Rule2023-12634
Disapproval of Clean Air Plans; Sacramento Metro, California; Contingency Measures for 2008 Ozone Standards
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
June 15, 2023
Effective
July 17, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is taking final action to disapprove under the Clean Air Act (CAA or "Act"), state implementation plan (SIP) submissions from the State of California that address contingency measures requirements for the 2008 ozone national ambient air quality standards (NAAQS) in the Sacramento Metro, California ozone nonattainment area. The EPA is finalizing this disapproval because the SIP submissions do not provide for contingency measures that would be triggered if the area fails to attain the NAAQS or make reasonable further progress (RFP).
Full Text
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<title>Federal Register, Volume 88 Issue 115 (Thursday, June 15, 2023)</title>
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[Federal Register Volume 88, Number 115 (Thursday, June 15, 2023)]
[Rules and Regulations]
[Pages 39179-39182]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12634]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2020-0425; FRL-10618-02-R9]
Disapproval of Clean Air Plans; Sacramento Metro, California;
Contingency Measures for 2008 Ozone Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to disapprove under the Clean Air Act (CAA or ``Act''), state
implementation plan (SIP) submissions from the State of California that
address contingency measures requirements for the 2008 ozone national
ambient air quality standards (NAAQS) in the Sacramento Metro,
California ozone nonattainment area. The EPA is finalizing this
disapproval because the SIP submissions do not provide for contingency
measures that would be triggered if the area fails to attain the NAAQS
or make reasonable further progress (RFP).
DATES: This rule is effective on July 17, 2023.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2020-0425. 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 a
disability 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: Laura Lawrence, EPA Region IX, (415)
972-3407, <a href="/cdn-cgi/l/email-protection#036f627471666d60662d6f62767162436673622d646c75"><span class="__cf_email__" data-cfemail="e589849297808b8680cb8984909784a5809584cb828a93">[email protected]</span></a>.
SUPPLEMENTAL INFORMATION: Throughout this document, ``we,'' ``us,'' and
``our'' refer to the EPA.
Table of Contents
I. Summary of Proposed Action
A. Regulatory Background
B. State Submissions and Previous EPA Actions
C. Contingency Measures Requirements
II. Public Comments
III. Final Action and Clean Air Act Consequences
IV. Statutory and Executive Order Reviews
I. Summary of Proposed Action
A. Regulatory Background
On March 28, 2023, the EPA proposed to disapprove under the CAA,
SIP submissions from the State of California that address the
contingency measures requirements for the 2008 ozone NAAQS for the
Sacramento Metro, California ozone nonattainment area.\1\ This proposed
disapproval addressed the contingency measures portions of the
following two SIP submissions: the ``Sacramento Regional 2008 NAAQS 8-
hour Ozone Attainment and Reasonable
[[Page 39180]]
Further Progress Plan,'' submitted in 2017 (``2017 Sacramento Regional
Ozone Plan''), and the Sacramento Metro portion of the ``2018 Updates
to the California State Implementation Plan,'' submitted in 2018
(``2018 SIP Update''). In this same rulemaking, we also proposed to
make a protective finding for the Sacramento Metro area under the
transportation conformity rule.\2\ The Sacramento Metro ozone
nonattainment area consists of Sacramento and Yolo counties, and
portions of El Dorado, Placer, Solano, and Sutter counties, and is
regulated by the California Air Resources Board (CARB or ``State'') and
five local air districts (``Districts'').\3\ The area has a
classification of ``Severe-15'' for the 2008 ozone NAAQS, with an
attainment date of December 31, 2024. Accordingly, the area is subject
to the requirements for Severe ozone nonattainment areas, including the
requirement to submit contingency measures consistent with CAA
172(c)(9) and 182(c)(9), as discussed further in Section I.C of this
document.
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\1\ 88 FR 18286.
\2\ Id. at 18289. For an explanation of the consequences of a
protective finding under the transportation conformity rule, see
footnote 19 in Section III of this document.
\3\ The five local air districts with jurisdiction in the area
are the El Dorado County Air Quality Management District (EDCAQMD),
the Feather River Air Quality Management District (FRAQMD), the
Placer County Air Pollution Control District (PCAPCD), the
Sacramento Metropolitan Air Quality Management District (SMAQMD),
and the Yolo-Solano Air Quality Management District (YSAQMD).
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Our proposed action includes additional information about ozone and
its precursor emissions, the Sacramento Metro nonattainment area, and
the CAA regulatory framework for ozone nonattainment areas, including
submittal requirements established in the EPA's SIP Requirements Rule
for the 2008 ozone NAAQS.\4\
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\4\ 88 FR 18286, 18287-18289.
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B. State Submissions and Previous EPA Actions
CARB submitted the 2017 Sacramento Regional Ozone Plan to the EPA
as a revision to the California SIP on December 18, 2017,\5\ and
submitted the 2018 SIP Update to the EPA as a revision to the
California SIP on December 11, 2018.\6\ The 2018 SIP Update provides
updates to prior SIP submittals for eight California nonattainment
areas, including the Sacramento Metro area, in response to the decision
by the U.S. Court of Appeals for the Ninth Circuit (``Ninth Circuit'')
in Bahr v. EPA.\7\ Both submittals address nonattainment area
requirements for the Sacramento Metro area concerning the 2008 ozone
NAAQS, including the contingency measures requirements.\8\ In 2020,
CARB \9\ and the Districts \10\ committed to supplement the contingency
measures elements in the 2017 Sacramento Regional Ozone Plan and the
2018 SIP Update by adopting and submitting, within 12 months of a final
conditional approval of the contingency measures element, additional
contingency measures that would be triggered upon the area's failure to
attain or to meet RFP.
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\5\ Letter dated December 18, 2017, from Richard Corey,
Executive Officer, CARB, to Alexis Strauss, Acting Regional
Administrator, EPA Region IX.
\6\ Letter dated December 5, 2018, from Richard Corey, Executive
Officer, CARB, to Mike Stoker, Regional Administrator, EPA Region IX
(submitted electronically December 11, 2018).
\7\ Bahr v. EPA, 836 F.3d 1218 (9th Cir. 2016). In this case,
the court rejected the EPA's longstanding interpretation of CAA
section 172(c)(9) as allowing for early implementation of
contingency measures. The court concluded that a contingency measure
must take effect at the time the area fails to make RFP or attain by
the applicable attainment date, not before. See also Sierra Club v.
EPA, 985 F.3d 1055 (D.C. Cir. 2021), reaching a similar decision.
\8\ For a more complete description of the 2017 Sacramento
Regional Ozone Plan and 2018 SIP Update as they relate to the
Sacramento Metro nonattainment area for the 2008 ozone NAAQS, see 85
FR 68509, 68512 (October 29, 2020).
\9\ Letter dated July 7, 2020, from Richard W. Corey, Executive
Officer, CARB, to John Busterud, Regional Administrator, EPA Region
IX.
\10\ Letter dated May 26, 2020, from Alberto Ayala, Ph.D.,
M.S.E, Executive Officer/Air Pollution Control Officer, SMAQMD, Dave
Johnston, Air Pollution Control Officer, EDCAQMD, Christopher Brown,
AICP, Air Pollution Control Officer, FRAQMD, Erik White, Air
Pollution Control Officer, PCAPCD, and Mat Erhardt, P.E., Executive
Director/Air Pollution Control Officer, YSAQMD, to Richard Corey,
Executive Officer, CARB, Subject: ``Commitments from the Sacremento
Regional 2008 NAAOS 8-Hour Zone Attainment and Reasonable Further
Progress Plan.''
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The EPA previously approved the 2017 Sacramento Regional Ozone Plan
and the 2018 SIP Update as meeting the emissions inventory, attainment
demonstration, reasonable further progress, reasonable available
control measures, and motor vehicle emissions budgets requirements for
the 2008 ozone NAAQS for the Sacramento Metro nonattainment area.\11\
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\11\ 86 FR 58581 (October 22, 2021).
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Regarding the contingency measures requirements, on October 29,
2020, we proposed to conditionally approve the contingency measures
element of the 2017 Sacramento Regional Ozone Plan and the 2018 SIP
Update, based on the commitments by the Districts and CARB to submit
the new and amended District rules to the EPA within 12 months of a
final conditional approval of the contingency measures element for the
Sacramento Metro area.\12\ On August 26, 2021, the Ninth Circuit issued
a decision in Association of Irritated Residents v. U.S. Environmental
Protection Agency \13\ (``AIR v. EPA'') which remanded the EPA's
conditional approval of contingency measures for the San Joaquin Valley
nonattainment area, another nonattainment area in California. Our
proposed conditional approval of the contingency measures requirements
for the Sacramento Metro area had relied on a similar approach as the
one remanded by the court in AIR v. EPA. Based on the Ninth Circuit's
decision in AIR v. EPA, we did not finalize our proposed conditional
approval of the contingency measures element for the Sacramento Metro
area.\14\ Our March 28, 2023 proposed disapproval action \15\ replaced
our October 29, 2020 proposed conditional approval of the contingency
measures element.
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\12\ 85 FR 68509.
\13\ 10 F.4th 937 (9th Cir. 2021).
\14\ 86 FR 58581, 58590 (responding to comments on proposed
approval of contingency measures element submitted by Air Law for
All, Ltd. on behalf of the Center for Biological Diversity and
Center for Environmental Health).
\15\ 88 FR 18266.
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Our proposed disapproval action includes more information about
CARB's submittals for the 2008 ozone NAAQS and the EPA's previous
actions on these submittals.\16\
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\16\ Id. at 18288.
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C. Contingency Measures Requirements
Ozone nonattainment areas classified under subpart 2 of the CAA as
``Serious'' or above must include in their SIPs contingency measures
consistent with CAA sections 172(c)(9) and 182(c)(9). Contingency
measures are additional controls or measures to be implemented in the
event that an area fails to make RFP or to attain the NAAQS by the
attainment date. CAA section 172(c)(9) requires states with
nonattainment areas to provide for the implementation of specific
measures to be undertaken if the area fails to make RFP or to attain
the NAAQS by the applicable attainment date. Such measures must be
included in the SIP as contingency measures to take effect in any such
case without further action by the state or the EPA. Similarly, CAA
section 182(c)(9) requires states with an ozone nonattainment area
classified as Serious or above to provide contingency measures in the
event that the area fails to meet any applicable RFP milestone.
Contingency measures must be designed so as to be implemented
prospectively; control measures that have already been implemented may
not serve as contingency measures even if they provide emissions
reductions
[[Page 39181]]
beyond those needed for any other CAA purpose.\17\ The SIP should
contain trigger mechanisms for the contingency measures, specify a
schedule for implementation, and indicate that the measure or measures
will be implemented without significant further action by the state or
the EPA.\18\
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\17\ See Bahr v. EPA, 836 F.3d at 1235-1237 (9th Cir. 2016).
\18\ For more information about the contingency measures
requirements, see the 1997 Ozone Phase 2 Implementation Rule at 70
FR 71612 (November 29, 2005) and the 2008 Ozone SRR at 80 FR 12264,
12285.
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As noted in Section I.B of this document and in our proposed
action, the EPA previously proposed a conditional approval of the
contingency measures requirements for the Sacramento Metro area, based
upon commitments by the Districts and CARB to adopt and submit
additional contingency measure provisions in District rules within 12
months of the final conditional approval. Because the EPA did not
finalize the conditional approval, the Districts and CARB did not
submit the additional contingency measure provisions. Thus, the
relevant submittals before us are limited to the portions of the 2017
Sacramento Regional Ozone Plan and 2018 SIP Update that address the
contingency measures requirements for the Sacramento Metro area.
These submittals provide only an analysis of surplus emissions, and
do not include specific measures to be triggered upon a failure to
attain or to meet an RFP milestone. As described in detail in our
proposed action, this approach is inconsistent with CAA sections
172(c)(9) and 182(c)(9), in light of the Ninth Circuit's decisions in
Bahr v. EPA and AIR v. EPA. For this reason, we are taking final action
to disapprove these portions of the 2017 Sacramento Regional Ozone Plan
and 2018 SIP Update as contingency measures for the Sacramento Metro
area for the 2008 ozone NAAQS.
II. Public Comments
Our proposed action provided for a 30-day comment period, during
which we received no comments.
III. Final Action and Clean Air Act Consequences
For the reasons summarized herein and presented in more detail in
the proposed action, we are taking final action to disapprove the 2017
Sacramento Regional Ozone Plan and 2018 SIP Update with respect to CAA
contingency measures requirements under CAA sections 172(c)(9) and
182(c)(9) for the Sacramento Metro area for the 2008 ozone NAAQS. We
are also making a protective finding under the transportation
conformity rule because, notwithstanding the disapproval of the
contingency measures element, the 2017 Sacramento Regional Ozone Plan,
as modified by the 2018 SIP Update, reflects adopted control measures
and contains enforceable commitments that fully satisfy the emissions
reductions requirements for RFP and attainment for the 2008 ozone
NAAQS.\19\
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\19\ 40 CFR 93.120(a)(3). Without a protective finding, this
disapproval action would result in a conformity freeze, under which
only projects in the first four years of the most recent conforming
Regional Transportation Plan (RTP) and Transportation Improvement
Programs (TIP) can proceed. Generally, during a freeze, no new RTPs,
TIPs, or RTP/TIP amendments can be found to conform until another
control strategy implementation plan revision fulfilling the same
CAA requirements is submitted, the EPA finds the motor vehicle
emissions budget(s) in the plan revision adequate pursuant to 40 CFR
93.118 or approves the submission, and conformity to the
implementation plan revision is determined. Under a protective
finding, disapproval of the contingency measures element will not
result in a transportation conformity freeze in the Sacramento Metro
ozone nonattainment area and the local metropolitan planning
organizations may continue to make transportation conformity
determinations.
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As a consequence of this final disapproval of the contingency
measures element, the EPA must promulgate a federal implementation plan
(FIP) under section 110(c) unless we approve subsequent SIP revisions
that correct the rule deficiencies within 24 months of the effective
date of this action. In addition, under 40 CFR 52.35, the offset
sanction in CAA section 179(b)(2) will be imposed 18 months after the
effective date of this action, and the highway funding sanction in CAA
section 179(b)(1) six months after the offset sanction is imposed. A
sanction will not be imposed if the EPA determines that a subsequent
SIP submission corrects the identified deficiencies before the
applicable deadline.
IV. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA, because this SIP disapproval does not in-and-of itself create
any new information collection burdens, but simply disapproves certain
state requirements for inclusion in the SIP.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This SIP
disapproval does not in-and-of itself create any new requirements but
simply disapproves certain state requirements for inclusion in the SIP.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action disapproves 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.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It 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.
F. Executive Order 13175: Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP revision that the EPA is
disapproving would not 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, and will not impose substantial direct costs on
tribal governments or preempt tribal law. Thus, Executive Order 13175
does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per
[[Page 39182]]
the definition of ``covered regulatory action'' in section 2-202 of the
Executive Order. This action is not subject to Executive Order 13045
because this SIP disapproval does not in-and-of itself create any new
regulations, but simply disapproves certain state requirements for
inclusion in the SIP.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
The EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' The EPA further defines the term fair treatment to mean
that ``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to review state choices,
and approve those choices if they meet the minimum criteria of the Act.
Accordingly, this final action disapproves state law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by state law.
Neither CARB nor the Districts evaluated environmental justice
considerations as part of their SIP submittals; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. The EPA did not perform an environmental justice analysis
and did not consider environmental justice in this action.
Consideration of environmental justice is not required as part of this
action, and there is no information in the record inconsistent with the
stated goal of E.O. 12898 of achieving environmental justice for people
of color, low-income populations, and Indigenous peoples.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
L. 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 [August 14, 2023. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 7, 2023.
Martha Guzman Aceves,
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
0
2. Section 52.237 is amended by adding paragraph (a)(14) to read as
follows:
Sec. 52.237 Part D disapproval.
(a) * * *
(14) The contingency measures element of the ``Sacramento Regional
2008 NAAQS 8-hour Ozone Attainment and Reasonable Further Progress
Plan,'' adopted November 16, 2017, as modified by the ``2018 Updates to
the California State Implementation Plan,'' adopted October 25, 2018,
for the Sacramento Metro area with respect to the 2008 ozone NAAQS.
* * * * *
[FR Doc. 2023-12634 Filed 6-14-23; 8:45 am]
BILLING CODE 6560-50-P
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