Finding of Failure To Submit a Required State Implementation Plan
for Particulate Matter, California--San Joaquin Valley
Related Material
[Federal Register: March 18, 2002 (Volume 67, Number 52)]
[Rules and Regulations]
[Page 11925-11928]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18mr02-17]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA073-FON; FRL-7157-9]
Finding of Failure To Submit a Required State Implementation Plan
for Particulate Matter, California--San Joaquin Valley
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to find that California failed to
make a particulate matter (PM-10) nonattainment area state
implementation plan (SIP) submittal required for the San Joaquin Valley
Planning Area under the Clean Air Act (CAA or Act). The San Joaquin
Planning Area is a serious PM-10 nonattainment area. Under the Act,
states are required to submit SIPs providing for, among other things,
reasonable further progress and attainment of the PM-10 national
ambient air quality standards (NAAQS) in areas classified as serious.
The State of California submitted a serious area plan for the San
Joaquin Valley in 1997. On February 26, 2002, prior to action on the
plan by EPA, the State withdrew the submittal from the Agency's
consideration. As a result of that withdrawal, EPA is today finding
that California failed to make the PM-10 nonattainment area SIP
submittal required for the San Joaquin Valley Planning Area under the
Act.
This action triggers the 18-month time clock for mandatory
application of sanctions and 2-year time clock for a federal
implementation plan (FIP) under the Act. This action is consistent with
the CAA mechanism for assuring SIP submissions.
EFFECTIVE DATE: This action is effective as of February 28, 2002.
FOR FURTHER INFORMATION CONTACT: Celia Bloomfield, U. S. Environmental
Protection Agency, Region 9, Air Division (AIR-2), 75 Hawthorne Street,
San Francisco, CA 94105-3901, Telephone: (415) 947-4148.
SUPPLEMENTARY INFORMATION:
I. Background
A. CAA Planning Requirements
In 1990, Congress amended the Clean Air Act to address, among other
things, continued nonattainment of the PM-10 NAAQS.\1\ Public Law 101-
549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q (1991). On the
date of enactment of the 1990 Clean Air Act Amendments, PM-10 areas,
including the San Joaquin Valley planning area, meeting the
qualifications of section 107(d)(4)(B) of the amended Act, were
designated nonattainment by operation of law. See 56 FR 11101 (March
15, 1991). EPA codified the boundaries of the San Joaquin Valley PM-10
nonattainment area at 40 CFR 81.305.
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\1\ EPA revised the NAAQS for PM-10 on July 1, 1987 (52 FR
24672), replacing standards for total suspended particulates with
new standards applying only to particulate matter up to 10 microns
in diameter (PM-10). At that time, EPA established two PM-10
standards. The annual PM-10 standard is attained when the expected
annual arithmetic average of the 24-hour samples for a period of one
year does not exceed 50 micrograms per cubic meter (ug/
m3). The 24-hour PM-10 standard of 150 ug/m3
is attained if samples taken for 24-hour periods have no more than
one expected exceedance per year, averaged over 3 years. See 40 CFR
50.6 and 40 CFR part 50, appendix K.
Breathing particulate matter can cause significant health
effects, including an increase in respiratory illness and premature
death.
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Once an area is designated nonattainment for PM-10, section 188 of
the CAA outlines the process for classifying the area and establishing
the area's attainment deadline. In accordance with section 188(a), at
the time of designation, all PM-10 nonattainment areas, including the
San Joaquin Valley, were initially classified as moderate.
Section 188(b)(1) of the Act provides that moderate areas can
subsequently be reclassified as serious before the applicable moderate
area attainment date if at any time EPA determines that the area cannot
``practicably'' attain the PM-10 NAAQS by the moderate area attainment
deadline, December 31, 1994. On January 8, 1993 (58 FR 3334, 3337), EPA
made such a determination and reclassified the San Joaquin Valley
nonattainment area as serious.
In accordance with section 189(b)(2) of the Act, SIP revisions for
the San Joaquin Valley addressing the requirements for serious PM-10
nonattainment areas in section 189(b) and (c) of the Act were required
to be submitted by August 8, 1994 and 1994 and February 8, 1997.
The serious area PM-10 requirements, as they pertain to the San
Joaquin Valley nonattainment area, include: \2\
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\2\ EPA has concluded that certain moderate area PM-10
requirements continue to apply after an area has been reclassified
to serious. For a more detailed discussion of the planning
requirements applicable to the San Joaquin Valley and the
relationship between the moderate area and serious area requirements
after reclassification of the area to serious, see, e.g., 65 FR
37324 (June 14, 2000).
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(a) A comprehensive, accurate, and current inventory of actual
emissions from all sources of the relevant pollutant, here, PM-10 and
its precursors (CAA section 172(c)(3));
(b) A demonstration (including air quality modeling) that the plan
will provide for attainment as expeditiously as practicable but no
later than December 31, 2001, or an alternative demonstration that
attainment by that date would be impracticable and that the plan
provides for attainment by the most expeditious alternative date
practicable (CAA section 189(b)(1)(A)(i) and (ii));
(c) Quantitative milestones that are to be achieved every 3 years
and that demonstrate reasonable further progress toward attainment by
December 31, 2001 (CAA section 189(c)); and
(d) Provisions to assure that the best available control measures
(BACM), including best available control technology (BACT), shall be
implemented no later than four years after the reclassification of the
area to a serious nonattainment area (CAA section 189(b)(1)(B).
B. California's Serious Area PM-10 SIP Submittals for the San Joaquin
Valley
The State of California submitted on October 12, 1994 the ``San
Joaquin Valley PM-10 BACM SIP Submittal'' to EPA as a proposed revision
to the California PM-10 SIP. On July 17, 1997, CARB submitted to EPA
the serious area ``PM-10 Attainment Demonstration Plan'' (Serious PM-10
Plan). The 1997 Plan incorporated and superseded the 1994 San Joaquin
Valley PM-10 BACM SIP (1997 Plan, p. 1-1).
II. EPA Actions Relating to the San Joaquin Valley PM-10
Nonattainment Area
As discussed further in section III below, EPA intended to propose
to
[[Page 11926]]
disapprove the Serious PM-10 Plan for the San Joaquin Valley by March
1, 2002. However, just as the Agency was preparing the proposed
disapproval notice for signature by the Regional Administrator and
publication in the Federal Register, the State notified EPA that it had
withdrawn the Plan from consideration by the Agency. See letter (with
enclosures) from Michael Kenny, Executive Officer, California Air
Resources Board, to Wayne Nastri, Regional Administrator, EPA Region 9,
faxed to EPA on February 26, 2002. As a result, EPA is unable to move
forward with its proposed plan disapproval.
The CAA establishes specific consequences if EPA finds that a State
has failed to meet certain requirements of the CAA. Of particular
relevance here is CAA section 179(a)(1), the mandatory sanctions
provision. Section 179(a) sets forth four findings that form the basis
for application of a sanction. The first finding, that a State has
failed to submit a plan required under the CAA, is the finding relevant
to this rulemaking because withdrawal of a plan is tantamount to
failing to submit it.
If California has not made the required complete submittal (in this
case resubmittal) within 18 months of the effective date of today's
rulemaking, pursuant to CAA section 179(a) and 40 CFR 52.31, the offset
sanction identified in CAA section 179(b) will be applied in the
affected area. If the State has still not made a complete submission 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.\3\ The 18-month clock will stop and the sanctions will not take
effect if, within 18 months after the date of the finding, EPA finds
that the State has made a complete submittal of a plan addressing the
applicable serious area PM-10 requirements for the San Joaquin Valley.
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\3\ 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, CAA section 110(c)(1) provides that EPA must
promulgate a federal implementation plan (FIP) no later than 2 years
after a finding under section 179(a) unless EPA takes final action to
approve the submittal within 2 years of EPA's finding.
In a separate action, EPA is today also proposing to find that the
San Joaquin Valley failed to attain the PM-10 NAAQS by the statutory
deadline, December 31, 2001. EPA has the responsibility, pursuant to
sections 179(c) and 188(b)(2) of the Act, of determining within 6
months of the applicable attainment date (i.e., June 30, 2002), whether
the area has attained the annual and 24-hour NAAQS. Section 179(c)(1)
of the Act provides that these determinations are to be based upon an
area's ``air quality as of the attainment date,'' and section 188(b)(2)
is consistent with this requirement. Under CAA section 189(d), serious
PM-10 nonattainment areas that fail to attain are required to submit
within 12 months of the applicable attainment date, ``plan revisions
which provide for attainment of the PM-10 air quality standards and,
from the date of such submission until attainment, for an annual
reduction in PM-10 or PM-10 precursor emissions within the area of not
less than 5 percent of the amount of such emissions as reported in the
most recent inventory prepared for such area.''
III. Ongoing Planning Efforts in the San Joaquin Valley
As noted above, California now has an obligation to develop and
submit a new PM-10 attainment plan for the San Joaquin Valley. In order
to assist in these efforts, we outline below some of the bases on which
we intended to disapprove the Serious PM-10 Plan:\4\
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\4\ EPA's review of the 1997 Plan is based on section 189 of the
CAA; EPA guidance, known as the ``General Preamble,'' which
describes EPA's preliminary views on how the Agency intends to
review SIPs and SIP revisions submitted under title I of the Act,
and an Addendum to the General Preamble (``Addendum'') describing
the Agency's preliminary views on how it intends to review SIPs and
SIP revisions containing serious area PM-10 plan provisions. See
``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990,''
57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992) and
``State Implementation Plans for Serious PM-10 Nonattainment Areas,
and Attainment Date Waivers for PM-10 Nonattainment Areas Generally;
Addendum to the General Preamble for the Implementation of Title I
of the Clean Air Act Amendments of 1990,'' 59 FR 41998 (August 16,
1994).
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(a) The emissions inventory is neither accurate nor comprehensive
because, among other reasons, it contains no emissions for ammonia, a
PM-10 precursor that contributes to PM-10 exceedances; the inventory
combines together in one category a number of sources that constitute
83% of the total primary PM-10 inventory; the inventory is not
representative of a number of areas in the Valley; and there is no
supporting documentation for the motor vehicle emissions;
(b) The Plan does not provide for attainment of the annual standard
by December 31, 2001 as evidenced by NAAQS exceedances cited in our
proposed finding of failure to attain. For the 24-hour standard, the
State in the Plan sought an extension of the attainment deadline to
December 31, 2006 pursuant to CAA section 188(e), but did not provide
the supporting documentation required by that section;
(c) The Plan does not meet the requirements of CAA section
189(b)(1)(B) and EPA guidance for best available control measures
(BACM): the Plan does not provide for BACM for each significant source
category; it does not document the State's selection of BACM; and the
Plan's BACM commitments are not being met; and
(d) The Plan does not provide for quantitative milestones to be
achieved every three years until the area is redesignated attainment
and does not demonstrate reasonable further progress (RFP) toward
attainment by December 31, 2001.
Efforts are underway by the State and local air district to develop
a plan that will bring clean air to Valley residents as quickly as
possible. EPA is committed to working closely with the State and local
regulators, the regulated community, and the public to ensure that such
plan is technically sound and protective of public health.
IV. Final Action
A. Rule
EPA is today making a finding that the State of California failed
to submit a SIP revision addressing the CAA's serious area PM-10
requirements to attain the 24-hour and annual PM-10 NAAQS for the San
Joaquin Valley PM-10 nonattainment area.
B. Effective Date Under the Administrative Procedures Act
Today's action will be effective on February 28, 2002. Under the
Administrative Procedures Act (APA), 5 U.S.C. 553(d)(3), an agency
rulemaking may take effect before 30 days after the date of publication
in the Federal Register if an agency has good cause to mandate an
earlier effective date. Today's action concerns a SIP submission that
is already overdue and the State has been aware of applicable
provisions of the CAA relating to overdue SIPs. In addition, today's
action simply starts a ``clock'' that will not result in sanctions for
18 months, and that the State may ``turn off'' through the submission
of a complete SIP submittal. These reasons support an effective date
prior to 30 days after the date of publication.
[[Page 11927]]
C. Notice-and-Comment Under the Administrative Procedures Act
This final agency action is not subject to the notice-and-comment
requirements of the APA, 5 U.S.C. 533(b). EPA believes that because of
the limited time provided to make findings of failure to submit
regarding SIP submissions, Congress did not intend such findings to be
subject to notice-and-comment rulemaking. However, to the extent such
findings are subject to notice-and-comment rulemaking, EPA invokes the
good cause exception pursuant to the APA, 5 U.S.C. 553(d)(3). Notice
and comment are unnecessary because no EPA judgment is involved in
making a nonsubstantive finding of failure to submit SIPs required by
the CAA. Furthermore, providing notice and comment would be
impracticable because of the limited time provided under the statute
for making such determinations. Finally, notice and comment would be
contrary to the public interest because it would divert Agency
resources from the critical substantive review of submitted SIPs. See
58 FR 51270, 51272, note 17 (October 1, 1993); 59 FR 39832, 39853
(August 4, 1994).
V. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866, entitled ``Regulatory Planning and
Review.''
B. Executive Order 13211
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 Fed. Reg. 28355 (May 22, 2001)) because it
is not a significant regulatory action under Executive Order 12866.
C. Executive Order 13045
Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997), applies to any rule that: (1) Is determined to be ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
D. Executive Order 13132
Executive Order 13132, entitled Federalism (64 FR 43255, August 10,
1999) revokes and replaces Executive Orders 12612, Federalism and
12875, Enhancing the Intergovernmental Partnership. Executive Order
13132 requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
E. Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this rule.
F. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This final rule will not have a significant impact on a substantial
number of small entities because findings of failure to submit required
SIP revisions do not by themselves create any new requirements.
Therefore, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
G. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
private sector, of $100 million or more. Under section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule.
EPA has determined that today's action does not include a Federal
mandate that may result in estimated costs of $100 million or more to
either State, local, or tribal governments in the
[[Page 11928]]
aggregate, or to the private sector. The CAA provision discussed in
this notice requires states to submit SIPs. This notice merely provides
a finding that California has not met that requirement. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, result from this action.
H. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
EPA believes that VCS are inapplicable to today's action because it
does not require the public to perform activities conducive to the use
of VCS.
I. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This rule is not a ``major'' rule as defined by 5 U.S.C.
804(2).
J. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by May 17, 2002. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Particulate
matter, Intergovernmental relations, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 28, 2002.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 02-6270 Filed 3-15-02; 8:45 am]
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