[Federal Register Volume 64, Number 7 (Tuesday, January 12, 1999)]
[Proposed Rules]
[Pages 1770-1780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-666]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA-189-0128; FRL-6217-8]
Approval and Promulgation of State Implementation Plans;
California--South Coast
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve in part and disapprove in part a
state implementation plan (SIP) revision submitted by the State of
California to provide for attainment of the ozone national ambient air
quality standard (NAAQS) in the Los Angeles-South Coast Air Basin Area
(South Coast). EPA is proposing the approval and disapproval of the SIP
revisions under provisions of the Clean Air Act (CAA) regarding EPA
action on SIP submittals, SIPs for national primary and secondary
ambient air quality standards, and plan requirements for nonattainment
areas.
DATES: Written comments must be received by February 11, 1999.
ADDRESSES: Comments should be sent to Dave Jesson, Air Planning Office
(AIR-2), Environmental Protection Agency, Region IX, 75 Hawthorne
Street, San Francisco, CA 94105-3901.
The rulemaking docket for this notice is available for public
inspection at EPA's Region IX office during normal
[[Page 1771]]
business hours. A reasonable fee may be charged for copying parts of
the docket.
Copies of the SIP materials are also available for inspection at
the following locations:
California Air Resources Board, 2020 L Street, Sacramento, California
South Coast Air Quality Management District, 21865 E. Copley Drive,
Diamond Bar, California
FOR FURTHER INFORMATION CONTACT: Dave Jesson at (415) 744-1288.
SUPPLEMENTARY INFORMATION:
I. Background
A. Summary
1. Introduction
This proposed action relates to a 1997 revision to the 1994 ozone
SIP for the South Coast.1 The South Coast Air Quality
Management District (SCAQMD) adopted the revision within weeks of EPA's
approval of the 1994 ozone SIP. The 1997 proposed revision to the ozone
SIP was not federally required, but was adopted to address, in a
comprehensive and consistent fashion, federal and state requirements
for particulate matter, carbon monoxide, and nitrogen dioxide, and
state requirements for an ozone plan update. In order to understand the
basis for EPA's proposed disapproval of the 1997 revision, it is
necessary to understand the 1994 ozone SIP, several aspects of which
are unique. An overview of the 1994 ozone SIP for the South Coast
appears below, followed by a description of the 1997 proposed revision.
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\1\ For a description of the boundaries of the Los Angeles-South
Coast Air Basin, see 40 CFR 81.305. The nonattainment area includes
all of Orange County and the more populated portions of Los Angeles,
San Bernardino, and Riverside Counties.
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2. 1994 South Coast Ozone SIP
On November 15, 1994, the State of California submitted the 1994
ozone plan for the South. The plan was subsequently amended and we
approved the plan on September 25, 1996, as the first fully approved
and federally enforceable ozone SIP for the South Coast.
The 1994 plan was built on 4 decades of State and local leadership
in researching, developing, adopting, and implementing new air
pollution control strategies. By that date, the California and South
Coast air quality agencies and industry had a world-wide reputation for
pushing technological progress to achieve the world's cleanest cars,
fuels, consumer products, industrial controls, and paints and coatings.
As a direct result of this extraordinary effort by elected
officials, governmental agencies, industry, and the residents of
Southern California, air pollution levels had been dramatically
reduced: the number of days per year with dirty air and the peak
concentrations had dropped by more than 60 percent, and severe episode
days (where health warnings are issued to all residents and pollution-
generating activities must be curtailed) had been completely
eliminated. This accomplishment is more remarkable in view of Southern
California's extraordinary growth during these years and the continued
dependence of the area on private vehicle use.
Despite the State and local achievements, however, Southern
California in 1994 continued to have by far the dirtiest air in the
country. For example, the South Coast in 1994 recorded 1-hour levels at
or above 0.120 parts per million (ppm) for ozone, or smog, on 107 days
in the Los Angeles-Long Beach area and 123 days in the Riverside-San
Bernardino area, while other major metropolitan areas had values at or
above 0.120 ppm on far fewer days: Houston 32, New York 9, Detroit 6,
Philadelphia 5, Atlanta 4, and Chicago 2.2 Similarly, the
South Coast has recorded particulate matter or (soot) and carbon
monoxide pollution levels greater than other urban areas in the U.S.,
and was the only area of the country in violation of the nitrogen
dioxide NAAQS under the 1990 CAA Amendments.
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\2\ The national ambient air quality standard (NAAQS) for ozone
is 0.12 ppm averaged over a 1-hour period.
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Recognizing that all residents have a right to clean air and that
clean air investments have a high benefit-cost ratio,3 the
California Air Resources Board (CARB) and SCAQMD cooperated in the
adoption of a 1994 plan laying out the strategies that would bring
clean air by the federal deadline of 2010.
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\3\ The Socioeconomic Assessment Report for the 1994 Air Quality
Management Plan (SCAQMD, August 1994) calculated total benefits of
clean air achieved under the plan to exceed total plan costs by
between $0.9 and $1.5 billion per year. This calculation applies to
ozone, PM, and visibility benefits, but does not include
unquantifiable benefits such as reduction in chronic illness,
reduction in lung function in human beings, reduced damage to
livestock and plant life, and erosion of building materials.
Furthermore, 75% of the costs of the plan are associated with
measure TCM-04 (transportation improvements).
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The State committed to implement 9 new mobile source control
measures, an enhanced motor vehicle inspection and maintenance (or Smog
Check) program, and incremental regulatory reductions in the smog-
forming constituents of consumer products and pesticides, and to
develop advanced, long-term controls for onroad and nonroad vehicles
and engines.
The Governing Board of the SCAQMD and the Southern California
Association of Governments (SCAG) committed to implement 60 new
specific controls, and SCAQMD also bound itself to achieve additional
emission reductions in the future from advanced technology measures.
Together these State and local measures would reduce the 1990
emissions level of 2878 tons per day (tpd) to 1032 tpd. Modeling
analyses by the SCAQMD estimated, however, that the smog problem could
not be solved without an additional 156 tpd reduction in pollutants.
The State determined that we should achieve these remaining reductions
by promulgating national mobile source controls in accordance with our
new authorities under the 1990 CAA Amendments.
We concluded that California had no authority under the U.S.
Constitution or the Clean Air Act to require us to contribute
particular measures and emissions reductions to the SIP for the South
Coast. We appreciated, however, the significant level of commitment by
the State and SCAQMD reflected in the 1994 ozone plan and we wished to
do our share in contributing further mobile source controls consistent
with our national authorities and responsibilities. We also saw merit
in the State's desire to cooperate with us in negotiating with affected
industry consistent Federal and California mobile source standards.
We therefore approved the 1994 ozone SIP based upon commitments by
the State and EPA to participate in a public consultative process on
mobile source controls, leading to a decision in mid-1997 on what
further reductions needed to be achieved and which entity should have
responsibility for them. We and California further committed to adopt
any additional controls, as necessary and appropriate, to achieve the
emission reductions required for attainment of the ozone standard in
the South Coast.
We believe that we have now achieved, or have rulemaking in
progress to accomplish, almost all of the reductions the State
purported to assign to us in the 1994 ozone SIP--approximately 145 tpd
out of a 156 tpd ``assignment.'' This is the result of close
coordination between California and EPA and cooperation by
manufacturers and users of mobile source engines and equipment,
culminating in agreements on aggressive new standards for trucks and
buses and most categories of nonroad mobile sources, ranging from
forklifts to outboard engines, and from locomotives to tractors. We
believe that
[[Page 1772]]
these aggressive Federal controls will have clean air benefits
nationally, and that the stringent new standards will ensure that all
sources of the pollution problem contribute their share to needed
emission reductions.
California's plan assumed, however, that stringent new emissions
standards would be set for aircraft engines and ocean-going vessels.
Unfortunately, the international standard-setting process for
commercial aircraft engines and ocean-going vessels has not resulted in
standards that will benefit the South Coast appreciably by 2010,
especially in view of the long life-span of these engines. Moreover,
the State assumed an unrealistically rapid turnover rate for harbor
craft, and therefore overestimated reductions that would be achieved in
2010, even by a very stringent federal standard.
While we and the State continue to work with the ports, shippers,
airports, and airlines to achieve reductions from their operations, we
now expect that there will remain a small shortfall in the ``federal''
category. Unfortunately, the SCAQMD has filed a suit against us to
promulgate the aircraft and ocean-going vessel standards postulated by
the State, although all parties are now aware that the standards are
set internationally and that the international standards recently
adopted will not, in fact, achieve the reductions anticipated by the
State in its 1994 SIP submittal.
The SCAQMD has also sued us to end the public consultative process
by making specific additional federal commitments to adopt regulations
for all remaining emission reduction assignments. In response to a suit
from environmental groups, we have already negotiated a settlement that
requires us by June 1, 1999, to conclude the public consultative
process, determine remaining responsibilities of the State and EPA, and
schedule adoption of controls to fulfill those responsibilities.
Thus, we believe that both District suits are a waste of public
resources, and we conclude that it would be inconsistent with our
pending obligations to resolve the public consultative process for us
to approve a new South Coast SIP that includes Federal assignments to
undertake discretionary controls.
3. 1997 South Coast Ozone Plan
As we finalized our approval of the 1994 ozone SIP, the SCAQMD
unveiled a replacement plan. This revised plan abandoned, relaxed, or
postponed approximately 30 measures in the ozone SIP. The revised plan
employed new growth projections, new inventories, and new modeling
analyses to support the proposition that the area could meet the
minimum statutory progress requirements and eventually attain the ozone
NAAQS despite the extensive rollback in near-term controls.
When the revised plan was announced, we indicated our serious
concerns about the direction of the plan, particularly its backsliding
at the very time we were issuing revised ozone NAAQS and new fine
particulate matter (PM-2.5) NAAQS that would require still greater
levels of control than were reflected in the 1994 ozone SIP. We noted
that the extremely high ozone and PM levels in the South Coast
continued to represent one of our country's most severe environmental
and public health problems--problems highlighted by the hundreds of
scientific studies that formed the basis of the new and revised NAAQS.
We encouraged the District to focus on implementation of the newly
approved SIP and, if measures proved to be infeasible or ineffective,
to adopt replacement measures in order to sustain progress.
The SCAQMD nevertheless adopted the revised plan in November 1996,
and the State submitted the plan as a proposed SIP revision in early
February 1997. We continued to express our concerns and to remind the
SCAQMD that the District, responsible for public health in the most
polluted area of the country, had an obligation to increase its efforts
rather than regress. We have repeatedly indicated that we support the
District's flexibility to amend or replace any measure when it is
determined to be infeasible or ineffective, but we cannot support the
significant relaxation of the SIP represented by the 1997 plan.
After adopting a plan revision that postponed or eliminated most of
the near-term measures in the 1994 ozone SIP, the District has since
failed to meet most of its implementation commitments in the 1997 ozone
plan. This is consistent with the District's record over the past 4
years, during which the SCAQMD has adopted and revised credit and
trading rules and has amended existing prohibitory rules to postpone
compliance dates, but has adopted only a handful of new measures
designed to reduce pollution levels.
On September 26, 1997, environmental groups sued the SCAQMD and
CARB in federal district court, seeking a court order to compel the
agencies to meet their federally enforceable commitments to adopt and
implement control measures in the 1994 ozone SIP. We urged the parties
to attempt settlement and we provided a facilitator for the sessions.
Negotiations began in the early Spring of 1998, and a proposed
settlement was drafted in late June. The SCAQMD Governing Board,
however, rejected the proposed settlement in June 1998.
On November 4, 1998, the SCAQMD filed suit against us to compel our
action on the 1997 plans, repeating the argument that the plan should
be approved. We have been consistent in expressing our contrary view,
that the Clean Air Act gives us authority to approve revised SIPs but
does not allow us to approve revisions that represent a significant
retreat from the approved SIP. We believe that it would be particularly
ill-advised to approve major relaxations in the South Coast, where the
public suffers by far the worst pollution levels in the country.
We continue to hope that the SCAQMD will decide to meet its
difficult responsibilities to protect public health and, in so doing,
will both strengthen the plan and begin fully to implement the plan to
fulfill the 1994 plan's promise of clean air progress.
B. The South Coast Ozone Problem
Ground-level ozone is formed when nitrogen oxides (NOX),
volatile organic compounds (VOCs), and oxygen react in the presence of
sunlight, generally at elevated temperatures.4 Strategies
for reducing smog typically require reductions in both VOC and
NOX emissions.
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\4\ The South Coast plan sometimes substitutes the term Reactive
Organic Gases (ROG) for VOC. These terms are essentially synonymous.
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Ozone causes serious health problems by damaging lung tissue and
sensitizing the lungs to other irritants. When inhaled, even at very
low levels, ozone can cause acute respiratory problems; aggravate
asthma; cause temporary decreases in lung capacity of 15 to 20 percent
in healthy adults, cause inflammation of lung tissue; lead to hospital
admissions and emergency room visits; and impair the body's immune
system defenses, making people more susceptible to respiratory
illnesses, including bronchitis and pneumonia. Children are most at
risk from exposure to ozone because they breathe more air per pound of
body weight than adults; their respiratory systems are still developing
and thus more susceptible to environmental threats; and children
exercise outdoors more than adults in the high-ozone months of summer.
Direct exposure to NOX and VOCs also has adverse public
health consequences. Exposure to elevated NOX concentrations
can reduce breathing efficiency, increase lung and airway irritation,
and exacerbate symptoms of respiratory illness, lung
[[Page 1773]]
congestion, wheeze, and increased bronchitis in children. VOCs include
many toxic compounds (such as benzene), which can cause respiratory,
immunological, neurological, reproductive, developmental, and mutagenic
problems. Some VOCs have been identified as probable or known human
carcinogens.
Since the strategies in the 1994 ozone SIP and 1997 ozone plan
address VOC and NOX, the primary precursor of particulate
matter in the South Coast, the plans also affect PM concentrations.
Particulate matter is associated with a number of significant
respiratory and cardiovascular-related effects, including premature
death, increased hospitalization, increased emergency room visits,
increased respiratory symptoms, increased disease (especially among
children and people with lung disease such as asthma), and decreased
lung function.
Both ozone and PM damage vegetation. Experimental studies on the
major commercial crops in the U.S. suggest that ozone may be
responsible for significant agricultural crop yield losses.
Under section 109 of the CAA, EPA established primary, health-
related NAAQS for ozone: 0.12 ppm averaged over a 1-hour period. See 44
FR 8220 (February 8, 1979). EPA also set NAAQS for particulate matter
up to 10 microns in diameter (PM-10): 150 micrograms per cubic meter
(ug/m3) averaged over a 24-hour period, and 50 ug/m3 as an annual
arithmetic average of the 24-hour samples. See 52 FR 24672 (July 1,
1987).
On July 18, 1997, EPA reaffirmed the annual PM-10 standard and
slightly revised the 24-hour standard (62 FR 38651). At the same time,
EPA also established two new standards for PM, both applying only to
particulate matter up to 2.5 microns in diameter (PM-2.5). Finally, on
July 18, 1997, EPA also revised the ozone NAAQS, replacing the 1-hour
standard with a standard of 0.08 ppm averaged over an 8-hour period (62
FR 38855). EPA has not yet issued specific plan and control
requirements for the new and revised NAAQS.
The South Coast has continuously had by far the worst 1-hour ozone
concentrations in the country, both in terms of peak concentrations and
number of violations. While the South Coast ozone levels have greatly
improved over the years, the trend is not continuous. For example, in
1998 there have been 12 Stage I Alerts (which are triggered by ozone
concentrations at or above 0.20 ppm), compared to only 1 in 1997.
The South Coast typically has among the worst PM-10 annual mean and
24-hour concentration in the country. Last year, the South Coast had
the second worst PM-10 annual mean concentration of U.S. urbanized
areas, with only Phoenix recording a worse level.
C. Clean Air Act Requirements
The Federal CAA was substantially amended in 1990 to establish new
planning requirements and attainment deadlines for the NAAQS. Under
section 107(d)(1)(C) of the Act, areas designated nonattainment prior
to enactment of the 1990 amendments, including the South Coast, were
designated nonattainment by operation of law.
Under section 181(a) of the Act, each ozone area designated
nonattainment under section 107(d) was also classified by operation of
law as either marginal, moderate, serious, severe, or extreme,
depending on the 1986-1988 design value for the area. An ozone area
with a design value at and above 0.280 ppm was classified as extreme.
The South Coast was the only area so classified. Section 181(a) sets
attainment deadlines for each class of area. The attainment date for an
extreme area is as expeditiously as practicable but no later than
November 15, 2010.
Section 172 of the Act contains general requirements applicable to
SIPs for nonattainment areas. Section 182 of the Act set out additional
air quality planning requirements for ozone nonattainment areas.
The most fundamental of these nonattainment area provisions
applicable to the South Coast is the requirement that the State submit
by November 15, 1994, a SIP demonstrating attainment of the ozone
NAAQS. This demonstration must be based upon enforceable measures to
achieve emission reductions leading to emissions at or below the level
predicted to result in attainment of the NAAQS throughout the
nonattainment area. The measures must be implemented expeditiously and
must ensure attainment no later than the applicable CAA deadline.
EPA has issued a ``General Preamble'' describing the Agency's
preliminary views on how EPA intends to act on SIPs submitted under
Title I of the Act. See generally 57 FR 13498 (April 16, 1992) and 57
FR 18070 (April 28, 1992. The reader should refer to the General
Preamble for a more detailed discussion of EPA's preliminary
interpretations of Title I requirements. In this proposed rulemaking
action, EPA applies these policies to the South Coast ozone SIP
submittal, taking into consideration the specific factual issues
presented.
D. SIP Submittals Must Meet Requirements of the Pre-Existing NAAQS
Before the SCAQMD adopted the 1997 ozone plan, EPA had already
announced its intention to issue new and revised ozone and PM NAAQS.
The SCAQMD included in Chapter 10 of the 1997 South Coast Air Quality
Management Plan (AQMP) an initial analysis of the emission reductions
that might be needed to attain the anticipated new and revised ozone
and PM NAAQS. The SCAQMD concluded that significantly greater
reductions would be required to attain the new and revised NAAQS that
were under consideration. However, the SCAQMD prepared the plans to
address only the NAAQS then in effect.
Although EPA has now promulgated revised ozone NAAQS, EPA is not
evaluating the plan based upon the NAAQS issued in 1997. The Agency
will not require states to submit SIPs to address the revised NAAQS for
several years. The pre-existing 1-hour ozone NAAQS remain in effect in
each nonattainment area until the area attains NAAQS. Thus, the 1-hour
NAAQS of 0.12 ppm will not be revoked in the South Coast until the area
has recorded 3 years with no more than 3 concentrations at or above
0.125 ppm at any monitor. State and local agencies remain under an
obligation to adopt and implement SIPs to attain the pre-existing ozone
NAAQS until the EPA revokes the NAAQS for the area.5
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\5\ EPA has determined that subpart 2 of part D of Title I of
the CAA should continue to apply as a matter of law for the purposes
of achieving attainment of the current 1-hour ozone standard until
an area attains the standard. See the final rule promulgating the
revised ozone NAAQS (July 18, 1997, at 62 FR 38873 for ozone),
``Implementation Plan for Revised Air Quality Standards'' (July 18,
1997, at 62 FR 38424), and ``Guidance for Implementing the 1-Hour
Ozone and Pre-Existing PM10 NAAQS'' (memo from Richard D. Wilson,
Acting Assistant Administrator for Air and Radiation, dated December
29, 1997).
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E. EPA Actions on Prior South Coast Ozone SIP Revisions
The SCAQMD adopted an ozone plan on September 9, 1994. This plan,
which was included in the 1994 South Coast AQMP, was supplemented by
State measures adopted by CARB and was submitted as a proposed revision
to the California SIP on November 15, 1994. On July 10, 1996, CARB
submitted an extensive revision to the South Coast control measure
adoption schedule, to adjust for slippage in the plan's initial
implementation. On January 8, 1997 (62 FR 1150), EPA finalized approval
of the South Coast ozone plan, including the ozone portions of the 1994
South Coast
[[Page 1774]]
AQMP, as amended in 1996, and the State measures.6
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\6\ Some of the State and SCAQMD measures in the plan had been
approved in prior rulemakings. See, particularly, 60 FR 43379
(August 21, 1995), approving CARB regulations relating to
antiperspirants and deodorants and other consumer products,
reformulated gasoline and diesel fuel, and certain new-technology
measures adopted by CARB and SCAQMD.
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F. South Coast 1997 Plan Revision
On February 5, 1997, CARB submitted as a revision to the California
SIP the 1997 Air Quality Management Plan for the South Coast Air Basin
(SCAB), Antelope Valley, and Coachella Valley, adopted by the SCAQMD on
November 15, 1996. This submittal addressed all four pollutants for
which the South Coast was designated nonattainment: ozone, PM-10,
carbon monoxide (CO) and nitrogen dioxide (NO2).
EPA has previously acted on two components of the 1997 AQMP. On
April 21, 1998, EPA granted interim final approval to the 1997 South
Coast CO plan (63 FR 19661).7 EPA has also fully approved
the 1997 South Coast NO2 attainment and maintenance plan and the
State's request on March 4, 1998, to redesignate the South Coast to
attainment for NO2 (63 FR 39747, July 24, 1998).
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\7\ EPA approved the CO plan with respect to the CAA
requirements for notice and adoption, baseline and projected
emissions inventory, and vehicle miles traveled (VMT) forecasts. EPA
granted interim approval to the CO attainment demonstration,
quantitative milestones, and reasonable further progress, since
these plan elements depend, in part, on emission reductions from the
State's enhanced motor vehicle inspection and maintenance program.
The I/M program was given interim approval in EPA's final action on
the 1994 ozone SIP (see 62 FR 1165-1168, January 8, 1997) under
section 187(a)(6) of the CAA and section 348 of the
National Highway System Designation Act (Pub. L. 104-59).
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The ozone and PM-10 portions of the South Coast 1997 AQMP became
complete by operation of law on August 5, 1997.8 SCAQMD and
CARB intend the 1997 ozone plan to supersede completely the 1994 ozone
SIP with respect to the SCAQMD portion of the plan. As discussed, EPA
has not yet issued its interpretation of CAA section 172(e) to prevent
backsliding in PM-10 nonattainment areas. EPA intends to propose action
on the South Coast 1997 PM-10 plan in separate rulemaking.
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\8\ EPA adopted the completeness criteria on February 16, 1990
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA,
revised the criteria on August 26, 1991 (56 FR 42216).
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The State has revised several of its own measures that are part of
the South Coast plan, but at this time CARB has submitted as a SIP
revision only one of these changes. On April 15, 1998, CARB submitted
new Measure M17 (Additional Emission Reductions from Heavy-Duty
Vehicles) as a replacement for Measure M7 (Accelerated Retirement of
Heavy-Duty Vehicles). EPA will take action on Measure M17 in separate
rulemaking.
The 1997 ozone plan includes, among other things, attainment
demonstrations based on updated VMT projections reflecting new
forecasts prepared by SCAG, an amended Regional Mobility Element
adopted by SCAG, revised motor vehicle emissions estimates using
California's EMFAC7G and BURDEN7G program, new stationary and area
source emission inventories, amended SCAQMD control measure
commitments, and revised Urban Airshed Modeling (UAM), using the new
inventories and changes to other modeling inputs.
II. Review of the Plan Submittal and Proposed EPA Action
A. Summary of Proposed Action
In this document, EPA is proposing to approve in part and
disapprove in part the 1997 ozone plan. The ozone plan for the South
Coast depends on commitments by SCAQMD to adopt and implement various
VOC and NOX control measures by particular dates to achieve
specific emission reductions needed for progress and attainment. EPA
proposes to disapprove the control measure portion of the plan for the
reasons discussed in section II.D., below. EPA proposes also to
disapprove the progress and attainment demonstrations in the plan,
since these plan elements depend upon the control measure provisions.
B. Procedural Requirements
Both SCAQMD and CARB have satisfied applicable statutory and
regulatory requirements for reasonable public notice and hearing prior
to adoption of the plan and each of the plan amendments. SCAQMD
conducted numerous public workshops and public hearings prior to the
adoption hearing on November 15, 1996, at which the 1997 AQMP was
adopted by the SCAQMD Governing Board (Resolution No. 96-23). On
January 23, 1997, the CARB Governing Board adopted the plan (Resolution
No. 97-1). The plan was submitted to EPA by Michael P. Kenny, Executive
Officer of CARB, on February 5, 1997. The SIP submittal includes proof
of publication for notices of SCAQMD and CARB public hearings, as
evidence that all hearings were properly noticed. Therefore, EPA
proposes to approve the 1997 ozone plan as meeting the procedural
requirements of section 110(a)(1) of the CAA.
C. Baseline and Projected Emissions Inventory
The revised and updated emissions inventory included in the 1997
AQMP conforms to EPA's guidance documents.9 This EPA
guidance allows approval of California's motor vehicle emissions
factors in place of the corresponding federal emissions factors. The
motor vehicle emissions factors used in the plan were generated by the
CARB EMFAC7G and BURDEN7G program. The gridded inventory for motor
vehicles was then produced using an updated Caltrans Direct Travel
Impact Model (DTIM2) (Systems Applications International, 1994) to
combine EMFAC7G data with transportation modeling performed by SCAG.
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\9\ See, for example, Procedures for the Preparation of Emission
Inventories for Carbon Monoxide and Precursors of Ozone, Volume I:
General Guidance for Stationary Sources, EPA--450/4-91-016;
Procedures for Emission Inventory Preparation, Volume IV: Mobile
Sources, EPA--450/5-91-026d Revised.
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SCAG provided the baseline socioeconomic data used in the plan.
These forecasts include the following predicted growth through the
ozone attainment year.
[[Page 1775]]
1997 AQMP Baseline Socioeconomic Forecasts
[In millions]
------------------------------------------------------------------------
Category 1993 2000 2010
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Population................................... 13.8 14.8 16.7
Daily Vehicle Miles Traveled (VMT)........... 293.3 317.9 377.9
Daily Vehicle Trips.......................... 31.2 33.2 37.9
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EPA notes that these predictions assume that the area's growth will
increase at rates considerably below long-term historic
trends.10 This makes it particularly important for
transportation agencies to track actual VMT and trip numbers carefully,
and to trigger remedial actions, if necessary, before the plan fails to
meet scheduled reduction targets. The growth projections for industrial
categories are also generally lower than past trends, and EPA strongly
encourages the SCAQMD to revise the emission inventories and adopt
additional control measures, as may be necessary, if information
suggests that growth will exceed the SIP projections.
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\10\ The 1997 AQMP's growth projections are also considerably
reduced from those used in the 1994 ozone SIP, which used 2010
projections of 17.4 million for population, 413.9 million miles for
daily VMT, and 45.7 million vehicle trips per day.
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The plan includes interpolated inventories for all milestone years
for ozone precursors. The methodologies used to prepare the base year
and projected emissions inventories, as described in Chapter 3 and
Appendix 3 of the AQMP, are acceptable. Accordingly, EPA proposes to
approve the 1997 ozone plan with respect to the emissions inventory
requirements of sections 172(c)(3) and 182(a)(1) of the CAA.
D. Control Measures
CAA sections 110(a)(2)(A) and 172(c)(6) require that all measures
and other elements in the SIP be enforceable. As discussed at length in
EPA's approval of the 1994 California ozone SIPs, EPA has interpreted
these provisions to allow for approval of attainment demonstrations
that rely, in part, on commitments to adopt and implement rules in the
future, so long as the commitments are specific and enforceable (see 57
FR 13556 and 13568, April 16, 1992; and 62 FR 1155-1157, January 8,
1997).
The attainment demonstration in the 1997 ozone plan rests on
emission reductions derived from adopted regulations and from rules and
programs which SCAQMD commits to adopt. The plan measures that are
scheduled for adoption in the future are commonly referred to as
``committal measures.'' In the case of the South Coast, the committal
measures are further divided into near-term measures and long-term (or
new-technology) measures, which are authorized for extreme ozone
nonattainment areas under CAA section 182(e)(5). The 1994 ozone SIP
contains 66 near-term control measures for adoption by SCAQMD, SCAG, or
local governments, and 5 long-term measures for adoption by SCAQMD. The
1997 ozone plan includes 36 near-term control measures for adoption by
SCAQMD, SCAG, or local governments, and 6 long-term measures for
adoption by SCAQMD. Both plans contain the same group of near-term and
long-term measures assigned to the State or to the Federal government
(see discussion below in Section II.D.3.)
EPA proposes to disapprove the SCAQMD's committal measures for 4
reasons.
1. SCAQMD Is Already in Default of Many Control Measure Commitments
Although the plan schedules SCAQMD adoption of 23 VOC/
NOX regulations or programs by the end of 1998, the SCAQMD
has adopted less than 10, and no additional measures are scheduled for
adoption by the end of the year. EPA does not believe there is a basis
for approving commitments to adopt rules and programs or to approve an
attainment demonstration based, in part, on reductions from these rules
and programs, if the adoption dates have passed and the rules or
programs have not been adopted. The SCAQMD's faithful implementation of
the plan would cure this deficiency.
2. The Control Measures Are an Impermissible Relaxation of the SIP
The commitments in the 1997 ozone plan to adopt VOC and
NOX control measures represent backsliding from the 1994
ozone SIP. The 1997 plan abandons, relaxes, or postpones approximately
30 control measures in the approved South Coast ozone SIP.
Specifically, SCAQMD removed, postponed, relaxed, or shifted to a
``further evaluation'' category the following control measures, which
were scheduled for near-term adoption in the 1994 ozone SIP: CTS-A
Electronic Components, CTS-C Solvent Cleaning, CTS-D Marine/Pleasure
Craft Coatings, CTS-E Adhesives, CTS-F Motor Vehicle Non-Assembly
Coating, CTS-G Paper/Fabric/Film Coatings, CTS-H Metal Parts/Product
Coatings, CTS-I Graphic Arts/Screen Printing, CTS-J Wood Products
Coatings, CTS-K Aerospace/Component Coatings, CTS-L Automotive Assembly
Operations, CTS-02 Solvents and Coatings at Non-RECLAIM Sources, CTS-07
Architectural Coatings, FUG-01 Organic Liquid Transfer, FUG-02 Active
Draining of Liquid Products, FUG-04 Fugitive Emissions of VOCs, RFL-02
Gasoline Dispensing Facilities, RFL-03 Pleasure-Boat Fueling
Operations, CMB-02F Internal Combustion Engines, CMB-05 Clean
Stationary Fuels, PRC-02 Bakeries, PRC-03 Restaurant Operations, WST-01
Livestock Waste, WST-03 Waste Burning, WST-04 Disposal of Materials
Containing VOCs, ISR-01 Special Events Centers, ISR-02 Shopping
Centers, ISR-04 Airport Ground Access, ISR-05 Trip Reduction for
Schools, ADV-CTS-02 Advanced Technology--Coatings. This list does not
include control measures approved as part of the 1994 ozone SIP but
without assigned emission reduction credits.
The scale of the SIP relaxation may be seen in the table below,
``South Coast 1994 Ozone SIP and 1997 Ozone Plan VOC Emission
Reductions from SCAQMD/SCAG Local Rules for Each Rate-of-Progress
Milestone Year.'' 11
---------------------------------------------------------------------------
\11\ The table is not adjusted to harmonize the control category
baseline emission inventories. A small number of near-term control
measures in the 1994 ozone SIP were adopted as regulations before
the 1997 plan was issued. The emission reductions from these adopted
regulations were treated as ``baseline'' emissions in the 1997 plan,
rather than as near-term emission reductions. In addition, the 1997
plan revises the emissions inventory in the 1994 ozone SIP and
reduces the emissions inventory for the control categories and the
emission reductions associated with some of the 1994 ozone SIP's
near-term control measures.
[[Page 1776]]
South Coast 1994 Ozone SIP and 1997 Ozone Plan VOC Emission Reductions From SCAQMD/SCAG Local Rules for Each
Rate-of-Progress Milestone Year
[In tons per day rounded to nearest ton]
----------------------------------------------------------------------------------------------------------------
1999 2002 2005 2008 2010
----------------------------------------------------------------------------------------------------------------
1994 Ozone SIP
----------------------------------------------------------------------------------------------------------------
Near-Term.......................................................... 104 186 233 268 285
Long-Term.......................................................... 0 20 32 121 180
Total.......................................................... 104 207 266 389 465
----------------------------------------------------------------------------------------------------------------
1997 Ozone Plan
----------------------------------------------------------------------------------------------------------------
Near-Term.......................................................... 11 41 67 86 91
Long-Term.......................................................... 0 0 3 54 89
Total.......................................................... 11 41 70 140 180
----------------------------------------------------------------------------------------------------------------
Section 110(l) of the Act provides that EPA may not approve a SIP
revision if the revision will interfere with attainment or reasonable
further progress or any other applicable requirement of the Act. Based
on the measures relaxed or deleted and the associated loss of emissions
reductions, EPA concludes that the 1997 ozone plan constitutes an
unapprovable relaxation of the ozone SIP.12 The State has
not demonstrated why it is not reasonable or feasible for the SCAQMD to
adopt measures sufficient to achieve emission reductions on the 1994
ozone SIP schedule, thus potentially expediting attainment of the
standard.
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\12\ The SCAQMD has argued that CAA section 110(a)(2)(H)
authorizes states to amend their SIPs as new information becomes
available, provided the resulting plan is adequate to attain the
NAAQS it implements and it otherwise continues to comply with the
CAA. Section 110(a)(2)(H) of the CAA actually requires that a SIP
``provide for revision of such plan from time to time as may be
necessary to take account of * * * the availability of improved or
more expeditious methods of attaining such [NAAQS] * * *.'' This CAA
provision clearly contemplates that states should revise their plans
to provide for greater or more expeditious emission reductions. In
contrast, the District has elected to relax its plan, and the
governing provision of the Act for relaxations is section 110(l).
---------------------------------------------------------------------------
EPA believes that the SCAQMD can identify and adopt substitute
near-term measures. In fact, the SCAQMD has already adopted or
scheduled for near-term adoption some measures not included in the 1997
plan.13 Thus, this deficiency in the 1997 plan could be
cured if the SCAQMD submits commitments to adopt additional control
measures along with a demonstration that the amended plan provides for
attainment on a schedule that is as expeditious as practical.
---------------------------------------------------------------------------
\13\ For example, SCAQMD's June 13, 1997 amendment to Rule 1171
Solvent Cleaning Operations contributes VOC reductions not
specifically called for in the 1997 plan. As an example of another
feasible control option that could achieve significant VOC
reductions, EPA has encouraged SCAQMD implementation of more
stringent requirements for spray booths.
---------------------------------------------------------------------------
3. The Plan Includes Unlawful Assignments of Control Measure
Responsibility to EPA
The plan relies in part on reductions from control measures
assigned to EPA to adopt in the future. In acting on the 1994 ozone
SIP, which also included these ``federal measures,'' EPA stated that
the Agency does not accept California's proposition that a state can,
under the CAA, assign SIP responsibilities to the Federal government
(61 FR 10936, March 18, 1996, 62 FR 1151, January 8, 1997).
Rather than disapprove the 1994 plan, EPA elected to establish a
brief ``public consultative process'' to identify the best options for
achieving further emission reductions from mobile source controls to
contribute to attainment of the NAAQS in the South Coast. EPA indicated
that at the conclusion of this process, in June 1997, EPA expected that
the State would be able to amend the South Coast attainment
demonstration based on the final mix of national, State and local
controls. See 61 FR 10923 (March 18, 1996) and 62 FR 1151-1153 (January
8, 1997).
As part of the final SIP approval, EPA approved CARB's commitment
to amend the South Coast ozone SIP by December 31, 1997, and to adopt
additional mobile source measures, as appropriate, by December 31,
1999, to resolve SIP shortfalls remaining at the end of the public
consultative process. See 40 CFR 52.220(C)(235)(I)(A)(1). In taking
final action to approve the 1994 ozone SIP, EPA also made a commitment
to adopt additional federal mobile source measures which are determined
to be appropriate for EPA and needed for ozone attainment in the South
Coast. See 40 CFR 52.241.
EPA has not yet concluded the public consultative process, but has
been sued by environmental groups to do so (Coalition for Clean Air,
et. al. vs. South Coast Air Quality Management District, California Air
Resources Board, and U.S. Environmental Protection Agency, No. CV 97-
6916 HLH (C.D. Cal.)). Subsequently, the SCAQMD also sued EPA for
failing to adopt certain of the Federal Measures included in
California's 1994 ozone SIP and to resolve the public consultative
process and adopt measures determined to be appropriate for the Agency.
EPA has recently entered into a Consent Decree with the
environmental plaintiffs to conclude the public consultative process
and to determine by June 1, 1999, the respective responsibilities of
EPA and the State for adopting measures to achieve the remaining
emission reduction requirements. This Consent Decree was lodged with
the U.S. District Court on November 13, 1998. EPA sought public comment
on the Consent Decree on December 9, 1998 (63 FR 67879).
In light of the imminent conclusion of the public consultative
process provided for in EPA's final approval of the 1994 ozone SIP, the
Agency has determined that it is not appropriate to approve another
South Coast plan that includes emission reductions associated with
specific Federal Measures assigned by the State to EPA, much less a
plan that increases the illegal emission reduction assignment to the
Federal government, as the 1997 plan does for several source
categories.14 EPA reiterates its position that states do not
have the authority under the Clean Air Act or the Constitution to
assign SIP responsibility to the Federal government.
---------------------------------------------------------------------------
\14\ For example, the 1997 plan increases the emission reduction
assignment for measures M13 (Marine Vessels), M15 (Aircraft), and
M16 (Pleasure Craft).
---------------------------------------------------------------------------
EPA expects that this particular SIP deficiency will be resolved in
the future
[[Page 1777]]
through an amendment to the SIP providing specific enforceable
commitments, if appropriate, by responsible agencies to adopt mobile
source control measures sufficient to eliminate any shortfall in
emissions reductions that might remain at the end of the public
consultative process.
4. Section 182(e)(5)
As noted above, CAA section 182(e)(5) authorizes EPA to approve
long-term, conceptual measures that rely on new technologies or new
control techniques as part of the attainment demonstration for the
South Coast, the only extreme ozone nonattainment area. This CAA
provision recognizes the difficulty faced by CARB, SCAQMD, and SCAG in
fully developing and adopting in the near-term all of the controls that
are needed to achieve attainment by the 2010 deadline.
There is no evidence, however, that CAA section 182(e)(5) was
enacted to provide a broad excuse for postponing the adoption of
available near-term controls because they are difficult or unpopular.
Moreover, the progressive nature of control technology development is
evidently a basic assumption behind the CAA section 182(e)(5)
provision. It would not be consistent with that assumption to authorize
agencies to amend their approved SIP to replace numerous near-term
control measures and emission reductions with long-term commitments. On
the contrary, later revisions to the SIP should reduce, rather than
increase, the long-term measure element.
EPA's proposed approval of the 1994 ozone SIP for the South Coast
elicited extensive comments from environmental groups. These commenters
felt that the SIP should be disapproved because it relied too
extensively on speculative and poorly defined long-term measures. The
commenters argued that these measures should be replaced by more near-
term controls and better defined and supported long-term measures.
In response to these comments and based on further discussions with
CARB and the SCAQMD, EPA included in the final approval the following
interpretation of the section 182(e)(5) provisions of the CAA as they
apply to the 1994 ozone SIP and any subsequent revisions to the South
Coast ozone SIP.
Measures which the 1994 South Coast Ozone SIP scheduled for
adoption and implementation, or any portion of the emissions
reductions scheduled to be achieved as a result of implementation of
those near-term measures, may not be converted, at some future time,
into section 182(e)(5) new-technology measures or moved into
emissions reductions associated with section 182(e)(5) new
technology measures, without a convincing showing in a SIP revision
that the technologies relied upon in the near-term rules have been
found to be technologically infeasible or ineffective in achieving
emissions reductions in the near-term. The near-term measures in the
1994 SIP have not been determined to ``anticipate development of new
control techniques or improvement of existing control technologies''
(section 182(e)(5)). On the contrary, they were evidently determined
by the SCAQMD and CARB to be both available and necessary for
expeditious progress in reducing emissions in the near term in the
South Coast. Should either CARB or the SCAQMD determine that new
information requires a reconsideration of the near-term feasibility
of the 1994 SIP near-term measures, the agencies must submit a SIP
revision demonstrating convincingly that the standards defined in
this paragraph above for conversion of near-term measures to section
182(e)(5) new technology measures has been met. Absent such a
convincing showing, a SIP revision will not be approved by EPA.
In view of continuing progress in the development and successful
application of control technologies and control techniques, the
amount and relative proportion of reductions from measures scheduled
for long-term adoption under section 182(e)(5), as compared to
measures already adopted in regulatory form or scheduled for near-
term adoption, should clearly decrease in any future SIP update. EPA
will not approve a SIP revision that contains an increase in the
amount and relative proportion of reductions scheduled for long-term
adoption under section 182(e)(5) that is inconsistent with the
standard defined in the preceding paragraph. Further, to the extent
new modeling performed in any subsequent SIP revision demonstrates
that there is an increase in the year 2010 carrying capacity for ROG
and NOX, this change shall not be used to decrease the
amount of emissions reductions scheduled to be achieved by any near-
term measure from the 1994 SIP unless CARB or the SCAQMD make the
convincing showing required by the preceding paragraph.
(62 FR 1179)
As mentioned, the 1997 ozone plan deletes or relaxes some 30 VOC/
NOX near-term measures in the 1994 ozone SIP, shifts others
to the contingency/further study category or to the long-term measure
category, and decreases the proportion of VOC emission reductions from
near-term measures, while increasing the carrying capacity for
VOC.15
---------------------------------------------------------------------------
\15\ The 1997 ozone plan adds several new measures: FLX-01
Intercredit Trading Program, FLX-02 Air Quality Investment Program,
and MSC-03 Promotion of Catalyst-Surface Coating Technology Programs
for Air Conditioning Units, MON-09 In-Use Vehicle Emission
Mitigation, MON-10 Emissions Reduction Credit for Truck Stop
Electrification, and MOF-07 Credits for the Replacement of Existing
Pleasure Craft Engines with New Lower Polluting Engines. All of
these measures, however, are designed to enhance compliance
flexibility and none contributes emissions reductions.
---------------------------------------------------------------------------
Chapter 9 of the 1997 plan addresses the SIP approval criteria
quoted above by brief discussions and by labelling those 1994 SIP
measures that are deleted (14 VOC/NOX measures) or placed in
a contingency/further study category (17 VOC/NOX measures)
as ``not cost-effective,'' ``technically infeasible,'' ``minimal
emission reduction potential,'' ``low public acceptability,'' and
``economic concerns, implementation authority.''
EPA believes that the 1997 ozone plan revision violates the intent
of CAA section 182(e)(5). This section of the Act was intended to allow
an extreme ozone nonattainment area additional time, if necessary,
beyond the November 15, 1994 ozone SIP submittal deadline, to develop,
adopt, and submit some of the specific regulations and programs needed
to achieve attainment. EPA finds no indication that the provision was
designed to allow a state to design SIP revisions that progressively
postpone SIP commitments to adopt regulations and programs in the near-
term, and in so doing to shift the balance of the SIP increasingly
toward vague and undocumented future commitments. EPA therefore is
inclined to consider the increased reliance of the 1997 ozone plan on
long-term, conceptual measures to be a basis for disapproval of the
control measure portion of the plan. However, the Agency particularly
solicits public comment on whether the proposed 1997 revision can be
reconciled with the purpose and language of CAA section 182(e)(5) or
should be disapproved, in part, because the South Coast's substitute
plan is inconsistent with this section of the Act.
As discussed in Section II.D.2 above, EPA believes that the SCAQMD
recognizes that additional near-term measures can be added to avoid
increasing the proportion of emission reductions assigned to the long-
term measure category. SCAQMD adoption and submittal of replacement
near-term measures could ensure that the plan complies with the Act's
provisions relating to inclusion of long-term measures in the
attainment demonstration.
E. Attainment Demonstration
The attainment demonstration was conducted using the Urban Airshed
Model. The UAM analysis uses 4 episodes in 1987, including a September
7-9 episode with a peak concentration of 0.33 ppm.
[[Page 1778]]
Previous SCAQMD modeling analyses also used a more challenging
episode, June 5-7, 1985, which had a peak concentration of 0.36 ppm.
For the 1997 plan, the SCAQMD modeled the 1985 episode but did not show
attainment with all control measures, and the episode was dropped for
purposes of the attainment demonstration. SCAQMD based its decision not
to use the 1985 episode on the age of the episode and the District's
contention that the episode reflects meteorological conditions that
rarely occur in the South Coast. Current EPA modeling guidelines allow
use of a ``weight of evidence'' analysis to justify abandonment of
episodes with extremely rare meteorological conditions.16 On
November 18, 1998, the SCAQMD submitted a weight of evidence analysis
for the June 1985 episode.17 A copy of this analysis has
been placed in the docket for this rulemaking. The analysis addresses
EPA's current modeling guidance and argues for elimination of the 1985
episode under a weight of evidence approach. Attachment B to the
November 18, 1998, SCAQMD correspondence addresses the acceptability of
the remaining 4 episodes as a basis for an attainment demonstration.
The SCAQMD provides evidence that the episodes are representative of
the types of meteorological episodes expected in the South Coast Air
Basin when high ozone concentrations occur. The evidence examines the
episodes based on the deviation index (Horie CART analysis) and the
Chu-Cox methodology for assessing episode frequency.
---------------------------------------------------------------------------
\16\ U.S.E.P.A., Guidance on Use of Modeled Results to
Demonstrate Attainment of the Ozone NAAQS, EPA-454/B-95-007 (1996).
\17\ Letter from Barry R. Wallerstein, SCAQMD Executive Officer,
to Felicia Marcus, Regional Administrator, EPA Region IX, Attachment
A.
---------------------------------------------------------------------------
The model performance for the 1987 episodes shows a high systematic
bias (for example, ozone underprediction of 44% for June 24 and 40% for
June 25; 47% for September 8 and 38% for September 9). This
underprediction is significantly reduced if motor vehicle VOC emissions
are doubled. For example, the underprediction becomes 24% for June 24
and 19% for June 25; and 2% for September 8 and 3% for September 9.
The SCAQMD contends that this inventory adjustment is warranted,
since it is generally conceded that motor vehicle VOC emissions were
substantially underestimated in the 1987 historical episode emissions
calculations. If this inventory adjustment is valid, model performance
for the UAM simulation is within EPA's acceptable range of accuracy.
The 1997 ozone plan's modeling analysis predicts attainment with
VOC emissions are reduced to 413 tons per day (tpd) and NOX
emissions are reduced to 530 tpd. For comparison purposes, the 1994
ozone SIP projected attainment with carrying capacities of 323 tpd VOC
and 553 tpd NOX, while the final 1994 AQMP identifies the
carrying capacities as 313 tpd VOC and 274 tpd NOX.
The ozone plan's modeled attainment demonstration is based on
emission reductions from the 1997 ozone plan's suite of control
measures. As discussed in section II.D., EPA proposes to disapprove
these control measures for the 3 reasons discussed in section II.D. The
1997 ozone plan therefore does not meet the CAA section 182(c)(2)(A)
requirement that the plan include ``(a) demonstration that the plan, as
revised, will provide for attainment of the ozone national ambient air
quality standard by the applicable attainment date.'' EPA proposes to
disapprove the ozone plan with respect to the attainment demonstration
requirements of CAA section 182(c)(2)(A), because of the deficiencies
in the control measure portions of the plan.
E. Quantitative milestones and reasonable further progress (RFP)
1. Clean Air Act Provisions
CAA section 182(c)(2) requires that ozone SIPs include quantitative
milestones that are to be achieved every 3 years until the area is
redesignated attainment and that demonstrate reasonable further
progress (RFP) toward attainment by the applicable date. CAA section
171(a) of the Act defines RFP as ``such annual incremental reductions
in emissions of the relevant air pollutant as are required by this part
or may reasonably be required by the Administrator for the purpose of
ensuring attainment of the applicable national ambient air quality
standard by the applicable date.''
For ozone areas classified as serious or above, CAA section
182(c)(2) requires that the SIP must provide for reductions in ozone
season, weekday VOC emissions of at least 3 percent per year net of
growth averaged over each consecutive 3-year period beginning in 1996
until the attainment date. This is in addition to the 15 percent
reduction over the first 6-year period required by CAA section
182(b)(1) for moderate areas. EPA believes that ``(by) meeting the
specific 3 percent reduction requirements (of CAA section 182(c)(2)),
the State will also satisfy the general RFP requirements of section
172(c)(2) for the time period discussed.'' (General Preamble, April 16,
1992, 57 FR 13518.)
The 1997 ozone plan shows reductions consistent with the 3 percent
per year rate of progress requirement for 1999 through use of VOC
emission reductions alone. Beginning in 2002, however, the plan does
not have enough creditable VOC reductions to meet the milestones, and
must substitute NOX reductions, as allowed by CAA section
182(c)(2)(C). The schedule for these milestone years in the 1997 ozone
plan is 6 percent VOC and 3 percent NOX in 2005; 0.5 percent
VOC and 8.5 percent NOX in 2008; and 0.5 percent VOC and 5.5
percent NOX in 2010. The rate of progress schedule in the
1994 ozone SIP far exceeds the CAA progress requirements for each
milestone year using VOC emission reductions alone (see EPA's final
approval of the 1994 ozone SIP, January 8, 1997, 62 FR 1181, table
entitled ``South Coast ROP Forecasts'').
Compliance with the milestone and RFP requirements of the Act
requires that all of the creditable emission reductions be approved as
enforceable parts of the SIP (General Preamble, April 16, 1992, at 57
FR 13517). Because EPA proposes to disapprove the control measure
provisions in the ozone plan, EPA also proposes to disapprove the plan
with respect to the CAA section 182(c)(2) quantitative milestone and
reasonable further progress requirements.
F. Summary of Proposed EPA Actions
EPA proposes the following actions on elements of the South Coast
ozone plan, as submitted on February 5, 1997:
(1) Approval of procedural requirements, under sections 110(a)(1)
and 110(k)(3) of the CAA;
(2) Approval of baseline and projected emission inventories, under
sections 110(a)(1), 110(k)(3), 172(c)(3) and 182(a)(1) of the CAA;
(3) Disapproval of the VOC and NOX control measure
provisions, under CAA sections 110(k)(3), 110(l), 172(c)(6), and
182(e)(5);
(4) Disapproval of the attainment demonstration, under CAA sections
110(k)(3) and 182(c)(2)(A) of the CAA; and
(5) Disapproval of quantitative milestones and reasonable further
progress, under sections 110(k)(3) and 182(c)(2) of the CAA.
As discussed above, the partial disapproval of the ozone SIP
revision does not trigger mandatory sanctions under CAA section 179,
since EPA's approval of the 1994 South Coast ozone
[[Page 1779]]
plan with respect to the same requirements remains in force.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
III. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, Regulatory
Planning and Review.
B. Executive Order 12875
Under Executive Order 12875, Enhancing the Intergovernmental
Partnership, EPA may not issue a regulation that is not required by
statute and that creates a mandate upon a State, local or tribal
government, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by those governments, or
EPA consults with those governments. If EPA complies by consulting,
Executive Order 12875 requires EPA to provide to the Office of
Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of E.O. 12875
do not apply to this rule.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency. This rule is not subject to E.O. 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
D. Executive Order 13084
Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.'' Today's rule
does not significantly or uniquely affect the communities of Indian
tribal governments. Accordingly, the requirements of section 3(b) of
E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that this action does not include a Federal
mandate that may result in estimated annual costs of $100 million or
more to either State, local, or tribal governments in the aggregate, or
to the private sector. This Federal action proposes to approve and
disapprove pre-existing requirements under State or local law, and
imposes no new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Oxides of nitrogen, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Volatile organic compounds.
[[Page 1780]]
Dated: December 30, 1998.
Felicia Marcus,
Regional Administrator, Region IX.
[FR Doc. 99-666 Filed 1-11-99; 8:45 am]
BILLING CODE 6560-50-P
