48340 Federal Register / Vol. 66, No. 183 / Thursday, September 20, 2001 / Rules and Regulations

45. Personal and social services

rendered by others to meet the needs of

individuals; security services for the

protection of property and individuals.

Dated: September 14, 2001.

Nicholas P. Godici,

Acting Under Secretary of Commerce for

Intellectual Property and Acting Director of

the United States Patent and Trademark

Office.

[FR Doc. 01–23454 Filed 9–19–01; 8:45 am]

BILLING CODE 3510–16–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[CA232–0289, FRL–7048–1]

Approval and Promulgation of Ozone

Attainment Plan and Finding of Failure

To Attain; State of California, San

Francisco Bay Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving in part and

disapproving in part the 1999 San

Francisco Bay Area Ozone Attainment

Plan (1999 Plan), submitted by the State

of California to EPA to attain the 1-hour

ozone national ambient air quality

standard (NAAQS) in the San Francisco

Bay Area. Specifically, EPA is

approving the baseline emissions

inventory, the Reasonable Further

Progress (RFP) demonstration, control

measure commitments, and contingency

measures in the 1999 Plan as meeting

the requirements of the Clean Air Act

(CAA) applicable to the Bay Area ozone

nonattainment area. EPA is also

approving the removal of transportation

control measures (TCMs) 6, 11, 12, and

16 from the state implementation plan

(SIP) for ozone purposes.

We are disapproving the attainment

assessment, its associated motor vehicle

emissions budgets, and the reasonably

available control measure (RACM)

demonstration. The disapproval triggers,

on its effective date, an 18-month clock

for mandatory application of sanctions,

a 2-year time clock for promulgation of

a federal implementation plan (FIP), and

a transportation conformity freeze.

EPA is also finding that the San

Francisco Bay Area ozone

nonattainment area did not attain the 1-

hour ozone NAAQS by its November 15,

2000 attainment deadline. As a

consequence, the State is required to

submit a new plan no later than 12

months after the effective date of this

rulemaking.

EFFECTIVE DATE: This rule is effective on

October 22, 2001.

ADDRESSES: A copy of this final rule and

related information are available in the

air programs section of EPA Region 9’s

website, http://www.epa.gov/region09/

air. The docket for this rulemaking is

available for inspection during normal

business hours at EPA Region 9,

Planning Office, Air Division, 17th

Floor, 75 Hawthorne Street, San

Francisco, California 94105. A

reasonable fee may be charged for

copying parts of the docket. Please call

(415) 744–1249 for assistance.

FOR FURTHER INFORMATION CONTACT:

Celia Bloomfield (415) 744–1249,

Planning Office (AIR–2), Air Division,

EPA Region 9, 75 Hawthorne Street, San

Francisco, CA 94105;

bloomfield.celia@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. EPA’s Responses to Comments on the

Proposal

III. Final Action

IV. Administrative Requirements

I. Background

On March 30, 2000, EPA proposed to

partially approve and partially

disapprove the San Francisco Bay Area

Ozone Attainment Plan for the 1-Hour

National Ozone Standard, June 1999

(1999 Plan). Specifically, EPA proposed

to approve the baseline emissions

inventory, the Reasonable Further

Progress (RFP) demonstration, a

commitment to reduce volatile organic

compound (VOC) emissions by 11 tons

per day (tpd) by adopting and

implementing specified control

measures, and contingency measures in

the 1999 Plan as meeting the

requirements of the Clean Air Act (CAA)

applicable to the Bay Area ozone

nonattainment area. EPA also proposed

to approve the removal of transportation

control measures (TCMs) 6, 11, 12, and

16 from the ozone portion of the

California state implementation plan

(SIP). EPA proposed to disapprove the

attainment assessment, its associated

motor vehicle emissions budgets, and

the reasonably available control

measure (RACM) demonstration.

EPA’s March 30, 2000 notice also

included a proposed finding that the

Bay Area failed to attain the 1-hour

National Ambient Air Quality Standard

(NAAQS) for ozone by its November 15,

2000 attainment deadline. For details

about EPA’s evaluation of the 1999 Plan

elements and proposed failure to attain

finding, please see the proposed

rulemaking at 66 FR 17379, March 30,

2001.

The 1999 Plan was submitted to EPA

on August 13, 1999 as a proposed

revision to the SIP. The submittal was

made by the California Air Resources

Board (CARB) on behalf of the Bay Area

Air Quality Management District

(BAAQMD), the Metropolitan

Transportation Commission (MTC), and

the Association of Bay Area

Governments (ABAG) to comply with

EPA’s July 10, 1998 rulemaking that

redesignated the Bay Area from

attainment to nonattainment (63 FR

37258, July 10, 1998).

II. EPA’s Responses to Comments on the

Proposal

A. Overview of Comments

EPA received 15 letters commenting

on the March 30, 2001 proposal. The

commenters represented State and local

air quality and transportation agencies,

the business community, and a number

of public interest environmental and

environmental justice groups. The

majority of commenters expressed

support for the proposed partial

disapproval and finding of failure to

attain. The proposed partial approval

was viewed favorably as strengthening

the SIP, but several commenters

objected to the proposed approval of

specific plan elements as meeting the

requirements of section 172 of the CAA.

A number of commenters also urged

EPA and the BAAQMD to evaluate and

explain why the 1999 Plan failed to

provide for attainment. Significant

comments are addressed below; the

remaining comments are addressed in

the Technical Support Document for

this rulemaking.

B. Comments on Proposed Disapproval

of Attainment Assessment

Comment: Many commenters asked

that EPA provide a detailed analysis of

all the reasons why the attainment

assessment was flawed. Some

commenters went further and asked

EPA to supplement its reasons in the

final rulemaking for disapproving the

attainment assessment. Specifically,

commenters argued that the attainment

assessment was flawed (by a magnitude

in the range of 25–50 tpd) not only

because it inaccurately demonstrated

attainment, but also because it: (1)

Omitted available data by excluding

1998 monitoring data; (2) inaccurately

estimated the impact deregulation has

had on power plant emissions; and (3)

relied on projections of motor vehicle

emissions that assume large reductions

that historically have not been fully

realized.

Response: EPA shares the concerns

raised with regard to the attainment

Federal Register / Vol. 66, No. 183 / Thursday, September 20, 2001 / Rules and Regulations 48341

assessment. However, we do not believe

that it is necessary or productive at this

time to determine whether these

concerns provide independent bases for

disapproval since we are already

disapproving the assessment based on

air quality monitoring data.

Nevertheless, the points raised are good

ones, and we will take them into

consideration as we review future plans

and plan revisions.

Comment: Counsel for the

Transportation Solutions Defense and

Education Fund (TRANSDEF)

commented that EPA’s regulations

specifically require use of a

photochemical model, and that if the

Bay Area need not use UAM modeling,

the reasons should be fully explained in

the Federal Register. The commenter

asserted that EPA’s ‘‘attainment

assessment’’ approach outlined for the

1999 Plan did not accord with 40 CFR

part 51.112 and appendix W.

TRANSDEF also claimed that the Bay

Area should have used EPA’s model

substitution process pursuant to 40 CFR

part 51.112(a)(2) to authorize the

techniques used in the 1999 Plan.

Response: EPA regulations at 40 CFR

part 51, appendix W (6.0 Models of

Ozone, Carbon Monoxide and Nitrogen

Dioxide) do not mandate the use of

photochemical modeling or the need to

undergo a model substitution process.

Rather, the pertinent language is as

follows:

A control agency with jurisdiction over

areas with significant ozone problems and

which has sufficient resources and data to

use a photochemical dispersion model is

encouraged to do so. However, empirical

models fill the gap between more

sophisticated photochemical dispersion

models and may be the only applicable

procedure if the available data bases are

insufficient for refined modeling.

The attainment assessment for the Bay

Area was based on an isopleth diagram

generated from photochemical

modeling, an approach EPA believes is

consistent with the above requirement

(1999 Plan, Section V, pp. 16–18).

Comment: One commenter stated that

the Bay Area’s continued lack of

technically competent data and

modeling resources mandates that EPA

promulgate a Federal Implementation

Plan (FIP). The commenter supported

this position with language from

Arizona v. Thomas, 829 F.2d 834 (9th

Cir. 1987): ‘‘Having failed in its

obligation to produce or make

reasonable efforts to produce SIPs

which would appear to meet the

requirements of the Act, Arizona should

not be given another opportunity to

produce more plans.’’

Response: EPA’s disapproval of the

attainment assessment triggers an

obligation of EPA to promulgate a FIP

not later than two years following the

disapproval unless EPA approves an

attainment demonstration for the area in

the interim. The State is currently

working to submit a new attainment

demonstration sooner than the one year

provided by this final action. EPA

believes that it is appropriate to first

allow the State to replace the deficient

SIP consistent with the work it is now

doing.

The commenter’s reliance on Arizona

v. Thomas is misplaced. That case

involved whether EPA appropriately

applied a sanctions regulation on the

State. The sanctions regulation (under

the pre-1990 CAA) applied to areas that

failed to meet the statutory attainment

date. However, areas with fully

approved SIPs were excluded—i.e., not

subject to the sanction. Because Arizona

did not have a fully approved SIP, the

court rejected Arizona’s claim that the

sanction should not apply and that

Arizona should instead be given a

chance to develop a new SIP. The

narrow regulatory interpretation in that

case bears no relevance on the post-1990

requirements of the CAA.

C. Comment on Proposed Disapproval

of Motor Vehicle Emissions Budgets

Comment: Earthjustice provided

additional justification beyond what

was discussed in EPA’s proposal for

disapproving the transportation

conformity budgets. Specifically,

Earthjustice commented that the

budgets were incorrectly calculated

(approximately 20 tpd too high for VOC)

because ‘‘MTC [Metropolitan

Transportation Commission]

accidentally ‘misbucketed’ vehicle miles

traveled [VMT] according to speed

ranges.’’ The commenter further

suggested that EPA improve its

oversight role to avoid similar errors in

the future.

Response: EPA agrees that there have,

in some cases, been problems with

allocations of VMT by speed and

therefore with emissions estimates. This

type of mistake could impact budget

levels, as they are based on motor

vehicle emissions projected for the

attainment year. With respect to this

rulemaking, however, EPA is

disapproving the budgets because they

are based on an attainment assessment

that was deficient. Therefore EPA need

not explore a separate basis for

disapproval. EPA will work with MTC

in the future in an attempt to avoid any

errors in VMT speed allocation and

emissions estimates.

D. Comments on Proposed Disapproval

of Reasonably Available Control

Measure Demonstration (RACM)

Comment: The BAAQMD questioned

the existence of a RACM obligation,

asserting that all RACM are in place and

that the District had already responded

to public comments related to potential

control measures for the 1999 Plan.

Response: The federal RACM

obligation for ozone nonattainment

areas is contained in section 172(c)(1) of

the Act, which requires ‘‘the

implementation of all reasonably

available control measures as

expeditiously as practicable.’’ The

BAAQMD commenter did not deny this

obligation, but rather asserted that the

obligation has already been fulfilled.

EPA disagrees with this position. EPA

guidance, issued November 30, 1999

entitled, ‘‘Guidance on the Reasonably

Available Control Measures (RACM)

Requirement and Attainment

Demonstration Submissions for Ozone

Nonattainment Areas,’’ provides that

‘‘[i]n order for the EPA to determine

whether a State has adopted all RACM

necessary for attainment as

expeditiously as practicable, the State

will need to provide a justification as to

why measures within the arena of

potentially reasonable measures have

not been adopted. The justification

would need to support that a measure

was not ‘reasonably available’ for that

area and could be based on

technological or economic grounds.’’ At

a minimum, the justification should

address ‘‘any measure that a commenter

indicates during the public comment

period is reasonably available for a

given area * * * .’’ (57 FR 13560, April

16, 1992).

The Bay Area’s 1999 Plan itself was

silent on the RACM requirement. While

the supporting documentation for the

1999 Plan did include a response to

many public comments on control

measures, not all of the suggested

control measures were addressed.

Moreover, where measures were

specifically rejected, the justifications

provided generally did not address the

RACM criteria. According to EPA

guidance, ‘‘measures could be justified

as not meeting RACM if a measure (a)

is not technologically or economically

feasible, or (b) does not advance the

attainment date for the area’’

(‘‘Additional Submission on RACM

from States with Severe 1-hour Ozone

Nonattainment Area SIPs,’’ EPA,

December 14, 2000).

Comment: Several commenters urged

EPA and the BAAQMD to thoroughly

examine all of the control strategies in

place in the South Coast air district as

48342 Federal Register / Vol. 66, No. 183 / Thursday, September 20, 2001 / Rules and Regulations

well as those suggested through public

comment and at public workshops. A

number of commenters suggested

specific measures that should be

evaluated as RACM. The San Joaquin

Valley Unified Air Pollution Control

District identified three potential RACM

measures for District adoption (or

amendments to existing BAAQMD

rules): SMOG Check II, aqueous solvent

degreasing, and the permitting and

control of smaller engines. Sherman

Lewis, Chair of the Hayward Area

Planning Association, identified a range

of cash out and transit assistance

measures that should be considered.

Earthjustice suggested a RACM review

of all BAAQMD and MTC measures that

are not currently in the SIP. Another

commenter urged EPA to clearly state

that RACM requires adoption of all

measures demonstrated in the State to

be reasonably available, including

measures in the Bay Area CAP and

BAAQMD Rules 9–10 and 9–11.

Communities for a Better Environment

suggested several refinery measures,

marine vessel measures, a requirement

for diesel engine replacement, and

others.

Response: EPA is disapproving the

RACM component of the 1999 Plan for

the reasons noted in the previous

response. In order to correct the RACM

deficiencies, an amended or new plan

must consider or evaluate any control

measures that are suggested by the

public during its development and

adoption as well as measures included

in public comment on the 1999 Plan

and as part of this rulemaking to

determine whether or not they represent

RACM.

Comment: The majority of

commenters emphasized that RACM

measures should be viewed collectively

to determine whether their emissions

reductions would expedite attainment.

Response: EPA agrees that RACM

measures should be viewed collectively

to determine whether their emissions

reductions would expedite attainment.

However, EPA has previously

concluded that ‘‘potential measures may

be determined not to be RACM if they

require an intensive and costly effort for

numerous small area sources.’’ 66 FR

586, 610; January 3, 2001. This

interpretation of RACM ‘‘is based on the

common sense meaning of the phrase,

‘reasonably available.’ A measure that is

reasonably available is one that is

technologically and economically

feasible and that can be readily

implemented. Ready implementation

also includes consideration of whether

emissions from small sources are

relatively small and whether the

administrative burden, to the States and

regulated entities, of controlling such

sources was likely to be considerable.

As stated in the General Preamble, EPA

believes that States can reject potential

measures based on local conditions

including cost (57 FR 13561).’’ 66 FR

586, 610; January 3, 2001. Also, the

development of rules for a large number

of very different source categories of

small sources for which little control

information may exist will likely take

much longer than development of rules

for source categories for which control

information exists or that comprise a

smaller number of larger sources. The

longer the rule development time frame,

the less likely that the emission

reductions from the rules would

advance the attainment date. EPA will

analyze future RACM submissions from

the Bay Area in light of these

conclusions.

E. Comments on Proposed Approval of

Baseline Emissions Inventory

Comment: Several commenters

questioned the approvability of the 1995

baseline emissions inventory. Counsel

for Our Children’s Earth and

Communities for a Better Environment

argued that any approval of the

emissions inventory without knowledge

of why the plan failed is arbitrary.

Another commenter questioned the

inventory’s accuracy, citing the increase

in on-road mobile source emissions

when CARB updated its mobile source

model. Also raised was a concern that

the inventory was not sufficiently

‘‘current’’ to be approvable.

Response: EPA believes it is not

appropriate to assess the adequacy of an

emissions inventory based on the

ultimate success or failure of a plan.

EPA reviewed the emissions inventory

carefully and had a number of

discussions with Air District and CARB

staff about the estimates provided for

various source categories. As noted in

the March 30, 2001 proposal, the

inventory figures were based on actual

emissions in 1995. EMFAC 2000,

CARB’s newer mobile source model,

was not available at the time, and hence

could not be used to evaluate the

accuracy of the inventory.

EPA believes that the emissions

inventory can be approved because it is

current in the context of the 1999 Plan.

The decision to allow a 1995 baseline

inventory was first proposed by EPA in

1997 and finalized, after public notice

and comment, in 1998. No adverse

comment was received. The plan was

prepared in 1998 and submitted to EPA

in 1999.

In short, we found nothing in our

review to suggest that the inventory was

inconsistent with EPA inventory

guidance, ‘‘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). Nevertheless, since the Bay Area

will have to submit a new plan in

response to the disapproval and finding

of failure to attain, there will need to be

a new emissions inventory to support

that plan.

Comment: Communities for a Better

Environment pointed out that there are

over 1300 Notices of Violation (NOVs)

in the Bay Area that have not been

processed, suggesting that rule

effectiveness assumptions for various

source categories may be overstated. If

this is the case, emissions levels could

likely be higher than the inventory

figures.

Response: EPA does not judge the

adequacy of emissions inventories on

NOV statistics. In many cases, the

issuance of a large number of NOVs

indicates a healthy enforcement

program. Moreover, many NOVs are

written for non emissions-related

violations (e.g., recordkeeping) or for

extremely minor emissions violations;

therefore unresolved NOVs are not a

good gauge for the effectiveness of a rule

or regulatory program. The BAAQMD’s

enforcement process is to cite violations

on site (sometimes multiple NOVs at a

site daily). Compliance is demanded

within fifteen to twenty days or further

NOVs are issued until the problem is

corrected. (BAAQMD Enforcement

Division Policies and Procedures

Manual, Notice of Violation Guidelines,

pp. 5–6.) Violations are often bunched

and then settled as a group for a

particular facility; hence, it is not

uncommon at any moment in time to

find many seemingly ‘‘unaddressed’’

NOVs. Information about specific NOVs

and a facility’s current compliance

status is available from the BAAQMD.

Moreover, one of the concepts behind

rule effectiveness is that there is not

100% compliance. The estimated

noncompliance is factored into the

inventory.

F. Comments on Proposed Approval of

Reasonable Further Progress

Demonstration

Comment: Counsel for Our Children’s

Earth and Communities for a Better

Environment opined that, unless EPA

makes a finding as to why the Bay Area

failed to attain the ozone standard, it is

arbitrary to assume that the adopted

measures were as effective as promised

in the SIP. The commenter asserts that

continuing exceedances (particularly in

1998—after three years of plan

Federal Register / Vol. 66, No. 183 / Thursday, September 20, 2001 / Rules and Regulations 48343

implementation) is evidence that the

measures were not as effective as

promised and that RFP did not occur.

Response: RFP is defined as ‘‘annual

incremental reductions in emissions of

the relevant air pollutant * * *.’’ (CAA

section 171(1)). For ozone, which is not

emitted directly, the reductions must

come from sources of the ozone

precursors, VOC and NOX. While it

seems to make sense that reductions in

VOC and NOX could be measured by

improvement in ozone levels, that is not

necessarily the case. For instance, in the

Bay Area, ozone levels are not

decreasing as expected in response to

the precursor emissions reductions.

‘‘Proposed Final San Francisco Ozone

Attainment Plan for the 1-Hour National

Ozone Standard,’’ June 2001, Figure 4.

EPA therefore relies on the

implementation of control measures,

which are designed to reduce precursor

emissions, to determine whether or not

progress in reduction of emissions is

being made. EPA concludes that the

adopted measures are being

implemented and sufficient reductions

in emissions have occurred to represent

reasonable further progress.

G. Comments on Proposed Approval of

Control Measures

Comment: Commenters provided

several arguments for finding the

control strategy inadequate. First, the

controls proposed did not compensate

for the underestimated motor vehicle

emissions calculated by EMFAC7g. The

commenter urged EPA to look more

closely at emissions reductions relied

upon from state measures. In addition,

the commenter stressed that control

strategies should not be limited to

emissions limitations, but should also

include strategies such as closing or

relocating sources and economic

incentive programs. The commenter

asked EPA to comment negatively on

the control strategy in the 1999 Plan and

to direct that all future measures be

more specific and enforceable before

federal credit is given.

Response: EPA agrees that the 1999

Plan’s overall control strategy was

inadequate for attainment and, as a

result, is disapproving the plan. EPA is,

however, approving the individual

control measures in the plan because

they strengthen the SIP. In any case, in

the next planning effort for the Bay

Area, the control strategy will have to be

supplemented with additional measures

needed for attainment and that are

specific enough to be federally

enforceable. Any future attainment

demonstration will have to include

sufficient control measures to reduce

accurately projected motor vehicle

emissions, and could include innovative

control strategies as necessary to

demonstrate attainment.

H. Comments on Proposed Approval of

Contingency Measures

Comment: Counsel for Our Children’s

Earth and Communities for a Better

Environment suggested that EPA revise

its proposed approval of the

contingency measures to a conditional

approval, the condition being the

requirement for additional contingency

measures within one year.

Response: Contingency measures are

intended to provide continued progress

‘‘in the year following the year in which

the failure has been identified’’ (57 FR

13511, April 16, 1992). In the Bay Area,

the contingency measures in the 1999

Plan have already been triggered. Under

CAA section 179(d), a new plan,

including additional contingency

measures to be triggered in the future,

is required to be submitted to EPA

within one year after the effective date

of the final finding of failure to attain.

Comment: Counsel for TRANSDEF

asserted that the contingency measures

failed to meet the criteria and purpose

of the Act because such measures are

intended to be measures above and

beyond the ordinary control strategies

that come into effect automatically in

response to a missed milestone or a

failure to attain.

Response: EPA has long held that

control measures that are in excess of

those projected as being required for

timely attainment may be used to satisfy

the contingency measure requirements

of CAA section 172(c)(9) because the

measures will provide for continued

emission reduction progress beyond the

core control strategy. See, e.g., 58 FR

52467, 52473 (October 8, 1993).

I. Comments on Environmental Justice

Comment: Several commenters noted

that the public engagement process is

key to ensuring environmental justice.

According to TRANSDEF, the

environmental justice processes at the

Air District and MTC are generally

inadequate. Earthjustice noted that the

time line for the upcoming plan revision

is being driven by the wish to avert

conformity consequences and is

resulting in a rushed public process that

compromises procedural environmental

justice. Communities for a Better

Environment commented on the need

for a full public process (i.e., sufficient

public notification and adequate time)

so that community members can

identify and comment on transportation

and stationary source control measures

that should be adopted.

Response: EPA agrees that an effective

public involvement process is important

and that more public process and

community input is preferable to less.

Moreover, EPA is committed to the

principles of environmental justice to

ensure that all Americans have equal

access to the decision making process.

We believe that the public process for

the 1999 Plan provided everyone the

opportunity for meaningful involvement

and met all legal requirements set out in

CAA section 110(a) and 40 CFR part 51.

Nonetheless, EPA is aware of the

public’s concerns and is continuing to

encourage and support additional

public involvement efforts by the State

and local agencies.

J. Comments on Proposed Finding of

Failure to Attain

Comment: Legal counsel for

TRANSDEF contends that the Supreme

Court decision in Whitman v. American

Trucking Association, 149 L.Ed.2d 1,

31–48, 121 S.Ct. 903, dictates that EPA

reconsider its position regarding the Bay

Area’s nonattainment designation under

the general nonattainment provisions of

Part D subpart 1 of the Act. This

commenter asserts that the Bay Area

should be designated as subject to the

more prescriptive requirements of

subpart 2 of part D and classified as

‘‘severe’’ to impose additional planning

and SIP requirements.

Two commenters also argued that the

Bay Area ought to be classified as a

severe area due to the number of times

it has failed to attain since the 1990

CAAA and the date by which it is now

expected to attain the national ozone

standard (i.e., 2006). It was suggested

that EPA propose a severe classification

in a separate rulemaking.

Response: The issue of whether

subpart 1 or subpart 2 applies to the Bay

Area was decided in the action

redesignating the Bay Area from

attainment to nonattainment for the 1-

hour ozone NAAQS (63 FR 37258, July

10, 1998). Whitman v. ATA concerned

the applicability of subpart 2 to the

implementation of a revised ozone

NAAQS, in this case the 8-hour

standard. There is nothing in the Court’s

opinion to suggest that subpart 2 must

apply to a redesignation from

attainment to nonattainment for the 1-

hour ozone NAAQS. Thus, at this time,

EPA does not intend to reconsider its

prior final decision regarding the

applicable implementation provisions

for the Bay Area. However, EPA is

currently beginning efforts to respond to

the Court’s remand of the

implementation issue for the 8-hour

standard. If, in developing that policy,

EPA reaches any conclusions that

48344 Federal Register / Vol. 66, No. 183 / Thursday, September 20, 2001 / Rules and Regulations

would affect the basis for EPA’s final

rule determining that the Bay Area

should implement the 1-hour standard

under subpart 1, the Agency will

reconsider its position with respect to

the Bay Area at that time.

K. Comments on Consequences of

Partial Disapproval

Comment: MTC stated that there are

minor errors in EPA’s discussion of the

conformity freeze and lapse

consequences of a plan disapproval.

Specifically, in the event of a freeze,

MTC asserted that it can still adopt its

upcoming RTP even though a

conformity finding cannot be made. In

addition, MTC noted that EPA’s list of

projects that could proceed under a

lapse was not exhaustive. The list could

include: TCMs in approved SIPs, nonregionally significant non-federal

projects, regionally significant nonfederal projects that have already been

approved prior to a lapse, previously

conformed projects that have received

funding commitments, exempt projects,

projects under 40 CFR 93.127, and

traffic synchronization projects. MTC

also stated that regionally significant

transit expansion projects such as light

rail extensions and bus fleet expansions

not yet under contract cannot proceed

under a lapse.

Response: Although MTC makes some

valid points, MTC is not entirely

correct. In nonattainment and

maintenance areas, a metropolitan

planning organization (MPO) must

demonstrate that a transportation plan

conforms to the SIP before the

transportation plan can be approved.

During a conformity freeze, no new

transportation plans can be found to

conform pursuant to 40 CFR

93.120(a)(2). Please note that a

transportation plan or transportation

improvement program (TIP) amendment

can be approved during the freeze if it

merely adds or deletes exempt projects

specified in 40 CFR 93.126 and 93.127.

Rail and bus expansions can proceed if

they are implementing TCMs in the SIP

or if they only involve minor

expansions of rail car or bus fleets (40

CFR 93.126).

Comment: Counsel for Our Children’s

Earth and Communities for a Better

Environment presented an argument

that EPA’s disapproval should trigger a

construction ban pursuant to CAA

section 173(a)(4). The rationale

provided was that EPA’s disapproval is

essentially equivalent to a finding that

the SIP is not being adequately

implemented. Alternatively, counsel

requested that EPA issue the following

two orders: (1) An order prohibiting

construction or modification of any

major source, and (2) an order requiring

the BAAQMD to promulgate a rule that

places CAA section 173(a)(4) authority

in the Bay Area’s permitting program.

Response: The CAA separately

identifies a plan disapproval and the

finding of failure to implement the SIP,

and the underlying premise of each is

different. A plan disapproval simply

means that a specific SIP submission

does not meet the applicable

requirements of the CAA. See CAA

section 110(k)(3). Thus those rules or

plans are not incorporated into the

approved SIP. A finding of failure to

implement, however, concerns whether

a state is implementing the

requirements of an approved plan. Thus

the failure of a state to have approved

rules meeting all of the Act’s

requirements (as evidenced by a

disapproval) is not the equivalent of a

failure to implement measures or

requirements that EPA has approved as

meeting the CAA. In this action, there

is clearly no finding that the State is not

implementing provisions approved into

the SIP, and hence, the restrictions on

permitting set forth in section 173(a)(4)

do not apply. EPA is disapproving

portions of a plan and thus the

consequences of disapproval will apply.

L. Comments on Requirement for a New

Plan

Comment: Several commenters

expressed concern that EPA seemed to

be rushing the Bay Area into another

planning process and was not providing

sufficient guidance for the next plan.

Response: Under CAA section 179(d),

the Bay Area has one year from the

effective date of the finding of failure to

attain to submit a new attainment plan.

The State and local agencies have

accelerated their plan development

process, apparently in order to avoid the

consequences of a conformity lapse

which will take effect January 2002 if

the Plan’s deficiencies are not corrected

by that time. EPA is doing its best to be

responsive to the State’s concerns and

schedule while at the same time

providing meaningful input to ensure a

viable plan.

Comment: A number of commenters

suggested that EPA should exercise its

CAA section 179(d)(2) authority to

prescribe control measures. Specific

suggestions include measures that target

stationary sources located within low

income communities of color; public

transit measures; measures that address

issues such as urban sprawl, land use,

and growth in vehicle miles traveled;

and any other measures identified

through public comment.

Response: It is difficult for EPA to

prescribe specific control measures in

the Bay Area where both stationary and

mobile source controls meet, and often

exceed, federal requirements and where

innovative programs and emerging

technologies will be needed for future

emissions reductions. Control measures

currently under development in the

South Coast region (the only ‘‘extreme’’

ozone area in the country) and at CARB

are already being targeted for future Bay

Area plans. Initiatives to address issues

such as urban sprawl and land use are

appropriately devised at the local and

State levels. In light of these factors,

EPA does not believe it would be

reasonable to impose specific controls

under CAA section 179(d)(2) until it

first allows the local agencies and CARB

to explore appropriate feasible measures

for the area.

Comment: Members of the

environmental community urged EPA to

require urban airshed modeling for

future plans and plan revisions.

Response: New urban airshed

modeling will not be available until the

2003–2004 time frame. Moreover, as

noted in section II.B. above, 40 CFR

51.112 allows the use of lesser models

for areas not classified as serious and

higher.

III. Final Action

EPA is finalizing the partial approval/

partial disapproval of the 1999 Plan and

the finding of failure to attain without

any changes from the March 30, 2001

proposal.

A. Plan Elements Approved

EPA is approving the following

portions of the 1999 Plan: The baseline

emissions inventory; the RFP

demonstration through 2000; the

commitment to achieve 11 tons per day

of additional VOC reductions from

implementation of new control

measures (see Table 1 below); and

contingency measures for failure to

attain in 2000 (see Table 2 below). EPA

has determined that these plan elements

meet the requirements of CAA section

172(c), EPA guidance and EPA’s final

redesignation rulemaking (63 FR 37258,

July 10, 1998). EPA is also approving

the removal of TCMs 6, 11, 12, and 16

(see Table 3 below) from the SIP for

ozone purposes as EPA has concluded

that the removal is consistent with

sections 110(l) and 193 of the CAA.

Federal Register / Vol. 66, No. 183 / Thursday, September 20, 2001 / Rules and Regulations 48345

TABLE 1.—NEW BAY AREA MEASURES

VOC Measure (BAAQMD Regulation Number) Adoption

date

Implementation date

Estimated

VOC

Reduction

(tpd), 1995–

2000

SS–01: Can and Coil Coating (8–11) ...................................................................................................... 11/19/97 1/1/98, 1/1/

2000

0.35

SS–02: Equipment Leaks at Refineries and Chemical Plants (8–18) .................................................... 1/7/98 1/7/98 1.20

SS–03: Pressure Relief Devices (8–28) .................................................................................................. 12/17/97, 3/

18/98

7/1/98 0.13

SS–04: Solvent Cleaning (8–16) ............................................................................................................. 9/16/98 9/1/99 2.10

SS–05: Graphic Arts Operations (8–20) ................................................................................................. 3/2/99 7/1/99, 1/1/

2000

0.80

SS–06: Polystyrene Manufacturing (8–52) .............................................................................................. 1999 6/2000 0.26

SS–07: Organic Liquid Storage: Low Emitting Retrofits for Slotted Guide Poles (8–5) ......................... 1999 6/2000 0.48

SS–08: Gasoline Dispensing Facilities (8–7) .......................................................................................... 1999 6/2000 3.20

SS–09/SS–10: Prohibit Aeration of Petroleum Contaminated Soil or Industrial Sludge at Landfills (8–

40) ........................................................................................................................................................ 1999 6/2000 2.68

MS–01: Electric Golf Carts: Require New Golf Cart Purchases to be Electric (ARB State Rule) ......... 1994 3/2000 0.1

TABLE 2.—BAY AREA CONTINGENCY MEASURES

Adopted Control Measure (BAAQMD Regulation or

State/Federal Measure)

Estimated VOC Reductions (tpd) Estimated NOX Reductions (tpd)

2001 2002 2003 2001 2002 2003

Gasoline Dispensing Facilities (8–7) ............................... 0.5 0.9 1.1 .................... .................... ....................

Graphic Arts Printing and Coating Operations (8–20) .... 0.8 0.7 0.7 .................... .................... ....................

Aeration of Contaminated Soil and Removal of Underground Storage Tanks (8–40) ...................................... 0.5 1.0 1.5 .................... .................... ....................

On Road motor Vehicles—Light and Medium Duty Cars

and Trucks (ARB) ......................................................... 14.4 26.8 39.1 16.8 26.4 35.3

On Road Motor Vehicles—Heavy Duty Trucks (ARB) .... 0.1 0.5 0.7 3.3 5.0 6.7

Off Road Mobile Sources (ARB) ..................................... 0.1 0.1 0.2 3.8 7.8 9.5

Gasoline-Powered Recreational Boats—Exhaust Emission Standards (EPA) ................................................... 0.7 1.6 3.6 (.1) (.1) (.2)

Stationary Internal Combustion Engines (9–8) ................ .................... .................... .................... 1.0 1.0 0.9

Stationary Gas Turbines (9–9) ........................................ .................... .................... .................... 0.9 0.9 0.8

Glass Melting Furnaces (9–12) ....................................... .................... .................... .................... 0.2 0.2 0.1

TABLE 3.—TCMS DELETED FROM THE

SIP

TCM 6 .. Construction of Guadalupe light

rail in Santa Clara County and

design work for the North Concord BART extension and Warm

Springs extension.

TCM 11 Gasoline Conservation Awareness

Program (GasCAP).

TCM 12 Santa Clara Commuter Transportation Program.

TCM 16 Construction of BART extension to

Colma.

B. Plan Elements Disapproved

EPA is disapproving the attainment

assessment in the 1999 Plan because

monitored air quality indicates that the

attainment projections were not

realized; that is, the area failed to attain

the ozone NAAQS by November 15,

2000 (CAA section 172(c)(1)). This

disapproval does not include a

protective finding for the motor vehicle

emissions budget because the budget is

not consistent with attainment. EPA is

also disapproving the RACM

demonstration as not meeting the

requirements of CAA section 172(c)(1)

for the reasons explained above.

C. Finding of Failure To Attain

EPA is finding, pursuant to CAA

section 179(c), that the Bay Area failed

to attain the federal 1-hour ozone

standard by its November 15, 2000

attainment deadline.

D. Consequences of Final Action

The effective date of the final

disapproval starts 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 FIP under CAA section

110(c)(1). The disapproval also activates

a conformity freeze under 40 CFR

93.120(a)(2). 62 FR 43796, August 15,

1997. The sanctions and FIP clocks can

be stopped once the State corrects the

1999 Plan deficiencies and EPA

approves the revisions. The freeze will

be lifted once EPA receives an

approvable budget and finds it

adequate.

In response to the finding of failure to

attain, the State is required to submit a

SIP revision for the Bay Area to EPA by

September 20, 2002 (CAA section

179(d)(1)) that meets the requirements

of CAA sections 110 and 172 and

provides for attainment ‘‘as

expeditiously as practicable’’ but no

later than September 20, 2006.

IV. Administrative Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR

51735 (October 4, 1993)), EPA is

required to determine whether

regulatory actions are significant and

therefore should be subject to Office of

Management and Budget (OMB) review,

economic analysis, and the

requirements of the Executive Order.

The Executive Order defines a

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may

meet at least one of the four criteria

identified in section 3(f), including,

under paragraph (1), that the rule may

‘‘have an annual effect on the economy

of $100 million or more or adversely

affect, in a material way, the economy,

a sector of the economy, productivity,

48346 Federal Register / Vol. 66, No. 183 / Thursday, September 20, 2001 / Rules and Regulations

competition, jobs, the environment,

public health or safety, or state, local or

tribal governments or communities.’’

The Agency has determined that the

determination of nonattainment and SIP

approval and disapproval would result

in none of the effects identified in

section 3(f) of the Executive Order. The

determination of nonattainment is a

factual finding based upon air quality

considerations and does not, in and of

itself, impose any new requirements on

any sectors of the economy. SIP

approvals under section 110 and

subchapter I, part D of the CAA do not

create any new requirements but simply

act on requirements that the State is

already imposing. This SIP disapproval

will not change existing requirements

and does not impose any new

requirements. Therefore, these actions

cannot be said to impose a materially

adverse impact on state, local, or tribal

governments or communities.

B. Executive Order 13211

These actions are not subject to

Executive Order 13211, ‘‘Actions

Concerning Regulations That

Significantly Affect Energy Supply,

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

22, 2001)) because they do not

constitute a significant regulatory action

under Executive Order 12866.

C. Executive Order 13045

Executive Order 13045, Protection of

Children from Environmental Health

Risks and Safety Risks (62 FR 19885,

April 23, 1997), applies to any rule that:

(1) Is determined to be economically

significant as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency. These

actions are not subject to Executive

Order 13045 because they are not

economically significant regulatory

actions as defined by Executive Order

12866.

D. Executive Order 13175

Executive Order 13175, entitled

‘‘Consultation and Coordination with

Indian Tribal Governments’’ (65 FR

67249, November 6, 2000), requires EPA

to develop an accountable process to

ensure ‘‘meaningful and timely input by

tribal officials in the development of

regulatory policies that have tribal

implications.’’ ‘‘Policies that have tribal

implications’’ is defined in the

Executive Order to include regulations

that have ‘‘substantial direct effects on

one or more Indian tribes, on the

relationship between the Federal

government and the Indian tribes, or on

the distribution of power and

responsibilities between the Federal

government and Indian tribes.’’

This final rule does not have tribal

implications. It will not have substantial

direct effects on tribal governments, on

the relationship between the Federal

government and Indian tribes, or on the

distribution of power and

responsibilities between the Federal

government and Indian tribes, as

specified in Executive Order 13175. The

SIP approval and disapproval do not

affect any existing requirements or

impose any new requirements. The

determination of nonattainment is a

factual determination and does not

directly regulate any entity.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

small governmental jurisdictions.

SIP approvals under section 110 and

subchapter I, part D of the CAA do not

create any new requirements but simply

act on requirements that the State is

already imposing. The determination of

nonattainment is only a factual

determination, and does not directly

regulate any entities. See 62 FR 60001,

60007–8, and 60010 (November 6, 1997)

for additional analysis of the RFA

implications of attainment

determinations.

EPA’s disapproval does not affect any

existing requirements applicable to

small entities. Any pre-existing federal

requirements remain in place after this

disapproval. Federal disapproval of the

state submittal does not affect state

enforceability. Moreover, EPA’s

disapproval of the submittal does not

impose any new Federal requirements.

Therefore, pursuant to 5 U.S.C.

605(b), I certify that today’s final rule

does not have a significant impact on a

substantial number of small entities

within the meaning of those terms for

RFA purposes.

F. Unfunded Mandates Reform Act

Under section 202 of the Unfunded

Mandates Reform Act of 1995 (UMRA),

signed into law on March 22, 1995, EPA

must prepare a budgetary impact

statement to accompany any proposed

or final rule that includes a Federal

mandate that may result in estimated

annual costs to state, local, or tribal

governments in the aggregate, or to the

private sector, of $100 million or more.

Under section 205, EPA must select the

most cost-effective and least

burdensome alternative that achieves

the objectives of the rule and is

consistent with statutory requirements.

Section 203 requires EPA to establish a

plan for informing and advising any

small governments that may be

significantly or uniquely impacted by

the rule.

As discussed above, the finding of

nonattainment is a factual

determination based upon air quality

considerations and does not, in and of

itself, impose any new requirements.

The SIP approval simply acts on preexisting requirements under State or

local law, and imposes no new

requirements. The SIP disapproval will

not change existing requirements and

imposes no new requirements. Thus,

these actions do not constitute a Federal

mandate, as defined in section 101 of

the UMRA, because they do not impose

an enforceable duty on any entity.

G. Executive Order 13132

Executive Order 13132, entitled

Federalism (64 FR 43255, August 10,

1999) requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by state

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the states, on the relationship

between the national government and

the states, or on the distribution of

power and responsibilities among the

various levels of government.’’ Under

Executive Order 13132, EPA may not

issue a regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the Federal

Government provides the funds

necessary to pay the direct compliance

costs incurred by state and local

governments, or EPA consults with state

and local officials early in the process

of developing the proposed regulation.

EPA also may not issue a regulation that

has federalism implications and that

preempts state law unless the Agency

consults with state and local officials

early in the process of developing the

proposed regulation.

Federal Register / Vol. 66, No. 183 / Thursday, September 20, 2001 / Rules and Regulations 48347

This determination of nonattainment,

SIP approval and disapproval will not

have substantial direct effects on the

states, on the relationship between the

national government and the states, or

on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999), because the actions do

not, in and of themselves, impose any

new requirements on any sectors of the

economy, and do not alter the

relationship or the distribution of power

and responsibilities established in the

CAA. Thus, the requirements of section

6 of the Executive Order do not apply

to these actions.

H. National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (NTTAA), Public Law 104–

113, section 12(d) (15 U.S.C. 272 note)

directs EPA to use voluntary consensus

standards in its regulatory activities

unless to do so would be inconsistent

with applicable law or otherwise

impractical. Voluntary consensus

standards are technical standards (e.g.,

materials specifications, test methods,

sampling procedures, and business

practices) that are developed or adopted

by voluntary consensus standards

bodies. The NTTAA directs EPA to

provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards.

Today’s actions do not involve

technical standards and do not require

the public to perform activities

conducive to the use of voluntary

consensus standards.

I. Submission to Congress and

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the United

States Senate, the United States House

of Representatives, and the Comptroller

General of the United States prior to

publication of the rule in the Federal

Register. A major rule cannot take effect

until 60 days after it is published in the

Federal Register. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

804(2).

J. Petitions for Judicial Review

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

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by November 19, 2001. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. See CAA

section 307(b)(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Incorporation by reference,

Intergovernmental relations, Nitrogen

oxides, Ozone, Reporting and

recordkeeping requirements, Volatile

organic compounds.

Dated: August 28, 2001.

Christine Todd Whitman,

Administrator.

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)(283) to read as

follows:

§ 52.220 Identification of plan.

* * * * *

(c) * * *

(283) San Francisco Bay Area Ozone

Attainment Plan for the 1-Hour National

Ozone Standard, June 1999, was

submitted on August 13, 1999 by the

Governor’s designee.

(i) Incorporation by reference.

(A) Bay Area Air Quality Management

District.

(1) Tables 10 and 12 of the San

Francisco Bay Area Ozone Attainment

Plan for the 1-Hour National Ozone

Standard, June 1999, which detail the

commitment to adopt and implement

any combination of new control

measures to achieve 11 ton per day

reduction in VOC emissions by June

2000.

(2) Contingency measures, Table 18,

‘‘Post-Attainment Year (2000–2003)

Inventory Reductions Reflected in the

SIP’’.

2. Section 52.223 is amended by

adding paragraph (e) to read as follows:

§ 52.223 Approval status.

* * * * *

(e) The Administrator approves the

following portions of the 1999 Ozone

Attainment Plan for the San Francisco

Bay Area submitted by the California

Air Resources Board on August 13,

1999: the 1995 baseline emissions

inventory, the reasonable further

progress demonstration, and the

deletion of transportation control

measures #6 and #16.

3. Section 52.237 is amended by

adding paragraph (a)(6) to read as

follows:

§ 52.237 Part D disapproval.

(a) * * *

(6) The attainment assessment, motor

vehicle emissions budgets, and

Reasonably Available Control Measure

(RACM) portions of the San Francisco

Bay Area Ozone Attainment Plan for the

1–Hour National Ozone Standard, June

1999.

[FR Doc. 01–22125 Filed 9–19–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[PA–4121a; FRL–7059–5 ]

Approval and Promulgation of Air

Quality Implementation Plans;

Pennsylvania; NOX RACT

Determinations for the Latrobe Steel

Company in the Pittsburgh-Beaver

Valley Area; Withdrawal of Direct Final

Rule

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Withdrawal of direct final rule.

SUMMARY: Due to receipt of a letter of

adverse comment, EPA is withdrawing

the direct final rule to approve a

revision to establish reasonably

available control technology (RACT)

requirements for the Latrobe Steel

Company, a major source of nitrogen

oxides (NOX) located in the PittsburghBeaver Valley ozone nonattainment

area. In the direct final rule published

on August 10, 2001 (66 FR 42123), EPA

stated that if it received adverse

comment by September 10, 2001, the

rule would be withdrawn and not take

effect. EPA subsequently received

adverse comments from the Citizens for

Pennsylvania’s Future (PennFuture).

EPA will address the comments

received in a subsequent final action