[Federal Register Volume 77, Number 182 (Wednesday, September 19, 2012)]
[Proposed Rules]
[Pages 58078-58081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-22971]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2012-0734; FRL-9727-4]
Withdrawal of Approval of Air Quality Implementation Plans;
California; San Joaquin Valley; 1-Hour and 8-Hour Ozone Extreme Area
Plan Elements
AGENCY: U.S. Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to withdraw a March 8, 2010 final action
approving state implementation plan (SIP) revisions submitted by the
State of California under the Clean Air Act (CAA) to provide for
attainment of the 1-hour ozone National Ambient Air Quality Standards
(NAAQS) in the San Joaquin Valley extreme ozone nonattainment area.
This proposed action is in response to a decision issued by the U.S.
Court of Appeals for the Ninth Circuit (Sierra Club v. EPA, 671 F.3d
955 (9th Cir. 2012)) remanding EPA's approval of these SIP revisions.
In addition, EPA is proposing to withdraw our approval of a portion of
a March 1, 2012 final rule approving SIP revisions submitted by
California to provide for attainment of the 1997 8-hour ozone NAAQS in
the San Joaquin Valley. The portion of this final action for which EPA
is proposing to withdraw its approval addressed requirements regarding
emissions growth caused by growth in vehicle miles traveled under the
CAA. This proposed action is in response to a decision issued by the
U.S. Court of Appeals for the Ninth Circuit (Association of Irritated
Residents, 632 F.3d 584 (9th Cir. 2011), as amended Jan. 27, 2012),
rejecting EPA's interpretation of the CAA, which had provided the basis
for this portion of EPA's March 1, 2012 final rule.
DATES: Comments must be received on or before October 19, 2012.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2012-0734, by one of the following methods:
Federal eRulemaking Portal: www.regulations.gov. Follow
the on-line instructions.
Email: [email protected].
Mail or delivery: Frances Wicher, (AIR-2), U.S.
Environmental Protection Agency Region 9, 75 Hawthorne Street, San
Francisco, CA 94105.
Instructions: All comments will be included in the public docket
without change and may be made available online at www.regulations.gov,
including any personal information provided, unless the comment
includes Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Information that you
consider CBI or otherwise protected should be clearly identified as
such and should not be submitted through www.regulations.gov or email.
The www.regulations.gov Web site is an ``anonymous access'' system, and
EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send email directly to
EPA, your email address will be automatically captured and included as
part of the public comment. If EPA cannot read your comments due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment.
Docket: The index to the docket for this proposed action is
available electronically on the www.regulations.gov Web site and in
hard copy at EPA Region 9, 75 Hawthorne Street, San Francisco,
California 94105. While all documents in the docket are listed in the
index, some information may be publicly available only at the hard copy
location (e.g., copyrighted material), and some may not be publicly
available at either location (e.g., CBI). To inspect the hard copy
materials, please schedule an appointment during normal business hours
with the contact listed in the FOR FURTHER INFORMATION CONTACT section
below.
FOR FURTHER INFORMATION CONTACT: Frances Wicher, Air Planning Office
(AIR-2), (415) 972-3957, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we'', ``us'' and
``our'' refer to EPA.
Table of Contents
I. San Joaquin Valley 2004 1-Hour Ozone Plan
A. Background
B. EPA's Proposed Action
II. VMT Emissions Offset Requirement for 1997 8-Hour Ozone Standard
A. Background
B. EPA's Proposed Action
III. Public Comment
IV. Statutory and Executive Order Reviews
[[Page 58079]]
I. San Joaquin Valley 2004 1-Hour Ozone Plan
A. Background
On March 8, 2010, EPA fully approved state implementation plan
(SIP) revisions submitted by the State of California to provide for
attainment of the 1-hour ozone NAAQS in the San Joaquin Valley (SJV)
extreme ozone nonattainment area. 75 FR 10420. The California Air
Resources Board (CARB) had submitted these SIP revisions to satisfy the
applicable requirements of part D, title I of the CAA following EPA's
reclassification of the SJV area from severe to extreme nonattainment
for the 1-hour ozone NAAQS effective May 17, 2004. 69 FR 20550 (April
16, 2004).\1\ The SIP revisions that EPA approved consisted of the
following four submissions: (1) The ``Extreme Ozone Attainment
Demonstration Plan,'' adopted by the San Joaquin Valley Unified Air
Pollution Control District (SJVUAPCD or District) in October 2004 and
submitted by CARB on November 15, 2004 (2004 SIP); (2) amendments to
the 2004 SIP adopted by the District in October 2005 and submitted by
CARB on March 6, 2006 to, among other things, amend the control
strategy (2005 Amendments); (3) the ``Clarifications Regarding the 2004
Extreme Ozone Attainment Demonstration Plan,'' adopted by the District
in August 2008 and submitted by CARB on September 5, 2008 to provide
updates to the 2004 SIP related to reasonably available control
technology (RACT) measures adopted by the SJVUAPCD, the rate-of-
progress (ROP) demonstration, and contingency measures (2008
Clarifications); and (4) relevant portions of the ``2003 State and
Federal Strategy for the California State Implementation Plan,''
adopted by CARB in October 2003 and submitted to EPA on January 9, 2004
(2003 State Strategy), which identify CARB's regulatory agenda to
reduce ozone and particulate matter in California and include statewide
control measures applicable in the SJV. The 2003 State Strategy, as
modified by CARB's resolution adopting it and CARB's resolution
adopting the 2004 SIP, also includes State commitments to reduce
emissions in the SJV area by specified amounts. The 2004 SIP relies in
part on the 2003 State Strategy for the reductions needed to
demonstrate attainment and ROP for the 1-hour ozone standard in the SJV
area. See 75 FR 10420, 10421 (March 8, 2010).
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\1\ EPA established a new 8-hour ozone standard in 1997 (62 FR
38856 (July 18, 1997)) and subsequently revoked the 1-hour ozone
standard effective June 15, 2005 in the SJV (40 CFR 50.9(b); 69 FR
23951 (April 30, 2004) and 70 FR 44470 (August 3, 2005)). However,
the SJV area remains subject to certain CAA requirements for the 1-
hour ozone standard through the anti-backsliding provisions in EPA's
implementing regulations. See 40 CFR 51.905(a)(1) and 51.900(f).
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These submittals, which we refer to collectively as the ``2004 1-
Hour Ozone Plan'' or ``Plan,'' contained the following required
elements of a 1-hour ozone plan for the SJV: (1) A rate of progress
(ROP) demonstration as required by CAA sections 172(c)(2) and
182(c)(2); (2) ROP contingency measures as required by CAA sections
172(c)(9) and 182(c)(9); (3) an attainment demonstration as required by
CAA sections 182(c)(2)(A) and 181(a); (4) attainment contingency
measures as required by CAA section 172(c)(9); (5) a reasonably
available control measures (RACM) demonstration as required by CAA
section 172(c)(1); (6) provisions for clean fuels/clean technologies
for boilers as required by CAA 182(e)(3); and (7) vehicle miles
traveled (VMT) provisions as required by CAA section 182(d)(1)(A),
including the requirement regarding transportation control strategies
and transportation control measures sufficient to offset any growth in
emissions from growth in VMT or numbers of vehicle trips in the SJV
area (VMT emissions offset requirement).
The Sierra Club and several environmental groups filed a petition
for review of EPA's March 8, 2010 approval of the 2004 1-Hour Ozone
Plan, arguing, among other things, that EPA's action was arbitrary and
capricious under the Administrative Procedure Act (APA) because it did
not take into account new emissions inventory data that California had
submitted subsequent to its submittal of the 2004 1-Hour Ozone Plan. On
January 20, 2012, the U.S. Court of Appeals for the Ninth Circuit
granted the petition with respect to this issue, holding that EPA's
failure to consider the new emissions data rendered the Agency's action
arbitrary and capricious under the APA and remanding EPA's action, in
its entirety, for further proceedings consistent with the decision. See
Sierra Club, et. al. v. EPA, 671 F.3d 955 (9th Cir. 2012) (Sierra
Club). The court declined to reach the other issues raised in the
petition for review.
B. EPA's Proposed Action
Consistent with the Sierra Club court's remand, EPA is proposing to
withdraw its March 8, 2010 approval of the 2004 1-Hour Ozone Plan (75
FR 10420) in its entirety. This withdrawal, if finalized, would have
the effect of removing the 2004 1-Hour Ozone Plan from the applicable
California SIP and deleting the provisions in 40 CFR 52.220(c) where
EPA's approval of the Plan is currently codified. See 40 CFR
52.220(c)(317)(i)(B)(1), (c)(339)(i)(B)(1) and (ii)(C),
(c)(348)(i)(A)(2), and (c)(369)-(371). The District has stated its
intent to withdraw the Plan from EPA's consideration following EPA's
withdrawal of approval, and to submit a new 1-hour ozone plan to EPA by
June 30, 2013. See letter dated July 10, 2012, from Seyed Sadredin,
Executive Director/APCO, SJVUAPCD, to Jared Blumenfeld, Regional
Administrator, U.S. EPA Region IX, Re: ``San Joaquin Valley 1-hour
Ozone Plan.'' Consistent with these representations, we understand that
California intends to promptly withdraw the 2004 1-Hour Ozone Plan from
EPA's consideration if EPA finalizes today's proposal. Accordingly, EPA
is not proposing additional action on the 2004 1-Hour Ozone Plan at
this time.
As a consequence of EPA's reclassification of the SJV to extreme
nonattainment for the 1-hour ozone standard in 2004, California was
obligated to submit plan revisions for the SJV area meeting CAA and
regulatory requirements for extreme 1-hour ozone nonattainment areas.
Because California will be in default of these obligations should it
withdraw the Plan from EPA's consideration, following such withdrawal
EPA will promptly issue a finding of failure to submit pursuant to CAA
section 179(a)(1), effective upon publication in the Federal Register.
This finding would trigger mandatory sanctions under CAA section 179
unless the deficiency is corrected within 18 months of such finding and
would also trigger an obligation on EPA to promulgate a Federal
Implementation Plan (FIP) under CAA section 110(c) unless California
submits and we approve SIP revisions that correct the deficiency within
two years of such finding. Should California fail to promptly withdraw
the 2004 1-Hour Ozone Plan upon finalization of today's proposal, EPA
plans to commence a new rulemaking addressing the approvability of the
2004 1-Hour Ozone Plan.
If California withdraws the 2004 1-Hour Ozone Plan, the plan
elements under subparts 1 and 2 of part D, title I of the CAA for which
the State will no longer have a valid submission and thus would be
required to submit for the 1-hour ozone NAAQS for the SJV area are as
follows: (1) A ROP demonstration meeting the requirements of CAA
sections 172(c)(2) and 182(c)(2); (2) ROP contingency measures meeting
the requirements of CAA sections 172(c)(9) and 182(c)(9); (3) an
attainment
[[Page 58080]]
demonstration meeting the requirements of CAA sections 182(c)(2)(A) and
172(a)(2); (4) attainment contingency measures meeting the requirements
of CAA sections 172(c)(9); (5) a reasonably available control measures
(RACM) demonstration meeting the requirements of CAA section 172(c)(1);
(6) provisions satisfying the requirements for clean fuels/clean
technologies for boilers in CAA 182(e)(3); and (7) provisions
satisfying the vehicle miles traveled (VMT) provisions of CAA section
182(d)(1)(A), including the VMT emissions offset requirement. See 40
CFR 51.905(a)(1) and 51.900(f); see also 75 FR 10420, 10436-37.
II. VMT Emissions Offset Requirement for 1997 8-Hour Ozone Standard
A. Background
On March 1, 2012, EPA fully approved SIP revisions submitted by
California to provide for attainment of the 1997 8-hour ozone NAAQS in
the SJV extreme ozone nonattainment area (2007 8-Hour Ozone Plan).\2\
77 FR 12652 (March 1, 2012). This final rule, which was signed by the
Regional Administrator on December 15, 2011, included a determination
that the 2007 8-Hour Ozone Plan satisfied the VMT emissions offset
requirement in CAA section 182(d)(1)(A).\3\ 77 FR at 12670. Although
the 2007 8-Hour Ozone Plan does not contain a specific demonstration to
address the VMT emissions offset requirement, EPA concluded, based on
the Agency's then-current interpretation of CAA section 182(d)(1)(A),
that California was not required to include additional transportation
control strategies and transportation control measures to offset growth
in emissions from growth in VMT in the SJV area for purposes of the
1997 8-hour ozone NAAQS because the 2007 8-Hour Ozone Plan demonstrated
that both volatile organic compounds and nitrogen oxides emissions from
on-road mobile sources declined steadily over the entire period covered
by the plan. 76 FR 57846, 57863 (September 16, 2011) (proposed rule)
and 77 FR 12652, at 12666 and 12670 (March 1, 2012) (final rule).\4\
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\2\ For a more detailed description of this SIP, see 76 FR
57846, 57847 (September 16, 2011).
\3\ Section 182(d)(1)(A) of the Act states as follows:
Within 2 years after November 15, 1992, the State shall submit a
revision that identifies and adopts specific enforceable
transportation control strategies and transportation control
measures to offset any growth in emissions from growth in vehicle
miles traveled or numbers of vehicle trips in such area and to
attain reduction in motor vehicle emissions as necessary, in
combination with other emission reduction requirements of this
subpart, to comply with the requirements of subsection (b)(2)(B) and
(c)(2)(B) of this section (pertaining to periodic emissions
reduction requirements). The State shall consider measures specified
in section 7408(f) of this title, and choose from among and
implement such measures as necessary to demonstrate attainment with
the national ambient air quality standards; in considering such
measures, the State should ensure adequate access to downtown, other
commercial, and residential areas and should avoid measures that
increase or related emissions and congestion rather than reduce
them.
\4\ As explained in these rulemakings, EPA has historically
interpreted CAA section 182(d)(1)(A) to allow areas to meet the
requirement by demonstrating that emissions from motor vehicles
decline each year through the attainment year. See 57 FR 13498, at
13521-15323 (April 16, 1992).
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As explained in EPA's proposed and final rules, in Association of
Irritated Residents v. EPA, 632 F.3d 584 (9th Cir. 2011) (AIR), the
U.S. Court of Appeals for the Ninth Circuit held that CAA section
182(d)(1)(A) requires states to adopt, among other things,
transportation control measures and strategies whenever, due to growth
in VMT, vehicle emissions are projected to be higher than they would
have been had VMT not increased, even when aggregate vehicle emissions
are actually decreasing. 76 FR 57846, 57863 and 77 FR 12652 at fn. 4.
At the time of signature of the final rule approving the 2007 8-Hour
Ozone Plan, December 15, 2011, the court had not yet issued its mandate
in the AIR case and EPA had not adopted the court's interpretation for
the reasons set forth in the Agency's petition for rehearing of the
court's ruling on the VMT emissions offset requirement, pending a final
decision by the court. Id. Accordingly, notwithstanding adverse
comments on EPA's proposal with respect to this issue, EPA proceeded to
fully approve the 2007 8-Hour Ozone Plan as satisfying the VMT
emissions offset requirement in CAA section 182(d)(1)(A) on the basis
of EPA's then-current interpretation of this requirement. On January
27, 2012, the U.S. Court of Appeals for the Ninth Circuit denied EPA's
petition for rehearing in AIR and issued an amended opinion. The
mandate issued on February 13, 2012. See Association of Irritated
Residents, et al., v. EPA, Nos. 09-71383 and 09-71404 (consolidated),
632 F.3d 584 (9th Cir. 2011), reprinted as amended on January 27, 2012,
686 F.3d 668, further amended February 13, 2012.
EPA's final rule approving the 2007 8-Hour Ozone Plan was published
on March 1, 2012 (77 FR 12652). Shortly thereafter, several
environmental and community groups filed a lawsuit in the Ninth Circuit
challenging that approval. Committee for a Better Arvin et al. v. EPA,
No. 12-71332.
B. EPA's Proposed Action
As noted above, the Ninth Circuit rejected EPA's prior
interpretation of the VMT emissions offset requirement in section
182(d)(1)(A), under which we had allowed states to demonstrate
compliance through submittal of aggregate motor vehicle emissions
estimates showing year-over-year declines in such emissions. This
interpretation formed the basis for EPA's determination that the 2007
8-Hour Ozone Plan satisfied the VMT emissions offset requirement. In
response to the court's ruling in AIR, we are proposing to withdraw our
March 1, 2012 determination that the 2007 8-Hour Ozone SIP satisfies
the VMT emissions offset requirement in CAA section 182(d)(1)(A)
because it is predicated on an interpretation of section 182(d)(1)(A)
that has been rejected by the Ninth Circuit. The 2007 8-Hour Ozone Plan
fails to identify, compared to a baseline assuming no VMT growth, the
level of increased emissions resulting solely from VMT growth and to
show how such increased emissions have been offset through adoption and
implementation of transportation control strategies and transportation
control measures. This withdrawal would be limited to our conclusion
with respect to the VMT emissions offset requirement and would not
affect any other element of our March 1, 2012 action on the 2007 8-Hour
Ozone SIP.
Because EPA's determination that the 2007 8-Hour Ozone SIP
satisfied the VMT emissions offset requirement was made in the absence
of any such demonstration submitted by the State, California will be in
default of its obligation to submit a SIP revision satisfying this
requirement if EPA finalizes the withdrawal of its determination that
the obligation has been met. Therefore, simultaneously with a final
action to withdraw our previous determination that the 2007 8-Hour
Ozone Plan satisfies the VMT emissions offset requirement in CAA
section 182(d)(1)(A), EPA intends to issue a finding that California
has failed to submit a SIP revision to address this requirement, which
would be effective upon publication in the Federal Register. This
finding would trigger mandatory sanctions under CAA section 179 unless
the deficiency is corrected within 18 months of such finding and would
also trigger an obligation on EPA to promulgate a Federal
Implementation Plan (FIP) under CAA section 110(c) unless California
submits and we approve a SIP revision that corrects the
[[Page 58081]]
deficiency within two years of such finding.
III. Public Comment
We will accept comments from the public on these proposals for the
next 30 days. The deadline and instructions for submission of comments
are provided in the ``Date'' and ``Addresses'' sections at the
beginning of this preamble.
IV. Statutory and Executive Order Reviews
This action merely proposes to withdraw previous EPA actions, or
portions thereof, on SIP revisions submitted by California to provide
for attainment of ozone standards in the San Joaquin Valley. As such it
does not propose to impose additional requirements on any entity. For
that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735 (October 4, 1993));
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
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.);
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);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255 (August 10, 1999));
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR 19885
(April 23, 1997));
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355 (May 22, 2001));
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; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629 (February 16, 1994)).
In addition, this proposed action does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249; November 9, 2000),
because the SIP does not apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
Tribal governments or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 30, 2012.
Jared Blumenfeld,
EPA Regional Administrator, Region 9.
[FR Doc. 2012-22971 Filed 9-18-12; 8:45 am]
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