Rule2024-24707
Interim Final Determination To Stay or Defer Sanctions; California; San Joaquin Valley Unified Air Pollution Control District
Primary source
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Published
October 25, 2024
Effective
October 25, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is making an interim final determination that the State of California has submitted revisions to the California State Implementation Plan (SIP) that correct the deficiency prompting the partial disapproval of previous SIP submissions addressing the requirements under the Clean Air Act (CAA or "Act") for contingency measures for the 2008 ozone national ambient air quality standards (NAAQS or "standards") for the San Joaquin Valley ozone nonattainment area. This determination is based upon a proposed conditional approval, published elsewhere in this issue of the Federal Register, of SIP revisions addressing the contingency measure requirements for the 2008 ozone NAAQS for the San Joaquin Valley. The effect of this interim final determination is to stay the application of the offset sanction and to defer the application of the highway sanction that were triggered by the EPA's previous partial disapproval of SIP revisions submitted to address the contingency measure requirements for the 2008 ozone NAAQS for this area.
Full Text
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<title>Federal Register, Volume 89 Issue 207 (Friday, October 25, 2024)</title>
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[Federal Register Volume 89, Number 207 (Friday, October 25, 2024)]
[Rules and Regulations]
[Pages 85064-85066]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-24707]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2024-0338; FRL-12118-03-R9]
Interim Final Determination To Stay or Defer Sanctions;
California; San Joaquin Valley Unified Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final determination.
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SUMMARY: The Environmental Protection Agency (EPA) is making an interim
final determination that the State of California has submitted
revisions to the California State Implementation Plan (SIP) that
correct the deficiency prompting the partial disapproval of previous
SIP submissions addressing the requirements under the Clean Air Act
(CAA or ``Act'') for contingency measures for the 2008 ozone national
ambient air quality standards (NAAQS or ``standards'') for the San
Joaquin Valley ozone nonattainment area. This determination is based
upon a proposed conditional approval, published elsewhere in this issue
of the Federal Register, of SIP revisions addressing the contingency
measure requirements for the 2008 ozone NAAQS for the San Joaquin
Valley. The effect of this interim final determination is to stay the
application of the offset sanction and to defer the application of the
highway sanction that were triggered by the EPA's previous partial
disapproval of SIP revisions submitted to address the contingency
measure requirements for the 2008 ozone NAAQS for this area.
DATES: This interim final determination is effective on October 25,
2024. However, comments will be accepted on or before November 25,
2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2024-0338 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: Andrew Ledezma, Air Planning Office
(ARD-2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105,
(415) 972-3985, or by email at <a href="/cdn-cgi/l/email-protection#b0fcd5d4d5caddd19ef1ded4c2d5c7f0d5c0d19ed7dfc6"><span class="__cf_email__" data-cfemail="f8b49d9c9d829599d6b9969c8a9d8fb89d8899d69f978e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. Background
II. EPA Evaluation and Action
III. Statutory and Executive Order Reviews
I. Background
In March 2019, the EPA took final action to approve, or
conditionally approve, certain state implementation plan (SIP)
revisions submitted by the State of California to meet CAA requirements
for the 2008 ozone NAAQS in the San Joaquin Valley, California, ozone
nonattainment area.\1\ Specifically, the EPA approved the base year
emissions inventory, reasonable further progress (RFP) demonstration,
and motor vehicle emissions budgets, and conditionally approved the
contingency measure element for the 2008 ozone NAAQS. We justified a
conditional approval of the contingency measure element, even though
the contingency measure itself would only achieve a small fraction of
the recommended amount for contingency measures, on the basis of a
surplus in emissions reductions that could be anticipated from already-
implemented measures in the milestone years and year after the
attainment year and a commitment by the State to achieve additional
emissions reductions by the attainment year in the San Joaquin Valley
that would reduce the chances that additional contingency measures
would be needed for failure to attain the 2008 ozone NAAQS by the
applicable attainment date.\2\
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\1\ 84 FR 11198 (March 25, 2019).
\2\ 83 FR 61346, at 61357 (November 29, 2018) (proposed
conditional approval), finalized at 84 FR 11198, at 11205-11206.
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Our final conditional approval of the contingency measure element
was the subject of a legal challenge and, in a 2021 Ninth Circuit
decision in the Association of Irritated Residents v. EPA case, the
Court remanded the conditional approval action back to the Agency.\3\
In so doing, the Court found that, by taking into account the emissions
reductions from already-implemented measures to find that the
contingency measure would suffice to
[[Page 85065]]
meet the applicable requirement, the EPA was circumventing the court's
2016 holding in Bahr v. EPA.\4\ The Court also held that the EPA could
not avoid the need for robust contingency measures by assuming that
they will not be needed.\5\
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\3\ Association of Irritated Residents v. EPA, 10 F.4th 937 (9th
Cir. 2021).
\4\ Id., at 946. The reference to ``Bahr v. EPA'' is to Bahr v.
EPA, 836 F.3d 1218, at 1235-1237 (9th Cir. 2016). Under the Bahr
holding, contingency measures under CAA sections 172(c)(9) and
182(c)(9) must be designed so as to be implemented prospectively;
already-implemented control measures may not serve as contingency
measures even if they provide emissions reductions beyond those
needed for any other CAA purpose.
\5\ Id. at 947.
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In October 2022, in light of the Association of Irritated Residents
v. EPA decision, the EPA took final action to withdraw our previous
conditional approval and to partially disapprove the contingency
measure element submitted to address the contingency measure
requirements for the San Joaquin Valley for the 2008 ozone NAAQS.\6\ We
did so because we found that, if we did not take into account surplus
emissions reductions or the State's commitment to achieve additional
emissions reductions in San Joaquin Valley by the attainment year, then
the one contingency measure that was included in the contingency
measure element would have had to shoulder the entire burden of
achieving the recommended amount for contingency measures (if
triggered) but would have only achieved a small fraction of the
recommended amount.\7\ The effective date of our final partial
disapproval action was November 2, 2022.
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\6\ 87 FR 59688 (October 3, 2022).
\7\ Id, at 59690.
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Pursuant to section 179 of the CAA and 40 CFR 52.31, the EPA's
partial disapproval of the contingency measure element triggered
sanctions clocks. More specifically, and as explained in our final
partial disapproval action, under 40 CFR 52.31, the offset sanction in
CAA section 179(b)(2) would be imposed 18 months after November 2,
2022, and the highway funding sanction in CAA section 179(b)(1) would
be imposed six months after the offset sanction was imposed, unless the
EPA determines that a subsequent SIP submission corrects the identified
deficiencies before the applicable deadlines.\8\
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\8\ Id.
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In April 2024, in response to our final partial disapproval, the
State of California adopted and submitted the ``Ozone Contingency
Measure State Implementation Plan Revision for the 2008 and 2015 8-Hour
Ozone Standards'' (April 25, 2024) (``2024 SJV Ozone Contingency
Measure Plan'') to the EPA as a revision to the California SIP.\9\ In
the Proposed Rules section of this issue of the Federal Register, we
have proposed to conditionally approve the 2024 SJV Ozone Contingency
Measure Plan for the 2008 ozone NAAQS for the San Joaquin Valley ozone
nonattainment area. Based on the proposed conditional approval action
in this issue of the Federal Register with respect to the contingency
measure element, we are taking this final rulemaking action, effective
upon publication, to stay application of the offset sanction and defer
application of the highway sanction that were triggered by the EPA's
October 3, 2022 partial disapproval of the contingency measure element
for the San Joaquin Valley 2008 ozone nonattainment area.\10\ We are
doing so because we find that it is more likely than not that the 2024
SJV Ozone Contingency Measure Plan corrects the deficiencies that
triggered such sanctions, when considered with two contingency measures
that EPA has approved in separate rulemaking actions \11\ and
commitments to adopt and submit five additional contingency measures
for the San Joaquin Valley ozone nonattainment area.
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\9\ The California Air Resources Board (CARB) submitted the San
Joaquin Valley Unified Air Pollution Control District's 2024 SJV
Ozone Contingency Measure Plan electronically on April 29, 2024 as
an attachment to a letter dated April 26, 2024 from Stephen S.
Cliff, Ph.D., Executive Officer, CARB, to Martha Guzman, Regional
Administrator, EPA Region IX.
\10\ See 40 CFR 52.31(d)(2)(ii).
\11\ The two existing contingency measures for the 2008 ozone
NAAQS for the San Joaquin Valley relate to architectural coatings
and the California smog check program. The EPA approved these
contingency measures at 87 FR 78544 (December 22, 2022)
(architectural coatings contingency measure) and 89 FR 56222 (July
9, 2024) (smog check contingency measure).
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The EPA is providing the public with an opportunity to comment on
this stay of the offset sanction and deferral of the highway sanction.
If comments are submitted that change our assessment, as described in
this interim final determination and in our proposed conditional
approval, that the 2024 SJV Ozone Contingency Measure Plan meets the
contingency measure requirements for the 2008 ozone NAAQS for the San
Joaquin Valley nonattainment area, we will take final action to lift
this stay of the offset sanction and deferral of the highway sanction
under 40 CFR 52.31. If no comments are submitted that change our
assessment, then all sanctions and any sanction clocks triggered by our
October 3, 2022 final action will continue to be stayed or deferred
unless and until the conditional approval converts to a disapproval or
the EPA proposes to or takes final action to disapprove in whole or in
part the revised SIP the State submits to fulfill the commitment in the
conditionally-approved plan, at which time the sanctions would
reapply.\12\ Any sanction clock triggered by the October 2022 partial
disapproval would be permanently stopped and sanctions applied, stayed,
or deferred would be permanently lifted upon a final EPA finding that
the deficiency forming the basis of the finding has been corrected.\13\
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\12\ See 40 CFR 52.31(d)(3)(ii).
\13\ See 40 CFR 52.31(d)(5).
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II. EPA Evaluation and Action
We are making an interim final determination under 40 CFR
52.31(d)(2)(ii) to stay the application of the offset sanction and to
defer the application of the highway sanction associated with our
October 3, 2022 final action partially disapproving the contingency
measure element for the 2008 ozone NAAQS for the San Joaquin Valley
nonattainment area. This determination is based on a concurrent
proposal to conditionally approve the 2024 SJV Ozone Contingency
Measure Plan as meeting the 2008 ozone contingency measure requirement,
which, if fully approved, would correct the deficiencies that triggered
sanctions under section 179 of the CAA.
The EPA has preliminarily determined that the submission of the
2024 SJV Ozone Contingency Measure Plan more likely than not adequately
addresses the deficiencies identified in the October 3, 2022 partial
disapproval, when considered together with previously approved
contingency measures and commitments to adopt and submit additional
contingency measures in accordance with the commitments in the State's
commitment letter. As we are proposing conditional approval, relief
from sanctions should be provided as quickly as possible.
Therefore, the EPA is invoking the good cause exception under the
Administrative Procedure Act (APA) in not providing an opportunity for
comment before this action takes effect (5 U.S.C. 553(b)(3)). However,
by this action, the EPA is still providing the public with an
opportunity to comment on the EPA's determination after the effective
date, and the EPA will consider any comments received in determining
whether to reverse such action.
The EPA believes that notice-and-comment rulemaking before the
effective date of this action is impracticable and contrary to the
public
[[Page 85066]]
interest. The EPA has reviewed the 2024 SJV Ozone Contingency Measure
Plan and, through its proposed action, is indicating that it is more
likely than not that the Plan corrects the deficiencies that were the
basis for the partial disapproval that started the sanctions clocks.
Therefore, it is not in the public interest to apply sanctions. The EPA
believes that it is necessary to use the interim final rulemaking
process to stay the application of the offset sanction and defer the
application of the highway sanction while the EPA completes our
rulemaking process to take final action on the 2024 SJV Ozone
Contingency Measure Plan. Moreover, with respect to the effective date
of this action, the EPA is invoking the good cause exception to the 30-
day notice requirement of the APA because the purpose of this document
is to relieve a restriction (5 U.S.C. 553(d)(1)).
III. Statutory and Executive Order Reviews
This action stays or defers application of sanctions and imposes no
additional requirements.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA. This action stays or defers application of sanctions and
imposes no new requirements.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This action
stays or defers application of sanctions and imposes no new
requirements.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the National Government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This action stays or defers application of
sanctions and imposes no new requirements. In addition, this action
does 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. Thus, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (people of color) and low-income
populations. The EPA believes that this type of action does not concern
human health or environmental conditions and therefore cannot be
evaluated with respect to potentially disproportionate and adverse
effects on people of color, low-income populations, and/or Indigenous
peoples. This action stays or defers application of sanctions in
accordance with CAA regulatory provisions and imposes no additional
requirements.
K. Congressional Review Act (CRA)
This action is subject to the Congressional Review Act (CRA), and
the EPA will submit a rule report to each House of the Congress and to
the Comptroller General of the United States. The CRA allows the
issuing agency to make a rule effective sooner than otherwise provided
by the CRA if the agency makes a good cause finding that notice and
comment rulemaking procedures are impracticable, unnecessary, or
contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a
good cause finding for this action as discussed in section II of this
preamble, including the basis for that finding.
L. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 24, 2024. Filing a petition for
reconsideration by the EPA Administrator of this action does not affect
the finality of this action for the purpose of judicial review nor does
it extend the time within which petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see CAA section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 16, 2024.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2024-24707 Filed 10-24-24; 8:45 am]
BILLING CODE 6560-50-P
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