[Federal Register Volume 62, Number 169 (Tuesday, September 2, 1997)]
[Proposed Rules]
[Pages 46234-46238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23235]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[CA-002-BU; FRL-5886-6]


Clean Air Act Reclassification; California-Santa Barbara 
Nonattainment Area; Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to determine that the Santa Barbara moderate 
ozone nonattainment area has not attained the 1-hour ozone national 
ambient air quality standard (NAAQS) by the Clean Air Act (CAA) 
mandated attainment date for moderate nonattainment areas, November 15, 
1996. The proposed determination is based on EPA's review of monitored 
air quality data for compliance with the 1-hour ozone NAAQS. If EPA 
takes final action on the determination as proposed, the Santa Barbara 
ozone nonattainment area will be reclassified by operation of law as a 
serious nonattainment area. The effect of such a reclassification would 
be to continue progress toward attainment of the 1-hour ozone NAAQS 
through development of a new State implementation plan (SIP) addressing 
attainment of the standard by November 15, 1999.

DATES: Comments on this proposal must be received in writing by October 
2, 1997. Comments should be addressed to the Region 9 office under 
ADDRESSES.

ADDRESSES: Copies of EPA's draft technical support document (TSD) for 
this rulemaking and EPA's policies governing attainment findings and 
extension requests are contained in the docket for this rulemaking. A 
copy of this notice and the TSD are also available in the air programs 
section of EPA Region 9's website, http://www.epa.gov/region09. The 
docket is available for inspection during normal business hours at the 
following locations:

U.S. Environmental Protection Agency, Region 9, Office of Air 
Planning, Air Division, 17th Floor, 75 Hawthorne Street, San 
Francisco, California 94105. (415) 744-1248;
California Air Resources Board; 2020 L Street; Sacramento, 
California; and
Santa Barbara Air Pollution Control District; 26 Castilian Drive B-
23; Goleta, California.

FOR FURTHER INFORMATION CONTACT: Dave Jesson, Office of Air Planning 
(AIR-2), U.S. Environmental Protection Agency, Region 9, 75 Hawthorne 
Street, San Francisco, California 94105. (415) 744-1288.

SUPPLEMENTARY INFORMATION:

I. Background

A. CAA Requirements and EPA Actions Concerning Designation and 
Classifications

    The Clean Air Act Amendments of 1990 (CAA) were enacted on November 
15, 1990. Under section 107(d)(1)(C) of the CAA, each ozone area 
designated nonattainment for the 1-hour ozone NAAQS prior to enactment 
of the 1990 Amendments, such as the Santa Barbara nonattainment area, 
was designated nonattainment by operation of law upon enactment of the 
1990 Amendments.<SUP>1</SUP> Under section 181(a) of the Act, each 
ozone area designated nonattainment under section 107(d) was also 
classified by operation of law as ``marginal,'' ``moderate,'' 
``serious,'' ``severe,'' or ``extreme'' depending on the severity of 
the area's air quality problem. Ozone

[[Page 46235]]

nonattainment areas with design values between 0.138 and 0.160 parts 
per million (ppm), such as the Santa Barbara area, were classified as 
moderate. These nonattainment designations and classifications were 
codified in 40 CFR part 81. See 56 FR 56694 (November 6, 1991). The 
Santa Barbara nonattainment area comprises the entire County of Santa 
Barbara. See 40 CFR 81.305.
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    \1\ On July 18, 1997 (62 FR 38856), PA revised the ozone NAAQS 
to establish a 8-hour standard; however, in order to ensure an 
effective transition to the new 8-hour standard, EPA also retained 
the 1-hour NAAQS for an area until such time as it determines that 
the area meets the 1-hour standard. See revised 40 CFR 50.9 at 62 FR 
38894. As a result of retaining the 1-hour standard, CAA part D, 
subpart 2 Additional Provisions for Ozone Nonattainment Areas, 
including the reclassification provisions of section 181(b), remain 
applicable to areas that are not attaining the 1-hour standard. 
Unless otherwise indicated, all references in this notice are to the 
1-hour ozone NAAQS.
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    States containing areas that were classified as moderate 
nonattainment by operation of law under section 107(d) were required to 
submit State implementation plans (SIPs) designed to show progress 
towards attainment, and attainment of the ozone NAAQS as expeditiously 
as practicable but no later than November 15, 1996. Moderate area SIP 
requirements are found primarily in section 182(b) of the CAA.

B. Reclassification to Serious

    EPA has the responsibility, pursuant to section 181(b)(2)(A) of the 
CAA, of determining, within six months of the applicable attainment 
date (including any extension of that date) <SUP>2</SUP> whether an 
ozone nonattainment area has attained the ozone NAAQS. Under section 
181(b)(2)(A), if EPA finds that a moderate area has not attained the 
ozone NAAQS, it is reclassified by operation of law to the higher of 
the next higher classification or to the classification applicable to 
the area's design value at the time of the finding. Pursuant to section 
186(b)(2)(B) of the Act, EPA must publish a notice in the Federal 
Register identifying areas which failed to attain the standard and 
therefore must be reclassified by operation of law.
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    \2\ Under section 181(a)(5) of the CAA, if a state does not have 
the clean data necessary to show attainment of the NAAQS, it may 
apply for, and EPA may issue, up to two one-year attainment date 
extensions if the state has: (1) Complied with the requirements and 
commitments pertaining to the applicable implementation plan for the 
area, and (2) the area has measured no more than one exceedance of 
the ozone NAAQS at any monitoring site in the nonattainment area in 
the year preceding the extension year. See memorandum from D. Kent 
Berry, Acting Director, Air Quality Management Division, EPA, to 
Regional Air Office Directors, entitled ``Procedures for Processing 
Bump Ups and Extensions for Marginal Ozone Nonattainment Areas,'' 
February 3, 1994 (Berry memorandum). The State has not applied for 
an extension for the Santa Barbara area and, as discussed below, the 
area does not meet the second statutory criterion for such an 
extension.
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    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. 40 CFR 50.9 and 
Appendix H. EPA makes attainment determinations for ozone nonattainment 
areas using the most recently available, quality-assured air quality 
data covering the 3-year period up to and including the attainment 
date.<SUP>3</SUP> Consequently, EPA will determine whether the Santa 
Barbara area's air quality has met the moderate area attainment 
deadline of November 15, 1996 based upon all 1994, 1995, and 1996 
(through November 15) quality-assured air quality data available to the 
Agency.<SUP>4</SUP> From the available data, EPA determines the average 
number of exceedances per year at each ozone monitor during this 
period. If this number is greater than one at any monitor, then the 
area is determined to have not attained by November 15, 1996. EPA then 
calculates the design value for the area to determine the correct new 
classification.<SUP>5</SUP>
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    \3\ See generally 57 FR 13506 (April 16, 1992) and Berry 
memorandum. While explicitly applicable only to marginal areas, the 
general procedures for processing reclassifications and extension 
requests described in this memorandum apply regardless of the 
initial classification of an area because all reclassification are 
made pursuant to the same Clean Air Act requirements in section 
181(b)(2).
    \4\ All quality-assured available data includes all data 
available from the state and local/national air monitoring (SLAMS/
NAMS) network as submitted to EPA's AIRS system and all data 
available to EPA from special purpose monitoring (SPM) sites that 
meet the requirements of 40 CFR 58.13.
    \5\ See memorandum from William G. Laxton, Director Technical 
Support Division, entitled ``Ozone and Carbon Monoxide Design Value 
Calculations,'' June 18, 1990.
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II. Proposal in Regard to the Santa Barbara Ozone Nonattainment 
Area

A. Current Air Quality

    The Santa Barbara County Air Pollution Control District (SBCAPCD) 
and the California Air Resources Board (CARB) have worked hard to 
improve the County's air quality. The early introduction of cleaner 
burning gasoline and the strictest vehicle emission standards in the 
country, reflect CARB's leadership on air quality issues. In addition, 
SBCAPCD has been recognized for it's innovative approaches toward clean 
air. For its efforts, SBCAPCD received the 1996 Presidential Award for 
Sustainable Development and the 1996 Governor's Environmental and 
Economic Leadership Award.
    While CARB and SBCAPCD continue to make progress in addressing the 
ozone problem, more still needs to be done. EPA will work with the 
State, District, local communities, business and environmental 
interests to develop additional approaches to improving Santa Barbara 
County's air quality.
    Attainment of the 1-hour ozone NAAQS is demonstrated in an area 
when the expected number of days per calendar year with maximum hourly 
average ozone concentrations above 0.12 ppm is equal to or less than 
one. 40 CFR 50.9. The average number of days is calculated for a three-
year period. 40 CFR part 50, Appendix H and Laxton memo. The 1994-1996 
period is used to demonstrate attainment by November 15, 1996.
    The SBCAPCD and CARB operate an ozone monitoring network in Santa 
Barbara County which consists of six ozone monitoring stations 
designated as State or Local Air Monitoring Stations (SLAMS). In 
addition to its SLAMS network the SBCAPCD also oversees the operation 
of a number of special purpose monitors (SPMs). These SPMs are operated 
independently by certain permitted stationary sources in the county but 
all data collected at these SPMs are validated and audited by a SBCAPCD 
contractor. All data produced by these SPMs are submitted to the EPA's 
Aerometric Information Retrieval System--Air Quality Subsystem (AIRS-
AQS) database. While these SPMs are not part of the county's SLAMS 
network, data from these sites are used to augment the data from the 
SLAMS network.
    The following table lists the 3-year average number of days over 
the 1-hour ozone standard at each SLAMS/SPM monitoring site in the 
Santa Barbara area for the period 1994 to 1996 and each monitor's 
design value for that period. Design values are calculated following 
the procedures in the Laxton memo. A complete listing of the ozone 
exceedances at each monitor as well as EPA's calculations of the design 
values can be found in the TSD.

[[Page 46236]]



                   Average Number of Ozone Exceedance Days Per Year in the Santa Barbara Area                   
                                                   [1994-1996]                                                  
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                                                                  Number of days                                
                                                                     over the     Average number    Site design 
                              Site                                standard (1994-  of exceedance    value (PPM) 
                                                                       1996)       days per year                
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El Capitan St (SLAMS)...........................................               2             0.7           0.119
Goleta (SLAMS)..................................................               2             0.7           0.119
Gaviota West (SPM)..............................................               1             0.3           0.110
Gaviota East (SPM)..............................................               1             0.3           0.111
Gaviota GTC B (SPM).............................................               1             0.3           0.103
Gaviota GTC C (SPM).............................................               4             1.3           0.125
Carpinteria (SPM)...............................................               4             1.3           0.128
Capitan LFC #1 (SPM)............................................               8             2.7           0.130
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    As can be seen from preceding table, three SPM monitoring sites 
(Gaviota GTC C, Carpinteria, and Capitan LFC #1) have averaged more 
than 1 exceedance day per year in the 1994-1996 period. EPA is, 
therefore, proposing to find that the Santa Barbara area did not attain 
the 1-hour ozone NAAQS by the November 15, 1996, statutory deadline for 
a moderate area.
    EPA is also proposing that the appropriate reclassification of the 
area is to serious. Section 181(b)(2) requires the area to be 
reclassified to the higher of the next higher classification or the 
classification appropriate to the design value at the time of the 
nonattainment finding. The next highest classification for Santa 
Barbara is serious. The other potential classification is severe. Based 
on the design value calculated using data from the SLAMS/SPM network, 
the area's design value is 0.130 ppm. This design value is well below 
the range required for a severe classification, that is 0.180 to 0.280 
ppm.
    In an August 19, 1997 letter, SBCAPCD requested that EPA consider 
applying the reclassification to only the South County <SUP>6</SUP> 
portion of Santa Barbara nonattainment area. Monitoring data from 1990-
1996 indicate that the North County <SUP>7</SUP> portion of the 
nonattainment area is in compliance with the existing 1-hour ozone 
standard. These two areas are separated by the Santa Ynez Mountains. 
EPA is proposing to reclassify the entire Santa Barbara nonattainment 
area. However, EPA is requesting comment on the technical rationale for 
only reclassifying the South County portion of the nonattainment area. 
The technical rationale should include information on North County's 
contribution to the South County's air quality. In addition, EPA is 
requesting information on the current status of and future outlook for 
the North County's air quality in relation to meeting the new 8-hour 
ozone standard.
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    \6\ The SBCAPCD is recommending the following boundaries for the 
South County portion of the nonattainment area: Beginning at the 
Pacific Ocean outfall of Jaluma Creek and running east and north 
along Jaluma Creek to a point of intersection with the west boundary 
of the San Julian Land Grant; then south along the San Julian Land 
Grant boundary to its southwest corner; then east along the south 
boundary of the San Julian Grant to the northeast corner of partial 
Section 20, T. 5 N, R. 32 W, San Bernardino Base and West; then 
south and east along the boundary of the Las Cruces Land Grant to 
the southwest corner of partial Section 13, T. 5 N, R. 32 W; then 
northeast along the Las Cruces Land Grant boundary; then east along 
the north boundaries of Section 13, T. 5 N, R. 32 W, and Sections 
18, 17, 16, 15, 14, 13, T. 5 N, R. 31 W, and Sections 18, 17, 16, 
15, 14, 13, T. 5 N, R. 30 W, and Sections 18, 17, 16, 15, T. 5 N, R. 
29 W; then south along the east boundary of Section 15, T. 5 N, R 29 
W; then east along the north boundaries of Sections 23 and 24, T. 5 
N, R. 29 W, and Sections 19, 20, 21, 22, 23, T. 5 N, R. 28 W, and 
Sections 19 and 20, T. 5 N, R. 27 W; then south along the east 
boundary of Section 20, T. 5 N, R. 27 W, then east along the north 
boundaries of Sections 28, 27, 26, 25, T. 5 N, R. 27 W, and Section 
30 T. 5 N, R. 26 W; then south along the east boundary of Section 
30, T. 5 N, R. 26 W; then east along the north boundaries of 
Sections 32, 33, 34, T. 5 N, R. 26 W; then south along the east 
boundary of Section 35, T. 5 N, R. 26 W to the township line common 
to T. 4 N and T. 5 N; then east along this township line to the 
Santa Barbara-Ventura County boundary; State waters offshore of that 
portion of the Santa Barbara County lying south of the latitude of 
the mouth of the Jalama Creek and those areas of the Outer 
Continental Shelf waters for which the District has been designated 
the corresponding onshore area by the Environmental Protection 
Agency.
    \7\ SBCAPCD is recommending that the North County boundary be 
the remainder of Santa Barbara County and corresponding State waters 
located offshore not included in the previous footnote describing 
the South County boundary.
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B. SIP Requirements for Serious Ozone Areas

    Under section 181(a)(1) of the Act, the attainment deadline for 
moderate area ozone nonattainment areas reclassified to serious under 
section 181(b)(2) will be as expeditiously as practicable but no later 
than November 15, 1999. Under section 182(i), these reclassified areas 
are required to submit SIP revisions addressing the serious area 
requirements for the 1-hour ozone NAAQS in section 182(c). Section 
182(i) further provides that the Administrator may adjust the statutory 
schedules for submittal of these SIP revisions. Accordingly, EPA is 
exercising this authority to require submittal of the serious area SIP 
revisions no later than 12 months from the effective date of the area's 
reclassification. EPA believes that a 12 months schedule is appropriate 
because attainment date for serious areas, November 15, 1999, is little 
more than 2 years away and the State will need to expedite adoption and 
implementation of controls to meet that deadline. EPA is requesting 
comment on the proposed 12 month schedule.
    Under section 182(c), the requirements for serious ozone 
nonattainment areas include, but are not limited to, the following: (1) 
Attainment and reasonable further progress demonstrations; (2) an 
enhanced vehicle inspection and maintenance program; (3) clean-fuel 
vehicle programs; (4) a 50 ton-per-year major source threshold; (5) 
more stringent new source review requirements; (6) an enhanced 
monitoring program; and (7) contingency provisions.
    EPA has issued a ``General Preamble for the Implementation of Title 
I of the Clean Air Act Amendments of 1990'' that sets forth the 
Agency's preliminary views on how it will act on SIPs submitted under 
Title I of the Act. See generally 57 FR 13498 (April 16, 1992) and 57 
FR 18070 (April 28, 1992).
    EPA has recently promulgated an 8-hour ozone standard (62 FR 38856, 
July 18, 1997). In order to facilitate the transition from the 1-hour 
to the 8-hour NAAQS, EPA may issue additional guidance to assist states 
in meeting the serious area requirements.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future action. Each 
finding of failure to attain or request for an extension of an 
attainment date shall be considered separately and shall be based on 
the factual situation of the area under

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consideration and in relation to relevant statutory and regulatory 
requirements.

III. Administrative Requirements

A. Executive Order (E.O.) 12866

    Under E.O. 12866 (58 FR 51735, October 4, 1993), EPA is required to 
determine whether today's proposal is a ``significant regulatory 
action'' within the meaning of the E.O., and therefore should be 
subject to OMB review, economic analysis, and the requirements of the 
E.O. See E.O. 12866, section 6(a)(3). The E.O. defines, in section 
3(f), a ``significant regulatory action'' as a regulatory action that 
is likely to result in a rule that may meet at least one of four 
criteria identified in section 3(f), including,

    (1) 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, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

    EPA has determined that the finding of failure to attain proposed 
today, as well as the establishment of SIP submittal schedules 
resulting from a reclassification, would result in none of the effects 
identified in E.O. 12866, section 3(f). Under section 181(b)(2) of the 
Act, findings of failure to attain are based upon air quality 
considerations, and reclassifications must occur by operation of law in 
light of certain air quality conditions. These findings do not, in and 
of themselves, impose any new requirements on any sectors of the 
economy. In addition, because the statutory requirements are clearly 
defined with respect to the differently classified areas, and because 
those requirements are automatically triggered by classifications that, 
in turn, are triggered by air quality values, findings of failure to 
attain and reclassification cannot be said to impose a materially 
adverse impact on State, local, or tribal governments or communities. 
Similarly, the establishment of new SIP submittal schedules merely 
establishes the dates by which SIPs must be submitted, and does not 
adversely affect entities.

B. Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. 601 et. seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C 603 and 604. 
Alternatively, EPA may certify 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 government entities with jurisdiction over populations 
of less than 50,000.
    A finding of failure to attain (and the consequent reclassification 
by operation of law of the nonattainment area) under section 181(b)(2) 
of the Act, and the establishment of a SIP submittal schedule for a 
reclassified area, do not, in and of themselves, directly impose any 
new requirements on small entities. See Mid-Tex Electric Cooperative, 
Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985) (agency's certification 
need only consider the rule's impact on entities subject to the 
requirements of the rule). Instead, this rulemaking simply proposes to 
make a factual determination and to establish a schedule to require 
States to submit SIP revisions, and does not propose to directly 
regulate any entities. Therefore, pursuant to 5 U.S.C. 605(b), EPA 
certifies that today's proposed action does not have a significant 
impact on a substantial number of small entities within the meaning of 
those terms for RFA purposes.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, when EPA promulgates ``any general notice of proposed 
rulemaking that is likely to result in promulgation of any rule that 
includes any Federal mandate that may result in the expenditures by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more'' in any one year. A ``Federal 
mandate'' is defined, under section 101 of UMRA, as a provision that 
``would impose an enforceable duty'' upon the private sector or State, 
local, or tribal governments'', with certain exceptions not here 
relevant. Under sec. 203 of UMRA, EPA must develop a small government 
agency plan before EPA ``establish[es] any regulatory requirements that 
might significantly or uniquely affect small governments''. Under 
section 204 of UMRA, EPA is required to develop a process to facilitate 
input by elected officers of State, local, and tribal governments for 
EPA's ``regulatory proposals'' that contain significant Federal 
intergovernmental mandates. Under section 205 of UMRA, before EPA 
promulgates ``any rule for which a written statement is required under 
[UMRA sec.] 202'', EPA must identify and consider a reasonable number 
of regulatory alternatives and either adopt the least costly, most 
cost-effective or least burdensome alternative that achieves the 
objectives of the rule, or explain why a different alternative was 
selected.
    Sections 202, 204, and 205 of UMRA do not apply to today's action 
because the proposed factual determination that Santa Barbara County 
failed to reach attainment does not, in and of itself, constitute a 
Federal mandate because it does not impose an enforceable duty on any 
entity. Although the establishment of a SIP submission schedule may 
impose such a duty on the State, this requirement merely establishes 
due dates, does not set out any requirements not otherwise already 
present, and thus cannot be considered to cost $100 million or more. 
Finally, section 203 of UMRA does not apply to today's action because 
the regulatory requirements proposed today--the SIP submittal 
schedule--affect only Santa Barbara County, which is not a small 
government under UMRA.

D. Rule vs. Adjudication

    It should be noted that each of the three administrative 
requirements described above--E.O. 12866, the Regulatory Flexibility 
Act, and UMRA--apply only with respect to agency actions that fall into 
the category of ``rules'', as defined under those provisions or under 
the Administrative Procedures Act. E.O. 12866 sec. 3 (d)-(e); 
Regulatory Flexibility Act, 5 U.S.C. sec. 603(a), 601(2); Unfunded 
Mandates Reform Act, secs. 202-205, 421. EPA is considering the 
possibility that today's action, to the extent it consists of a 
determination that Santa Barbara County failed to attain the ozone 
NAAQS as of the end of 1996, might not be considered a ``rule'' as 
defined under these provisions, and instead might be considered an 
informal adjudication. The basis for this distinction could be that 
today's action constitutes a specific factual determination applicable 
only to the area in question, based on pre-existing facts. Under these 
circumstances, the administrative

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requirements discussed above might not apply. However, EPA is taking 
this approach under consideration; it is not today proposing this 
approach.

List of Subjects in 40 CFR Part 81

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

    Authority: 42 U.S.C. 7401-7671q.

    Dated: August 25, 1997.
Felicia Marcus,
Regional Administrator, Region IX.
[FR Doc. 97-23235 Filed 8-29-97; 8:45 am]
BILLING CODE 6560-50-U