Proposed Rule2023-27688
Air Plan Revisions; California; Vehicle Inspection and Maintenance Contingency Measure
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
December 20, 2023
Issuing agencies
Environmental Protection Agency
Abstract
Under the Clean Air Act (CAA or "Act"), the Environmental Protection Agency (EPA) is proposing to approve revisions to the California State Implementation Plan (SIP). These revisions concern an amendment to the California motor vehicle inspection and maintenance (I/M) program (also referred to as "Smog Check") to include a contingency measure that, if triggered, would narrow the Smog Check inspection exemption for newer model year vehicles in certain California nonattainment areas. The EPA is proposing to approve, as part of the California SIP, the contingency measure and a related statutory provision that authorizes the contingency measure because they meet all the applicable requirements. We are taking comments on this proposal and plan to follow with a final action.
Full Text
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<title>Federal Register, Volume 88 Issue 243 (Wednesday, December 20, 2023)</title>
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[Federal Register Volume 88, Number 243 (Wednesday, December 20, 2023)]
[Proposed Rules]
[Pages 87981-87988]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27688]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2023-0524; FRL-11525-01-R9]
Air Plan Revisions; California; Vehicle Inspection and
Maintenance Contingency Measure
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Under the Clean Air Act (CAA or ``Act''), the Environmental
Protection Agency (EPA) is proposing to approve revisions to the
California State Implementation Plan (SIP). These revisions concern an
amendment to the California motor vehicle inspection and maintenance
(I/M) program (also referred to as ``Smog Check'') to include a
contingency measure that, if triggered, would narrow the Smog Check
inspection exemption for newer model year vehicles in certain
California nonattainment areas. The EPA is proposing to approve, as
part of the California SIP, the contingency measure and a related
statutory provision that authorizes the contingency measure because
they meet all the applicable requirements. We are taking comments on
this proposal and plan to follow with a final action.
DATES: Comments must be received on or before January 19, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0524 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. For comments submitted at
<a href="http://Regulations.gov">Regulations.gov</a>, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://Regulations.gov">Regulations.gov</a>. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
[[Page 87982]]
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e. on the web, cloud, or other file sharing system). For
additional submission methods, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>. 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: Jeffrey Buss, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4152 or by
email at <a href="/cdn-cgi/l/email-protection#b7f5c2c4c499fdd2d1d1c5d2cef7d2c7d699d0d8c1"><span class="__cf_email__" data-cfemail="f8ba8d8b8bd6b29d9e9e8a9d81b89d8899d69f978e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.
Table of Contents
I. The State's Submittal
A. What measure did the State submit?
B. Are there other versions of this measure?
C. What is the purpose of the submitted measure?
II. The EPA's Evaluation and Action
A. How is the EPA evaluating the measure?
B. Does the measure meet the evaluation criteria?
C. Did the State consider environmental justice in developing
this measure?
D. Proposed Action and Public Comments
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. The State's Submittal
A. What measure did the State submit?
Table 1 lists the measure and the related statutory provision
addressed by this proposal with the dates they were adopted and
submitted by the California Air Resources Board (CARB).
Table 1--Submitted Measure and Statutory Provision
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Measure/statutory
Agency Statute No. provision title Adopted/amended/ revised Submitted
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CARB......... Not Applicable.... California Smog October 26, 2023............. November 13, 2023.
Check Contingency
Measure State
Implementation
Plan Revision.
CARB......... CA Health & Safety Certificate of Effective on October 10, 2017 November 13, 2023.
Code (H&SC) compliance or
section noncompliance;
44011(a)(4)(A) biennial
and (B). requirement;
exceptions;
inspections;
exemption from
testing for
collector motor
vehicle.
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CARB's November 13, 2023 SIP submission includes the ``California
Smog Check Contingency Measure State Implementation Plan Revision''
(Released: September 15, 2023) (``Smog Check Contingency Measure
SIP''). The Smog Check Contingency Measure itself is presented in
Section 4 of the Smog Check Contingency Measure SIP. Other sections
address the contingency measure requirements, discuss the opportunities
for CARB to adopt contingency measures, provide the background on the
California Smog Check program, and present the emission reductions
estimates for the ten California nonattainment areas for which the Smog
Check Contingency Measure was developed. The appendices included with
the Smog Check Contingency Measure SIP include an infeasibility
analysis, documentation of emissions estimates, and California H&SC
section 44011(a)(4)(A) and (B), effective October 10, 2017. The SIP
submission also includes the Notice of Public Hearing, dated September
15, 2023, and CARB Resolution 23-20 (October 26, 2023) adopting the
Smog Check Contingency Measure SIP as a revision to the California SIP.
The EPA has reviewed the November 13, 2023 SIP submission of the
Smog Check Contingency Measure SIP and finds it to be administratively
complete for the purposes of CAA section 110(k)(1), effective upon
publication of this proposed rule.\1\
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\1\ EPA Region 9 SIP Completeness Checklist, November 20, 2023.
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B. Are there other versions of this measure?
There is no previously approved version of the submitted
contingency measure. We approved an earlier version of California H&SC
section 44011 in our most recent final action approving the regulatory
and statutory foundation for the California Smog Check program.\2\
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\2\ 75 FR 38023 (July 1, 2010). See 40 CFR
52.220(c)(372)(ii)(A)(3). California H&SC section 44011 is found in
Division 26, Part 5, Chapter 5, Article 2 of the California H&SC.
The existing SIP version of California H&SC section 44011 is the
version that was operative on April 1, 2005.
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C. What is the purpose of the submitted measure?
Emissions of volatile organic compounds (VOCs) and oxides of
nitrogen (NO<INF>X</INF>) contribute to the production of ground-level
ozone, smog and particulate matter (PM), which harm human health and
the environment. The EPA has established national ambient air quality
standards (NAAQS) to protect public health and welfare for certain
pervasive air pollutants, including ozone and fine PM
(PM<INF>2.5</INF>). Section 110 of the CAA requires states to adopt and
submit plans (``State Implementation Plans,'' or ``SIPs'') that provide
for implementation, maintenance, and enforcement of the NAAQS within
such state. Section 110(a) of the CAA requires SIPs to include
enforceable emission limitations and other control measures, means or
techniques to meet CAA SIP requirements, such as regulations that
control VOC, NO<INF>X</INF>, and PM emissions.
Additionally, section 182(b)(4) of the CAA requires states with
ozone nonattainment areas classified under subpart 2 as Moderate to
submit SIP revisions that provide for the implementation of a ``Basic''
vehicle inspection and maintenance (I/M) program in those areas.
Section 182(c)(3) of the CAA requires states with ozone nonattainment
areas classified under subpart 2 as Serious or above to submit SIP
revisions that provide for the implementation of an ``Enhanced'' I/M
program in certain urbanized portions of those areas.\3\
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\3\ The CAA I/M SIP requirements apply to Moderate and above
nonattainment areas for the 2008 and 2015 ozone NAAQS pursuant to 40
CFR 51.1102 (for the 2008 ozone NAAQS) and 40 CFR 51.1302 (for the
2015 ozone NAAQS).
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As a general matter, Basic and Enhanced I/M programs both achieve
their objective by identifying vehicles that have high emissions due to
one or more malfunctions and requiring them to be repaired. An Enhanced
program covers more of the vehicles in operation and has additional
features to better assure that all vehicles are tested properly and
effectively repaired. The EPA has established specific
[[Page 87983]]
requirements for Basic and Enhanced I/M programs in 40 CFR part 51,
subpart S (``The EPA's I/M regulation''). The EPA's I/M regulation
establishes minimum performance standards for Basic and Enhanced I/M
programs as well as requirements for certain elements of the programs,
including, among other elements, test frequency, vehicle coverage, test
procedures and standards, stations and inspectors, and data collection,
analysis, and reporting.\4\
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\4\ 40 CFR part 51, subpart S, sections 350-373.
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The EPA most recently approved California's Smog Check program into
its SIP in 2010, and in that action, the EPA approved the program as
meeting the applicable I/M requirements for the various nonattainment
areas in the State.\5\ The California Bureau of Automotive Repair (BAR)
implements the SIP-approved Smog Check program in California, including
oversight of the automotive repair industry and administration of the
State's vehicle emissions reduction and safety programs. The California
Department of Motor Vehicles (DMV) administers motor vehicle
registration and licensing and supports BAR in administering the Smog
Check program.\6\
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\5\ 75 FR 38023 (July 1, 2010).
\6\ Smog Check Contingency Measure SIP, at page 15.
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Section 172(c)(9) of the CAA requires states with nonattainment
areas to submit SIP revisions that provide for the implementation of
specific measures, referred to as contingency measures, to be
undertaken if the area fails to make reasonable further progress (RFP)
or fails to attain the NAAQS by the applicable attainment date. Section
172(c)(9) of the CAA further specifies that contingency measures must
be structured so as to take effect without further action by the state
or the EPA. For ozone nonattainment areas classified as Serious and
above, CAA section 182(c)(9) requires the SIP to include contingency
measures to be undertaken if the area fails to meet any applicable RFP
milestone. For PM<INF>2.5</INF> nonattainment areas, the EPA's
PM<INF>2.5</INF> SIP Requirements Rule \7\ requires the SIP to include
contingency measures to be undertaken following a determination by the
EPA that the area has failed: (1) to meet any RFP requirement in an
attainment plan approved in accordance with 40 CFR 51.1012; (2) to meet
any quantitative milestone in an attainment plan approved in accordance
with 40 CFR 51.1013; (3) to submit a quantitative milestone report
required under 40 CFR 51.1013(b); or, (4) to attain the applicable
PM<INF>2.5</INF> NAAQS by the applicable attainment date.\8\
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\7\ 81 FR 58010 (August 24, 2016).
\8\ 40 CFR 51.1014(a).
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Contingency measures must be designed so as to be implemented
prospectively and conditionally upon a triggering event; already-
implemented control measures may not serve as contingency measures even
if they provide emissions reductions beyond those needed for any other
CAA purpose.\9\ Contingency measures must also consist of control
measures that are not otherwise included in the control strategy or
that achieve emissions reductions not otherwise relied upon in the
control strategy for the area to meet RFP or to demonstrate attainment;
and must specify the timeframe within which its requirements become
effective following a determination by the EPA that triggers the
contingency measure.\10\ Also, SIPs addressing the contingency measure
requirement must contain a description of the specific trigger
mechanisms for the contingency measure(s) and specify a schedule for
implementation.\11\ Generally, the EPA expects contingency measures to
be implemented within approximately 60 days of a triggering event, and
that the implemented contingency measures achieve the additional
emissions reductions within a year of the triggering event.
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\9\ See Bahr v. EPA, 836 F.3d 1218, at 1235-1237 (9th Cir.
2016).
\10\ 40 CFR 51.1014(b).
\11\ 40 CFR 51.1014(c).
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The purpose of this SIP revision is to include the Smog Check
Contingency Measure into the California SIP to address, in part, the
contingency measure requirements for certain nonattainment areas with
respect to certain ozone and PM<INF>2.5</INF> NAAQS.\12\ The applicable
nonattainment areas and NAAQS are Coachella Valley (2008 and 2015 ozone
NAAQS), Eastern Kern County (2008 and 2015 ozone NAAQS), Mariposa
County (2015 ozone NAAQS), Sacramento Metro Area (2008 and 2015 ozone
NAAQS), San Diego County (2008 and 2015 ozone NAAQS), San Joaquin
Valley (1997, 2008, and 2015 ozone NAAQS; 1997 annual, 2006 24-hour,
and 2012 annual PM<INF>2.5</INF> NAAQS), South Coast Air Basin (2008
and 2015 ozone NAAQS; 2012 annual PM<INF>2.5</INF> NAAQS), Ventura
County (2015 ozone NAAQS), Western Mojave Desert (2008 and 2015 ozone
NAAQS), and Western Nevada County (2015 ozone NAAQS).\13\
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\12\ Smog Check Contingency Measure SIP, pages 11-12: ``The
Measure consists of a triggered contingency measure that, if
triggered, would change the exemptions for motor vehicles in the
California Smog Check Program for the relevant local air district
and applicable standard as specified in Table 1 that, together with
the local air districts' contingency measures, addresses the
contingency measure requirements of the Act.''
\13\ Smog Check Contingency Measure SIP, Table 1, at page 3.
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Under the current California Smog Check program, certain vehicles
are exempt from the biennial inspection requirement, including vehicles
eight or fewer model years old. The Smog Check Contingency Measure, if
triggered, will reduce this exemption \14\ to seven model years in the
nonattainment area at issue upon the first triggering event and to six
model years in the nonattainment area at issue upon a second triggering
event. Reducing the inspection exemption will increase the number of
inspected vehicles and therefore result in additional emission
reductions. CARB is authorized under California H&SC section
44011(a)(4)(B)(ii) to narrow the newer model year vehicle inspection
exemption from eight or fewer model years old, to seven or fewer model
years old, and then to six or less model years old if CARB makes
certain findings.
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\14\ The statutory provision included with the Smog Check
Contingency Measure SIP (California H&SC section 44011(a)(4)(A) and
(B)) refers to the deferral in applicability of the biennial Smog
Check inspection requirement based on the age of the vehicle (in
model years) as an ``exception'' rather than as an ``exemption.''
Our I/M regulations use the term ``exemption'' for such provisions,
and we do so as well in this document.
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Pursuant to the Smog Check Contingency Measure, within 30 days of
the EPA's determination that a nonattainment area covered by the
measure has failed to meet a reasonable further progress (RFP)
milestone, meet an qualitative milestone, submit a required
quantitative milestone report or milestone compliance demonstration, or
attain the relevant NAAQS by the applicable attainment date, CARB will
be obligated to transmit a letter to BAR and the DMV finding that
providing an exemption from Smog Check for certain vehicles in the area
at issue will prohibit the State from meeting the State's commitments
with respect to the SIP required by the CAA, effectuating a reduction
in the Smog Check vehicle inspection exemption to begin with the new
calendar year.\15\
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\15\ Smog Check Contingency Measure SIP, at page 16-17.
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II. The EPA's Evaluation and Action
A. How is the EPA evaluating the measure?
The EPA has evaluated the Smog Check Contingency Measure SIP
against the applicable procedural and substantive requirements of the
CAA for SIPs and SIP revisions and is proposing to conclude that the
Smog Check Contingency Measure SIP meets all of the applicable
requirements. A SIP must
[[Page 87984]]
include enforceable emission limitations and other control measures,
means, or techniques, as well as schedules and timetables for
compliance, as may be necessary to meet the requirements of the Act
(see CAA section 110(a)(2)(A)); provide necessary assurances that the
state will have adequate personnel, funding, and authority under state
law to carry out such SIP (and is not prohibited by any provision of
federal or state law from carrying out such SIP) (see CAA section
110(a)(2)(E)); be adopted by a state after reasonable notice and public
hearing (see CAA section 110(l)); and not interfere with any applicable
requirement concerning attainment and reasonable further progress, or
any other applicable requirement of the Act (see CAA section
110(l)).\16\ We are also evaluating whether the measure meets the
requirements for contingency measures for ozone and PM<INF>2.5</INF>
nonattainment areas as specified in CAA sections 172(c)(9) and
182(c)(9) and 40 CFR 51.1014.
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\16\ The Smog Check Contingency Measure SIP is also not
prohibited under CAA section 193, which prohibits any pre-1990 SIP
control requirement relating to nonattainment pollutants in
nonattainment areas from being modified unless the SIP is revised to
insure equivalent or greater emission reductions of such air
pollutants, because, by narrowing an exemption to testing, the Smog
Check Contingency Measure (if triggered) would increase emissions
reductions from the Smog Check program.
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B. Does the measure meet the evaluation criteria?
1. Did the State provide for reasonable public notice and hearing prior
to adoption?
Under CAA sections 110(a)(1), 110(a)(2), and 110(l), states must
adopt and submit SIP revisions after reasonable notice and public
hearing. In 40 CFR 51.102(d), the EPA specifies that reasonable public
notice in this context is at least 30 days.
CARB adopted the Smog Check Contingency Measure SIP on October 26,
2023, through Resolution 23-20 following a public hearing held on that
same day. Prior to adoption, CARB published notice on September 15,
2023 of an October 26, 2023, public hearing, and provided a 30-day
written comment period. CARB submitted the Smog Check Contingency
Measure SIP to the EPA on November 13, 2023, along with various other
materials comprising the SIP submission package, including copies of
public comments received during the comment period and CARB's responses
to the comments.
Based on the materials provided in the November 13, 2023 SIP
submission and summarized above, we are proposing to find that CARB has
met the procedural requirements for adoption and submission of SIPs and
SIP revisions under CAA sections 110(a)(1), 110(a)(2) and 110(l) and 40
CFR 51.102 with respect to the Smog Check Contingency Measure SIP.
2. Does the State have adequate legal authority to implement the
measure?
CAA section 110(a)(2)(E)(i) requires states to provide with their
SIPs necessary assurances that the state or relevant local or regional
agency will have adequate legal authority to carry out the SIP (and is
not prohibited by any provision of Federal or state law from carrying
out such SIP).
California H&SC section 44011(a)(4)(B) provides CARB with adequate
legal authority to implement the Smog Check Contingency Measure.
California H&SC section 44011 requires all motor vehicles powered by
internal combustion engines that are registered within an area
designated for Smog Check program coverage to be subject to biennial
emissions inspection requirements, with certain exceptions. Under
California H&SC section 44011(a)(4)(A), motor vehicles four or fewer
model years old are exempted. Beginning January 1, 2005, California
H&SC section 44011(a)(4)(B)(i) extends the exemption to motor vehicles
six or fewer model years old ``unless the state board finds that
providing an exception for these vehicles will prohibit the state from
meeting the requirements of Section 176(c) of the federal Clean Air Act
(42 U.S.C. 7401 et seq.) or the state's commitments with respect to the
state implementation plan required by the federal Clean Air Act.''
Beginning January 1, 2019, California H&SC section
44011(a)(4)(B)(ii) further extends the exemption to motor vehicles
eight or fewer model years old, once again, ``unless the state board
finds that providing an exception for these vehicles will prohibit the
state from meeting the requirements of Section 176(c) of the federal
Clean Air Act (42 U.S.C. 7401 et seq.) or the state's commitments with
respect to the state implementation plan required by the federal Clean
Air Act.'' Instead of the biennial Smog Check inspection, registered
owners of motor vehicles seven or eight model years old are required to
pay an annual $25 Smog Abatement Fee, $21 of which of which goes to the
Air Pollution Control Fund for use to incentivize the purchase of
cleaner vehicles and equipment through the Carl Moyer Memorial Air
Quality Standards Attainment Program (Moyer Program).\17\
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\17\ Smog Check Contingency Measure SIP, at page 1.
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The Smog Check Contingency Measure SIP provides the framework for
CARB to make the finding that is the prerequisite to the narrowing of
the exemption from eight or fewer model years old to seven or fewer
model years old, and then from seven model years old to six model years
old (if triggered a second time in a given nonattainment area) and to
set in motion the sequence of actions necessary to effectuate that
change in the Smog Check program. Under the terms of the Smog Check
Contingency Measure SIP, CARB's finding (and the subsequent narrowing
of the newer model year exemption) is based on the EPA's determination
that a given nonattainment area failed to attain the relevant NAAQS by
the applicable attainment date, meet a reasonable further progress
(RFP) milestone, meet a quantitative milestone; or submit a required
quantitative milestone report or milestone compliance demonstration.
Moreover, CARB's finding and subsequent narrowing of the newer model
year exemption will allow the relevant State agencies to fulfill their
``commitments with respect to the state implementation plan required by
the federal Clean Air Act.'' In this instance, the commitments are the
obligations placed on CARB, BAR and the DMV that are set forth in the
Smog Check Contingency Measure SIP to effectuate this change in the
Smog Check program (if triggered) once the Smog Check Contingency
Measure SIP is approved as part of the California SIP.
In addition, as a recipient of federal funds, CARB acknowledges
that it must ensure that it complies with Title VI and the EPA's Title
VI implementation regulations in its relevant programs and policies and
concludes that, in developing the Smog Check Contingency Measure SIP,
CARB staff engaged in a thorough public process to address the
requirements of Title VI and other relevant laws.\18\ CARB describes
its process for developing and adopting the Smog Check Contingency
Measure in Section IV.B (``Title VI and Environmental Justice'') of the
Smog Check Contingency Measure SIP. In addition, the State included a
description of its written Civil Rights Policy and Discrimination
Complaint process.\19\
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\18\ CARB Resolution 23-20, October 26, 2023, pages 4 and 5. The
EPA's Title VI implementation regulations are set forth in 40 CFR
part 7.
\19\ Smog Check Contingency Measure SIP, Section IV.B., pages
20-22.
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[[Page 87985]]
In light of the authority vested in CARB through California H&SC
section 44011(a)(4)(B) and CARB's Title VI evaluation, the EPA is
proposing to find that CARB has provided adequate necessary assurances
for purposes of CAA section 110(a)(2)(E)(i) for the Smog Check
Contingency Measure SIP. The EPA's proposed SIP approval does not
constitute a formal finding of compliance with Title VI or 40 CFR part
7.
3. Is the measure enforceable as required under CAA section 110(a)(2)?
We have evaluated the enforceability of the Smog Check Contingency
Measure with respect to applicability and exemptions; standard of
conduct and compliance dates; sunset provisions; discretionary
provisions; and test methods, recordkeeping and reporting,\20\ and are
proposing to conclude for the reasons below that the regulation is
enforceable for the purposes of CAA section 110(a)(2).
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\20\ These concepts are discussed in detail in an EPA memorandum
from J. Craig Potter, EPA Assistant Administrator for Air and
Radiation, et al., titled ``Review of State Implementation Plans and
Revisions for Enforceability and Legal Sufficiency,'' dated
September 23, 1987.
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First, with respect to applicability, we are proposing to find that
the Smog Check Contingency Measure is sufficiently clear as to which
nonattainment areas are covered by the measure and how the measure
would be implemented by CARB, BAR and the DMV. Table 1 of the Smog
Check Contingency Measure SIP lists the specific ozone and
PM<INF>2.5</INF> nonattainment areas covered by the Smog Check
Contingency Measure and the specific NAAQS that are covered in these
areas. The Smog Check Contingency Measure would be triggered if the EPA
makes one of the following determinations for an applicable
nonattainment area and relevant NAAQS (referred to as ``triggering
events''): (1) failure to attain by the applicable attainment date; (2)
failure to meet a reasonable further progress (RFP) milestone; (3)
failure to meet a quantitative milestone; or (4) failure to submit a
required quantitative milestone report or milestone compliance
demonstration.\21\ Once triggered, BAR and the DMV will change the Smog
Check program to remove the exemption for vehicles eight model years
old in the nonattainment area at issue and to require such vehicles in
the area at issue to be subject to biennial Smog Check inspections.
This change will be effectuated through the annual vehicle registration
process that is relied upon to implement the Smog Check program.
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\21\ Smog Check Contingency Measure SIP, page 15.
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Second, we are proposing to find that the Smog Check Contingency
Measure is sufficiently specific such that the applicable State
agencies, including CARB, BAR and the DMV, know what they must do to
implement the measure and the timeline for taking the necessary
actions. The specific agencies, their responsibilities, and their
respective timelines for implementation of the contingency measure are
described in Section 4 of the Smog Check Contingency Measure SIP. With
respect to compliance dates, we note that CARB is obligated to initiate
the change in the Smog Check program for vehicles eight model years old
within 30 days of the effective date of one of the EPA's determinations
that constitute a triggering event.
Third, the Smog Check Contingency Measure does not include sunset
provisions. Fourth, we note that the Smog Check Contingency Measure
does not contain provisions that allow for discretion on the part of
CARB's Executive Officer. Fifth, with respect to test methods, and
recordkeeping and reporting requirements, we note that the Smog Check
Contingency Measure does not affect the existing Smog Check inspection
or emissions testing methods or procedures and that 40 CFR 51.366
requires all states with I/M programs to submit an annual report to the
EPA. This report includes sufficient test statistics, by model year, to
verify that the Smog Check Contingency Measure, if triggered, is being
implemented in a given area.
4. Does the measure meet the requirements for contingency measures?
Based on our review of the Smog Check Contingency Measure in light
of the requirements for contingency measures described in Section I.C
of this document, we are proposing to find that the Smog Check
Contingency Measure meets the applicable requirements for such measures
under CAA sections 172(c)(9) and 182(c)(9) and 40 CFR 51.1014. First,
we note that the Smog Check Contingency Measure is designed to be both
prospective and conditional. The narrowing of the exemption for certain
newer vehicles from Smog Check inspections would take effect in the
future in a given nonattainment area only if the EPA makes certain
determinations for that area that constitute a triggering event for the
purposes of contingency measures.
Second, the Smog Check Contingency Measure includes an appropriate
triggering mechanism (i.e., EPA's final determination of failure to
attain the NAAQS by the applicable attainment date, to meet an RFP
milestone, to meet a quantitative milestone, or to submit a required
quantitative milestone report or milestone compliance demonstration)
and addresses all the types of contingencies listed in CAA sections
172(c)(9) and 182(c)(9) and 40 CFR 51.1014(a).
Third, the narrowing of the exemption for newer vehicles from Smog
Check inspections is not required for any other CAA purpose, and the
emissions reductions from the Smog Check Contingency Measure are not
included in any RFP or attainment demonstration in any of the
applicable nonattainment areas. We recognize that the existing
exemption under the California Smog Check program for motor vehicles
eight model years old or less is reflected in the State's certification
(and performance standard modeling) of the existing Smog Check program
as meeting the requirements for I/M programs under the CAA and the
EPA's I/M regulations for the 2015 ozone NAAQS.\22\ However, narrowing
the exemption under the Smog Check Contingency Measure would provide
emissions reductions that are surplus to those that are needed for
other CAA purposes or that are relied upon for RFP or attainment.
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\22\ CARB submitted ``California Smog Check Performance Standard
Modeling and Program Certification for the 70 Parts Per Billion
(ppb) 8-Hour Ozone Standard (release date: February 10, 2023)'' to
the EPA as a SIP revision on April 26, 2023.
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Fourth, the Smog Check Contingency Measure is structured so as to
be implemented in a timely manner without significant further action by
the State or EPA. Within 30 days of the effective date of a triggering
event, CARB has committed to transmit a letter to BAR and the DMV
conveying its finding under California H&SC section 44011(a)(4)(B)(ii)
that providing the exemption for certain motor vehicles from Smog Check
inspection in specific nonattainment areas (defined by specified ZIP
Codes) will prohibit the State from meeting commitments with
[[Page 87986]]
respect to the SIP required by the Clean Air Act.\23\ CARB indicates
that the letter to BAR and the DMV will explain that the Smog Check
contingency measure is being triggered to meet contingency measure
requirements under CAA sections 172(c)(9) or 182(c)(9) thereby
effectuating the change to the Smog Check exemptions for motor vehicles
from eight or fewer model years old to seven or fewer model years old
throughout the applicable nonattainment area (or six or fewer model
years old in cases of the second trigger).\24\
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\23\ Smog Check Contingency Measure SIP, page 16.
\24\ Id.
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Lastly, the Smog Check Contingency Measure is designed to achieve
the estimated emissions reductions within roughly a year of the
triggering event. In this case, upon receipt of the CARB letter and the
applicable ZIP Codes, CARB, BAR and the DMV staff will initiate the
process to narrow the Smog Check exemption. Under the Smog Check
Contingency Measure, the DMV will update their Smog Check renewal
programing to require a Smog Check inspection for the eight model years
old vehicles (or seven model years old vehicles in the case of a
subsequent second triggering event) in the ZIP Codes provided by CARB
staff, and the eight to seven model years old (or seven to six model
years old) exemption change will begin for registrations expiring
beginning January 1st of the applicable year. The corresponding
emissions reductions would begin to accrue on a rolling basis in the
year following the triggering event in tandem with the vehicle
registration renewals that are due with each passing month of the year.
5. Would the measure interfere with reasonable further progress (RFP)
and attainment or any other applicable requirement of the Act?
The Smog Check program continues to provide emissions reductions in
nonattainment areas in California, and the emissions reduction benefits
are included in the RFP and attainment plans developed for these areas.
The current Smog Check program provides an exemption from biennial Smog
Check inspections for motor vehicles eight model years or less. The
Smog Check Contingency Measure, if triggered, would narrow the
exemption to motor vehicles seven model years or less, or further
narrow it to motor vehicles six model years or less, if triggered again
by a second triggering event, and would result in additional emissions
reductions beyond those included in the RFP and attainment
demonstration for the applicable nonattainment area. Thus, we are
proposing to find that the approval of the Smog Check Contingency
Measure is consistent with CAA section 110(l) and would not interfere
with RFP, attainment or any other applicable requirement of the Act.
6. Will the State have adequate personnel and funding for the measure?
CAA section 110(a)(2)(E)(i) requires states to provide with their
SIPs necessary assurances that the state or relevant local or regional
agency will have adequate personnel and funding to carry out the SIP.
The California Smog Check program is a mature program that has been
in existence for several decades. The program is decentralized, and,
thus, relies upon a network of licensed privately-owned Smog Check
testing or repair stations. There are approximately 7,000 such stations
throughout the State.\25\ The Smog Check Contingency Measure, if
triggered, would result in less funding for the Air Pollution Control
Fund of the Moyer Program, but an increase in funding from
certification fees to BAR.\26\
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\25\ BAR, ``California Smog Check Program,'' brochure, revised
January 2019.
\26\ Smog Check Contingency Measure SIP, page 22.
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In addition, the Smog Check Contingency Measure would require CARB
to coordinate with BAR and the DMV to update their Smog Check renewal
program to require a Smog Check inspection for the eight model year old
vehicles (or seven model years old in the case of a second triggering
event in a given nonattainment area) in the applicable nonattainment
area(s), as identified by ZIP codes provided by CARB staff.\27\ The
Smog Check Contingency Measure SIP does not explicitly indicate whether
any additional personnel or funding for any of the relevant State
agencies would be needed to implement the Smog Check Contingency
Measure. However, given the maturity of the existing Smog Check
program, the limited action required to implement the contingency
measure, and the slight increase in funding for BAR (through an
increase in number of vehicles paying certification fees), we expect
that CARB, BAR and the DMV will be able to implement the Smog Check
Contingency Measure without the need for additional personnel or
funding. The costs for the additional Smog Check inspections resulting
from implementation of the Smog Check Contingency Measure would be
borne by vehicle owners.
---------------------------------------------------------------------------
\27\ Smog Check Contingency Measure SIP, page 16.
---------------------------------------------------------------------------
7. What emissions reductions would the contingency measure achieve?
Additionally, we have reviewed CARB's estimate of the emissions
reductions that can be expected if the Smog Check Contingency Measure
is triggered and find the estimates to be reasonable and adequately
documented.\28\ CARB provides the documentation for the area-specific
emissions estimates in Appendix B (``Smog Check Contingency Measure
Emissions Benefits Methodology'') and Appendix C (``Carl Moyer Program
Emission Impacts Analysis Methodology'') of the Smog Check Contingency
Measure SIP.
---------------------------------------------------------------------------
\28\ Our review of CARB's emissions estimates is included in a
Memorandum to Docket EPA-R09-OAR-2023-0524, titled ``Evaluation of
CARB's Emissions Estimates from the Smog Check Contingency
Measure,'' dated November 7, 2023.
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Table 2 presents CARB's estimated emissions reductions from the
Smog Check Contingency Measures for each of the applicable
nonattainment areas and NAAQS, taking into account the estimated
emissions reductions that would not be achieved by the Moyer Program
(due to decreased funding from the smog check abatement fee). The
estimates in Table 2 represent the emissions reductions expected to be
achieved after the first triggering event (which will narrow the
exemption from eight or fewer model years old to seven or fewer model
years old).\29\ The EPA will consider the estimated emissions
reductions associated with the Smog Check Contingency Measure when
determining whether CARB and the relevant air district have fully met
the contingency measure requirements under CAA sections 172(c)(9) and
182(c)(9) and 40 CFR 51.1014 for the relevant NAAQS and nonattainment
areas. For example, the emission reductions from the Smog Check
Contingency Measure combined with the emission reduction from one or
more other contingency measures may be sufficient in a given
nonattainment area for a given NAAQS. The EPA expects to make these
determinations in separate rulemakings.
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\29\ Smog Check Contingency Measure SIP, page 61.
[[Page 87987]]
Table 2--Estimated Emissions Reductions From Smog Check Contingency Measure
----------------------------------------------------------------------------------------------------------------
Emissions reductions
(tons per day) \a\
Nonattainment area Applicable NAAQS Analysis year -------------------------
NOX VOC
----------------------------------------------------------------------------------------------------------------
Coachella Valley........................ 2008 Ozone NAAQS........... 2031 0.0078 0.003
2015 Ozone NAAQS........... 2037 0.0078 0.003
Eastern Kern County..................... 2008 Ozone NAAQS........... 2026 0.002997 0.001
2015 Ozone NAAQS........... 2032 0.002997 0.001
Mariposa County......................... 2015 Ozone NAAQS........... 2026 0.0003 0.0001
Sacramento Metro........................ 2008 Ozone NAAQS........... 2024 0.0761 0.037
2015 Ozone NAAQS........... 2032 0.0463 0.015
San Diego County........................ 2008 Ozone NAAQS........... 2026 0.064 0.027
2015 Ozone NAAQS........... 2032 0.055 0.016
San Joaquin Valley...................... 1997 Ozone NAAQS........... 2023 0.108 0.056
2008 Ozone NAAQS........... 2031 0.076 0.025
2015 Ozone NAAQS........... 2037 0.073 0.024
1997 Annual PM2.5 NAAQS.... 2023 0.113 0.052
2006 24-Hour PM2.5 NAAQS... 2024 0.116 0.052
2012 Annual PM2.5 NAAQS.... 2030 0.083 0.027
South Coast Air Basin................... 2008 Ozone NAAQS........... 2029 0.271 0.096
2015 Ozone NAAQS........... 2035 0.230 0.077
2012 Annual PM2.5 NAAQS.... 2030 0.276 0.093
Ventura County.......................... 2015 Ozone NAAQS........... 2026 0.01292 0.005
West Mojave Desert...................... 2008 Ozone NAAQS........... 2026 0.02094 0.009
2015 Ozone NAAQS........... 2032 0.01794 0.006
Western Nevada County................... 2015 Ozone NAAQS........... 2026 0.002 0.001
----------------------------------------------------------------------------------------------------------------
\a\ Emissions estimates shown in this table are summarized from information presented in section 5 of the Smog
Check Contingency Measure SIP. The emissions estimates represent the net change in emissions taking into
account the emissions benefit from implementation of the Smog Check Contingency Measure and the foregone
emissions reductions from corresponding reductions in funds paid into the Moyer Program. For ozone
nonattainment areas, the estimates represent summer planning season values. For PM2.5 nonattainment areas, the
estimates represent annual average values.
C. Did the State consider environmental justice in developing this
measure?
Environmental justice (EJ) is 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. As
explained in the EJ Legal Tools to Advance Environmental Justice 2022
document,\30\ the CAA provides states with the discretion to consider
environmental justice in developing rules and measures related to
nonattainment area SIP requirements, including contingency measures.
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\30\ EPA, EPA Legal Tools to Advance Environmental Justice, May
2022.
---------------------------------------------------------------------------
In this instance, CARB exercised this discretion and evaluated
environmental justice considerations as part of its SIP submission.\31\
CARB analyzed whether there would be disproportionate impact on
disadvantaged communities within the affected nonattainment areas if
the contingency measure were triggered and analyzed the impacts of the
contingency measure on vehicle owners in disadvantaged communities.\32\
Based on the results of these analyses, CARB concluded that the Smog
Check Contingency Measure is consistent with CARB's environmental
justice policies and would not disproportionately impact people of any
race, culture, income, or national origin.\33\
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\31\ Smog Check Contingency Measure SIP, Section 4.B (``Title VI
and Environmental Justice).
\32\ Id, at pages 18-20.
\33\ CARB Resolution 23-20, October 26, 2023, page 5.
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In reviewing CARB's analysis, the EPA defers to CARB's reasonable
exercise of its discretion in considering EJ in this way. The EPA is
taking proposed action to approve the Smog Check Contingency Measure
SIP because it meets minimum requirements pursuant to the CAA and
relevant implementing regulations. The EPA also finds that
consideration of EJ analyses in this context is reasonable. The EPA
encourages air agencies generally to evaluate environmental justice
considerations of their actions and carefully consider impacts to
communities. The EJ analyses submitted by CARB were considered but were
not the basis for the EPA's decision to propose approval of the Smog
Check Contingency Measure SIP as meeting the minimum applicable
requirements.
D. Proposed Action and Public Comment
Pursuant to section 110(k)(3) of the Act, and for the reasons given
above, the EPA is proposing to approve the Smog Check Contingency
Measure SIP and a related statutory provision (i.e., California H&SC
section 44011(a)(4)(A) and (B), operative October 10, 2017). Our
proposed action is based on our finding that the Smog Check Contingency
Measure SIP meets the applicable procedural and substantive CAA
requirements for SIP revisions; that the Smog Check Contingency Measure
itself meets applicable requirements for a valid contingency measure
under the CAA and the EPA's implementation regulations; and that the
Smog Check Contingency Measure would achieve additional emissions
reductions of NO<INF>X</INF> and VOC, if triggered by certain EPA
determinations, in Coachella Valley, Eastern Kern County, Mariposa
County, Sacramento Metro, San Diego County, San Joaquin Valley, South
Coast Air Basin, Ventura County, West Mojave Desert, and Western Nevada
County.
We are not making any determination presently as to whether this
individual contingency measure is sufficient by itself for CARB and the
relevant air district to fully comply with the contingency measure
requirements in any specific nonattainment area or specific NAAQS under
CAA sections 172(c)(9) and 182(c)(9) and 40 CFR 51.1014. We will be
acting on the contingency measure SIP plan elements in the relevant
nonattainment plan SIP submissions for the respective areas and
[[Page 87988]]
NAAQS in separate rulemakings, and will consider the emissions
reductions associated with the Smog Check Contingency Measure at that
time. We will accept comments from the public on this proposal until
January 19, 2024.
If finalized as proposed, this action would add the Smog Check
Contingency Measure and the related statutory provision to the
federally-enforceable California SIP.
III. Incorporation by Reference
In this action, the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference California Health & Safety Code section 44011(a)(4)(A) and
(B), which authorizes CARB to narrow the newer model vehicle Smog Check
inspection exemption. The EPA has made, and will continue to make,
these materials available through <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at
the EPA Region IX Office (please contact the person identified in the
FOR FURTHER INFORMATION CONTACT section of this preamble for more
information).
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the relevant 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 approve state
choices, provided that they meet the criteria of the CAA. Accordingly,
this proposed action merely proposes to approve a state measure as
meeting federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed 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), 13563 (76 FR 3821, January 21,
2011) and 14094 (88 FR 21879, April 11, 2023);
<bullet> Does not impose an information collection burden under the
provisions 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); and
<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 CAA.
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, the proposed rule 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).
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.''
CARB evaluated environmental justice considerations as part of its
SIP submission given that the CAA and applicable implementing
regulations neither prohibit nor require such an evaluation. The EPA
reviewed and considered the air agency's evaluation of environmental
justice considerations of this action, as is described above in the
section titled, ``Environmental Justice Considerations'' as part of the
EPA's review. Due to the nature of the action being taken here, this
proposed action is expected to have a neutral to positive impact on the
air quality of the affected areas. In addition, 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 12, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-27688 Filed 12-19-23; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.