Rule2022-08570
Approval of Air Quality Implementation Plans; California; Ventura County; 8-Hour Ozone Nonattainment Area Requirements; Correction Due to Vacatur
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 22, 2022
Effective
April 22, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA or "Agency") is correcting the state implementation plan (SIP) for the State of California to remove from the Code of Federal Regulations (CFR) revisions to the California SIP that were initially approved into the SIP in a June 25, 2020 final action that was subsequently vacated and remanded to the EPA by the Court of Appeals for the Ninth Circuit. This action is exempt from notice-and-comment rulemaking because it is ministerial in nature.
Full Text
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<title>Federal Register, Volume 87 Issue 78 (Friday, April 22, 2022)</title>
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[Federal Register Volume 87, Number 78 (Friday, April 22, 2022)]
[Rules and Regulations]
[Pages 24060-24063]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-08570]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2018-0146; FRL-9681-01-R9]
Approval of Air Quality Implementation Plans; California; Ventura
County; 8-Hour Ozone Nonattainment Area Requirements; Correction Due to
Vacatur
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; correction.
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SUMMARY: The Environmental Protection Agency (EPA or ``Agency'') is
correcting the state implementation plan (SIP) for the State of
California to remove from the Code of Federal Regulations (CFR)
revisions to the California SIP that were initially approved into the
SIP in a June 25, 2020 final action that was subsequently vacated and
remanded to the EPA by the Court of Appeals for the Ninth Circuit. This
action is exempt from notice-and-comment rulemaking because it is
ministerial in nature.
DATES: This final rule is effective on April 22, 2022.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2018-0146. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information. If you need assistance
in a language other than English or if you are a person with
disabilities who needs a reasonable accommodation at no cost to you,
please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section.
FOR FURTHER INFORMATION CONTACT: Tom Kelly, Air Planning Office (AIR-
2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105, (415)
972-3856, or by email at <a href="/cdn-cgi/l/email-protection#c6ada3aaaabfe8b2aea9aba7b5b686a3b6a7e8a1a9b0"><span class="__cf_email__" data-cfemail="bcd7d9d0d0c592c8d4d3d1ddcfccfcd9ccdd92dbd3ca">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. Background and Rationale for This Action
II. Final Action
III. Statutory and Executive Order Reviews
I. Background and Rationale for This Action
Ground-level ozone pollution is formed from the reaction of
volatile organic compounds (VOC) and oxides of nitrogen
(NO<INF>X</INF>) in the presence of sunlight.\1\ These two pollutants,
referred to as ozone precursors, are emitted by many types of sources,
including on-and off-road motor vehicles and engines, power plants and
industrial facilities, and smaller area sources such as lawn and garden
equipment and paints. Scientific evidence indicates that adverse public
health effects occur following exposure to elevated levels of ozone,
particularly in children and adults with lung disease. Breathing air
containing ozone can reduce lung function and inflame airways, which
can increase respiratory symptoms and aggravate asthma or other lung
diseases.\2\
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\1\ The State of California refers to reactive organic gases
(ROG) rather than VOC in some of its ozone-related SIP submissions.
ROG and VOC refer essentially to the same set of chemical
constituents, and for the sake of simplicity, we refer to this set
of gases as VOC in this final rule.
\2\ See ``Fact Sheet--2008 Final Revisions to the National
Ambient Air Quality Standards for Ozone'' dated March 2008.
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Under section 109 of the Clean Air Act (CAA), the EPA promulgates
national ambient air quality standards (NAAQS) for pervasive air
pollutants, such as ozone. The EPA has previously promulgated NAAQS for
ozone in 1979 and 1997.\3\ In 2008, the EPA revised and further
strengthened the ozone NAAQS by setting the acceptable level of ozone
in the ambient air at 0.075 parts per million (ppm) averaged over an 8-
hour period (and herein referred to as the ``2008 ozone NAAQS'').\4\
Although the EPA further tightened the 8-hour ozone NAAQS to 0.070 ppm
in 2015, this action relates to the requirements for the 2008 ozone
NAAQS.\5\
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\3\ The ozone NAAQS promulgated in 1979 was 0.12 parts per
million (ppm) averaged over a 1-hour period (``1-hour ozone
NAAQS''). See 44 FR 8202 (February 8, 1979). The ozone NAAQS
promulgated in 1997 was 0.08 ppm averaged over an 8-hour period
(``1997 ozone NAAQS''). See 62 FR 38856 (July 18, 1997).
\4\ 73 FR 16436 (March 27, 2008).
\5\ Information on the 2015 ozone NAAQS is available at 80 FR
65292 (October 26, 2015).
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Following promulgation of a new or revised NAAQS, the EPA is
required under CAA section 107(d) to designate
[[Page 24061]]
areas throughout the country as attaining or not attaining the NAAQS.
The EPA classifies ozone nonattainment areas under CAA section 181
according to the severity of the ozone pollution problem, with
classifications ranging from ``Marginal'' to ``Extreme.'' State
planning and emissions control requirements for ozone are determined,
in part, by the nonattainment area's classification. The EPA designated
Ventura County as nonattainment for the 2008 ozone NAAQS on May 21,
2012 and classified the area as ``Serious.'' \6\ Ventura County lies
within California's South Central Coast Air Basin, which includes the
counties of Santa Barbara and San Luis Obispo, in addition to Ventura
County. The Ventura County ozone nonattainment area for the 2008 ozone
NAAQS includes the entire county except for the Channel Islands of
Anacapa and San Nicolas Islands.
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\6\ 77 FR 30088 (May 21, 2012).
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In California, the California Air Resources Board (CARB or
``State'') is the state agency responsible for the adoption and
submission to the EPA of California SIP submissions, and it has broad
authority to establish emissions standards and other requirements for
mobile sources. Under California law, local and regional air pollution
control districts in California are responsible for the regulation of
stationary sources and are generally responsible for the development of
regional air quality plans. In Ventura County, the Ventura County Air
Pollution Control District (VCAPCD or ``District'') develops and adopts
air quality management plans to address CAA planning requirements
applicable to that region. The District then submits such plans to CARB
for adoption and submission to the EPA as proposed revisions to the
California SIP.
Under the CAA, after the EPA designates areas as nonattainment for
a NAAQS, states with nonattainment areas are required to submit SIP
revisions. With respect to areas designated as nonattainment, states
must implement the 2008 ozone NAAQS under Title 1, part D of the CAA,
which includes section 172 (``Nonattainment plan provisions in
general'') and sections 181-185 of subpart 2 (``Additional Provisions
for Ozone Nonattainment Areas''). To assist states in developing
effective plans to address ozone nonattainment problems, in 2015, the
EPA issued a SIP Requirements Rule (SRR) for the 2008 ozone NAAQS
(``2008 Ozone SRR'') that addresses implementation of the 2008 ozone
NAAQS, including attainment dates, requirements for emissions
inventories, attainment and reasonable further progress (RFP)
demonstrations, and the transition from the 1997 ozone NAAQS to the
2008 ozone NAAQS and associated anti-backsliding requirements.\7\ The
2008 Ozone SRR is codified at 40 CFR part 51, subpart AA.
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\7\ 80 FR 12264 (March 6, 2015).
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In 2017 and 2018, CARB submitted SIP revisions to address the
nonattainment planning requirements for Ventura County for the 2008
ozone NAAQS, including the District's ``Final 2016 Ventura County Air
Quality Management Plan'' (February 14, 2017) (``2016 Ventura County
AQMP'') and CARB's ``2018 Updates to the California State
Implementation Plan'' (``2018 SIP Update''). In two separate final
rules, we approved the 2016 Ventura County AQMP and the 2018 SIP Update
as meeting all the applicable statutory and regulatory requirements for
the Ventura County Serious nonattainment area for the 2008 ozone NAAQS,
with the exception of the contingency measure requirement.\8\ For the
contingency measure requirement, we issued a conditional approval that
relied upon a commitment by the District to amend the District's
architectural coatings rule to include contingency provisions and a
commitment by CARB to submit the amended District rule to the EPA
within a year of final conditional approval of the contingency measure
element for Ventura County.\9\
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\8\ 85 FR 11814 (February 27, 2020); and 85 FR 38081 (June 25,
2020). The EPA's February 27, 2020 final approval of all other
elements of the 2016 Ventura County AQMP was not challenged and this
action does not relate to that final action.
\9\ 85 FR 38081, 38085.
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Under the CAA, ozone nonattainment areas classified under subpart 2
as Serious or above must include contingency measures in their SIPs
consistent with sections 172(c)(9) and 182(c)(9). Contingency measures
are additional controls or measures to be implemented in the event the
area fails to make RFP or to attain the NAAQS by the attainment date.
Contingency measures must be designed to be implemented prospectively;
already-implemented control measures may not serve as contingency
measures even if they provide emissions reductions beyond those needed
for any other CAA purpose. See Bahr v. EPA, 836 F.3d 1218, at 1235-1237
(9th Cir. 2016). The SIP should contain trigger mechanisms for the
contingency measures, specify a schedule for implementation, and
indicate that the measure will be implemented without significant
further action by the state or the EPA.\10\ Neither the CAA nor the
EPA's implementing regulations establish a specific amount of emissions
reductions that implementation of contingency measures must achieve,
but the 2008 Ozone SRR reiterates the EPA's guidance recommendation
that contingency measures should provide for emissions reductions
approximately equivalent to one year's worth of RFP, thus amounting to
reductions of 3 percent of the baseline emissions inventory for the
nonattainment area.\11\
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\10\ 70 FR 71612 (November 29, 2005); see also 2008 Ozone SRR,
80 FR 12264, 12285.
\11\ 80 FR 12264, 12285.
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The contingency measure element for Ventura County for the 2008
ozone NAAQS consists of the contingency-related portion of the 2016
Ventura County AQMP and the 2018 SIP Update's updated evaluation of the
surplus emissions reductions in Ventura County from already-implemented
measures.\12\ To supplement the contingency measure element for Ventura
County, the District and CARB committed to adopt and submit a
contingency measure within one year of the EPA's final conditional
approval of the contingency measure element.\13\ In December 2019, we
proposed conditional approval of the contingency measure element of the
2016 Ventura County AQMP, as modified by the 2018 SIP Update,\14\ and
the Center for Biological Diversity (CBD) submitted comments
challenging that proposed action.
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\12\ 84 FR 70109, 70124 (December 20, 2019).
\13\ The specific contingency measure that the District
committed to adopt consists of revisions to the District's
architectural coatings rule, such as lower VOC content limits for
certain coating categories, consistent with CARB's 2019 update of
its Suggested Control Measures for architectural coatings, to take
effect if the EPA determines that Ventura County failed to achieve
an RFP milestone or failed to attain the 2008 ozone NAAQS by the
applicable attainment date.
\14\ 84 FR 70109.
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CBD objected to our proposed conditional approval on several
grounds. First, CBD noted that the Agency had not provided an estimate
of the emissions reductions that would be achieved by the contingency
measure and asserted that the Agency must therefore assume the
reductions to be de minimis. CBD also challenged the proposed
conditional approval on the grounds that the EPA's consideration of
surplus emissions reductions from already-implemented measures in
evaluating the adequacy of contingency measures is functionally no
different than simply approving the already-implemented measures as
contingency measures, which is inconsistent with the Bahr v. EPA
decision. CBD also asserted that the EPA's approach would allow states
to meet the contingency
[[Page 24062]]
measure requirement through submission of token contingency measures so
long as already-implemented measures provide for surplus emissions
reductions equivalent to one year's worth of RFP. Contingency measures,
according to CBD, should at a minimum equal one year's worth of RFP.
For our final action, in light of CBD's comment regarding the
quantification of emissions reductions, based on preliminary estimates
provided by the District and CARB, the EPA estimated that the
contingency measure, i.e., the contingency provision in the
architectural coatings rule, would achieve emissions reductions
equivalent to approximately two to five percent of one year's worth of
RFP.\15\ Notwithstanding expected emissions reductions from the
contingency measure equivalent to only a fraction of one year's worth
of RFP, we found that the one contingency measure (i.e., once adopted,
submitted, and approved by the EPA) would be sufficient for the State
and District to meet the contingency measure requirement for Ventura
County for the 2008 ozone NAAQS because of the substantial surplus
emissions reductions we anticipate to occur in the future from already-
implemented measures.
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\15\ 85 FR 38081, 38083.
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CBD filed a petition for review of the EPA's June 25, 2020
conditional approval of the contingency measure element for Ventura
County for the 2008 ozone NAAQS.\16\ In September 2020, the Court
granted the EPA's unopposed motion to hold the case in abeyance until a
decision was reached by the Ninth Circuit in the Association of
Irritated Residents v. EPA case (No. 19-71223). The petitioners in the
Association of Irritated Residents v. EPA case had filed a brief
challenging the EPA's conditional approval of the contingency measure
element for San Joaquin Valley for the 2008 ozone NAAQS on similar
grounds as CBD had raised in comments on our proposed conditional
approval of the contingency measure element for Ventura County.
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\16\ Center for Biological Diversity v. EPA, Ninth Circuit Court
of Appeals, Case No. 20-72513.
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On August 26, 2021, the U.S. Court of Appeals for the Ninth Circuit
published its decision in the Association of Irritated Residents v. EPA
case, granting the petition in part and denying the petition in part.
The Court held that EPA's conditional approval of the contingency
measure element was arbitrary and capricious because, in the court's
view, the Agency had changed its position by accepting a contingency
measure that would achieve far less than one year's worth of RFP as
meeting the contingency measure requirement without a reasoned
explanation.\17\ The Court found that by taking into account the
emissions reductions from already-implemented measures to find that the
contingency measure would suffice to meet the applicable requirement,
the EPA was circumventing the court's 2016 holding in Bahr v. EPA. The
court rejected the EPA's arguments that the Agency's approach was
grounded in its long-standing guidance and was consistent with the
court's 2016 Bahr v. EPA decision. The court remanded the conditional
approval action back to the Agency for further proceedings consistent
with the decision.
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\17\ Association of Irritated Residents. v. EPA, 10 F.4th 937
(9th Cir. 2021).
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In light of the decision in the Association of Irritated Residents
v. EPA case and the overlap in the rationales presented by the EPA to
justify the conditional approvals of the contingency measure elements
for San Joaquin Valley and Ventura County and the grounds for
challenging those actions, the EPA filed an unopposed motion for
vacatur and voluntary remand in the Center for Biological Diversity v.
EPA case.\18\ The court granted the motion by order dated March 1,
2022.\19\ We will be proposing a new action on the contingency measure
element from the 2016 Ventura County AQMP, as modified by the 2018 SIP
Update, in a separate rulemaking.
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\18\ Center for Biological Diversity v. EPA, Ninth Circuit Court
of Appeals, Case No. 20-72513, Docket Entry: 15-1, December 6, 2021.
\19\ Center for Biological Diversity v. EPA, Ninth Circuit Court
of Appeals, Case No. 20-72513, Docket Entry: 16, March 1, 2022.
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II. Final Action
The EPA is correcting the codification of the California SIP in the
CFR to reflect the vacatur of the EPA's June 25, 2020 final action. The
EPA is taking this action as a final rule without providing an
opportunity for public comment because the EPA finds that the
Administrative Procedure Act (APA) good cause exemption applies. In
general, the APA requires that general notice of proposed rulemaking
shall be published in the Federal Register. Such notice must provide an
opportunity for public participation in the rulemaking process.
However, the APA also provides a way for an agency to directly issue a
final rulemaking in certain specific instances. This may occur, in
particular, when an agency for good cause finds (and incorporates the
finding and a brief statement of reasons in the rule issued) that
notice and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest. See 5 U.S.C. 553(b)(3)(B).
The EPA has determined that it is not necessary to provide an
opportunity for public comment on this action because the correction of
the CFR to reflect the vacatur of EPA's June 25, 2020 final action is a
necessary ministerial act. The Court, through its Order referencing the
Motion, vacated the rule conditionally approving the revisions to the
California SIP that this action removes from display in the CFR and
remanded this matter to the EPA. Therefore, removing the affected
regulatory text simply implements the decision of the Court, and it
would serve no useful purpose to provide an opportunity for public
comment on this issue. In addition, notice-and-comment would be
contrary to the public interest because it would unnecessarily delay
the correction of the applicable California SIP as identified in the
CFR. Such delay could result in confusion on the part of the regulated
industry and state, local, and tribal air agencies on the actual SIP-
approved provisions in the California SIP. For these reasons, the EPA
finds good cause to issue a final rulemaking pursuant to section 553 of
the APA, 5 U.S.C. 553(b)(3)(B). Moreover, the EPA finds that the
problems outlined above regarding the effects of delaying issuance of
the rule also provide good cause for not delaying its effective date. 5
U.S.C. 553(d)(3). Accordingly, the requirement for a delay in effective
date does not apply and the rule will take effect upon publication in
the Federal Register. 5 U.S.C. 553(d).
III. Statutory and Executive Order Reviews
A. General Requirements
This action merely makes ministerial corrections to the SIP
consistent with state law that the EPA had previously approved as
meeting federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
<bullet> Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
<bullet> Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
<bullet> Does not impose an information collection burden under the
provisions
[[Page 24063]]
of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
<bullet> Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation
land or in any other area where the EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, this action does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
B. Submission to Congress and the Comptroller General
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. The EPA will submit a report containing this action 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).
C. 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 June 21, 2022. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action 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 correcting the California SIP to
reflect the vacatur of EPA's June 25, 2020 final rule 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, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 18, 2022.
Deborah Jordan,
Acting Regional Administrator, Region IX.
Chapter I, title 40 of the Code of Federal Regulations is amended
as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
Sec. 52.220 [Amended]
0
2. Section 52.220 is amended by removing and reserving paragraphs
(c)(514)(ii)(A)(6) and (c)(532)(ii)(A)(2).
Sec. 52.248 [Amended]
0
3. Section 52.248 is amended by removing and reserving paragraph (j).
[FR Doc. 2022-08570 Filed 4-21-22; 8:45 am]
BILLING CODE 6560-50-P
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