[Federal Register Volume 81, Number 92 (Thursday, May 12, 2016)]
[Rules and Regulations]
[Pages 29498-29501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11125]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2013-0534; FRL-9946-29-Region 9]
Withdrawal of Approval and Disapproval of Air Quality
Implementation Plans; California; San Joaquin Valley; Contingency
Measures for the 1997 PM2.5 Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is withdrawing a May
22, 2014 final action approving a state implementation plan (SIP)
revision submitted by the State of California under the Clean Air Act
(CAA) to address contingency measure requirements for the 1997 annual
and 24-hour national ambient air quality standards (NAAQS) for fine
particulate matter (PM2.5) in the San Joaquin Valley.
Simultaneously, EPA is disapproving this SIP submission. These final
actions are in response to a decision issued by the U.S. Court of
Appeals for the Ninth
[[Page 29499]]
Circuit (Committee for a Better Arvin v. EPA, 786 F.3d 1169 (9th Cir.
2015)) remanding EPA's approval of a related SIP submission and
rejecting EPA's rationale for approving plan submissions that rely on
California mobile source control measures to meet SIP requirements such
as contingency measures, which was a necessary basis for the May 22,
2014 final rule. Finally, EPA is issuing a protective finding for
transportation conformity determinations for the disapproval.
DATES: This rule is effective June 13, 2016.
ADDRESSES: The EPA has established docket number EPA-R09-OAR-2013-0534
for this action. Generally, documents in the docket for this action are
available electronically at http://www.regulations.gov or in hard copy
at EPA Region IX, 75 Hawthorne Street, San Francisco, California 94015-
3901. While all documents in the docket are listed at http://www.regulations.gov, some information may be publicly available only at
the hard copy location (e.g., copyrighted material, large maps), and
some may not be publicly available in 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.
FOR FURTHER INFORMATION CONTACT: Doris Lo, EPA Region IX, (415) 972-
3959, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. Proposed Action
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews
I. Proposed Action
On August 17, 2015, EPA proposed to withdraw its May 22, 2014 final
action approving California's July 3, 2013 submission to address
contingency measure requirements for the 1997 annual and 24-hour
PM2.5 NAAQS in the San Joaquin Valley (2013 Contingency
Measure Submittal).\1\ Simultaneously, EPA proposed to disapprove this
SIP submission. These proposed actions were in response to a decision
issued by the U.S. Court of Appeals for the Ninth Circuit remanding
EPA's approval of a related SIP submission and rejecting EPA's
rationale for approving SIP submissions that rely on California mobile
source control measures not actually part of the EPA-approved SIP in
order to meet SIP requirements (Committee for a Better Arvin v. EPA,
786 F.3d 1169 (9th Cir. 2015)), which was a necessary basis for the May
22, 2014 final rule. EPA's May 22, 2014, approval of the 2013
Contingency Measure Submittal likewise relied on the same California
mobile source control measures.
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\1\ 80 FR 49190 (August 17, 2015).
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EPA proposed to determine that the disapproval of the 2013
Contingency Measure Submittal would not start a mandatory sanctions
clock or Federal implementation plan (FIP) clock because the specific
type of contingency measure at issue in that submittal was no longer a
required attainment plan element for the San Joaquin Valley (SJV) area.
The California Air Resources Board (CARB) had submitted the 2013
Contingency Measure Submittal to address the contingency measure
requirement in CAA section 172(c)(9) as applied to the 2008
PM2.5 Plan, which provided for attainment of the 1997
PM2.5 NAAQS in the SJV by April 5, 2015, the latest
permissible attainment date for this area under subpart 1 of part D,
title I of the Act. EPA stated in the proposed rule that, as a
consequence of EPA's March 27, 2015 reclassification of the SJV area
from ``Moderate'' to ``Serious'' nonattainment for the 1997
PM2.5 NAAQS, the specific requirement for contingency
measures for failure to attain as a Moderate area plan requirement had
been eliminated and superseded by different planning obligations under
subpart 4 of part D, title I of the Act.\2\ Because the State had
submitted the 2013 Contingency Measure Submittal to address a
contingency measure requirement for failure to attain by a statutory
attainment date that no longer applied to the area (April 5, 2015), EPA
proposed to find that this SIP submittal no longer addressed an
applicable requirement of part D, title I of the Act, and that the
disapproval of it therefore would not trigger sanctions. For the same
reason, EPA proposed to find that disapproval of the submission would
not create any deficiency in a mandatory component of the SIP for the
area and, therefore, would not trigger the obligation on EPA to
promulgate a FIP under section 110(c) of the Act.\3\
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\2\ Id. at 49192.
\3\ Id.
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II. Public Comments and EPA Responses
EPA received one comment on the proposed action, submitted by
Earthjustice. EPA summarizes and responds to the comment below.
Comment: Earthjustice argues that EPA has no legal basis for
proposing to determine that the disapproval of the 2013 Contingency
Measure Submittal would not start a mandatory sanctions clock or FIP
clock. According to Earthjustice, section 179(a)(2) of the Clean Air
Act provides that sanctions ``shall apply'' if EPA disapproves a
submission based on its failure to meet one or more CAA requirements
applicable to nonattainment areas, and section 110(c) provides that EPA
``shall promulgate a Federal implementation plan at any time within 2
years after [EPA] . . . disapproves a State implementation plan in
whole or in part . . . .'' Earthjustice asserts that contingency
measures under CAA section 172(c)(9) are required elements for all
attainment plans for nonattainment areas and must provide for the
implementation of specific measures that will be undertaken if the area
fails to attain, regardless of the applicable attainment date. Although
EPA has some flexibility to establish a schedule for submitting a plan
meeting the requirements of section 172(c), according to Earthjustice,
that schedule may not be extended beyond three years from the date of
the nonattainment designation, a date that has passed for the San
Joaquin Valley. Earthjustice argues that the contingency measure
requirement was not a ``Moderate area'' requirement and is not reset or
eliminated with reclassification under subpart 4, and that although
reclassification as a ``Serious area'' may affect the tonnage of
reductions that must be achieved, it does not eliminate the section
172(c)(9) requirement that the District was required to meet years ago.
For all of these reasons, Earthjustice argues that the disapproval of
this submittal triggers a sanctions clock under CAA section 179 and a
FIP clock under section 110(c).
Response: Upon further consideration of these issues, EPA agrees
with the commenter that the disapproval of the 2013 Contingency Measure
Submittal triggers a mandatory sanctions clock under CAA section 179
and a FIP clock under section 110(c).
Section 179(a) of the Act provides that, for any SIP revision
required under part D of title I of the Act or required in response to
a finding of substantial inadequacy as described in section 110(k), if
EPA disapproves a submission for a nonattainment area based on the
state's failure to meet one or more of the CAA requirements applicable
to the area, mandatory sanctions under section 179(b) shall apply. The
2013 Contingency Measure Submittal was a plan revision required under
part D of
[[Page 29500]]
title I of the Act for the purposes of implementing the 1997
PM2.5 NAAQS in the SJV PM2.5 nonattainment area.
As explained in the proposed action, EPA is disapproving the 2013
Contingency Measure Submittal based on the failure to meet the
contingency measure requirement in CAA section 172(c)(9) for the area--
i.e., because of the reliance on California waiver measures that EPA
has not approved into the California SIP. This disapproval triggers a
mandatory sanctions clock under section 179.
Section 110(c) of the Act states that EPA ``shall promulgate a
Federal implementation plan at any time within 2 years after the
Administrator--. . . (B) disapproves a State implementation plan
submission in whole or in part,'' unless the State corrects the
deficiency and EPA approves the plan or plan revision before
promulgating such FIP. As a consequence of our disapproval of the 2013
Contingency Measure Submittal, the California SIP does not contain any
contingency measures to be triggered if the SJV area fails to attain
the 1997 PM2.5 NAAQS by the Serious area attainment date,
which is currently December 31, 2015. Because this disapproval creates
a deficiency in the SIP, the disapproval triggers the obligation on EPA
to promulgate a FIP under section 110(c), unless the State submits and
EPA approves a SIP revision correcting the deficiency within two years
of the disapproval.
As explained in the proposed action, contingency measures for
failure to attain by the Moderate area attainment date are no longer
required in the SJV as the requirement for such measures has been
superseded by the requirement for contingency measures as part of a
Serious area plan for the 1997 PM2.5 NAAQS in this area.\4\
Thus, the State is no longer required to adopt contingency measures for
failure to attain by April 5, 2015. Because the SJV area is currently
classified as a Serious nonattainment area for the 1997
PM2.5 NAAQS, however, the State must satisfy the contingency
measure requirement in section 172(c)(9) as applied to a Serious area
attainment plan to provide for attainment of the 1997 PM2.5
NAAQS in the SJV no later than the applicable attainment date, which is
currently December 31, 2015.
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\4\ Id. at 49192 (August 17, 2015).
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California submitted a Serious area plan for the 1997
PM2.5 NAAQS in the SJV on June 25, 2015, together with
requests for extension of the Serious area attainment date under CAA
section 188(e) to December 31, 2018 and December 31, 2020 for the 1997
24-hour and annual standards, respectively, and EPA has proposed to
grant these requests for extension of the attainment date.\5\ If EPA
takes final action to extend the Serious area attainment date for the
1997 PM2.5 NAAQS in the SJV, the State will be obligated to
adopt and submit contingency measures to be implemented if the SJV area
fails to make reasonable further progress or to attain the 1997
PM2.5 NAAQS by the extended attainment date(s) approved by
EPA in that action. We encourage the State and District to consult with
EPA during their development of a corrective SIP submission to ensure
that it fully satisfies the section 172(c)(9) contingency measure
requirement for the 1997 PM2.5 NAAQS in the SJV area and
thereby corrects the current deficiency in the SIP.
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\5\ 81 FR 6936 at 6938 (February 9, 2016).
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III. Final Action
EPA is withdrawing its May 22, 2014 final action approving the 2013
Contingency Measure Submittal. Simultaneously, under section 110(k)(3)
of the Act, EPA is disapproving this SIP submission for failure to
satisfy the requirements of CAA section 172(c)(9).
Under section 179(a) of the CAA, a final disapproval of a submittal
that addresses a requirement of part D of title I of the CAA or is
required in response to a finding of substantial inadequacy as
described in CAA section 110(k)(5) (SIP Call), triggers a sanction
clock under CAA section 179(b) that runs from the effective date of the
final action. The first sanction, the offset sanction in CAA section
179(b)(2), will apply in the SJV PM2.5 nonattainment area 18
months after June 13, 2016. The second sanction, highway funding
sanctions in CAA section 179(b)(1), will apply in the area six months
after the offset sanction is imposed. Neither sanction will be imposed
under the CAA if California submits and we approve, prior to the
implementation of the sanctions, a SIP submission that corrects the
deficiencies identified in this final action.
In addition to the sanctions, CAA section 110(c)(1) provides that
EPA must promulgate a federal implementation plan (FIP) addressing the
deficiency at any time within two years after June 13, 2016, the
effective date of this rule, unless the state makes a SIP submission to
correct the deficiency and EPA approves such submission before
promulgating a FIP.
Because we previously approved the RFP and attainment
demonstrations and the motor vehicle emissions budgets,\6\ we are
issuing a protective finding under 40 CFR 93.120(a)(3) to the
disapproval of the contingency measures. Without a protective finding,
the final disapproval would result in a conformity freeze, under which
only projects in the first four years of the most recent conforming
Regional Transportation Plan and Transportation Improvement Programs
can proceed. During a freeze, no new RTPs, TIPs or RTP/TIP amendments
can be found to conform.\7\ Under this protective finding, the final
disapproval of the contingency measures does not result in a
transportation conformity freeze in the San Joaquin Valley
PM2.5 nonattainment area.
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\6\ 76 FR 69896 (November 9, 2011).
\7\ 40 CFR 93.120(a)(2).
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IV. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA, because this SIP disapproval does not in-and-of itself create
any new information collection burdens, but simply disapproves certain
State requirements for inclusion in the SIP.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This SIP
disapproval does not in-and-of itself create any new requirements but
simply disapproves certain State requirements for inclusion in the SIP.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action disapproves pre-existing requirements
under State or local law, and imposes no new requirements. Accordingly,
no additional costs to State, local, or tribal
[[Page 29501]]
governments, or to the private sector, result from this action.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP revision that the EPA is
disapproving would not apply on any Indian reservation land or in any
other area where the EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction, and will not impose substantial direct costs on
tribal governments or preempt tribal law. Thus, Executive Order 13175
does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because this SIP disapproval does not in-and-of
itself create any new regulations, but simply disapproves certain State
requirements for inclusion in the SIP.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
The EPA lacks the discretionary authority to address environmental
justice in this rulemaking.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
L. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 11, 2016. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Particulate
matter, Sulfur oxides.
Dated: April 29, 2016.
Jared Blumenfeld,
Regional Administrator, Region IX.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
0
2. Section 52.220 is amended by adding paragraph (c)(438)(ii)(C) to
read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(438) * * *
(ii) * * *
(C) Previously approved in paragraphs (c)(438)(ii)(A)(1),
(c)(438)(ii)(A)(2), (c)(438)(ii)(A)(3), and (c)(438)(ii)(B)(1) of this
section and now deleted without replacement: ``Quantifying Contingency
Reductions for the 2008 PM2.5 Plan'' (dated June 20, 2013),
SJVUAPCD Governing Board Resolution No. 13-6-18 (dated June 20, 2013),
Electronic mail (dated July 24, 2013) from Samir Sheikh to Kerry Drake,
and California Air Resources Board Executive Order 13-30 (dated June
27, 2013).
* * * * *
0
3. Section 52.237 is amended by adding paragraph (a)(8) to read as
follows:
Sec. 52.237 Part D disapproval.
(a) * * *
(8) The contingency measure portion of the 2008 PM2.5
Plan for attainment of the 1997 PM2.5 standards in the San
Joaquin Valley (June 2013).
[FR Doc. 2016-11125 Filed 5-11-16; 8:45 am]
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