act (``CEQA''). While the District acknowledged 
uncertainty about the extent of the CEQA review, they stated that the 
timing of the CEQA approval must be dovetailed with the plan adoption 
which would most likely occur in August or September 2004, with CARB 
approval in October 2004.
    EPA Response to Comment #2: EPA understands from the District's 
comment letter that the concerns regarding the modeling runs were 
resolved during the week of March 22, 2004 and that, as a result, the 
requested November 15, 2004 submittal deadline can be met. We also 
acknowledge the desirability for the CEQA review and the plan adoption 
to be coordinated. Therefore, we believe that the additional 45 days 
sought by the District for submittal of the extreme area plan to EPA is 
warranted.
    Comment #3: WSPA supported the reclassification request and our 
determination that the current sanction and FIP clocks, based on 
requirements for severe ozone nonattainment areas, will stop upon the 
effective date of the reclassification. WSPA, however, questioned our 
proposed schedules for submission of the extreme area ozone plan and 
revised NSR and Title V rules and stated that the schedules did not 
provide adequate time for preparation and adoption of the plan and 
amended rules. Instead of the schedules we proposed, WSPA requested 
that EPA establish one deadline for all required submittals and that 
the deadline be 18 months from the effective date of the final rule.
    WSPA stated more time is necessary because EPA's proposed deadline 
does not allow sufficient time for the District to rely on the best 
possible information in completing the plan development and adoption 
process. WSPA cited existing performance problems associated with ozone 
episodes assessed in the CCOS program and concerns regarding the 
emissions inventory.
    WSPA also requested that the same 18-month submittal date for the 
plan be established for the necessary NSR and Title V rule revisions. 
WSPA claimed that it was appropriate to set the deadline 18 months from 
the effective date of the rule because doing so would: (1) Be 
consistent with the suggested timeline for the extreme area plan 
submittal; and (2) help assure the District is not saddled with 
unnecessarily stringent federal NSR and Title V applicability 
provisions if the extreme area requirements would not apply in the 
District under EPA's final rule for transition to the 8-hour ozone 
standard.
    EPA Response to Comment #3: EPA appreciates WSPA's support of the 
reclassification and we acknowledge their request that we require the 
extreme area plan and the NSR and Title V revisions be submitted 18 
months from the effective date of the rule. As discussed below, 
however, we do not believe that the additional time is warranted.
    First, regarding the plan submittal, WSPA's request for the full 18 
months is not warranted in this case because the District has been 
working on the extreme area plan since 2002 and has indicated that they 
can meet the November 15, 2004 deadline. EPA believes that development 
of the plan should not be slowed or delayed any further than absolutely 
necessary and should remain a priority for all involved agencies. Thus, 
although we are not granting the full 18 months as requested by WSPA, 
we do believe, based on the District's comments above, that the 45 
additional days requested by the District to submit the attainment 
demonstration are warranted.
    In response to WSPA's request to extend the due date for the NSR 
and Title V rule revisions, we do not believe that an additional 6 
months is necessary. Again, we are not granting WSPA's request because 
the District has indicated that they can meet a deadline of 12 months 
from the effective date of the reclassification.
    Regarding WSPA's comment that additional data analysis is needed to 
confirm possible performance problems associated with the CCOS program, 
we recognize that CCOS data may not have advanced at the pace we had 
expected, but EPA does not believe this should prevent the State and 
District from moving forward with the attainment demonstration for the 
SJVAB.

III. Consequences of Reclassification

A. Extreme Area Plan Requirements

    Under CAA section 182(e), extreme area plans are required to meet 
all the requirements for severe area plans \6\ 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

[[Page 20552]]

the attainment date;\7\ (5) clean fuels for boilers as required for at 
CAA section 182(e)(3); and contingency measures. The plan must address 
the general nonattainment plan requirements in CAA section 172(c). The 
extreme area plan for the SJVAB must also contain adopted regulations 
and may also contain enforceable commitments to the extent consistent 
with Agency guidance, 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.
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    \6\ The CAA specifically excludes certain severe area 
requirements from the extreme area requirements, e.g., section 
182(c)(6),(7) and (8).
    \7\ The CAA does not allow the state to use the provision at CAA 
section 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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B. NSR and Title V Program Revisions

    In addition to the required plan revisions discussed above, the 
District must revise its 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.

C. Sanctions and FIP

    For the reasons stated in our proposed rule, upon the effective 
date of today's final action, the federal offset sanction that was 
imposed on March 18, 2004 pursuant to CAA section 179(a) will be 
terminated. In addition, our action terminates the highway sanction and 
FIP clocks. These sanction and FIP clocks were started as a result of 
the Agency's October 2, 2002 finding that the State failed to submit 
the severe area attainment demonstration.

IV. EPA Action

    After fully considering all comments received on the proposed rule, 
EPA is taking final action to grant the State of California's request 
to voluntarily reclassify the SJVAB from a severe to an extreme 1-hour 
ozone nonattainment area. We are also taking final action to require 
the State to submit by November 15, 2004, an extreme area ozone plan 
for the areas within the SJVAB under the State's jurisdiction that 
provides for the attainment of the ozone NAAQS as expeditiously as 
practicable, but no later than November 15, 2010. This plan must meet, 
among other general provisions of the CAA, the specific provisions of 
section 182(e), portions of which are discussed above. The State must 
also submit by May 16, 2005, revised Title V and New Source Review 
rules that reflect the extreme area requirements.

V. Statutory and Executive Order Reviews

    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 section 3(f). 
Voluntary reclassifications under section 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. At the time of our 
proposed action, EPA notified all the affected tribal officials, and 
provided each the opportunity for consultation on a government-to-
government basis, as provided for by Executive Order 13175 (65 FR 
67249, November 9, 2000). None of the tribes we contacted requested 
consultation or submitted comments on our proposed action.
    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). For these same 
reasons, this rule also does not have Federalism implications because 
it does not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). These actions are also not subject to Executive Order 13045 
(62 FR 19885, April 23, 1997), because they are not economically 
significant.
    As discussed above, 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.).
    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

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is published in the Federal Register. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by June 15, 2004.
    Filing a petition for reconsideration by the Administrator of this 
final rule does not affect the finality of this rule for the purposes 
of judicial review nor does it extend the time within which a petition 
for judicial review may be filed, and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: April 8, 2004.
Laura Yoshii,
Acting Regional Administrator, Region IX.

0
Part 81 of chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

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


0
2. In Sec.  81.305 the ``California-Ozone (1-Hour Standard)'' table is 
amended by revising the entry for ``San Joaquin Valley Area:'' to read 
as follows:


Sec.  81.305  California.

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                                                           California--Ozone [1-Hour Standard]
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                                                                          Designation                                     Classification
                   Designated area                    --------------------------------------------------------------------------------------------------
                                                            Date \1\                   Type                   Date \1\                   Type
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                                                                      * * * * * * *
San Joaquin Valley Area:                               ..................                                                    ...........................
    Fresno County....................................           11/15/90   Nonattainment...............           05/17/04   Extreme
    Kern County (part)...............................
That portion of Kern County that lies west and north            11/15/90   Nonattainment...............           05/17/04   Extreme
 of a line described below:
Beginning at the Kern-Los Angeles County boundary and  ..................
 running north and east along the northwest boundary
 of the Rancho La Pliebre Land Grant to the point of
 intersection with the range line common to Range 16
 West and Range 17 West, San Bernardino Base and
 Meridian; north along the range line to the point of
 intersection with the Rancho El Tejon Land Grant
 boundary; then southeast, northeast, and northwest
 along the boundary of the Rancho El Tejon Grant to
 the northwest corner of Section 3, Township 11
 North, Range 17 West; then west 1.2 miles; then
 north to the Rancho El Tejon Land Grant boundary;
 then northwest along the Rancho El Tejon line to the
 southeast corner of Section 34, Township 32 South,
 Range 30 East, Mount Diablo Base and Meridian; then
 north to the northwest corner of Section 35,
 Township 31 South, Range 30 East; then northeast
 along the boundary of the Rancho El Tejon Land Grant
 to the southwest corner of Section 18, Township 31
 South, Range 31 East; then east to the southeast
 corner of Section 13, Township 31 South, Range 31
 East; then north along the range line common to
 Range 31 East and Range 32 East, Mount Diablo Base
 and Meridian, to the northwest corner of Section 6,
 Township 29 South, Range 32 East; then east to the
 southwest corner of Section 31, Township 28 South,
 Range 32 East; then north along the range line
 common to Range 31 East and Range 32 East to the
 northwest corner of Section 6, Township 28 South,
 Range 32 East, then west to the southeast corner of
 Section 36, Township 27 South, Range 31 East, then
 north along the range line common to Range 31 East
 and Range 32 East to the Kern-Tulare County
 boundary:
    Kings County.....................................           11/15/90   Nonattainment...............           05/17/04   Extreme
    Madera County....................................           11/15/90   Nonattainment...............           05/17/04   Extreme
    Merced County....................................           11/15/90   Nonattainment...............           05/17/04   Extreme
    San Joaquin County...............................           11/15/90   Nonattainment...............           05/17/04   Extreme
    Stanislaus County................................           11/15/90   Nonattainment...............           05/17/04   Extreme
    Tulare County....................................           11/15/90   Nonattainment...............           05/17/04   Extreme
 
                                                                      * * * * * * *
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[FR Doc. 04-8677 Filed 4-15-04; 8:45 am]
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