Proposed Rule2024-02082
Air Plan Disapproval; California; Los Angeles-South Coast Air Basin; 1997 8-Hour Ozone
Primary source
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Published
February 2, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to disapprove a state implementation plan (SIP) revision submitted by the State of California to meet a Clean Air Act (CAA) requirement for the 1997 8-hour ozone national ambient air quality standards (NAAQS or "standards") in the Los Angeles-South Coast Air Basin, California ozone nonattainment area ("South Coast"). This submission, titled "Final Contingency Measure Plan--Planning for Attainment of the 1997 80 ppb 8-hour Ozone Standard in the South Coast Air Basin," ("Contingency Measure Plan" or "Plan"), addresses the CAA requirements for the submission of contingency measures that will be implemented if emissions reductions from anticipated technologies associated with the area's 1997 ozone NAAQS attainment demonstration are not achieved. 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 89 Issue 23 (Friday, February 2, 2024)</title>
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[Federal Register Volume 89, Number 23 (Friday, February 2, 2024)]
[Proposed Rules]
[Pages 7320-7327]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-02082]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2023-0626; FRL-11614-01-R9]
Air Plan Disapproval; California; Los Angeles-South Coast Air
Basin; 1997 8-Hour Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
disapprove a state implementation plan (SIP) revision submitted by the
State of California to meet a Clean Air Act (CAA) requirement for the
1997 8-hour ozone national ambient air quality standards (NAAQS or
``standards'') in the Los Angeles-South Coast Air Basin, California
ozone nonattainment area (``South Coast''). This submission, titled
``Final Contingency Measure Plan--Planning for Attainment of the 1997
80 ppb 8-hour Ozone Standard in the South Coast Air Basin,''
(``Contingency Measure Plan'' or ``Plan''), addresses the CAA
requirements for the submission of contingency measures that will be
implemented if emissions reductions from anticipated technologies
associated with the area's 1997 ozone NAAQS attainment demonstration
are not achieved. We are taking comments on this proposal and plan to
follow with a final action.
DATES: Comments must be received on or before March 4, 2024.
[[Page 7321]]
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0626 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
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 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: Ginger Vagenas, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3964 or by
email at <a href="/cdn-cgi/l/email-protection#592f383e3c37382a773e30373e3c2b193c2938773e362f"><span class="__cf_email__" data-cfemail="780e191f1d16190b561f11161f1d0a381d0819561f170e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. Background
A. Ozone Standards, Area Designations, and State Implementation
Plans
B. The South Coast Ozone Nonattainment Area
C. Clean Air Act Provisions for New Technologies
D. The EPA's Prior Approvals of New Technology Provisions for
the 1997 8-Hour Ozone Standards
II. Submission From the State of California
III. The EPA's Evaluation
A. Procedural Requirements
B. Evaluation for Compliance With Clean Air Act Requirements
IV. The EPA's Proposed Action and Public Comment
V. Statutory and Executive Order Reviews
I. Background
A. Ozone Standards, Area Designations, and State Implementation Plans
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-road and nonroad motor vehicles and engines,\2\ power
plants and industrial facilities, and smaller area sources such as lawn
and garden equipment and paints.
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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.
As a practical matter, ROG and VOC refer to the same set of chemical
constituents, and for the sake of simplicity, we refer to this set
of gases as VOC in this proposed rule.
\2\ The EPA's definition of ``nonroad engine'' is found at 40
CFR 1068.30. The State of California uses the term ``off-road''
instead of ``nonroad.'' The terms are interchangeable.
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Scientific evidence indicates that adverse public health effects
occur following exposure to 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.\3\
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\3\ ``Fact Sheet--Final Revisions to the National Ambient Air
Quality Standards for Ozone,'' dated March 2008, available at
<a href="https://www.epa.gov/sites/default/files/2015-08/documents/ozone_fact_sheet.pdf">https://www.epa.gov/sites/default/files/2015-08/documents/ozone_fact_sheet.pdf</a>.
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Under section 109 of the CAA, the EPA promulgates NAAQS for
pervasive air pollutants, such as ozone. The NAAQS establish
concentration levels whose attainment and maintenance the EPA has
determined to be requisite to protect public health and welfare. In
1979, the EPA established primary (public health-based) and secondary
(welfare-based) NAAQS for ozone at 0.12 parts per million (ppm)
averaged over a 1-hour timeframe (``1-hour ozone NAAQS'').\4\ In 1997,
the EPA revised the primary and secondary ozone NAAQS to set the
acceptable level of ozone in the ambient air at 0.08 ppm averaged over
an 8-hour timeframe (``1997 ozone NAAQS'').\5\ The EPA further
tightened the 8-hour ozone NAAQS to 0.075 ppm in 2008 (``2008 ozone
NAAQS''),\6\ and to 0.070 ppm in 2015 (``2015 ozone NAAQS'').\7\ The
EPA subsequently revoked the 1-hour ozone NAAQS \8\ and the 1997 ozone
NAAQS,\9\ but has retained applicable requirements for anti-backsliding
purposes for areas that remained designated as nonattainment for those
standards at the time of revocation.\10\
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\4\ 44 FR 8202 (February 8, 1979).
\5\ 62 FR 38856 (July 18, 1997).
\6\ 73 FR 16436 (March 27, 2008)
\7\ 80 FR 65292 (October 26, 2015).
\8\ 70 FR 44470 (August 3, 2005).
\9\ 80 FR 12264 (March 6, 2015).
\10\ 40 CFR 51.1100(o). Continuing applicable requirements for
the 1997 ozone NAAQS include the contingency measures requirement of
CAA section 182(e)(5). Id. at 51.1100(o)(16); see also id. at
51.1105.
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Section 110 of the CAA requires states to develop and submit SIPs
to implement, maintain, and enforce the NAAQS. States with
nonattainment areas are required to submit revisions to their SIPs that
include a control strategy and technical analysis to demonstrate how
the area will attain the NAAQS by the applicable attainment date
(referred to as an ``attainment demonstration''), and to meet other
requirements according to each area's nonattainment classification.
Under CAA section 181, the EPA classifies ozone nonattainment areas as
``Marginal,'' ``Moderate,'' ``Serious,'' ``Severe,'' or ``Extreme.''
The SIP revision that is the subject of this proposed action was
submitted to address the contingency measures requirement of CAA
section 182(e)(5) for the 1997 ozone NAAQS. Under this provision,
states relying on the development of new control techniques or
improvement of existing technologies (``new technology measures'') to
demonstrate attainment in an Extreme nonattainment area must submit
contingency measures to the EPA that will be implemented if the
anticipated new technology measures do not achieve the planned
reductions.\11\
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\11\ The CAA section 182(e)(5) requirements are discussed in
more detail in Section I.C. of this document.
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B. The South Coast Ozone Nonattainment Area
The South Coast nonattainment area for the 1997 ozone NAAQS
consists of Orange County, the southwestern two-thirds of Los Angeles
County, southwestern San Bernardino County, and western Riverside
County. The South Coast encompasses an area of approximately 6,600
square miles and is bounded by the Pacific Ocean to the west and by the
San Gabriel, San Bernardino, and San Jacinto mountains to the north and
east.\12\ The population of the South Coast is over 17 million
people.\13\
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\12\ For a precise definition of the boundaries of the South
Coast 1997 ozone nonattainment area, see 40 CFR 81.305.
\13\ 2016 South Coast Ozone SIP (``2016 AQMP''), p. 1-5.
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The EPA has classified the South Coast as an ``Extreme''
nonattainment area for the 1-hour ozone NAAQS, 1997 ozone NAAQS, 2008
ozone NAAQS,
[[Page 7322]]
and 2015 ozone NAAQS. For the 1997 ozone NAAQS, the area has an
attainment date of June 15, 2024.\14\
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\14\ The EPA initially designated and classified the South Coast
as a ``Severe-17'' nonattainment area for the 1997 ozone NAAQS in
2004. 69 FR 23858 (April 30, 2004). We later granted CARB's request
to reclassify the area to Extreme. 75 FR 24409 (May 5, 2010).
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California first addressed the planning requirements for the 1997
ozone NAAQS with the ``Final 2007 Air Quality Management Plan'' (``2007
South Coast AQMP''), prepared by the South Coast Air Quality Management
District (SCAQMD), and the ``State Strategy for California's 2007 State
Implementation Plan'' (``2007 State Strategy''), prepared by the
California Air Resources Board (CARB). These submittals were
subsequently revised in 2009 and 2011.\15\ Collectively, we refer to
these submittals and revisions as the ``2007 South Coast Ozone SIP.''
CARB subsequently submitted revisions to the 2007 South Coast Ozone
SIP's control strategy and commitments for the 1997 ozone NAAQS in 2012
(``2012 AQMP'') \16\ and 2016 (``2016 South Coast Ozone SIP,''
including the ``2016 AQMP'').\17\
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\15\ 77 FR 12674 (March 1, 2012). These submittals and the
related materials are included in the associated docket, available
at <a href="https://www.regulations.gov/docket/EPA-R09-OAR-2011-0622">https://www.regulations.gov/docket/EPA-R09-OAR-2011-0622</a>.
\16\ See 79 FR 52526 (September 3, 2014). The 2012 AQMP and
related materials are included in the associated docket, available
at <a href="https://www.regulations.gov/docket/EPA-R09-OAR-2014-0185">https://www.regulations.gov/docket/EPA-R09-OAR-2014-0185</a>.
\17\ See 84 FR 52005 (October 1, 2019). The 2016 AQMP and
related materials are included in the associated docket, available
at <a href="https://www.regulations.gov/docket/EPA-R09-OAR-2019-0051">https://www.regulations.gov/docket/EPA-R09-OAR-2019-0051</a>.
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C. Clean Air Act Provisions for New Technologies
For ozone nonattainment areas classified as Extreme, the CAA
recognizes that an attainment plan may rely to a certain extent on new
or evolving technologies, given the long time period between developing
the initial plan and attaining the standards, and the amount of
emissions reductions needed to attain. CAA section 182(e)(5) authorizes
the EPA to approve provisions in an Extreme area plan that anticipate
development of new technology measures, and to approve an attainment
demonstration based on such provisions, if the state demonstrates that:
(1) such provisions are not necessary to achieve the incremental
emission reductions required during the first 10 years after the area's
nonattainment designation; \18\ and (2) the state has submitted
enforceable commitments to develop and adopt contingency measures to be
implemented if the anticipated technologies do not achieve the planned
reductions (``182(e)(5) contingency measures'').\19\ New technology
measures may include those that anticipate future technological
developments as well as those that require complex analyses, decision
making, and coordination among a number of government agencies.\20\ An
attainment demonstration that relies on planned reductions from new
technology measures under section 182(e)(5) must identify the measures
for which additional time would be needed for development and adoption.
The plan must also show that the new technology measures cannot be
fully developed and adopted by the submittal date for the attainment
demonstration and must contain a schedule outlining the steps leading
to final development and adoption of the measures.\21\
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\18\ CAA section 182(e)(5) specifies ``the first 10 years after
November 15, 1990,'' which reflects the effective date of
designation for the 1-hour ozone NAAQS. The EPA has interpreted this
10-year timeframe to run from the effective date of designation for
the 1997 ozone NAAQS. 76 FR 57872, 57881, n.24.
\19\ CAA section 182(e)(5). In this document, we refer to such
contingency measures as ``182(e)(5) contingency measures'' to
distinguish them from the contingency measures that are required
under CAA sections 172(c)(9) and 182(c)(9) for a failure to make
reasonable further progress (RFP) or to attain by the attainment
date. Attainment and RFP contingency measures are a required element
of an attainment plan submission under part D of title I of the CAA
and are subject to the same submittal deadline as the attainment
plan. A state relying on new technology measures in an Extreme area
attainment plan must submit 182(e)(5) contingency measures in
addition to the attainment and RFP contingency measures otherwise
required for the area. 57 FR 13498, 13524 (April 16, 1992).
\20\ 57 FR 13498, 13524.
\21\ Id.
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The state must submit the required 182(e)(5) contingency measures
to the EPA no later than 3 years before proposed implementation of the
plan provisions that anticipate development of new technology measures.
The EPA approves or disapproves section 182(e)(5) contingency measures
in accordance with CAA section 110. The contingency measures must be
adequate to produce emissions reductions sufficient, in conjunction
with other approved plan provisions, to make reasonable further
progress (RFP) and to attain by the applicable dates. If the EPA later
determines that the Extreme area has failed to make RFP or to attain,
and that such failure is due in whole or part to an inability to fully
implement the new technology measures approved under CAA section
182(e)(5), the EPA will require the state to implement the contingency
measures to the extent necessary to assure compliance with the
applicable requirement.\22\
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\22\ CAA section 182(e)(5).
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D. The EPA's Prior Approvals of New Technology Provisions for the 1997
8-Hour Ozone Standards
In our action on the South Coast attainment demonstration for the
1997 ozone NAAQS in the 2007 South Coast Ozone SIP, the EPA approved a
number of commitments regarding the development of new pollution
control measures by CARB and the SCAQMD. These included CARB's
commitments to achieve, by 2023, 141 tons per day (tpd) of
NO<INF>X</INF> reductions and 54 tpd of VOC reductions from defined
measures and to achieve 241 tpd of NO<INF>X</INF> reductions and 40 tpd
of VOC reductions from new technology measures.\23\ We also approved
CARB's commitment to provide 182(e)(5) contingency measures to cover
any new technology measures shortfall as part of our approval of the
2007 South Coast Ozone SIP.\24\
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\23\ 77 FR 12674, 12693 (March 1, 2012). California relied on
these reductions from new technology measures for the attainment
demonstration, but not for the RFP demonstration or other
provisions. 76 FR 57872, 57882.
\24\ 77 FR 12674, 12693. See also CARB Resolution 11-22 (July
21, 2011) (CARB commitment to ``develop, adopt, and submit
contingency measures by 2020 if advanced technology measures do not
achieve planned reductions'') and letter dated November 18, 2011,
from James N. Goldstene, Executive Officer, CARB, to Jared
Blumenfeld, Regional Administrator, EPA Region IX (further
clarifying CARB commitment).
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The 2012 AQMP included a list of proposed new technology measures
intended to provide the emissions reductions necessary to attain both
the 1-hour ozone standard and the 1997 8-hour ozone standard.\25\ We
approved these measures both for purposes of the 1-hour ozone
attainment demonstration and as an update to the 2007 South Coast Ozone
SIP's new technology measures for the 1997 8-hour ozone standard.\26\
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\25\ A list of the SCAQMD and CARB new technology measures in
the 2012 AQMP is included in Table 6 of the EPA's notice of proposed
rulemaking. 79 FR 29712, 29722 (May 23, 2014).
\26\ 79 FR 52526, 52537 (September 3, 2014). The amount of
reductions to be achieved through new technology measures for the
1997 8-hour ozone standard (40 tpd of VOC and 241 tpd of
NO<INF>X</INF>) was unchanged.
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In the 2016 South Coast Ozone SIP, which included an updated
control strategy and attainment demonstration for the 1997 ozone
standards, CARB provided a revised list of new technology measures and
revised the amount of reductions needed from defined measures and new
technology measures. CARB committed to achieving aggregate emissions
reductions of 113 tpd of NO<INF>X</INF> and 50 to
[[Page 7323]]
51 tpd of VOC, with 108 tpd of NO<INF>X</INF> reductions and 41 tpd of
VOC reductions coming from new technology measures, identified as
``further deployment of cleaner technologies'' addressing emissions
from on-road light-duty and heavy-duty vehicles, aircraft, locomotives,
ocean-going vessels, and off-road equipment.\27\ We approved this
updated demonstration based on CARB's previously-approved commitment to
submit 182(e)(5) contingency measures by 2020 as necessary to cover any
emissions reduction shortfall from new technology measures.
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\27\ 84 FR 28132 (June 17, 2019). See esp. id. at Table 7
(identifying new technology measures projected to generate 108 tpd
NO<INF>X</INF> and 41 tpd VOC emissions reductions needed by 2023).
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Because reductions from new technology measures were relied on to
ensure sufficient emissions reductions by 2023 to provide for
attainment of the 1997 ozone NAAQS by the June 15, 2024 attainment
date, the 182(e)(5) contingency measures would be triggered upon the
EPA finding that the area failed to attain and that this failure was
due in whole or in part to a failure to implement provisions approved
under CAA section 182(e)(5).\28\
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\28\ 57 FR 13498, 13524; CAA section 182(e)(5).
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II. Submission From the State of California
The SCAQMD prepared the Contingency Measure Plan in collaboration
with CARB.\29\ It was submitted by CARB to the EPA on December 31,
2019,\30\ and became complete by operation of law on July 1, 2020.
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\29\ Letter dated December 6, 2019, from Wayne Nastri, Executive
Officer, SCAQMD, to Richard Corey, Executive Officer, CARB and
SCAQMD Board Resolution 19-26.
\30\ Letter dated December 31, 2019, from Richard W. Corey,
Executive Officer, CARB, to Michael Stoker, Regional Administrator,
EPA Region 9 (submitted electronically December 31, 2019).
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The Contingency Measure Plan is intended to address the requirement
in CAA section 182(e)(5) that states relying on reductions from new
technology measures to demonstrate attainment must submit contingency
measures no later than three years before the proposed implementation
of those new technology measures.\31\ Under CAA section 182(e)(5),
these contingency measures are required to produce emissions reductions
sufficient to make up any shortfall in reductions attributed to new
technology measures that were relied upon to meet the applicable RFP or
attainment requirements. In this instance, California committed to
achieve the NO<INF>X</INF> and VOC reductions necessary to attain the
1997 ozone NAAQS by 2023, relying in part on reductions from new
technology measures. CARB's submittal also includes a CARB staff report
titled ``South Coast 8-Hour Ozone SIP Update'' (``CARB Staff Report''),
a response to public comments received on the Plan (``CARB Response to
Comments''), and other supporting documents, which are included in the
docket for this rulemaking action.
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\31\ Contingency Measure Plan, p. 2.
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The Contingency Measure Plan does not include contingency measures
that could be implemented in the event the area fails to attain because
the previously anticipated new technologies have not achieved the
planned reductions. Instead, the Plan updates the State's approach for
achieving the 108 tpd of NO<INF>X</INF> reductions that the 2016 AQMP
attributed to further deployment of cleaner technologies.\32\ This
updated approach includes three specific strategies: (1) identified
emissions reductions strategies (24-26 tpd); (2) additional incentive
funding (15 tpd); and (3) federal sources and federal measures (67-69
tpd).\33\
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\32\ Id. at 35.
\33\ Id. at 39. Although California's approved SIP relies on
planned reductions from new technology measures for both
NO<INF>X</INF> and VOC emissions reductions, and the State committed
to submitting contingency measures for both, the Contingency Measure
Plan focuses on achieving NO<INF>X</INF> reductions. In support of
this approach, the State notes that for the 1997 ozone NAAQS the
area is more sensitive to NO<INF>X</INF> emissions reductions, and
that VOC reductions from CARB's commitment will occur through
implementation of the NO<INF>X</INF> reductions strategy. Id. at 16.
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1. Identified Emissions Reductions Strategies
Section 3 of the Contingency Measure Plan identifies NO<INF>X</INF>
reductions that exceed the anticipated reductions from defined SCAQMD
measures and CARB regulations identified in the 2016 AQMP. According to
the Contingency Measure Plan, by 2023, an additional 10.2-12.2 tpd of
NO<INF>X</INF> reductions would be achieved through the following: (1)
RECLAIM transition rules (2 tpd); (2) facility-based mobile source
measures for commercial airports (0.5 tpd); (3) facility-based mobile
source measures for marine ports (3.2-5.2 tpd); (4) incentive funding
(expected future funding) (1.5 tpd); and (5) Metrolink tier 4
locomotives conversion (3.0 tpd).\34\
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\34\ Id. at Table 3-1.
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The Plan estimates that new mobile source measures implemented by
CARB would provide an additional 6.15 tpd of NO<INF>X</INF> reductions
toward the 108 tpd of NO<INF>X</INF> reductions that the State
committed to achieving through new technology measures under CAA
section 182(e)(5). These measures are listed in Table 3-5 of the Plan
and consist of the following: (1) low-carbon fuel standard and
alternative diesel fuels regulation (1.7 tpd); (2) airborne toxic
control measure (ATCM) for portable engines and the statewide portable
equipment registration program (0.25 tpd); and (3) heavy duty truck
inspection and maintenance program (4.2 tpd).
The Contingency Measure Plan also describes a suite of innovative
measures that were not identified in the 2016 AQMP, but which had been
adopted, or would soon be adopted, by CARB.\35\ These measures, which
the Contingency Measure Plan estimates will provide NO<INF>X</INF>
reductions of 3.0 tpd, include requirements for State contractors to
use the cleanest equipment available and for State agencies to purchase
the cleanest vehicles and equipment available; pricing programs to
encourage people to take public transit, carpool, or walk at congested
times of the day; and a measure that would require certain railroads to
set aside funding for the purchase of cleaner locomotives.
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\35\ Id. at Tables ES-1 and ES-2, and at 49-52.
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As described in the Contingency Measure Plan, these reductions, in
conjunction with a 4.2 tpd adjustment resulting from a previous over-
commitment for reductions from ocean-going vessels,\36\ will provide a
total of 24-26 tpd of NO<INF>X</INF> reductions towards the 182(e)(5)
commitment.\37\
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\36\ Id. at 47.
\37\ Id. at Table ES-1.
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2. Additional Incentive Funding
Section 4 of the Contingency Measure Plan discusses additional
incentive funding that could speed the transition to technologies that
are cleaner than required by current regulations. The 2016 AQMP
identified a need for over $1 billion per year in funds to incentivize
the transition to clean vehicles, infrastructure, and equipment. The
SCAQMD notes that in the years between the adoption of the 2016 AQMP
and the adoption of the Contingency Measure Plan, its efforts to
increase funding resulted in an approximate doubling of incentive
funding, to $200-300 million per year.\38\
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\38\ Id. at 5.
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To address the shortfall between existing funding and the amount
the SCAQMD estimated would be needed to adequately fund incentive
measures that would provide reductions needed for attainment, the
SCAQMD identifies several additional sources of funding for incentive
programs and describes its ongoing advocacy efforts to secure more
funding, including sponsoring
[[Page 7324]]
legislation that would allow the public or the SCAQMD Board to put a
sales tax measure on the ballot in the South Coast region. The SCAQMD
estimates this could generate a sustainable source of funding in the
amount of $1.4 billion per year, and that this amount could generate 15
tpd of NO<INF>X</INF> emissions reductions in 2023.\39\
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\39\ Id. at 53-55.
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3. Federal Sources and Federal Measures
Section 5 of the Contingency Measure Plan designates additional
reductions from federal sources and measures that the SCAQMD asserts
will be necessary for attainment. This section describes California's
successful efforts to reduce NO<INF>X</INF> emissions from sources
subject to its regulatory authority and explains that the State has
limited authority to impose emissions controls on other significant
sources of emissions, such as heavy duty trucks and engines sold
outside California; passenger and freight locomotives, aircraft
engines, construction and agricultural equipment under 175 horsepower;
and ocean-going vessels (which the Plan refers to collectively as
``federal sources'').\40\ The SCAQMD notes that, while NO<INF>X</INF>
emissions in the South Coast have decreased by 70 percent since 1997,
NO<INF>X</INF> emissions from federal sources have only decreased by 15
percent over that same time period. Figure ES-3 in the Contingency
Measure Plan illustrates the reductions that have been achieved since
2000 and highlights the increasing portion that federal sources
contribute to the overall emissions inventory.\41\
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\40\ Id. at 56.
\41\ Id. at 6.
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The SCAQMD identifies the emissions reductions potential, by 2023,
for the following four categories of sources under federal authority or
responsibility: (1) low-NO<INF>X</INF> heavy-duty vehicles (up to 35
tpd); (2) low-NO<INF>X</INF> ocean-going vessels (up to 28 tpd); (3)
low-NO<INF>X</INF> locomotives (up to 11 tpd); and (4) low-
NO<INF>X</INF> aircraft (up to 4 tpd).\42\
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\42\ Id. at Table 5-3.
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III. The EPA's Evaluation
A. Procedural Requirements
CAA sections 110(a)(1) and (2) and section 110(l) require a state
to provide reasonable public notice and an opportunity for public
hearing prior to the adoption and submission of a SIP or SIP revision.
To meet these procedural requirements, every SIP submission should
include evidence that the state provided adequate public notice and an
opportunity for a public hearing consistent with the EPA's implementing
regulations in 40 CFR 51.102.
CARB's December 31, 2019 SIP submittal package includes
documentation of the public processes used by the SCAQMD and CARB to
adopt the Contingency Measure Plan. As documented in the SIP revision
submittal package, on November 6, 2019, the SCAQMD published a notice
in newspapers of general circulation in the South Coast that a public
hearing to consider adoption of the Plan would be held on December 6,
2019. As documented in the Minute Order of the Air Pollution Control
Board that is included in the SIP revision submittal package, the
SCAQMD Governing Board adopted the Contingency Measure Plan on December
6, 2019, following the public hearing.
On November 8, 2019, CARB published on its website a notice of a
public hearing to be held on December 12, 2019, to consider adoption of
the plan. As evidenced by CARB Resolution 19-31, CARB adopted the
Contingency Measure Plan on December 12, 2019, following a public
hearing. Based on documentation included in the December 31, 2019 SIP
revision submittal package, we find that both the SCAQMD and CARB have
satisfied the applicable statutory and regulatory requirements for
reasonable public notice and hearing prior to the adoption and
submission of the Contingency Measure Plan. Therefore, we find that the
submission of the Contingency Measure Plan meets the procedural
requirements for public notice and hearing in CAA sections 110(a) and
110(l) and in 40 CFR 51.102.
B. Evaluation for Compliance With Clean Air Act Requirements
As described in Section I.C of this document, CAA section 182(e)(5)
allows the EPA to approve an attainment demonstration for an Extreme
ozone area that relies on anticipated new technology measures, if (A)
the measures are not necessary to achieve emission reductions required
in the first 10 years after the area's nonattainment designation, and
(B) the state submits enforceable commitments to develop and adopt
contingency measures to be implemented if the new technology measures
do not achieve the planned reductions. The state must submit these
contingency measures no later than three years before the new
technology measures would be implemented.
The EPA approves or disapproves 182(e)(5) contingency measures as
SIP revisions under CAA section 110. The contingency measures must be
adequate to produce sufficient emission reductions, in conjunction with
other provisions of the approved SIP, to allow the Extreme area to make
RFP and to attain by the applicable attainment date, and must be
capable of being implemented in the event of a failure to make RFP or
to attain that is due in whole or part to an inability to fully
implement the new technology measures approved under CAA 182(e)(5).
As recounted in Section I.C of this document, the 2007 South Coast
Ozone SIP's attainment demonstration for the 1997 ozone NAAQS relied on
new technology measures to achieve 241 tpd of NO<INF>X</INF> reductions
and 40 tpd of VOC reductions by 2023. With respect to the 182(e)(5)
requirements, our approval of the 2007 South Coast Ozone SIP relied on
CARB's commitment to ``develop, adopt, and submit contingency measures
by 2020 if advanced technology measures do not achieve planned
reductions.'' \43\ The 2016 AQMP subsequently revised the reductions
assigned to new technology measures to 108 tpd of NO<INF>X</INF> and 41
tpd of VOC by 2023.
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\43\ 77 FR 12674, 12693. CARB's commitment is outlined in CARB
Resolution 11-22 (dated July 21, 2011) and in the letter dated
November 18, 2011, from James N. Goldstene, Executive Officer, CARB,
to Jared Blumenfeld, Regional Administrator, EPA Region IX.
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The Contingency Measure Plan identifies a combination of state and
federal strategies that CARB and the SCAQMD project would result in the
108 tpd of NO<INF>X</INF> reductions previously determined to be
necessary for the area to attain the 1997 ozone NAAQS. As recounted in
Section II of this document, these include measures identified since
the 2016 AQMP that were projected to be adopted by CARB or the SCAQMD
and to be implemented prior to 2023, as well as reductions anticipated
from additional incentive funding included in new and anticipated state
legislation, and additional reductions assigned to federal sources and
measures that the State asserts will be needed to reach attainment.
Thus, while some of the identified measures are enforceable and are
presently being implemented to achieve reductions, others (including
additional state incentive funding and federal measures) are not fully
developed or implemented and are not enforceable.\44\
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\44\ For example, CARB's Response to Comments indicates that the
State intends to later develop the Plan's incentive measures into
SIP submittals that are ``surplus, quantifiable, permanent, and
enforceable,'' and that include an enforceable mechanism to achieve
the reductions from substitute projects ``if necessary,'' but that
those elements were not required at the time that the Contingency
Measure Plan was submitted.
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[[Page 7325]]
Critically, while the Plan acknowledges a continuing need for
additional measures to be developed and adopted to satisfy the
remaining 108 tpd of NO<INF>X</INF> projected to be necessary for the
South Coast to attain the 1997 ozone NAAQS, it does not include any
contingency measures that would be implemented if these anticipated
measures fail to achieve the necessary reductions. This is inconsistent
with CAA section 182(e)(5), which requires a state that relies on new
technology measures for an Extreme area attainment demonstration to
submit contingency measures that can be implemented in the event that
the area fails to attain as a result of the state's inability to fully
implement the new technology measures that were the basis for the EPA's
approval.\45\
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\45\ A state would not need to submit 182(e)(5) contingency
measures if it can demonstrate attainment without relying on
emission reductions from future development of new technology
measures. See 84 FR 52005, 52009-52010 (explaining that California
was not required to submit 182(e)(5) contingency measures for the 1-
hour ozone NAAQS once the State demonstrated that it was no longer
relying on new technology measures for attainment). See also
Contingency Measure Plan at 1-2 (``In this submittal, the State must
demonstrate that the assumed reductions from future technology were
already achieved, or if not, the State must submit contingency
measures capable of achieving the remaining emission reductions'').
Because the Contingency Measure Plan continues to rely on emissions
reductions from measures requiring additional time for development
and adoption, the State remains subject to the requirement to submit
182(e)(5) contingency measures.
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Additionally, the Contingency Measure Plan's assignment of
NO<INF>X</INF> reductions to federal measures and sources subject to
federal authority is not approvable as a matter of law. In evaluating
prior SCAQMD attainment plans that included similar ``federal
assignments,'' the EPA has consistently taken the position that states
do not have authority under the CAA or the U.S. Constitution to assign
SIP responsibilities to the federal government.\46\ For the same
reasons, we see no basis for approving the federal assignments included
in the Contingency Measure Plan.\47\ In effect, the Contingency Measure
Plan purports to shift responsibility to achieve reductions needed for
the South Coast to attain the 1997 ozone NAAQS from the State to the
federal government, while failing to include any contingency measures
that could be implemented if the planned reductions from new technology
measures are not achieved. This approach falls short of CARB's specific
enforceable commitment to develop, adopt, and submit by 2020
contingency measures to be implemented if new technology measures do
not achieve the planned emissions reductions, as well as the statutory
requirement for CARB to submit contingency measures adequate to produce
emission reductions sufficient, in conjunction with other approved plan
provisions, to achieve the emission reductions necessary for
attainment.
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\46\ See, e.g., 61 FR 10920, 10936 (March 18, 1996); 62 FR 1150,
1152 (January 8, 1997); 64 FR 1770, 1776 (January 12, 1999); 75 FR
71294, 71309 (November 22, 2010).
\47\ The executive summary to the CARB Staff Report acknowledges
that federal assignments are not permitted as a matter of law, and
that the reductions assigned to federal sources and measures do not
constitute a legally binding requirement upon the EPA. CARB Staff
Report, p. 6. While we agree with this statement, we do not rely on
it to reach our conclusion that the Plan as submitted fails to meet
the contingency measure requirements of 182(e)(5).
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For the reasons outlined herein, we are proposing to determine that
the Contingency Measure Plan does not fulfill the contingency measure
requirements of CAA 182(e)(5), and on that basis to disapprove the
Plan.\48\
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\48\ See also CAA section 110(l) (specifying that EPA may not
approve a SIP revision that would interfere with any applicable
requirement concerning attainment or any other applicable CAA
requirement).
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IV. The EPA's Proposed Action and Public Comment
As authorized in section 110(k)(3) of the CAA, we are proposing
full disapproval of the Contingency Measure Plan, because it fails to
provide contingency measures as required by CAA section 182(e)(5), and
because it relies on improper ``federal assignments'' to achieve the
necessary reductions. If we finalize this disapproval, CAA section
110(c) would require the EPA to promulgate a federal implementation
plan within 24 months after the effective date of the final action,
unless we approve subsequent SIP revisions that correct the
deficiencies identified in the final approval.
In addition, final disapproval would trigger the offset sanction in
CAA section 179(b)(2) 18 months after the effective date of a final
disapproval, 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 deficiencies identified in our final action before the applicable
deadline.
We will accept comments from the public on the proposed disapproval
for the next 30 days.
V. Statutory and Executive Order Reviews
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 action proposes to disapprove a state submittal as
not meeting federal requirements, and does not impose any additional
requirements beyond those imposed by state law.
Additional information about these statutes and Executive Orders
can be found at <a href="https://www2.epa.gov/laws-regulations/laws-and-executive-orders">https://www2.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 proposed 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
This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq., because this proposed SIP disapproval under section 110
and subchapter I, part D of the CAA will not in-and-of itself create
any new information collection burdens, but simply disapproves certain
state requirements submitted for inclusion into the SIP. Burden is
defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. For purposes of assessing the impacts of this proposed
rule on small entities, small entity is defined as: (1) a small
business as defined by the Small Business Administration's (SBA)
regulations at 13 CFR 121.201; (2) a small governmental jurisdiction
that is a government of a city, county, town, school district, or
special district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently
[[Page 7326]]
owned and operated and is not dominant in its field.
After considering the economic impacts of this proposed action on
small entities, I certify that this proposed action will not have a
significant impact on a substantial number of small entities. This
proposed rule does not impose any requirements or create impacts on
small entities. This proposed SIP disapproval under section 110 and
subchapter I, part D of the CAA will not in-and-of itself create any
new requirements but simply disapproves certain state requirements
submitted for inclusion into the SIP. Accordingly, it affords no
opportunity for the EPA to fashion for small entities less burdensome
compliance or reporting requirements or timetables or exemptions from
all or part of the rule. The fact that the CAA prescribes that various
consequences (e.g., higher offset requirements) may or will result from
disapproval actions does not mean that the EPA either can or must
conduct a regulatory flexibility analysis for this proposed action.
Therefore, this proposed action will not have a significant economic
impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
This proposed action contains no Federal mandates under the
provisions of title II of the Unfunded Mandates Reform Act of 1995
(UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or
the private sector. The EPA has determined that the proposed
disapproval action does not include a federal mandate that may result
in estimated costs of $100 million or more to either state, local, or
tribal governments in the aggregate, or to the private sector. This
action proposes to disapprove pre-existing requirements under state or
local law and imposes no new requirements. Accordingly, no additional
costs to state, local, or tribal governments, or to the private sector,
result from this proposed action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.'' This
proposed 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, as
specified in Executive Order 13132, because it merely disapproves
certain state requirements for inclusion into the SIP and does not
alter the relationship or the distribution of power and
responsibilities established in the CAA. Thus, Executive Order 13132
does not apply to this proposed action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
This proposed action does not have tribal implications, as
specified in Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP that the EPA is proposing to disapprove 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 the
EPA notes that it will not impose substantial direct costs on tribal
governments or preempt tribal law. Thus, Executive Order 13175 does not
apply to this proposed action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 (62 FR 19885, April 23,
1997) as applying only to those regulatory actions that concern health
or safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
proposed action is not subject to Executive Order 13045 because it is
not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997). This proposed SIP disapproval under section 110 and subchapter
I, part D of the CAA will not in-and-of itself create any new
regulations but simply disapproves certain state requirements submitted
for inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed action is not subject to Executive Order 13211 (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
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. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs the EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards. The EPA
believes that this proposed action is not subject to requirements of
Section 12(d) of 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 Population
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 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 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.''
Neither CARB nor the SCAQMD evaluated environmental justice
considerations as part of this SIP submission; 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
[[Page 7327]]
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 Executive Order 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 dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 29, 2024.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2024-02082 Filed 2-1-24; 8:45 am]
BILLING CODE 6560-50-P
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