Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 21717 

to the public interest, shall take effect at 

such time as the agency promulgating 

the rule determines. 5 U.S.C. 808(2). 

EPA has made such a good cause 

finding, including the reasons therefor, 

and established an effective date of 

April 22, 2004. 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). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by June 21, 2004. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this rule for the 

purpose of judicial review nor does it 

extend the time within which 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, Intergovernmental 

regulations, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: April 1, 2004. 

Laura Yoshii, 

Acting Regional Administrator, Region IX. 

[FR Doc. 04–9140 Filed 4–21–04; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[CA258–0442(A); FRL–7645–7] 

Determination of Attainment of the 1- 

Hour Ozone Standard; Determination 

Regarding Applicability of Certain 

Clean Air Act Requirements; Approval 

and Promulgation of Ozone Attainment 

Plan; San Francisco Bay Area, CA 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is determining that the 

San Francisco Bay Area (Bay Area) 

ozone nonattainment area has attained 

the 1-hour ozone national ambient air 

quality standard (NAAQS) by the 

deadline required by the Clean Air Act 

(CAA), September 20, 2006. Based on 

this determination, we are also 

determining that the CAA’s 

requirements for reasonable further 

progress and attainment demonstrations 

and for contingency measures for the 1- 

hour ozone standard are not applicable 

to the area for so long as the Bay Area 

continues to attain the 1-hour ozone 

standard. 

In addition, EPA is approving the 

following elements of the 2001 ozone 

attainment plan for the Bay Area (2001 

Plan): Emissions inventory, reasonably 

available control measures (RACM); 

commitments to adopt and implement 

specific control measures; motor vehicle 

emissions budgets (MVEBs); and 

commitments for further study 

measures. 

In 2001, EPA disapproved certain 

components of the 1999 ozone 

attainment plan for the Bay Area: The 

RACM demonstration, the attainment 

demonstration, and the MVEBs. Because 

of this disapproval the 2 to 1 offset 

sanction under CAA section 179(b)(2) 

was imposed in the Bay Area on April 

22, 2003. Based on the proposed 

approval of these elements of the 2001 

Plan, EPA made an interim final 

determination that resulted in a stay of 

the offset sanction and deferral of the 

highway sanction. EPA’s approval of 

RACM and the MVEBs in the 2001 Plan 

terminates the sanctions clock for those 

plan elements. 

Based on the attainment 

determination for the Bay Area, 

elsewhere in this Federal Register EPA 

is taking interim final action to stay the 

offset sanction and defer the highway 

sanction triggered by the attainment 

demonstration disapproval for as long as 

the area continues to attain the 1-hour 

ozone standard because that plan 

requirement has been suspended. 

DATES: Effective Date: This rule is 

effective on May 24, 2004. 

ADDRESSES: You can inspect copies of 

the administrative record (docket 

number CA258–0442(A)) for this action 

at EPA’s Region 9 office during normal 

business hours by appointment. The 

address is U.S. EPA Region IX—Air 

Division, 75 Hawthorne Street, San 

Francisco, CA. 

FOR FURTHER INFORMATION CONTACT: 

Ginger Vagenas, EPA Region IX, (415) 

972–3964, vagenas.ginger@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

II. Attainment Finding for the Bay Area 

A. Attainment Finding 

B. EPA’s Responses to Comments on the 

Proposed Finding of Attainment 

1. Comments Regarding Timing of the 

Finding of Attainment 

2. Comments Regarding the Data on Which 

the Attainment Finding Is Based 

3. Comments Regarding the Impact of an 

Attainment Finding on the 2001 Plan 

and on Air Quality in the Bay Area 

C. Applicability of Clean Air Act Planning 

Requirements in Areas Attaining the 1- 

Hour Ozone Standard 

D. EPA Responses to Comments on 

Applicability of Clean Air Act 

Requirements 

1. Comments Regarding EPA’s Clean Data 

Policy 

2. Comments Regarding the Applicability 

of EPA Policies to the Bay Area 

E. Effects of the Attainment Finding on the 

Bay Area and of a Future Violation of the 

1-Hour Ozone NAAQS 

III. Approval of Bay Area 2001 Plan 

A. Approval of Bay Area 2001 Plan 

B. EPA’s Responses to Comments on the 

Proposed Approval of the 2001 Plan 

1. Comments on the Proposed Approval of 

the Emissions Inventory 

2. Comments on the Proposed Approval of 

RACM 

3. Comments on the Proposed Approval of 

the Control Measure Commitments 

4. Comments on the Downwind Transport 

of Air Pollution 

5. Comments on Additional Plan Elements 

6. Comments on the Impact of the State 

Law and Court Orders 

7. Comments on the Interim Final 

Determination 

IV. Effect of the Attainment Determination 

and 2001 Plan Action on Transportation 

Conformity 

V. Statutory and Executive Order Reviews 

I. Background 

Upon enactment of the Clean Air Act 

Amendments of 1990, the Bay Area was 

classified as a moderate nonattainment 

area for the 1-hour ozone NAAQS. 56 

FR 56694 (November 6, 1991). EPA 

redesignated the Bay Area to attainment 

in 1995, based on then current air 

quality data (60 FR 27029, May 22, 

1995), and subsequently redesignated 

the area back to nonattainment without 

classification on July 10, 1998 (63 FR 

37258), following renewed violations of 

the 1-hour ozone standard. Upon the 

Bay Area’s redesignation to 

nonattainment, we required the State to 

submit a state implementation plan 

(SIP) addressing applicable CAA 

provisions, including a demonstration 

of attainment as expeditiously as 

practicable but no later than November 

15, 2000. 

The Bay Area Air Quality 

Management District (District or 

BAAQMD), along with its co-lead 

agencies—the Metropolitan 

Transportation Commission and the 

21718 Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 

1See January 30, 2004 letter from Catherine 

Witherspoon, Executive Officer, CARB, to Wayne 

Nastri, Regional Administrator, U.S. EPA Region 9. 

This letter is subsequently referred to as the 1/30/ 

04 Witherspoon letter. 

2See generally 57 FR 13506 (April 16, 1992) and 

Memorandum from D. Kent Berry, Acting Director, 

Air Quality Management Division, EPA, to Regional 

Air Office Directors; ‘‘Procedures for Processing 

Bump Ups and Extensions for Marginal Ozone 

Nonattainment Areas,’’ February 3, 1994 (Berry 

memorandum). While explicitly applicable only to 

marginal areas, the general procedures for 

evaluating attainment in this memorandum apply 

regardless of the initial classification of an area 

because all findings of attainment are made 

pursuant to the same procedures. 

3See November 12, 2003 email from Mark 

Stoelting, BAAQMD, to Catherine Brown, EPA, and 

Catherine Brown’s November 21, 2003 response. 

Association of Bay Area Governments—

prepared a 1-hour ozone attainment 

plan, which was submitted to EPA by 

the California Air Resources Board 

(CARB) on August 13, 1999. On 

September 20, 2001 (66 FR 48340), we 

approved the emissions inventories, 

reasonable further progress (RFP) 

provisions, control measure 

commitments, and contingency 

measures in that plan. In the same 

rulemaking, we disapproved the 

remaining portions of the SIP, i.e., the 

attainment demonstration, MVEB, and 

RACM demonstration, issued a finding 

that the area failed to attain by the 

applicable deadline, and set a new 

attainment deadline of as expeditiously 

as practicable but no later than 

September 20, 2006. The effective date 

of the final disapproval (October 22, 

2001) started an 18-month clock for the 

imposition of sanctions pursuant to 

CAA section 179(a) and 40 CFR 52.31, 

and a 2-year clock for EPA to 

promulgate a federal implementation 

plan (FIP) under CAA section 110(c)(1). 

62 FR 43796 (August 15, 1997). The Bay 

Area became subject to the 2 to 1 offset 

sanction under CAA section 179(b)(2) 

on April 22, 2003. 

On November 30, 2001, CARB 

submitted the 2001 Plan for the Bay 

Area addressing the new attainment 

deadline. On February 14, 2002, we 

found the MVEBs in the 2001 Plan 

adequate. 67 FR 8017 (February 21, 

2002). On July 16, 2003 (68 FR 42174), 

we proposed to approve the following 

elements of the 2001 Plan: Emissions 

inventory, RACM demonstration, 

attainment assessment, MVEBs, and 

commitments to adopt control measures 

and to adopt and submit a plan revision 

by April 15, 2004 based on new 

modeling. On the same date, we issued 

an interim final determination that the 

2001 Plan corrects the deficiencies in 

the 1999 Plan, thereby staying the CAA 

section 179 offset sanction and deferring 

the imposition of the highway sanction 

triggered by our September 20, 2001 

disapproval. 68 FR 42172. 

On October 31, 2003 (68 FR 62041), 

we proposed to find that the San 

Francisco Bay Area ozone 

nonattainment area had attained the 1- 

hour ozone standard by its CAA 

mandated attainment date of September 

20, 2006. Based on this proposed 

finding, we also proposed to suspend 

the attainment demonstration, RFP and 

contingency measure requirements of 

the CAA for the Bay Area for so long as 

the area continues to attain the 1-hour 

ozone standard. 

On January 30, 2004, CARB withdrew 

the attainment assessment, the RFP 

demonstration, the contingency 

measures, and the technical correction 

to the attainment assessment (Appendix 

F) in the 2001 Plan from EPA’s 

consideration as revisions to the Bay 

Area SIP.1 In the same letter, the State 

also specifically requested that EPA 

approve the motor vehicle emissions 

budgets in the 2001 Plan. 

II. Attainment Finding for the Bay Area 

A. Attainment Finding 

In this action, EPA is finalizing its 

proposed finding of attainment for the 

Bay Area. The 1-hour ozone NAAQS is 

0.12 parts per million (ppm) not to be 

exceeded on average more than one day 

per year over any three-year period. 40 

CFR 50.9 and appendix H. We 

determine if an area has attained the 1- 

hour standard by calculating, at each 

monitor, the average number of days 

over the standard per year during the 

preceding three-year period.2 We use all 

available, quality assured monitoring 

data and we generally base our 

determination of attainment or failure to 

attain on the area’s design value as of its 

applicable attainment deadline. In this 

case, the attainment deadline 

(September 20, 2006) has not been 

reached, so we are making our 

attainment finding based on the Bay 

Area’s current air quality data and 

design value, which demonstrate 

attainment of the 1-hour standard. See 

section II.E. for a discussion of 

consequences of future violations. 

The design value for the Bay Area for 

2001–2003 was 0.123 ppm, which is 

below the 0.12 ppm standard using the 

applicable rounding convention 

discussed below. No monitor in the Bay 

Area recorded an average of more than 

one exceedance of the 1-hour ozone 

standard per year during the 2001 to 

2003 period. Documentation of the 

monitoring data and design value 

calculation can be found in the docket 

for this rulemaking. 

Our October 31, 2003 proposed 

attainment finding was based on all 

available air quality data collected from 

the monitoring network, which we 

determined met our regulations for state 

air quality monitoring networks. On 

November 12, 2003, the District 

submitted an interim certification that 

the data had been quality assured.3 On 

December 1, 2003, Jack Broadbent, 

Executive Officer/Air Pollution Control 

Officer, BAAQMD, sent a letter to 

Deborah Jordan, EPA, (12/1/03 

Broadbent letter) transmitting the 

District’s formal certification in 

accordance with 40 CFR part 58 that the 

ozone ambient air monitoring data 

submitted to EPA are complete and 

accurate. The quality assurance process 

did not result in any changes to the 

data. 

Because the Bay Area’s design value 

was below the 0.12 ppm 1-hour ozone 

standard and the area averaged one or 

fewer exceedances per year at each 

monitor for the 2001 to 2003 period, we 

find that the Bay Area attained the 1- 

hour ozone standard by its CAA 

mandated attainment deadline of 

September 20, 2006. Based on this final 

attainment determination, we are also 

determining that the CAA requirements 

for RFP, an attainment demonstration 

and contingency measures for the 1- 

hour ozone standard are not applicable 

to the Bay Area for so long as the area 

continues to attain the standard. For a 

discussion of EPA’s policy and legal 

basis for suspending these requirements, 

see our proposed attainment 

determination at 68 FR 62044. 

Finally, based on our final attainment 

determination, elsewhere in this 

Federal Register, we are taking interim 

final action to stay the offset sanction 

and defer the highway sanction for the 

attainment demonstration because that 

plan requirement has been suspended. 

The stay/deferral will remain in effect 

for as long as the area continues to 

attain the 1-hour ozone standard. 

B. EPA’s Responses to Comments on the 

Proposed Finding of Attainment 

EPA’s proposed action provided a 30- 

day public comment period. During this 

period, we received comments from 

seven parties. We summarize the most 

significant comments and provide our 

responses below; the entire set of 

comments and responses can be found 

in the docket in a separate Response to 

Comment document (RTC). 

1. Comments Regarding Timing of the 

Finding of Attainment 

Comment 1: Several commenters 

expressed support for a determination 

that the Bay Area has attained the 1- 

Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 21719 

4This memo is available online at http:// 

www.epa.gov/ttn/naaqs/ozone/ozonetech/ 

940904.pdf. 

hour ozone standard. Another 

commenter concurred with the 

determination that Bay Area’s 

monitoring network meets or exceeds 

EPA’s specified requirements. In 

contrast, other commenters pointed to 

the Bay Area’s prior history of slipping 

back out of attainment following EPA 

action redesignating the area to 

attainment in 1995 and recent year-toyear differences in design values as a 

reason for exercising caution in making 

an attainment finding. One commenter 

stated that, in light of the small margin 

of attainment, EPA should scrutinize the 

foundation for the asserted finding of 

attainment. 

Response: A determination that an 

area has attained the standard is based 

on an objective review of air quality 

data. The 1-hour ozone NAAQS is 0.12 

ppm, not to be exceeded on average 

more than one day per year over any 

three year period. A review of the data 

from the prior three years (2001–2003) 

indicates that the Bay Area has met this 

standard. 68 FR 62042–62043. 

The redesignation of an area to 

attainment under CAA section 

107(d)(3)(E) is a separate process from a 

finding of attainment. Unlike an 

attainment finding where we need only 

determine that the area has had the 

prerequisite number of clean years, a 

redesignation requires multiple 

determinations. Under section 

107(d)(3)(E) these determinations are: 

1. We must determine, at the time of 

the redesignation, that the area has 

attained the relevant NAAQS. 

2. The state must have a fully 

approved SIP for the area. 

3. We must determine that the 

improvements in air quality are due to 

permanent and enforceable reductions 

in emissions resulting from 

implementation of the SIP and 

applicable federal regulations and other 

permanent and enforceable reductions. 

4. We must have fully approved a 

maintenance plan for the area under 

section 175A. 

5. The state must have met all the 

nonattainment area requirements 

applicable to the area. 

2. Comments Regarding the Data on 

Which the Attainment Finding is Based 

Comment 2: The data do not support 

a finding of attainment. The District 

previously reported two separate 

exceedances on July 10, 2002, of 160 

parts per billion (ppb) and 151 ppb, 

respectively, and stated that EPA should 

recognize the July 10, 2002 reading of 

151 ppb at 4 p.m. as a separate 

exceedance from the 160 parts per 

billion (ppb) exceedance from earlier 

that day. As of December 1, 2003, the 

District’s website stated that the region 

experienced three violations of the 1- 

hour ozone NAAQS at Livermore in 

2002. 

Response: An area’s ozone attainment 

status is determined by calculating the 

average number of days over a threeyear period on which it exceeds the 

ozone standard. See 40 CFR 50.9(a) and 

40 CFR part 50, Appendix H. Therefore, 

multiple hourly exceedances on any 

single day count as only one 

exceedance. The Bay Area’s website 

apparently mistakenly counted a 

reading of 0.123 ppm at Livermore on 

August 9, 2002 as an exceedance of the 

1-hour ozone NAAQS. As explained at 

length in the proposed finding of 

attainment (68 FR 62043, October 31, 

2003), and discussed below (see 

response to comment 6), rounding 

conventions and the form of the 

standard dictate that values between 

0.120 and 0.124, inclusive, are to be 

rounded to 0.12 parts per million. 

Comment 3: According to EPA 

guidance, an attainment finding should 

be based on certified data, however, the 

proposal was published before the data 

were certified. EPA’s guidance demands 

quality assured data from states to 

establish evidence of attainment. The 

EPA memorandum ‘‘Procedures for 

Processing Requests to Redesignate 

Areas to Attainment’’ signed by John 

Calcagni, Director Air Quality 

Management Division, OAQPS, dated 

September 4, 1992 (9/4/92 Calcagni 

memo)4 states that ‘‘[t]he data should be 

collected and quality-assured in 

accordance with 40 CFR 58 and 

recorded in the Aerometric Information 

Retrieval System (AIRS) in order for it 

to be available for the public to review.’’

EPA has cited this memo as applicable 

authority for the proposed rulemaking, 

and cannot pick and choose portions as 

applicable and inapplicable without 

explanation. The Administrative 

Procedure Act (APA) and CAA direct 

that EPA’s decision-making must be 

based on data and information in the 

record and available to the public, and 

the law of the Ninth Circuit clearly 

requires that when EPA acts on SIPs, it 

must comply with its own rules. 

Delaney v. EPA, 898 F.2d 687, 693 (9th 

Cir. 1990). The data and information 

purportedly supporting the proposed 

action are simply unavailable, or were 

unavailable during the comment period. 

Response: Air quality data are 

available to EPA and the general public 

on a real-time basis from the District’s 

website. EPA based its proposal on this 

publicly available monitoring data that 

indicated the Bay Area had attained the 

1-hour ozone standard. While the data 

for 2003 had not yet been quality 

assured at the time of the proposal, the 

District maintains a monitoring network 

that meets or exceeds all applicable 

requirements. See 68 FR 62042–62043 

and ‘‘System Audit of the Ambient 

Monitoring Program of Bay Area Air 

Quality Management District,’’ available 

online at http://www.epa.gov/region09/ 

air/sfbayoz/tsd1003.pdf. EPA had no 

reason to believe the quality assurance 

process would indicate there had been 

problems with the data and so 

proceeded with the proposed finding. 

On November 12, 2003, the District 

notified EPA that it had quality-assured 

the data from the 2003 ozone season and 

submitted it to AIRS. See footnote 3. 

Thus the quality-assured data were 

accessible to the public on that date, i.e., 

during the public comment period. The 

November 12, 2003 notification was 

followed by the 12/1/03 Broadbent 

letter, which confirmed that the data 

had been collected and quality assured 

in conformance with 40 CFR part 58. 

The quality assurance process did not 

result in any changes to the data. While 

the proposal was published shortly 

before the data were certified, this final 

rulemaking is based on data that were 

collected and quality assured in 

conformance with EPA regulations. 

Comment 4: Improved air quality in 

the Bay Area is not the product of real, 

permanent, surplus, and enforceable 

emissions reductions, as required by the 

CAA and EPA policy and guidance. It 

came as a result of a significant 

economic downturn that reduced, 

temporarily, emissions from all sectors 

of the emissions inventory and the 

weather had not been particularly ozone 

conducive. Because recent Bay Area 

ozone levels result from a combination 

of temporarily favorable economic and 

meteorological conditions rather than 

documentation of the effectiveness of 

permanent and enforceable measures, 

an attainment finding is inappropriate 

and obligations for RFP, attainment 

demonstration and contingency measure 

should not be suspended in the Bay 

Area. 

Response: The requirement to 

determine that clean air is the result of 

permanent and enforceable emissions 

reductions is a criterion for the 

redesignation of an area to attainment 

under CAA section 107(d)(3)(E). It need 

not be met for a finding of attainment 

or for the suspension of the associated 

RFP, attainment demonstration, and 

contingency measure requirements. 

That aside, we believe that the finding 

of attainment itself addresses in part the 

21720 Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 

5See 40 CFR 50.9(a) and footnote 8 of the October 

31, 2003 proposal (68 FR 62043). Also see 

‘‘Guideline for the Interpretation of Ozone Air 

Quality Standards.’’ U.S. Environmental Protection 

Agency, Office of Air, Noise and Radiation, Office 

of Air Quality Planning and Standards, Research 

Triangle Park, North Carolina 27711, January 1979, 

EPA–450/4–79–003, OAQPS No. 1.2–108. In the 

1979 guidance document, EPA states, ‘‘[i]t should be 

noted that the stated level of the standard is taken 

as defining the number of significant figures to be 

used in comparisons with the standard. For 

example, a standard level of .12 ppm means that 

measurements are to be rounded to two decimal 

places (.005 rounds up), and, therefore, .125 ppm 

is the smallest concentration value in excess of the 

level of the standard.’’ This document is available 

on line at http://www.epa.gov/ttn/naaqs/ozone/ 

ozonetech/guide-o3.htm. 

6Memorandum from John S. Seitz, Director, 

OAQPS, EPA, to Regional Air Directors, entitled 

‘‘Reasonable Further Progress, Attainment 

concern about unusually favorable 

meteorological conditions. We have 

long recognized that meteorological 

conditions have a profound effect on 

ambient ozone concentrations. In setting 

the current 1-hour ozone standard in 

1979, we changed the form of the 

standard, i.e., the criterion for 

determining attainment, from a 

deterministic form ‘‘no more than once 

per year’’ to a statistical form ‘‘when the 

expected number of days per year is less 

than or equal to one’’ over a three-year 

period in order to properly account for 

the random nature of meteorological 

variations. The three-year period for 

averaging the expected number of 

exceedances was a reasoned balance 

between evening out meteorological 

effects and properly addressing real 

changes in emission levels. See the 

proposed and final actions promulgating 

the current 1-hour ozone standard at 43 

FR 26962, 26968 (June 22, 1978) and 44 

FR 8202, 8218 (February 8, 1979). 

Comment 5: Even if EPA has the 

discretion to dismiss SIP requirements 

upon a finding of attainment, it would 

be an abuse of discretion to dismiss 

these requirements without a finding 

that the reductions are permanent and 

enforceable in the circumstances of the 

Bay Area’s recession and weather 

conditions. Given the narrow margin of 

attainment, it is inappropriate to relax 

the SIP through elimination of the RFP, 

attainment demonstration, and 

contingency measures requirements. 

Response: As noted above, EPA is not 

dismissing or eliminating these 

requirements. Rather, we interpret the 

requirements for an attainment 

demonstration, an RFP demonstration 

and contingency measures as 

inapplicable to an area that has attained 

the standard, but only for so long as the 

area remains in attainment. The 

requirements will again apply if such an 

area violates the standard. In order to be 

redesignated to attainment of the ozone 

standard, the State will be required to 

demonstrate, among other things, that 

the reductions contributing to the 

attainment record are permanent and 

enforceable, and that atypical weather 

conditions were not responsible for the 

improvement in air quality. CAA 

section 107(d)(3)(E)(iii). 

Comment 6: EPA’s methodology for 

rounding off conflicts with Congress’s 

intent that 0.12 ppm should be read as 

0.120 ppm, as evidenced by section 181 

of the CAA, at Table 1. See also 40 CFR 

50.9, which states that the equivalent 

unit for the standard is 235 ug/m3. 

(Livermore’s design value is 245 ug/m3). 

Finally, the specific regulation for the 

ozone standard contains no provision 

for rounding off, unlike the regulation 

for CO. (Compare 40 CFR 50.9 with 40 

CFR 50.8(d)). 

Response: In our proposed finding of 

attainment, we explained that the 1- 

hour ozone NAAQS is 0.12 parts-permillion; it is not expressed in parts-perbillion, nor does it contain three digits.5

Because air quality monitors and 

models express results in three digits, 

EPA applies the established rounding 

convention to determine whether the 

measurements meet or exceed the 

standard. Under the rounding 

convention, 0.005 rounds upward and 

0.004 rounds downward, so that a 0.124 

parts per billion (ppb) ozone level meets 

the NAAQS of 0.12 ppm, while a 0.125 

parts per billion (ppb) ozone level 

rounds up to 0.13 ppm and thus exceeds 

the NAAQS. The use of rounding 

neither changes the NAAQS nor relaxes 

it. 

The commenter’s reliance on the 

design values set forth in Table 1 of 

section 181(a)(1) is misplaced. These 

design values are used to classify 

nonattainment areas, not to determine 

whether an area has attained the 

standard. See American Trucking 

Associations, Inc. v. EPA, 175 F.3d 

1027, 1047 (D.C. Cir. 1999) (‘‘* * * 

although the numbers in the 

classification table are based upon the 

0.12 ppm ozone NAAQS, they are 

neither equivalent to nor a codification 

of the NAAQS.’’). 

EPA’s procedure for calculating the 

design value for classification purposes 

is different from the analysis used for 

purposes of determining attainment. 

Under EPA’s classification procedures, 

it is possible for an area that lacks a full 

set of monitoring data to be designated 

nonattainment and to have a design 

value of less than 0.125 parts per billion 

(ppb). Under these circumstances, the 

area would be classified as a marginal 

nonattainment area. See Memorandum 

from William G. Laxton dated June 18, 

1990, ‘‘Ozone and Carbon Monoxide 

Design Value Calculations’’ (Laxton 

Memo), available at http:// 

www.epa.gov.ttn/naaqs/ozone/ 

ozonetech/laxton.htm. The procedures 

set forth in the Laxton Memo constitute 

the ‘‘interpretation methodology issued 

by the Administrator most recently 

before November 15, 1990.’’ Finally, the 

translation of the standard from ppm to 

ug/m3 is provided for informational 

purposes only and does not constitute 

an alternative form of the standard. 

3. Comments Regarding the Impact of an 

Attainment Finding on the 2001 Plan 

and on Air Quality in the Bay Area 

Comment 7: EPA should direct the 

District to include in the next SIP 

submittal a safety margin of additional 

emissions reductions to compensate for 

the narrow margin of attainment. EPA 

should also mandate that the 2004 SIP 

contain sufficient contingency measures 

to achieve emissions reductions totaling 

3% of the emissions inventory should 

the region experience a subsequent 

violation. See ‘‘General Preamble for the 

Interpretation of Title I of the Clean Air 

Act Amendments of 1990’’ (General 

Preamble), 57 FR 13510–11, April 16, 

1992. EPA should institute 

extraordinary measures to respond 

immediately in the event of a future 

violation. The Bay Area’s design value, 

which is just 2 parts per billion (ppb) 

below the attainment level, indicates 

that contingency measures must be 

included in the upcoming SIP. Only the 

requirement of federally enforceable 

contingency measures can provide any 

reasonable assurance that air pollution 

control efforts and emissions reductions 

will continue aggressively in the likely 

event that the area subsequently exceeds 

the 1-hour ozone standard once again. 

EPA should change course and take 

final action on the 2001 SIP as 

submitted and require appropriate 

emissions inventory adjustments to 

incorporate the effect of episodic control 

measures and reduced emissions 

activity from the economic recession 

experienced during modeled episode 

days. 

Response: As noted above, our 

determination that the Bay Area has 

attained the standard is based on an 

objective review of air quality data. No 

information has been presented that 

casts doubt on the accuracy of the data, 

therefore we are proceeding with our 

finding of attainment. Our guidance 

provides for the suspension of the 

attainment demonstration, RFP and 

contingency measure requirements 

applicable to the Bay Area upon such a 

finding.6 In our proposed action on the 

Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 21721 

Demonstrations, and Related Requirements for 

Ozone Nonattainment Areas Meeting the Ozone 

National Ambient Air Quality Standard,’’ May 10, 

1995 (http://www.epa.gov/ttn/oarpg/t1/ 

memoranda/clean15.pdf). This memo is 

subsequently referred to as the ‘‘Clean Data Policy’’

or the ‘‘Seitz memo.’’

7 1/30/04 Witherspoon letter. 

8On June 2, 2003, EPA published in the Federal 

Register a proposed rule to implement the 8-hour 

ozone NAAQS. 68 FR 32803. 

9 In an effort to establish a more reliable database 

for ozone analysis, the Central California Ozone 

Study (CCOS), a large field measurement program, 

was conducted in the summer of 2000. 

10 In the District’s October 16, 2003 letter to 

Catherine Witherspoon, CARB (10/16/03 Norton 

letter), Executive Officer William Norton states that 

the District ‘‘want[s] to reduce local ozone and 

transport, and to maintain progress toward the state 

standard.’’ In a January 16, 2004 letter to Catherine 

Witherspoon, CARB (1/16/04 co-lead agencies 

letter), the directors of the co-lead agencies 

recognize that they ‘‘have a continuing obligation to 

reduce emissions further in order to attain and 

maintain all national ambient air quality standards 

and to make expeditious progress toward California 

standards.’’ They state their commitment to 

‘‘continuing [their] ozone control program in order 

to reduce ozone levels in the Bay Area and to 

address transport to downwind regions.’’ In closing, 

they acknowledge the ‘‘need to make progress 

toward the California 1-hour standard, address 

transport to downwind regions, and meet the 

national 8-hour ozone standard.’’ In the 1/30/04 

Witherspoon letter, the State recognizes ‘‘the 

importance of a continuing commitment to further 

emission reductions that will * * * contribute to 

better air quality in downwind areas.’’

2001 plan, we proposed to approve as 

part of the attainment assessment the 

commitment by CARB and the co-lead 

agencies to submit a SIP revision by 

April 15, 2004 (68 FR 42181, July 16, 

2003). Consistent with the suspension of 

the attainment demonstration 

requirement, the State has withdrawn 

the commitment in the 2001 plan to 

submit a 2004 SIP revision from EPA 

consideration.7 Therefore EPA cannot 

act on this commitment and, as a result, 

there is currently no federally 

enforceable requirement for a 2004 SIP. 

The co-lead agencies have, however, 

expressed their intent to shift their focus 

to developing a maintenance plan to 

support a redesignation request if EPA 

finalizes its finding of attainment. 

Should the Bay Area violate the 1-hour 

standard prior to redesignation, the 

attainment demonstration, RFP and 

contingency measure requirements will 

be once again imposed. Also note that, 

among other things, an approvable 

maintenance plan must include 

contingency measures that are designed 

to promptly address a violation of the 

standard. Finally, even without the 

adoption of additional measures, ozone 

precursor emissions in the Bay Area 

will continue to decline as a result of 

previously adopted state, local, and 

federal measures. Between 2003 and 

2006, emissions of oxides of nitrogen 

(NOX) will decline 81 tpd and volatile 

organic compound (VOC) emissions will 

decline 52 tpd. 2001 Plan, p. 32–33. 

These numbers do not include 

additional reductions to be achieved by 

the implementation of Smog Check 2 in 

the Bay Area, which was mandated by 

the California legislature after adoption 

of the 2001 Plan. 

Comment 8: While EPA’s Notice of 

Proposed Rulemaking on the 

determination of attainment specified 

three SIP elements that ‘‘no longer apply 

to the Bay Area’’ EPA did not elect to 

change or withdraw the District’s 

outstanding enforceable commitment to 

secure 26 tpd of additional VOC 

emissions reductions. In light of the 

data indicating attainment, there could 

be some question whether all of the 

enforceable commitments remain valid, 

but EPA did not in the Notice of 

Proposed Rulemaking, authorize the 

rescission of the commitment to achieve 

an additional 26 tpd of reductions. 

Given the restatement of commitment 

by State and local agencies and EPA’s 

failure to specify which, if any of the 

State’s prior ‘‘enforceable commitments’’

should not be included in the 2004 midcourse review, the District must 

completely fulfill its ‘‘enforceable 

commitments’’ as pledged as part of the 

2001 SIP submittal package. EPA has 

endorsed this concept in the proposed 

8-hr implementation policy. Other 

commenters stated that EPA should 

expressly determine that the 26 tpd 

reduction is no longer necessary for the 

Bay Area to reach attainment. 

Response: In our proposed finding of 

attainment, we discussed the CAA 

requirements that would be suspended 

should we finalize the proposal. 68 FR 

62044. Those requirements are the RFP, 

the attainment demonstration, and 

contingency measure requirements. The 

suspension of these requirements, and 

our rationale supporting it, apply so 

long as the area continues to attain the 

1-hour ozone NAAQS. Consistent with 

the suspension of the attainment 

demonstration requirement, the State 

has withdrawn the attainment 

assessment in the 2001 Plan, which 

includes the associated commitments to 

undertake a mid-course review and to 

achieve additional reductions as 

necessary to attain the 1-hour ozone 

standard. See 1/30/04 Witherspoon 

letter. A mid-course review, the purpose 

of which is to evaluate progress toward 

attainment, and a commitment to adopt 

the measures necessary to attain the 

standard are unnecessary in an area that 

has attained the standard. Finally we 

note that our final implementation 

guidance for the 8-hour standard has not 

yet been issued.8

Comment 9: A loss of progress could 

occur as a result of a finding of 

attainment. The proposed finding of 

attainment provides an incentive for 

areas to defer SIP preparation in hopes 

that they might achieve clean data 

before the deadline to perform a 

deferred SIP element preparation 

arrives. Part of the State’s rationale for 

employing the mid-course review was 

the absence of competent modeling to 

demonstrate attainment in the Bay Area. 

EPA’s proposed action undermines the 

State’s prior commitment to use the 

more technically robust CCOS 9 model 

and more recent data to both model 

attainment in the Bay Area and quantify 

the effect of Bay Area emissions upon 

downwind district attainment. As the 

District has finally developed a model 

through the CCOS process, EPA must 

insist on the completion of the modeling 

exercise in the 2004 mid-course review 

SIP to identify issues associated with 

the federal 1-hour ozone standard, the 

state ozone standard, the 8 hour federal 

ozone standard, and transport issues. 

Response: We disagree with the 

commenter’s assessment of the impact 

of the attainment finding. The State and 

the co-lead agencies have all 

acknowledged the need to address the 

state ozone standard, the federal 8-hour 

standard, and downwind transport of air 

pollution and have pledged to continue 

their efforts.10 Despite the commenters’

concerns, work on the CCOS modeling 

does not appear to have slackened. In 

fact, given the technical challenges, EPA 

is satisfied that work is progressing as 

quickly as could be expected. Should 

the Bay Area once again violate the 

standard, new modeling based on CCOS 

data would be available to support an 

attainment demonstration. In addition, 

much of the work being done to prepare 

a maintenance plan and to prepare the 

state clean air plan will be transferrable 

to the nonattainment requirements that 

would once again apply. 

Comment 10: The steps and delays 

that are embedded in EPA’s proposed 

approach in the event of a future 

exceedance verify that EPA’s future 

actions will be ineffective at bringing 

the region back onto the path of true 

attainment. EPA should make a 

commitment in its final notice to act 

immediately upon the observance of a 

single Livermore violation because, 

even if the EPA were to move swiftly, 

it could take three years to get a new 

attainment plan in place (6 months for 

rulemaking, 12 months for plan 

submittal, 18 months to act). 

Commenters fear that EPA will wait 

until the end of the ozone season, then 

21722 Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 

11 Illinois State Chamber of Commerce v. USEPA, 

775 F.2d 1141 (7th Cir. 1985) and State of Ohio v. 

Ruckelshaus, 776 F.2d 1333 (6th Cir. 1985). 

12See footnote 10. 

13On February 14, 2002, EPA found the motor 

vehicle emission budgets in the 2001 Plan to be 

adequate for transportation conformity purposes. 

EPA’s letter to CARB conveying the adequacy 

finding, along with responses to public comments 

regarding the adequacy of the budgets can be found 

at http://www.epa.gov/region09/air/sfbayoz/#0202. 

await quality assured data, which would 

add 12 months to the process. 

Commenters request that EPA specify 

the protocol for making a determination 

of a violation in the event of an 

exceedance [at Livermore] in July, 2004. 

Response: As described in the 

proposed rule, should the Bay Area 

violate the 1-hour standard prior to EPA 

redesignating the area to attainment, we 

will notify the State that we have 

determined that the area is no longer 

attaining the 1-hour standard. We will 

also provide notice to the public in the 

Federal Register and will at that time 

indicate what pertinent SIP provisions 

apply and when a SIP revision 

addressing those provisions must be 

submitted. The public will have an 

opportunity to comment on our 

determinations. In the event of an 

exceedance, EPA will work closely with 

the District to facilitate prompt quality 

assurance of the data. We also note we 

would not be precluded from initiating 

the above process in advance of 

submittal of quality assured data. In 

setting the due date for submittal of the 

SIP revisions, EPA will consider all the 

relevant circumstances. For example, 

should the Bay Area violate the 1-hour 

standard, EPA will take into account the 

history of the area and the date on 

which the Bay Area violates the 1-hour 

standard. 

Comment 11: The CAA states that an 

area shall be classified as nonattainment 

if the area contributes to ambient air 

quality in a nearby area that does not 

meet the federal standard (CAA section 

107(d)(1)(A)(i)). Activities in the Bay 

Area that generate ozone precursors 

translate into substantial contributions 

to ozone nonattainment status in the 

Sacramento Valley and San Joaquin 

Valley air basins; CARB has concluded 

that pollution generated in the Bay Area 

has a significant, and at least in one 

case, overwhelming impact on the 

Sacramento region. 

Another commenter noted that the 

federal CAA and case law establish that 

downwind ozone transport concerns are 

an appropriate basis to deny designation 

of ozone attainment status to an upwind 

area even if monitoring limited to the 

upwind area shows compliance. Air 

district boundaries established to 

regulate localized pollutants cannot be 

used to ignore adverse effects which 

emanate beyond these boundaries when 

highly mobile pollutants such as ozone 

precursors are involved. Until EPA takes 

regulatory action to designate the Bay 

Area nonattainment for the 8-hour 

ozone standard it is premature to rely on 

that designation to deal with as yet 

unresolved transport issues. Because the 

Bay Area plan has not addressed 

transport contribution to downwind 

areas it is premature to relieve the area 

of the nonattainment designation and 

reasonably available control technology 

(RACT) and other requirements that are 

needed to demonstrate attainment in the 

downwind areas. 

Response: CAA section 107(d)(1)(A)(i) 

applies to the submission by state 

governors of initial designations 

following promulgation of new or 

revised standards and is thus unrelated 

to determinations of attainment. 

Similarly, the cases cited 11 concern the 

permissible scope of EPA’s authority in 

redesignating areas from nonattainment 

to attainment. Moreover, in determining 

whether an area has attained the 1-hour 

ozone standard, EPA does not evaluate 

whether it meets all other requirements 

of the Act. Thus, while EPA does 

interpret CAA section 110(a)(2)(A) and 

(D) to require States to address intrastate 

and interstate transport, EPA does not 

need to determine whether the State has 

regulated emissions from the Bay Area 

for purposes of transport in determining 

whether the Bay Area has attained the 

ozone standard. To the extent that 

emissions from the Bay Area 

significantly contribute to 

nonattainment or maintenance of the 

ozone standard in downwind areas, the 

State will need to address those 

contributing emissions in the context of 

an attainment demonstration for the 

downwind areas. Further, as a result of 

our attainment finding, certain CAA 

requirements are suspended but will 

once again be imposed should the Bay 

Area violate the standard prior to 

redesignation. As described in our 

response to comment 1, a redesignation 

to attainment requires that several 

additional requirements be fulfilled. 

Finally, note that in today’s action, EPA 

is approving the RACT control measure 

commitments included in the 2001 

Plan. 

Comment 12: Under the Clean Data 

Policy, EPA must ensure that the Bay 

Area submits the CCOS local attainment 

demonstration and regional assessment 

of the influence of Bay Area transported 

air pollution. (Seitz memo, page 7.) 

Response: The Seitz memo provides 

that ‘‘[d]eterminations made by EPA in 

accordance with the [Clean Data Policy] 

would not shield an area from EPA 

action to require emission reductions 

from sources in the area where there is 

evidence, such as photochemical grid 

modeling, showing that emissions from 

sources in the area contribute 

significantly to nonattainment in, or 

interfere with maintenance by, other 

nonattainment areas. EPA has the 

authority under the Act (* * * section 

110(a)(2)(A) in the case of intrastate 

areas) to require emissions reductions if 

necessary and appropriate to deal with 

transport situations.’’ For many years, 

the effort to address transport has been 

stymied by an inability to define the 

transport problem due to lack of data. At 

the present time, the Bay Area District, 

several downwind areas, and CARB are 

engaged in an effort to refine modeling 

based on the CCOS. Once complete, the 

modeling should provide a better 

understanding of the degree to which air 

pollution generated in the Bay Area 

affects air quality in downwind areas. 

The co-lead agencies and CARB have 

acknowledged the need to address 

transport 12 in addition to their 

obligations to achieve the state 1-hr and 

new federal 8-hr ozone standard. As a 

result, EPA fully expects that diligent 

efforts to finalize CCOS modeling will 

continue and that those results will be 

used to revise SIPs if appropriate. 

Comment 13: Commenters expressed 

concern with the fate of the motor 

vehicle emissions budgets submitted 

with the 2001 Plan,13 and the 

conformity and emissions consequence 

if those budgets were not approved. One 

commenter noted that the conformity 

budgets are an important tool to limit 

transported emissions from the Bay 

Area and argued that the budgets must 

remain in effect, if not be made more 

stringent, to further mitigate transported 

emissions. Another commenter urged 

that EPA maintain MVEBs consistent 

with attainment during periods of 

normal economic activity until the area 

has qualified for redesignation. 

Reponse: As noted above and 

discussed in section IV below, the colead agencies and CARB have requested 

that EPA fully approve the motor 

vehicle emissions budgets in the 2001 

Plan. In this action, EPA is finalizing its 

approval of those budgets. 

C. Applicability of Clean Air Act 

Planning Requirements in Areas 

Attaining the 1-Hour Ozone Standard 

When we redesignated the Bay Area 

back to nonattainment in 1998, we 

concluded that the area became subject 

to the provisions of subpart 1 rather 

than subpart 2 of part D of the Clean Air 

Act. 63 FR 37258 (July 10, 1998). CAA 

Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 21723 

14We have also explained at length in other 

actions our rationale for the reasonableness of this 

interpretation of the Act and incorporate those 

explanations by reference here. See 61 FR 20458 

(May 7, 1996) (Cleveland-Akron-Lorrain, Ohio); 60 

FR 36723 (July 18, 1995) (Salt Lake and Davis 

Counties, Utah); 60 FR 37366 (July 20, 1995) and 

61 FR 31832–33 (June 21, 1996) (Grand Rapids, MI). 

Our interpretation has also been upheld by the U.S. 

Court of Appeals for the Tenth Circuit in Sierra 

Club v. EPA, 99 F.3d 1551 (10th Cir. 1996). 

subpart 1 at section 172(c) requires 

states to submit plans with certain 

revisions that are tied to the attainment 

demonstration: 

1. A demonstration that the plan will 

result in annual incremental reductions 

in emissions of ozone precursors for the 

purposes of ensuring attainment of the 

1-hour ozone standard by 2006. This 

provision is known as the reasonable 

further progress (RFP) demonstration or 

plan, CAA section 172(c)(2); 

2. A demonstration that the plan will 

result in attainment of the 1-hour ozone 

standard as expeditiously as practicable 

but not later than September 20, 2006, 

CAA section 172(c)(1); 

3. Contingency measures that will be 

undertaken if the area fails to make 

reasonable further progress to attain the 

standard by the applicable attainment 

date, CAA section 172(c)(9). 

We believe that it is reasonable to 

interpret the CAA to not require these 

provisions for ozone nonattainment 

areas that are determined to be meeting 

the 1-hour ozone standard. We discuss 

our reasoning in the Seitz memo, in the 

proposal for this action, and below in 

our response to comments.14

We received comments on the 

proposed attainment determination 

regarding the applicability of certain 

CAA planning requirements to the Bay 

Area. The comments and our responses 

are summarized below. 

D. EPA Responses to Comments 

Regarding Applicability of Clean Air Act 

Requirements 

1. Comments Regarding EPA’s Clean 

Data Policy 

Comment 14: Several commenters 

concurred with EPA’s determination 

that attainment demonstration, 

contingency measures and RFP 

requirements do not apply. In contrast, 

a number of commenters contend that 

EPA has no authority in this situation to 

eliminate SIP requirements without a 

formal redesignation. Congress created a 

process for determining whether a 

region should be treated differently as to 

its requirements for planning and 

pollution controls if the region 

monitored attainment. That process is 

called redesignation under section 

107(d)(3) of the Act. Redesignation 

actions involve a more complete and 

robust State submittal, and have the 

additional security of data collected 

during the period between the end of 

the attainment demonstration period 

and EPA’s action on redesignation. 

Under the Act designation determines 

the applicable controls. There is nothing 

in the CAA that explicitly states that 

upon only a finding of attainment, the 

EPA can jettison SIP requirements. EPA 

says it is implicit, but that would 

require splitting apart an explicit 

redesignation process. Congress did not 

provide for that, and such an action 

would frustrate the purposes of the Act 

and redesignation process. 

Response: In today’s action, we are 

finalizing our determination that the 

Bay Area has attained the 1-hour ozone 

standard by its statutory deadline of 

September 20, 2006 as demonstrated by 

three consecutive years without a 

violation. As a result, we are also 

finalizing our determination that certain 

Clean Air Act requirements are not 

applicable to the Bay Area. The 

statutory basis for finding that these 

planning requirements are not 

applicable is described in the proposal 

and in the Clean Data Policy. See 68 FR 

62041, 62044—62045; Seitz memo at 2–

5. Contrary to the commenter’s 

assertion, we are not eliminating any 

applicable requirements. Rather, we 

have interpreted the requirements of 

sections 172(c)(1), 172(c)(2), and 

172(c)(9) as not being applicable once 

an area has attained the standard, as 

long as it continues to do so. This is not 

a waiver of requirements that by their 

terms clearly apply; it is a determination 

that certain requirements are written so 

as to be operative only if the area is not 

attaining the standard. Our 

interpretation is consistent both with 

the CAA’s goal of achieving and 

maintaining clean air, and with the 

concomitant policy goal of avoiding 

costly and unnecessary emission 

reductions, and, as mentioned above, 

has been upheld in the Tenth Circuit in 

Sierra Club v. EPA, 99 F.3d 1551. 

2. Comments Regarding the 

Applicability of EPA Policies to the Bay 

Area 

Comment 15: EPA cites Sierra Club v. 

EPA, 99 F.3d 1551 (10th Cir. 1996) as 

authority for the waiver of CAA 

requirements. Several commenters, 

however, contend that the case was 

incorrectly decided. Further, 

commenters argue that the Bay Area is 

distinguishable from Utah in several 

respects: 

In contrast to the 0.123 ppm design value 

in the Bay Area, the design value in Utah is 

0.111 ppm, well below the 1-hour standard. 

The emissions that achieved improved air 

quality were determined by the court to be 

enforceable (unlike the Spare the Air 

program). 

The Bay Area is recognized to be a 

nonattainment area for the 8-hour ozone 

standard. 

The Bay Area is an upwind district for 

transport purposes. The court observed that 

air quality controls designed to surpass the 

applicable ozone standard would be costly 

and unnecessary. 

Response: In Sierra Club, the Tenth 

Circuit Court of Appeals upheld the 

rationale in the Seitz memo as it applies 

to moderate ozone nonattainment areas. 

There, pending completion of the 

redesignation process, and based on 

three years of air quality data, EPA 

found that two Utah Counties 

designated as nonattainment for ozone 

and classified as moderate had attained 

the ozone NAAQS. As a result, EPA 

determined that the CAA’s moderate 

area requirements for attainment and 

RFP demonstrations, and contingency 

measures (sections 182(b)(1)(A) and 

172(c)(9)) were inapplicable. Finding 

that this determination was a logical 

extension of EPA’s original 

interpretation in the General Preamble, 

the Court accorded deference to EPA’s 

statutory interpretation that once a 

moderate ozone nonattainment area has 

attained the NAAQS, the moderate area 

CAA requirements for RFP, attainment 

and contingency measures no longer 

apply. Id. at 1556. Although the Bay 

Area is a non-classified nonattainment 

area, there is no doubt that the 

analogous subpart 1 area provisions 

serve exactly the same purpose as the 

provisions at issue in Sierra Club for 

moderate areas. Thus the Court’s 

reasoning in that case applies equally to 

the Bay Area situation. Finally, EPA 

expects that fact patterns will vary from 

one area to the next but we do not 

believe such variations undermine the 

legal and policy bases for our 

interpretation of the applicability of 

CAA requirements in areas that have 

attained the standard. 

Comment 16: In a similarly situated 

area, EPA did not determine attainment 

until it was able to redesignate the area 

to attainment and thus its residents had 

assurance of maintenance in the form of 

a maintenance plan. See EPA’s St. Louis 

rulemaking, 68 FR 25418, May 12, 2003. 

Response: CAA section 179(c) 

provides that ‘‘[a]s expeditiously as 

practicable after the applicable 

attainment date for any nonattainment 

area, but not later than 6 months after 

such date, the Administrator [of EPA] 

shall determine, based on the area’s air 

quality as of the attainment date, 

whether the area attained the standard 

21724 Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 

15See also 9/4/92 Calcagni memo at p. 6: ‘‘The 

requirements for reasonable further progress, 

identification of certain emissions increases, and 

other measures needed for attainment will not 

apply for redesignations because they only have 

meaning for areas not attaining the standard.’’

by that date.’’ See also CAA section 

181(b)(2). Thus the statute provides for 

findings of attainment based on air 

quality. The Clean Data Policy provides 

for such findings prior to the attainment 

date applicable to a nonattainment area. 

The policy indicates that EPA’s regional 

offices will conduct individual 

rulemakings concerning areas that have 

three consecutive years of clean data 

demonstrating attainment to make 

binding determinations that such areas 

have attained the standard and need not 

submit SIP revisions addressing the 

CAA requirements that are no longer 

applicable. Seitz memo, p. 6. Thus the 

timing of attainment findings is 

authorized by the statute and dictated 

by longstanding Agency policy. 

Comment 17: EPA’s Clean Data Policy 

only addresses subpart 2 authority. 

Since the Bay Area is designated 

nonattainment under subpart 1, it is not 

applicable to the Bay Area. 

Response: EPA’s Clean Data Policy 

specifically addresses the RFP 

requirement in CAA section 172(c)(as 

defined in section (171(1)) and the 

contingency measure requirement in 

section 172(c)(9). Both of these statutory 

provisions apply to the 2001 Plan. With 

respect to the attainment requirement, 

the policy addresses the attainment 

requirement in section 182 which does 

not apply to the Bay Area plan. 

However, the analysis of that 

requirement applies equally to the 

section 172(c)(1) attainment 

requirement that does apply to the 2001 

Plan. See Seitz memo, pages 3–5. 

Comment 18: EPA’s action is not 

supported by EPA’s adopted guidance 

and policy documents. Specifically, 

John Calcagni’s October 28, 1992 memo 

entitled ‘‘State Implementation Plan 

(SIP) Actions Submitted in Response to 

Clean Air Act (Act) Deadlines’ (10/28/92 

Calcagni memo) is inconsistent with 

EPA proposed action on the specific 

issue of whether the Bay Area’s SIP 

requirements may be relaxed at this 

stage. ‘‘States, however, are statutorily 

obligated to meet SIP requirements that 

become due any time before an area is 

actually redesignated to attainment. 

[. . .] Hence, if there is a failure of the 

State to meet a statutory deadline [and, 

ergo, a SIP commitment to mid-course 

review] for an area, (before EPA has 

redesignated the area as attainment), a 

finding of failure to submit should be 

made. This, in turn, begins the sanctions 

process.’’ 10/28/92 Calcagni memo, 

pages 3–4. This properly describes how 

the Act works—areas must still meet all 

SIP commitments after a determination 

of attainment, but before the 

redesignation is complete. Otherwise 

there is a gap in SIP coverage that is 

irrational and illegal. Logically, since an 

area must meet all applicable part D SIP 

requirements, including section 172(c) 

elements, in order to gain redesignation, 

section 107(d)(3)(E), these SIP 

requirements must be present at the 

time of redesignation. It would make 

little sense to excuse their inclusion 

now, then to require their adoption 

immediately prior to redesignation. The 

SIP must be continually effective during 

the period between determination of 

attainment and redesignation. EPA 

cannot rewrite the Act and waive the 

otherwise applicable part D SIP 

requirements during this ‘‘gap’’ period. 

Response: The 10/28/92 Calcagni 

memo addresses the historical situation 

in which certain states were planning to 

submit redesignation requests prior to 

November 15, 1992 in an attempt to be 

exempted from implementing 

mandatory CAA programs due to start in 

November of that year (e.g., oxygenated 

fuels program, stage II vapor recovery 

rules, etc.). The memo explains that 

while the approvability of a 

redesignation request is based on 

requirements in place on the date of the 

complete submittal, until the 

redesignation was finalized, states 

would be statutorily bound to 

implement those programs. The types of 

mandatory programs covered by the 10/ 

28/92 Calcagni memo are 

distinguishable from the planning 

requirements suspended by a finding of 

attainment. In the Clean Data Policy, 

EPA has interpreted the attainment 

demonstration, RFP, and contingency 

provisions of the Act to be inapplicable 

to an area that is attaining the ozone 

standard as long as the area continues 

to attain or is redesignated to 

attainment.15 This interpretation is 

based on the language and purpose of 

those provisions. By contrast, the 

requirements for mandatory programs 

addressed by the 10/28/92 Calcagni 

memo do not contain qualifying 

language tied to attainment, such as ‘‘for 

the purpose of ensuring attainment of 

the applicable ambient air quality by the 

applicable date.’’ Compare, e.g., stage II 

vapor recovery (section 182(b)(3)) with 

RFP (section 171(1)). 

Comment 19: The 9/4/92 Calcagni 

memo indicates that the Bay Area 

retains its obligation to model 

attainment as required by the midcourse review commitment as part of its 

redesignation showing: ‘‘No such 

supplemental modeling is required for 

O3 non-attainment areas seeking 

redesignation’’ (page 3, emphasis 

added). The term ‘‘supplemental’’

reflects EPA’s requirement that ordinary 

modeling of attainment, as required for 

all SIPS and which is contained in and 

was deferred by California’s 

‘‘enforceable commitment’’ must still be 

provided. EPA explains the purpose for 

supplemental modeling, which applies 

with vigor to the initial modeling 

requirement as follows: ‘‘Modeling may 

be necessary to determine the 

representativeness of the monitored 

data. Id., page 3. If the data should be 

supported by modeling for 

redesignation, it should similarly be 

supported by modeling to support the 

determination of attainment, 

particularly where the region’s actual 

emissions inventory has been depressed 

by economic forces and the District 

stands at the cusp of finalizing the 

modeling it has postponed for over a 

decade. While commenters recognize 

that the 9/4/1992 Calcagni memo 

purports to address redesignation 

actions, they assert that EPA itself cites 

this guidance as authority supporting 

EPA’s proposal to delete RFP, 

attainment demonstration and 

contingency measure requirements from 

the Bay Area SIP. 68 FR 62044. 

Response: EPA disagrees that its 

reference to the 9/4/92 Calcagni memo 

somehow retroactively modifies the 

scope of that memo. The purpose of our 

reference to the memo was to illustrate 

the consistency of our position that RFP 

becomes unnecessary when an area 

attains the standard. On page 6, the 

memo states that the ‘‘requirements for 

reasonable further progress * * * will 

not apply for redesignation because they 

only have meaning for areas not 

attaining the standard.’’ Emphasis 

added. 

The 9/4/92 Calcagni memo states the 

following: ‘‘The state must show that the 

area is attaining the applicable NAAQS. 

There are two components involved in 

making this demonstration which 

should be considered interdependently. 

The first component relies upon 

ambient air quality data. * * * The 

second component relies upon 

supplemental EPA-approved air quality 

modeling. No such supplemental 

modeling is required for O3 (ozone) 

nonattainment areas seeking 

redesignation * * * ’’ (pages 2 and 3). 

This document explains that 

supplemental modeling may be needed, 

for example, in sulfur dioxide and 

carbon monoxide areas, where 

emissions are localized and a small 

number of monitors may not be 

representative of air quality (page 3). In 

contrast, ozone is not a localized 

Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 21725 

16We are approving the adoption and 

implementation dates of the new measures and the 

total emissions reductions they are cumulatively 

projected to achieve. We are approving all dates, 

including those that have passed, in order to make 

the commitments enforceable by EPA and citizens 

under the CAA. 

17For commitments in the plan that do not 

identify the month, as in Tables 1, 2, and 3, or the 

day of the month, as in Table 4, EPA interprets the 

deadline to be no later December 31st of the noted 

year or the last day of the month, respectively. 

18At the time of plan adoption, the BAAQMD 

was not able to determine the amount of emissions 

reductions that could be achieved by adoption of 

rules implementing SS–15 and 16. The District 

Continued 

pollutant, and the Bay Area has an 

extensive monitoring network 

consisting of 24 monitors operating each 

year from 2001 through 2003 as 

described in EPA’s proposal at 68 FR 

62043. Consistent with the language in 

the memo and the rationale in calling 

for modeling in some cases for some 

pollutants and not in other cases, 

modeling would not be required for 

redesignation of ozone areas. The memo 

should not be read to create a 

requirement for modeling in an area that 

has been determined to be attaining the 

ozone standard. 

Finally, we reiterate that a finding of 

attainment does not delete CAA 

requirements. The requirements for an 

attainment demonstration, RFP, and 

contingency measures are suspended by 

the finding only as long as the area 

continues to attain the standard or until 

the area is formally redesignated. 

E. Effects of the Attainment Finding on 

the Bay Area and of a Future Violation 

of the 1-Hour Ozone NAAQS 

Based on our finding that the Bay 

Area is attaining the 1-hour ozone 

standard, we are finding that the State 

of California is no longer required to 

submit an RFP plan, an attainment 

demonstration, or contingency measures 

for the area. 

The lack of a requirement to submit 

these SIP revisions will exist only as 

long as the Bay Area continues to attain 

the 1-hour ozone standard. If we 

subsequently determine that the area 

has violated the 1-hour ozone standard 

(prior to a redesignation to attainment), 

the basis for the determination that the 

area need not make these SIP revisions 

would no longer exist. Thus, a 

determination that an area need not 

submit these SIP revisions amounts to 

no more than a suspension of the 

requirements for so long as the area 

continues to attain the standard. 

Should the Bay Area begin to violate 

the 1-hour standard, we will notify 

California that we have determined that 

the area is no longer attaining the 1-hour 

standard. We also will provide notice to 

the public in the Federal Register. Once 

we determine that the area is no longer 

attaining the 1-hour ozone standard 

then California will be required to 

address the pertinent SIP requirements 

within a reasonable amount of time. We 

will set the deadline for the State to 

submit the required SIP revisions at the 

time we make a nonattainment finding. 

California must continue to operate an 

appropriate air quality monitoring 

network, in accordance with 40 CFR 

part 58, to verify the attainment status 

of the area. The air quality data relied 

upon to determine that the area is 

attaining the ozone standard must be 

consistent with 40 CFR part 58 

requirements and other relevant EPA 

guidance. 

III. Approval of Bay Area 2001 Plan 

A. Approval of the 2001 Plan 

In this action, EPA is finalizing its 

proposed approval of the following 

elements of the 2001 Plan: The 

emissions inventories, RACM, 

commitments to adopt and implement 

specific control measures, the motor 

vehicle emissions budgets, and further 

study commitments. The commitments 

to adopt and implement specific control 

measures 16 are listed in Tables 1, 2, and 

3 below, and the commitments to 

conduct further study of potential 

control measures, are listed in Table 4 

below. We are approving a VOC motor 

vehicle emissions budget of 164.0 tons 

per day and a NOX motor vehicle 

emissions budget of 270.3 tons per day, 

both for the year 2006. 

TABLE 1.—NEW STATIONARY AND AREA SOURCE CONTROL MEASURES

2001 SIP No. BAAQMD 

regulation No. Source category Adoption on date 

Implementation 

date 

Estimated VOC 

reduction (tpd), 

2000 to 2006 

Estimated NOX

reduction (tpd), 

2000 to 2006 

Measures To Be Adopted by the BAAQMD 

SS–11 ............ 8–3 ................. Improved Architectural Coatings Rule ............................. 172001 2003–2004 2.9 ..........................

SS–12 ............ 8–5 ................. Improved Storage of Organic Liquids Rule ..................... 2002 2002 1.9 ..........................

SS–13 ............ 8–14 and 8–19 Surface Preparation and Cleanup Standards for Metal 

Parts Coating.

2002 2003 0.3 ..........................

SS–14 ............ 8–16 ............... Aqueous Solvents ............................................................ 2002 2003 3.0 ..........................

SS–15 ............ TBD ................ Petroleum Refinery Flare Monitoring ............................... 2003 2004 18TBD ..........................

SS–16 ............ 8–18 ............... Low-Emission Refinery Valves ........................................ 2003 2004 TBD ..........................

SS–17 ............ 8–10 ............... Improved Process Vessel Depressurization Rule ........... 2003 2004 0.1 ..........................

Total ........ ........................ .......................................................................................... .......................... .......................... 8.2 0.0 

TABLE 2.—NEW MOBILE SOURCE CONTROL MEASURE

2001 SIP No. Source category Request 19 date Implementation 

date 

Estimated VOC 

reduction (tpd), 

2000 to 2006 

Estimated NOX

reduction (tpd), 

2000 to 2006 

Measure To Be Requested by the BAAQMD 

MS–1 .............. Motor Vehicle Inspection and Maintenance Program—Liquid Leak Inspection and Improved Evaporative System Test.2002 2002–2003 4.0 ..........................

Total ........ ...................................................................................................................... .......................... .......................... 4.0 0.0 

21726 Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 

indicated that the reductions were to be determined 

(TBD). Therefore, the emission reduction total for 

SS–11 through SS–17 does not include reductions 

from these two measures. 

TABLE 3.—NEW TRANSPORTATION CONTROL MEASURES

2001 

SIP No. 

Control measure description Description and implementation steps Schedule 

Estimated VOC reduction (tpd), 2000 to 

2006 

Estimated NOX

reduction (tpd), 

2000 to 2006 

TCM A ............ Regional Express Bus 

Program.

Program includes purchase of approximately 

90 low emission buses to operate new of 

enhanced express bus services. Buses 

will meet all applicable CARB standards, 

and will include particulate traps or filters. 

MTC will approve $40 million in funding to 

various transit operators for bus acquisition. Program assumes transit operators 

can sustain service for a five year period. 

Actual emission reductions will be determined based on routes selected by MTC.

FY 2003. Complete once $40 

million in funding pursuant to 

Government Code Section 

14556.40 is approved by the 

California Transportation Commission and obligated by bus 

operators.

See Below ................. See Below. 

TCM B ............ Bicycle/Pedestrian 

Program.

Fund high priority projects in countywide 

plans consistent with TDA funding availability. MTC would fund only projects that 

are exempt from CEQA, have no significant environmental impacts, or adequately 

mitigate any adverse environmental impacts. Actual emission reductions will be 

determined based on the projects funded.

FY 2004–2006. Complete once 

$15 million in TDA Article 3 is 

allocated by MTC.

See Below ................. See Below. 

TCM C ............ Transportation for Livable Communities 

(TLC).

Program provides planning grants, technical 

assistance, and capital grants to help cities and nonprofit agencies link transportation projects with community plans. MTC 

would fund only projects that are exempt 

from CEQA, have no significant environmental impacts, or adequately mitigate 

any adverse environmental impacts. Actual emission reductions will be determined based on the projects funded.

FY 2004–2006. Complete once 

$27 million in TLC grant funding is approved by MTC.

See Below ................. See Below. 

TCM D ............ Additional Freeway 

Service Patrol.

Operation of 55 land miles of new roving 

tow truck patrols beyond routes which existed in 2000. TCM commitment would be 

satisfied by any combination for routes 

adding 55 miles. Tow trucks used in service are new vehicles meeting all applicable CARB standards.

FY 2001. Complete by maintaining increase in FSP mileage 

through December 2006.

See Below ................. See Below. 

TCM E ............ Transit Access to Airports.Take credit for emission reductions from air 

passengers who use BART to SFO, as 

these reductions are not included in the 

Baseline.

BART—SFO service to start in 

FY 2003. Complete by maintaining service through 2006.

See Below ................. See Below. 

Total ......... .................................... ........................................................................ ...................................................... 0.5 .............................. 0.7 

TABLE 4.—FURTHER STUDY MEASURES

2001 SIP No. Measure Timeline for 

completion 

FS–1 ........................................................ Study Potential for Accelerating Particulate Trap Retrofit Program for Urban 

Buses.

April 2002. 

FS–2 ........................................................ Update MTC High Occupancy Vehicle Lane Master Plan ........................................ December 2002. 

FS–3 ........................................................ Study Air Quality Effects of High Speed Freeway Travel ......................................... April 2003. 

FS–4 ........................................................ Evaluate Parking Management Incentive Program ................................................... July 2003. 

FS–5 ........................................................ Enhanced Housing Incentive Program ...................................................................... December 2003. 

FS–6 ........................................................ Further Smog Check Program Improvements .......................................................... December 2003. 

FS–7 ........................................................ Parking Cash Out Pilot Program ............................................................................... December 2003. 

FS–8 ........................................................ Refinery Pressure Vessels, Blowdown Systems, and Flares ................................... December 2003. 

FS–9 ........................................................ Refinery Wastewater Systems .................................................................................. December 2003. 

FS–10 ...................................................... Organic Liquid Storage Tanks ................................................................................... December 2002. 

FS–11 ...................................................... Marine Tank Vessel Activities ................................................................................... December 2003. 

B. EPA’s Responses to Comments on the 

Proposed Approval of the 2001 Plan 

EPA’s proposed action provided a 30- 

day public comment period. During this 

period, we received comments from six 

parties. We are responding only to 

comments that pertain to the plan 

elements on which we are taking final 

action. 

1. Comments on the Proposed Approval 

of the Emissions Inventory 

Comment 20: The 2001 Plan’s 

emissions inventory is inaccurate and 

may drastically underestimate precursor 

emissions. It contains errors that should 

have been known and could have been 

corrected at the time of submittal. It is 

evident that better, more current and 

accurate data were known to the District 

and available for incorporation into the 

2001 Plan. 

Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 21727 

20The U.S. Court of Appeals for the District of 

Columbia Circuit recently addressed a similar issue 

and affirmed EPA’s position. Sierra Club v. EPA, 

356 F.3d 296 (DC Cir. 2004). 

21The District has prepared technical assessment 

documents (TADs) that describe its findings with 

respect to further study measures. The TADs can be 

viewed online at http://www.baaqmd.gov/enf/ 

RefineryFSM/refinery.asp. 

22See Emissions Inventory Guidance for 

Implementation of Ozone and Particulate Matter 

National Ambient Air Quality Standards (NAAQS) 

and Regional Haze Regulations, EPA–454/R–99–

006, April 1999, available online at www.epa.gov/ 

ttn/chief/ei_guide.html. 

23EPA’s interpretation of the section 172(c)(1) 

RACM requirement has been upheld by the District 

of Columbia and Fifth Circuit Courts of Appeal in, 

respectively, BCCA Appeal Group et al. v. EPA, 348 

F.3d 93 (5th Cir. 2003) and Sierra Club v. EPA, 294 

F.3d 155 (DC Cir. 2002). 

Response: In order to be approvable, 

CAA section 172(c)(3) requires that the 

emissions inventory must be 

comprehensive, accurate, and current. 

We proposed to approve the emissions 

inventories in the 2001 Plan because, 

when evaluated in the context of the 

time in which they were developed, the 

inventories accurately incorporated the 

best available data. Subsequent to the 

submittal of the 2001 Plan, the District, 

in fulfillment of its 2001 Plan 

commitment to undertake several 

further study measures, collaborated 

with representatives of community 

groups and industry to study emissions 

and potential controls from certain 

sources of air pollution. Some of these 

studies revealed that there are flaws in 

the inventory. This was not particularly 

surprising—inventory data is constantly 

being reevaluated and refined—and, in 

general, the quality of technical data 

and analyses techniques will 

continually improve. 

Once a plan has been adopted, EPA 

does not generally require plan elements 

such as emissions inventories and 

attainment demonstrations to be 

revisited and updated in response to 

new information.20 There will always be 

situations when new, better information 

is on the horizon. Evaluating a plan 

element based on information that was 

not available at the time of submittal 

would create a moving target that would 

be impossible to meet. We do not, 

therefore, believe it is appropriate to 

disapprove the inventories based on 

data that was developed subsequent to 

submittal of the 2001 Plan. 

The commenter fails to provide a 

concrete example of substantiated data 

that was available at the time of Plan 

adoption that is not included in the 

inventory. The version of EMFAC the 

commenter notes would have provided 

improved accuracy for motor vehicle 

emissions was not yet approved and 

available for use by the co-lead agencies 

when the 2001 Plan was being 

developed. See also section III.4. of the 

RTC. 

Comment 21: EPA must specify a 

much more broad series of emissions 

inventory corrections in the 2004 SIP 

than those indicated in the proposed 

approval of the 2001 Plan. A commenter 

notes that reductions from Smog Check 

II, which was approved by the 

California legislature for the Bay Area in 

September 2002, need to be factored 

into the inventory. In addition, the 

commenter stated that, according to an 

article in the Los Angeles Times 

published on January 16, 2003, CARB 

has discovered errors in the South Coast 

Air Basin’s emissions inventory and, 

because the Bay Area relies on many of 

the same CARB-derived emissions 

factors, those errors are therefore 

present in the Bay Area’s inventory and 

must be corrected in the next inventory. 

Response: We agree with the general 

point made by the commenter: 

inventories must be comprehensive, 

accurate, and current. In the notice of 

proposed rulemaking, we stated that if 

the findings in the draft technical 

assessment documents 21 regarding the 

inventory numbers are confirmed, the 

inventory submitted with the 

subsequent plan must reflect the new 

data. In addition, we noted that the 

inventories must be modified to 

incorporate data generated by the most 

recent model developed by CARB and 

accepted by EPA to determine emissions 

from motor vehicles. We did not intend 

to imply that those items can be 

considered an exhaustive list of future 

corrections because there is no way to 

predict the state of knowledge that will 

exist when the next inventory is 

submitted to EPA. Other refinements to 

the numbers that are made before the 

next inventory is submitted, including 

(but not limited to) any additional 

corrections and any adjustments to 

reflect the adoption of new regulations, 

must of course be included. 

EPA finds the emissions inventory in 

the 2001 Plan to be very detailed. The 

emission categories are well 

documented, comprehensive, accurate, 

and current. The emissions inventory 

was prepared following the procedures 

in EPA guidance,22 using either EPA 

emission factors found in AP–42 or 

other appropriate emission factors 

combined with Bay Area specific 

activity data to estimate emissions from 

each type of emissions source. This 

approach is the customary method used 

for preparing emissions inventories and 

the one required by EPA guidance. 

Emission inventories are not static but 

are constantly updated and renewed as 

new information, techniques, and 

studies are made available. EPA finds 

the emissions inventory in the SIP to be 

sufficiently detailed. 

While we acknowledge that various 

inventory enhancements and 

corrections (including those to which 

the commenters allude) need to be 

reflected in future plan and budget 

updates, we believe that such 

inaccuracies, taken together, do not rise 

to such a level of importance that they 

justify our rejection of the current 

inventories and budgets as insufficient 

to provide an adequate framework for 

air planning. 

2. Comments on the Proposed Approval 

of RACM 

Comment 22: Commenters contend 

that the 2001 Plan fails to include many 

measures that should be considered 

RACM for the Bay Area. Further, they 

allege that EPA has not provided 

sufficient support for its proposed 

determination that the RACM analysis is 

adequate. 

Response: CAA section 172(c))(1) 

requires nonattainment area plans to 

provide for the expeditious 

implementation of all reasonably 

available control measures. EPA’s 

principle guidance interpreting the 

Act’s RACM requirement is found in the 

General Preamble. See also ‘‘Guidance 

on the Reasonably Available Control 

Measures (RACM) Requirement and 

Attainment Demonstration Submissions 

for Ozone Nonattainment Areas,’’ from 

John S. Seitz, Director, Office of Air 

Quality Planning and Standards, to EPA 

Regional Air Division Directors, 

November 30, 1999. Under our 

interpretation, a state does not need to 

adopt measures that would not advance 

the attainment date for the applicable 

standard.23 The Bay Area’s and the 

State’s previously enacted control 

measures, along with the measures 

committed to in the 2001 Plan that have 

already been adopted and implemented, 

have resulted in improved air quality 

sufficient to qualify the Bay Area for a 

finding of attainment at the end of the 

2003 ozone season. We therefore 

conclude that those controls reflect 

RACM and are approving the plan as 

meeting the RACM requirement of CAA 

section 172(c)(1). 

3. Comments on the Proposed Approval 

of the Control Measure Commitments 

Comment 23: The TCMs in the 2001 

Plan are not approvable; they are 

impermissibly vague in their 

quantification of emissions reductions 

and are unenforceable. The 2001 Plan 

21728 Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 

24The Order of the San Francisco Superior Court 

has been appealed. Communities for a Better 

Environment et al. v. Bay Area Air Quality 

Management District et al., First Appellate District 

Case Nos. A103991, A104179. EPA is aware that the 

parties have recently reached a settlement of these 

appeals that, if approved by the State courts, would 

result in the vacatur of the July 24, 2003 Order. 

However, because that vacatur has not yet occurred, 

EPA responds in this action to the public comments 

concerning the July 24, 2003 Order. 

lumps the TCMs for the purposes of 

calculating emissions reductions. This 

complicates the legal enforceability of 

the measures, which renders the SIP 

and the TCMs unapprovable. Specific 

emissions reductions should be 

assigned to the TCMs. 

Response: Since the emission 

reductions associated with most TCMs 

(e.g. demand management TCMs) are 

interdependent, it is not unusual for the 

impacts of TCMs to be assessed on a 

cumulative basis. This is particularly 

the case when, as here, the total 

emission reductions from the measures 

are small. The 2001 Plan provides an 

enforceable commitment to implement 

the TCMs to reduce VOC emissions by 

0.5 tpd and NOX emissions by 0.7 tpd 

between 2000 and 2006. The 

effectiveness of the TCMs in meeting 

this commitment will be documented in 

future conformity determinations. In 

order to show timely implementation as 

required in future conformity analyses 

(40 CFR 93.113) MTC must document 

that the TCMs are being implemented 

on schedule. Because the enforceable 

commitment is to achieve the 

cumulative emissions reductions by 

2006, MTC must also document those 

reductions. MTC should also document 

the extent to which the implementation 

of the individual TCMs meets the 

identified levels. For example, for TCM 

A, MTC should identify the number of 

low-emission buses that were 

purchased. 

4. Comments on the Downwind 

Transport of Air Pollution 

Comment 24: CAA section 107(a) 

directs states to address intrastate 

transport ‘‘by submitting an 

implementation plan for such state 

which will specify the manner in which 

the national primary and secondary 

ambient air quality standards will be 

achieved and maintained within each 

air quality control region in such State.’’

The currently approved statewide SIP, 

the 1994 SIP, does not adequately 

address the topic. Given the universal 

acceptance of the fact that the Bay Area 

is an upwind contributor of air 

pollution to downwind areas that 

violate the ozone NAAQS, EPA may not 

lawfully approve the Bay Area SIP until 

it specifically addresses air pollution 

transport sufficiently to eliminate 

significant consequences to downwind 

Districts. The Bay Area SIP is not 

adequate unless and until it is part of a 

statewide SIP that comprehensively 

addresses air pollution transport. 

Response: CAA section 107(a) simply 

affirms that each state has the primary 

responsibility for assuring the air 

quality within its borders and for 

determining how this goal is to be 

achieved. The commenter attempts to 

improperly transform this 

straightforward statutory provision into 

one that establishes a SIP requirement 

concerning intrastate transport. The 

nonattainment area plan requirements 

for the Bay Area are contained in 

sections 110(a) and 172(c). While EPA 

does interpret CAA section 110(a)(2)(A) 

to require states to address intrastate 

transport, they have significant latitude 

in how they choose to do so. Thus EPA, 

in acting on the 2001 Plan, does not 

need to determine whether the State has 

regulated emissions from the Bay Area 

for purposes of transport. To the extent 

that emissions from the Bay Area 

significantly contribute to 

nonattainment or maintenance of the 

ozone standard in downwind areas, 

however, the State will need to address 

those contributing emissions in the 

context of an attainment demonstration 

for the downwind areas. 

5. Comments on Additional Plan 

Elements 

Comment 25: The Clean Air Act 

requires that plans provide an 

affirmative demonstration of their 

authority and ability to implement the 

proposed plan. The District has failed to 

include such a demonstration in the 

SIP. 

Response: In BCCA Appeal Group, the 

U.S. Court of Appeals for the Fifth 

Circuit agreed with the holdings of other 

federal circuit courts that the 

determination of what constitutes 

‘‘necessary assurances’’ should be left to 

the discretion of EPA. The Fifth Circuit 

found that EPA was entitled to rely on 

a certification of legal authority to 

implement an ozone plan for HoustonGalveston by the State of Texas’ legal 

counsel. Here, the State in its 

‘‘Completeness Checklist for SIP 

Revision: 2001 Bay Area Ozone Plan,’’

(Checklist), section 2.1(c), has certified 

that it, as well as the District and MTC, 

have the necessary legal authority under 

State law to adopt and implement the 

plan. EPA has routinely accepted such 

checklists as evidence of the requisite 

legal authority and the Fifth Circuit 

ruling validates that Agency decision. 

6. Comments on the Impact of the State 

Law and Court Orders 

Comment 26: The District committed 

several violations of State law during its 

hasty plan promulgation process, and is 

currently subject to an order of the San 

Francisco County Superior Court to 

correct those violations. Statement of 

Decision and Order Thereon (Order), 

filed July 24, 2003, Communities for a 

Better Environment, et al. v. Bay Area 

Air Quality Management District, et al., 

San Francisco County Superior Court 

Case No. 323849.24 Until the District 

cures these violations, it is plainly 

without authority to implement the SIP 

or provide the assurances required by 

the Act. This provides an independent 

basis for EPA’s disapproval of the Plan’s 

adequacy. CAA section 110(a)(2)(E) and 

40 CFR part 51, Appendix V, section 

2.1(c) and (e). 

Based on the California Public 

Records Act, Government Code section 

6250, et seq., the petitioners in the 

above case claimed that the District 

improperly destroyed files necessary to 

enforce the 2001 Plan and the District’s 

rules. The parties settled the issue 

through a stipulated agreement and an 

order of the Court under which the 

District agreed to halt its practice of 

destroying enforcement records without 

notice and to institute practices assuring 

permanent preservation of District 

notices of violation and other 

enforcement file materials. However, 

some enforcement records were 

destroyed prior to the order. Because of 

the destruction of these documents, it is 

certain that at least some repeat 

violators will not be subject to the 

proper form of enforcement because 

records of their prior violations are 

unavailable. The District is therefore 

unable to provide assurance to EPA that 

it has the resources to implement the 

Plan and enforce its rules. 

Response: The Court Order cited by 

the commenter requires the District to 

comply with California Government 

Code section 60203 prior to any 

destruction of certain public records. 

That section allows the destruction of 

such records if they are ‘‘* * * 

photographed, microphotographed, 

reproduced by electronically recorded 

video images on magnetic surfaces, 

recorded in the electronic data 

processing system, recorded on optical 

disk, reproduced on film or any other 

medium that is a trusted system and 

that does not permit additions, 

deletions, or changes to the original 

document. * * *’’ Thus, reproductions 

of these documents must be made before 

the originals can be destroyed. 

The commenter’s claim that the 

alleged destruction of certain of the 

District’s enforcement files has resulted 

Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 21729 

25See EPA memorandum ‘‘Conformity Guidance 

on Implementation of March 2, 1999 Conformity 

Court Decision’’ (EPA420–F–99–025, May 14, 

1999); available online at http://www.epa.gov/otaq/ 

transp/conform/policy.htm#030299. This guidance 

was developed in response to a 1999 decision of the 

U.S. Court of Appeals for the District of Columbia 

Circuit that requires EPA to make certain changes 

in its conformity regulations (40 CFR 93.100 et. seq) 

to provide that budgets must be deemed adequate 

or approved, rather than simply submitted, in order 

to be used in conformity determinations. 

Environmental Defense Fund v. EPA, et al., 167 F. 

3d 641 (DC Cir. 1999). As a result, EPA interprets 

40 CFR 93.109(c)(5)(ii) to apply to budgets that have 

been deemed adequate or have been approved, not 

merely submitted. EPA’s current proposal to modify 

the conformity regulations (68 FR 62690, 62724, 

November 5, 2003) confirms this interpretation of 

the conformity rule. 

in the inability of the District to enforce 

its rules or implement the Bay Area plan 

is unsubstantiated. Assuming, arguendo, 

that the information in any files that 

may have been destroyed is necessary to 

the ongoing efforts of the District to 

implement the plan and enforce its 

rules, there are clearly numerous 

methods of preserving and recording 

data short of retaining reproductions of 

original documents. More importantly, 

even if some repeat violators are not 

treated as such as a result of missing 

records, that circumstance would not be 

sufficient to impair an overall 

enforcement program. Nor would it call 

into question the District’s ability to 

otherwise implement its plan. The 

commenter has provided a conclusion 

but no support for it. 

Comment 27: The District violated the 

California Environmental Quality Act 

(CEQA) by adopting the Plan without 

first preparing an adequate 

environmental impact report. The Court 

ruled that the District’s environmental 

review documentation of the 2001 Plan 

was vague and that the District’s actions 

did not accord Petitioners an adequate 

opportunity to comment on whether the 

low VOC solvents required by the 

adopted rules to implement SS–13 and 

SS–14 could have adverse impacts. The 

Court ordered the District to prepare an 

EIR for the adoption of the rules to 

implement SS–13 and SS–14. Thus 

EPA’s action on the adequacy of the 

plan is premature and inappropriate 

under the Act and EPA’s regulations. 

The Court’s CEQA ruling clearly reflects 

the State Court’s conclusion that the 

District failed to follow all the 

procedural requirements of the State’s 

laws in conducting and completing the 

adoption and issuance of the plan, as 

required under 40 CFR Part 51, App V, 

2.1(e). 

Response: The commenter’s 

contention has no merit. In this action, 

EPA is approving two control measure 

commitments in the plan known as SS–

13 and SS–14. The Court’s order on the 

CEQA claim does not, however, 

implicate these two control measure 

commitments. In addition to declining 

to set aside the District’s adoption of the 

2001 plan, the Court noted that, after its 

adoption of the plan, the District 

adopted rules to implement SS–13 and 

SS–14. The Court then ordered the 

District to prepare an EIR for the 

adoption of these rules. EPA in today’s 

action is not approving the rules that are 

the actual subject of the Court’s order. 

Therefore the CEQA defect addressed by 

Court’s order is not relevant to EPA’s 

action here. 

Comment 28: The State Court has 

held that the 2001 Plan violates section 

40233 of the California Health and 

Safety Code and ordered that the co-lead 

agencies develop a plan for public 

comment that accomplishes the 

necessary 26 tons of VOC emissions 

reductions no later than 60 days from 

the notice of entry of the order. Section 

110(a)(2)(E) of the Clean Air Act 

prohibits approval of a state clean air 

plan if it violates state clean air laws. 

Response: In addition to withdrawing 

the attainment assessment in the 2001 

plan, the State has withdrawn the 

associated commitment by the co-lead 

agencies and CARB to adopt and submit 

measures to achieve 26 tpd of VOC 

emission reductions. As a result of our 

final attainment finding for the area and 

the resulting suspension of the CAA’s 

attainment demonstration requirement 

for the Bay Area, these plan elements 

are not currently required. Therefore the 

State Court’s holding that the 2001 plan 

violates section 40233 of the California 

Health and Safety Code is not relevant. 

Comment 29: The CAA and EPA’s 

regulations require assurances that the 

2001 Plan and all of its elements were 

properly adopted. Several defects in the 

State’s process and/or legal authority 

jeopardize the Plan and its 

implementation. CEQA was intended to 

be an environmental full disclosure 

statute and the EIR process necessarily 

requires consideration of alternatives 

and adoption of feasible alternatives or 

mitigation measures that substantially 

lessen or avoid adverse effects. The EIR 

process also promotes public 

involvement in agency decision making. 

The San Francisco Superior Court’s 

finding that additional environmental 

disclosure and process is required is 

damning evidence of the flaws in the 

public review and involvement 

processes leading to plan adoption. 

Response: EPA’s completeness criteria 

require evidence that the State has the 

necessary legal authority under state 

law to adopt and implement the plan 

and evidence that the State followed all 

of the procedural requirements of its 

laws and constitution in conducting and 

completing the adoption/issuance of the 

plan. 40 CFR part 51, Appendix V, 

section 2.1(c) and (e). EPA regulations 

require public notice and hearings. 40 

CFR 51.102. The commenter appears to 

believe that these requirements compel 

the State to comply with every aspect of 

all of its laws and regulations. That is 

not the case. The State need only 

demonstrate that it has the legal 

authority to adopt the plan and that it 

has followed all of the requirements in 

the State law and constitution that are 

related to adoption of the plan. The 

State has provided evidence that it has 

met these requirements. See Checklist, 

section 2.1(b) and (c). Contrary to the 

commenters’s assertions, the State Court 

Order actually supports this conclusion: 

‘‘The Court finds no violation of the 

Clean Air Act or other applicable 

authority occurred with respect to the 

Air Resources Board’s adoption and 

transmittal of the 2001 [plan] to the 

Environmental Protection Agency.’’

Order, p. 6. 

7. Comments on the Interim Final 

Determination 

Based on our proposed approval of 

the 2001 Plan (68 FR 42174), we made 

an interim final determination that 

California had corrected the deficiencies 

for which a sanctions clock began on 

October 22, 2001 (68 FR 42172, July 16, 

2003). The comments we received and 

our responses are included in the RTC 

document. 

IV. Effect of the Attainment 

Determination and 2001 Plan Action on 

Transportation Conformity 

CAA section 176(c) requires that 

federally funded or approved 

transportation actions in nonattainment 

areas ‘‘conform’’ to the area’s air quality 

plans. Conformity ensures that federal 

transportation actions do not worsen an 

area’s air quality or interfere with its 

meeting the air quality standards. 

One of the primary tests for 

conformity is to show that 

transportation plans and improvement 

programs will not cause motor vehicle 

emissions higher than the levels needed 

to make progress toward and to meet the 

air quality standards. These motor 

vehicle emissions levels are set in an 

area’s attainment, maintenance and/or 

RFP demonstrations and are known as 

the ‘‘transportation conformity budgets.’’

EPA and the Federal Highway 

Administration have developed 

guidance that indicates that budgets 

must be deemed adequate or approved 

before they can be used.25 As stated 

previously, we found the motor vehicle 

emissions budgets in the 2001 Plan 

21730 Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 

26 In our proposed attainment finding we noted 

that ‘‘[i]f the attainment demonstration is 

withdrawn . . . the continued applicability of the 

budgets could be affected.’’ 68 FR 62045. The State 

did not, however, withdraw the budgets in the 2001 

Plan when it withdrew the attainment assessment 

but, in fact, specifically requested that EPA approve 

them. See 1/30/04 Witherspoon letter. Further, the 

State and District continue to implement the control 

measures that brought the area into attainment. 

Thus the final attainment finding has no effect on 

those budgets. 

27Because EMFAC2000 has certain technical 

limitations, EPA approved it only for use in 

development of ozone motor vehicle emissions 

factors for SIP development and future conformity 

determinations in the San Francisco Bay Area. It 

was superior to prior models available for use in the 

area and the improved EMFAC2002 was not yet 

available. 68 FR 42181. 

adequate on February 14, 2002. 67 FR 

8017. We are approving those budgets in 

this action.26 Note that typically, under 

40 CFR 93.118(e)(1), the motor vehicle 

emission budget, once approved, cannot 

be replaced by another unless the new 

budget comes from an approved SIP. 

However, as discussed in our proposed 

approval of the budgets in the 2001 Plan 

(68 FR 42174, 42181), EPA is approving 

the vehicle emission budgets in that 

plan only until new budgets developed 

with EMFAC2002 are submitted and 

found adequate for conformity 

purposes. See 67 FR 1464 (January 11, 

2002). Budgets developed with 

EMFAC2002 will be more accurate than 

those developed using EMFAC2000.27

Therefore, by limiting the duration of 

our approval of the EMFAC2000- 

derived budgets to the point when the 

updated budgets are found adequate, the 

updated budgets may be in place within 

a few months of their submission. For 

further discussion of the rationale for, 

and the effect of, this limitation, please 

see our promulgation of a limitation on 

motor vehicle emission budgets 

associated with various California SIPs, 

at 67 FR 69139 (November 15, 2002). 

We believe that the State and co-lead 

agencies should move promptly to 

develop and submit a maintenance plan. 

The maintenance plan submittal should 

include, in addition to the maintenance 

year budgets, replacement 2006 budgets 

that are revised based on the latest 

approved version of EMFAC. Should 

EPA determine that the Bay Area is 

again subject to the 1-hour ozone 

attainment demonstration requirement 

as a result of a new violation of the 1- 

hour standard prior to redesignation, the 

State should submit a replacement 2006 

budget with the attainment 

demonstration. Again, this replacement 

budget must use the latest approved 

version of EMFAC. 

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. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely approves 

state law as meeting federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. It also finds that the San 

Francisco Bay Area has attained a 

previously established national ambient 

air quality standard based on an 

objective review of measured air quality 

data. Finally, it determines that certain 

Clean Air Act requirements no longer 

apply to the San Francisco Bay Area 

because of the attainment finding. 

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.). Because this rule approves preexisting requirements under state law 

and does not impose any additional 

enforceable duty beyond that required 

by state law, it does not contain any 

unfunded mandate or significantly or 

uniquely affect small governments, as 

described in the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4). 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

approves a state rule implementing a 

Federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. This rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

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 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. section 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 21, 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 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements. 

Federal Register / Vol. 69, No. 78 / Thursday, April 22, 2004 / Rules and Regulations 21731 

1EPA’s 1-hour ozone standard of 0.12 parts per 

million (ppm) was promulgated in 1979 (44 FR 

8202, February 8, 1979). On July 18, 1997, we 

promulgated a revised ozone standard of 0.08 ppm, 

measured over an 8-hour period. In general, the 8- 

hour standard is more protective of public health 

and more stringent than the 1-hour standard. This 

action addresses only the 1-hour standard. Areas 

will be designated attainment or nonattainment of 

the 8-hour standard in 2004. Ground-level ozone 

can irritate the respiratory system, causing 

coughing, throat irritation, and uncomfortable 

sensations in the chest. Ozone can also reduce lung 

function and make it more difficult to breathe 

deeply, thereby limiting a person’s normal activity. 

Finally, ozone can aggravate asthma and can 

inflame and damage the lining of the lungs, leading 

to permanent changes in lung function. More 

details on ozone’s health effects and the ozone 

NAAQS can be found at the following Web site: 

http://www.epa.gov/ttn/naaqs/standards/ozone/ 

s_o3_index.html. 

2 ‘‘Rate-of-Progress and Attainment Demonstration 

Plans for the Kern County Air Pollution Control 

District,’’ adopted on December 1, 1994, and 

submitted on December 28, 1994, by the Governor’s 

designee. Since 1992, KCAPCD jurisdiction extends 

only to the desert (i.e., eastern) portion of Kern 

County, while the western portion of the County 

lies within the jurisdiction of the multi-county San 

Joaquin Valley Unified Air Pollution Control 

District. 

Dated: April 1, 2004. 

Laura Yoshii, 

Acting Regional Administrator, Region IX. 

■ Part 52, chapter I, title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for Part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.220 is amended by 

adding paragraph (c)(323) to read as 

follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(323) The following plan was 

submitted on November 30, 2001 by the 

Governor’s designee. 

(i) Incorporation by Reference 

(A) Bay Area Air Quality Management 

District 

(1) San Francisco Bay Area Ozone 

Attainment Plan for the 1-hour National 

Ozone Standard (Section 3: Emission 

Inventory; Section 5: Control Strategy, 

except subsection ‘‘Demonstrating 

Reasonable Further Progress’’; 

Appendix B: Control Measure 

Descriptions; Appendix C: Reasonably 

Available Control Measure Analysis; 

Appendix E: Further Study Measure 

Descriptions;) adopted on October 24, 

2001. 

[FR Doc. 04–9142 Filed 4–21–04; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[CA 118–PLANa; FRL–7641–7] 

Approval and Promulgation of 

Implementation Plans, Finding of 

Attainment, and Designation of Areas 

for Air Quality Planning Purposes; 1- 

Hour Ozone Standard, East Kern 

County, CA 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is finding that East Kern 

County, California, has attained the 1- 

hour ozone National Ambient Air 

Quality Standard (NAAQS). EPA is 

approving the East Kern County 1-hour 

ozone maintenance plan and motor 

vehicle emissions budgets as revisions 

to the East Kern County portion of the 

California State Implementation Plan 

(SIP). Finally, EPA is redesignating the 

East Kern County area to attainment for 

the 1-hour ozone NAAQS. 

DATES: This direct final rule is effective 

June 21, 2004, without further notice, 

unless we receive adverse comments by 

May 24, 2004. If EPA receives adverse 

comments, we will publish a timely 

withdrawal of the direct final rule in the 

Federal Register and inform the public 

that the rule will not take effect. 

ADDRESSES: Please address your 

comments to: Dave Jesson, EPA Region 

IX, 75 Hawthorne Street, San Francisco, 

CA 94105–3901 or submit comments at 

http://www.regulations.gov. 

You can inspect copies of the docket 

for this action at EPA’s Region IX office 

during normal business hours. You can 

also inspect copies of the submitted SIP 

revision at the following locations: 

California Air Resources Board, 1001 I Street, 

Sacramento, CA 95814 

Kern County Air Pollution Control District, 

2700 M Street, Suite 302, Bakersfield, CA 

93301–2370 

FOR FURTHER INFORMATION CONTACT: 

Dave Jesson, EPA Region IX, (415) 972–

3957, or Jesson.David@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

A. East Kern Designation, Classification, 

SIP, and Attainment Status 

B. Clean Air Act Provisions for 

Maintenance Plans 

C. Clean Air Act Provisions for 

Redesignation 

II. EPA Review of the East Kern County 

Maintenance Plan and Redesignation 

Request and EPA Finding of Attainment 

A. Maintenance Plan 

1. Emissions Inventory 

2. Maintenance Demonstration 

3. Continued Ambient Monitoring 

4. Verification of Continued Attainment 

5. Contingency Provisions 

6. Motor Vehicle Emissions Budgets 

B. Redesignation Provisions 

1. Finding of Attainment of the 1-Hour 

Ozone NAAQS 

2. Fully Approved Implementation Plan 

under CAA Section 110(k) 

3. Improvement in Air Quality Due to 

Permanent and Enforceable Measures 

4. Fully Approved Maintenance Plan 

5. CAA Section 110 and Part D Provisions 

Satisfied 

III. Public Comment and EPA Action 

IV. Statutory and Executive Order Reviews 

I. Background 

A. East Kern County Designation, 

Classification, SIP, and Attainment 

Status 

When the Clean Air Act (CAA) was 

amended in 1990, each area of the 

country that was designated 

nonattainment for the 1-hour ozone 

NAAQS was classified by operation of 

law as marginal, moderate, serious, 

severe, or extreme depending on the 

severity of the area’s air quality 

problem.1 The East Kern County 

nonattainment area (‘‘East Kern’’) was 

designated under CAA section 107 as 

part of the San Joaquin Valley 

nonattainment area, and was classified 

under CAA section 181 as serious for 

the 1-hour ozone NAAQS. See 40 CFR 

81.305 and 56 FR 56694 (November 6, 

1991), designating the entire Kern 

County as part of the ‘‘San Joaquin 

Valley Area’’ for ozone. 

The Kern County Air Pollution 

Control District (KCAPCD) adopted a 

serious area plan, intended to 

demonstrate rate-of-progress (ROP) and 

attainment by the applicable deadline of 

November 15, 1999.2 The California Air 

Resources Board (CARB) timely 

submitted the plan in 1994, along with 

the plan adopted by the San Joaquin 

Valley Unified Air Pollution Control 

District for the remainder of the San 

Joaquin Valley nonattainment area. We 

approved the ROP and attainment plans 

for the San Joaquin Valley, including 

the portion of the SIP applicable to Kern 

County, on January 8, 1997 (62 FR 

1150).