

[Federal Register: February 13, 2008 (Volume 73, Number 30)]
[Rules and Regulations]               
[Page 8209-8212]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13fe08-13]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R09-2007-OAR-1109; FRL-8528-4]

 
Determination of Nonattainment and Reclassification of the 
Imperial County, 8-Hour Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This rule finalizes EPA's finding of nonattainment and 
reclassification of the Imperial County 8-hour ozone nonattainment area 
(Imperial County). EPA finds that Imperial County has failed to attain 
the 8-hour ozone national ambient air quality standard (``NAAQS'' or 
``standard'') by June 15, 2007, the attainment deadline set forth in 
the Clean Air Act (CAA) and Code of Federal Regulations (CFR) for 
marginal nonattainment areas. As a result, on the effective date of 
this rule, Imperial County will be reclassified by operation of law as 
a moderate 8-hour ozone nonattainment area. The moderate area 
attainment date for the reclassified Imperial County will be ``as 
expeditiously as practicable,'' but no later than June 15, 2010. Once 
reclassified, California must submit State Implementation Plan (SIP) 
revisions that meet the 8-hour ozone nonattainment requirements for 
moderate areas, as required by the CAA. EPA has determined that the 
State must submit these SIP revisions by December 31, 2008.

DATES: Effective Date: March 14, 2008.

ADDRESSES: EPA has established docket number EPA-R09-2007-OAR-1109 for 
this action. The index to the docket is available electronically at 
http://www.regulations.gov and in hard copy at U.S. Environmental 

Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901. While

[[Page 8210]]

documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., Confidential Business Information). To inspect the hard copy 
materials, please schedule an appointment during normal business hours 
with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Adrienne Priselac, EPA Region IX, 
(415) 972-3285, priselac.adrienne@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What is the background for this action?
II. Response to Comments
III. What is the effect of this action?
    A. Determination of Nonattainment, Reclassification of Imperial 
County Nonattainment Area and New Attainment Date
    B. Date for Submitting a Revised SIP for the Imperial County 
Area
IV. Final Action
V. Statutory and Executive Order Reviews

I. What is the background for this action?

    On November 23, 2007, EPA published its proposed finding that 
Imperial County did not attain the 8-hour ozone NAAQS by June 15, 2007, 
the applicable attainment date (72 FR 65682). The proposed finding was 
based upon ambient air quality data from the years 2004, 2005, and 
2006. In addition, as explained in the proposed rule, the area did not 
qualify for an attainment date extension under the provisions of CAA 
section 181(a)(5) and 40 CFR 51.907, because the 4th highest daily 
value in the attainment year was greater than 0.084 ppm. In the 
November 23, 2007, proposal, EPA proposed that the area would be 
reclassified by operation of law to ``moderate'' nonattainment, in 
accordance with CAA section 181(b)(2).

II. Response to Comments

    EPA published its proposed rule on November 23, 2007, and provided 
an opportunity for public comment. The public comment period ended on 
December 24, 2007. EPA received no comments. No further opportunity for 
public comment will be provided.

III. What is the effect of this action?

A. Determination of Nonattainment, Reclassification of Imperial County 
and New Attainment Date

    Pursuant to section 181(b)(2), EPA finds that Imperial County 
failed to attain the 8-hour ozone NAAQS by the June 15, 2007, 
attainment deadline prescribed under the CAA (69 FR 23858, April 30, 
2004 and 40 CFR 51.903(a)) for marginal ozone nonattainment areas. When 
this finding becomes effective, Imperial County will be reclassified by 
operation of law from marginal nonattainment to moderate nonattainment. 
The reclassification to the next higher classification is mandated by 
section 181(b)(2)(A) of the CAA. (see the discussion in the proposal at 
72 FR 65684) Moderate areas are required to attain the standard ``as 
expeditiously as practicable'' but no later than 6 years after 
designation or June 15, 2010. The ``as expeditiously as practicable'' 
attainment date will be determined as part of the action on the 
required SIP submittal demonstrating attainment of the 8-hour ozone 
standard. Also in this action, EPA is finalizing its proposal 
establishing a schedule by which California will submit the SIP 
revisions necessary to meet the requirements for areas reclassified to 
moderate nonattainment of the 8-hour ozone standard.

B. Date for Submitting a Revised SIP for the Imperial County Area

    In its proposal, EPA addressed the schedule by which California is 
required to submit a revised SIP meeting the requirements for the 
Imperial County moderate nonattainment area. When an area is 
reclassified, EPA has the authority under section 182(i) of the CAA to 
adjust the CAA's submittal deadlines for any new SIP revisions that are 
required as a result of the reclassification.
    Pursuant to 40 CFR 51.908(d), for each nonattainment area, a state 
must provide for implementation of all control measures needed for 
attainment no later than the beginning of the attainment year ozone 
season. The attainment year ozone season is the ozone season 
immediately preceding a nonattainment area's attainment date, in this 
case 2009 (40 CFR 51.900(g)). The ozone season is the ozone monitoring 
season as defined in 40 CFR Part 58, Appendix D, section 4.1, Table D-3 
(71 FR 61236, October 17, 2006). For the purposes of this 
reclassification for Imperial County, January 1, 2009, is the beginning 
of the ozone monitoring season. As a result, EPA is finalizing its 
proposal requiring that the required SIP revisions be submitted by 
California as expeditiously as practicable, but no later than December 
31, 2008. This timeline also calls for implementation of applicable 
controls no later than January 1, 2009.
    The area was previously required to submit the requirements for 
marginal areas, and under section 182(b) remains required to meet them, 
and now must meet the requirements for moderate areas as well.
    A revised SIP must include the following moderate area 
requirements: (1) An attainment demonstration (40 CFR 51.908), (2) 
provisions for reasonably available control technology and reasonably 
available control measures (40 CFR 51.912), (3) reasonable further 
progress reductions in emissions (40 CFR 51.910), (4) contingency 
measures to be implemented in the event of failure to meet a milestone 
or attain the standard (CAA 172(c)(9)), and (5) NOX and VOC 
emission offsets of 1.15 to 1 for major source permits (40 CFR 
51.165(a)). See also the requirements for moderate ozone nonattainment 
areas set forth in CAA section 182(b).\1\
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    \1\ A vehicle inspection and maintenance (I/M) program would 
normally be listed as a requirement for an ozone moderate or above 
nonattainment area. However, the Federal I/M Flexibility Amendments 
of 1995 determined that urbanized areas with populations less than 
200,000 for 1990 are not mandated to participate in the I/M program 
(60 FR 48027, September 18, 1995).
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IV. Final Action

    Pursuant to CAA section 181(b)(2), EPA is making a final 
determination that the Imperial County ``marginal'' 8-hour ozone 
nonattainment area failed to attain the 8-hour ozone NAAQS by June 15, 
2007. Upon the effective date of this rule, the Imperial County 
``marginal'' 8-hour ozone nonattainment area will be reclassified by 
operation of law as a ``moderate'' 8-hour ozone nonattainment area. 
Pursuant to section 182(i) of the CAA, EPA is establishing the schedule 
for submittal of the SIP revisions required for moderate areas once the 
area is reclassified. The required SIP revision for California must be 
submitted as expeditiously as practicable, but no later than December 
31, 2008.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
entitled ``Regulatory Planning and Review'' and is therefore not 
subject to review under the EO. The Agency has determined that the 
finding of nonattainment would result in none of the effects identified 
in the Executive Order. Under Section 181(b)(2) of the CAA, 
determinations of nonattainment are based upon air quality 
considerations and the resulting reclassifications must occur by 
operation of law.

[[Page 8211]]

B. Paperwork Reduction Act

    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.).

C. 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 rule will not have a significant impact on a substantial 
number of small entities. Determinations of nonattainment and the 
resulting reclassification of nonattainment areas by operation of law 
under section 181(b)(2) of the CAA do not in and of themselves create 
any new requirements. Instead, this rulemaking makes a factual 
determination, and does not directly regulate any entities. Therefore, 
I certify that this action will not have a significant economic impact 
on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act'' or ``UMRA''), signed into law on March 22, 
1995, EPA must prepare a budgetary impact statement to accompany any 
proposed or final rule that includes a Federal mandate that may result 
in estimated costs to State, local, or tribal governments in the 
aggregate, or to the 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 rulemaking action does not include a 
Federal mandate within the meaning of UMRA that may result in estimated 
costs of $100 million or more to either State, local, or tribal 
governments in the aggregate, or to the private sector. Also, EPA has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments and therefore 
is not subject to the requirements of section 203. EPA believes that 
the finding of nonattainment is a factual determination based upon air 
quality considerations and that the resulting reclassification of the 
area must occur by operation of law. Therefore EPA believes that the 
finding does not constitute a Federal mandate, as defined in section 
101 of the UMRA, because it does not impose an enforceable duty on any 
entity.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), revokes and replaces Executive Orders 12612 (Federalism) and 
12875 (Enhancing the Intergovernmental Partnership). Executive Order 
13132 requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132. This 
action merely determines that the Imperial County area has not attained 
by its applicable attainment date, reclassifies the Imperial County 
area as a moderate ozone nonattainment area, and adjusts applicable 
deadlines. It does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    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 Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This action 
is not subject to Executive Order 13045 because it is not economically 
significant as defined in E.O. 12866, and because the Agency does not 
have reason to believe the environmental health risks or safety risks 
addressed by this rule present a disproportionate risk to children. 
This action merely determines that the Imperial Valley area has not 
attained the standard by the applicable attainment date, reclassifies 
the Imperial Valley area as a moderate ozone nonattainment area, and 
adjusts applicable deadlines.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66

[[Page 8212]]

FR 28355, May 22, 2001) because it is not a significant regulatory 
action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS. This action merely determines that the Imperial County 
area has not attained by the applicable attainment date, reclassifies 
the Imperial County area as a moderate ozone nonattainment area, and 
adjusts applicable deadlines. Therefore, EPA did not consider the use 
of any voluntary consensus standards.

J. Congressional Review Act

    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. 
804(2). This rule will be effective March 14, 2008.

K. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 14, 2008. 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 81

    Environmental protection, Air pollution control, Incorporation by 
reference.

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

    Dated: January 24, 2008.
Jane Diamond,
Acting Regional Administrator, Region IX.

0
Part 81 of chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

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


0
2. In Sec.  81.305 the ``California-Ozone (8-Hour Standard)'' table is 
amended by revising the entry for ``Imperial County:'' to read as 
follows:


Sec.  81.305  California.

                                                                    California-Ozone
                                                                    [8-hour standard]
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                                                                Designation                                           Classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date\1\                       Type                        Date                   Classification
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                                                                      * * * * * * *
Imperial County, CA: Imperial County....  ...........  Nonattainment............................      3/14/08  Subpart 2/Moderate.

                                                                      * * * * * * *
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\1\ This date is June 15, 2004, unless otherwise noted.


[FR Doc. E8-2698 Filed 2-12-08; 8:45 am]

BILLING CODE 6560-50-P
