[Federal Register Volume 82, Number 239 (Thursday, December 14, 2017)]
[Rules and Regulations]
[Pages 58747-58749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26899]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2017-0580; FRL-9972-02-Region 9]
Contingency Measures for the 1997 PM2.5 Standards; California;
San Joaquin Valley; Correction of Deficiency
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA or ``Agency'') is
taking final action to determine that the deficiency that formed the
basis for a disapproval of the contingency measures submitted for the
San Joaquin Valley nonattainment area for the 1997 fine particulate
matter (PM2.5) national ambient air quality standards
(NAAQS) has been corrected. The effect of this action is to permanently
stop the sanctions clocks triggered by the disapproval.
DATES: This final rule is effective December 14, 2017.
ADDRESSES: The EPA has established a docket for this action under
Docket No. EPA-R09-OAR-2017-0580. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed on
the website, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available through https://www.regulations.gov, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information.
FOR FURTHER INFORMATION CONTACT: Rory Mays, EPA Region IX, (415) 972-
3227, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,''
``us,'' or ``our'' is used, we mean the 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 October 23, 2017 (82 FR 48944) (herein ``proposed rule''), we
proposed to determine that the deficiency that formed the basis for a
disapproval of the contingency measures submitted for the San Joaquin
Valley \1\ nonattainment area for the 1997 PM2.5 NAAQS
(``1997 PM2.5 standards'') \2\ has been corrected. We did so
based on the Agency's approval of California regulations establishing
standards and other requirements relating to the control of emissions
from new on-road and new and in-use off-road vehicles and engines
(herein, ``waiver measures'') into the California State Implementation
Plan (SIP), and a finding that the purposes of the contingency measure
requirement, as applicable to the San Joaquin Valley based on its
initial designation as a nonattainment area for the 1997
PM2.5 standards, have been fulfilled.
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\1\ The San Joaquin Valley PM2.5 nonattainment area
is located in the southern half of California's central valley and
includes all of San Joaquin, Stanislaus, Merced, Madera, Fresno,
Tulare, and Kings counties, and the valley portion of Kern County.
See 40 CFR 81.305.
\2\ The EPA promulgated the 1997 PM2.5 NAAQS at 62 FR
38652 (July 18, 1997).
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Our proposed rule provides a detailed background section that
describes the relevant NAAQS, area designations, the relevant SIP
submittal requirements, and the relevant SIP revisions submitted and
either approved or disapproved by the EPA under Clean Air Act (CAA or
``Act'') section 110.
In short, under CAA section 172(c)(9), SIPs for areas designated as
nonattainment for a NAAQS must be revised to provide for the
implementation of specific measures (``contingency measures'') to take
effect if the area fails to make reasonable further progress (RFP) or
fails to attain by the applicable attainment date. The EPA disapproved
the contingency measure element of a set of SIP revisions collectively
referred to as the ``2008 PM2.5 Plan,'' which was developed
and submitted by California to address SIP requirements triggered by
the designation of the San Joaquin Valley as a nonattainment area for
the 1997 PM2.5 NAAQS.\3\
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\3\ 76 FR 69896 (November 9, 2011) (final action on the 2008
PM2.5 Plan).
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In response to the EPA's disapproval of the contingency measure
element of the 2008 PM2.5 Plan, California submitted a SIP
revision referred to as the ``2013 Contingency Measure SIP.'' The 2013
Contingency Measure SIP primarily relied upon California's waiver
measures, i.e., California mobile source regulations that had been
waived or authorized by the EPA under CAA section 209, to provide post-
attainment year emissions reductions equivalent to one year's worth of
RFP.\4\
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\4\ One year's worth of RFP is the yardstick the EPA has cited
historically as the approximate quantity of emissions reductions
that contingency measures should provide to satisfy CAA section
172(c)(9). See, e.g., 81 FR 58010, at 58066 (August 24, 2016) (final
rule implementing the PM2.5 NAAQS).
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The EPA approved,\5\ but later disapproved,\6\ the 2013 Contingency
Measure SIP in the wake of a court decision \7\ that undermined the
basis for the EPA's approval. The court decision at issue held that
waiver measures must be approved into the SIP if California relies upon
them to meet CAA SIP requirements, thereby rejecting the EPA's
longstanding practice allowing California SIP credit for waiver
measures notwithstanding their absence from the SIP. Our disapproval of
the 2013 Contingency Measure SIP became effective on June 13, 2016, and
started a sanctions clock for imposition of offset sanctions 18 months
after June 13, 2016, and highway sanctions 6 months later, pursuant to
CAA section 179 and our regulations at 40 CFR 52.31, unless the State
submits and the EPA approves, prior to the implementation of the
sanctions, a SIP submission that corrects the deficiencies identified
in the disapproval action.\8\
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\5\ 79 FR 29327 (May 22, 2014) (final action approving the 2013
Contingency Measure SIP).
\6\ 81 FR 29498 (May 12, 2016) (final action disapproving the
2013 Contingency Measure SIP).
\7\ Committee for a Better Arvin v. EPA, 786 F.3d 1169 (9th Cir.
2015) (``Committee for a Better Arvin'') (partially granting and
partially denying petition for review).
\8\ The offset sanction applies to New Source Review (NSR)
permits for new major stationary sources or major modifications
proposed in a nonattainment area, and it increases the ratio of
emissions reductions (i.e., offsets) to increased emissions from the
new or modified source, which must be obtained to receive an NSR
permit, to 2 to 1. The highway sanction prohibits, with certain
exceptions, the U.S. Department of Transportation from approving or
funding transportation projects in a nonattainment area.
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Since the disapproval of the 2013 Contingency Measure SIP, we have
approved the waiver measures as
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revisions to the California SIP,\9\ and our approval of them as part of
the SIP addresses the specific deficiency that formed the basis of our
May 12, 2016 disapproval of the 2013 Contingency Measure SIP. Moreover,
since the 2014 attainment year (for the 2008 PM2.5 Plan),
the waiver measures and related vehicle fleet turnover have achieved
post-attainment year emission reductions equivalent to approximately
one year's worth of RFP as calculated for the 2008 PM2.5
Plan. The waiver measures have thus provided for sufficient progress
towards attainment of the 1997 PM2.5 standards while a new
attainment plan is being prepared.\10\ Therefore, in our proposed rule
we found that the purposes of the contingency measure requirement, as
applicable to the San Joaquin Valley based on the area's designation in
2005 for the 1997 PM2.5 NAAQS, have been fulfilled, and we
proposed to determine that the deficiency that formed the basis for the
disapproval of the 2013 Contingency Measure SIP has been corrected. We
are finalizing this determination in today's action.
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\9\ 81 FR 39424 (June 16, 2016) and 82 FR 14446 (March 21,
2017).
\10\ In response to the EPA's determination of failure to attain
the 1997 PM2.5 NAAQS, 81 FR 84481 (November 23, 2016),
the San Joaquin Valley Unified Air Pollution Control District and
California Air Resources Board are preparing a new attainment plan
with contingency measures for the 1997 PM2.5 NAAQS for
the San Joaquin Valley.
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For a more detailed discussion of the regulatory context and
rationale for our action, please see the proposed rule.
II. Public Comments and EPA Responses
The EPA's proposed action provided a 30-day public comment period
which ended on November 22, 2017. During this period, we received no
comments.
III. Final Action
For the reasons given in our proposed rule and summarized herein,
the EPA is making a final determination that the deficiency that formed
the basis of our disapproval of the 2013 Contingency Measure SIP for
the San Joaquin Valley for the 1997 PM2.5 NAAQS has been
corrected by the approval of the waiver measures as a revision to the
California SIP and the finding that the waiver measures have achieved
post-2014 attainment year emissions reductions sufficient to fulfill
the purposes of the contingency measure requirement in CAA section
172(c)(9). This final determination permanently stops the sanctions
clocks triggered by our disapproval of the 2013 Contingency Measure
SIP. See CAA section 179(a) and 40 CFR 52.31(d)(5).
In accordance with 5 U.S.C. 553(d), the EPA finds there is good
cause for this action to become effective immediately upon publication.
This is because a delayed effective date is unnecessary due to the
nature of the determination made herein that a deficiency in a previous
SIP approval has been corrected. The immediate effective date for this
action is authorized under both 5 U.S.C. 553(d)(1), which provides that
rulemaking actions may become effective less than 30 days after
publication if the rule ``grants or recognizes an exemption or relieves
a restriction,'' and section 553(d)(3), which allows an effective date
less than 30 days after publication ``as otherwise provided by the
agency for good cause found and published with the rule.'' The purpose
of the 30-day waiting period prescribed in section 553(d) is to give
affected parties a reasonable time to adjust their behavior and prepare
before the final rule takes effect. This rulemaking, however, does not
create any new regulatory requirement such that affected parties would
need time to prepare before the rule takes effect. Rather, today's rule
makes a determination that has the effect of permanently stopping
sanctions clocks triggered by a previous SIP disapproval action. For
these reasons, the EPA finds good cause under 5 U.S.C. 553(d)(3) for
this action to become effective on the date of publication of this
action.
IV. Statutory and Executive Order Reviews
This action is a determination that a deficiency that is the basis
for sanctions has been corrected and imposes no additional
requirements. For that reason, this 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);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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 the EPA with the discretionary authority
to address disproportionate human health or environmental effects with
practical, appropriate, and legally permissible methods under Executive
Order 12898 (59 FR 7629, February 16, 1994).
In addition, this action does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because it will not have a substantial direct effect on one or more
Indian tribes, on the relationship between the federal government and
Indian tribes, or on the distribution of power and responsibilities
between the federal government and Indian tribes, as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
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 February 12, 2018. 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
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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 oxides, Sulfur oxides,
Particulate matter.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 4, 2017.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 2017-26899 Filed 12-13-17; 8:45 am]
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