[Federal Register Volume 74, Number 12 (Wednesday, January 21, 2009)]
[Rules and Regulations]
[Pages 3442-3444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1107]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2008-0862; FRL-8763-5]


Finding of Failure To Submit a Required State Implementation Plan 
Revision for 1-Hour Ozone Standard, California--San Joaquin Valley--
Reasonably Available Control Technology

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finding that California has failed to submit, for the 
San Joaquin Valley extreme 1-hour ozone nonattainment area, a State 
Implementation Plan (SIP) revision required by Clean Air Act (CAA) 
sections 172(c)(1), 182(b)(2) and 182(f). These CAA sections require 
that SIPs provide for the implementation of reasonably available 
control technology on major stationary sources of volatile organic 
compounds (VOC) and oxides of nitrogen (NOX) as well as 
certain other sources. Under the CAA, this finding triggers the 18-
month time clock for mandatory application of sanctions and 2-year time 
clock for a federal implementation plan.

DATES: Effective Date: This rule is effective on January 21, 2009.

ADDRESSES: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region 9, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the Regional Office location (e.g., 
copyrighted material). To inspect the hard copy materials, please 
schedule an appointment during normal business hours with the contact 
listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Andrew Steckel, EPA Region IX, (415) 
947-4115, [email protected].

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

I. Background

A. The San Joaquin Valley's 1-Hour Ozone Classification and Planning 
Requirements

    The San Joaquin Valley 1-hour ozone nonattainment area (SJV) 
includes the following counties in California's central valley: San 
Joaquin, Stanislaus, Merced, Madera, Fresno, Kings, Tulare, and part of 
Kern. 40 CFR 81.305. When the CAA was amended in 1990, each area of the 
country that was designated nonattainment for the 1-hour ozone national 
ambient air quality standard (NAAQS), including the SJV, 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 successive 
classification carries with it increasingly stringent requirements that 
build on the previous classification's requirements.
    Based on its air quality during the 1987-1989 period, the SJV 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 November 8, 2001, the SJV was reclassified as 
severe (effective December 10, 2001) for failure to attain the 1-hour 
ozone standard by the serious area attainment date. 66 FR 56476. CAA 
section 181(a) and (b)(2).
    On January 9, 2004, California requested that EPA reclassify the 
SJV from severe to extreme for the 1-hour ozone standard under the 
Act's voluntary reclassification provisions in section 181(b)(3). See 
letter from Catherine Witherspoon, ARB, to Wayne Nastri, EPA, January 
9, 2004. On April 16, 2004, we granted the State's request. 69 FR 
20550. In that action, we required the State to submit by November 15, 
2004 an extreme area plan for the SJV \1\ that provides for the 
attainment of the 1-hour ozone standard as expeditiously as 
practicable, but no later than November 15, 2010. We also stated that 
the plan must meet the specific provisions of CAA section 182(e). Under 
section 182(e), extreme area plans are required to meet the 
requirements for severe area plans and the additional requirements for 
extreme areas.\2\
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    \1\ There are several tribal areas in the SJV. Because 
California has not been approved to administer any CAA programs in 
Indian country, the requirement to submit a revised SIP did not 
include these tribal areas.
    \2\ The CAA specifically excludes certain serious area 
requirements from the extreme area requirements, e.g., the section 
182(c)(6), (7) and (8) provisions for new source review.
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    Among these requirements are the provisions for the implementation 
of reasonably available control technology (RACT) in sections 172(c)(1) 
and 182(b)(2). At a minimum, the CAA requires RACT for major VOC 
sources and for VOC source categories for which EPA has issued Control 
Techniques Guideline (CTG) documents. For extreme areas, such as the 
SJV, CAA section 182(e) defines a major source as a stationary source 
that emits or has the potential to emit 10 tons per year of VOC. CAA 
section 182(f) requires that RACT also apply to major stationary 
sources of NOX.

B. The San Joaquin Valley's 1-Hour Ozone RACT Provisions

    The SJV Air Pollution Control District (SJVAPCD or the District) 
adopted the ``Extreme Ozone Attainment Demonstration Plan'' on October 
8, 2004 and amended it on October 20, 2005 to, among other things, 
substitute for the original chapter a new ``Chapter 4: Control 
Strategy'' which includes the 1-hour ozone RACT provisions. The State 
submitted the plan and amendment on November 15, 2004 and March 6, 
2006, respectively. See letters from Catherine Witherspoon, ARB, to 
Wayne Nastri, EPA, November 15, 2004 and March 6, 2006. The plan and 
amendment, collectively, will be referred to as the ``2004 SIP'' in 
this rule.
    Section 4.2.5 of the 2004 SIP identified four specific source 
categories where further analysis and new or modified rules might be 
needed to meet the RACT requirements for sources down to the 10 tpy 
emissions level. The District concluded that only these categories 
would need additional work because its existing rules were already 
sufficiently stringent. As discussed below, the State withdrew the RACT 
provisions of the 2004 SIP in September, 2008.\3\
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    \3\ On October 16, 2008 we proposed to approve the balance of 
the 2004 SIP as well as additional documents comprising the State's 
1-hour ozone plan for the SJV. See 73 FR 61381.
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C. The San Joaquin Valley's 8-Hour Ozone Classification and Anti-
Backsliding Requirements

    In an April 30, 2004 final rule, EPA designated and classified 
areas of the country under the more protective 8-hour ozone standard 
codified in 40 CFR 50.10. The SJV was designated nonattainment and 
classified under title 1, part D, subpart 2 of the CAA as serious for 
the 8-hour standard. 69 FR 23858. On the same date, EPA also issued a 
final rule entitled ``Final Rule To Implement the 8-Hour Ozone National 
Ambient Air Quality Standard--Phase 1'' (Phase 1 Rule). 69 FR 23951. 
Among other matters, this rule revoked the 1-hour ozone standard in the 
SJV (as well as in most other areas of the country), effective June 15, 
2005. See 40 CFR 50.9(b); 69 FR 23951, 23996 and 70 FR 44470 (August 3, 
2005). The Phase 1 Rule also set forth anti-backsliding principles to 
ensure continued progress toward attainment of the 8-hour ozone 
standard by

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identifying which 1-hour ozone requirements remain applicable after 
revocation of that standard. One of the requirements retained, and thus 
continues to apply to the SJV, is the requirement to implement RACT. 
See 40 CFR 51.905(a)(1)(i) and 51.900(f)(1).\4\
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    \4\ These provisions were not affected by the decision of the 
U.S. Court of Appeals for the District of Columbia Circuit vacating 
portions of EPA's Phase 1 Rule. See South Coast Air Quality 
Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006) as clarified 
in South Coast Air Quality Management Dist. v. EPA, 489 F.3d 1295 
(D.C. Cir. 2007).
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    On November 29, 2005, EPA issued the ``Final Rule to Implement the 
8-Hour Ozone National Ambient Air Quality Standard--Phase 2'' (Phase 2 
Rule). 70 FR 71612. For areas classified under subpart 2, such as the 
SJV, the Phase 2 rule required submittal of a RACT SIP for the 8-hour 
standard by September 15, 2006. See 40 CFR 51.912(a). It also required 
submittal for subpart 2 areas of full attainment and rate of progress 
plans by June 15, 2007. See 40 CFR 51.908(a) and 51.910(a).

D. The San Joaquin Valley's 8-Hour Ozone RACT SIP

    The District adopted on August 17, 2006 and the State submitted as 
a SIP revision on January 31, 2007, an 8-hour ozone RACT demonstration 
addressing sources down to the 25 tpy level. See letter from Catherine 
Witherspoon, ARB, to Deborah Jordan, EPA, January 31, 2007. SJVAPCD 
also requested a voluntary reclassification to extreme for the 8-hour 
standard as allowed by CAA section 181(b)(3) and 40 CFR 51.903(b). On 
November 16, 2007, California submitted the District's 2007 8-hour 
ozone plan. See letter from James Goldstene, ARB, to Wayne Nastri, EPA. 
The State also concurred with the District's request for a voluntary 
reclassification to extreme. Once granted, the major source threshold 
under the 8-hour standard will drop to 10 tpy of either VOC or 
NOX and thus be the same for both the 1-hour and 8-hour 
ozone standards.\5\
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    \5\ Under CAA section 181(b)(3), we must grant a state's 
voluntary request to ``bump up'' an ozone nonattainment area in that 
state to a higher classification. The bump-up is effective only 
after EPA publishes a rule in the Federal Register formally granting 
the request. We are in the process of preparing that rule.
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    In September 2008, the District began a comprehensive reevaluation 
of its rules to determine their compliance with the RACT requirements. 
This reevaluation is in part to address issues that EPA has raised 
regarding the District's 2006 8-hour ozone RACT SIP and in part to 
assure that the rules cover sources in the SJV down to the extreme area 
major source threshold of 10 tpy. See letter from Andrew Steckel, EPA, 
to George Heinen, SJVAPCD, May 6, 2008. The District's intent is to 
take any needed rule revisions to its Board for adoption by Spring, 
2009. See letter from Deborah Jordan, EPA, to Seyed Sadredin, SJVAPCD, 
September 9, 2008.

E. Withdrawal of the 1-Hour Ozone RACT Provisions

    On September 5, 2008, the State formally withdrew the RACT portion 
of the 2004 SIP, specifically section 4.2.5, indicating that the 
District would satisfy its continuing RACT obligation for the 1-hour 
ozone standard with a revised 8-hour ozone RACT SIP that it is 
currently developing. Letter from James N. Goldstene, ARB, to Wayne 
Nastri, EPA, with enclosures, September 5, 2008. As stated above, we 
have proposed approval of the balance of the SIP revisions submitted by 
the State to address the 1-hour ozone standard for the SJV. See 73 FR 
61381.

II. Final Action

A. Finding of Failure To Submit Required SIP Revision

    As a result of the withdrawal of section 4.2.5 of the 2004 SIP, we 
are today making a finding that California has failed to submit a SIP 
revision providing for the implementation of RACT as required by CAA 
sections 172(c)(1), 182(b)(2) and 182(f) in the San Joaquin Valley 
extreme 1-hour ozone nonattainment area.
    If California does not submit a complete plan revision, including 
all required RACT rules and a supporting RACT demonstration, to meet 
CAA sections 172(c)(1), 182(b)(2) and 182(f) within 18 months of the 
effective date of today's finding, the offset sanction identified in 
CAA section 179(b) will be applied in the affected area. Section 179(b) 
and 40 CFR 52.31. 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.\6\ The State can end these sanction clocks or lift any imposed 
sanctions by making a complete submittal addressing the RACT 
requirements for the San Joaquin Valley 1-hour ozone extreme area.
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    \6\ In a 1994 rulemaking, EPA established the Agency's selection 
of the sequence of these two sanctions: The offset sanction under 
section 179(b)(2) shall apply at 18 months, followed 6 months later 
by the highway sanction under section 179(b)(1) of the Act. EPA does 
not choose to deviate from this presumptive sequence in this 
instance. For more details on the timing and implementation of the 
sanctions, see 59 FR 39832 (August 4, 1994), promulgating 40 CFR 
52.31, ``Selection of sequence of mandatory sanctions for findings 
made pursuant to section 179 of the Clean Air Act.''
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    In addition to the sanctions, CAA section 110(c)(1) provides that 
EPA must promulgate a federal implementation plan addressing the 1-hour 
ozone RACT requirements in the SJV no later than 2 years after today's 
finding unless we approve the State's RACT submittal within that time.

B. Effective Date under the Administrative Procedures Act

    Today's action will be effective on January 21, 2009. 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 specify an 
earlier effective date. This action concerns a required CAA submittal 
that is already overdue. We have previously cautioned California that 
the SIP submittal was overdue and that we were considering taking this 
action. In addition, this action simply starts a ``clock'' that will 
not result in sanctions against the State for 18 months, and that the 
State may ``turn off'' by making 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 is a final action that 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 by the CAA to make findings of 
failure to submit, 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, we invoke the good cause 
exception pursuant to the APA, 5 U.S.C. 553(b)(3)(B). Notice and 
comment are unnecessary because no EPA judgment is involved in making a 
non-substantive finding of failure to submit SIPs required by the CAA. 
Furthermore, notice and comment would be contrary to the public 
interest because it would divert EPA resources from the critical 
substantive review of complete SIPs. See 58 FR 51270, 51272, note 17 
(October 1, 1993); 59 FR 39832, 39853 (August 4, 1994).

V. Administrative Requirements

A. Executive Orders

    This final action is not a ``significant regulatory action'' as 
defined in Executive Order 12866 ``Regulatory Planning and Review'' (58 
FR 51735

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(October 4, 1993)) and therefore not subject to review under this 
Executive Order.
    This final action is not a ``significant energy action'' as defined 
in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy.
    This final action 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 as defined in Executive Order 12866 and because we have no 
reason to believe the environmental health or safety risks addressed by 
this action present a disproportionate risk to children.
    This final action is not subject to Executive Order 13132, 
``Federalism'' (64 FR 43255 (August 10, 1999)). It will not have 
substantial direct effects on the State, on the relationship between 
the national government and the State, or on the distribution of power 
and responsibilities among the various levels of government. The CAA 
established the scheme whereby states take the lead in developing plans 
to meet the NAAQS and the Federal Government acts as a backstop where 
states fail to take the required actions. This rule will not modify the 
relationship of the State and EPA for purposes of developing programs 
to implement the NAAQS.
    This final action is not subject to Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249 (November 6, 2000)). 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.

B. Federal Acts

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities.
    This final rule is not subject to the RFA because it was not 
subject to notice and comment rulemaking under the APA or any other 
statute. In addition we have invoked the ``good cause'' exception to 
notice and comment rulemaking under 5 U.S.C. 553(b) for this rule.
    Under section 202 of the Unfunded Mandates Reform Act of 1995, we 
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. 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 rule requires states to submit SIPs, and this rule 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.
    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 (15 U.S.C. 272) directs EPA to use ``voluntary 
consensus standards'' (VCS) in its regulatory activities unless doing 
so would be inconsistent with applicable law or otherwise impractical. 
VCS are technical standards that are developed or adopted by VCS 
bodies. This action does not involve technical standards; therefore, we 
did not consider the use of any VCS.
    The Congressional Review Act, 5 U.S.C. 801 et seq., 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) and will be effective January 21, 2009.

C. Petitions for Judicial Review

    Under CAA section 307(b)(1), petitions for judicial review of this 
action must be filed in the United States Court of Appeals for the 
appropriate circuit by March 23, 2009. 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 CAA section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovermental relations, Ozone, Volatile organic 
compounds.

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

    Dated: January 8, 2009.
Laura Yoshii,
Acting Regional Administrator, Region IX.
 [FR Doc. E9-1107 Filed 1-16-09; 8:45 am]
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