Designation of Areas for Air Quality Planning Purposes; State of California; Redesignation of the San Francisco Bay Area to Nonattainment for Ozone

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[CA-008-BU, FRL-6120-4]

Designation of Areas for Air Quality Planning Purposes; State of

California; Redesignation of the San Francisco Bay Area to

Nonattainment for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to redesignate the San Francisco

Bay Area (Bay Area) as a nonattainment area for the 1-hour ozone

National Ambient Air Quality Standard (NAAQS). The Clean

[[Page 37259]]

Air Act (CAA or Act) provides that EPA may at any time revise the

designation of an area on the basis of air quality, planning and

control considerations, following notification to the Governor. On

August 21, 1997, EPA notified the Governor of California that the

Agency intended to propose to redesignate the Bay Area from attainment

to nonattainment of the federal 1-hour ozone standard, based on a total

of 43 exceedances and 17 violations of the standard since the June 1995

redesignation to attainment.

EFFECTIVE DATE: This action is effective on August 10, 1998.

ADDRESSES: A copy of this document and related information are

available in the air programs section of EPA Region 9's website, http:/

/www.epa.gov/region09/air. The docket for this rulemaking is available

for inspection during normal business hours at EPA Region 9, Planning

Office, Air Division, 17th Floor, 75 Hawthorne Street, San Francisco,

California 94105. A reasonable fee may be charged for copying parts of

the docket. Please call (415) 744-1249 or 744-1251 for assistance.

FOR FURTHER INFORMATION CONTACT: Regina Spindler (415) 744-1251 or

Celia Bloomfield (415) 744-1249, Planning Office (AIR-2), Air Division,

EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105.

SUPPLEMENTARY INFORMATION:

Outline

I. Executive Summary

II. Background

A. Original Nonattainment Designation and Redesignation and

Redesignation to Attainment

B. Subsequent Violations and Petitions to Redesignate the Bay

Area to Nonattainment

C. Applicable Statutory Provisions

D. Notification to the Governor and Governor's Response

E. Proposed Action

III. Summary of Public Comments and EPA Response

A. Introduction

B. Response of the State

C. Overview of Public Comments

D. Specific Comments and EPA Response

1. Comments Relating to the Basis of EPA's Proposal to

Redesignate the Bay Area to Nonattainment

a. Air Quality and Emissions

b. Legal Authority

i. General Comments on Mandatory and Discretionary Authorities

to Redesignate

ii. Authority to Redesignate without Classification

c. Policy Issues

i. Public Notification and Public Perception

ii. Impact of the Bay Area Emissions on Downwind Nonattainment

Areas and Issues of Equity

iii. Effect of Redesignation on Limited Air Pollution Control

Resources

iv. Alternatives to Redesignation

2. Comments Relating to EPA's Proposed SIP Requirements

a. Emissions Inventory

b. Attainment Assessment

c. Control Measures

i. Suggested Measures

ii. NOX Waiver and Efficacy of NOX

Controls

d. Attainment Deadline

e. Planning Schedule

3. Comments on Miscellaneous Issues

a. Conformity

b. Congestion Mitigation and Air Quality (CMAQ) Funding

c. Unfunded Mandates Reform Act (UMRA)

d. Procedural Obligations under CAA, Section 107 and the

Administrative Procedures Act (APA)

IV. Final Action

A. Overview

B. SIP Requirements and Deadlines

C. Changes from Proposal

V. Emission Reduction Opportunities

A. Stationary Sources

B. Transportation Control Measures

C. Voluntary Measures

D. Enhanced Inspection and Maintenance

E. Mitigating Emissions Increases from Oakland Seaport and

Airport Expansion Projects

VI. Administrative Requirements

A. Executive Order (E.O.) 12866

B. Regulatory Flexibility

C. Unfunded Mandates Reform Act

D. Executive Order 13045: Protection of Children from

Environmental Health Risks and Safety Risks

E. Submission to Congress and the General Accounting Office

I. Executive Summary

On December 19, 1997 EPA published a Notice of Proposed Rulemaking

to redesignate the Bay Area to nonattainment of the federal 1-hour

ozone standard. During the 60-day public comment period that followed

publication, EPA received comments both in support of and in opposition

to our proposed action. All commenters, regardless of their views on

the proposed redesignation or the proposed requirements associated with

redesignation, expressed strong support for clean air progress in the

Bay Area. EPA appreciates the thoughtful comments on the proposal and

greatly values the commenters' commitment to improved air quality and

public health protection in the Bay Area. EPA has made significant

changes and clarifications in response to the comments and EPA believes

the final action recognizes the innovation and collaborative efforts

that can contribute to clean air in the Bay Area.

After carefully considering all of the comments received, EPA has

decided to finalize the redesignation of the Bay Area to nonattainment

of the 1-hour ozone standard while clarifying and streamlining the

actions necessary to reach attainment. Although the Bay Area Air

Quality Management District (BAAQMD), the California Air Resources

Board (CARB), other regulatory agencies, businesses, and the community

as a whole have made great strides in improving air quality in the Bay

Area, there is still more work to be done. Redesignation is the most

appropriate course of action to assure further air quality improvements

and protection of public health and should place minimal burdens on the

local economy, residents, industry and regulators.

When the federal ozone standard is exceeded, people, and in

particular children, the elderly, and those with respiratory diseases,

may experience ozone's ill effects, such as chest pain, cough, lung

inflammation, respiratory infection, and chronic bronchitis. In light

of these significant public health concerns, EPA believes that it is

important to provide the public with accurate information and the

correct message that ozone pollution is still a problem.

EPA is compelled to redesignate the Bay Area to nonattainment

because of the numerous and widespread violations of the 1-hour ozone

standard, a standard that was designed to protect public health. The

Bay Area's air quality during 1996 ranked as the 6th worst in the

nation and for the three-year period 1995-1997, it was the 8th

smoggiest of the major metropolitan areas in the country. The absence

of violations in 1997 is a positive sign but the Agency does not feel

that the clean smog season last year proves that the serious ozone

problem revealed in 1995 and 1996 has been solved. Compliance with the

standard is measured over a three-year period so as to account for the

effects of weather and other meteorological conditions that can work to

either the advantage or disadvantage of air quality. This is

particularly relevant to the Bay Area's case since the meteorological

conditions prevailing on the West Coast during 1997 were unusually

favorable to good air quality and, according to an October 1997 report

by the BAAQMD, the ozone-conducive meteorology that occurred in 1995

and 1996 is likely to recur. The BAAQMD report also revealed that

during the 1990s ``progress appears to have lapsed; there appears to

have been an increase in ozone potential, after accounting for

meteorology.''

The number of violations of this public health standard that

occurred in the Bay Area during 1995 and 1996 is

[[Page 37260]]

especially significant when compared to the air quality in other parts

of the country and the nonattainment designation and requirements

applicable to those areas. For example, EPA recently reclassified or

``bumped-up'' the Phoenix and Santa Barbara areas from ``moderate'' to

``serious'' nonattainment areas for failure to attain the ozone

standard by 1996. This ``bump-up'' to the ``serious'' nonattainment

classification means that these areas must comply with additional

planning and control requirements (e.g. attainment demonstration,

reasonable further progress demonstration, enhanced vehicle inspection

and maintenance program, Photochemical Assessment Monitoring) and must

attain the ozone standard by 1999 or face ``bump-up'' to the severe

classification, which would impose still more requirements. Phoenix

monitored 13 violations of the ozone standard, and Santa Barbara

recorded 7 violations, during the three-year period 1994-1996. The Bay

Area experienced 17 violations during that same three-year period. Such

a comparison reinforces the appropriateness of a nonattainment

designation for the Bay Area.

EPA concluded that a redesignation to nonattainment not only

accurately describes air quality in the Bay Area, but also provides an

opportunity for reevaluating the causes of the Bay Area's ozone

violations, the quantity of emission reductions needed to attain the

health-based standard, and the measures that will achieve those

reductions quickly. Some believe that EPA should not proceed with

redesignation under the 1-hour standard, and that the BAAQMD should

instead focus all its energies on planning for the revised 8-hour ozone

standard. EPA is convinced, however, that some near-term action is

essential to protecting the health and welfare of the Bay Area

residents. Emission reduction strategies will be evaluated and put in

place much sooner through a redesignation under the 1-hour standard

than under a plan to meet the revised 8-hour ozone standard. In

addition, everything that the Bay Area does to meet the 1-hour standard

will help in meeting the more protective 8-hour standard. The Bay Area

won't have to complete its planning for the 8-hour standard until 2003

or comply with the new standard until 2005 at the earliest. That is

five years during which Bay Area residents would be breathing dirtier

air than they should be. It is the public's right, and EPA's

obligation, to be assured that current health standards are met now.

EPA is redesignating the Bay Area to nonattainment without

assigning it a specific classification. The classification system

(marginal, moderate, serious, severe, or extreme) associated with other

current ozone nonattainment areas was created as part of the 1990 Clean

Air Act amendments to match a nonattainment area's planning and control

requirements with the severity of the area's ozone problem. The Bay

Area is in a unique position. It was designated nonattainment under the

1990 amendments, redesignated to attainment after implementing most of

the moderate nonattainment area requirements, and is now being returned

to nonattainment. The existing Clean Air Act classification system does

not specifically apply to the Bay Area. In order to allow maximum

flexibility and in keeping with the best legal reading of the Act, EPA

is redesignating the Bay Area under the longstanding general

nonattainment provisions of the Act, which have no associated

classifications. During public comment, the flexibility allowed by this

approach generated uncertainty as to the planning and control

requirements for the Bay Area. In response to this concern, and to make

sure the Air District's time and energy are spent on control measures,

not unnecessary paperwork, EPA has been more specific in the final

rulemaking notice describing what is required of the Bay Area.

Redesignation should not result in a burdensome and duplicative

planning effort. EPA wants the District and its co-lead agencies to

focus on emission reductions, not paperwork. EPA is asking for only

three plan elements: the existing 1995 emissions inventory for Volatile

Organic Compounds (VOC) and Nitrogen Oxides (NOX); an

assessment of emission reductions, using available data and technical

analyses, needed to attain the federal standard; and control measures

to achieve those reductions. EPA will accept, in addition to or in lieu

of adopted regulations, control measures with enforceable commitments

to adopt in regulatory form and implement by specified dates sufficient

to attain the 1-hour ozone standard by the attainment date. It is an

additional public safeguard to make the control measures in this plan

federally enforceable elements of the State Implementation Plan (SIP),

since only in this way can the EPA and the public ensure that the

commitments in the plan are fully implemented and the plan's promised

air quality benefits are realized.

In response to public comment, EPA has modified both the schedule

and content for State submissions and the attainment date. First, EPA

is requiring only one formal State Implementation Plan (SIP) submittal

instead of two. The one formal SIP submittal will include the emissions

inventory, attainment assessment, and control measures so that the

District can avoid having to undergo two public hearing and adoption

processes, one for the inventory and assessment and a second for the

control measures. EPA is allowing the BAAQMD to make a single SIP

submittal with the understanding, pursuant to a letter of commitment

from the Air District and co-lead agencies dated June 23, 1998, that

the emissions inventory and attainment assessment will be made

available to the public and submitted informally to EPA within 5 months

after signature of the final redesignation by the Regional

Administrator. This early, informal submittal will allow EPA to review

the draft inventory and assessment and work with the District to

address any deficiencies.

Second, EPA has extended the deadlines for the formal SIP submittal

from May 1998 for the emissions inventory and attainment assessment,

and from September 1998 for the adopted control measures and/or

enforceable commitments, to June 15, 1999 for both. This extension

gives the BAAQMD and its co-lead agencies more time to address the

substantive requirements of the redesignation and carry out their

formal adoption and submittal processes.

Third, EPA has extended the attainment deadline from November 15,

1999 to November 15, 2000 in order to allow additional time for the

emission reduction strategies to take effect on air quality in the Bay

Area.

Fourth, both CARB and the BAAQMD submitted compelling arguments

that a weekend emissions inventory was too difficult and resource

intensive to complete at this time, and so EPA has streamlined the SIP

requirements still further by eliminating that obligation.

Finally, in response to public comment, EPA has eliminated the

requirement to submit an emissions inventory for carbon monoxide (CO).

The above changes from the proposed redesignation are summarized as

follows:

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Final--weekend emissions

Proposal--weekend emissions inventory inventory and CO inventory not

and CO inventory required required

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Emissions inventory and attainment Final emissions inventory and

assessment due 5/1/98. attainment assessment due 6/15/

99. (Commitment to make draft

available to EPA and the

public by 11/25/98.)

Adopted regulations and/or control Adopted regulations and/or

measures with enforceable commitments control measures with

due 9/1/98. enforceable commitments and

final emissions inventory and

attainment assessment due 6/15/

99.

Attainment date of 11/15/99............ Attainment date of 11/15/2000.

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EPA recognizes that innovative methods, including voluntary

measures, have the potential to contribute in a cost-effective manner

to emission reductions needed for progress toward attainment. To

promote the creation and expansion of effective voluntary mobile source

programs, the Agency has developed a new policy that allows SIP credit

for such programs.\1\ The Bay Area has already demonstrated leadership

in crafting innovative approaches to air quality problems through the

``Spare-the-Air'' and Silicon Valley ECOPASS programs. EPA is eager to

work with the local government agencies and members of the business and

environmental communities, who are critical to building public support

for voluntary programs, to explore opportunities for innovation and to

ensure that the voluntary measures stand the test of public

accountability.

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\1\ Memorandum dated October 23, 1997 entitled, ``Guidance on

Incorporating Voluntary Mobile Sourve Emission Reduction Programs in

State Implementation Plans (SIPs).''

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II. Background

A. Original Nonattainment Designation and Redesignation to Attainment

For more detailed information on the Bay Area's original ozone

nonattainment designation, classification under the 1990 Clean Air Act

Amendments, and redesignation to attainment, the reader is directed to

EPA's proposed redesignation, published on December 19, 1997 (62 FR

66578-66583).

The Bay Area was initially designated under section 107 of the 1977

CAA as nonattainment for ozone on March 3, 1978 (40 CFR part 81.305).

The Bay Area consists of the following counties: Alameda, Contra Costa,

Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano (part), and

Sonoma (part).2 Following the 1990 amendments to the Act,

the area was classified by operation of law, under section 181(a), as a

``moderate'' ozone nonattainment area. (56 FR 56694, Nov. 6, 1991). On

May 22, 1995 (60 FR 27028), EPA approved the maintenance plan adopted

by BAAQMD, the Metropolitan Transportation Commission (MTC), and the

Association of Bay Area Governments (ABAG) and submitted to EPA by

CARB. In the same document, EPA redesignated the area to attainment for

ozone, based on 3 violation-free years of data from the Bay Area's

official monitoring network.

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\2\ For a description of those portions of Solano and Sonoma

County that are included in the Bay Area, the reader is directed to

40 CFR part 81.21.

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B. Subsequent Violations and Petitions to Redesignate the Bay Area to

Nonattainment

Despite implementation of most of the measures in the Bay Area's

maintenance plan, the monitoring network has recorded 43 exceedances

and 17 violations of the federal 1-hour ozone standard over the years

1995-1996.3

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\3\ An exceedance of the 1-hour ozone standard occurs when the

hourly average ozone concentration at a given monitoring site is

greater than or equal to .125 parts per million (ppm). A violation

of the standard occurs when the expected number of days per calendar

year with maximum hourly average ozone concentrations at or above

.125 ppm is greater than one. 40 CFR part 50.9. The average number

of days is calculated for a 3-year period. 40 CFR part 50, Appendix

H. This 3-year period was established to reduce the impact of yearly

fluctuations in ozone levels. Table 1 in EPA's proposed

redesignation (62 FR 66579) lists both the exceedances and the 3-

year average number of days over the 1-hour ozone standard for the

period 1994-1996 at Bay Area monitoring sites in the official State

and Local Monitoring (SLAMS) network.

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EPA has received 2 petitions requesting that the Administrator

redesignate the Bay Area to nonattainment with the federal 1-hour ozone

standard. On March 31, 1997, the Sierra Club and Communities for a

Better Environment (CBE) requested that EPA withdraw the 1995

redesignation action, or alternatively redesignate the area to

nonattainment. The Sierra Club also requested that EPA issue a CAA

section 110(k)(5) SIP call based on the inadequacy of the current SIP.

On July 14, 1997, U.S. Congressman Gary Condit and a coalition of

federal, state and local elected officials and public interest and

industry groups from downwind areas (primarily the San Joaquin Valley)

petitioned EPA to withdraw the 1995 redesignation to attainment, or

alternatively redesignate the area to nonattainment, and issue a SIP

call. Congressman Condit incorporated this petition in his public

comment on the proposed action, and the petition is summarized in more

detail in section III.C., Overview of Public Comments.

C. Applicable Statutory Provisions

Section 107(d)(3) of the Act gives the Administrator the authority

to redesignate areas. Under this provision, the Administrator may

``(O)n the basis of air quality data, planning and control

considerations, or any other air quality-related considerations the

Administrator deems appropriate, * * * at any time notify the Governor

of any State that available information indicates that the designation

of any area * * * should be revised.'' Section 107(d)(3)(A). The

Governor then has 120 days to submit the redesignation, as the Governor

considers appropriate. Section 107(d)(3)(B). The Administrator must

promulgate the redesignation within 120 days of the Governor's

response. The Administrator may make any modifications to the

Governor's redesignation which she deems necessary, but must notify the

Governor of such changes 60 days before promulgating a final

redesignation. If the Governor does not submit the redesignation, the

Administrator shall promulgate the redesignation which she deems

appropriate. Section 107(d)(3)(C).

D. Notification to the Governor and the Governor's Response

EPA notified the Governor of California by letter dated August 21,

1997, that EPA believes that the Bay Area should be redesignated to

nonattainment, based on repeated violations of the ozone NAAQS. In the

letter to the Governor, EPA proposed that the Bay Area be classified as

a ``moderate'' nonattainment area, and that the area be required to

submit by March 1, 1998, an emissions inventory and an attainment

assessment; submit by May 1, 1998, a schedule and plan for completing a

field study and modeling; and submit by September 1, 1998, rules and/or

control measures sufficient to attain the 1-hour ozone NAAQS by 1999.

The Governor responded to this letter on December 10, 1997. Noting

that the Bay Area had recorded no exceedances of the 1-hour ozone NAAQS

in 1997, the

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Governor opposed the redesignation, preferring that EPA allow the

BAAQMD maintenance plan, subsequent BAAQMD measures, and CARB measures

to ensure that the area would not violate the ozone NAAQS in the

future. See sections III.B. and III.D. below for a more detailed

summary of the Governor's comments and EPA's response.

E. Proposed Action

On December 11, 1997, EPA issued its proposal to redesignate the

San Francisco Bay Area to nonattainment for the 1-hour ozone NAAQS

because ozone levels have violated the federal standard 17 times over

the 3-year period 1994-1996. The proposal was published on December 19,

1997, and invited public comment through February 17, 1998.

After summarizing applicable CAA provisions and the Bay Area's

record of exceedances and violations, EPA proposed to require the

BAAQMD and its co-lead agencies to develop and submit a SIP revision

designed to provide for attainment of the 1-hour ozone NAAQS by 1999.

EPA's proposal set forth the Agency's reasons for concluding that the

Bay Area should not be classified under subpart 2 of the CAA, but

should rather be subject to the basic SIP requirements of section 110

and the general nonattainment plan requirements of section 172 (62 FR

66580). Finally, EPA proposed that the State be required to submit SIP

revisions on the schedule in the table reproduced below, labeled

``Proposed Schedule of Submittal of Revisions to the State

Implementation Plan for Ozone for the San Francisco Bay Area.''

Proposed Schedule of Submittal of Revisions to the State Implementation

Plan for Ozone for the San Francisco Bay Area (62 FR 66578, December 19,

1997)

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Action/SIP submittal Date

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Current and complete baseline annual average and 5/1/98

summer weekday and weekend day emissions

inventory for volatile organic compounds (VOC),

nitrogen oxides (NOX), and carbon monoxide.

Assessment, employing available modeling 5/1/98

information, of the level of emission reductions

needed to attain the current 1-hour ozone

National Ambient Air Quality Standard (NAAQS).

This assessment should take into account the

meteorological conditions and ambient

concentrations associated with the violations of

the ozone NAAQS in the period 1995-6, and should

be based on likely control measures for reducing

VOC and NOX emissions.

Adopted regulations and/or control measures, with 9/1/98

enforceable commitments to adopt and implement

the control measures in regulatory form by

specified dates, sufficient to meet reasonable

further progress and attain the 1-hour NAAQS

expeditiously.

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III. Summary of Public Comments and EPA Response

A. Introduction

EPA received 127 comments between EPA's notification to the

Governor on August 21, 1997, and the close of the public comment period

on February 17, 1998. The docket for this notice includes the public

comments. Of the comments, 68 supported the redesignation and 59

opposed the redesignation. In section III.D. below, EPA summarizes and

responds to each of the substantive comments.

B. Response of the State

On the day EPA issued its proposed redesignation, EPA received an

extensive response from the Governor, dated December 10, 1997. This was

supplemented by a letter dated February 17, 1998, from Peter M. Rooney,

Secretary for Environmental Protection, California Environmental

Protection Agency. The Governor's letter was timely, in that it was

received 7 days before the expiration of the 120-day period for the

Governor to respond to EPA's notification letter.

This section provides a general summary of the State's comments,

expressed in the two letters. EPA's response to the State's comments

appears in section III.D., which organizes by subject matter all of the

public comments and EPA's responses.

The State opposed the redesignation as an inefficient use of

resources, in view of the forthcoming planning responsibilities to

address the new, more stringent 8-hour ozone NAAQS.4 The

State preferred that EPA allow the region to pursue additional emission

reductions through the air quality maintenance process and through

implementation of the Bay Area's 1997 Clean Air Plan, rather than force

the Bay Area to divert resources to an unnecessary planning process

triggered by redesignation.5 The State noted that EPA had

followed a similar, flexible approach by not redesignating other areas

that have violated the ozone standard.

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\4\ EPA promulgated a revised 8-hour ozone NAAQS on July 18,

1997 (62 FR 38856).

\5\ This plan was adopted by the BAAQMD on December 17, 1997, to

address requirements of the California Clean Air Act, including a

triennial update to the area's comprehensive strategy for attaining

the State's air quality standards. The plan was not adopted to

address Federal CAA requirements and it has not been submitted to

EPA as a SIP revision.

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Both letters from the State attached two legal opinions (CARB

memorandum dated December 8, 1997, from Kathleen Walsh to Michael P.

Kenny; BAAQMD memorandum dated December 4, 1997, from Robert N. Kwong

to Ellen Garvey). These legal analyses concluded that, while EPA has

the authority to redesignate the Bay Area to nonattainment even if the

Governor does not submit a redesignation request, the Act also gives

EPA other preferable options. The BAAQMD memorandum discusses 3

options: federal maintenance plan, SIP call, and Clinton

Administration's common sense plan. The CARB memorandum argues that EPA

should issue a call for a revision to the Bay Area's maintenance plan

under CAA section 110(k)(5) if the Administrator determines that a SIP

revision is necessary to correct a violation, since this approach would

allow a more targeted effort to correct the problem. The BAAQMD

memorandum adds that a maintenance plan is the means Congress

established for addressing exceedances following redesignation to

attainment, and both memoranda conclude that the existing maintenance

plan and the Bay Area's 1997 Clean Air Plan are already at work toward

returning the District to attainment, as indicated by the absence of

any exceedances of the 1-hour ozone NAAQS in the Bay Area during 1997.

The State argued that there is no technical basis for determining a

specific emission reduction target by EPA's proposed deadline of May 1,

1998, and that a quasi-technical assessment would not be accepted by

the public or the business community. The State contended that modeling

information is outdated and inadequate for purposes of determining an

emissions reduction target.

The State argued that redesignation would hurt attainment efforts

in the Central Valley, since it would distract the Bay Area from

achieving real

[[Page 37263]]

emissions reductions.6 The Governor stated that he has

directed the Chairman of CARB to work with involved districts to ensure

that the BAAQMD develops additional measures to address the needs of

the Central Valley.

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\6\ California's Central Valley comprises the Sacramento Valley

to the northeast of the Bay Area and the San Joaquin Valley to the

southeast. CARB has concluded that the Sacramento Valley, the San

Joaquin Valley, and the North Central Coast (to the south of the Bay

Area) are affected by transport of ozone and ozone precursors from

the Bay Area.

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The State concluded that EPA's proposed schedule does not provide

sufficient time for planning or attainment, and that accomplishment of

the proposed SIP requirements would be too costly. The State noted that

the BAAQMD had estimated that EPA's proposed planning process, although

streamlined, would still cost in the range of one million dollars or

more, and would require significant investments of staff time, advisory

committee time, and governing board time for all 3 co-lead agencies.

The State specifically argued against EPA's proposed requirements for a

weekend emissions inventory, which would require several person-years

of effort and associated costs in the range of a half-million dollars.

As an additional financial burden, the State asserted that EPA's

proposed redesignation of the Bay Area without a classification

jeopardizes the region's Congestion Mitigation and Air Quality

Improvement Program (CMAQ) funding.

Finally, the State cited the President's directive that accompanied

the promulgation of the new federal standards for ozone and particulate

matter.7 The State encouraged EPA to comply with the spirit

of the directive, which emphasizes that ``implementation of the air

quality standards is to be carried out to maximize common sense,

flexibility, and cost effectiveness.'' The State concluded that EPA

withdrawal of the redesignation proposal would be most consistent with

this directive.

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\7\ Memorandum from the President to the Administrator of the

Environmental Protection Agency, dated July 16, 1997, entitled

``Implementation of Revised Air Quality Standards for Ozone and

Particulate Matter,'' and attaching ``Implementation Plan for

Revised Air Quality Standards.'' 62 FR 38421 (July 18, 1997).

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C. Overview of Public Comments

EPA's proposed redesignation elicited a very large number of

comments, offering strong arguments either in support of, or in

opposition to, redesignation. Many of the letters also provided helpful

information regarding the impacts, beneficial or adverse, expected to

result from redesignation. Regardless of whether or not the writer

favored redesignation, every commenter strongly supported clean air

progress in the Bay Area. It is notable, for example, that many

commenters from the Bay Area business community wished to do their part

to improve air quality and maintain a sound economy, based on their

conviction that investments in air quality directly enhance the area's

economic vitality and their employees' quality of life. EPA appreciates

each comment and greatly values the commenters' commitment to improved

air quality and public health protection.

As previously noted, well over 100 individuals or organizations

submitted comments on the proposed redesignation.

Included among the comments were letters supporting redesignation

from Congressman Gary Condit (Fresno) and from 6 Members of Congress

from the Bay Area (Representatives George Miller, Lynn Woolsey, Nancy

Pelosi, Pete Stark, Anna Eshoo, and Tom Lantos). Four Northern

California Members of Congress (Representatives Ellen Tauscher, Tom

Campbell, Frank Riggs, and Vic Fazio) signed a letter in opposition to

the redesignation.

The Bay Area Members of Congress opposing the redesignation

believed that such an action is neither consistent with the CAA nor in

the spirit of the President's 1997 directive on implementing the ozone

and particulate matter NAAQS. These Representatives noted that the CAA

does not mandate redesignation but allows EPA to recognize the Bay

Area's track record and overall quality of air. The Members felt that

redesignation will trigger a costly, duplicative planning process that

will detract from collaborative efforts to improve air quality and

prepare for compliance with the 8-hour NAAQS. The Representatives

indicated that sources informed them that EPA's proposed action would

provide no new authority, funding and technology. The legislators felt

that declining Bay Area emissions and the clean 1997 ozone season prove

that a region can quickly return to attainment without the economic,

political, and administrative complexities of redesignation. The

Representatives indicated that they are not opposed to the new 8-hour

ozone NAAQS but wish an efficient, common sense transition to achieve

the NAAQS. Finally, if EPA redesignates the Bay Area, the legislators

wanted assurance that the CMAQ funding for the Bay Area will not be

jeopardized by EPA's action.

Congressman Condit fully supported the proposed redesignation and

referenced scientific data relating to Bay Area's exceedances and to

the impact of transported pollutants to downwind areas, such as the San

Joaquin Valley. Congressman Condit asked that a July 14, 1997 petition

to EPA be incorporated in his comment. This petition was signed by 4

Congressmen in addition to Congressman Condit (Representatives George

Radanovich, Richard Pombo, John Doolittle, and Sam Farr), 4 state

legislators, local elected officials, and officials representing farm

and manufacturing organizations, environmental groups, and the San

Joaquin Valley Unified Air Pollution Control District.

The petition summarizes the adverse impacts of elevated ozone

levels on public health, health care costs, and crops. The petition

also notes reasons why the years during the early 1990's when the Bay

Area recorded no violations were exceptional: A severe drought limited

biogenic emissions, summer peak temperatures were lower than normal,

the area was experiencing an economic recession, and the 55 mph speed

limit was in effect, reducing emissions of ozone precursors from cars

and trucks.

The petition notes that no modeling supported the redesignation of

the Bay Area to attainment, and that contingency measures in the

maintenance plan yielded no additional air quality benefit,

particularly in light of EPA's decision to waive certain NOX

control requirements. Thus, the maintenance plan failed to comply with

the requirement in CAA section 175A(d) that the plan contain

contingency measures sufficient to assure that the State will promptly

correct any violation of the standard which occurs after the

redesignation. The petition adds that it is now apparent that the

maintenance plan failed to comply with the even more fundamental

requirement of section 175(A)(a) that such plans contain additional

measures, if any, as may be necessary to ensure maintenance of the

NAAQS.

The petition recounts the Bay Area's ozone NAAQS violations

immediately following redesignation, some lasting up to 7 hours on 11

different days, with the worst exceedance in excess of .150 ppm, and 13

exceedances at or above .140 ppm. The petition concludes that prompt

action is necessary to achieve the overriding purpose of the Act, since

the SIP controls have been shown to be insufficient for attainment or

maintenance.

The petition asks EPA either to withdraw the redesignation or

redesignate the Bay Area to nonattainment, and further asks EPA to find

that the current Bay Area SIP is inadequate and require the State to

[[Page 37264]]

revise the SIP to attain the NAAQS expeditiously.

The petition states that there is no longer a defensible basis to

believe that the Bay Area has attained or that the approved maintenance

plan is still adequate. The petition continues: ``The existing

attainment designation sends a false signal to the public, the

regulated community, local agencies and the District itself that ozone

pollution is no longer a problem. The complacency created by that

message will hinder rather than help solve the problem within the Bay

Area and the San Joaquin Valley * * *.''

The petitioners requested EPA to establish a SIP requirement that

the State perform a comprehensive analysis of all factors affecting the

ozone precursor ``carrying capacity'' for maintenance of the NAAQS in

the Bay Area, and provide accurate estimates of emission reductions

anticipated to be achieved from additional measures to be included in

the plan, based upon an updated emissions inventory. While the

nonattainment SIP is being prepared, a SIP call should allow the State

1 year to submit a maintenance revision that includes adopted

additional measures to ensure the earliest practicable attainment and

maintenance of the ozone NAAQS. The petitioners stated that, ``Given

history, the submittal should demonstrate the reliability and adequacy

of those measures convincingly.'' The subsequent SIP offers an

opportunity to fine tune the maintenance SIP revision and address any

problems that may surface in implementation.

The 6 Bay Area Members of Congress supporting the redesignation

stressed that protecting the health of their constituents is one of

their highest responsibilities as lawmakers. After careful

consideration, these Representatives concluded that the specific

proposed redesignation presented by EPA is the best course of action to

provide the greatest assurance of improving Bay Area air quality and

protecting public health, while placing the fewest burdens on the local

economy, residents, industry and regulators.

The legislators noted as significant a recent BAAQMD report showing

a worsening trend in ozone pollution in the 1990s. While acknowledging

the BAAQMD's new plan for future actions, the Members of Congress

expressed concern that the plan, adopted to meet California Clean Air

Act requirements, is inadequate since it contains only proposals, not

binding commitments, and can be changed at any time. Since the plan is

not enforceable by EPA or the public, the Representatives were unable

to verify that the plan would achieve attainment or genuinely improve

air quality.

The Representatives' letter went on to stress that there is no way

to know whether Bay Area actions are sufficient for attainment until

federal and local regulators have a common understanding of the extent

of local air pollution problems. These Members of Congress considered

that EPA's redesignation proposal allows the maximum flexibility to the

BAAQMD to reach attainment by building on its existing plan and

avoiding redundancy, specifically with respect to emissions inventory

and modeling. The Members stated that it is incumbent upon the BAAQMD

to work with EPA to find common ground on credible and binding actions

and timetables.

While aware of arguments against redesignation based on EPA's

recent adoption of a more stringent 8-hour ozone NAAQS, the Members of

Congress still favored redesignation and action now to address the 1-

hour standard, since 10 years may pass before the Bay Area must comply

with the revised ozone standard, and any steps taken to comply with the

current standard will only help, not hinder, the area's ability to meet

the 8-hour standard when it is officially in place. In the meantime,

Bay Area residents are likely to be exposed to harmful pollution levels

if there is no action.

Finally, these 6 Representatives noted that the Department of

Transportation has concluded that EPA's proposed redesignation would

not jeopardize the Bay Area's eligibility for CMAQ funds under either

the existing Intermodal Surface Transportation and Efficiency Act

(ISTEA) or pending revisions to the Act.

EPA received numerous letters from State legislators, mayors, and

boards of supervisors, in almost equal number supporting and opposing

the redesignation. Fifteen city councils or county boards of

supervisors in the San Joaquin Valley adopted resolutions supporting

the redesignation and Federal actions to mandate additional controls in

the Bay Area to reduce pollution levels exported into the Valley.

Five California air pollution control districts (Monterey, San

Joaquin, Sacramento, Yolo-Solano, and Placer) wrote to support further

emission reductions in the Bay Area, while the BAAQMD opposed the

redesignation. EPA summarizes and responds to the BAAQMD's extensive

comments in section III.D., below.

EPA received letters from over 20 Bay Area businesses and business

organizations arguing against the proposed redesignation, as well as

several letters from San Joaquin Valley businesses supporting the

redesignation.

Letters supporting the redesignation and encouraging adoption of

specific additional controls were sent by Northern California

environmental groups. These commenters generally perceived a contrast

between the major threat to public health reflected in the recent ozone

violations and the lack of political will shown by State and Bay Area

officials. The commenters supported a stringent timetable for SIP

revisions and attainment, agreeing with EPA that the urgent priority is

to actually adopt measures to ensure that the Bay Area ozone violations

will not recur.

Nineteen public interest groups representing the Bay Area

Environmental Justice Community signed a letter in support of the

redesignation, emphasizing the need to stem job flight to the suburbs

and to increase public transit within the Bay Area. The environmental

justice groups noted that these changes would benefit poor people and

communities of color both by improving their health and by increasing

their access to jobs and essential services.

All letters from downwind areas (including, notably, the San

Joaquin Valley) strongly urged EPA to finalize the redesignation, on

the grounds that the Bay Area exports ozone or ozone precursors to

their region, thus jeopardizing public health, prosperity, and scenic

and resource values. These letters typically noted that the Bay Area,

as an attainment area, does not confront Federal control

responsibilities, and that this double standard unfairly penalizes

downwind nonattainment areas, which face specific CAA mandates

associated with their ``serious'' or ``severe'' ozone classifications.

Letters from Bay Area local officials and businesses generally

pointed to unusual weather during 1995 and 1996 as the cause of the

ozone exceedances; the Bay Area's continuing efforts to reduce

emissions and the BAAQMD's projections that emission levels will

decline significantly in future years; the fact that the Bay Area

recorded no exceedances in 1997; and the importance of not diverting

resources from implementation of existing measures and planning for the

more protective 8-hour ozone NAAQS. The commenters frequently observed

that EPA's proposed SIP timetable was too hasty to allow for good

decision making.

[[Page 37265]]

D. Specific Comments and EPA Response

1. Comments Relating to the Basis of EPA's Proposal to Redesignate the

Bay Area to Nonattainment

a. Air Quality and Emissions

Comment: The primary cause of the recent ozone exceedances is the

very unusual weather patterns of 1995 and 1996. There were fewer

exceedances of the 1-hour ozone NAAQS in 1996 and no exceedances in

1997. The Bay Area should therefore continue to be considered an

attainment area.

Response: The Bay Area is not in compliance with the federal ozone

standard, a standard that was designed to protect public health. The

absence of violations in 1997 is a positive sign, but compliance with

the federal ozone standard is measured over a 3-year period, not on an

annual basis. The primary reason for the 3-year time frame is to

account for the effects of weather and other meteorological conditions

that can work to either the advantage or disadvantage of air quality.

This is particularly relevant in the Bay Area's case, since the

meteorological conditions prevailing on the West Coast during 1997 were

unusually favorable to good air quality. Furthermore, according to a

recent technical analysis by the BAAQMD, the ozone-conducive

meteorology that occurred in 1995 and 1996 is likely to recur (BAAQMD

Evaluation of the 1995 and 1996 Ozone Seasons in the San Francisco Bay

Area, October 1997, attached to Governor Wilson's December 10, 1997

letter to EPA Administrator Browner). Bay Area residents must be

assured of clean air under all weather conditions.

The Bay Area recorded 17 violations of the 1-hour standard over the

3-year period 1994-1996. During that period, exceedances of the ozone

standard were measured at 15 official network monitoring locations

throughout the Bay Area. Although air quality improved between 1995 and

1996, the Bay Area's ranking in 1996 was the 6th worst in the nation

for number of days when ozone levels exceeded the federal standard.

Over the period 1995-1997, the Bay Area recorded 15 violations and had

significantly worse air quality than most other metropolitan areas

designated as nonattainment for ozone (see response to the following

comment). Many of these areas are classified as ``serious'' or higher

under the Clean Air Act, and are subject to specific mandatory

requirements which would not apply to the Bay Area in EPA's

redesignation proposal.

These high ozone levels are harmful to public health in the Bay

Area. Exposure to ambient ozone concentrations, even at relatively low

levels and for brief periods of time, can cause respiratory symptoms

such as a reduction in lung function, chest pain, and cough. Repeated

exposure can make people more susceptible to respiratory infection and

lung inflammation, and can aggravate preexisting respiratory diseases

such as asthma. In consideration of these significant public health

concerns associated with the Bay Area's elevated ozone levels, EPA

continues to believe that redesignation to nonattainment is warranted.

Comment: The Bay Area has the cleanest air of any metropolitan

region in the nation. Since 1990, the Bay Area has been in attainment

99.995% of the time.

Response: There is no question that air quality in the Bay Area has

improved over the last 40 years. However, the Bay Area is not currently

attaining the federal 1-hour ozone standard, a standard that was

designed to protect public health and which has been made more

protective by adoption of a new, 8-hour standard. The magnitude of the

problem is significant as demonstrated by the number of violations (17

since redesignation to attainment in 1995) and the number of days when

the standard was exceeded (19 days between 1995-1997). When comparing

air quality in the Bay Area to other major metropolitan areas, there

are a number of large metropolitan areas, such as Chicago and Detroit,

with fewer violations and exceedance days than experienced in the Bay

Area. Furthermore, the Bay Area ranks among the worst of the 243 Air

Quality Control Regions in the country, based on data from the most

recent 3-year period. Finally, in contrast to most areas of the

Country, there is not a significant downward trend in the number of

ozone exceedances in the Bay Area since 1989.

Comment: EPA's reliance on a statistic ranking the Bay Area the 6th

worst in the nation in number of days over the ozone standard is

misplaced. EPA's simplistic characterization of the number of

exceedances fails to realistically depict the situation. A more

realistic characterization is based on a review of the exceedances in

terms of hours over the standard relative to hours in the ozone season

for six or seven years. Following this approach, the number of hours

over the standard is less than \2/100\ of a percent for 1990-1996. This

analysis properly focuses on long-term trends rather than short-term

data.

Response: When EPA establishes an ambient air quality standard, it

sets not only the level of the standard (in this case, .12 ppm) but

also the averaging time of the standard (1-hour) and the form of the

standard (how compliance is measured). Each of these components of the

NAAQS is set based on EPA's review of the available health effects

data. When EPA set the 1-hour ozone NAAQS, EPA specified that the form

be based on the number of exceedance days per year averaged over 3

years. Therefore, EPA's characterization of the Bay Area air quality in

terms of number of days over the standard is appropriate. The form of

the standard is not based on the number of hours over the standard

relative to hours in the ozone season for 6 or 7 years, so an

examination of the Bay Area's air quality on this basis would not be

appropriate.

Comment: Some commenters concluded that the absence of violations

in 1997, in conjunction with predicted further declines in emissions,

proves that the Bay Area's ozone problem has been solved. Other

commenters noted that the West Coast's extraordinary meteorology in

1997 kept ozone concentrations unusually low, and that emissions in the

Bay Area may in fact not be decreasing as much as predicted, given the

strong economic growth in the area and other factors.

Response: The October 1997 BAAQMD report referenced above

identifies a downtrend in ozone precursor emissions from 1979 through

the early 1990s, but notes that during the 1990s ``progress appears to

have lapsed; there appears to have been an increase in ozone potential,

after accounting for meteorology'' (page v). The report further notes

that the ozone violations in 1995 and 1996 cannot be attributed solely

to unusual circumstances. It identifies possible explanations for

increased emissions over this time period (e.g., increased speed

limits, increased congestion levels, and increased employment levels in

East Bay communities).

EPA believes that a redesignation to nonattainment not only

accurately describes air quality in the Bay Area, but also provides an

opportunity for reevaluating the causes of the Bay Area's ozone

violations, the quantity of emission reductions needed to attain the

health-based standard, and the measures that will achieve those

reductions expeditiously. This may involve not only CARB and BAAQMD but

also MTC and ABAG in cooperative efforts to reduce the motor vehicle

contribution to the Bay Area's continuing smog problem.

[[Page 37266]]

Comment: EPA has not demonstrated that contingency measures in the

Bay Area's maintenance plan in conjunction with other projected

reductions will fail to bring the region back into attainment.

Response: EPA acknowledges that additional emission reductions are

likely to be achieved from measures already in the SIP or submitted for

SIP approval. No commenter, however, has provided any evidence that

these reductions will be sufficient to avoid violations in the future.

Indeed, many commenters, including the BAAQMD and the State, emphasized

that recently adopted control measure commitments in the Bay Area's

1997 Clean Air Plan are important in order to ensure continued air

quality progress.

The Clean Air Act places the burden on the State to demonstrate

that its plan, at all times, provides for attainment and maintenance of

the NAAQS, through federally enforceable emission reductions sufficient

to avoid violations of the NAAQS. The Federal CAA also provides

protections to the public in the event that State plans are not fully

and successfully implemented to achieve the scheduled emission

reductions and air quality improvements. These protections include

federally imposed nonimplementation sanctions and opportunities for

citizens to sue to compel implementation.

EPA believes, therefore, that redesignation and new SIP obligations

for the Bay Area are consistent with the overall structure and intent

of the CAA, and provide key public health benefits. The State and

BAAQMD will assess, using available data and technical analyses, the

amount of emission reductions needed to ensure that violations of the

1-hour ozone NAAQS do not recur. The State, BAAQMD, and other

responsible local agencies must then identify control measures that

will achieve these reductions. EPA expects that the agencies will

analyze which control measures from the 1997 Clean Air Plan are needed

to attain the standard and which measures beyond those contained in the

plan are also needed. The State, BAAQMD, and other responsible agencies

will be subject to a schedule for adopting and implementing the

necessary controls. The public will have increased protections as a

result of making control measures needed to attain the standard part of

the SIP, thus providing insurance that the measures will be carried

out, if necessary, through federal enforcement or citizen suit.

Comment: EPA received a number of comments related to the continued

applicability of the 1-hour ozone NAAQS in light of the new 8-hour

standard.

Response: EPA is responding to these comments at length below to

further the public's understanding of this issue. However, EPA's

decisions that (1) the 1-hour standard will remain in effect in an area

until it is attained, and (2) that the standard continues to apply in

the Bay Area because the area is not attaining the standard, are not at

issue in this rulemaking action and are not appropriately challenged

here. EPA's views regarding these issues are set forth in 63 FR 31013,

June 5, 1998.

Comment: The Bay Area had attained the 1-hour ozone NAAQS and,

therefore, rather than being redesignated to nonattainment, the area

was entitled to revocation of the 1-hour NAAQS in conformance with the

President's directive.

Response: The President's ``Implementation Plan for Revised Air

Quality Standards'' (``Implementation Plan'') (62 FR 38424) called for

EPA to revoke the 1-hour ozone NAAQS in all areas that attain the

standard. The President did not direct EPA to revoke the 1-hour ozone

standard in all areas currently designated as maintenance or attainment

areas. The President clearly intended that current air quality be the

basis of EPA's determination of which areas attain. The Implementation

Plan states that ``[f]or areas where the air quality does not currently

attain the 1-hour standard, the 1-hour standard will continue in

effect'' (emphasis added). Moreover, the controlling regulatory

provision, 40 CFR section 50.9(b), specifies that an area must have air

quality that meets the standard at the time of the decision. EPA's

rulemaking action to determine that the 1-hour standard no longer

applies in areas that are not currently violating the standard is

therefore consistent with the Presidential memorandum. 63 FR 31013

(June 5, 1998). Because the Bay Area is currently violating the 1-hour

ozone standard, the area is not currently eligible for this

determination.

Comment: EPA has indicated that if the Agency's review of recent

monitoring data finds that an attainment or maintenance area now

violates the 1-hour standard, EPA will not redesignate these areas to

nonattainment under the 1-hour standard.

Response: Both EPA's final regulation promulgating the new ozone

regulation (62 FR 38873) and the Presidential memorandum regarding

implementation of the standards (62 FR 38424) explain that in order to

ensure a smooth transition to the implementation of the 8-hour ozone

standard, the 1-hour standard will remain applicable to an area until

it has attained the 1-hour standard. As long as the 1-hour standard

remains in effect in an area, so does EPA's authority under CAA section

107(d)(3) to redesignate that area as a nonattainment area. EPA's

``Guidance for Implementing the 1-Hour Ozone and Pre-Existing

PM10 NAAQS'' (December 29, 1997 Memorandum from Richard D.

Wilson, to EPA Regional Administrators) clarifies that ``in certain

cases where air quality data through 1997 show nonattainment, EPA may

be redesignating areas from attainment to nonattainment for the 1-hour

standard.''

Comment: EPA should treat the Bay Area like other maintenance areas

in the Country, where the 1-hour NAAQS is not being revoked because the

areas have had recent violations of the NAAQS. These areas are not

being reclassified to nonattainment.

Response: The Bay Area's number of exceedances and violations and

the Bay Area's peak concentrations (highest monitored value and design

concentration) far exceed those in all other maintenance areas that

have had exceedances since 1994. There are 5 other ozone maintenance

areas in addition to the Bay Area that have experienced violations of

the 1-hour ozone standard after redesignation: Kansas City, Detroit-Ann

Arbor, Dayton-Springfield, Grand Rapids and Memphis. Three of these

maintenance areas (Detroit-Ann Arbor, Grand Rapids, and Dayton-

Springfield) already meet the test for attainment of the 1-hour ozone

NAAQS based on 1995-1997 data and are therefore proposed for revocation

of the 1-hour ozone standard (63 FR 27247, May 18, 1998). The remaining

2 areas, Kansas City and Memphis, could meet that test at the end of

1998, assuming that no more than 2 exceedances are recorded at the peak

monitor during 1998. Because the peak monitor in the Bay Area recorded

8 exceedances in 1996, the Bay Area would still violate the 1-hour

ozone NAAQS even if no exceedances occur in 1998, since the average

number of exceedances for the 3-year period 1996-1998 would exceed 1

per year.

b. Legal Authority

(i) General Comments on Mandatory and Discretionary Authorities To

Redesignate

Comment: A number of commenters felt that EPA should not

redesignate the Bay Area to nonattainment because the Clean Air Act

contains no mandatory duty to do so.

Response: EPA agrees that section 107(d)(3)(A) does not require EPA

to redesignate the Bay Area. However,

[[Page 37267]]

section 107(d)(3) of the Act grants the Administrator broad discretion

to redesignate areas when she determines that it is appropriate. For

the reasons discussed at length in the proposal and in today's final

notice, the Administrator believes that it is necessary to redesignate

the Bay Area.

(ii) Authority To Redesignate Without Classification

Comment: The BAAQMD commented that it disagrees with EPA's

interpretation of section 181(b)(1) of the Act, and believes that the

ambiguity contained in the language of this section argues in favor of

a SIP call to strengthen the maintenance plan, rather than

redesignation without classification.

Response: As EPA explained at length in its proposal, section

181(b)(1), which provides for new designations to nonattainment, does

not on its face apply to the Bay Area. (Please refer to 62 FR 66580,

December 19, 1997, for EPA's analysis of the applicability of section

181.) Section 181(b)(1) explicitly sets forth which areas it governs.

Specifically, section 181(b)(1) covers only those areas that were

originally designated attainment or unclassifiable pursuant to section

107(d)(4) of the 1990 amendments. This section is silent with regard to

areas, like the Bay Area, that were designated nonattainment under the

1990 amendments, redesignated to attainment, and that subsequently

returned to nonattainment.

In its comments on the proposal, the BAAQMD cautions EPA against

inferring anything from Congress' silence with regard to areas like the

Bay Area. However, because Congress was silent on this point, some

inference must be made in order to decide how an area like the Bay Area

is to be treated under the Act. The BAAQMD would like us to infer that

we cannot redesignate an area back to nonattainment once it has

attained the standard, but must instead issue a SIP call to address the

inadequacies in the maintenance plan and contingency measures. While a

SIP call is one possible option, it is clearly not the only option

authorized by the Act. There is no ambiguity in the language of section

107(d)(3), which grants the Administrator the authority to redesignate

an area ``any time'' she deems it is appropriate based on air quality

data, planning and control considerations, or any other air quality-

related considerations.8 EPA continues to believe that

redesignation, rather than a SIP call, is the appropriate action in

this instance. Given the broad discretion granted the Administrator

under section 107(d)(3), EPA is exercising that discretion today to

redesignate the area to nonattainment. Moreover, we also continue to

believe that the ambiguity contained in the language of section

181(b)(1) is best interpreted as placing the Bay Area under subpart 1

of the Act for the following reasons. The plain language of section

181(b)(1) applies only to areas designated attainment under section

107(d)(4) and excludes areas like the Bay Area. Second, as an area that

was previously designated nonattainment, the Bay Area has already done

much of the work required for a nonattainment area SIP and should not

need the lengthy time period granted to new nonattainment areas to

complete its planning process. The Bay Area has already implemented the

section 181 requirements applicable to its previous moderate

classification. Finally, sections 172(a)(1) and (2) contain express

statements that they do not apply to nonattainment areas that are

specifically covered by other provisions of Part D of the Act, thereby

demonstrating that the Act contemplates that some areas will fall under

subpart 1, rather than subpart 2.

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\8\ The Bay Area recorded 43 exceedances of the ozone standard

in the two-year period 1995-1996. The standard allows no more than

three exceedances at any one monitor over three years. In addition,

the area recorded violations at special purpose monitors (SPMs) from

1992-1993, prior to being redesignated to attainment. While these

violations were not considered in EPA's original decision to

redesignate the area to attainment because the monitors were not

part of the official monitoring network, the Agency has since issued

a policy that requires that any reliable monitoring data be relied

upon in such decisions. (August 22, 1997 memorandum entitled,

``Agency Policy on the Use of Special Purpose Monitoring Data,''

from John Seitz, Director of the Office of Air Quality Planning and

Standards.) As we noted in the proposal (62 FR 66579, December 19,

1997), EPA has determined that the SPMs data should have been

considered in the 1995 redesignation action. With the advantage of

hindsight, these violations can be viewed as an indicator that the

air quality problem in the Bay Area has not been solved at the time

the area was redesignated, as was borne out by the high number of

exceedances during 1995-1996. As we have discussed at length herein

and in the notice of proposed rulemaking, the severity of the air

quality problem makes redesignation the appropriate action in this

case.

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c. Policy Issues

(i) Public Notification and Public Perception

Comment: Some commenters considered redesignation to be simply a

labeling exercise that will have a negative impact on public support

for existing air quality programs by emphasizing redundant and

counterproductive procedural and paperwork tasks above real progress in

emission reductions.

Other commenters noted that the redesignation debate in the Bay

Area shows that labels are significant, and that ``nonattainment''

accurately conveys the message that making the Bay Area's air safe to

breathe is a task still unfinished; there needs to be a clear and

consistent signal to the affected sources and the public about why new

measures are necessary. These commenters concluded that, to win

approval of additional reductions in air pollution, the public needs to

know the actual status of air quality in the Bay Area. The broader

public will not support efforts to reduce pollution if air quality is

deemed to be in attainment of health standards. If local regulators

maintain that air quality is fine and if there is no public

accountability through EPA oversight or the right of public interest

groups to enforce attainment plans, the regulators will not take on the

difficult task of requiring polluters to invest further in pollution

prevention or control technology.

Response: The large number of Bay Area exceedances in 1995 and 1996

indicates that we do not have a convincing basis for predicting an end

to ozone violations without further reductions. Designations of

attainment are intended to apply to areas that have demonstrated clean

air over a 3-year period.

Moreover, EPA does not believe that the Bay Area's current

attainment designation is appropriate since it tells the affected

public, the regulated community, local agencies, and the District that

ozone pollution is no longer a problem. This inaccurate message tends

to undercut collaborative and progressive actions in the near term, and

contributes to confusion and dissension both within the Bay Area and in

downwind populations.

EPA remains convinced that near-term action is needed to protect

the health and welfare of the State's residents. Emission reduction

strategies will be evaluated and put in place 4-5 years sooner through

a redesignation under the 1-hour standard than is expected under a plan

to meet the revised ozone standard (new plans are not expected to be

due under the revised standard until 2003 and the attainment date for

an area such as the Bay Area for the 8-hour standard is expected to be

2005 at the earliest). That is at least 4-5 years during which

Californians would be breathing dirtier air than they should be.

Finally, EPA continues to believe that a redesignation to

nonattainment not only accurately describes air quality in the Bay Area

but also provides an opportunity for reevaluating the causes

[[Page 37268]]

of the Bay Area's ozone violations, the quantity of emission reductions

needed to attain the health-based standard, and the measures that will

achieve those reductions expeditiously.

(ii) Impact of Bay Area Emissions on Downwind Nonattainment Areas and

Issues of Equity

Comment: Commenters from downwind areas and environmental groups

referenced a CARB study indicating that pollution transported from the

Bay Area produces up to 27% of the smog in the Central Valley. Monterey

Bay Unified Air Pollution Control District noted that CARB has found

that half of the exceedances of the State 1-hour ozone standard in the

North Central Coast Air Basin result from overwhelming transport from

the Bay Area (i.e., the exceedances would have occurred even in the

absence of local emissions). Commenters expressed the belief that

continued Bay Area progress toward meeting federal requirements is key

to achieving air quality in these downwind areas, and that further

NOX reductions in the Bay Area are especially important.

Commenters noted high pollution levels in areas downwind of the Bay

Area, and argued that redesignation would help ensure that the Bay Area

pays the price of controlling its pollution rather than passing it on

in the form of health impacts and added regulatory requirements for

downwind areas. Downwind areas stated that enhanced motor vehicle

inspection and maintenance (or enhanced I/M, which is known in

California as Smog Check 2) should be required in the Bay Area, just as

it is in urbanized portions of the Central Valley.

The BAAQMD argued that redesignation without classification would

not ensure implementation of Smog Check 2 in the Bay Area under

existing State law. The State argued that redesignation would hurt

attainment efforts in the Central Valley, since it would distract the

Bay Area from achieving real emissions reductions. Bay Area industry

commented that redesignation will not solve pollution transport issues

in California and that any reliance on pollutant transport concerns to

support redesignation is unfounded and legally impermissible.

Response: The basis for the nonattainment designation is the large

number of recent violations of the 1-hour ozone NAAQS in the Bay Area,

not any new evidence regarding the impact of Bay Area pollution on

downwind areas within the State. EPA believes that primary

responsibility for addressing transport to and from the Bay Area

resides with the State.

With respect to the importance of Smog Check 2 in the Bay Area, EPA

strongly endorses enhanced I/M as one of the most cost-effective

measures that could be added to the Bay Area's existing controls, since

the program has the potential to achieve substantial emissions

reductions in the near term and to ensure that the benefits of

California's stringent motor vehicle standards are not diminished

because of poorly maintained vehicles.

(iii) Effect of Redesignation on Limited Air Pollution Control

Resources

Comment: Redesignation will trigger an expensive, duplicative

planning process that will detract from effective collaborative efforts

to improve air quality. Redesignation provides no new funds, authority,

or technology but simply imposes paperwork and process requirements.

Response: Redesignation should not result in a burdensome and

duplicative planning effort. EPA wants the District and its co-lead

agencies to focus on emission reductions, not paperwork.

EPA is asking, in fact, for only three plan elements: the existing

1995 emissions inventory for VOC and NOX, an assessment of

emissions reductions needed to attain the federal standard, and control

measures to achieve those reductions. EPA is allowing the District to

use available data and technical analyses to establish the emission

reduction targets. Finally, EPA expects that most of the work to

identify potential control measures has also been completed for the

District's recently adopted 1997 Clean Air Plan. EPA expects that the

District will analyze which control measures from this plan are needed

to attain the standard and which measures beyond those contained in the

plan are also needed. Making these control measures federally

enforceable elements of the SIP provides an important public safeguard

since only in this way can EPA and the public ensure that the

commitments in the plan are fully implemented and the plan's promised

air quality benefits are realized. This streamlined planning effort

also provides an opportunity for the Bay Area to quickly determine

whether additional reductions from transportation sources are

appropriate, in the event that attainment requires more near-term

reductions than the Clean Air Plan currently identifies.

While EPA concedes that redesignation may provide no new funds,

authority, or technology, the Agency does not agree that the

redesignation, as finalized in this action, simply imposes burdensome

paperwork and process requirements on the Bay Area. EPA's proposed

streamlined and flexible set of requirements contrasts with extensive

and prescriptive planning and control requirements that apply to ozone

nonattainment areas with 1999 attainment deadlines. Most of these

areas, which were classified as ``serious'' under the Clean Air Act,

have far fewer ozone exceedances and far fewer planning resources than

does the Bay Area. The following are examples of ``serious'' ozone

nonattainment area mandates, which EPA does not propose to require in

the Bay Area: (1) A more stringent definition of major stationary

source for purposes of Title V operating permit requirements; (2) more

stringent applicability thresholds and offset ratios for purposes of

permitting new and modified stationary sources; (3) a more stringent

definition of major stationary source for purposes of applying

reasonably available control technology requirements to existing

stationary sources; (4) specific, detailed plan elements addressing

rate-of-progress; (5) an enhanced vehicle inspection and maintenance

program; and (6) specific, detailed provisions relating to

transportation control.

Comment: Redesignation is inconsistent with the President's

directive that the new federal air quality standards be implemented in

a flexible, cost-effective and common-sense manner; that EPA respect

agreements already made by States, communities, and businesses to clean

up the air; and that EPA implement the standards with the minimum

amount of paperwork necessary. Redesignation also fails to promote the

ideals of the President's and Vice President's reinvention report which

calls for the building of partnerships, the reduction of red tape, and

the use of sound science to set priorities.

Response: A key component of the President's implementation plan

for the new federal air quality standards is that continued progress

toward meeting the 1-hour standard will ensure a smooth and effective

transition to the 8-hour standard. EPA's action to redesignate the Bay

Area as a nonattainment area for the 1-hour ozone standard and the

simplified set of planning objectives that accompany this action are

consistent with continuing progress towards meeting the 1-hour

standard. They are also consistent with other elements of the

implementation plan pertaining to respecting existing agreements,

reducing paperwork, and maximizing common sense flexibility, and cost-

effectiveness. As discussed above, EPA is asking for only 3 plan

[[Page 37269]]

elements: the existing 1995 emissions inventory for VOC and

NOX, an assessment of emissions reductions needed to attain

the federal standard, and control measures to achieve those reductions,

without requiring expensive new modeling or unnecessary paperwork. The

District has already identified additional control measures in its 1997

California Clean Air Act plan that could be used for a new federal

plan. In addition, partnerships between the private sector,

environmental groups, and regulators to promote innovative methods for

addressing the air quality problem could be an important part of the

Bay Area's response to the redesignation.

(iv) Alternatives to Redesignation

Comment: EPA should allow the Bay Area to implement and supplement,

if necessary, the contingency measures in the Bay Area's Maintenance

Plan, as the remedy to violations. The CAA recognizes that attainment

areas will experience violations from time to time and that contingency

provisions should be adequate to cure the problem. If EPA determines

that the existing Bay Area Maintenance Plan is inadequate, the CAA

provides a remedy: EPA may issue a SIP call under section 110(k)(5) to

strengthen the maintenance plan.

Response: EPA hoped and expected that the Bay Area's maintenance

plan would be the means to prevent future exceedances of the ozone

standard. Unfortunately, almost all of the emission reductions from the

Bay Area's maintenance and contingency measures were in effect at the

time that the Bay Area experienced so many violations of the ozone

standard in 1995 and 1996. After completing a stakeholder process over

the past several years, EPA concluded that additional public health

protections are needed beyond current Bay Area plans. EPA evaluated all

of the options available under the Clean Air Act to address the public

health problem and continues to believe that redesignation is the most

direct and sensible outcome.

The proposal that EPA rely only on a ``SIP Call'' would apparently

involve EPA using the authority of CAA section 110(k)(5) to mandate

submission of a strengthened maintenance plan. For the reasons

discussed above, EPA believes that redesignation to nonattainment is a

more appropriate course under the framework of the Act. While EPA

considered the ``SIP Call'' option, the Agency concluded that a federal

nonattainment designation for the Bay Area was important to provide the

public with accurate information and the correct message: Pollution

levels must be reduced quickly in order to eliminate unhealthy air

quality within the Bay Area. Since the amount of reductions necessary

to attain the federal 1-hour ozone standard has not yet been

established, EPA believes that the proper SIP remedy is twofold. First,

the BAAQMD must submit its existing 1995 emissions inventory for VOC

and NOX and an assessment, using available data and

technical analyses, of the emissions reductions needed to attain the

standard. Second, the BAAQMD and its co-lead agencies must identify,

adopt, and submit for incorporation in the SIP all of those control

measures that are needed to meet the reduction target expeditiously.

EPA proposed and is now finalizing this simplified SIP remedy, which

does not substantively differ from the planning requirements that would

need to be addressed by the State in revising the Bay Area's

maintenance plan so that it provides for attainment.

Comment: The BAAQMD commented that if redesignation is finalized

EPA should classify the Bay Area as a ``marginal'' ozone nonattainment

area, subject to the requirements specifically delineated in CAA

section 182(a). This certainty would provide a more specific and

defensible foundation for the responsibilities of the co-lead agencies,

CARB, and EPA. The BAAQMD expressed the belief that areas designated as

``marginal'' would have 3 years to develop a SIP submittal and 5 years

to reach attainment. Other commenters recommended a ``moderate''

classification as more appropriate to the Bay Area's air quality.

Response: As discussed above and in the proposal, EPA concluded

that subpart 2 of the Clean Air Act (which includes the ozone

classifications and specific requirements for each classification)

applies, on its face, only to: (1) Areas designated nonattainment under

107(d)(4) at the time the 1990 amendments were passed, and (2) areas

designated nonattainment under 107(d)(3) for the first time after

passage of the 1990 amendments. See CAA 181(b)(1). Thus, the subpart 2

provisions would not seem to apply to the Bay Area, which was initially

nonattainment, redesignated to attainment, and then redesignated back

to nonattainment.

In the proposed redesignation (62 FR 66580), EPA also presented two

policy reasons for not classifying the Bay Area or requiring the

District to meet all of the subpart 2 requirements for a ``moderate''

ozone nonattainment area:

(1) Many of the classification requirements served no purpose for

the Bay Area, because the requirements had already been addressed

previously when the area was nonattainment or because the requirements

would contribute no specific emission reductions. For example,

``moderate'' area requirements include the gasoline vapor recovery

program (which has been approved as part of the Bay Area SIP for many

years) and the rate-of-progress plan (which would be superfluous given

the compressed attainment schedule for the Bay Area). EPA's proposal

stressed the Agency's determination to eliminate paperwork and focus

the Bay Area's energies on achieving the emission reductions needed to

attain the 1-hour NAAQS quickly.

(2) It did not seem appropriate to allow the Bay Area as much time

as subpart 2 gives to newly designated and classified nonattainment

areas. The CAA allows newly designated nonattainment areas the same

amount of time to meet subpart 2 requirements as was given to areas

initially nonattainment under the 1990 CAA amendments. This would mean

that the Bay Area would have either 3 years or 4 years from the

effective date of the final designation to make a ``moderate'' SIP

submittal, depending upon whether sophisticated photochemical modeling

was employed (approximately 6/2001 or 6/2002, instead of the 6/1999

date for SIP submittal set in this action). The Bay Area would also

have 6 years to attain the 1-hour ozone NAAQS (2004, instead of the

2000 date in this action).

The same analysis applies to an even greater extent with respect to

a ``marginal'' classification. The Bay Area has previously addressed

the CAA ``marginal'' area requirements for corrections to RACT rules,

NSR rules, basic I/M, and rules requiring sources to report on their

emissions. If EPA were to classify the area as ``marginal,'' in fact,

the Bay Area would only need to submit a single new SIP element--an

updated emissions inventory--which would not be due until 2 years from

the effective date of the final designation (approximately 6/2000,

instead of the 11/1998 informal submittal date agreed to by the BAAQMD,

and the 6/1999 SIP deadline set in this action). The CAA does not

require ``marginal'' areas to submit attainment assessments, but sets

an attainment deadline 3 years after the effective date of the

nonattainment designation (i.e., 2001).

EPA does not believe that either the ``moderate'' or ``marginal''

classification requirements and schedule represent an efficient,

common-sense, or adequate response to the urgent public health concerns

associated with the Bay Area's large number of recent ozone NAAQS

[[Page 37270]]

violations. EPA continues to conclude that the proposed approach of

redesignation without classification, setting near-term deadlines for

SIP revision and attainment, is not only better supported by the terms

of the CAA but also better fits the goals of this action: To provide

the Act's clean air protections to Bay Area residents as quickly as

possible, with minimal process and paper, and with the greatest

flexibility afforded to the State and local agencies.

Comment: The BAAQMD proposed that, in lieu of redesignation, the

BAAQMD, EPA, CARB, the Metropolitan Transportation Commission, the

Association of Bay Area Governments, the San Joaquin Valley Unified Air

Pollution Control District, CBE, Earth Justice, and the Sierra Club

could enter into a binding memorandum of understanding or agreement

that would result in additional stationary and mobile source control

measures, with their concomitant emission reductions, being added to

the BAAQMD's Maintenance Plan or SIP. The BAAQMD argued that this

approach was supported by the President's emphasis on regulatory

flexibility.

Response: EPA strongly supports collaborative efforts between all

involved parties, and particularly encourages consultation with

downwind air districts and environmental groups. EPA does not view

broad cooperative efforts such as the BAAQMD proposes as incompatible

with redesignation to nonattainment, and notes that half of the parties

named by the BAAQMD support EPA's proposed redesignation action. EPA is

unclear, however, regarding the scope of the BAAQMD's proposed binding

MOU or MOA, whether all of the parties would have the authority to

enter into a binding MOU or MOA, and whether all necessary parties

would be bound. There are significant statutory constraints, for

example, on EPA's authority to enter into binding agreements.

Nevertheless, EPA would be pleased to participate in any process

established by the BAAQMD.

Comment: EPA should follow the Clinton Administration's ``Common

Sense'' option, and allow the Bay Area simply to focus on the 8-hour

ozone standard on the schedule established for new ozone SIPs.

Response: This option apparently involves no near-term actions by

State and local Bay Area agencies, since most substantive requirements

and deadlines for SIPs addressing the 8-hour ozone NAAQS will not come

due for approximately 5 years. The commenter appears to conclude that

we should abandon efforts to reach a less stringent ozone standard on

our way to achieving a more stringent ozone standard.

EPA's final promulgation of the revised 8-hour ozone NAAQS and

final interim implementation policy, ``Guidance for Implementing the 1-

Hour Ozone and Pre-Existing PM10 NAAQS'' (December 29, 1997), responded

to commenters on the proposals, who argued that abandonment of SIP

obligations to provide attainment plans for the 1-hour ozone NAAQS

would be inconsistent with national public health goals, in view of the

fact that new plans addressing the 8-hour ozone NAAQS will not be due

until mid-2003. In order to ensure that momentum is maintained by state

and local agencies, the final policy provides that the 1-hour standard

and applicable Clean Air Act requirements will continue to apply to an

area until EPA makes a determination that the area has met the 1-hour

standard. As discussed elsewhere in response to comments, EPA believes

that a compressed and streamlined planning process is necessary for the

Bay Area to expedite efforts to protect public health. EPA agrees with

commenters who concluded that this process will benefit rather than

detract from eventual preparation of a SIP addressing the 8-hour ozone

NAAQS.

2. Comments Relating to EPA's Proposed SIP Requirements

a. Emissions Inventory

Comment: While the BAAQMD has been maintaining and updating a

weekday inventory for many decades, preparing a weekend day inventory,

as EPA proposes to require, would demand extensive new data gathering

and compilation, several person-years of effort, and one half-million

dollars or more. Although assumptions could be made and best-judgment

factors could be applied to weekday data to generate an estimate of

weekend day data, the resulting uncertainties would hamper planning

efforts based on their use. Such an extensive new requirement would be

more appropriate for a SIP submittal focused on the new 8-hour NAAQS.

Response: Based on these comments from the State and the BAAQMD,

EPA has decided to amend the proposed SIP submittal schedule to delete

the weekend day emission inventory requirement. Nevertheless, EPA

encourages BAAQMD and CARB to work together with State and regional

planning and transportation agencies to assess weekend emissions and

develop appropriate additional control measures as may be necessary and

appropriate to ensure that weekend violations do not persist.

Comment: EPA proposed to require an updated carbon monoxide (CO)

emissions inventory. A commenter noted that, although a CO inventory

may help shed light on sources of ozone precursors, the CO inventory

has no direct bearing on ozone attainment status and EPA should delete

the requirement from the final redesignation.

Response: In order to minimize still further the scope of the Bay

Area SIP obligation, EPA agrees to eliminate this requirement.

Consequently, EPA finalizes in this action a SIP requirement for the

existing 1995 inventory for VOC and NOX emissions only.

b. Attainment Assessment

Comment: Bay Area industry, the State, and the BAAQMD argued that a

credible attainment assessment, particularly one that takes into

account the 1995-6 meteorological conditions and ambient

concentrations, cannot be performed by May 1, 1998, due to data gaps

and lack of modeling capability. If the BAAQMD should attempt an

assessment, it would not be technically defensible and would not be

accepted by the public or business community. Reliable modeling cannot

be performed until the results of a new field study (conducted in 1999

or 2000) are available. Bay Area industry expressed concern that EPA's

unrealistic schedule may lead the BAAQMD to prematurely ``lock in'' a

control strategy that emphasizes counterproductive NOX

reductions.

On the other hand, environmental groups and other commenters felt

that EPA's proposed schedule struck an appropriate balance between the

competing concerns for acting quickly and acting knowledgeably. These

commenters emphasized that the BAAQMD cannot assure compliance with the

1-hour NAAQS without first knowing what emissions are and what

reductions are needed, and any extra time and effort spent to

understand the problem now will pay double dividends in the future, in

helping the regulatory agencies and affected industry comply with the

Federal 8-hour NAAQS and the California 1-hour standard.

Response: EPA continues to believe that available data and

technical analyses can be used to provide, within a very short period

of time, a reasonable estimate of emission reductions needed to attain.

The BAAQMD's October 1997 report, Evaluation of the 1995 and 1996

[[Page 37271]]

Ozone Seasons in the San Francisco Bay Area, recommended such an

assessment. EPA remains willing to work with the BAAQMD to ensure that

the exercise can be completed within the established time limits and

resource constraints, and that the analysis will comply with applicable

federal requirements. EPA notes that there is no CAA requirement that

the Bay Area use Urban Airshed Modeling, and that other approaches may

be appropriate to target the amount of emission reductions needed to

attain the NAAQS expeditiously. The quality of technical data and

analyses techniques will continually improve, but it does not make

sense to wait for the ``perfect'' science to take action. Regulatory

agencies need to use the best information available now to make

reasonable decisions about how to protect public health. In order to

allow more time to assess the reductions needed for attainment, EPA is

extending the formal SIP submittal deadline for the attainment

assessment from May 1, 1998 to June 15, 1999. The District has

committed to submit a draft attainment assessment informally to EPA,

and make it available to the public, by November 25, 1998. (Letter from

BAAQMD, ABAG, and MTC dated June 23, 1998.) This early informal

submittal will allow EPA to review the draft inventory and assessment

and work with the District to address any deficiencies. Finally, with

respect to industry's contention that EPA's schedule may lead the

District to ``lock in'' allegedly counterproductive NOX

controls, EPA does intend to allow CARB and BAAQMD the flexibility to

select the appropriate mix of ozone precursor controls to ensure

attainment. This issue is also discussed below in the context of the

NOX waiver.

c. Control Measures

(i) Suggested Measures

Comment: Several of the commenters recommended particular control

measures that could be adopted to speed Bay Area attainment. The most

frequently mentioned new measure was the Smog Check 2 program.

Sacramento Valley air pollution control districts and environmental

groups also urged implementation of two additional reduction programs:

(1) A heavy duty mobile source NOX control strategy that

includes incentives for early introduction of clean engine and fuel

technologies; and (2) a requirement for permits and controls on smaller

stationary sources, including natural gas fired boilers and internal

combustion engines, and regulation of stationary diesel internal

combustion engines, which are now exempt. The Sierra Club attached to

their comment an extensive list of control measures for inclusion into

the SIP, particularly suggestions for specific improvements to the Bay

Area transportation control measures. CBE provided detailed

recommendations for a variety of specific additional controls at Bay

Area refineries and chemical plants. CBE also endorsed a public comment

on the proposed redesignation from Chesapeake Environmental Group,

Inc., advocating further reductions in VOC emissions from land fills by

prohibitions on the use of petroleum-contaminated soil as a landfill

cover. The Bay Area Environmental Justice Community recommended tough

rules on oil refining and other polluting manufacturing processes,

control on the movement of jobs to the outer suburbs, and commitments

to redirect public funds to transit instead of highway building.

Response: EPA believes that the suggested control measures merit

serious attention by the responsible agencies. EPA has forwarded the

comments to CARB, BAAQMD, MTC and ABAG with encouragements to these

agencies to consider the suggestions for incorporation into the SIP, as

appropriate. In order to allow more time for evaluation of additional

control measures, EPA is extending the SIP submittal deadline for

adopted regulations or enforceable commitments to adopt regulations,

from September 1, 1998, to June 15, 1999.

Comment: The Association of International Automobile Manufacturers,

Inc., the New United Motor Manufacturing, Inc. (NUMMI), and Toyota

Motor Manufacturing North America, Inc., commented that the adoption

and implementation schedule of rules in the Bay Area's 1997 Clean Air

Plan was coordinated with the implementation schedule of CAA section

183(e) rules for reducing VOC emissions and the Federal schedule for

implementation of the maximum achievable control technology (MACT)

standards for automobiles and light duty trucks. The commenters noted

that the respective deadlines for these Federal rules are 2003 and

2000, respectively. The commenters emphasized that any acceleration of

the BAAQMD's current schedule to meet EPA's proposed 1999 attainment

deadline would likely result in duplicative efforts and inconsistent

requirements, and thus increased costs to affected industry.

Response: EPA has asked the State to perform an assessment of

reductions needed to attain the 1-hour ozone NAAQS expeditiously, in

order to prevent recurrence of the violations experienced following the

redesignation to attainment. EPA wishes the State to use its good

judgment to determine which new controls should be adopted or expedited

to meet attainment requirements, assuming that the attainment

assessment identifies the need for more reductions to prevent

exceedances by the attainment year 2000. EPA encourages the BAAQMD and

other responsible agencies to select control approaches that maximize

common sense and cost effectiveness.

Comment: Industry commenters questioned whether controls adopted to

meet the 1-hour ozone NAAQS would necessarily be helpful in meeting the

new 8-hour ozone NAAQS. Other commenters, however, noted that controls

adopted to meet the Federal 1-hour ozone standard would contribute to

eventual attainment of California's more stringent 1-hour ozone

standard and could be generally presumed to benefit attainment of the

new 8-hour ozone NAAQS.

Response: While EPA believes that the great majority of control

possibilities for meeting the 1-hour ozone NAAQS will also advance

attainment of the 8-hour ozone NAAQS in the Bay Area, EPA encourages

CARB, BAAQMD, MTC, and ABAG to assess any new control measures that may

be considered for expeditious attainment of the 1-hour ozone NAAQS, in

order to ensure that the measures will also promote attainment of the

8-hour ozone NAAQS.

Comment: The BAAQMD proposed that new contingency measures be added

to the SIP to augment the ones currently implemented. The BAAQMD stated

that the process for identifying these measures ``can occur quickly

through consultation among EPA, CARB, and the co-lead agencies. Through

this process, we can commit our energies and our limited resources to

pursuing our real shared goal--clean air for all people all the time--

through common sense, flexible, cost-effective, and coordinated

actions.''

In its comment letter, the BAAQMD identified the following options

for supplementing the existing SIP controls:

(1) already adopted measures which have not been submitted into the

SIP, such as controls on refinery fugitive emissions and pressure

relief valves, NOX Best Available Retrofit Control

Technology (BARCT) controls on refineries and utilities, $1 increase in

bridge tolls;

(2) measures that the BAAQMD will be pursuing in the near term,

such as an aqueous solvents rule, new CMAQ-funded projects);

[[Page 37272]]

(3) State measures, such as further improvements to the I/M

program.

Response: EPA shares completely the BAAQMD's goal statement to

provide ``clean air for all people all the time--through common sense,

flexible, cost effective, and coordinated actions.'' EPA also

appreciates the BAAQMD's point that additional control measures can be

identified quickly through consultation with EPA, CARB, and the co-lead

agencies; and EPA would be happy to consult on appropriate measures.

In terms of supplementing the current SIP with additional control

measures, EPA agrees the example measures are feasible. Depending on

the outcome of the attainment assessment, however, additional controls

may be needed. The Bay Area has already identified several feasible

control measures in response to the State requirement for a 1997 Clean

Air Plan. Upon review of the Bay Area's 1997 Clean Air Plan, CARB

suggested a number of modifications to existing Bay Area regulations

and transportation control measures that could result in additional

emission reductions (See letter from Lynn Terry, Assistant Executive

Officer, CARB to Ellen Garvey, Air Pollution Control Officer, BAAQMD,

dated December 1, 1997.) In addition, EPA's Office of Air Quality

Planning and Standards identified 42 cost effective control measures

that may be appropriate for the Bay Area. (E.H. Pechan & Associates,

Inc., ``Control Measure Analysis of Ozone and PM Alternatives:

Methodology and Results,'' prepared for Innovative Strategies and

Economics Group, Office of Air Quality Planning and Standards, U.S.

EPA, RTP, NC July 17, 1997.) Whatever additional SIP measures are

pursued, they must provide sufficient emission reductions to ensure

expeditious attainment of the 1-hour ozone NAAQS in the Bay Area.

(ii) NOX Waiver and the Efficacy of NOX Controls

Comment: Industry commenters stated that EPA provided no adequate

notice of its retroactive revocation of the NOX waiver and

the waiver remains appropriate to avoid requirements for expensive and

counterproductive NOX controls, since modeling evidence

shows that NOX reductions may elevate ozone concentrations

at locations within the Bay Area under certain meteorological

conditions, and thus could detract from attaining the ozone NAAQS.

Earthjustice, on behalf of Sierra Club and CBE, agreed with EPA's

position that no waiver of NOX control requirements now

applies, but contended that the waiver continued during the maintenance

period. Earthjustice considered that the waiver expired by its own

terms, however, because it was explicitly conditional, lasting only as

long as the area's monitoring data continue to demonstrate attainment.

Finally, Earthjustice concluded that the Bay Area is therefore now

subject to CAA section 182 requirements for NOX control.

Response: Section 182(f) of the Act extends the ozone nonattainment

area VOC requirements of subpart 2 of the Act to emissions of

NOX. This section also provides that the Administrator may,

either on her own or in response to a petition, waive these subpart 2

NOX requirements if, for nonattainment areas outside an

ozone transport region, either of 2 tests are met. The section 182(f)

NOX requirements would not apply if the Administrator

determines that (1) for the sources concerned, net air quality benefits

are greater in the absence of the NOX reductions, or (2)

additional NOX reductions would not contribute to attainment

of the ozone NAAQS. Additionally, the NOX control

requirements, under the same tests, could be relieved as to any portion

of the controls that are shown to result in excess emissions

reductions. On December 16, 1993, EPA issued guidance on obtaining

NOX waivers.9 This guidance was subsequently

revised on May 27, 1994.10

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

\9\ ``Guideline for Determining the Applicability of Nitrogen

Oxide Requirements under Section 182(f),'' John Seitz, Director,

Office of Air Quality Planning and Standards.

\10\ ``Section 182(f) Nitrogen Oxides (No) Exemptions--Revised

Process and Criteria,'' John Seitz, Director, Office of Air Quality

Planning and Standards.

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

At the time the Bay Area submitted its redesignation request, EPA

guidance governing redesignations required, pursuant to section 107 of

the Act, that an area must meet all applicable requirements of section

110 and part D prior to redesignation. Thus, before EPA could

redesignate the Bay Area to attainment, the Bay Area had to adopt all

required NOX RACT rules. However, based on air quality data

from official SLAMS monitors, EPA determined that the Bay Area had

attained the NAAQS without adopting all of these rules. Based on the

determination that the area was attaining without benefit of additional

NOX reductions, it was apparent that such reductions would

not contribute to attainment of the ozone NAAQS. Thus, the Bay Area

qualified for a waiver under the test provided in subsection

182(f)(1)(A). Therefore, the Bay Area requested, and EPA approved, a

NOX waiver under that subsection. One commenter points out

that the waiver was granted in the same notice as the redesignation to

attainment, arguing that this fact supports the position that the

waiver must remain in effect. However, the waiver was acted on in the

same notice so that the area could be redesignated without first

meeting any remaining part D NOX requirements. Because the

Agency was ready to act on both requests at the same time, it saw no

reason to hold up the redesignation so that it could grant the

NOX waiver first.

The NOX waiver acts only to relieve an ozone

nonattainment area from subpart 2 nonattainment area NOX

requirements. Once an area is redesignated to attainment these

requirements no longer apply and a NOX waiver is irrelevant.

Moreover, as the May 27, 1994 John Seitz guidance memo cited above

points out, the NOX exemption test set forth in section

182(f)(1)(A) asks only if additional reductions of NOX would

contribute to attainment of the ozone NAAQS, not whether they would

contribute to maintenance of the standard once attainment is confirmed

through redesignation to attainment. Recognition of this by both the

BAAQMD and EPA is inherent in the fact that the Bay Area's maintenance

plan contingency measures, approved as part of the redesignation to

attainment, are nearly all NOX measures.

The commenters cite language in the May 27, 1994, guidance to

support their position that EPA must notify the state and provide

notice in the Federal Register in order to revoke NOX

exemptions. However, this language deals with a situation where a

nonattainment area is granted a NOX waiver based upon clean

air quality data, the area is not redesignated to attainment, and the

area subsequently violates the ozone NAAQS. In this situation the

exemption must be revoked because the area remains a nonattainment area

and, unless revoked, the exemption would continue, inappropriately, to

apply. Such is not the case with an area, such as the Bay Area, which

is redesignated to attainment and thereby becomes a maintenance area.

In such areas the exemption, which applies to nonattainment areas, by

its terms no longer applies.\11\

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

\11\ Sections I.C. and II.A. of a later guidance document

entitled ``Conformity: General Preamble for Exemption from Nitrogen

Oxides Provisions expands on this point.'' See 59 FR at 31239-40,

including note 1 (June 17, 1994).

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

The commenters argue that EPA should not take any action to revoke

the NOX exemption because it remains appropriate due to the

commenters'

[[Page 37273]]

position that the Bay Area is ``hydrocarbon limited, and * * *

NOX reduction measures may elevate ozone concentrations * *

*.'' Even assuming that this is true, there is no legal basis for

retaining the NOX exemption. The Bay Area's exemption was

granted based on three years of clean air quality data. After 43

exceedances and 17 violations of the ozone NAAQS in two years, the

basis for the exemption no longer exists.

The commenters' concerns regarding the relationship between

NOX emissions and ozone formation in the Bay Area are

appropriately addressed through the District's SIP revision process.

Because the Bay Area is being redesignated under subpart 1 of the Act,

there are no mandatory NOX measures which must be adopted.

On the other hand, the Bay Area may not eliminate from the SIP any

existing NOX controls without a demonstration that such

revision would not interfere with progress, attainment, or other

applicable requirements of the Act (CAA section 110(l)). In response to

the redesignation, EPA expects CARB and BAAQMD to pursue whatever

combination of VOC and NOX reductions is most consistent

both with expeditious attainment in the Bay Area and with the State's

determination of appropriate and necessary emissions levels in the Bay

Area consistent with the attainment and maintenance requirements of

downwind areas. In view of the fact that nitrates appear to constitute

more than one third of the Bay Area's fine particulate matter, EPA also

recommends that the Bay Area take into account the role of

NOX emissions reductions in the control of fine

particulates.

d. Attainment Deadline

Comment: The 1999 attainment deadline (assuming that attainment is

to be based on 1997-99 air quality) is unrealistic, since most of the

1998 season will have passed before the control measure SIP submittal

to EPA; consequently the plan will affect emissions only for 1999.

Response: The commenters appear to have misunderstood EPA's

proposal. In accordance with the Agency's interpretation of the CAA

requirement that plans ``provide for attainment,'' under a 1999

attainment deadline, the State would need only show that its SIP

includes sufficient emission reductions in effect by the start of the

1999 smog season to ensure that no more than one exceedance at any

monitor will occur in 1999. Moreover, EPA's proposal noted that, under

the terms of CAA section 172(a)(2)(C), the area may be eligible for up

to 2 1-year extensions of the attainment deadline if no more than 1

exceedance occurred in the year preceding the extension and the SIP is

fully implemented. Finally, EPA notes that the same commenters arguing

against a 1999 attainment deadline also claim that there is already

strong evidence that the Bay Area will not experience future

violations, since no exceedances were recorded in 1997 and both CARB

and BAAQMD project that the emissions inventory will continue to

decline. EPA recognizes that the proposed 1999 deadline may be

difficult to meet if the attainment assessment demonstrates that

substantial additional control measures are needed. In an effort to

balance the time constraints associated with SIP adoption and submittal

with the goal of protecting public health as quickly as possible, EPA

has decided to extend the attainment deadline by one year to November

15, 2000.

Comment: Redesignation of the Bay Area will have no effect on air

quality within the time frame proposed by EPA. The time from the start

of rule development to achievement of the reductions is generally well

over 18 months. Consequently, implementation of control measures would

not occur until after the end of the 1999 ozone season. If EPA is

seeking only to add federal enforceability to existing state air

quality control requirements, then redesignation is clearly nothing

more than a paperwork exercise since those control requirements are

already in place.

Response: As discussed earlier, EPA wants the District to focus on

near-term emission reductions, not paperwork. Because the District has

already identified additional control measures in its 1997 California

Clean Air Act plan, these measures could be used for a new federal plan

and implemented sooner than initially planned to achieve near term

emission reductions. Otherwise, under the California Clean Air Act

plan, the Bay Area would not implement these measures until 2000 or

later. EPA also believes that it is important to make federally

enforceable all of the control measures needed to bring the Bay Area

into attainment. This provides further assurance to the public that the

control measures will be implemented and the emission reductions needed

to protect public health achieved.

e. Planning Schedule

Comment: EPA's SIP schedule provides insufficient time to complete

planning processes, public involvement, and adoption, since the co-lead

agency planning process normally requires 15 months, California

Environmental Quality Act (CEQA) requirements for public review must be

satisfied under State law, at least 2 months are required for CARB

review prior to submittal, and the regulated community needs adequate

lead time to change or install new controls. The BAAQMD also concluded

that more time to prepare a plan for the 1-hour ozone NAAQS would not

result in a better plan, better air quality, or better health. The

prudent course, according to the BAAQMD, is to focus on the new 8-hour

NAAQS.

Response: EPA acknowledges the time constraints associated with SIP

development, adoption, and submittal. On the other hand, EPA does not

expect that the agencies will launch a wholly new planning exercise but

rather that they will continue the 1997 Clean Air Plan planning effort,

adding only an attainment assessment using available data and technical

analyses and adjustments to the control measures that may be necessary

to ensure expeditious attainment. In an effort to be responsive to the

District's scheduling concerns without sacrificing near term public

health protections, EPA has agreed to allow the State to submit only

one official SIP revision on June 15, 1999 based on the District's

commitment to submit a draft of the emissions inventory and attainment

assessment to EPA by November 25, 1998. In committing to submit a draft

inventory and assessment within 5 months after signature of the final

redesignation by the Regional Administrator, the District also agreed

to hold an early public workshop on the inventory and assessment.

(Letter from Ellen Garvey, BAAQMD; Eugene Leong, ABAG; and Lawrence

Dahms, MTC to Felicia Marcus dated June 23, 1998.) These changes not

only extend the time frames contained in the proposal but also enable

the District to hold one public hearing for all three elements of the

SIP revision.

3. Comments on Miscellaneous Issues

a. Conformity

Comment: Several commenters questioned the effect of Bay Area

redesignation on transportation conformity. One commenter argued that

it would be inconsistent with CAA section 176(c) if EPA were to

determine that the emissions budget from a new Bay Area SIP submittal

applied simultaneously with the emissions budget in the currently-

approved Bay Area maintenance plan.

Response: Today's action does not have an immediate effect on

transportation conformity in the Bay

[[Page 37274]]

Area. The Bay Area currently has an approved ozone maintenance plan and

the budgets in this plan continue to apply. Any EPA action with

potential effects on transportation conformity will take place in the

context of EPA's review of the Bay Area's June 15, 1999 SIP submittal.

The transportation conformity rule does not directly address a

situation, like that in the Bay Area, where an approved maintenance

plan proves to be inadequate and the area is redesignated and required

to submit a new plan. However, EPA believes the correct interpretation

of the conformity rule would require any new budgets contained in the

June 15, 1999 submittal to become effective after a 45-day review

period unless EPA finds them inadequate. EPA will continue to work with

the US Department of Transportation (DOT) to resolve DOT's concerns

regarding the interpretation of the rule and simultaneous applicability

of budgets and will make a final policy decision in the future.

b. Congestion Mitigation and Air Quality (CMAQ) Funding

Comment: Redesignation of the Bay Area to nonattainment without a

classification could jeopardize the Bay Area's continued eligibility

for CMAQ funding pursuant to either current law or the pending bills

for reauthorization of the Intermodal Surface Transportation Efficiency

Act (ISTEA).

Response: Under the Transportation Equity Act for the 21st Century

(TEA-21), the new transportation funding legislation, signed recently

by the President, redesignation of the Bay Area to nonattainment for

ozone will not affect CMAQ eligibility. In fact, the Bay Area will be

eligible for more CMAQ funding than they were allocated under ISTEA,

the previous transportation funding legislation.

c. Unfunded Mandates Reform Act (UMRA)

Comment: Some commenters asserted that EPA failed to comply with

the Unfunded Mandates Reform Act (UMRA), and should have prepared a

statement in accordance with section 202 of UMRA. In the proposal, EPA

stated that the redesignation did not trigger section 202, as it did

not contain any federal mandate because it did not impose any

enforceable duties, and that even if it did contain a federal mandate,

the resulting expenditures would not exceed $100 million in any one

year. Commenters argued that the redesignation does impose an

enforceable duty upon California and the BAAQMD, because failure to

adopt a SIP would result in loss of highway funds and, in addition,

result in more stringent emissions offset requirements for new and

modified stationary sources, result in loss of grants, and trigger a

duty for EPA to issue a federal implementation plan (FIP).

One commenter also argued that the redesignation constitutes a

private sector mandate under UMRA, because it requires the District to

submit regulations or enforceable commitments to adopt regulations

imposing duties on emissions sources. However, the test for a private

sector mandate under UMRA is whether it ``would impose an enforceable

duty upon the private sector.'' Clearly the redesignation has created

no duty enforceable against any private party. The commenter also

states that EPA is requiring that new source review permitting

requirements, applicability thresholds and offset ratios be set ``by

analogy'' at the levels otherwise applicable to moderate nonattainment

areas. These are the levels currently in effect in the Bay Area as a

result of the area's previous status as a moderate nonattainment area

and therefore present no new burdens on private parties in any event.

Some commenters also asserted that the redesignation will impose

costs in excess of $100 million. This estimate was based on projected

costs of complying with the types of requirements the commenter

believes would be imposed if the state were to adopt a SIP.

Response: EPA does not believe that it is necessary to resolve the

issues of whether the redesignation constitutes a ``federal mandate''

or requires consideration of costs to private parties, as well as costs

to the state, under UMRA.

EPA believes that even if it were construed as a federal mandate,

with costs to private parties to be considered as well as costs to the

state, those costs could not reasonably be expected to exceed $100

million in any one year. EPA has conducted an analysis of potential

costs to private parties. In terms of the impact on the private sector,

the BAAQMD has yet to determine the amount of needed reductions and the

mix of VOC and NOX measures to achieve the needed

reductions. EPA used cost data developed for the July 1997 ``Regulatory

Impact Analyses for the Particulate Matter and Ozone National Ambient

Air Quality Standards and Proposed Regional Haze Rule,'' as the basis

of its analysis. This data shows that the national average cost for

reasonably available VOC control measures is higher than the national

average cost for reasonably available NOX control measures

($2,652 per ton per year for VOC; $1,937 per ton per year for

NOX, expressed in 1990 dollars). EPA assumes that reductions

of both VOC and NOX will be necessary to bring the Bay Area

back into attainment. However, for the purpose of this analysis EPA

assumed that all the needed reductions would come from VOC measures

because this approach would over-estimate the actual costs. In

addition, EPA assumed that VOC emissions may need to be reduced by as

much as 80 tons per day (approximately 28,800 tons per year) above and

beyond measures currently underway at the State and local levels. This

amount of reductions is significantly greater than that assumed to be

needed by the various interested parties. During the extensive

stakeholder process EPA has heard that anywhere from 0 to 50 tons per

day in additional reductions will be necessary. Thus, by assuming 80

tons per day for the purposes of this analysis, EPA believes that it is

significantly overestimating the costs. Even by employing cost numbers

and tons to be reduced that are significantly higher than what EPA

believes the actual results will be, the impacts would still be less

than $100 million (i.e., $76,377,600).

As previously discussed in Section III.D.3.b. of this notice, one

commenter indicated that the redesignation without classification under

the Clean Air Act would result in loss of highway funds in excess of

$100 million under ISTEA and that this should be viewed as the cost of

the ``mandate''. The interplay of these two distinct statutes, were it

to result in a significant decrease in highway funding to the Bay Area,

would not be a mandate as it is defined in UMRA, as it would impose no

enforceable duty on State, local or tribal governments. Moreover, as

discussed above in section III.D.3.b., EPA, in consultation with the

Department of Transportation, has determined that the redesignation

will not result in any significant loss of highway funding to the Bay

Area under the recently passed reauthorization of ISTEA.

d. Procedural Obligations Under CAA Section 107 and the Administrative

Procedures Act (APA)

Comment: EPA has failed to follow the procedure set forth in

section 107(d)(3) of the Act for redesignating areas, and consequently

has failed to follow procedural requirements of the Administrative

Procedure Act.

Response: The commenters misinterpret both the plain language of

sections 107(d)(3) (A), (B) and (C), and

[[Page 37275]]

the intent of these sections. As described more fully below, the

exchange of correspondence between EPA and a State provided for by

section 107(d)(3) is intended to address situations where there is

agreement that a redesignation is necessary, but differing opinions

concerning the boundaries of the area, or portion thereof, to be

redesignated.

Section 107(d)(3) of the Act sets forth the procedure for

redesignation of areas and provides that the Administrator may at any

time notify the Governor of any state that available information

indicates that the designation of any area should be revised. Section

107(d)(3)(B) provides that the Governor has 120 days from receipt of

this letter to submit to the Administrator such redesignation, if any,

of the appropriate area (or areas) or portion thereof as the Governor

considers appropriate.

Section 107(d)(3)(C) contemplates four potential outcomes which

flow from a Governor's response to notification from EPA that an area

should be redesignated:

(1) The Governor concurs with EPA's notification and submits a

redesignation of the same area, or portion thereof, that was proposed

by EPA. In this event, section 107(d)(3)(C) provides that EPA must

promulgate the redesignation no later than 120 days after receipt of

the Governor's redesignation submittal. No further correspondence with

the Governor is required.

(2) The Governor concurs with EPA's notification that a

redesignation is necessary, but submits a redesignation of the area

with different boundaries, or submits a redesignation of only a portion

of the area that was proposed by EPA. If EPA agrees with the Governor's

redesignation submittal, section 107(d)(3)(C) provides that EPA must

promulgate the redesignation no later than 120 days after receipt of

the Governor's redesignation submittal. No further correspondence with

the Governor is required.

(3) The Governor concurs with EPA's notification that a

redesignation is necessary, but submits a redesignation of the area

with different boundaries, or submits a redesignation of only a portion

of the area that was proposed by EPA. If EPA disagrees with the

Governor's submittal, section 107(d)(3)(C) provides that EPA may make

such modifications as it deems necessary, but must notify the State 60

days before promulgation of the redesignation in order to provide the

State with an opportunity to demonstrate why any proposed modification

is inappropriate.

(4) The Governor does not submit a redesignation for an area, or

portion thereof. Section 107(d)(3)(C) provides that EPA ``shall

promulgate such redesignation, if any, that the Administrator deems

appropriate.'' No further correspondence with the Governor is required.

In the instance at hand, EPA notified the Governor of California by

letter dated August 21, 1997, that the Bay Area should be redesignated

to nonattainment for ozone, based on available air quality data

demonstrating 43 exceedances and 17 violations of the standard in the

two-year period from 1995 through 1996. The Governor of California did

not submit a redesignation of the Bay Area. Rather, the Governor

responded, by letter dated December 10, 1997, that he does not believe

any redesignation is appropriate. Thus, EPA's action is governed by the

last sentence of section 107(d)(3)(C), which provides that EPA ``shall

promulgate such redesignation, if any, that the Administrator deems

appropriate.''

EPA has complied with the requirements of both the Clean Air Act

and the Administrative Procedure Act in its action to redesignate the

Bay Area. EPA has conducted notice and comment rulemaking, fully

considering all comments received, including those provided by the

Governor. Contrary to the assertions of the commenter, there is nothing

in either statute which precludes EPA from proposing a redesignation at

any time following notification of the Governor. EPA is free to solicit

comment from the general public simultaneously with the Governor's

notification, at any time during the 120 day period for the Governor's

response, or at any time following the Governor's response, so long as

EPA complies with the time periods set forth in section 107(d)(3), and

its general duty to consider and respond to all comments.

While it is true that EPA made minor changes to the redesignation

requirements set out in the Governor's notification when the Agency

published its proposal, the State was in no way prejudiced by this

fact. The changes did not relate to area boundaries, or portions

thereof, and therefore did not invoke the notification procedures.

EPA's proposed rulemaking provided a 60 day public comment period and

the State was provided with a copy of the proposal on December 11,

1997, 8 days before it was published in the Federal Register. The State

provided EPA with comments on its proposal on February 17, 1998. These

comments, as well as the Governor's response letter, have been fully

considered in EPA's decision to redesignate the Bay Area.

IV. Final Action

A. Overview

As discussed in the response to comments, EPA remains convinced

that the Agency's appropriate action, in the face of numerous and

widespread violations of the 1-hour ozone standard in the Bay Area, is

to finalize the redesignation of the San Francisco Bay Area to

nonattainment for the 1-hour ozone NAAQS. EPA takes this action under

CAA section 107(d), based specifically on the Bay Area's 17 violations

of the 1-hour ozone NAAQS over the 3-year period, 1994-1996.

EPA also finalizes the Agency's determination that the Bay Area

should not be classified under subpart 2 of the CAA, but rather should

be required to meet applicable requirements of CAA subpart 1.

B. SIP Requirements and Deadlines

In accordance with CAA sections 110 and 172, the State must submit

by June 15, 1999 a SIP revision containing: (1) The existing 1995

emissions inventory for NOX and VOC in the Bay Area; (2) an

assessment, using available data and technical analyses, of the

emission reductions needed to attain the federal 1-hour ozone standard;

and (3) adopted regulations and/or control measures with enforceable

commitments to adopt and implement the control measures in regulatory

form by specified dates. The extension for the emissions inventory and

attainment assessment submittal is being granted in response to a

commitment made by the Air District (Letter from Ellen Garvey, BAAQMD

et al. to Felicia Marcus, EPA Region IX, dated June 23, 1998) to

provide the inventory and assessment to EPA in draft within 5 months of

the final redesignation. This early, informal submittal will allow EPA

to review the draft inventory and assessment and work with the District

to address any deficiencies. The District also agreed to hold an early

public workshop on the draft inventory and assessment. The adopted

regulations and control measures, and the schedule for adoption and

implementation of such measures, must be sufficient to meet reasonable

further progress and attain the 1-hour NAAQS expeditiously but no later

than November 15, 2000. EPA emphasizes that the submittal due on June

15, 1999 must include contingency measures that go into effect if the

Bay Area does not attain the NAAQS by the prescribed deadline in order

to address the specific requirement of CAA section 172(c)(9).

[[Page 37276]]

For a more complete discussion of subpart 1 elements applicable to

these SIP submittals, the reader is referred to the proposal (62 FR

66580-66581).

Schedule of Submittals State Implementation Plan for Ozone for the San

Francisco Bay Area

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

Action/SIP submittal Date

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

1995 emissions inventory for VOC and NOX.... Draft--11/25/98 Final--6/

15/99

Assessment, employing available data and Draft--11/25/98 Final--6/

technical analyses, of the level of 15/99

emission reductions needed to attain the

current 1-hour ozone National Ambient Air

Quality Standard (NAAQS). This assessment

should take into account the meteorological

conditions and ambient concentrations

associated with the violations of the ozone

NAAQS in the period 1995-6, and should be

based on likely control measures for

reducing VOC and NOX emissions.

Adopted regulations and/or control measures, 6/15/99

with enforceable commitments to adopt and

implement the control measures in

regulatory form by specified dates,

sufficient to meet reasonable further

progress and attain the 1-hour NAAQS

expeditiously but no later than November

15, 2000.

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

C. Changes from Proposal

In this final action, EPA has amended both the schedule and content

of the proposed SIP requirements in response to public comments, as

discussed above in section III.D.2. The changes are as follows:

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

Final--weekend emissions

Proposal--weekend emissions inventory inventory and CO inventory not

and CO inventory required required.

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

Emissions inventory and attainment Emissions inventory and

assessment due to EPA 5/1/98. attainment assessment due to

EPA 6/15/99. (Commitment to

submit draft by 11/25/98.)

Adopted regulations and/or control Adopted regulations and/or

measures with enforceable commitments control measures with

due 9/1/98. enforceable commitments, and

final emissions inventory and

attainment assessment due 6/15/

99.

Attainment date of 11/15/99............ Attainment date of 11/15/2000.

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

V. Emission Reduction Opportunities

Under EPA's final redesignation, the Air District and its co-lead

agencies are responsible for determining the appropriate mix of control

measures that will most effectively bring the Bay Area into attainment

with the 1-hour ozone standard. The Bay Area, like other major

metropolitan areas, is experiencing rapid economic growth and an

increasing population that may lead to emission increases from both the

stationary and mobile source sectors. Given these circumstances, the

Air District may wish to explore new and innovative approaches for

achieving reductions from both source sectors. EPA believes that

traditional control strategies aimed at reducing emissions from

stationary sources are essential to any air pollution control program.

At the same time, EPA supports efforts to develop alternative emission

reduction methods. Mobile source emissions, for example, make up the

majority of the ozone precursor inventory in many urban areas,

including the Bay Area, but air pollution control agencies often have

difficulty regulating these emissions. Mobile sources are therefore

good candidates for non-traditional approaches. EPA encourages the

BAAQMD and its co-lead agencies to identify opportunities for

innovation, in addition to traditional control strategies, as they

develop measures to bring the Bay Area into attainment of the ozone

standard.

A. Stationary Sources

Stationary sources in the Bay Area emit approximately 152 tons of

VOC and 157 tons of NOX per day (Bay Area Clean Air Plan,

Volume 1, p.21). This current level of emissions reflects tremendous

progress in stationary source reductions over the past 20 years.

Nonetheless, BAAQMD will need to assess whether additional stationary

source measures are needed to help the Bay Area attain the federal 1-

hour ozone standard. Recently, BAAQMD proposed in its 1997 Clean Air

Plan several stationary source measures believed to be both feasible to

implement and effective at reducing emissions. EPA expects that the

District will analyze which control measures from this plan are needed

to attain the standard and assess whether any measures beyond those

contained in the plan are also needed. If additional measures are

needed, the District may want to consider stationary source measures

suggested by public commenters on the redesignation proposal such as

improving tank and flare design, eliminating exemptions from certain

District rules, and improving controls on energy sources (e.g., natural

gas fired boilers and privately owned and operated power plants).

However, EPA is not requiring adoption of these or any other specific

controls; it is the BAAQMD's authority and responsibility to determine

the appropriate mix of Bay Area measures.

B. Transportation Control Measures

Given that on-road motor vehicles emit 43% of the total VOC and 47%

of the total NOX emissions in the Bay Area (Bay Area 1997

Clean Air Plan, Volume 1, p.7), that vehicle travel has been steadily

increasing, and that the Metropolitan Transportation Commission (MTC)

directs the allocation of billions of dollars of transit funds, MTC

plays an important role in the Bay Area's overall strategy to attain

the 1-hour ozone standard. MTC is currently updating its 20-year plan

and will continue to revise this plan every two years. MTC's planning

process offers a good opportunity to incorporate air quality goals into

both long term planning and short term projects. In addition, MTC is

required to identify possible transportation control measures (TCMs) as

part of the California Clean Air Plan (CAP). The Bay Area's 1997 CAP

contained an estimated 7 tons per day (3 tpd VOC, 4 tpd NOX)

worth of potential reductions from TCMs for the year 2000 and even more

for later years (Bay Area 1997 Clean Air Plan, Volume 1, p.49). If

these measures were adopted and submitted for SIP approval, they could

make a measurable contribution toward attainment of the 1-hour ozone

standard. Finally, MTC may be able to help reduce emissions by

reevaluating

[[Page 37277]]

the way it distributes transportation funds, the way it finances

transportation projects, its policies with respect to land use and

transportation and giving priority to the most cost-effective (i.e.,

tons of emission reduction per dollar spent) investments.

C. Voluntary Measures

EPA encourages the State, District and co-lead agencies to explore

innovative approaches to achieving their air quality goals. One

possible area for innovation is the mobile source arena. Mobile sources

emit 75% of the total NOX emissions and 58% of the total VOC

emissions in the Bay Area (Bay Area 1997 Clean Air Plan, Volume 1, p.

7). Though there have been great strides in reducing vehicle emission

rates, transportation emissions continue to be a problem due to large

increases in vehicle miles travelled (VMT). Regulatory agencies and

others are therefore developing voluntary mobile source strategies that

promote changes in local transportation sector activity levels and

changes in in-use vehicle and engine fleet composition to complement

regulatory programs.

Voluntary mobile source control measures have the potential to

contribute to, in a cost-effective manner, emission reductions needed

for attainment of the NAAQS. EPA believes, therefore, that SIP credit

is appropriate for voluntary mobile source emission reduction programs

(VMEPs) where we have confidence that the measures can achieve emission

reductions. Consistent with that belief, EPA issued its October 23,

1997 ``Guidance on Incorporating Voluntary Mobile Source Emission

Reduction Programs in State Implementation Programs'' (signed by

Richard Wilson, Acting Assistant Administrator for Air and Radiation).

The guidance lays out the terms and conditions for establishing and

implementing VMEPs and the guidelines for SIP approval. In light of the

innovative nature of voluntary measures and EPA's inexperience with

quantifying their emission reductions, EPA's guidance limits the amount

of emission reductions allowed for VMEPs in a SIP to 3% of the total

projected future year emission reductions required to attain the

appropriate NAAQS. In addition, the guidance requires that a state or

local agency track on an annual basis the resulting emissions effect of

the voluntary measure and also commit to remedy any shortfall if the

VMEP does not achieve projected emission reductions.

The BAAQMD and co-lead agencies may wish to take advantage of the

flexibility provided by EPA's voluntary mobile source measures policy

as they develop their SIP control strategies in response to the

redesignation. EPA encourages the three co-lead agencies to work with

the business and environmental communities that may have an interest in

developing or participating in such innovative strategies, as

stakeholder involvement is a critical factor in building community

acceptance and ultimate success. For example, the Silicon Valley

Manufacturing Group has worked with businesses to develop the ECOPASS

program; this is an employer-sponsored alternative commute program that

is designed to get employees out of their cars and onto public transit.

Another example is the BAAQMD's ``Spare-the-Air'' Program, a public

education campaign that encourages citizens to refrain from or reduce

activities that produce emissions of ozone precursors. The program

currently enjoys the participation of 475 businesses and is continuing

to grow with the help of the Bay Area business community. EPA applauds

BAAQMD and the business community for successfully implementing these

innovative and important programs. The BAAQMD has not yet submitted to

EPA its plan for quantifying and tracking the impacts of these programs

on an on-going basis, and therefore EPA has not yet evaluated how the

District will ensure that the criteria presented in the VMEP guidance

will be met. However, EPA is currently consulting with the BAAQMD

regarding quantification and tracking of emissions associated with

these programs and will continue to work with the District to clarify

the VMEP policy. We encourage the District and its co-lead agencies to

consider and pursue other innovative approaches as they evaluate

measures needed to attain the ozone standard.

D. Enhanced Inspection and Maintenance

While the Bay Area has both the flexibility and the responsibility

to determine the appropriate mix of control measures that are needed to

attain the federal 1-hour ozone standard, EPA believes that emission

reductions from implementation of an enhanced inspection and

maintenance program would make a substantial contribution to attainment

in the Bay Area. The California Bureau of Automotive Repair has

indicated that implementation of the California Smog Check 2 program

(California's enhanced I/M program) would result in an incremental

benefit of 12 tons per day VOC and 14 tons per day NOX. EPA

is hopeful that Bay Area leaders will work together to pursue

authorization and expeditious implementation of an enhanced I/M

program. Furthermore, implementation of an enhanced I/M program in the

Bay Area would address some of the equity concerns raised by Bay Area's

downwind neighbors who are impacted by pollution from the Bay Area and

are required under federal and State law to implement an enhanced I/M

program. EPA does not believe, however, that enhanced I/M is the

complete answer to Bay Area's ozone nonattainment problem. EPA believes

that the BAAQMD should evaluate measures aimed at both the stationary

and mobile source sectors that will work together to achieve healthy

air in the Bay Area.

E. Mitigating Emissions Increases From Oakland Seaport and Airport

Expansion Projects

The Port of Oakland is planning to expand its operations over the

next several years. Dredging operations, which will provide larger

vessels with access to the Port, will begin in February 2000. Emissions

of CO and VOCs from dredging and related construction activities are

not expected to be significant. Gas or diesel powered dredging

equipment, however, emits significant quantities of NOX; the

draft EIS/EIR prepared by the U.S. Army Corps of Engineers (COE) for

the port expansion estimates that total construction-related

NOX emissions, gas or diesel powered dredging equipment,

would be in the range of 1500 to 1700 tons over the four-year period

(2000-2004) during which dredging will occur. The COE, however, has

subsequently indicated that it plans to use electric dredging equipment

which would reduce the potential construction-related NOX

emissions to 330 tons over four years, or an average of 83.5 tons per

year. The dredging and related construction activities performed by the

COE are subject to the General Conformity regulations (40 CFR 93.150),

which require federal agencies to demonstrate that emissions from

federal projects conform to the approved State Implementation Plan if

the emissions are above ``de minimis'' levels defined in 40 CFR 93.153.

Because the Corps of Engineers will be employing electric dredging

equipment in its construction activities, and limiting the number of

disposal trips per year, the emissions will be below the 100 ton per

year NOX de minimis level established in the conformity

regulations and a conformity determination is therefore not required.

The Corps' plan to use electric dredging equipment will help to ensure

cleaner air for the surrounding community and the Bay Area as a whole

and contribute

[[Page 37278]]

to efforts to achieve attainment with the ozone standard.

Once construction of the Port expansion project is complete,

operational emissions increases are projected to be significant.

Because the long-term emissions from new vessels, trucks, trains,

terminal operations, and employee vehicles are considered to be

indirect emissions that cannot be practicably controlled by and are not

under a continuing program responsibility of the COE, these activities

are exempt from the conformity requirements. EPA believes however, that

mitigation of these long-term emissions may be an important part of the

Bay Area's strategy for attaining and maintaining not only the 1-hour

ozone NAAQS, but the revised 8-hour and PM2.5 NAAQS as well. For this

reason, EPA encourages the Port to work with BAAQMD and MTC to identify

opportunities to mitigate long-term emission increases from the

project. EPA also welcomes opportunities to share information regarding

mitigation techniques that have been identified during discussions with

the South Coast AQMD on ports and airports.

Plans to expand the Oakland Airport are also underway and EPA

believes that the project will be subject to the General Conformity

requirements. EPA believes that there are opportunities to mitigate

emissions increases associated with the expansion and again welcomes

the opportunity to share information resulting from discussions with

the South Coast regarding reducing airport emissions.

VI. 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 action 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, sec. 6(a)(3). The E.O. defines, in sec. 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 redesignation to nonattainment

finalized today, as well as the establishment of SIP submittal

schedules, would result in none of the effects identified in E.O. 12866

sec. 3(f). Under section 107(d)(3) of the Act, redesignations to

nonattainment are based upon air quality considerations. The finding,

based on air quality data, that the Bay Area is not attaining the ozone

NAAQS and should be redesignated to nonattainment does not, in and of

itself, impose any new requirements on any sectors of the economy.

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. section 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.

sections 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 redesignation to nonattainment under section 107(d)(3), 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 makes a factual determination and to

establish a schedule to require the State to submit SIP revisions, and

does not directly regulate any entities. Because EPA is applying the

same permitting applicability thresholds and offset ratios applicable

to moderate areas, no additional sources will be subject to these

requirements as a result of EPA's action. Therefore, pursuant to 5

U.S.C. 605(b), EPA certifies that today's 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), Pub.

L. 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 section 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.

EPA has concluded that this rule is not likely to result in the

promulgation of any Federal mandate that may result in expenditures of

$100 million or more for State, local or tribal governments in the

aggregate, or for the private sector, in any one year. It is not

necessary to resolve here whether a redesignation would constitute a

federal mandate.

Even assuming that a redesignation were considered a Federal

mandate, and it were appropriate to consider both private and public

sector costs, the anticipated annual costs resulting from the mandate

would not exceed $100 million to the private sector, State, local

[[Page 37279]]

and tribal governments. In terms of the impact on the private sector,

the BAAQMD has yet to determine the amount of needed reductions and the

mix of VOC and NOX measures to achieve the needed

reductions. EPA used cost data developed for the July 1997 ``Regulatory

Impact Analyses for the Particulate Matter and Ozone National Ambient

Air Quality Standards and Proposed Regional Haze Rule,'' as the basis

of its analysis. This data shows that the national average cost for

reasonably available VOC control measures is higher than the national

average cost for reasonably available NOX control measures

($2,652 per ton per year for VOC; $1,937 per ton per year for

NOX, expressed in 1990 dollars). EPA assumes that reductions

of both VOC and NOX will be necessary to bring the Bay Area

back into attainment. However, for the purpose of this analysis EPA

assumed that all the needed reductions would come from VOC measures

because this approach would over-estimate the actual costs. In

addition, EPA assumed that VOC emissions may need to be reduced by as

much as 80 tons per day (approximately 28,800 tons per year) above and

beyond measures currently underway at the State and local levels. This

amount of reductions is significantly greater than that assumed to be

needed by the various interested parties. During the extensive

stakeholder process EPA has heard that anywhere from 0 to 50 tons per

day in additional reductions will be necessary. Thus, by assuming 80

tons per day for the purposes of this analysis, EPA believes that it is

significantly overestimating the costs. Even by employing cost numbers

and tons to be reduced that are significantly higher than what EPA

believes the actual results will be, the impacts would still be less

than $100 million (i.e., $76,377,600).

The cost to the State of California is the cost of developing,

adopting and submitting any necessary SIP revision. Because that cost,

taken in combination with private sector costs, will not exceed $100

million, this action (even assuming it is a federal mandate) is not

subject to the requirements of sections 202 and 205 of UMRA (2 U.S.C.

1532 and 1535). EPA has also determined that this action would not

result in regulatory requirements that might significantly or uniquely

affect small governments because only the State would take any action

as result of today's rule, and thus the requirements of section 203 (2

U.S.C. 1533) do not apply.

D. Executive Order 13045: Protection of Children From Environmental

Health Risks and Safety Risks

This final rule is not subject to E.O. 13045, entitled ``Protection

of Children from Environmental Health Risks and Safety Risks'' (62 FR

19885, April 23, 1997) because this is not an economically significant

regulatory action as defined by E.O. 12866, and because it does not

involve decisions on environmental health risks or safety risks that

may disproportionately affect children.

E. Submission to Congress and the General Accounting Office

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. This rule is not a

``major'' rule as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, National parks.

Dated: June 25, 1998.

Felicia Marcus,

Regional Administrator, Region IX.

Part 81, 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 Sec. 81.305, the table for California--Ozone, is amended by

revising the entry for the San Francisco Bay Area to read as follows:

Sec. 81.305 California.

* * * * *

California-Ozone

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

Designation Classification

Designated Area --------------------------------------------------------------------------------------------------------------------

Date\1\ Type Date \1\ Type

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

San Francisco--Bay Area:

Alameda County................. August 10, 1998................. Nonattainment...................

Contra Costa County............ ......do ......do

Marin County................... ......do ......do

Napa County.................... ......do ......do

San Francisco County........... ......do ......do

Santa Clara County............. ......do ......do

San Mateo County............... ......do ......do

Solano County (part)........... ......do ......do

Sonoma County (part)........... ......do

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

\1\ This date is November 15, 1990, unless otherwise noted.

[[Page 37280]]

* * * * *

[FR Doc. 98-18272 Filed 7-9-98; 8:45 am]

BILLING CODE 6560-50-P