Determination of Attainment of the 1-Hour Ozone Standard; Determination Regarding Applicability of Certain Clean Air Act Requirements; Approval and Promulgation of Ozone Attainment Plan; San Francisco Bay Area, CA

[Federal Register: April 22, 2004 (Volume 69, Number 78)]
[Rules and Regulations]
[Page 21717-21731]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ap04-12]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA258-0442(A); FRL-7645-7]

Determination of Attainment of the 1-Hour Ozone Standard;
Determination Regarding Applicability of Certain Clean Air Act
Requirements; Approval and Promulgation of Ozone Attainment Plan; San
Francisco Bay Area, CA

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: EPA is determining that the San Francisco Bay Area (Bay Area)
ozone nonattainment area has attained the 1-hour ozone national ambient
air quality standard (NAAQS) by the deadline required by the Clean Air
Act (CAA), September 20, 2006. Based on this determination, we are also
determining that the CAA's requirements for reasonable further progress
and attainment demonstrations and for contingency measures for the 1-
hour ozone standard are not applicable to the area for so long as the
Bay Area continues to attain the 1-hour ozone standard.
In addition, EPA is approving the following elements of the 2001
ozone attainment plan for the Bay Area (2001 Plan): Emissions
inventory, reasonably available control measures (RACM); commitments to
adopt and implement specific control measures; motor vehicle emissions
budgets (MVEBs); and commitments for further study measures.
In 2001, EPA disapproved certain components of the 1999 ozone
attainment plan for the Bay Area: The RACM demonstration, the
attainment demonstration, and the MVEBs. Because of this disapproval
the 2 to 1 offset sanction under CAA section 179(b)(2) was imposed in
the Bay Area on April 22, 2003. Based on the proposed approval of these
elements of the 2001 Plan, EPA made an interim final determination that
resulted in a stay of the offset sanction and deferral of the highway
sanction. EPA's approval of RACM and the MVEBs in the 2001 Plan
terminates the sanctions clock for those plan elements.
Based on the attainment determination for the Bay Area, elsewhere
in this Federal Register EPA is taking interim final action to stay the
offset sanction and defer the highway sanction triggered by the
attainment demonstration disapproval for as long as the area continues
to attain the 1-hour ozone standard because that plan requirement has
been suspended.

DATES: Effective Date: This rule is effective on May 24, 2004.

ADDRESSES: You can inspect copies of the administrative record (docket
number CA258-0442(A)) for this action at EPA's Region 9 office during
normal business hours by appointment. The address is U.S. EPA Region
IX--Air Division, 75 Hawthorne Street, San Francisco, CA.

FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, EPA Region IX, (415)
972-3964, vagenas.ginger@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.

Table of Contents

I. Background
II. Attainment Finding for the Bay Area
A. Attainment Finding
B. EPA's Responses to Comments on the Proposed Finding of Attainment
1. Comments Regarding Timing of the Finding of Attainment
2. Comments Regarding the Data on Which the Attainment Finding
Is Based
3. Comments Regarding the Impact of an Attainment Finding on the
2001 Plan and on Air Quality in the Bay Area
C. Applicability of Clean Air Act Planning Requirements in Areas
Attaining the 1-Hour Ozone Standard
D. EPA Responses to Comments on Applicability of Clean Air Act
Requirements
1. Comments Regarding EPA's Clean Data Policy
2. Comments Regarding the Applicability of EPA Policies to the
Bay Area
E. Effects of the Attainment Finding on the Bay Area and of a
Future Violation of the 1-Hour Ozone NAAQS
III. Approval of Bay Area 2001 Plan
A. Approval of Bay Area 2001 Plan
B. EPA's Responses to Comments on the Proposed Approval of the
2001 Plan
1. Comments on the Proposed Approval of the Emissions Inventory
2. Comments on the Proposed Approval of RACM
3. Comments on the Proposed Approval of the Control Measure
Commitments
4. Comments on the Downwind Transport of Air Pollution
5. Comments on Additional Plan Elements
6. Comments on the Impact of the State Law and Court Orders
7. Comments on the Interim Final Determination
IV. Effect of the Attainment Determination and 2001 Plan Action on
Transportation Conformity
V. Statutory and Executive Order Reviews

I. Background

Upon enactment of the Clean Air Act Amendments of 1990, the Bay
Area was classified as a moderate nonattainment area for the 1-hour
ozone NAAQS. 56 FR 56694 (November 6, 1991). EPA redesignated the Bay
Area to attainment in 1995, based on then current air quality data (60
FR 27029, May 22, 1995), and subsequently redesignated the area back to
nonattainment without classification on July 10, 1998 (63 FR 37258),
following renewed violations of the 1-hour ozone standard. Upon the Bay
Area's redesignation to nonattainment, we required the State to submit
a state implementation plan (SIP) addressing applicable CAA provisions,
including a demonstration of attainment as expeditiously as practicable
but no later than November 15, 2000.
The Bay Area Air Quality Management District (District or BAAQMD),
along with its co-lead agencies--the Metropolitan Transportation
Commission and the

[[Page 21718]]

Association of Bay Area Governments--prepared a 1-hour ozone attainment
plan, which was submitted to EPA by the California Air Resources Board
(CARB) on August 13, 1999. On September 20, 2001 (66 FR 48340), we
approved the emissions inventories, reasonable further progress (RFP)
provisions, control measure commitments, and contingency measures in
that plan. In the same rulemaking, we disapproved the remaining
portions of the SIP, i.e., the attainment demonstration, MVEB, and RACM
demonstration, issued a finding that the area failed to attain by the
applicable deadline, and set a new attainment deadline of as
expeditiously as practicable but no later than September 20, 2006. The
effective date of the final disapproval (October 22, 2001) started an
18-month clock for the imposition of sanctions pursuant to CAA section
179(a) and 40 CFR 52.31, and a 2-year clock for EPA to promulgate a
federal implementation plan (FIP) under CAA section 110(c)(1). 62 FR
43796 (August 15, 1997). The Bay Area became subject to the 2 to 1
offset sanction under CAA section 179(b)(2) on April 22, 2003.
On November 30, 2001, CARB submitted the 2001 Plan for the Bay Area
addressing the new attainment deadline. On February 14, 2002, we found
the MVEBs in the 2001 Plan adequate. 67 FR 8017 (February 21, 2002). On
July 16, 2003 (68 FR 42174), we proposed to approve the following
elements of the 2001 Plan: Emissions inventory, RACM demonstration,
attainment assessment, MVEBs, and commitments to adopt control measures
and to adopt and submit a plan revision by April 15, 2004 based on new
modeling. On the same date, we issued an interim final determination
that the 2001 Plan corrects the deficiencies in the 1999 Plan, thereby
staying the CAA section 179 offset sanction and deferring the
imposition of the highway sanction triggered by our September 20, 2001
disapproval. 68 FR 42172.
On October 31, 2003 (68 FR 62041), we proposed to find that the San
Francisco Bay Area ozone nonattainment area had attained the 1-hour
ozone standard by its CAA mandated attainment date of September 20,
2006. Based on this proposed finding, we also proposed to suspend the
attainment demonstration, RFP and contingency measure requirements of
the CAA for the Bay Area for so long as the area continues to attain
the 1-hour ozone standard.
On January 30, 2004, CARB withdrew the attainment assessment, the
RFP demonstration, the contingency measures, and the technical
correction to the attainment assessment (Appendix F) in the 2001 Plan
from EPA's consideration as revisions to the Bay Area SIP.\1\ In the
same letter, the State also specifically requested that EPA approve the
motor vehicle emissions budgets in the 2001 Plan.
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\1\ See January 30, 2004 letter from Catherine Witherspoon,
Executive Officer, CARB, to Wayne Nastri, Regional Administrator,
U.S. EPA Region 9. This letter is subsequently referred to as the 1/
30/04 Witherspoon letter.
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II. Attainment Finding for the Bay Area

A. Attainment Finding

In this action, EPA is finalizing its proposed finding of
attainment for the Bay Area. The 1-hour ozone NAAQS is 0.12 parts per
million (ppm) not to be exceeded on average more than one day per year
over any three-year period. 40 CFR 50.9 and appendix H. We determine if
an area has attained the 1-hour standard by calculating, at each
monitor, the average number of days over the standard per year during
the preceding three-year period.\2\ We use all available, quality
assured monitoring data and we generally base our determination of
attainment or failure to attain on the area's design value as of its
applicable attainment deadline. In this case, the attainment deadline
(September 20, 2006) has not been reached, so we are making our
attainment finding based on the Bay Area's current air quality data and
design value, which demonstrate attainment of the 1-hour standard. See
section II.E. for a discussion of consequences of future violations.
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\2\ See generally 57 FR 13506 (April 16, 1992) and Memorandum
from D. Kent Berry, Acting Director, Air Quality Management
Division, EPA, to Regional Air Office Directors; ``Procedures for
Processing Bump Ups and Extensions for Marginal Ozone Nonattainment
Areas,'' February 3, 1994 (Berry memorandum). While explicitly
applicable only to marginal areas, the general procedures for
evaluating attainment in this memorandum apply regardless of the
initial classification of an area because all findings of attainment
are made pursuant to the same procedures.
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The design value for the Bay Area for 2001-2003 was 0.123 ppm,
which is below the 0.12 ppm standard using the applicable rounding
convention discussed below. No monitor in the Bay Area recorded an
average of more than one exceedance of the 1-hour ozone standard per
year during the 2001 to 2003 period. Documentation of the monitoring
data and design value calculation can be found in the docket for this
rulemaking.
Our October 31, 2003 proposed attainment finding was based on all
available air quality data collected from the monitoring network, which
we determined met our regulations for state air quality monitoring
networks. On November 12, 2003, the District submitted an interim
certification that the data had been quality assured.\3\ On December 1,
2003, Jack Broadbent, Executive Officer/Air Pollution Control Officer,
BAAQMD, sent a letter to Deborah Jordan, EPA, (12/1/03 Broadbent
letter) transmitting the District's formal certification in accordance
with 40 CFR part 58 that the ozone ambient air monitoring data
submitted to EPA are complete and accurate. The quality assurance
process did not result in any changes to the data.
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\3\ See November 12, 2003 email from Mark Stoelting, BAAQMD, to
Catherine Brown, EPA, and Catherine Brown's November 21, 2003 response.
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Because the Bay Area's design value was below the 0.12 ppm 1-hour
ozone standard and the area averaged one or fewer exceedances per year
at each monitor for the 2001 to 2003 period, we find that the Bay Area
attained the 1-hour ozone standard by its CAA mandated attainment
deadline of September 20, 2006. Based on this final attainment
determination, we are also determining that the CAA requirements for
RFP, an attainment demonstration and contingency measures for the 1-
hour ozone standard are not applicable to the Bay Area for so long as
the area continues to attain the standard. For a discussion of EPA's
policy and legal basis for suspending these requirements, see our
proposed attainment determination at 68 FR 62044.
Finally, based on our final attainment determination, elsewhere in
this Federal Register, we are taking interim final action to stay the
offset sanction and defer the highway sanction for the attainment
demonstration because that plan requirement has been suspended. The
stay/deferral will remain in effect for as long as the area continues
to attain the 1-hour ozone standard.

B. EPA's Responses to Comments on the Proposed Finding of Attainment

EPA's proposed action provided a 30-day public comment period.
During this period, we received comments from seven parties. We
summarize the most significant comments and provide our responses
below; the entire set of comments and responses can be found in the
docket in a separate Response to Comment document (RTC).
1. Comments Regarding Timing of the Finding of Attainment
Comment 1: Several commenters expressed support for a determination
that the Bay Area has attained the 1-

[[Page 21719]]

hour ozone standard. Another commenter concurred with the determination
that Bay Area's monitoring network meets or exceeds EPA's specified
requirements. In contrast, other commenters pointed to the Bay Area's
prior history of slipping back out of attainment following EPA action
redesignating the area to attainment in 1995 and recent year-to-year
differences in design values as a reason for exercising caution in
making an attainment finding. One commenter stated that, in light of
the small margin of attainment, EPA should scrutinize the foundation
for the asserted finding of attainment.
Response: A determination that an area has attained the standard is
based on an objective review of air quality data. The 1-hour ozone
NAAQS is 0.12 ppm, not to be exceeded on average more than one day per
year over any three year period. A review of the data from the prior
three years (2001-2003) indicates that the Bay Area has met this
standard. 68 FR 62042-62043.
The redesignation of an area to attainment under CAA section
107(d)(3)(E) is a separate process from a finding of attainment. Unlike
an attainment finding where we need only determine that the area has
had the prerequisite number of clean years, a redesignation requires
multiple determinations. Under section 107(d)(3)(E) these
determinations are:
1. We must determine, at the time of the redesignation, that the
area has attained the relevant NAAQS.
2. The state must have a fully approved SIP for the area.
3. We must determine that the improvements in air quality are due
to permanent and enforceable reductions in emissions resulting from
implementation of the SIP and applicable federal regulations and other
permanent and enforceable reductions.
4. We must have fully approved a maintenance plan for the area
under section 175A.
5. The state must have met all the nonattainment area requirements
applicable to the area.
2. Comments Regarding the Data on Which the Attainment Finding is Based
Comment 2: The data do not support a finding of attainment. The
District previously reported two separate exceedances on July 10, 2002,
of 160 parts per billion (ppb) and 151 ppb, respectively, and stated
that EPA should recognize the July 10, 2002 reading of 151 ppb at 4
p.m. as a separate exceedance from the 160 parts per billion (ppb)
exceedance from earlier that day. As of December 1, 2003, the
District's website stated that the region experienced three violations
of the 1-hour ozone NAAQS at Livermore in 2002.
Response: An area's ozone attainment status is determined by
calculating the average number of days over a three-year period on
which it exceeds the ozone standard. See 40 CFR 50.9(a) and 40 CFR part
50, Appendix H. Therefore, multiple hourly exceedances on any single
day count as only one exceedance. The Bay Area's website apparently
mistakenly counted a reading of 0.123 ppm at Livermore on August 9,
2002 as an exceedance of the 1-hour ozone NAAQS. As explained at length
in the proposed finding of attainment (68 FR 62043, October 31, 2003),
and discussed below (see response to comment 6), rounding conventions
and the form of the standard dictate that values between 0.120 and
0.124, inclusive, are to be rounded to 0.12 parts per million.
Comment 3: According to EPA guidance, an attainment finding should
be based on certified data, however, the proposal was published before
the data were certified. EPA's guidance demands quality assured data
from states to establish evidence of attainment. The EPA memorandum
``Procedures for Processing Requests to Redesignate Areas to
Attainment'' signed by John Calcagni, Director Air Quality Management
Division, OAQPS, dated September 4, 1992 (9/4/92 Calcagni memo)\4\
states that ``[t]he data should be collected and quality-assured in
accordance with 40 CFR 58 and recorded in the Aerometric Information
Retrieval System (AIRS) in order for it to be available for the public
to review.'' EPA has cited this memo as applicable authority for the
proposed rulemaking, and cannot pick and choose portions as applicable
and inapplicable without explanation. The Administrative Procedure Act
(APA) and CAA direct that EPA's decision-making must be based on data
and information in the record and available to the public, and the law
of the Ninth Circuit clearly requires that when EPA acts on SIPs, it
must comply with its own rules. Delaney v. EPA, 898 F.2d 687, 693 (9th
Cir. 1990). The data and information purportedly supporting the
proposed action are simply unavailable, or were unavailable during the
comment period.
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\4\ This memo is available online at
http://www.epa.gov/ttn/naaqs/ozone/ozonetech/940904.pdf.

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Response: Air quality data are available to EPA and the general
public on a real-time basis from the District's website. EPA based its
proposal on this publicly available monitoring data that indicated the
Bay Area had attained the 1-hour ozone standard. While the data for
2003 had not yet been quality assured at the time of the proposal, the
District maintains a monitoring network that meets or exceeds all
applicable requirements. See 68 FR 62042-62043 and ``System Audit of
the Ambient Monitoring Program of Bay Area Air Quality Management
District,'' available online at http://www.epa.gov/region09/air/
sfbayoz/tsd1003.pdf. EPA had no reason to believe the quality assurance
process would indicate there had been problems with the data and so
proceeded with the proposed finding.
On November 12, 2003, the District notified EPA that it had
quality-assured the data from the 2003 ozone season and submitted it to
AIRS. See footnote 3. Thus the quality-assured data were accessible to
the public on that date, i.e., during the public comment period. The
November 12, 2003 notification was followed by the 12/1/03 Broadbent
letter, which confirmed that the data had been collected and quality
assured in conformance with 40 CFR part 58. The quality assurance
process did not result in any changes to the data. While the proposal
was published shortly before the data were certified, this final
rulemaking is based on data that were collected and quality assured in
conformance with EPA regulations.
Comment 4: Improved air quality in the Bay Area is not the product
of real, permanent, surplus, and enforceable emissions reductions, as
required by the CAA and EPA policy and guidance. It came as a result of
a significant economic downturn that reduced, temporarily, emissions
from all sectors of the emissions inventory and the weather had not
been particularly ozone conducive. Because recent Bay Area ozone levels
result from a combination of temporarily favorable economic and
meteorological conditions rather than documentation of the
effectiveness of permanent and enforceable measures, an attainment
finding is inappropriate and obligations for RFP, attainment
demonstration and contingency measure should not be suspended in the
Bay Area.
Response: The requirement to determine that clean air is the result
of permanent and enforceable emissions reductions is a criterion for
the redesignation of an area to attainment under CAA section
107(d)(3)(E). It need not be met for a finding of attainment or for the
suspension of the associated RFP, attainment demonstration, and
contingency measure requirements.
That aside, we believe that the finding of attainment itself
addresses in part the

[[Page 21720]]

concern about unusually favorable meteorological conditions. We have
long recognized that meteorological conditions have a profound effect
on ambient ozone concentrations. In setting the current 1-hour ozone
standard in 1979, we changed the form of the standard, i.e., the
criterion for determining attainment, from a deterministic form ``no
more than once per year'' to a statistical form ``when the expected
number of days per year is less than or equal to one'' over a three-
year period in order to properly account for the random nature of
meteorological variations. The three-year period for averaging the
expected number of exceedances was a reasoned balance between evening
out meteorological effects and properly addressing real changes in
emission levels. See the proposed and final actions promulgating the
current 1-hour ozone standard at 43 FR 26962, 26968 (June 22, 1978) and
44 FR 8202, 8218 (February 8, 1979).
Comment 5: Even if EPA has the discretion to dismiss SIP
requirements upon a finding of attainment, it would be an abuse of
discretion to dismiss these requirements without a finding that the
reductions are permanent and enforceable in the circumstances of the
Bay Area's recession and weather conditions. Given the narrow margin of
attainment, it is inappropriate to relax the SIP through elimination of
the RFP, attainment demonstration, and contingency measures requirements.
Response: As noted above, EPA is not dismissing or eliminating
these requirements. Rather, we interpret the requirements for an
attainment demonstration, an RFP demonstration and contingency measures
as inapplicable to an area that has attained the standard, but only for
so long as the area remains in attainment. The requirements will again
apply if such an area violates the standard. In order to be
redesignated to attainment of the ozone standard, the State will be
required to demonstrate, among other things, that the reductions
contributing to the attainment record are permanent and enforceable,
and that atypical weather conditions were not responsible for the
improvement in air quality. CAA section 107(d)(3)(E)(iii).
Comment 6: EPA's methodology for rounding off conflicts with
Congress's intent that 0.12 ppm should be read as 0.120 ppm, as
evidenced by section 181 of the CAA, at Table 1. See also 40 CFR 50.9,
which states that the equivalent unit for the standard is 235 ug/m\3\.
(Livermore's design value is 245 ug/m\3\). Finally, the specific
regulation for the ozone standard contains no provision for rounding
off, unlike the regulation for CO. (Compare 40 CFR 50.9 with 40 CFR
50.8(d)).
Response: In our proposed finding of attainment, we explained that
the 1-hour ozone NAAQS is 0.12 parts-per-million; it is not expressed
in parts-per-billion, nor does it contain three digits.\5\ Because air
quality monitors and models express results in three digits, EPA
applies the established rounding convention to determine whether the
measurements meet or exceed the standard. Under the rounding
convention, 0.005 rounds upward and 0.004 rounds downward, so that a
0.124 parts per billion (ppb) ozone level meets the NAAQS of 0.12 ppm,
while a 0.125 parts per billion (ppb) ozone level rounds up to 0.13 ppm
and thus exceeds the NAAQS. The use of rounding neither changes the
NAAQS nor relaxes it.
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\5\ See 40 CFR 50.9(a) and footnote 8 of the October 31, 2003
proposal (68 FR 62043). Also see ``Guideline for the Interpretation
of Ozone Air Quality Standards.'' U.S. Environmental Protection
Agency, Office of Air, Noise and Radiation, Office of Air Quality
Planning and Standards, Research Triangle Park, North Carolina
27711, January 1979, EPA-450/4-79-003, OAQPS No. 1.2-108. In the
1979 guidance document, EPA states, ``[i]t should be noted that the
stated level of the standard is taken as defining the number of
significant figures to be used in comparisons with the standard. For
example, a standard level of .12 ppm means that measurements are to
be rounded to two decimal places (.005 rounds up), and, therefore,
.125 ppm is the smallest concentration value in excess of the level
of the standard.'' This document is available on line at
http://www.epa.gov/ttn/naaqs/ozone/ozonetech/guide-o3.htm.

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The commenter's reliance on the design values set forth in Table 1
of section 181(a)(1) is misplaced. These design values are used to
classify nonattainment areas, not to determine whether an area has
attained the standard. See American Trucking Associations, Inc. v. EPA,
175 F.3d 1027, 1047 (D.C. Cir. 1999) (``* * * although the numbers in
the classification table are based upon the 0.12 ppm ozone NAAQS, they
are neither equivalent to nor a codification of the NAAQS.'').
EPA's procedure for calculating the design value for classification
purposes is different from the analysis used for purposes of
determining attainment. Under EPA's classification procedures, it is
possible for an area that lacks a full set of monitoring data to be
designated nonattainment and to have a design value of less than 0.125
parts per billion (ppb). Under these circumstances, the area would be
classified as a marginal nonattainment area. See Memorandum from
William G. Laxton dated June 18, 1990, ``Ozone and Carbon Monoxide
Design Value Calculations'' (Laxton Memo), available at http://www.epa.gov/
ttn/naaqs/ozone/ozonetech/laxton.htm. The procedures set
forth in the Laxton Memo constitute the ``interpretation methodology
issued by the Administrator most recently before November 15, 1990.''
Finally, the translation of the standard from ppm to ug/m3 is provided
for informational purposes only and does not constitute an alternative
form of the standard.
3. Comments Regarding the Impact of an Attainment Finding on the 2001
Plan and on Air Quality in the Bay Area
Comment 7: EPA should direct the District to include in the next
SIP submittal a safety margin of additional emissions reductions to
compensate for the narrow margin of attainment. EPA should also mandate
that the 2004 SIP contain sufficient contingency measures to achieve
emissions reductions totaling 3% of the emissions inventory should the
region experience a subsequent violation. See ``General Preamble for
the Interpretation of Title I of the Clean Air Act Amendments of 1990''
(General Preamble), 57 FR 13510-11, April 16, 1992. EPA should
institute extraordinary measures to respond immediately in the event of
a future violation. The Bay Area's design value, which is just 2 parts
per billion (ppb) below the attainment level, indicates that
contingency measures must be included in the upcoming SIP. Only the
requirement of federally enforceable contingency measures can provide
any reasonable assurance that air pollution control efforts and
emissions reductions will continue aggressively in the likely event
that the area subsequently exceeds the 1-hour ozone standard once
again. EPA should change course and take final action on the 2001 SIP
as submitted and require appropriate emissions inventory adjustments to
incorporate the effect of episodic control measures and reduced
emissions activity from the economic recession experienced during
modeled episode days.
Response: As noted above, our determination that the Bay Area has
attained the standard is based on an objective review of air quality
data. No information has been presented that casts doubt on the
accuracy of the data, therefore we are proceeding with our finding of
attainment. Our guidance provides for the suspension of the attainment
demonstration, RFP and contingency measure requirements applicable to
the Bay Area upon such a finding.\6\ In our proposed action on the

[[Page 21721]]

2001 plan, we proposed to approve as part of the attainment assessment
the commitment by CARB and the co-lead agencies to submit a SIP
revision by April 15, 2004 (68 FR 42181, July 16, 2003). Consistent
with the suspension of the attainment demonstration requirement, the
State has withdrawn the commitment in the 2001 plan to submit a 2004
SIP revision from EPA consideration.\7\ Therefore EPA cannot act on
this commitment and, as a result, there is currently no federally
enforceable requirement for a 2004 SIP.
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\6\ Memorandum from John S. Seitz, Director, OAQPS, EPA, to
Regional Air Directors, entitled ``Reasonable Further Progress,
Attainment Demonstrations, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard,'' May 10, 1995 (http://www.epa.gov/ttn/oarpg/t1/memoranda/
clean15.pdf). This memo is subsequently referred to as the ``Clean
Data Policy'' or the ``Seitz memo.''
\7\ 1/30/04 Witherspoon letter.
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The co-lead agencies have, however, expressed their intent to shift
their focus to developing a maintenance plan to support a redesignation
request if EPA finalizes its finding of attainment. Should the Bay Area
violate the 1-hour standard prior to redesignation, the attainment
demonstration, RFP and contingency measure requirements will be once
again imposed. Also note that, among other things, an approvable
maintenance plan must include contingency measures that are designed to
promptly address a violation of the standard. Finally, even without the
adoption of additional measures, ozone precursor emissions in the Bay
Area will continue to decline as a result of previously adopted state,
local, and federal measures. Between 2003 and 2006, emissions of oxides
of nitrogen (NO_X) will decline 81 tpd and volatile organic
compound (VOC) emissions will decline 52 tpd. 2001 Plan, p. 32-33.
These numbers do not include additional reductions to be achieved by
the implementation of Smog Check 2 in the Bay Area, which was mandated
by the California legislature after adoption of the 2001 Plan.
Comment 8: While EPA's Notice of Proposed Rulemaking on the
determination of attainment specified three SIP elements that ``no
longer apply to the Bay Area'' EPA did not elect to change or withdraw
the District's outstanding enforceable commitment to secure 26 tpd of
additional VOC emissions reductions. In light of the data indicating
attainment, there could be some question whether all of the enforceable
commitments remain valid, but EPA did not in the Notice of Proposed
Rulemaking, authorize the rescission of the commitment to achieve an
additional 26 tpd of reductions. Given the restatement of commitment by
State and local agencies and EPA's failure to specify which, if any of
the State's prior ``enforceable commitments'' should not be included in
the 2004 mid-course review, the District must completely fulfill its
``enforceable commitments'' as pledged as part of the 2001 SIP
submittal package. EPA has endorsed this concept in the proposed 8-hr
implementation policy. Other commenters stated that EPA should
expressly determine that the 26 tpd reduction is no longer necessary
for the Bay Area to reach attainment.
Response: In our proposed finding of attainment, we discussed the
CAA requirements that would be suspended should we finalize the
proposal. 68 FR 62044. Those requirements are the RFP, the attainment
demonstration, and contingency measure requirements. The suspension of
these requirements, and our rationale supporting it, apply so long as
the area continues to attain the 1-hour ozone NAAQS. Consistent with
the suspension of the attainment demonstration requirement, the State
has withdrawn the attainment assessment in the 2001 Plan, which
includes the associated commitments to undertake a mid-course review
and to achieve additional reductions as necessary to attain the 1-hour
ozone standard. See 1/30/04 Witherspoon letter. A mid-course review,
the purpose of which is to evaluate progress toward attainment, and a
commitment to adopt the measures necessary to attain the standard are
unnecessary in an area that has attained the standard. Finally we note
that our final implementation guidance for the 8-hour standard has not
yet been issued.\8\
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\8\ On June 2, 2003, EPA published in the Federal Register a
proposed rule to implement the 8-hour ozone NAAQS. 68 FR 32803.
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Comment 9: A loss of progress could occur as a result of a finding
of attainment. The proposed finding of attainment provides an incentive
for areas to defer SIP preparation in hopes that they might achieve
clean data before the deadline to perform a deferred SIP element
preparation arrives. Part of the State's rationale for employing the
mid-course review was the absence of competent modeling to demonstrate
attainment in the Bay Area. EPA's proposed action undermines the
State's prior commitment to use the more technically robust CCOS \9\
model and more recent data to both model attainment in the Bay Area and
quantify the effect of Bay Area emissions upon downwind district
attainment. As the District has finally developed a model through the
CCOS process, EPA must insist on the completion of the modeling
exercise in the 2004 mid-course review SIP to identify issues
associated with the federal 1-hour ozone standard, the state ozone
standard, the 8 hour federal ozone standard, and transport issues.
---------------------------------------------------------------------------

\9\ In an effort to establish a more reliable database for ozone
analysis, the Central California Ozone Study (CCOS), a large field
measurement program, was conducted in the summer of 2000.
---------------------------------------------------------------------------

Response: We disagree with the commenter's assessment of the impact
of the attainment finding. The State and the co-lead agencies have all
acknowledged the need to address the state ozone standard, the federal
8-hour standard, and downwind transport of air pollution and have
pledged to continue their efforts.\10\ Despite the commenters'
concerns, work on the CCOS modeling does not appear to have slackened.
In fact, given the technical challenges, EPA is satisfied that work is
progressing as quickly as could be expected. Should the Bay Area once
again violate the standard, new modeling based on CCOS data would be
available to support an attainment demonstration. In addition, much of
the work being done to prepare a maintenance plan and to prepare the
state clean air plan will be transferrable to the nonattainment
requirements that would once again apply.
---------------------------------------------------------------------------

\10\ In the District's October 16, 2003 letter to Catherine
Witherspoon, CARB (10/16/03 Norton letter), Executive Officer
William Norton states that the District ``want[s]
to reduce local
ozone and transport, and to maintain progress toward the state
standard.'' In a January 16, 2004 letter to Catherine Witherspoon,
CARB (1/16/04 co-lead agencies letter), the directors of the co-lead
agencies recognize that they ``have a continuing obligation to
reduce emissions further in order to attain and maintain all
national ambient air quality standards and to make expeditious
progress toward California standards.'' They state their commitment
to ``continuing [their]
ozone control program in order to reduce
ozone levels in the Bay Area and to address transport to downwind
regions.'' In closing, they acknowledge the ``need to make progress
toward the California 1-hour standard, address transport to downwind
regions, and meet the national 8-hour ozone standard.'' In the 1/30/
04 Witherspoon letter, the State recognizes ``the importance of a
continuing commitment to further emission reductions that will * * *
contribute to better air quality in downwind areas.''
---------------------------------------------------------------------------

Comment 10: The steps and delays that are embedded in EPA's
proposed approach in the event of a future exceedance verify that EPA's
future actions will be ineffective at bringing the region back onto the
path of true attainment. EPA should make a commitment in its final
notice to act immediately upon the observance of a single Livermore
violation because, even if the EPA were to move swiftly, it could take
three years to get a new attainment plan in place (6 months for
rulemaking, 12 months for plan submittal, 18 months to act). Commenters
fear that EPA will wait until the end of the ozone season, then

[[Page 21722]]

await quality assured data, which would add 12 months to the process.
Commenters request that EPA specify the protocol for making a
determination of a violation in the event of an exceedance [at
Livermore]
in July, 2004.
Response: As described in the proposed rule, should the Bay Area
violate the 1-hour standard prior to EPA redesignating the area to
attainment, we will notify the State that we have determined that the
area is no longer attaining the 1-hour standard. We will also provide
notice to the public in the Federal Register and will at that time
indicate what pertinent SIP provisions apply and when a SIP revision
addressing those provisions must be submitted. The public will have an
opportunity to comment on our determinations. In the event of an
exceedance, EPA will work closely with the District to facilitate
prompt quality assurance of the data. We also note we would not be
precluded from initiating the above process in advance of submittal of
quality assured data. In setting the due date for submittal of the SIP
revisions, EPA will consider all the relevant circumstances. For
example, should the Bay Area violate the 1-hour standard, EPA will take
into account the history of the area and the date on which the Bay Area
violates the 1-hour standard.
Comment 11: The CAA states that an area shall be classified as
nonattainment if the area contributes to ambient air quality in a
nearby area that does not meet the federal standard (CAA section
107(d)(1)(A)(i)). Activities in the Bay Area that generate ozone
precursors translate into substantial contributions to ozone
nonattainment status in the Sacramento Valley and San Joaquin Valley
air basins; CARB has concluded that pollution generated in the Bay Area
has a significant, and at least in one case, overwhelming impact on the
Sacramento region.
Another commenter noted that the federal CAA and case law establish
that downwind ozone transport concerns are an appropriate basis to deny
designation of ozone attainment status to an upwind area even if
monitoring limited to the upwind area shows compliance. Air district
boundaries established to regulate localized pollutants cannot be used
to ignore adverse effects which emanate beyond these boundaries when
highly mobile pollutants such as ozone precursors are involved. Until
EPA takes regulatory action to designate the Bay Area nonattainment for
the 8-hour ozone standard it is premature to rely on that designation
to deal with as yet unresolved transport issues. Because the Bay Area
plan has not addressed transport contribution to downwind areas it is
premature to relieve the area of the nonattainment designation and
reasonably available control technology (RACT) and other requirements
that are needed to demonstrate attainment in the downwind areas.
Response: CAA section 107(d)(1)(A)(i) applies to the submission by
state governors of initial designations following promulgation of new
or revised standards and is thus unrelated to determinations of
attainment. Similarly, the cases cited \11\ concern the permissible
scope of EPA's authority in redesignating areas from nonattainment to
attainment. Moreover, in determining whether an area has attained the
1-hour ozone standard, EPA does not evaluate whether it meets all other
requirements of the Act. Thus, while EPA does interpret CAA section
110(a)(2)(A) and (D) to require States to address intrastate and
interstate transport, EPA does not need to determine whether the State
has regulated emissions from the Bay Area for purposes of transport in
determining whether the Bay Area has attained the ozone standard. To
the extent that emissions from the Bay Area significantly contribute to
nonattainment or maintenance of the ozone standard in downwind areas,
the State will need to address those contributing emissions in the
context of an attainment demonstration for the downwind areas. Further,
as a result of our attainment finding, certain CAA requirements are
suspended but will once again be imposed should the Bay Area violate
the standard prior to redesignation. As described in our response to
comment 1, a redesignation to attainment requires that several
additional requirements be fulfilled. Finally, note that in today's
action, EPA is approving the RACT control measure commitments included
in the 2001 Plan.
---------------------------------------------------------------------------

\11\ Illinois State Chamber of Commerce v. USEPA, 775 F.2d 1141
(7th Cir. 1985) and State of Ohio v. Ruckelshaus, 776 F.2d 1333 (6th
Cir. 1985).
---------------------------------------------------------------------------

Comment 12: Under the Clean Data Policy, EPA must ensure that the
Bay Area submits the CCOS local attainment demonstration and regional
assessment of the influence of Bay Area transported air pollution.
(Seitz memo, page 7.)
Response: The Seitz memo provides that ``[d]eterminations made by
EPA in accordance with the [Clean Data Policy]
would not shield an area
from EPA action to require emission reductions from sources in the area
where there is evidence, such as photochemical grid modeling, showing
that emissions from sources in the area contribute significantly to
nonattainment in, or interfere with maintenance by, other nonattainment
areas. EPA has the authority under the Act (* * * section 110(a)(2)(A)
in the case of intrastate areas) to require emissions reductions if
necessary and appropriate to deal with transport situations.'' For many
years, the effort to address transport has been stymied by an inability
to define the transport problem due to lack of data. At the present
time, the Bay Area District, several downwind areas, and CARB are
engaged in an effort to refine modeling based on the CCOS. Once
complete, the modeling should provide a better understanding of the
degree to which air pollution generated in the Bay Area affects air
quality in downwind areas. The co-lead agencies and CARB have
acknowledged the need to address transport \12\ in addition to their
obligations to achieve the state 1-hr and new federal 8-hr ozone
standard. As a result, EPA fully expects that diligent efforts to
finalize CCOS modeling will continue and that those results will be
used to revise SIPs if appropriate.
---------------------------------------------------------------------------

\12\ See footnote 10.
---------------------------------------------------------------------------

Comment 13: Commenters expressed concern with the fate of the motor
vehicle emissions budgets submitted with the 2001 Plan,\13\ and the
conformity and emissions consequence if those budgets were not
approved. One commenter noted that the conformity budgets are an
important tool to limit transported emissions from the Bay Area and
argued that the budgets must remain in effect, if not be made more
stringent, to further mitigate transported emissions. Another commenter
urged that EPA maintain MVEBs consistent with attainment during periods
of normal economic activity until the area has qualified for redesignation.
---------------------------------------------------------------------------

\13\ On February 14, 2002, EPA found the motor vehicle emission
budgets in the 2001 Plan to be adequate for transportation
conformity purposes. EPA's letter to CARB conveying the adequacy
finding, along with responses to public comments regarding the
adequacy of the budgets can be found at
http://www.epa.gov/region09/air/sfbayoz/#0202.

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

Reponse: As noted above and discussed in section IV below, the co-
lead agencies and CARB have requested that EPA fully approve the motor
vehicle emissions budgets in the 2001 Plan. In this action, EPA is
finalizing its approval of those budgets.

C. Applicability of Clean Air Act Planning Requirements in Areas
Attaining the 1-Hour Ozone Standard

When we redesignated the Bay Area back to nonattainment in 1998, we
concluded that the area became subject to the provisions of subpart 1
rather than subpart 2 of part D of the Clean Air Act. 63 FR 37258 (July
10, 1998). CAA

[[Page 21723]]

subpart 1 at section 172(c) requires states to submit plans with
certain revisions that are tied to the attainment demonstration:
1. A demonstration that the plan will result in annual incremental
reductions in emissions of ozone precursors for the purposes of
ensuring attainment of the 1-hour ozone standard by 2006. This
provision is known as the reasonable further progress (RFP)
demonstration or plan, CAA section 172(c)(2);
2. A demonstration that the plan will result in attainment of the
1-hour ozone standard as expeditiously as practicable but not later
than September 20, 2006, CAA section 172(c)(1);
3. Contingency measures that will be undertaken if the area fails
to make reasonable further progress to attain the standard by the
applicable attainment date, CAA section 172(c)(9).
We believe that it is reasonable to interpret the CAA to not
require these provisions for ozone nonattainment areas that are
determined to be meeting the 1-hour ozone standard. We discuss our
reasoning in the Seitz memo, in the proposal for this action, and below
in our response to comments.\14\
---------------------------------------------------------------------------

\14\ We have also explained at length in other actions our
rationale for the reasonableness of this interpretation of the Act
and incorporate those explanations by reference here. See 61 FR
20458 (May 7, 1996) (Cleveland-Akron-Lorrain, Ohio); 60 FR 36723
(July 18, 1995) (Salt Lake and Davis Counties, Utah); 60 FR 37366
(July 20, 1995) and 61 FR 31832-33 (June 21, 1996) (Grand Rapids,
MI). Our interpretation has also been upheld by the U.S. Court of
Appeals for the Tenth Circuit in Sierra Club v. EPA, 99 F.3d 1551
(10th Cir. 1996).
---------------------------------------------------------------------------

We received comments on the proposed attainment determination
regarding the applicability of certain CAA planning requirements to the
Bay Area. The comments and our responses are summarized below.

D. EPA Responses to Comments Regarding Applicability of Clean Air Act
Requirements

1. Comments Regarding EPA's Clean Data Policy
Comment 14: Several commenters concurred with EPA's determination
that attainment demonstration, contingency measures and RFP
requirements do not apply. In contrast, a number of commenters contend
that EPA has no authority in this situation to eliminate SIP
requirements without a formal redesignation. Congress created a process
for determining whether a region should be treated differently as to
its requirements for planning and pollution controls if the region
monitored attainment. That process is called redesignation under
section 107(d)(3) of the Act. Redesignation actions involve a more
complete and robust State submittal, and have the additional security
of data collected during the period between the end of the attainment
demonstration period and EPA's action on redesignation. Under the Act
designation determines the applicable controls. There is nothing in the
CAA that explicitly states that upon only a finding of attainment, the
EPA can jettison SIP requirements. EPA says it is implicit, but that
would require splitting apart an explicit redesignation process.
Congress did not provide for that, and such an action would frustrate
the purposes of the Act and redesignation process.
Response: In today's action, we are finalizing our determination
that the Bay Area has attained the 1-hour ozone standard by its
statutory deadline of September 20, 2006 as demonstrated by three
consecutive years without a violation. As a result, we are also
finalizing our determination that certain Clean Air Act requirements
are not applicable to the Bay Area. The statutory basis for finding
that these planning requirements are not applicable is described in the
proposal and in the Clean Data Policy. See 68 FR 62041, 62044--62045;
Seitz memo at 2-5. Contrary to the commenter's assertion, we are not
eliminating any applicable requirements. Rather, we have interpreted
the requirements of sections 172(c)(1), 172(c)(2), and 172(c)(9) as not
being applicable once an area has attained the standard, as long as it
continues to do so. This is not a waiver of requirements that by their
terms clearly apply; it is a determination that certain requirements
are written so as to be operative only if the area is not attaining the
standard. Our interpretation is consistent both with the CAA's goal of
achieving and maintaining clean air, and with the concomitant policy
goal of avoiding costly and unnecessary emission reductions, and, as
mentioned above, has been upheld in the Tenth Circuit in Sierra Club v.
EPA, 99 F.3d 1551.
2. Comments Regarding the Applicability of EPA Policies to the Bay Area
Comment 15: EPA cites Sierra Club v. EPA, 99 F.3d 1551 (10th Cir.
1996) as authority for the waiver of CAA requirements. Several
commenters, however, contend that the case was incorrectly decided.
Further, commenters argue that the Bay Area is distinguishable from
Utah in several respects:

In contrast to the 0.123 ppm design value in the Bay Area, the
design value in Utah is 0.111 ppm, well below the 1-hour standard.
The emissions that achieved improved air quality were determined
by the court to be enforceable (unlike the Spare the Air program).
The Bay Area is recognized to be a nonattainment area for the 8-
hour ozone standard.
The Bay Area is an upwind district for transport purposes. The
court observed that air quality controls designed to surpass the
applicable ozone standard would be costly and unnecessary.

Response: In Sierra Club, the Tenth Circuit Court of Appeals upheld
the rationale in the Seitz memo as it applies to moderate ozone
nonattainment areas. There, pending completion of the redesignation
process, and based on three years of air quality data, EPA found that
two Utah Counties designated as nonattainment for ozone and classified
as moderate had attained the ozone NAAQS. As a result, EPA determined
that the CAA's moderate area requirements for attainment and RFP
demonstrations, and contingency measures (sections 182(b)(1)(A) and
172(c)(9)) were inapplicable. Finding that this determination was a
logical extension of EPA's original interpretation in the General
Preamble, the Court accorded deference to EPA's statutory
interpretation that once a moderate ozone nonattainment area has
attained the NAAQS, the moderate area CAA requirements for RFP,
attainment and contingency measures no longer apply. Id. at 1556.
Although the Bay Area is a non-classified nonattainment area, there is
no doubt that the analogous subpart 1 area provisions serve exactly the
same purpose as the provisions at issue in Sierra Club for moderate
areas. Thus the Court's reasoning in that case applies equally to the
Bay Area situation. Finally, EPA expects that fact patterns will vary
from one area to the next but we do not believe such variations
undermine the legal and policy bases for our interpretation of the
applicability of CAA requirements in areas that have attained the standard.
Comment 16: In a similarly situated area, EPA did not determine
attainment until it was able to redesignate the area to attainment and
thus its residents had assurance of maintenance in the form of a
maintenance plan. See EPA's St. Louis rulemaking, 68 FR 25418, May 12, 2003.
Response: CAA section 179(c) provides that ``[a]s expeditiously as
practicable after the applicable attainment date for any nonattainment
area, but not later than 6 months after such date, the Administrator
[of EPA]
shall determine, based on the area's air quality as of the
attainment date, whether the area attained the standard

[[Page 21724]]

by that date.'' See also CAA section 181(b)(2). Thus the statute
provides for findings of attainment based on air quality. The Clean
Data Policy provides for such findings prior to the attainment date
applicable to a nonattainment area. The policy indicates that EPA's
regional offices will conduct individual rulemakings concerning areas
that have three consecutive years of clean data demonstrating
attainment to make binding determinations that such areas have attained
the standard and need not submit SIP revisions addressing the CAA
requirements that are no longer applicable. Seitz memo, p. 6. Thus the
timing of attainment findings is authorized by the statute and dictated
by longstanding Agency policy.
Comment 17: EPA's Clean Data Policy only addresses subpart 2
authority. Since the Bay Area is designated nonattainment under subpart
1, it is not applicable to the Bay Area.
Response: EPA's Clean Data Policy specifically addresses the RFP
requirement in CAA section 172(c)(as defined in section (171(1)) and
the contingency measure requirement in section 172(c)(9). Both of these
statutory provisions apply to the 2001 Plan. With respect to the
attainment requirement, the policy addresses the attainment requirement
in section 182 which does not apply to the Bay Area plan. However, the
analysis of that requirement applies equally to the section 172(c)(1)
attainment requirement that does apply to the 2001 Plan. See Seitz
memo, pages 3-5.
Comment 18: EPA's action is not supported by EPA's adopted guidance
and policy documents. Specifically, John Calcagni's October 28, 1992
memo entitled ``State Implementation Plan (SIP) Actions Submitted in
Response to Clean Air Act (Act) Deadlines' (10/28/92 Calcagni memo) is
inconsistent with EPA proposed action on the specific issue of whether
the Bay Area's SIP requirements may be relaxed at this stage. ``States,
however, are statutorily obligated to meet SIP requirements that become
due any time before an area is actually redesignated to attainment. [.
. .]
Hence, if there is a failure of the State to meet a statutory
deadline [and, ergo, a SIP commitment to mid-course review]
for an
area, (before EPA has redesignated the area as attainment), a finding
of failure to submit should be made. This, in turn, begins the
sanctions process.'' 10/28/92 Calcagni memo, pages 3-4. This properly
describes how the Act works--areas must still meet all SIP commitments
after a determination of attainment, but before the redesignation is
complete. Otherwise there is a gap in SIP coverage that is irrational
and illegal. Logically, since an area must meet all applicable part D
SIP requirements, including section 172(c) elements, in order to gain
redesignation, section 107(d)(3)(E), these SIP requirements must be
present at the time of redesignation. It would make little sense to
excuse their inclusion now, then to require their adoption immediately
prior to redesignation. The SIP must be continually effective during
the period between determination of attainment and redesignation. EPA
cannot rewrite the Act and waive the otherwise applicable part D SIP
requirements during this ``gap'' period.
Response: The 10/28/92 Calcagni memo addresses the historical
situation in which certain states were planning to submit redesignation
requests prior to November 15, 1992 in an attempt to be exempted from
implementing mandatory CAA programs due to start in November of that
year (e.g., oxygenated fuels program, stage II vapor recovery rules,
etc.). The memo explains that while the approvability of a
redesignation request is based on requirements in place on the date of
the complete submittal, until the redesignation was finalized, states
would be statutorily bound to implement those programs. The types of
mandatory programs covered by the 10/28/92 Calcagni memo are
distinguishable from the planning requirements suspended by a finding
of attainment. In the Clean Data Policy, EPA has interpreted the
attainment demonstration, RFP, and contingency provisions of the Act to
be inapplicable to an area that is attaining the ozone standard as long
as the area continues to attain or is redesignated to attainment.\15\
This interpretation is based on the language and purpose of those
provisions. By contrast, the requirements for mandatory programs
addressed by the 10/28/92 Calcagni memo do not contain qualifying
language tied to attainment, such as ``for the purpose of ensuring
attainment of the applicable ambient air quality by the applicable
date.'' Compare, e.g., stage II vapor recovery (section 182(b)(3)) with
RFP (section 171(1)).
---------------------------------------------------------------------------

\15\ See also 9/4/92 Calcagni memo at p. 6: ``The requirements
for reasonable further progress, identification of certain emissions
increases, and other measures needed for attainment will not apply
for redesignations because they only have meaning for areas not
attaining the standard.''
---------------------------------------------------------------------------

Comment 19: The 9/4/92 Calcagni memo indicates that the Bay Area
retains its obligation to model attainment as required by the mid-
course review commitment as part of its redesignation showing: ``No
such supplemental modeling is required for O3 non-attainment areas
seeking redesignation'' (page 3, emphasis added). The term
``supplemental'' reflects EPA's requirement that ordinary modeling of
attainment, as required for all SIPS and which is contained in and was
deferred by California's ``enforceable commitment'' must still be
provided. EPA explains the purpose for supplemental modeling, which
applies with vigor to the initial modeling requirement as follows:
``Modeling may be necessary to determine the representativeness of the
monitored data. Id., page 3. If the data should be supported by
modeling for redesignation, it should similarly be supported by
modeling to support the determination of attainment, particularly where
the region's actual emissions inventory has been depressed by economic
forces and the District stands at the cusp of finalizing the modeling
it has postponed for over a decade. While commenters recognize that the
9/4/1992 Calcagni memo purports to address redesignation actions, they
assert that EPA itself cites this guidance as authority supporting
EPA's proposal to delete RFP, attainment demonstration and contingency
measure requirements from the Bay Area SIP. 68 FR 62044.
Response: EPA disagrees that its reference to the 9/4/92 Calcagni
memo somehow retroactively modifies the scope of that memo. The purpose
of our reference to the memo was to illustrate the consistency of our
position that RFP becomes unnecessary when an area attains the
standard. On page 6, the memo states that the ``requirements for
reasonable further progress * * * will not apply for redesignation
because they only have meaning for areas not attaining the standard.''
Emphasis added.
The 9/4/92 Calcagni memo states the following: ``The state must
show that the area is attaining the applicable NAAQS. There are two
components involved in making this demonstration which should be
considered interdependently. The first component relies upon ambient
air quality data. * * * The second component relies upon supplemental
EPA-approved air quality modeling. No such supplemental modeling is
required for O3 (ozone) nonattainment areas seeking redesignation * * *
'' (pages 2 and 3). This document explains that supplemental modeling
may be needed, for example, in sulfur dioxide and carbon monoxide
areas, where emissions are localized and a small number of monitors may
not be representative of air quality (page 3). In contrast, ozone is
not a localized

[[Page 21725]]

pollutant, and the Bay Area has an extensive monitoring network
consisting of 24 monitors operating each year from 2001 through 2003 as
described in EPA's proposal at 68 FR 62043. Consistent with the
language in the memo and the rationale in calling for modeling in some
cases for some pollutants and not in other cases, modeling would not be
required for redesignation of ozone areas. The memo should not be read
to create a requirement for modeling in an area that has been
determined to be attaining the ozone standard.
Finally, we reiterate that a finding of attainment does not delete
CAA requirements. The requirements for an attainment demonstration,
RFP, and contingency measures are suspended by the finding only as long
as the area continues to attain the standard or until the area is
formally redesignated.

E. Effects of the Attainment Finding on the Bay Area and of a Future
Violation of the 1-Hour Ozone NAAQS

Based on our finding that the Bay Area is attaining the 1-hour
ozone standard, we are finding that the State of California is no
longer required to submit an RFP plan, an attainment demonstration, or
contingency measures for the area.
The lack of a requirement to submit these SIP revisions will exist
only as long as the Bay Area continues to attain the 1-hour ozone
standard. If we subsequently determine that the area has violated the
1-hour ozone standard (prior to a redesignation to attainment), the
basis for the determination that the area need not make these SIP
revisions would no longer exist. Thus, a determination that an area
need not submit these SIP revisions amounts to no more than a
suspension of the requirements for so long as the area continues to
attain the standard.
Should the Bay Area begin to violate the 1-hour standard, we will
notify California that we have determined that the area is no longer
attaining the 1-hour standard. We also will provide notice to the
public in the Federal Register. Once we determine that the area is no
longer attaining the 1-hour ozone standard then California will be
required to address the pertinent SIP requirements within a reasonable
amount of time. We will set the deadline for the State to submit the
required SIP revisions at the time we make a nonattainment finding.
California must continue to operate an appropriate air quality
monitoring network, in accordance with 40 CFR part 58, to verify the
attainment status of the area. The air quality data relied upon to
determine that the area is attaining the ozone standard must be
consistent with 40 CFR part 58 requirements and other relevant EPA guidance.

III. Approval of Bay Area 2001 Plan

A. Approval of the 2001 Plan

In this action, EPA is finalizing its proposed approval of the
following elements of the 2001 Plan: The emissions inventories, RACM,
commitments to adopt and implement specific control measures, the motor
vehicle emissions budgets, and further study commitments. The
commitments to adopt and implement specific control measures \16\ are
listed in Tables 1, 2, and 3 below, and the commitments to conduct
further study of potential control measures, are listed in Table 4
below. We are approving a VOC motor vehicle emissions budget of 164.0
tons per day and a NO_X motor vehicle emissions budget of
270.3 tons per day, both for the year 2006.
---------------------------------------------------------------------------

\16\ We are approving the adoption and implementation dates of
the new measures and the total emissions reductions they are
cumulatively projected to achieve. We are approving all dates,
including those that have passed, in order to make the commitments
enforceable by EPA and citizens under the CAA.

Table 1.--New Stationary and Area Source Control Measures
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated VOC Estimated NOX
Adoption on Implementation reduction reduction
2001 SIP No. BAAQMD regulation No. Source category date date (tpd), 2000 to (tpd), 2000 to
2006 2006
--------------------------------------------------------------------------------------------------------------------------------------------------------
Measures To Be Adopted by the BAAQMD
--------------------------------------------------------------------------------------------------------------------------------------------------------
SS-11...................... 8-3........................ Improved Architectural \17\2001 2003-2004 2.9 ...............
Coatings Rule.
SS-12...................... 8-5........................ Improved Storage of 2002 2002 1.9 ...............
Organic Liquids Rule.
SS-13...................... 8-14 and 8-19.............. Surface Preparation and 2002 2003 0.3 ...............
Cleanup Standards for
Metal Parts Coating.
SS-14...................... 8-16....................... Aqueous Solvents.......... 2002 2003 3.0 ...............
SS-15...................... TBD........................ Petroleum Refinery Flare 2003 2004 \18\ TBD ...............
Monitoring.
SS-16...................... 8-18....................... Low-Emission Refinery 2003 2004 TBD ...............
Valves.
SS-17...................... 8-10....................... Improved Process Vessel 2003 2004 0.1 ...............
Depressurization Rule.
Total.................. ........................... .......................... ............... ............... 8.2 0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------

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\17\ For commitments in the plan that do not identify the month,
as in Tables 1, 2, and 3, or the day of the month, as in Table 4,
EPA interprets the deadline to be no later December 31st of the
noted year or the last day of the month, respectively.
\18\ At the time of plan adoption, the BAAQMD was not able to
determine the amount of emissions reductions that could be achieved
by adoption of rules implementing SS-15 and 16. The District
indicated that the reductions were to be determined (TBD).
Therefore, the emission reduction total for SS-11 through SS-17 does
not include reductions from these two measures.

Table 2.--New Mobile Source Control Measure
----------------------------------------------------------------------------------------------------------------
Estimated VOC Estimated NOX
Request \19\ Implementation reduction reduction
2001 SIP No. Source category date date (tpd), 2000 to (tpd), 2000 to
2006 2006
----------------------------------------------------------------------------------------------------------------
Measure To Be Requested by the BAAQMD
----------------------------------------------------------------------------------------------------------------
MS-1.................. Motor Vehicle 2002 2002-2003 4.0 ...............
Inspection and
Maintenance
Program--Liquid
Leak Inspection and
Improved
Evaporative System
Test.
Total............. .................... ............... ............... 4.0 0.0
----------------------------------------------------------------------------------------------------------------

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\19\ California Health & Safety Code (H&SC) 44003 gives
California Air Pollution Control Districts the authority to request
that the Department of Consumer Affairs (DCA) implement all or parts
of the motor vehicle inspection and maintenance program in their
areas. In the 2001 Plan, the BAAQMD, which was subject only to the
basic smog check program, committed to opting into the Liquid Leak
Inspection and Improved Evaporative System Test elements of enhanced
smog check. In 2002, State law was amended (AB 2637--Cardoza) to
mandate expeditious DCA implementation of full enhanced inspection
and maintenance in the Bay Area, which delivers substantially
greater emissions reductions than the MS-1 commitment in the 2001 Plan.

[[Page 21726]]

Table 3.--New Transportation Control Measures
----------------------------------------------------------------------------------------------------------------
Estimated VOC Estimated NOX
2001 SIP No. Control measure Description and Schedule reduction (tpd), reduction (tpd),
description implementation steps 2000 to 2006 2000 to 2006
----------------------------------------------------------------------------------------------------------------
TCM A........... Regional Program includes FY 2003. See Below...... See Below.
Express Bus purchase of Complete once
Program. approximately 90 low $40 million in
emission buses to funding
operate new of pursuant to
enhanced express bus Government Code
services. Buses will Section
meet all applicable 14556.40 is
CARB standards, and approved by the
will include California
particulate traps or Transportation
filters. MTC will Commission and
approve $40 million obligated by
in funding to bus operators.
various transit
operators for bus
acquisition. Program
assumes transit
operators can
sustain service for
a five year period.
Actual emission
reductions will be
determined based on
routes selected by
MTC.
TCM B........... Bicycle/ Fund high priority FY 2004-2006. See Below...... See Below.
Pedestrian projects in Complete once
Program. countywide plans $15 million in
consistent with TDA TDA Article 3
funding is allocated by
availability. MTC MTC.
would fund only
projects that are
exempt from CEQA,
have no significant
environmental
impacts, or
adequately mitigate
any adverse
environmental
impacts. Actual
emission reductions
will be determined
based on the
projects funded.
TCM C........... Transportation Program provides FY 2004-2006. See Below...... See Below.
for Livable planning grants, Complete once
Communities technical $27 million in
(TLC). assistance, and TLC grant
capital grants to funding is
help cities and approved by MTC.
nonprofit agencies
link transportation
projects with
community plans. MTC
would fund only
projects that are
exempt from CEQA,
have no significant
environmental
impacts, or
adequately mitigate
any adverse
environmental
impacts. Actual
emission reductions
will be determined
based on the
projects funded.
TCM D........... Additional Operation of 55 land FY 2001. See Below...... See Below.
Freeway Service miles of new roving Complete by
Patrol. tow truck patrols maintaining
beyond routes which increase in FSP
existed in 2000. TCM mileage through
commitment would be December 2006.
satisfied by any
combination for
routes adding 55
miles. Tow trucks
used in service are
new vehicles meeting
all applicable CARB
standards.
TCM E........... Transit Access Take credit for BART--SFO See Below...... See Below.
to Airports. emission reductions service to
from air passengers start in FY
who use BART to SFO, 2003. Complete
as these reductions by maintaining
are not included in service through
the Baseline. 2006.
Total....... ................ ..................... ................ 0.5............ 0.7
----------------------------------------------------------------------------------------------------------------

Table 4.--Further Study Measures
------------------------------------------------------------------------
Timeline for
2001 SIP No. Measure completion
------------------------------------------------------------------------
FS-1........................ Study Potential for April 2002.
Accelerating
Particulate Trap
Retrofit Program
for Urban Buses.
FS-2........................ Update MTC High December 2002.
Occupancy Vehicle
Lane Master Plan.
FS-3........................ Study Air Quality April 2003.
Effects of High
Speed Freeway
Travel.
FS-4........................ Evaluate Parking July 2003.
Management
Incentive Program.
FS-5........................ Enhanced Housing December 2003.
Incentive Program.
FS-6........................ Further Smog Check December 2003.
Program
Improvements.
FS-7........................ Parking Cash Out December 2003.
Pilot Program.
FS-8........................ Refinery Pressure December 2003.
Vessels, Blowdown
Systems, and Flares.
FS-9........................ Refinery Wastewater December 2003.
Systems.
FS-10....................... Organic Liquid December 2002.
Storage Tanks.
FS-11....................... Marine Tank Vessel December 2003.
Activities.
------------------------------------------------------------------------

B. EPA's Responses to Comments on the Proposed Approval of the 2001 Plan

EPA's proposed action provided a 30-day public comment period.
During this period, we received comments from six parties. We are
responding only to comments that pertain to the plan elements on which
we are taking final action.
1. Comments on the Proposed Approval of the Emissions Inventory
Comment 20: The 2001 Plan's emissions inventory is inaccurate and
may drastically underestimate precursor emissions. It contains errors
that should have been known and could have been corrected at the time
of submittal. It is evident that better, more current and accurate data
were known to the District and available for incorporation into the
2001 Plan.

[[Page 21727]]

Response: In order to be approvable, CAA section 172(c)(3) requires
that the emissions inventory must be comprehensive, accurate, and
current. We proposed to approve the emissions inventories in the 2001
Plan because, when evaluated in the context of the time in which they
were developed, the inventories accurately incorporated the best
available data. Subsequent to the submittal of the 2001 Plan, the
District, in fulfillment of its 2001 Plan commitment to undertake
several further study measures, collaborated with representatives of
community groups and industry to study emissions and potential controls
from certain sources of air pollution. Some of these studies revealed
that there are flaws in the inventory. This was not particularly
surprising--inventory data is constantly being reevaluated and
refined--and, in general, the quality of technical data and analyses
techniques will continually improve.
Once a plan has been adopted, EPA does not generally require plan
elements such as emissions inventories and attainment demonstrations to
be revisited and updated in response to new information.\20\ There will
always be situations when new, better information is on the horizon.
Evaluating a plan element based on information that was not available
at the time of submittal would create a moving target that would be
impossible to meet. We do not, therefore, believe it is appropriate to
disapprove the inventories based on data that was developed subsequent
to submittal of the 2001 Plan.
---------------------------------------------------------------------------

\20\ The U.S. Court of Appeals for the District of Columbia
Circuit recently addressed a similar issue and affirmed EPA's
position. Sierra Club v. EPA, 356 F.3d 296 (DC Cir. 2004).
---------------------------------------------------------------------------

The commenter fails to provide a concrete example of substantiated
data that was available at the time of Plan adoption that is not
included in the inventory. The version of EMFAC the commenter notes
would have provided improved accuracy for motor vehicle emissions was
not yet approved and available for use by the co-lead agencies when the
2001 Plan was being developed. See also section III.4. of the RTC.
Comment 21: EPA must specify a much more broad series of emissions
inventory corrections in the 2004 SIP than those indicated in the
proposed approval of the 2001 Plan. A commenter notes that reductions
from Smog Check II, which was approved by the California legislature
for the Bay Area in September 2002, need to be factored into the
inventory. In addition, the commenter stated that, according to an
article in the Los Angeles Times published on January 16, 2003, CARB
has discovered errors in the South Coast Air Basin's emissions
inventory and, because the Bay Area relies on many of the same CARB-
derived emissions factors, those errors are therefore present in the
Bay Area's inventory and must be corrected in the next inventory.
Response: We agree with the general point made by the commenter:
inventories must be comprehensive, accurate, and current. In the notice
of proposed rulemaking, we stated that if the findings in the draft
technical assessment documents \21\ regarding the inventory numbers are
confirmed, the inventory submitted with the subsequent plan must
reflect the new data. In addition, we noted that the inventories must
be modified to incorporate data generated by the most recent model
developed by CARB and accepted by EPA to determine emissions from motor
vehicles. We did not intend to imply that those items can be considered
an exhaustive list of future corrections because there is no way to
predict the state of knowledge that will exist when the next inventory
is submitted to EPA. Other refinements to the numbers that are made
before the next inventory is submitted, including (but not limited to)
any additional corrections and any adjustments to reflect the adoption
of new regulations, must of course be included.
---------------------------------------------------------------------------

\21\ The District has prepared technical assessment documents
(TADs) that describe its findings with respect to further study
measures. The TADs can be viewed online at
http://www.baaqmd.gov/enf/RefineryFSM/refinery.asp.

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

EPA finds the emissions inventory in the 2001 Plan to be very
detailed. The emission categories are well documented, comprehensive,
accurate, and current. The emissions inventory was prepared following
the procedures in EPA guidance,\22\ using either EPA emission factors
found in AP-42 or other appropriate emission factors combined with Bay
Area specific activity data to estimate emissions from each type of
emissions source. This approach is the customary method used for
preparing emissions inventories and the one required by EPA guidance.
Emission inventories are not static but are constantly updated and
renewed as new information, techniques, and studies are made available.
EPA finds the emissions inventory in the SIP to be sufficiently detailed.
---------------------------------------------------------------------------

\22\ See Emissions Inventory Guidance for Implementation of
Ozone and Particulate Matter National Ambient Air Quality Standards
(NAAQS) and Regional Haze Regulations, EPA-454/R-99-006, April 1999,
available online at
http://www.epa.gov/ttn/chief/ei_guide.html.

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

While we acknowledge that various inventory enhancements and
corrections (including those to which the commenters allude) need to be
reflected in future plan and budget updates, we believe that such
inaccuracies, taken together, do not rise to such a level of importance
that they justify our rejection of the current inventories and budgets
as insufficient to provide an adequate framework for air planning.
2. Comments on the Proposed Approval of RACM
Comment 22: Commenters contend that the 2001 Plan fails to include
many measures that should be considered RACM for the Bay Area. Further,
they allege that EPA has not provided sufficient support for its
proposed determination that the RACM analysis is adequate.
Response: CAA section 172(c))(1) requires nonattainment area plans
to provide for the expeditious implementation of all reasonably
available control measures. EPA's principle guidance interpreting the
Act's RACM requirement is found in the General Preamble. See also
``Guidance on the Reasonably Available Control Measures (RACM)
Requirement and Attainment Demonstration Submissions for Ozone
Nonattainment Areas,'' from John S. Seitz, Director, Office of Air
Quality Planning and Standards, to EPA Regional Air Division Directors,
November 30, 1999. Under our interpretation, a state does not need to
adopt measures that would not advance the attainment date for the
applicable standard.\23\ The Bay Area's and the State's previously
enacted control measures, along with the measures committed to in the
2001 Plan that have already been adopted and implemented, have resulted
in improved air quality sufficient to qualify the Bay Area for a
finding of attainment at the end of the 2003 ozone season. We therefore
conclude that those controls reflect RACM and are approving the plan as
meeting the RACM requirement of CAA section 172(c)(1).
---------------------------------------------------------------------------

\23\ EPA's interpretation of the section 172(c)(1) RACM
requirement has been upheld by the District of Columbia and Fifth
Circuit Courts of Appeal in, respectively, BCCA Appeal Group et al.
v. EPA, 348 F.3d 93 (5th Cir. 2003) and Sierra Club v. EPA, 294 F.3d
155 (DC Cir. 2002).
---------------------------------------------------------------------------

3. Comments on the Proposed Approval of the Control Measure Commitments
Comment 23: The TCMs in the 2001 Plan are not approvable; they are
impermissibly vague in their quantification of emissions reductions and
are unenforceable. The 2001 Plan

[[Page 21728]]

lumps the TCMs for the purposes of calculating emissions reductions.
This complicates the legal enforceability of the measures, which
renders the SIP and the TCMs unapprovable. Specific emissions
reductions should be assigned to the TCMs.
Response: Since the emission reductions associated with most TCMs
(e.g. demand management TCMs) are interdependent, it is not unusual for
the impacts of TCMs to be assessed on a cumulative basis. This is
particularly the case when, as here, the total emission reductions from
the measures are small. The 2001 Plan provides an enforceable
commitment to implement the TCMs to reduce VOC emissions by 0.5 tpd and
NO_X emissions by 0.7 tpd between 2000 and 2006. The
effectiveness of the TCMs in meeting this commitment will be documented
in future conformity determinations. In order to show timely
implementation as required in future conformity analyses (40 CFR
93.113) MTC must document that the TCMs are being implemented on
schedule. Because the enforceable commitment is to achieve the
cumulative emissions reductions by 2006, MTC must also document those
reductions. MTC should also document the extent to which the
implementation of the individual TCMs meets the identified levels. For
example, for TCM A, MTC should identify the number of low-emission
buses that were purchased.
4. Comments on the Downwind Transport of Air Pollution
Comment 24: CAA section 107(a) directs states to address intrastate
transport ``by submitting an implementation plan for such state which
will specify the manner in which the national primary and secondary
ambient air quality standards will be achieved and maintained within
each air quality control region in such State.'' The currently approved
statewide SIP, the 1994 SIP, does not adequately address the topic.
Given the universal acceptance of the fact that the Bay Area is an
upwind contributor of air pollution to downwind areas that violate the
ozone NAAQS, EPA may not lawfully approve the Bay Area SIP until it
specifically addresses air pollution transport sufficiently to
eliminate significant consequences to downwind Districts. The Bay Area
SIP is not adequate unless and until it is part of a statewide SIP that
comprehensively addresses air pollution transport.
Response: CAA section 107(a) simply affirms that each state has the
primary responsibility for assuring the air quality within its borders
and for determining how this goal is to be achieved. The commenter
attempts to improperly transform this straightforward statutory
provision into one that establishes a SIP requirement concerning
intrastate transport. The nonattainment area plan requirements for the
Bay Area are contained in sections 110(a) and 172(c). While EPA does
interpret CAA section 110(a)(2)(A) to require states to address
intrastate transport, they have significant latitude in how they choose
to do so. Thus EPA, in acting on the 2001 Plan, does not need to
determine whether the State has regulated emissions from the Bay Area
for purposes of transport. To the extent that emissions from the Bay
Area significantly contribute to nonattainment or maintenance of the
ozone standard in downwind areas, however, the State will need to
address those contributing emissions in the context of an attainment
demonstration for the downwind areas.
5. Comments on Additional Plan Elements
Comment 25: The Clean Air Act requires that plans provide an
affirmative demonstration of their authority and ability to implement
the proposed plan. The District has failed to include such a
demonstration in the SIP.
Response: In BCCA Appeal Group, the U.S. Court of Appeals for the
Fifth Circuit agreed with the holdings of other federal circuit courts
that the determination of what constitutes ``necessary assurances''
should be left to the discretion of EPA. The Fifth Circuit found that
EPA was entitled to rely on a certification of legal authority to
implement an ozone plan for Houston-Galveston by the State of Texas'
legal counsel. Here, the State in its ``Completeness Checklist for SIP
Revision: 2001 Bay Area Ozone Plan,'' (Checklist), section 2.1(c), has
certified that it, as well as the District and MTC, have the necessary
legal authority under State law to adopt and implement the plan. EPA
has routinely accepted such checklists as evidence of the requisite
legal authority and the Fifth Circuit ruling validates that Agency decision.
6. Comments on the Impact of the State Law and Court Orders
Comment 26: The District committed several violations of State law
during its hasty plan promulgation process, and is currently subject to
an order of the San Francisco County Superior Court to correct those
violations. Statement of Decision and Order Thereon (Order), filed July
24, 2003, Communities for a Better Environment, et al. v. Bay Area Air
Quality Management District, et al., San Francisco County Superior
Court Case No. 323849.\24\ Until the District cures these violations,
it is plainly without authority to implement the SIP or provide the
assurances required by the Act. This provides an independent basis for
EPA's disapproval of the Plan's adequacy. CAA section 110(a)(2)(E) and
40 CFR part 51, Appendix V, section 2.1(c) and (e).
---------------------------------------------------------------------------

\24\ The Order of the San Francisco Superior Court has been
appealed. Communities for a Better Environment et al. v. Bay Area
Air Quality Management District et al., First Appellate District
Case Nos. A103991, A104179. EPA is aware that the parties have
recently reached a settlement of these appeals that, if approved by
the State courts, would result in the vacatur of the July 24, 2003
Order. However, because that vacatur has not yet occurred, EPA
responds in this action to the public comments concerning the July
24, 2003 Order.
---------------------------------------------------------------------------

Based on the California Public Records Act, Government Code section
6250, et seq., the petitioners in the above case claimed that the
District improperly destroyed files necessary to enforce the 2001 Plan
and the District's rules. The parties settled the issue through a
stipulated agreement and an order of the Court under which the District
agreed to halt its practice of destroying enforcement records without
notice and to institute practices assuring permanent preservation of
District notices of violation and other enforcement file materials.
However, some enforcement records were destroyed prior to the order.
Because of the destruction of these documents, it is certain that at
least some repeat violators will not be subject to the proper form of
enforcement because records of their prior violations are unavailable.
The District is therefore unable to provide assurance to EPA that it
has the resources to implement the Plan and enforce its rules.
Response: The Court Order cited by the commenter requires the
District to comply with California Government Code section 60203 prior
to any destruction of certain public records. That section allows the
destruction of such records if they are ``* * * photographed,
microphotographed, reproduced by electronically recorded video images
on magnetic surfaces, recorded in the electronic data processing
system, recorded on optical disk, reproduced on film or any other
medium that is a trusted system and that does not permit additions,
deletions, or changes to the original document. * * *'' Thus,
reproductions of these documents must be made before the originals can
be destroyed.
The commenter's claim that the alleged destruction of certain of
the District's enforcement files has resulted

[[Page 21729]]

in the inability of the District to enforce its rules or implement the
Bay Area plan is unsubstantiated. Assuming, arguendo, that the
information in any files that may have been destroyed is necessary to
the ongoing efforts of the District to implement the plan and enforce
its rules, there are clearly numerous methods of preserving and
recording data short of retaining reproductions of original documents.
More importantly, even if some repeat violators are not treated as such
as a result of missing records, that circumstance would not be
sufficient to impair an overall enforcement program. Nor would it call
into question the District's ability to otherwise implement its plan.
The commenter has provided a conclusion but no support for it.
Comment 27: The District violated the California Environmental
Quality Act (CEQA) by adopting the Plan without first preparing an
adequate environmental impact report. The Court ruled that the
District's environmental review documentation of the 2001 Plan was
vague and that the District's actions did not accord Petitioners an
adequate opportunity to comment on whether the low VOC solvents
required by the adopted rules to implement SS-13 and SS-14 could have
adverse impacts. The Court ordered the District to prepare an EIR for
the adoption of the rules to implement SS-13 and SS-14. Thus EPA's
action on the adequacy of the plan is premature and inappropriate under
the Act and EPA's regulations. The Court's CEQA ruling clearly reflects
the State Court's conclusion that the District failed to follow all the
procedural requirements of the State's laws in conducting and
completing the adoption and issuance of the plan, as required under 40
CFR Part 51, App V, 2.1(e).
Response: The commenter's contention has no merit. In this action,
EPA is approving two control measure commitments in the plan known as
SS-13 and SS-14. The Court's order on the CEQA claim does not, however,
implicate these two control measure commitments. In addition to
declining to set aside the District's adoption of the 2001 plan, the
Court noted that, after its adoption of the plan, the District adopted
rules to implement SS-13 and SS-14. The Court then ordered the District
to prepare an EIR for the adoption of these rules. EPA in today's
action is not approving the rules that are the actual subject of the
Court's order. Therefore the CEQA defect addressed by Court's order is
not relevant to EPA's action here.
Comment 28: The State Court has held that the 2001 Plan violates
section 40233 of the California Health and Safety Code and ordered that
the co-lead agencies develop a plan for public comment that
accomplishes the necessary 26 tons of VOC emissions reductions no later
than 60 days from the notice of entry of the order. Section
110(a)(2)(E) of the Clean Air Act prohibits approval of a state clean
air plan if it violates state clean air laws.
Response: In addition to withdrawing the attainment assessment in
the 2001 plan, the State has withdrawn the associated commitment by the
co-lead agencies and CARB to adopt and submit measures to achieve 26
tpd of VOC emission reductions. As a result of our final attainment
finding for the area and the resulting suspension of the CAA's
attainment demonstration requirement for the Bay Area, these plan
elements are not currently required. Therefore the State Court's
holding that the 2001 plan violates section 40233 of the California
Health and Safety Code is not relevant.
Comment 29: The CAA and EPA's regulations require assurances that
the 2001 Plan and all of its elements were properly adopted. Several
defects in the State's process and/or legal authority jeopardize the
Plan and its implementation. CEQA was intended to be an environmental
full disclosure statute and the EIR process necessarily requires
consideration of alternatives and adoption of feasible alternatives or
mitigation measures that substantially lessen or avoid adverse effects.
The EIR process also promotes public involvement in agency decision
making. The San Francisco Superior Court's finding that additional
environmental disclosure and process is required is damning evidence of
the flaws in the public review and involvement processes leading to
plan adoption.
Response: EPA's completeness criteria require evidence that the
State has the necessary legal authority under state law to adopt and
implement the plan and evidence that the State followed all of the
procedural requirements of its laws and constitution in conducting and
completing the adoption/issuance of the plan. 40 CFR part 51, Appendix
V, section 2.1(c) and (e). EPA regulations require public notice and
hearings. 40 CFR 51.102. The commenter appears to believe that these
requirements compel the State to comply with every aspect of all of its
laws and regulations. That is not the case. The State need only
demonstrate that it has the legal authority to adopt the plan and that
it has followed all of the requirements in the State law and
constitution that are related to adoption of the plan. The State has
provided evidence that it has met these requirements. See Checklist,
section 2.1(b) and (c). Contrary to the commenters's assertions, the
State Court Order actually supports this conclusion: ``The Court finds
no violation of the Clean Air Act or other applicable authority
occurred with respect to the Air Resources Board's adoption and
transmittal of the 2001 [plan]
to the Environmental Protection
Agency.'' Order, p. 6.
7. Comments on the Interim Final Determination
Based on our proposed approval of the 2001 Plan (68 FR 42174), we
made an interim final determination that California had corrected the
deficiencies for which a sanctions clock began on October 22, 2001 (68
FR 42172, July 16, 2003). The comments we received and our responses
are included in the RTC document.

IV. Effect of the Attainment Determination and 2001 Plan Action on
Transportation Conformity

CAA section 176(c) requires that federally funded or approved
transportation actions in nonattainment areas ``conform'' to the area's
air quality plans. Conformity ensures that federal transportation
actions do not worsen an area's air quality or interfere with its
meeting the air quality standards.
One of the primary tests for conformity is to show that
transportation plans and improvement programs will not cause motor
vehicle emissions higher than the levels needed to make progress toward
and to meet the air quality standards. These motor vehicle emissions
levels are set in an area's attainment, maintenance and/or RFP
demonstrations and are known as the ``transportation conformity budgets.''
EPA and the Federal Highway Administration have developed guidance
that indicates that budgets must be deemed adequate or approved before
they can be used.\25\ As stated previously, we found the motor vehicle
emissions budgets in the 2001 Plan

[[Page 21730]]

adequate on February 14, 2002. 67 FR 8017. We are approving those
budgets in this action.\26\ Note that typically, under 40 CFR
93.118(e)(1), the motor vehicle emission budget, once approved, cannot
be replaced by another unless the new budget comes from an approved
SIP. However, as discussed in our proposed approval of the budgets in
the 2001 Plan (68 FR 42174, 42181), EPA is approving the vehicle
emission budgets in that plan only until new budgets developed with
EMFAC2002 are submitted and found adequate for conformity purposes. See
67 FR 1464 (January 11, 2002). Budgets developed with EMFAC2002 will be
more accurate than those developed using EMFAC2000.\27\ Therefore, by
limiting the duration of our approval of the EMFAC2000-derived budgets
to the point when the updated budgets are found adequate, the updated
budgets may be in place within a few months of their submission. For
further discussion of the rationale for, and the effect of, this
limitation, please see our promulgation of a limitation on motor
vehicle emission budgets associated with various California SIPs, at 67
FR 69139 (November 15, 2002).
---------------------------------------------------------------------------

\25\ See EPA memorandum ``Conformity Guidance on Implementation
of March 2, 1999 Conformity Court Decision'' (EPA420-F-99-025, May
14, 1999); available online at http://www.epa.gov/otaq/transp/
conform/policy.htm#030299. This guidance was developed in response
to a 1999 decision of the U.S. Court of Appeals for the District of
Columbia Circuit that requires EPA to make certain changes in its
conformity regulations (40 CFR 93.100 et. seq) to provide that
budgets must be deemed adequate or approved, rather than simply
submitted, in order to be used in conformity determinations.
Environmental Defense Fund v. EPA, et al., 167 F. 3d 641 (DC Cir.
1999). As a result, EPA interprets 40 CFR 93.109(c)(5)(ii) to apply
to budgets that have been deemed adequate or have been approved, not
merely submitted. EPA's current proposal to modify the conformity
regulations (68 FR 62690, 62724, November 5, 2003) confirms this
interpretation of the conformity rule.
\26\ In our proposed attainment finding we noted that ``[i]f the
attainment demonstration is withdrawn . . . the continued
applicability of the budgets could be affected.'' 68 FR 62045. The
State did not, however, withdraw the budgets in the 2001 Plan when
it withdrew the attainment assessment but, in fact, specifically
requested that EPA approve them. See 1/30/04 Witherspoon letter.
Further, the State and District continue to implement the control
measures that brought the area into attainment. Thus the final
attainment finding has no effect on those budgets.
\27\ Because EMFAC2000 has certain technical limitations, EPA
approved it only for use in development of ozone motor vehicle
emissions factors for SIP development and future conformity
determinations in the San Francisco Bay Area. It was superior to
prior models available for use in the area and the improved
EMFAC2002 was not yet available. 68 FR 42181.
---------------------------------------------------------------------------

We believe that the State and co-lead agencies should move promptly
to develop and submit a maintenance plan. The maintenance plan
submittal should include, in addition to the maintenance year budgets,
replacement 2006 budgets that are revised based on the latest approved
version of EMFAC. Should EPA determine that the Bay Area is again
subject to the 1-hour ozone attainment demonstration requirement as a
result of a new violation of the 1-hour standard prior to
redesignation, the State should submit a replacement 2006 budget with
the attainment demonstration. Again, this replacement budget must use
the latest approved version of EMFAC.

V. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting federal requirements and imposes
no additional requirements beyond those imposed by state law. It also
finds that the San Francisco Bay Area has attained a previously
established national ambient air quality standard based on an objective
review of measured air quality data. Finally, it determines that
certain Clean Air Act requirements no longer apply to the San Francisco
Bay Area because of the attainment finding. Accordingly, the
Administrator certifies that this rule will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule
approves pre-existing requirements under state law and does not impose
any additional enforceable duty beyond that required by state law, it
does not contain any unfunded mandate or significantly or uniquely
affect small governments, as described in the Unfunded Mandates Reform
Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175
(65 FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132
(64 FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by June 21, 2004. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements.

[[Page 21731]]

Dated: April 1, 2004.
Laura Yoshii,
Acting Regional Administrator, Region IX.

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

PART 52--[AMENDED]

? 1. The authority citation for Part 52 continues to read as follows:

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

Subpart F--California

? 2. Section 52.220 is amended by adding paragraph (c)(323) to read as
follows:

Sec. 52.220 Identification of plan.

* * * * *
(c) * * *
(323) The following plan was submitted on November 30, 2001 by the
Governor's designee.
(i) Incorporation by Reference
(A) Bay Area Air Quality Management District
(1) San Francisco Bay Area Ozone Attainment Plan for the 1-hour
National Ozone Standard (Section 3: Emission Inventory; Section 5:
Control Strategy, except subsection ``Demonstrating Reasonable Further
Progress''; Appendix B: Control Measure Descriptions; Appendix C:
Reasonably Available Control Measure Analysis; Appendix E: Further
Study Measure Descriptions;) adopted on October 24, 2001.

[FR Doc. 04-9142 Filed 4-21-04; 8:45 am]
BILLING CODE 6560-50-P

Notices For
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2001
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Determination of Attainment of the 1-Hour Ozone Standard; Determination Regarding Applicability of Certain Clean Air Act Requirements; Approval and Promulgation of Ozone Attainment Plan; San Francisco Bay Area, CA

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