56476 Federal Register/Vol. 66, No. 217/Thursday, November 8, 2001/Rules and Regulations

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. 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 January 7, 2002.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Intergovernmental

relations, Incorporation by reference,

Nitrogen oxides, Ozone, Reporting and

recordkeeping requirements.

Dated: September 27, 2001.

David A. Ulirich,

Acting Regional Administrator, Region 5.

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 P-Indiana

2. Section 52.770 is amended by

adding paragraph (c)(144) to read as

follows:

§52.770 Identification of plan.

(c) * * *

(144) On August 20, 2001 and

September 19, 2001, Indiana submitted

a plan in response to Phase I of the NOx

SIP Call. The plan includes Indiana's

Phase I NOx Budget Demonstration and

supporting documentation including

initial unit allocations and two new

rules: 326 IAC 10-3 and 326 IAC 10-4.

(i) Incorporation by reference.

(A) Indiana Administrative Code Title

326: Air Pollution Control Board,

Article 10; Ozone rules, Rule 3: Nitrogen

Oxide Reduction Program for Specific

Source Categories (326 IAC 10-3).

Adopted June 6, 2001. Submitted

August 20, 2001 and September 19,

2001. State effective September 16,

2001.

(B) Indiana Administrative Code Title

326: Air Pollution Control Board,

Article 10; Ozone rules, Rule 4: Nitrogen

Oxides Budget Trading Program (326

IAC 10-4). Adopted June 6, 2001.

Submitted August 20, 2001 and

September 19, 2001. State effective

September 16, 2001.

[FR Doc. 01-27931 Filed 11-7-01; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 81

[CA-059-RECL, FRL-7093-4]

Clean Air Act Reclassification, San

Joaquin Valley Nonattainment Area;

Designation of East Kern County

Nonattainment Area and Extension of

Attainment Date; California; Ozone

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is taking final action to

change the boundary for the San Joaquin

Valley (SJV) serious ozone

nonattainment area by separating out

the eastern portion of Kern County into

its own nonattainment area. EPA is

extending the attainment deadline for

the new East Kern County serious ozone

nonattainment area from November 15,

1999 to November 15, 2001.

EPA is taking final action to find that

the SJV area did not attain the 1-hour

ozone national ambient air quality

standard (NAAQS) by the November 15,

1999 Clean Air Act (CAA) deadline. As

a result, the SJV ozone nonattainment

area with its revised boundaries is

reclassified by operation of law as a

severe area. The State must submit by

May 31, 2002, a severe area ozone

nonattainment plan for the SJV (now

excluding the East Kern County ozone

nonattainment area) that provides for

the attainment of the ozone NAAQS as

expeditiously as practicable, but no later

than November 15, 2005. This plan

must meet the specific provisions of

CAA section 182(d).

EPA is taking final action to find that

the approved serious area ozone State

Implementation Plan (SIP) for the SJV

has not been fully implemented. As a

result of this finding, the State must

adopt and implement the specified

measures by November 15, 2002 or be

subject to sanctions pursuant to sections

179(a) and (b) of the CAA. This finding

and any potential sanctions do not

apply to the newly established East

Kern County ozone nonattainment area,

where the SIP is being fully

implemented.

EFFECTIVE DATE: December 10, 2001.

ADDRESSES: The rulemaking docket is

available for inspection during normal

business hours in the Air Docket, EPA

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105. This rule and the

Technical Support Documents for the

proposed actions are also available in

the air programs section of EPA Region

9's website, http://www.epa.govl

region 09/air.

FOR FURTHER INFORMATION CONTACT: John

Ungvarsky, Planning Office (AIR-2), Air

Division, EPA Region IX, 75 Hawthorne

Street, San Francisco, CA 94105, (415)

744-1286, or ungvarsky.john@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction

On June 19, 2000, EPA proposed to

find that the SJV serious ozone

nonattainment area did not attain the 1-

hour ozone NAAQS by November 15,

1999, the attainment deadline for

serious ozone nonattainment areas

under CAA section 181(a). 65 FR 37926.

The current SJV nonattainment area

includes the counties of San Joaquin,

Kern, Fresno, Kings, Madera, Merced,

Stanislaus and Tulare. 40 CFR 81.301.

EPA also proposed to find that the SJV

SIP had not been fully implemented,

because the San Joaquin Valley Unified

Air Pollution Control District

(SJVUAPCD) had failed to adopt and

implement six measures by the

deadlines in the SIP.
Federal Register/Vol. 66, No. 217 / Thursday, November 8, 2001/Rules and Regulations

During the public comment period for

the proposal, EPA received comments

requesting that EPA remove the eastern

portion of Kern County from the SJV

ozone nonattainment area and designate

it a separate ozone nonattainment area.

On August 28, 2000, the California Air

Resources Board (CARB) formally

requested that EPA create a separate

ozone nonattainment area for East Kern

County and grant this area two 1-year

attainment date extensions.

EPA found the State's request

compelling and, on May 18, 2001,

issued a reproposal to revise the SJV

ozone nonattainment area by changing

its boundaries to remove eastern Kern

County.' 66 FR 27616. In order to reflect

this proposed boundary change, EPA

reproposed the Agency's finding that

the remaining portion of SJV did not

attain the ozone NAAQS by the

statutory deadline and, accordingly,

would be reclassified by operation of

law as a severe ozone nonattainment

area if EPA finalized the finding. EPA

proposed that the East Kern County

ozone nonattainment area would keep

its serious classification because the

area had not recorded more than one

exceedance of the ozone NAAQS over

the past two years and the East Kern

County area otherwise qualified for two

1-year extensions of the November 15,

1999 attainment deadline pursuant to

CAA section 181(a)(5). EPA therefore

proposed that the attainment deadline

for East Kern County ozone

nonattainment area be extended to

November 15, 2001.

II. Response to Public Comments and

Final Action

In this document, EPA is responding

to comments submitted in response to

the initial proposal (65 FR 37926) and

the reproposal (66 FR 27616).

A. Establishment of East Kern County as

a Separate Ozone Nonattainment Area

With a Serious Ozone Nonattainment

Area Classification and an Extended

Attainment Date

As discussed in the reproposal, the

public comments submitted in response

to the initial proposal supported

removal of East Kern County from the

SJV ozone nonattainment area and

establishment of this new area as a

serious ozone nonattainment area with

an extended attainment deadline. No

1 The new boundary line requested by the State

is the same as the current boundary between the

Kern County and San Joaquin Valley air districts

and generally follows the ridge line of the Sierra

Nevada and Tehachapi Mountain Ranges. The

precise description of the new boundary appears at

the end of this notice in the revision to 40 CFR part

81.

commenters on either the initial

proposal or the reproposal opposed

these actions. Therefore, for the reasons

set forth in the reproposal (66 FR

27617-27620), EPA is today taking final

action to grant the State's requests: (1)

To split the SJV ozone nonattainment

area into two separate ozone

nonattainment areas pursuant to CAA

section 107(d)(3)(D); (2) to retain for the

new East Kern County ozone

nonattainment area the serious

nonattainment area ozone classification;

and (3) to grant two 1-year attainment

date extensions pursuant to CAA

section 181(a)(5), thus establishing an

attainment deadline of November 15,

2001.

B. Finding of Failure To Attain for the

San Joaquin Valley Ozone

Nonattainment Area

EPA received no comments opposing

the Agency's finding that the SJV ozone

nonattainment area failed to attain the

1-hour ozone standard by the November

15, 1999 deadline. Accordingly, and for

the reasons set forth in the proposals (65

FR 37927-37928 and 66 FR 27617), EPA

is today issuing the final finding under

CAA section 181(b)(2)(A).

C. Attainment Deadline for the San

Joaquin Valley Ozone Nonattainment

Area

As a consequence of EPA's finding of

failure to attain, the SJV ozone

nonattainment area is reclassified by

operation of law to severe. The CAA

provides that severe ozone

nonattainment areas must attain the

ozone NAAQS as expeditiously as

practicable, but no later than 15 years

after enactment of the 1990 CAA

Amendments, or November 15, 2005.

CAA section 181(a)(2) also establishes a "severe 17" classification for areas with

a 1988 ozone design value between

0.190 parts per million (ppm) and 0.280

ppm. 2 Areas meeting this criterion are

required to attain the ozone NAAQS as

expeditiously as practicable but no later

than 17 years after enactment of the

1990 CAA Amendments (i.e., by

November 15, 2007).

In the reproposal, EPA noted that the

design value for the SJV ozone

nonattainment area is 0.161 ppm. 66 FR

27617. Although this value is below the

CAA criterion for the severe-1 7

classification, EPA referenced a State

2 The 1-hour ozone NAAQS is 0.12 ppm. A

monitor's design value is the fourth highest ambient

concentration recorded at that monitor over the

previous three-year period. An area's design value

is the highest of the design values from the area's

monitors. A design value is one indication of the

severity of the ozone problem in an area. It is also

used in determining the level of emission

reductions needed to attain the standard.

suggestion that attainment by 2005 may

not be possible for the SJV ozone

nonattainment area, given the area's air

quality problem. Accordingly, EPA

solicited comment on the viability of the

2005 deadline, and on any legal, policy,

and technical rationale for allowing a

2007 attainment deadline.

1. Comments Supporting a 2007

Attainment Deadline

State legislators, local governments,

CARB, and SJVUAPCD provided the

following arguments in support of a

severe-17 classification.

(a) It is not feasible to attain by 2005

based on preliminary photochemical

modeling which identifies the need for

an additional 150 tons per day (tpd) of

the two principal ozone precursorsvolatile organic compounds (VOCs) and

oxides of nitrogen (NOx). This is a 30

percent reduction in ozone precursors

beyond projected 2005 levels with all

adopted controls. CARB observed that

the only extreme ozone nonattainment

area in the country, the South Coast

(metropolitan Los Angeles) area,

requires the same 150 tpd reduction of

VOC emissions to attain but is allowed,

by its CAA classification, until 2010 to

achieve these reductions.

(b) SJV's design value is higher than

the design value for all other areas in

the country with a 2005 attainment

deadline. In addition, the magnitude of

the attainment task is reflected in the

number of days over the standard. SJV

has not only a higher design value but

also a greater number of days over the

standard compared to other areas with

a 2007 deadline. Although the 1990

CAA Amendments based classifications

solely on design value, it is relevant to

consider the fact that SJV had at that

time the third highest number of

exceedance days in the country. SJV has

already achieved larger emissions

reductions than have any areas that are

assigned a 2007 date, both in the

percentage of emissions reduced and the

actual tons of emissions reduced. SJV

has achieved these reductions but has

not been able to reduce its design value.

This makes clear that SJV has one of the

most severe ozone problems in the

country, requiring additional time to

achieve the NAAQS.

(c) Any new controls would have to

be implemented by 2003, which is the

first year that counts towards a 2005

attainment date. The SJV area already

has in place stringent controls. More

time is needed for technology

advancements in order to implement the

measures required to bring SJV into

attainment. More time will also decrease

the impact of new controls on

businesses.

56477
56478 Federal Register/Vol. 66, No. 217/Thursday, November 8, 2001/Rules and Regulations

(d) Additional time is also critically

needed to achieve mobile source fleet

turnover to meet more stringent

standards, and to secure and distribute

incentive funding to support

replacement of older vehicles. The

problem is greater because State

incentive money to retrofit engines is

being diverted to buy emissions offsets

for new electricity generators required

to meet the energy crisis.

(e) New State and federal controls on

heavy-duty trucks, low emission

vehicles, and reformulation of diesel

fuel will be much more effective in 2007

than in 2005 due to phase-in schedules,

since many of these controls go into

effect in 2004 and the penetration rate

in the first two years is extremely low.

(f) A 2007 deadline meets the CAA

requirement for attainment as

expeditiously as practicable based on

SJV's air quality, emission reduction,

and control strategy issues.

(g) The SJV ozone nonattainment area

is greatly impacted by pollution from

the San Francisco Bay Area. Assuming

that the Bay Area is granted a 2006

attainment date, the SJV's attainment

date should be later.

(h) Emissions reductions from post2003 federal Congestion Mitigation and

Air Quality (CMAQ) transportation

funding will be needed for attainment,

and these funds cannot be secured until

the Transportation Equity Act is

reauthorized, which is expected in

2004.

(i) Smart Growth policies have the

potential to reduce emissions but

require more time for implementation

than would be available assuming a

2005 attainment deadline.

(j) Sources under federal control are a

significant fraction of the SJV emission

inventory, especially interstate trucks,

farm and construction equipment, and

locomotives, and the problem is

exacerbated by the fact that the sources

are particularly active in the harvest

(and smog) season. Given the scale of

reductions needed for attainment, the

federal government must reduce its

share of the inventory. Like California,

EPA will need to consider not just new

standards but also retrofits and

accelerated turnover of the existing

fleet. As a regulatory partner, EPA

would agree that a 2005 date does not

allow sufficient time to accomplish

these necessary reductions. The SJV

attainment problem is compounded by

the presence of two major transportation

corridors (Interstate 5 and Freeway 99)

and by EPA's failure to enforce

adequately the existing national

standard for heavy-duty engines and

failure to act in a timely manner on the

manufacturers' consent degree, resulting

in a significant increase in NOx

emissions.

(k) EPA has sufficient authority and

discretion under CAA sections 172 and

181 to set a 2007 deadline, based on the

severity of nonattainment, and the

availability and feasibility of control

measures.

2. Comments Supporting a 2005

Attainment Deadline

The Center on Race, Poverty & the

Environment (CRPE) and Earthjustice

Legal Defense Fund submitted

comments opposing the 2007 attainment

deadline. These groups stated that EPA

lacks the authority to grant an extension

of the attainment deadline from 2005 to

2007. The 2005 deadline is explicit in

the CAA and so EPA has no

administrative discretion to grant an

extension beyond that date. In addition

to being patently illegal, granting the

2007 deadline would force the millions

of Valley residents to breathe dangerous

levels of smog at least two years longer

than necessary. This 2007 extension

would result in human suffering and

medical costs far in excess of the

temporarily-avoided compliance costs.

Granting the SJVUAPCD additional time

when it is not implementing its own

inadequate plan would reward and

perpetuate further inaction. In contrast

to the SJVUAPCD, other agencies (such

as the South Coast Air Quality

Management District) have adopted

stringent controls and are on a trajectory

to attain the ozone NAAQS, so technical

arguments for delaying full

implementation of public health

protections in the SJV should not be

taken seriously.

3. EPA Response to Comments and

Final Action

EPA agrees with many of the

comments supporting the difficulty of

developing a plan to demonstrate

attainment of the NAAQS by the 2005

date. This deadline presents a

remarkable challenge for an area with

SJV's characteristics: meteorology and

topography providing diverse

conditions favorable to the formation of

ozone; large numbers of small emissions

sources already subject, in many cases,

to stringent controls and, in other cases,

capable of further control only through

costly retrofit, rebuild, or replacement

programs; substantial mobile source and

process emissions sources associated

with the area's dominant agricultural

economy and therefore operating at

peak levels during the ozone season;

and large interstate transportation

emissions from truck and rail operations

that are not generally susceptible to

control at local and state levels.

Equitable considerations suggest that a

2007 attainment deadline might be at

least as appropriate for the SJV ozone

nonattainment area as for other areas

that were assigned severe-17

classifications in accordance with the

provisions of 1990 CAA Amendments.

EPA has concluded, however, that the

CAA does not provide the Agency

authority to set a 2007 attainment

deadline for the SJV ozone

nonattainment area based on these

considerations. When EPA finds that an

ozone nonattainment area failed to

attain the ozone standard by its

attainment date pursuant to section

181(b)(2), that section provides that the

area "shall be reclassified by operation

of law in accordance with table 1 of

subsection (a) to the higher of-(i) the

next higher classification for the area, or

(ii) the classification applicable to the

area's design value as determined at the

time of the notice required under

subparagraph (B)." The phrase "in

accordance with table 1" prevents EPA

from providing a 2007 attainment date

for the SJV in this action because, for

the severe area class, table 1 establishes

an attainment date of "15 years after

enactment [i.e., 2005]." CAA 181(a). The

2007 attainment deadline is set forth not

in table 1 but in CAA section 181(a)(2),

which states: "Notwithstanding table 1,

in the case of a severe area with a 1988

ozone design value between 0.190 and

0.280 ppm, the attainment date shall be

17 years (in lieu of 15 years) after the

date of enactment of the Clean Air Act

Amendments of 1990." Thus, the 2007

attainment date is not provided for in

Table 1, which is what Congress

required EPA to act in accordance with

when an area is reclassified pursuant to

section 181(b). Consequently, EPA does

not believe that it has the authority to

provide the SJV with a 2007 attainment

date in this action. However, under

section 181(b)(3) of the Act, the State

may request a reclassification and

receive a 2010 attainment deadline in

order to have the additional time the

State believes is necessary to attain

ozone NAAQS.

Although EPA cannot agree with the

State and other commenters that the

Agency has the discretion to grant the

State's request for a 2007 attainment

deadline, EPA does agree that

attainment by 2005 requires emission

reductions from all quarters, and EPA

intends to work closely with the State

and local agencies to explore

opportunities for the federal government

to contribute additional controls or

other assistance to advance attainment

in the SJV ozone nonattainment area.
Federal Register/Vol. 66, No. 217 / Thursday, November 8, 2001/Rules and Regulations

D. Deadline for Submittal of a Revised

SIP Addressing the CAA Provisions for

Severe Ozone Nonattainment Areas

1. EPA's Proposal

EPA's initial proposed finding of

failure to attain, proposed that the State

be required to submit a severe area SIP

revision no later than 18 months from

the effective date of the area's

reclassification. 65 FR 37928. However,

EPA also proposed that the SJVUAPCD

be required to submit a revised new

source review (NSR) rule within 180

days of the final date of the

reclassification, in order to ensure that

the District's definitions of "Major

Source" and "Distance Offset Ratio"

reflect the severe area requirements. 65

FR 37928-37929.

EPA's reproposal noted that CAA

section 182(i) authorizes EPA to adjust

applicable deadlines as appropriate.

EPA proposed a SIP submittal deadline

of May 31, 2002, in order to ensure that

control measures are put in place as

quickly as possible and there is ample

time for the measures to take effect

before the attainment deadline. The

reproposal stated that this deadline is

reasonable given the advance notice

provided by our initial proposal, issued

on June 19, 2000, and the planning

efforts already underway at State and

local levels. 66 FR 27617.

2. Public Comments

No commenters on the initial

proposal addressed the SIP submittal

deadline issue. In response to the

reproposal, EPA received four

comments. The San Joaquin Valley

Transportation Planning Agencies

Director's Association (TPA) and Tulare

County Association of Governments

(TCAG) requested that the deadline be

changed to August 31, 2002, in order to

allow the revised SIP to incorporate

updated transportation planning

assumptions. TPA also noted that the

reproposal's May 31, 2002 deadline is

inconsistent with EPA's policy of

allowing 18 months for SIP

development. The Western States

Petroleum Association (WSPA)

requested a six-month extension of the

SIP sumittal deadline for the following

reasons: The May 31, 2002 deadline

would not allow enough time for the

regulatory review process necessary for

new District rules; WSPA has serious

concerns about basing a control strategy

on a single design-day ozone episode;

the Central California Ozone Study

(CCOS) is now available but has yet to

be fully considered; the SIP needs to

focus more on mobile source reduction

strategies because previous significant

stationary source reductions have not

resulted in a corresponding

improvement in air quality. Earthjustice

supported EPA's May 31, 2002 deadline,

noting that this date affords ample time

to prepare the revision since it is 30

months after the area's November 15,

1999 attainment deadline.

3. EPA Response to Comments and

Final Action

EPA agrees with TPA and TCAG that

the revised SIP should include updated

transportation emissions and the latest

planning assumptions. However, the

commenters submitted no evidence

demonstrating that these updates cannot

be completed in time to be incorporated

in a SIP submitted by May 31, 2002.

EPA believes that the transportation

plan and emissions updates can, in fact,

be prepared on this schedule. EPA is

also concerned that the SIP needs to be

prepared no later than this date in order

to provide a reasonable opportunity for

the State, local agencies, and affected

public to meet the SIP emission

reduction milestone requirements for

2002 under CAA section 182(c)(2)(B).

Regarding the WSPA comments,

neither the District nor the State

commented that the May 31, 2002

deadline would present any of the

problems suggested by WSPA. EPA

announcements concerning the pending

reclassification began in late 1999 and

became official in June 2000. This has

given the responsible agencies adequate

time to plan their rulemaking calendars.

EPA acknowledged in its June 2000

proposal that the results from CCOS

may not be fully available to meet the

SIP deadlines. The planning process is

dynamic and new information will

continue to be developed even after the

CCOS information is available; the State

always has the option of revising its SIP

based on new information. Regarding

mobile sources versus stationary

sources, EPA relies on the state to

develop a control strategy the takes into

account the mix of sources affecting the

area. EPA is therefore not extending the

SIP deadline, both because neither the

State nor the local air pollution control

agencies requested the additional time,

and because the six-month delay would

further postpone reductions and

planning efforts necessary for air quality

improvements in the SJV.

Therefore, EPA is using the authority

provided in the CAA to finalize May 31,

2002, as the SIP submittal deadline. By

this date, the State must submit a plan

addressing all of the severe area

requirements.

As noted in the initial proposal, CAA

section 182(d)(3) sets a deadline of

December 31, 2000, to submit the plan

revision requiring fees for major sources

should the area fail to attain. Pursuant

to CAA section 182(i), EPA proposed to

adjust this date to coincide with the

submittal deadline for the rest of the

severe area requirements. EPA is here

finalizing that proposal and establishing

May 31, 2002, as the deadline for

submitting the emissions fee rule

responsive to CAA sections 182(d)(3)

and 185.

In the initial proposal, EPA proposed

to require that the more stringent severearea NSR rule, which includes a higher

offset ratio and lower applicability level,

must be submitted no later than 180

days from the effective date of the SJV

area's reclassification to severe. Since

this 180-day deadline would now

approximate the May 31, 2002 deadline

set for the comprehensive severe area

plan, EPA is not finalizing the proposed

180-day deadline for the NSR rule

revision. Instead, the State will be

required to submit by May 31, 2002, a

revised NSR rule meeting the severe

area provisions of CAA section 182(d).

E. Adoption and Implementation of

Reasonably Available Control

Technology (RACT) Rules

EPA's initial proposal indicated that

the revised severe ozone SIP for SJV

needed to meet the RACT requirement

for sources subject to the new lower

major source applicability cutoff of 25

tons per year (tpy), pursuant to CAA

section 182(d). As discussed above, the

initial proposal set the deadline for

submitting the severe ozone SIP as 18

months from the effective date of the

reclassification of the SJV to severe, and

the reproposal set the deadline as May

31, 2002. In response to the initial

proposal, SJVUAPCD indicated that

"the District should be able to adopt

RACT rules shortly before the 18-month

sanction deadline." 3 EPA presumes that

this comment indicates that the District

expected to be able to meet the rule

adoption deadline in the reproposal,

which is more than 23 months after the

initial proposal was published. EPA is

finalizing the May 31, 2002 SIP deadline

as applicable to the RACT rule revisions

provided in CAA section 182(d) for

major stationary sources at the severe

area applicability level of 25 tpy.

SJVUAPCD's comment on the initial

proposal indicated that the District

would set the final RACT compliance

dates to coincide with the 2005

attainment date, "in order to allow as

much time as possible for source

operators to install controls." Under

CAA section 172(c)(1), nonattainment

3Letter from David L. Crow, SJVUAPCD APCO/

Executive Officer, to John Ungvarsky, EPA, dated

August 24, 2000.

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56480 Federal Register/Vol. 66, No. 217/Thursday, November 8, 2001/Rules and Regulations

plans must "provide for the

implementation of all reasonably

available control measures as

expeditiously as practicable (including

such reductions in emissions from

existing sources in the area as may be

obtained through the adoption, at a

minimum, of reasonably available

control technology) * * *." The

SJVUAPCD's RACT compliance

schedule should be as expeditious as

practicable, both to address this

fundamental CAA provision and to

speed progress in public health

protection. EPA cannot approve RACT

compliance schedules that are not as

expeditious as practicable but are rather

designed to allow as much time as

possible for source operators to install

controls. Given that the District has

known about this RACT requirement

since EPA's June 19, 2000 proposal,

EPA does not believe that 2005

represents expeditious implementation

of the RACT requirement. Neither the

State nor District has provided a

compelling reason why the new RACT

rules could not be implemented prior to

2005. Accordingly, EPA is finalizing the

May 31, 2002 deadline for submittal of

new RACT rules, and EPA strongly

encourages the District to implement the

rules within 18 months of the effective

date of the reclassification.

F. Transportation Conformity Budgets

1. EPA's Proposal

EPA's initial proposal indicated that

the revised SJV attainment

demonstration may establish motor

vehicle emissions budgets for subareas

within the region if the modeling in the

SIP shows that attainment will result

when all subarea budgets are met. The

initial proposal further stated that there

would be no allowance for shifting of

growth from one subarea to another. 65

FR 37929.

2. Public Comments

In response to the initial proposal,

CARB supported a single budget as

providing better alignment with the new

region wide attainment demonstration,

while providing greater flexibility by

allowing higher than expected

emissions in one portion of the valley to

be offset by lower emissions in the rest

of the region. On the other hand, several

of the SJV transportation planning

agencies, TPA, and SJVUAPCD

endorsed the establishment of separate

budgets for each subarea, with trading

allowed between subareas so long as the

total of all subarea budgets does not

exceed the region wide total emission

budget. SJVUAPCD further indicated

that the new SJV SIP will address the

maximum amount of emissions that can

be traded and the distance over which

these emissions are traded, and a

requirement that all subareas not

included in a trade should have

currently valid conformity findings for

their Regional Transportation Plan and

Transportation Improvement Programs.

3. EPA Response to Public Comments

and Final Action

EPA appreciates the complexity of

transportation planning in a vast

nonattainment area where the

responsibility for preparing, adopting,

and amending transportation plans and

programs is assigned to 8 separate

councils of government. The State and

local agencies may elect to address the

CAA section 176(c) transportation

conformity provisions by means of

either a region wide budget or separate

budgets for subareas. EPA intends to

work with all involved parties to ensure

that the SIP's budget (or budgets) and

conformity provisions provide needed

flexibility without jeopardizing the

attainment demonstration or the

integrity of the regional and local

transportation planning processes. In

this final action, EPA cautions that

subarea budgets must be fully

documented and that the budgets and

future conformity determinations must

be consistent with the region wide

attainment demonstration. A significant

shift in growth from one subarea to

another may therefore require a new

modeled attainment demonstration with

revised subarea budgets.

G. Nonimplementation Finding

1. EPA's Proposal

The initial proposal included a

proposed nonimplementation finding,

based on the failure of the SJVUAPCD

to meet its SIP commitments to adopt

and implement 6 rules to achieve

specified emissions reductions totaling

8.09 tpd of VOC emissions. Because the

proposed nonimplementation finding is

based on a failure of the SJVUAPCD to

adopt and implement regulations, the

finding would apply to western Kern

County (which is under the jurisdiction

of the SJVUAPCD) but not to East Kern

County, which is under the jurisdiction

of the Kern County Air Pollution

Control District. 65 FR 37930, footnote

12. 65 FR 37929-31. The rules and

associated emission reductions are

listed in Table 1 below. EPA proposed

that the rules should be adopted and

implemented as expeditiously as

practicable but implementation should

be no later than November 15, 2002, the

first rate of progress milestone under the

severe area provisions of the CAA. EPA

proposed that the 2 to 1 offset sanction

in CAA section 179(b)(2) would apply if

SJVUAPCD failed to adopt the 6

measures within 18 months of the

effective date of the final finding. EPA

further proposed that the highway

approval and funding sanction would

apply under CAA section 179(b)(1) if

SJVUAPCD did not correct the

deficiencies within 6 months after the

offset sanction is imposed.

2. Public Comments

CRPE commented that an

implementation deadline of November

15, 2002, is too late and this delay will

unnecessarily threaten the health of San

Joaquin Valley residents. EPA should

require actual implementation of the

rules before the end of the 18 month

period. EPA should impose the highway

sanctions first, in order to motivate the

political forces that will have to be

harnessed in order to adopt the rules.

EPA should also determine that

SJVUAPCD has failed to implement the

SIP because the District has excluded

agricultural operations from its NSR

rule.

SJVUAPCD and CARB commented

that the District should be allowed the

flexibility to correct the

nonimplementation by achieving the

8.09 tpd of VOC emissions through any

combination of the six control measures

in the SIP or newly identified substitute

measures. ARB stated that there has

been a substantial change in the

inventory for several of the rule

categories, and SJVUAPCD indicated

that the 8.09 tpd of VOC reductions

might be achieved by implementing

fewer than the six delinquent rules. 4

SJVUAPCD requested the EPA extend

the implementation deadline to May 15,

2003, in order to allow source operators

time to get controls in place but still

achieve the reductions before the

beginning of the 2003 ozone season.

3. EPA Response to Comments and

Final Action

EPA agrees with CRPE that prompt

remedy to the nonimplementation is

important, but EPA believes that it may

be unreasonable to require the

SJVUAPCD and affected sources to

implement the delinquent measures

more quickly than EPA proposed. EPA

4

of the six measures EPA identified, one measure

(i.e., Rule 4662-Organic Solvent Degreasing) has

been adopted by the District and three measures (i.e., Rule 4601-Architectural Coatings, Rule 4623-

Organic Liquid Storage, and Rule 4663-Organic

Solvent Waste) are scheduled for adoption by the

District in late 2001 or early 2002. The other two measures (i.e., Rule 4692-Commercial

Charbroiling and Rule 4411-Oil Production Well

Cellars) are not scheduled for adoption by the

District at this time.
Federal Register/Vol. 66, No. 217 / Thursday, November 8, 2001/Rules and Regulations

disagrees with CRPE that the

agricultural operations exemption in the

SJVUAPCD NSR rule constitutes SIP

nonimplementation, since the

exemption, although inconsistent with

CAA provisions, does not evince a

failure to carry out provisions in the

approved SIP. Finally, EPA sees no

compelling need to reverse the

presumptive order of sanction

implementation, and therefore the

Agency intends to follow the sequence

set in 40 CFR 52.31: the offset sanction

at the 18th month and the highway

sanction at the 24th month following

the finding.

EPA believes that the SJVUAPCD is

obliged by its existing SIP to meet the

specific requirements of its

commitments. However, CARB and the

District have the opportunity to amend

the SIP by showing that reasonable

further progress and other requirements

of the CAA can be met with a revised

schedule of controls and associated

emission reductions. This is especially

the case where emissions inventory

changes after the original control

measure commitment show that far less

actual emission reductions can be

achieved by controls on individual

source categories. However, in view of

the magnitude of the emission

reductions needed for attainment,

SJVUAPCD is not free to abandon or

postpone any control measure that

continues to be available, even though

the original SIP's cumulative emission

reduction commitment could be met

without implementing the measure.

EPA therefore finalizes the proposed

nonimplementation finding and sets

November 15, 2002, as the outside date

for adoption and implementation of the

delinquent control measures.

III. Summary of the Final Action and

the State's SIP Responsibilities.

A. East Kern County

EPA is taking final action to split the

SJV ozone nonattainment area into two

separate ozone nonattainment areas

pursuant to CAA section 107(d)(3)(D).

EPA is retaining for the new East Kern

County ozone nonattainment area the

serious nonattainment area ozone

classification but granting two 1-year

attainment date extensions pursuant to

CAA section 181(a)(5), thus establishing

an attainment deadline of November 15,

2001. If East Kern County does not

record a violation in 2001, the area will

be eligible for redesignation to

attainment for the 1-hour ozone

NAAQS, following submittal by the

State and approval by EPA of a

redesignation request and maintenance

plan addressing the provisions of CAA

section 175A.

B. San Joaquin Valley

Pursuant to CAA section 181(b)(2),

EPA is finalizing its finding that the SJV

area failed to attain the 1-hour ozone

NAAQS by the statutory deadline. By

operation of law, the area is reclassified

to severe and is therefore required,

under CAA section 181(a)(1), to attain

the NAAQS as expeditiously as

practicable but no later than November

15, 2005. Under CAA section 182(i), the

State must submit a SIP addressing the

severe area requirements. EPA is

establishing May 31, 2002, as the

deadline for the submission of the

severe area requirements. Under CAA

section 182(d), severe area plans must

meet all requirements for serious area

plans plus the requirements for severe

areas, including, but not limited to: (1)

A 25 tpy major stationary source

threshold; (2) additional reasonably

available control technology (RACT)

rules for sources subject to the new

lower major source applicability cutoff;

(3) an NSR rule requiring offsets of at

least 1.3 to 1; (4) a rate of progress in

creditable emission reductions of ozone

precursors of at least 3 percent per year

from 2000 until the attainment year; (5)

a fee requirement for major sources

should the area fail to attain by 2005;

and (6) a demonstration of attainment as

expeditiously as practicable but no later

than November 15, 2005. The more

stringent RACT provisions must be

scheduled for implementation as

expeditiously as practicable, and EPA

strongly encourages an implementation

deadline of no later than 18 months

after the effective date of the

reclassification to severe.

Upon the effective date of EPA's

finding of failure to implement the SIP,

SJVUAPCD has until November 15,

2002 to adopt and implement the six

delinquent measures shown in Table 1.

TABLE 1 .- DELINQUENT RULE COMMITMENTS IN THE SAN JOAQUIN VALLEY SIP

Emission

Rule No. Rule title reductions

in tpd VOC

4601 .......................................................... Architectural Coatings ................................................................................................ 1.51

4662 .......................................................... O rganic Solvent Degreasing ...................................................................................... 2.44

4692 .......................................................... Com m ercial Charbroiling ............................................................................................ 0.39

4623 .......................................................... O rganic Liquid Storage .............................................................................................. 3.0

4411 .......................................................... O il Production W ell Cellars ........................................................................................ 0.56

4663 .......................................................... O rganic Solvent W aste .............................................................................................. 0.19

If SJVUAPCD has not adopted the

measures listed in Table 1 with

implementation deadlines of on or

before November 15, 2002, the 2 to 1

offset sanction in CAA section 179(b)(2)

would apply after 18 months of the

effective date of the finding. If the

deficiencies have still not been

corrected six months after the offset

sanction is imposed, then the highway

approval and funding sanction would

apply under CAA section 179(b)(1).

IV. Administrative Requirements

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.

EPA has determined that neither the

finding of failure to attain, nor the

finding of nonimplementation, would

result in any of the effects identified in

Executive Order 12866 sec. 3(f). As

discussed above, findings of failure to

attain under section 188(b)(2) of the

CAA are based solely upon air quality

considerations and the subsequent

nonattainment area reclassification must

occur by operation of law in light of

those air quality conditions. These

actions 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

56481
56482 Federal Register/Vol. 66, No. 217/Thursday, November 8, 2001/Rules and Regulations

impact on State, local, or tribal

governments or communities. Similarly,

the finding of failure to implement the

SIP merely ensures the implementation

of already existing requirements by

creating the potential for the imposition

of sanctions if the State does not adopt

the rules to which it has committed

under its own State plan, and therefore

the finding does not adversely affect

entities.

The designation of East Kern County

as a new, separate nonattainment area

with a serious classification and the

attainment date extensions will not

impose any new requirements on any

sectors of the economy because the area

is already classified as serious.

For the aforementioned reasons, this

action is also not subject to Executive

Order 32111, "Actions Concerning

Regulations That Significantly Affect

Energy Supply, Distribution, or Use" (66

FR 28355, May 22, 2001). 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.).

These actions do not contain any

unfunded mandate or significantly or

uniquely affect small governments, as

described in the Unfunded Mandates

Reform Act of 1995 (Public Law 104-4)

for the following reasons: (1) The

finding of failure to attain is a factual

determination based on air quality

considerations; (2) the resulting

reclassification must occur by operation

of law and will not impose any federal

intergovernmental mandate; (3) the

designation of East Kern County as a

separate nonattainment area with a

serious classification will not impose

any new requirements on any sectors of

the economy; and (4) the finding of

nonimplementation does not impose

any new federal mandates but rather

obliges the State to adopt rules to which

it has committed under its State plan.

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). For

these same reasons, this rule 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). These actions are also

not subject to Executive Order 13045 (62

FR 19885, April 23, 1997), because they

are not economically significant.

As discussed above, findings of

failure to attain under section 188(b)(2)

of the CAA are based solely upon air

quality considerations and the

subsequent nonattainment area

reclassification must occur by operation

of law in light of those air quality

conditions. In addition, the finding of

failure to implement the SIP merely

ensures the implementation of already

existing requirements to which the State

has committed under its own plan, and

therefore the finding does not adversely

affect entities. In this context, it would

thus be inconsistent with applicable law

for EPA, when it makes a finding of

failure to attain and finding of failure to

implement the SIP, to use voluntary

consensus standards. 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. 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 January 7, 2002.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

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

Dated: October 23, 2001.

Wayne Nastri,

Regional Administrator, Region IX.

Part 81 of chapter I, title 40 of the

Code of Federal Regulations is amended

as follows:

PART 81-[AMENDED]

1. The authority citation for part 81

continues to read as follows:

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

2. In § 81.305 the "California-ozone"

table is amended as follows:

a. By adding "East Kern County" as a

designated area immediately before the

entry for "San Joaquin Valley Area";

and

b. By revising the entry for "San

Joaquin Valley Area."

§81.305 California.
Federal Register/Vol. 66, No. 217 / Thursday, November 8, 2001/Rules and Regulations

CALIFORNIA-OZONE

[1-hour standard]

Designation Classification

Designated area Date 1 Type Date 1 Type

East Kern County

That portion of Kern County that lies east and south of a

line described below: Beginning at the Kern-Los Angeles County boundary and running north and east along

the northwest boundary of the Rancho La Liebre Land

Grant to the point of intersection with the range line

common to Range 16 West and Range 17 West, San

Bernardino Base and Meridian; north along the range

line to the point of intersection with the Rancho El

Tejon Land Grant boundary; then southeast, northeast, and northwest along the boundary of the Rancho

El Tejon Grant to the northwest corner of Section 3,

Township 11 North, Range 17 West; then west 1.2

miles; then north to the Rancho El Tejon Land Grant

boundary; then northwest along the Rancho El Tejon

line to the southeast corner of Section 34, Township

32 South, Range 30 East, Mount Diablo Base and

Meridian; then north to the northwest corner of Section

35, Township 31 South, Range 30 East, then northeast along the boundary of the Rancho El Tejon Land

Grant to the southwest corner of Section 18, Township

31 South, Range 31 East; then east to the southeast

corner of Section 13, Township 31 South, Range 31

East; then north along the range line common to

Range 31 East and Range 32 East, Mount Diablo

Base and Meridian, to the northwest corner of Section

6, Township 29 South, Range 32 East; then east to

the southwest corner of Section 31, Township 28

South, Range 32 East; then north along the range line

common to Range 31 East and Range 32 East to the

northwest corner of Section 6, Township 28 South,

Range 32 East, then west to the southeast corner of

Section 36, Township 27 South, Range 31 East, then

north along the range line common to Range 31 East

and Range 32 East to the Kern-Tulare County boundary.

San Joaquin Valley Area:

F re s n o C o u nty ...................................................................

12/10/01 Nonattainment ............... 12/10/2001 Serious. 2

11/15/90 Nonattainment ............... 12/10/2001 Severe-15.

56483
56484 Federal Register/Vol. 66, No. 217/Thursday, November 8, 2001/Rules and Regulations

CALIFORNIA-OZONE-Continued

[1-hour standard]

Designation Classification

Designated area

Date 1 Type Date 1 Type

Kern County (part) That portion of Kern County that lies west 11/15/90 Nonattainment ............... 12/10/2001 Severe-15.

and north of a line described below: Beginning at the KernLos Angeles County boundary and running north and east

along the northwest boundary of the Rancho La Liebre

Land Grant to the point of intersection with the range line

common to Range 16 West and Range 17 West, San

Bernardino Base and Meridian; north along the range line

to the point of intersection with the Rancho El Tejon Land

Grant boundary; then southeast, northeast, and northwest

along the boundary of the Rancho El Tejon Grant to the

northwest corner of Section 3, Township 11 North, Range

17 West; then west 1.2 miles; then north to the Rancho El

Tejon Land Grant boundary; then northwest along the

Rancho El Tejon line to the southeast corner of Section

34, Township 32 South, Range 30 East, Mount Diablo

Base and Meridian; then north to the northwest corner of

Section 35, Township 31 South, Range 30 East; then

northeast along the boundary of the Rancho El Tejon Land

Grant to the southwest corner of Section 18, Township 31

South, Range 31 East; then east to the southeast corner

of Section 13, Township 31 South, Range 31 East; then

north along the range line common to Range 31 East and

Range 32 East, Mount Diablo Base and Meridian, to the

northwest corner of Section 6, Township 29 South, Range

32 East; then east to the southwest corner of Section 31,

Township 28 South, Range 32 East; then north along the

range line common to Range 31 East and Range 32 East

to the northwest corner of Section 6, Township 28 South,

Range 32 East, then west to the southeast corner of Section 36, Township 27 South, Range 31 East, then north

along the range line common to Range 31 East and

Range 32 East to the Kern-Tulare County boundary.

Kings C ounty ............................................................................ 11/15/90 Nonattainm ent ............... 12/10/2001 Severe-15.

M adera County ......................................................................... 11/15/90 Nonattainm ent ............... 12/10/2001 Severe-15.

M erced County ......................................................................... 11/15/90 Nonattainm ent ............... 12/10/2001 Severe-15.

San Joaquin County ................................................................. 11/15/90 Nonattainm ent ............... 12/10/2001 Severe-15.

Stanislaus County .................................................................... 11/15/90 Nonattainm ent ............... 12/10/2001 Severe-15.

Tulare County ........................................................................... 11/15/90 Nonattainm ent ............... 12/10/2001 Severe-15.

1This date is November 15, 1990, unless otherwise noted. 2Attainment date is extended to November 15, 2001.

[FR Doc. 01-27289 Filed 11-7-01; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 300

[FRL-7088-3]

National Oil and Hazardous

Substances Pollution Contingency

Plan; National Priorities List

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct Final Deletion of the ICG

Iselin Railroad Yard Site from the

National Priorities List (NPL).

SUMMARY: EPA Region 4 announces the

deletion of the ICG Iselin Railroad Yard

Site (site) from the NPL and requests

public comment on this action. The NPL

constitutes appendix B to part 300 of the

National and Hazardous Substances

Pollution Contingency Plan (NCP),

which EPA promulgated pursuant to

section 105 of the Comprehensive

Environmental Response,

Compensation, and Liability Act of 1980

(CERCLA) as amended. The EPA has

determined that the site poses no

significant threat to public health or the

environment, as defined by CERCLA,

and therefore, no further remedial

measures pursuant to CERCLA is

warranted.

DATES: This "direct final" action will be

effective January 7, 2002, unless EPA

receives significant adverse or critical

comments by December 10, 2001. If

adverse comments are received, EPA

will publish a timely withdrawal of the

direct final rule in the Federal Register

informing the public that the rule will

not take effect.

ADDRESSES: Comments may be mailed to

Robert West, Remedial Project Manager,

U.S. Environmental Protection Agency,

Region 4, 61 Forsyth Street, S.W.,

Atlanta, GA 30303, (404) 562-8806,

west.robert@epa.gov. Comprehensive

information on this site is available

through the public docket which is

available for viewing at the site

information repositories at the following

locations: U.S. EPA Region 4, 61 Forsyth

Street, S.W., Atlanta, GA 30303; and the

Jackson-Madison County Library, 433

East Lafayette, Jackson, TN 38305, (901)

423-0225.

FOR FURTHER INFORMATION CONTACT:

Robert West, Remedial Project Manager,