[Federal Register Volume 74, Number 100 (Wednesday, May 27, 2009)]
[Rules and Regulations]
[Pages 25153-25156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12135]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0133; FRL-8909-6]


Approval and Promulgation of Air Quality Implementation Plans; 
California; Determination of Attainment of the 1-Hour Ozone Standard 
for the Ventura County Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: On April 15, 2009, the California Air Resources Board (CARB) 
requested that EPA find that the Ventura County ozone nonattainment 
area has attained the revoked 1-hour ozone National Ambient Air Quality 
Standard (NAAQS). After a review of this submission and of the relevant 
monitoring data, EPA is making such a finding.
    Because the area has attained the 1-hour standard by the applicable 
attainment date, the area is not subject to the requirement to 
implement contingency measures for failure to attain the standard by 
its attainment date. In addition, EPA finds that the area is not 
subject to the Clean Air Act penalty fee requirements for severe and 
extreme ozone nonattainment areas that have not attained the 1-hour 
standard by the applicable attainment date.

DATES: This rule is effective on July 27, 2009 without further notice, 
unless EPA receives adverse comments by June 26, 2009. If we receive 
such comments, we will publish a timely withdrawal in the Federal 
Register to notify the public that this direct final rule does not take 
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2009-0133, by one of the following methods:
    1. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    2. E-mail: <a href="/cdn-cgi/l/email-protection#deb0abbabaf0b9acbbb9b1aca79ebbaebff0b9b1a8"><span class="__cf_email__" data-cfemail="b0dec5d4d49ed7c2d5d7dfc2c9f0d5c0d19ed7dfc6">[email protected]</span></a>.
    3. Fax: (415) 947-3579.
    4. Mail or Delivery: Greg Nudd (AIR-2), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Instructions: Direct your comments to Docket ID No. EPA-R09-OAR-
2009-0133. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless a comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment.

[[Page 25154]]

Electronic files should avoid the use of special characters, any form 
of encryption, and be free of any defects or viruses.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g. copyrighted 
material), and some may not be publicly available at either location 
(e.g. confidential business information). To inspect the hard copy 
materials, please schedule an appointment during normal business hours 
with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Greg Nudd, Environmental Engineer, EPA 
Region IX, (415) 947-4107, <a href="/cdn-cgi/l/email-protection#6709120303490015020008151e2702170649000811"><span class="__cf_email__" data-cfemail="f29c879696dc958097959d808bb2978293dc959d84">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. What Is the Background for This Action?
II. How Does the SCAQMD Decision Regarding EPA's 8-Hour Phase 1 
Ozone Implementation Rule Affect This Action?
III. Attainment Finding
IV. What Action Is EPA Taking?
V. Statutory and Executive Order Reviews

I. What Is the Background for This Action?

    Under section 107(d)(1)(C) of the Clean Air Act (CAA), the Ventura 
County, California area was designated nonattainment for the 1-hour 
ozone NAAQS by operation of law upon enactment of the 1990 CAA 
Amendments. Under section 181(a) of the CAA, each ozone area designated 
nonattainment under section 107(d) was also classified by operation of 
law as ``marginal,'' ``moderate,'' ``serious,'' ``severe-15,'' 
``severe-17,'' or ``extreme,'' depending on the severity of the area's 
air quality problem and the number of years to reach attainment from 
the time of the CAA Amendments.
    The ozone design value for an area, which characterizes the 
severity of the air quality problem, is represented by the highest 
ozone design value at any of the individual ozone monitoring sites in 
the area. Table 1 in section 181(a) of the CAA provides the design 
value ranges for each nonattainment classification. Ozone nonattainment 
areas with design values between 0.180 parts per million (ppm) and 
0.190 ppm for the three-year period, 1987-1989, were classified as 
severe-15. Because the Ventura County, California area's 1988 ozone 
design value fell between 0.180 and 0.190 ppm, this area was classified 
as severe-15 nonattainment for the 1-hour ozone NAAQS. These 
nonattainment designations and classifications were codified in title 
40 of the Code of Federal Regulations (CFR) part 81 (see 56 FR 56994, 
November 6, 1991).
    Under section 182(c) of the CAA, states containing areas that were 
classified as severe-15 nonattainment were required to submit State 
Implementation Plans (SIPs) to provide for certain emission controls, 
to show progress toward attainment, and to provide for attainment of 
the ozone NAAQS as expeditiously as practicable, but no later than 
November 15, 2005. The State of California included plans for bringing 
Ventura County into attainment with the 1-hour ozone standard in their 
1994 State Implementation Plan (SIP) revision that EPA approved on 
January 8, 1997 (62 FR 1150). Specifically, EPA approved the Ventura 
1994 ozone SIP with respect to the Act's requirements for emission 
inventories, control measures, modeling, demonstrations of 15% Rate of 
Progress (ROP), post-1996 ROP and attainment of the 1-hour ozone 
standard.
    In 1997, EPA adopted a new 8-hour ozone NAAQS. One of the 
implementation rules for the standard, referred to as the Phase 1 
Implementation Rule, was published on April 30, 2004 (69 FR 23951), and 
addressed how requirements that applied in an area for the 1-hour ozone 
NAAQS would apply in the transition from the 1-hour standard to the 8-
hour standard. Challenges to this rule were decided in South Coast Air 
Quality Management District v. EPA, 472 F.3d 882 (DC Cir. 2006) 
(SCAQMD), rehearing denied 489 F.3d 1245, which we considered in this 
action.

II. How Does the SCAQMD Decision Regarding EPA's 8-Hour Phase 1 Ozone 
Implementation Rule Affect This Action?

    On December 22, 2006, the U.S. Court of Appeals for the District of 
Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-
hour Ozone Standard. SCAQMD v. EPA, 472 F.3d 882. On June 8, 2007, in 
response to several petitions for clarification and rehearing, the DC 
Circuit clarified that the Phase 1 Rule was vacated only with regard to 
those parts of the rule that had been successfully challenged. 489 F.3d 
1245. With respect to the challenges to the anti-backsliding provisions 
of the rule, the Court vacated three provisions that would have allowed 
States to remove from the SIP or to not adopt three SIP obligations 
related to the 1-hour ozone standard once the 1-hour ozone standard was 
revoked: (1) Nonattainment area new source review (NSR) requirements 
based on an area's 1-hour nonattainment classification; (2) section 185 
penalty fees for severe or extreme 1-hour ozone nonattainment areas 
that fail to attain the 1-hour ozone standard by the 1-hour ozone 
attainment date; and (3) measures to be implemented pursuant to section 
172(c)(9) or 182(c)(9) of the Act, on the contingency of an area not 
making reasonable further progress (RFP) toward attainment of the 1-
hour NAAQS or for failure to attain that NAAQS. The Court clarified 
that 1-hour ozone conformity determinations are not required for anti-
backsliding purposes.
    Thus, the provisions waiving these three requirements, which were 
specified in 40 CFR 51.905(e), were vacated by the Court. As a result 
of the vacatur, States must continue to meet the obligations for 1-hour 
ozone NSR; 1-hour ozone contingency measures; and, for severe and 
extreme areas, the obligations related to a section 185 fee program. 
EPA has issued a proposed rule that would remove the vacated provisions 
of 40 CFR 51.905(e) and that addresses treatment of contingency 
measures for failure to attain or make reasonable further progress 
toward attainment of the 1-hour standard. See 74 FR 2936, January 16, 
2009 (proposed rule); 74 FR 7027, February 12, 2009 (notice of public 
hearing and extension of comment period). EPA is developing a proposed 
rule to address treatment of 1-hour NSR and section 185 fees for 
failure to attain the 1-hour standard.
    We address below how the 1-hour ozone obligations that currently 
continue to apply as a result of the Court's vacatur of the waiver 
provisions are treated where EPA makes a determination that the area 
attained the 1-hour ozone standard by its attainment date.

III. Attainment Finding

    In 1991, the Ventura County, California area was classified as 
severe-15 for the 1-hour ozone NAAQS. An area is considered to have 
attained the 1-hour ozone NAAQS if there are no violations of the 
standard, as determined in accordance with the regulation codified at 
40 CFR 50.9 and the related regulatory appendix, 40 CFR Part 50, 
Appendix H, based on three consecutive calendar years of complete, 
quality-assured monitoring data. A violation occurs when the ozone air 
quality monitoring data show greater than one (1.0) average expected

[[Page 25155]]

exceedance per year at any site in the area. An exceedance occurs when 
the maximum hourly ozone concentration during any day exceeds 0.124 
ppm. In accordance with 40 CFR part 58, the data should be collected 
and quality-assured and recorded in the Air Quality System so that they 
are available to the public for review.
    The finding of attainment for the Ventura County, California area 
is based on an analysis of 1-hour ozone air quality data from 2003-
2005. Table 1 summarizes these data.

  Table 1--Average Number of Ozone Expected Exceedance Days per Year by Monitors in Ventura County, California
                                                   (2003-2005)
----------------------------------------------------------------------------------------------------------------
                                                                                                  Average number
                                                                                                    of expected
             Monitor                  Site ID          2003            2004            2005         exceedances
                                                                                                    (2003-2005)
----------------------------------------------------------------------------------------------------------------
Thousand Oaks...................     06-111-0007             0.0             0.0             0.0             0.0
Piru............................     06-111-0009             0.0             0.0             0.0             0.0
Ojai............................     06-111-1004             1.0             0.0             0.0             0.3
Simi Valley.....................     06-111-2002             1.0             0.0             0.0             0.3
Ventura.........................     06-111-2003             0.0             0.0             0.0             0.0
El Rio..........................     06-111-3001             0.0             0.0             0.0             0.0
----------------------------------------------------------------------------------------------------------------

    Based on the monitoring data summarized in Table 1, the EPA finds 
that the Ventura County, California area attained the 1-hour ozone 
NAAQS by its attainment date of November 15, 2005.

  Table 2--Average Number of Ozone Expected Exceedance Days per Year by Monitors in Ventura County, California
                                                   (2006-2008)
----------------------------------------------------------------------------------------------------------------
                                                                                                  Average number
                                                                                                    of expected
             Monitor                  Site ID          2006            2007            2008         exceedances
                                                                                                    (2003-2005)
----------------------------------------------------------------------------------------------------------------
Thousand Oaks...................     06-111-0007             0.0             0.0             0.0             0.0
Piru............................     06-111-0009             0.0             0.0             0.0             0.0
Ojai............................     06-111-1004             0.0             0.0             0.0             0.0
Simi Valley.....................     06-111-2002             1.0             0.0             0.0             0.3
Ventura.........................     06-111-2003             0.0             0.0             0.0             0.0
El Rio..........................     06-111-3001             0.0             0.0             0.0             0.0
----------------------------------------------------------------------------------------------------------------

    Based on the monitoring summarized in Table 2, the EPA finds that 
the Ventura County, California area continues to attain the 1-hour 
ozone NAAQS.

IV. What Action Is EPA Taking?

    EPA is determining that the Ventura County, California area 
attained the 1-hour ozone standard by its attainment date, November 15, 
2005.
    The data summary presented in Table 1 demonstrates that there was 
less than one expected exceedance of the 1-hour ozone standard in 
Ventura County averaged over the 3 years 2003 to 2005. Because the area 
attained the 1-hour standard by the applicable attainment date, the 
area is not subject to the requirement to implement contingency 
measures for failure to attain the standard by its attainment date. As 
such, even if the area subsequently lapses into nonattainment, it would 
not be required to implement the contingency measures for failure to 
attain the standard by its attainment date.
    Section 185(a) of the CAA states that a severe or extreme ozone 
nonattainment area must implement a program to impose fees on certain 
stationary sources of air pollution if the area ``has failed to attain 
the national primary ambient air quality standard for ozone by the 
applicable attainment date.'' Consequently, if such an area has 
attained the standard as of its applicable attainment date, even if it 
subsequently lapses into nonattainment, the area would not be required 
to implement a section 185 fee program. Because EPA is determining that 
the Ventura County, California area attained the 1-hour standard by its 
applicable attainment date, we conclude that the area is not subject to 
the requirements of section 185 for the 1-hour standard. Accordingly, 
we also determine that the State is not required to submit a SIP under 
Section 182(d)(3) of the CAA to implement a section 185 program for the 
1-hour standard in this area.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is certified as not having a significant economic impact 
on a

[[Page 25156]]

substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.);
    <bullet> Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
    <bullet> Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (59 FR 22951, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
Reference, Intergovernmental relations, Ozone.

    Dated: May 14, 2009.
Jane Diamond,
Acting Regional Administrator, Region IX.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart F--California

0
2. A new Sec.  52.282 is added to read as follows:


Sec.  52.282  Control strategy and regulations: Ozone.

    (a) Attainment determination. EPA has determined that the Ventura 
County severe 1-hour ozone nonattainment area attained the 1-hour ozone 
NAAQS by the applicable attainment date of November 15, 2005. EPA also 
has determined that the Ventura County severe 1-hour ozone 
nonattainment area is not subject to the requirements of section 185 of 
the Clean Air Act (CAA) for the 1-hour standard and that the State is 
not required to submit a SIP under Section 182(d)(3) of the CAA to 
implement a section 185 program for the 1-hour standard in this area. 
In addition, the requirements of section 172(c)(9) (contingency 
measures) for the 1-hour standard do not apply to the area.
    (b) [Reserved]

 [FR Doc. E9-12135 Filed 5-26-09; 8:45 am]
BILLING CODE 6560-50-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>