[Federal Register: March 21, 2003 (Volume 68, Number 55)]
[Rules and Regulations]
[Page 13840-13843]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21mr03-9]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 088-FON; FRL-7470-6]
Finding of Failure To Submit State Implementation Plan Revisions
for Particulate Matter, California--San Joaquin Valley
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to find that California failed to
make a Clean Air Act (CAA or Act) state implementation plan (SIP)
submittal for particulate matter of ten microns or less (PM-10)
required for the San Joaquin Valley PM-10 nonattainment area (the San
Joaquin Valley or the Valley). Under the Act, for serious areas failing
to attain the PM-10 National Ambient Air Quality Standards (NAAQS) by
the required attainment date, states are required to submit within 12
months after the applicable attainment date, plan revisions which
provide for attainment of the PM-10 NAAQS, and from the date of such
submission until attainment, for an annual reduction of PM-10 or PM-10
precursor emissions within the area of not less than 5 percent of the
amount of such emissions as reported in the most recent inventory
prepared for the area (5% attainment plan). The San Joaquin Valley is a
serious PM-10 nonattainment area that failed to meet its attainment
date of December 31, 2001. Thus, the 5% PM-10 attainment plan was due
on December 31, 2002 but has not yet been submitted.
This action triggers the 18-month clock for mandatory application
of sanctions and the 2-year clock for a federal implementation plan
(FIP) under the Act. This action is consistent with the CAA mechanism
for assuring SIP submissions.
EFFECTIVE DATE: This action is effective as of March 7, 2003.
FOR FURTHER INFORMATION CONTACT: Doris Lo, U. S. Environmental
Protection Agency, Region 9, Air Division (AIR-2), 75 Hawthorne Street,
San Francisco, CA 94105-3901, Telephone: (415) 972-3959;
lo.doris@epa.gov.
SUPPLEMENTARY INFORMATION:
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I. CAA PM-10 Planning Requirements for the San Joaquin Valley
In 1990, Congress amended the Clean Air Act to address, among other
things, continued nonattainment of the PM-10 NAAQS.\1\ Public Law 549,
104 Stat. 2399, codified at 42 U.S.C. 7401-7671q (1991). On the date of
enactment of the 1990 Clean Air Act Amendments, PM-10 areas including
the San Joaquin Valley planning area, meeting the qualifications of
section 107(d)(4)(B) of the amended Act, were designated nonattainment
by operation of law. See 56 FR 11101 (March 15, 1991). EPA codified the
boundaries of the San Joaquin Valley PM-10 nonattainment area at 40 CFR
81.305.\2\
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\1\ EPA revised the NAAQS for PM-10 on July 1, 1987 (52 FR
24672), replacing standards for total suspended particulates with
new standards applying only to particulate matter up to 10 microns
in diameter (PM-10). At that time, EPA established two PM-10
standards. The annual PM-10 standard is attained when the expected
annual arithmetic average of the 24-hour samples, averaged over a
three year period, is equal to or less than 50 micrograms per cubic
meter (ug/m3). The 24-hour PM-10 standard of 150 ug/m3 is attained
if samples taken for 24-hour periods have no more than one expected
exceedance per year, averaged over 3 years. See 40 CFR 50.6 and 40
CFR part 50, appendix K.
\2\ The San Joaquin Valley PM-10 planning area includes the
following counties in California's central valley: Fresno, Kern,
Kings, Tulare, San Joaquin, Stanislaus, Madera and Merced.
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Once an area is designated nonattainment for PM-10, section 188 of
the CAA outlines the process for classifying the area and establishes
the area's attainment deadline. In accordance with section 188(a), at
the time of designation, all PM-10 nonattainment areas, including San
Joaquin Valley, were initially classified as moderate.
Section 188(b)(1) of the Act provides that moderate areas can
subsequently be reclassified as serious before the applicable moderate
area attainment date if at any time EPA determines that the area cannot
``practicably'' attain the PM-10 NAAQS by the moderate area attainment
deadline, December 31, 1994. On January 8, 1993 (58 FR 3337), EPA made
such a determination and reclassified the San Joaquin Valley planning
area as serious.
The attainment deadline for the San Joaquin Valley is December 31,
2001. Section 189(b)(2) of the Act required the submission of SIP
revisions addressing CAA sections 189(b) and (c) by August 8, 1994 and
February 8, 1997. California made these required serious area
submittals for the San Joaquin Valley and withdrew them on February 26,
2002. EPA then made a finding of failure to submit (67 FR 11925).
On July 23, 2002, EPA finalized a finding of failure to attain the
annual and 24-hour PM-10 standards for the Valley by December 31, 2001
(67 FR 48039). For serious areas failing to meet their applicable
attainment deadlines, section 189(d) of the CAA requires states to
``submit within 12 months after the applicable attainment date, plan
revisions which provide for attainment of the PM-10 air quality
standards and, from the date of such submission until attainment, for
an annual reduction of PM-10 or PM-10 precursor emissions within the
area of not less than 5 percent of the amount of such emissions as
reported in the most recent inventory prepared for the area.'' The 5%
PM-10 attainment plan for the San Joaquin Valley was due on December
31, 2002. EPA has not yet received such a submittal from the State.
II. Final Action
A. Finding of Failure To Submit Required SIP Revisions
If California does not submit the required plan revisions within 18
months of the effective date of today's rulemaking, pursuant to CAA
section 179(a) and 40 CFR 52.31, the offset sanction identified in CAA
section 179(b) will be applied in the affected area. If the State has
still not made a complete submittal 6 months after the offset sanction
is imposed, then the highway funding sanction will apply in the
affected area, in accordance with 40 CFR 52.31.\3\ The 18-month clock
will stop and the sanctions will not take effect if, within 18 months
after the date of the finding, EPA finds that the State has made a
complete submittal addressing the 5% attainment requirements for the
San Joaquin Valley. In addition, CAA section 110(c)(1) provides that
EPA must promulgate a federal implementation plan (FIP) no later than 2
years after a finding under section 179(a) unless EPA takes final
action to approve the submittal within 2 years of EPA's finding.
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\3\ In a 1994 rulemaking, EPA established the Agency's selection
of the sequence of these two sanctions: the offset sanction under
section 179(b)(2) shall apply at 18 months, followed 6 months later
by the highway sanction under section 179(b)(1) of the Act. EPA does
not choose to deviate from this presumptive sequence in this
instance. For more details on the timing and implementation of the
sanctions, see 59 FR 39832 (August 4, 1994), promulgating 40 CFR
52.31, ``Selection of sequence of mandatory sanctions for findings
made pursuant to section 179 of the Clean Air Act.''
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B. Effective Date Under the Administrative Procedures Act
This final action is effective on March 7, 2003. Under the
Administrative Procedures Act (APA), 5 U.S.C. 553(d)(3), an agency
rulemaking may take effect before 30 days after the date of publication
in the Federal Register if an agency has good cause to mandate an
earlier effective date. Today's action concerns SIP revisions that are
already overdue and the State has been aware of applicable provisions
of the CAA relating to overdue SIPs. In addition, today's action simply
starts a ``clock'' that will not result in sanctions for 18 months, and
that the State may ``turn off'' through the submission of a complete
SIP submittal. These reasons support an effective date prior to 30 days
after the date of publication.
C. Notice-and-Comment Under the Administrative Procedures Act
This final agency action is not subject to the notice-and-comment
requirements of the APA, 5 U.S.C. 533(b). EPA believes that because of
the limited time provided to make findings of failure to submit
regarding SIP submissions, Congress did not intend such findings to be
subject to notice-and-comment rulemaking. However, to the extent such
findings are subject to notice-and-comment rulemaking, EPA invokes the
good cause exception pursuant to the APA, 5 U.S.C. 553(d)(3). Notice
and comment are unnecessary because no EPA judgment is involved in
making a nonsubstantive finding of failure to submit SIPs required by
the CAA. Furthermore, providing notice and comment would be
impracticable because of the limited time provided under the statute
for making such determinations. Finally, notice and comment would be
contrary to the public interest because it would divert Agency
resources from the critical substantive review of submitted SIPs. See
58 FR 51270, 51272, note 17 (October 1, 1993); 59 FR 39832, 39853
(August 4, 1994).
III. Statutory and Executive Officer Reviews
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866, entitled Regulatory Planning and
Review.''
B. Executive Order 13211
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
C. Executive Order 13045
Executive Order 13045, entitled ``Protection of Children from
[[Page 13842]]
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that: (1) Is determined to be ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency. This
rule is not subject to Executive Order 13045 because it does not
involve decisions intended to mitigate environmental health or safety
risks.
D. Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999) revokes and replaces Executive Orders 12612, Federalism and
12875, Enhancing the Intergovernmental Partnership. Executive Order
13132 requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
E. Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this rule.
F. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This final rule will not have a significant impact on a substantial
number of small entities because findings of failure to submit required
SIP revisions do not by themselves create any new requirements.
Therefore, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
G. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
private sector, of $100 million or more. Under section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule.
EPA has determined that today's action does not include a Federal
mandate that may result in estimated costs of $100 million or more to
either State, local, or tribal governments in the aggregate, or to the
private sector. The CAA provision discussed in this notice requires
states to submit SIPs. This notice merely provides a finding that
California has not met that requirement. Accordingly, no additional
costs to State, local, or tribal governments, or to the private sector,
result from this action.
H. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical. EPA believes that VCS are inapplicable to today's action
because it does not require the public to perform activities conducive
to the use of VCS.
I. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This rule is not a ``major'' rule as defined by 5 U.S.C.
804(2).
[[Page 13843]]
J. Petitions for Judicial Review
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 May 20, 2003. 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).)
Authority: 42 U.S.C. 7401 et seq.
Dated: March 7, 2003.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. 03-6708 Filed 3-20-03; 8:45 am]
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