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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

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

Clean Air Act Reclassification; California-Santa Barbara

Nonattainment Area; Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA proposes to determine that the Santa Barbara moderate

ozone nonattainment area has not attained the 1-hour ozone national

ambient air quality standard (NAAQS) by the Clean Air Act (CAA)

mandated attainment date for moderate nonattainment areas, November 15,

1996. The proposed determination is based on EPA's review of monitored

air quality data for compliance with the 1-hour ozone NAAQS. If EPA

takes final action on the determination as proposed, the Santa Barbara

ozone nonattainment area will be reclassified by operation of law as a

serious nonattainment area. The effect of such a reclassification would

be to continue progress toward attainment of the 1-hour ozone NAAQS

through development of a new State implementation plan (SIP) addressing

attainment of the standard by November 15, 1999.

DATES: Comments on this proposal must be received in writing by October

2, 1997. Comments should be addressed to the Region 9 office under

ADDRESSES.

ADDRESSES: Copies of EPA's draft technical support document (TSD) for

this rulemaking and EPA's policies governing attainment findings and

extension requests are contained in the docket for this rulemaking. A

copy of this notice and the TSD are also available in the air programs

section of EPA Region 9's website, http://www.epa.gov/region09. The

docket is available for inspection during normal business hours at the

following locations:

U.S. Environmental Protection Agency, Region 9, Office of Air

Planning, Air Division, 17th Floor, 75 Hawthorne Street, San

Francisco, California 94105. (415) 744-1248;

California Air Resources Board; 2020 L Street; Sacramento,

California; and

Santa Barbara Air Pollution Control District; 26 Castilian Drive B-

23; Goleta, California.

FOR FURTHER INFORMATION CONTACT: Dave Jesson, Office of Air Planning

(AIR-2), U.S. Environmental Protection Agency, Region 9, 75 Hawthorne

Street, San Francisco, California 94105. (415) 744-1288.

SUPPLEMENTARY INFORMATION:

I. Background

A. CAA Requirements and EPA Actions Concerning Designation and

Classifications

The Clean Air Act Amendments of 1990 (CAA) were enacted on November

15, 1990. Under section 107(d)(1)(C) of the CAA, each ozone area

designated nonattainment for the 1-hour ozone NAAQS prior to enactment

of the 1990 Amendments, such as the Santa Barbara nonattainment area,

was designated nonattainment by operation of law upon enactment of the

1990 Amendments.1 Under section 181(a) of the Act, each

ozone area designated nonattainment under section 107(d) was also

classified by operation of law as ``marginal,'' ``moderate,''

``serious,'' ``severe,'' or ``extreme'' depending on the severity of

the area's air quality problem. Ozone

[[Page 46235]]

nonattainment areas with design values between 0.138 and 0.160 parts

per million (ppm), such as the Santa Barbara area, were classified as

moderate. These nonattainment designations and classifications were

codified in 40 CFR part 81. See 56 FR 56694 (November 6, 1991). The

Santa Barbara nonattainment area comprises the entire County of Santa

Barbara. See 40 CFR 81.305.

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

\1\ On July 18, 1997 (62 FR 38856), PA revised the ozone NAAQS

to establish a 8-hour standard; however, in order to ensure an

effective transition to the new 8-hour standard, EPA also retained

the 1-hour NAAQS for an area until such time as it determines that

the area meets the 1-hour standard. See revised 40 CFR 50.9 at 62 FR

38894. As a result of retaining the 1-hour standard, CAA part D,

subpart 2 Additional Provisions for Ozone Nonattainment Areas,

including the reclassification provisions of section 181(b), remain

applicable to areas that are not attaining the 1-hour standard.

Unless otherwise indicated, all references in this notice are to the

1-hour ozone NAAQS.

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

States containing areas that were classified as moderate

nonattainment by operation of law under section 107(d) were required to

submit State implementation plans (SIPs) designed to show progress

towards attainment, and attainment of the ozone NAAQS as expeditiously

as practicable but no later than November 15, 1996. Moderate area SIP

requirements are found primarily in section 182(b) of the CAA.

B. Reclassification to Serious

EPA has the responsibility, pursuant to section 181(b)(2)(A) of the

CAA, of determining, within six months of the applicable attainment

date (including any extension of that date) 2 whether an

ozone nonattainment area has attained the ozone NAAQS. Under section

181(b)(2)(A), if EPA finds that a moderate area has not attained the

ozone NAAQS, it is reclassified by operation of law to the higher of

the next higher classification or to the classification applicable to

the area's design value at the time of the finding. Pursuant to section

186(b)(2)(B) of the Act, EPA must publish a notice in the Federal

Register identifying areas which failed to attain the standard and

therefore must be reclassified by operation of law.

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

\2\ Under section 181(a)(5) of the CAA, if a state does not have

the clean data necessary to show attainment of the NAAQS, it may

apply for, and EPA may issue, up to two one-year attainment date

extensions if the state has: (1) Complied with the requirements and

commitments pertaining to the applicable implementation plan for the

area, and (2) the area has measured no more than one exceedance of

the ozone NAAQS at any monitoring site in the nonattainment area in

the year preceding the extension year. See memorandum from D. Kent

Berry, Acting Director, Air Quality Management Division, EPA, to

Regional Air Office Directors, entitled ``Procedures for Processing

Bump Ups and Extensions for Marginal Ozone Nonattainment Areas,''

February 3, 1994 (Berry memorandum). The State has not applied for

an extension for the Santa Barbara area and, as discussed below, the

area does not meet the second statutory criterion for such an

extension.

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

The 1-hour ozone NAAQS is 0.12 ppm not to be exceeded on average

more than one day per year over any three year period. 40 CFR 50.9 and

Appendix H. EPA makes attainment determinations for ozone nonattainment

areas using the most recently available, quality-assured air quality

data covering the 3-year period up to and including the attainment

date.3 Consequently, EPA will determine whether the Santa

Barbara area's air quality has met the moderate area attainment

deadline of November 15, 1996 based upon all 1994, 1995, and 1996

(through November 15) quality-assured air quality data available to the

Agency.4 From the available data, EPA determines the average

number of exceedances per year at each ozone monitor during this

period. If this number is greater than one at any monitor, then the

area is determined to have not attained by November 15, 1996. EPA then

calculates the design value for the area to determine the correct new

classification.5

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

\3\ See generally 57 FR 13506 (April 16, 1992) and Berry

memorandum. While explicitly applicable only to marginal areas, the

general procedures for processing reclassifications and extension

requests described in this memorandum apply regardless of the

initial classification of an area because all reclassification are

made pursuant to the same Clean Air Act requirements in section

181(b)(2).

\4\ All quality-assured available data includes all data

available from the state and local/national air monitoring (SLAMS/

NAMS) network as submitted to EPA's AIRS system and all data

available to EPA from special purpose monitoring (SPM) sites that

meet the requirements of 40 CFR 58.13.

\5\ See memorandum from William G. Laxton, Director Technical

Support Division, entitled ``Ozone and Carbon Monoxide Design Value

Calculations,'' June 18, 1990.

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

II. Proposal in Regard to the Santa Barbara Ozone Nonattainment

Area

A. Current Air Quality

The Santa Barbara County Air Pollution Control District (SBCAPCD)

and the California Air Resources Board (CARB) have worked hard to

improve the County's air quality. The early introduction of cleaner

burning gasoline and the strictest vehicle emission standards in the

country, reflect CARB's leadership on air quality issues. In addition,

SBCAPCD has been recognized for it's innovative approaches toward clean

air. For its efforts, SBCAPCD received the 1996 Presidential Award for

Sustainable Development and the 1996 Governor's Environmental and

Economic Leadership Award.

While CARB and SBCAPCD continue to make progress in addressing the

ozone problem, more still needs to be done. EPA will work with the

State, District, local communities, business and environmental

interests to develop additional approaches to improving Santa Barbara

County's air quality.

Attainment of the 1-hour ozone NAAQS is demonstrated in an area

when the expected number of days per calendar year with maximum hourly

average ozone concentrations above 0.12 ppm is equal to or less than

one. 40 CFR 50.9. The average number of days is calculated for a three-

year period. 40 CFR part 50, Appendix H and Laxton memo. The 1994-1996

period is used to demonstrate attainment by November 15, 1996.

The SBCAPCD and CARB operate an ozone monitoring network in Santa

Barbara County which consists of six ozone monitoring stations

designated as State or Local Air Monitoring Stations (SLAMS). In

addition to its SLAMS network the SBCAPCD also oversees the operation

of a number of special purpose monitors (SPMs). These SPMs are operated

independently by certain permitted stationary sources in the county but

all data collected at these SPMs are validated and audited by a SBCAPCD

contractor. All data produced by these SPMs are submitted to the EPA's

Aerometric Information Retrieval System--Air Quality Subsystem (AIRS-

AQS) database. While these SPMs are not part of the county's SLAMS

network, data from these sites are used to augment the data from the

SLAMS network.

The following table lists the 3-year average number of days over

the 1-hour ozone standard at each SLAMS/SPM monitoring site in the

Santa Barbara area for the period 1994 to 1996 and each monitor's

design value for that period. Design values are calculated following

the procedures in the Laxton memo. A complete listing of the ozone

exceedances at each monitor as well as EPA's calculations of the design

values can be found in the TSD.

[[Page 46236]]

Average Number of Ozone Exceedance Days Per Year in the Santa Barbara Area

[1994-1996]

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

Number of days

over the Average number Site design

Site standard (1994- of exceedance value (PPM)

1996) days per year

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

El Capitan St (SLAMS)........................................... 2 0.7 0.119

Goleta (SLAMS).................................................. 2 0.7 0.119

Gaviota West (SPM).............................................. 1 0.3 0.110

Gaviota East (SPM).............................................. 1 0.3 0.111

Gaviota GTC B (SPM)............................................. 1 0.3 0.103

Gaviota GTC C (SPM)............................................. 4 1.3 0.125

Carpinteria (SPM)............................................... 4 1.3 0.128

Capitan LFC #1 (SPM)............................................ 8 2.7 0.130

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

As can be seen from preceding table, three SPM monitoring sites

(Gaviota GTC C, Carpinteria, and Capitan LFC #1) have averaged more

than 1 exceedance day per year in the 1994-1996 period. EPA is,

therefore, proposing to find that the Santa Barbara area did not attain

the 1-hour ozone NAAQS by the November 15, 1996, statutory deadline for

a moderate area.

EPA is also proposing that the appropriate reclassification of the

area is to serious. Section 181(b)(2) requires the area to be

reclassified to the higher of the next higher classification or the

classification appropriate to the design value at the time of the

nonattainment finding. The next highest classification for Santa

Barbara is serious. The other potential classification is severe. Based

on the design value calculated using data from the SLAMS/SPM network,

the area's design value is 0.130 ppm. This design value is well below

the range required for a severe classification, that is 0.180 to 0.280

ppm.

In an August 19, 1997 letter, SBCAPCD requested that EPA consider

applying the reclassification to only the South County 6

portion of Santa Barbara nonattainment area. Monitoring data from 1990-

1996 indicate that the North County 7 portion of the

nonattainment area is in compliance with the existing 1-hour ozone

standard. These two areas are separated by the Santa Ynez Mountains.

EPA is proposing to reclassify the entire Santa Barbara nonattainment

area. However, EPA is requesting comment on the technical rationale for

only reclassifying the South County portion of the nonattainment area.

The technical rationale should include information on North County's

contribution to the South County's air quality. In addition, EPA is

requesting information on the current status of and future outlook for

the North County's air quality in relation to meeting the new 8-hour

ozone standard.

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

\6\ The SBCAPCD is recommending the following boundaries for the

South County portion of the nonattainment area: Beginning at the

Pacific Ocean outfall of Jaluma Creek and running east and north

along Jaluma Creek to a point of intersection with the west boundary

of the San Julian Land Grant; then south along the San Julian Land

Grant boundary to its southwest corner; then east along the south

boundary of the San Julian Grant to the northeast corner of partial

Section 20, T. 5 N, R. 32 W, San Bernardino Base and West; then

south and east along the boundary of the Las Cruces Land Grant to

the southwest corner of partial Section 13, T. 5 N, R. 32 W; then

northeast along the Las Cruces Land Grant boundary; then east along

the north boundaries of Section 13, T. 5 N, R. 32 W, and Sections

18, 17, 16, 15, 14, 13, T. 5 N, R. 31 W, and Sections 18, 17, 16,

15, 14, 13, T. 5 N, R. 30 W, and Sections 18, 17, 16, 15, T. 5 N, R.

29 W; then south along the east boundary of Section 15, T. 5 N, R 29

W; then east along the north boundaries of Sections 23 and 24, T. 5

N, R. 29 W, and Sections 19, 20, 21, 22, 23, T. 5 N, R. 28 W, and

Sections 19 and 20, T. 5 N, R. 27 W; then south along the east

boundary of Section 20, T. 5 N, R. 27 W, then east along the north

boundaries of Sections 28, 27, 26, 25, T. 5 N, R. 27 W, and Section

30 T. 5 N, R. 26 W; then south along the east boundary of Section

30, T. 5 N, R. 26 W; then east along the north boundaries of

Sections 32, 33, 34, T. 5 N, R. 26 W; then south along the east

boundary of Section 35, T. 5 N, R. 26 W to the township line common

to T. 4 N and T. 5 N; then east along this township line to the

Santa Barbara-Ventura County boundary; State waters offshore of that

portion of the Santa Barbara County lying south of the latitude of

the mouth of the Jalama Creek and those areas of the Outer

Continental Shelf waters for which the District has been designated

the corresponding onshore area by the Environmental Protection

Agency.

\7\ SBCAPCD is recommending that the North County boundary be

the remainder of Santa Barbara County and corresponding State waters

located offshore not included in the previous footnote describing

the South County boundary.

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

B. SIP Requirements for Serious Ozone Areas

Under section 181(a)(1) of the Act, the attainment deadline for

moderate area ozone nonattainment areas reclassified to serious under

section 181(b)(2) will be as expeditiously as practicable but no later

than November 15, 1999. Under section 182(i), these reclassified areas

are required to submit SIP revisions addressing the serious area

requirements for the 1-hour ozone NAAQS in section 182(c). Section

182(i) further provides that the Administrator may adjust the statutory

schedules for submittal of these SIP revisions. Accordingly, EPA is

exercising this authority to require submittal of the serious area SIP

revisions no later than 12 months from the effective date of the area's

reclassification. EPA believes that a 12 months schedule is appropriate

because attainment date for serious areas, November 15, 1999, is little

more than 2 years away and the State will need to expedite adoption and

implementation of controls to meet that deadline. EPA is requesting

comment on the proposed 12 month schedule.

Under section 182(c), the requirements for serious ozone

nonattainment areas include, but are not limited to, the following: (1)

Attainment and reasonable further progress demonstrations; (2) an

enhanced vehicle inspection and maintenance program; (3) clean-fuel

vehicle programs; (4) a 50 ton-per-year major source threshold; (5)

more stringent new source review requirements; (6) an enhanced

monitoring program; and (7) contingency provisions.

EPA has issued a ``General Preamble for the Implementation of Title

I of the Clean Air Act Amendments of 1990'' that sets forth the

Agency's preliminary views on how it will act on SIPs submitted under

Title I of the Act. See generally 57 FR 13498 (April 16, 1992) and 57

FR 18070 (April 28, 1992).

EPA has recently promulgated an 8-hour ozone standard (62 FR 38856,

July 18, 1997). In order to facilitate the transition from the 1-hour

to the 8-hour NAAQS, EPA may issue additional guidance to assist states

in meeting the serious area requirements.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future action. Each

finding of failure to attain or request for an extension of an

attainment date shall be considered separately and shall be based on

the factual situation of the area under

[[Page 46237]]

consideration and in relation to relevant statutory and regulatory

requirements.

III. Administrative Requirements

A. Executive Order (E.O.) 12866

Under E.O. 12866 (58 FR 51735, October 4, 1993), EPA is required to

determine whether today's proposal is a ``significant regulatory

action'' within the meaning of the E.O., and therefore should be

subject to OMB review, economic analysis, and the requirements of the

E.O. See E.O. 12866, section 6(a)(3). The E.O. defines, in section

3(f), a ``significant regulatory action'' as a regulatory action that

is likely to result in a rule that may meet at least one of four

criteria identified in section 3(f), including,

(1) Have an annual effect on the economy of $100 million or more

or adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with

an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements,

grants, user fees, or loan programs or the rights and obligations of

recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

EPA has determined that the finding of failure to attain proposed

today, as well as the establishment of SIP submittal schedules

resulting from a reclassification, would result in none of the effects

identified in E.O. 12866, section 3(f). Under section 181(b)(2) of the

Act, findings of failure to attain are based upon air quality

considerations, and reclassifications must occur by operation of law in

light of certain air quality conditions. These findings do not, in and

of themselves, impose any new requirements on any sectors of the

economy. In addition, because the statutory requirements are clearly

defined with respect to the differently classified areas, and because

those requirements are automatically triggered by classifications that,

in turn, are triggered by air quality values, findings of failure to

attain and reclassification cannot be said to impose a materially

adverse impact on State, local, or tribal governments or communities.

Similarly, the establishment of new SIP submittal schedules merely

establishes the dates by which SIPs must be submitted, and does not

adversely affect entities.

B. Regulatory Flexibility

Under the Regulatory Flexibility Act, 5 U.S.C. 601 et. seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant economic impact on a substantial number of small entities.

Small entities include small businesses, small not for profit

enterprises, and government entities with jurisdiction over populations

of less than 50,000.

A finding of failure to attain (and the consequent reclassification

by operation of law of the nonattainment area) under section 181(b)(2)

of the Act, and the establishment of a SIP submittal schedule for a

reclassified area, do not, in and of themselves, directly impose any

new requirements on small entities. See Mid-Tex Electric Cooperative,

Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985) (agency's certification

need only consider the rule's impact on entities subject to the

requirements of the rule). Instead, this rulemaking simply proposes to

make a factual determination and to establish a schedule to require

States to submit SIP revisions, and does not propose to directly

regulate any entities. Therefore, pursuant to 5 U.S.C. 605(b), EPA

certifies that today's proposed action does not have a significant

impact on a substantial number of small entities within the meaning of

those terms for RFA purposes.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public

Law 104-4, establishes requirements for Federal agencies to assess the

effects of their regulatory actions on State, local, and tribal

governments and the private sector. Under section 202 of the UMRA, EPA

generally must prepare a written statement, including a cost-benefit

analysis, when EPA promulgates ``any general notice of proposed

rulemaking that is likely to result in promulgation of any rule that

includes any Federal mandate that may result in the expenditures by

State, local, and tribal governments, in the aggregate, or by the

private sector, of $100 million or more'' in any one year. A ``Federal

mandate'' is defined, under section 101 of UMRA, as a provision that

``would impose an enforceable duty'' upon the private sector or State,

local, or tribal governments'', with certain exceptions not here

relevant. Under sec. 203 of UMRA, EPA must develop a small government

agency plan before EPA ``establish[es] any regulatory requirements that

might significantly or uniquely affect small governments''. Under

section 204 of UMRA, EPA is required to develop a process to facilitate

input by elected officers of State, local, and tribal governments for

EPA's ``regulatory proposals'' that contain significant Federal

intergovernmental mandates. Under section 205 of UMRA, before EPA

promulgates ``any rule for which a written statement is required under

[UMRA sec.] 202'', EPA must identify and consider a reasonable number

of regulatory alternatives and either adopt the least costly, most

cost-effective or least burdensome alternative that achieves the

objectives of the rule, or explain why a different alternative was

selected.

Sections 202, 204, and 205 of UMRA do not apply to today's action

because the proposed factual determination that Santa Barbara County

failed to reach attainment does not, in and of itself, constitute a

Federal mandate because it does not impose an enforceable duty on any

entity. Although the establishment of a SIP submission schedule may

impose such a duty on the State, this requirement merely establishes

due dates, does not set out any requirements not otherwise already

present, and thus cannot be considered to cost $100 million or more.

Finally, section 203 of UMRA does not apply to today's action because

the regulatory requirements proposed today--the SIP submittal

schedule--affect only Santa Barbara County, which is not a small

government under UMRA.

D. Rule vs. Adjudication

It should be noted that each of the three administrative

requirements described above--E.O. 12866, the Regulatory Flexibility

Act, and UMRA--apply only with respect to agency actions that fall into

the category of ``rules'', as defined under those provisions or under

the Administrative Procedures Act. E.O. 12866 sec. 3 (d)-(e);

Regulatory Flexibility Act, 5 U.S.C. sec. 603(a), 601(2); Unfunded

Mandates Reform Act, secs. 202-205, 421. EPA is considering the

possibility that today's action, to the extent it consists of a

determination that Santa Barbara County failed to attain the ozone

NAAQS as of the end of 1996, might not be considered a ``rule'' as

defined under these provisions, and instead might be considered an

informal adjudication. The basis for this distinction could be that

today's action constitutes a specific factual determination applicable

only to the area in question, based on pre-existing facts. Under these

circumstances, the administrative

[[Page 46238]]

requirements discussed above might not apply. However, EPA is taking

this approach under consideration; it is not today proposing this

approach.

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, National parks,

Ozone, Wilderness areas.

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

Dated: August 25, 1997.

Felicia Marcus,

Regional Administrator, Region IX.

[FR Doc. 97-23235 Filed 8-29-97; 8:45 am]

BILLING CODE 6560-50-U