Clean Air Plans; 1-Hour and 1997 8-Hour Ozone Nonattainment Area Requirements; San Joaquin Valley, California

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is taking final action to approve a state implementation plan revision submitted by the State of California to provide for attainment of the 1-hour ozone national ambient air quality standard in the San Joaquin Valley, California ozone nonattainment area and to meet other Clean Air Act requirements. Specifically, with respect to the 1-hour ozone standard, the EPA is taking final action to find the emissions inventories to be acceptable and to approve the reasonably available control measures demonstration, the rate of progress demonstrations, the attainment demonstration, contingency measures for failure to meet rate of progress milestones, the provisions for advanced technology/clean fuels for boilers, and the demonstration that the plan provides sufficient transportation control strategies and measures to offset emissions increases due to increases in motor vehicle activity. For the 1997 8-hour ozone standard, the EPA is taking final action to approve the demonstration that the plan provides sufficient transportation control strategies and measures to offset emissions increases due to increases in motor vehicle activity.

DATES:

This rule is effective on May 5, 2016.

ADDRESSES:

The EPA has established a docket for this action under Docket ID Number EPA-R09-OAR-2015-0048. Generally, documents in the docket for this action are available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed at 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., confidential business information or “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:

John Ungvarsky, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region 9, (415) 972-3963, ungvarsky.john@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us” and “our” refer to the EPA.

Table of Contents

I. Proposed Action

II. Public Comments

III. Final Action

IV. Statutory and Executive Order Reviews

I. Proposed Action

On January 15, 2016 (81 FR 2140), the EPA proposed, under section 110(k)(3) of the Clean Air Act (CAA or “Act”), to approve a revision to the California state implementation plan (SIP) submitted by the California Air Resources Board (CARB) on December 20, 2013. The SIP submittal consists of the San Joaquin Valley's “2013 Plan for the Revoked 1-Hour Ozone Standard” (“2013 Ozone Plan”) and related documentation. More specifically, we proposed to approve all of the elements contained in the 2013 Ozone Plan, with the exception of the attainment contingency provisions for which the EPA is deferring action, based on the documentation contained in or submitted with the plan itself and supplemental documentation provided by CARB on June 19, 2014 related to the vehicle-miles-traveled (VMT) emissions offset requirement in CAA section 182(d)(1)(A).

As explained in more detail in our proposed rule, the 2013 Ozone Plan was prepared by the San Joaquin Valley Unified Air Pollution Control District (SJVUACPD or “District”) and CARB in response to the EPA's regulatory responses to two specific court decisions issued by the Ninth Circuit Court of Appeals (“Ninth Circuit”), one of which remanded to the EPA the approval of the previous San Joaquin Valley 1-hour ozone plan. Although the 1-hour ozone national ambient air quality standard has been revoked, certain SIP requirements that had applied to 1-hour ozone nonattainment areas, such as the San Joaquin Valley, at the time of revocation continue to apply under “anti-backsliding” regulations that the EPA promulgated to govern the transition from the 1-hour ozone standard to the 8-hour ozone standard.

In our proposed rule, we also discussed the implications on our action on the 2013 Ozone Plan of a third Ninth Circuit decision, Committee for a Better Arvin v. EPA, 786 F.3d 1169 (9th Cir. 2015)(“Committee for a Better Arvin”), and indicated that, in response to the decision in Committee for a Better Arvin, the EPA had proposed in a separate rulemaking (i.e., 80 FR 69915 (November 12, 2015)) to approve (as a revision to the California SIP) a number of CARB mobile source regulations for which the EPA has issued waivers or authorizations under CAA section 209 (referred to herein as “waiver measures.”) See our January 15, 2016 proposed rule at 81 FR 2141-2144.

In our January 15, 2016 proposed rule, we reviewed the various SIP elements contained in the 2013 Ozone Plan (except for the attainment contingency provisions), and evaluated them for compliance with statutory and regulatory requirements, and concluded that they meet all applicable requirements. More specifically, we determined that:

• The 2007 base year emission inventory in the 2013 Ozone Plan is comprehensive, accurate, and current and that this inventory as well as the 2013, 2016, and 2017 projected inventories have been prepared consistent with EPA guidance and provide an appropriate basis for the various other elements of the 2013 Ozone Plan, including the reasonably available control measures (RACM) demonstration, and the Rate-of-Progress (ROP) and attainment demonstrations (see 81 FR 2144-2145 from the proposed rule);
• There are no additional RACM that would advance attainment of the 1-hour ozone standard in the San Joaquin Valley to 2016, and thus the 2013 Ozone Plan provides for the implementation of all RACM as required by CAA section 172(c)(1) and 40 CFR 51.1105(a)(1) and 51.1100(o)(17) for the 1-hour ozone standard (see 81 FR 2145-2148 from the proposed rule);
• The ROP demonstrations in the 2013 Ozone Plan meet the requirements of CAA section 172(c)(2) and 182(c)(2)(B), and 40 CFR 51.1105(a)(1) and 51.1100(o)(4) for the 1-hour ozone standard (see 81 FR 2148-2149 from the proposed rule);
• The air quality modeling in the 2013 Ozone Plan is adequate to support the attainment demonstration and that the plan's demonstration of attainment by November 26, 2017 meets the requirements of CAA section 182(c)(2)(A), and 40 CFR 51.1105(a)(1) and 51.1100(o)(12) for the 1-hour ozone standard (see 81 FR 2149-2153 from the proposed rule);
• The 2013 Ozone Plan provides sufficient excess reductions of NO_X in each milestone year beyond those needed to meet the next ROP percent reduction requirement to provide the 3 percent of adjusted baseline emissions reductions needed to meet the ROP contingency measure requirement for 2010, 2013, 2016, and 2017 and thereby meets the ROP contingency measure requirements in CAA section 182(c)(9) and 40 CFR 51.1105(a)(1) and 51.1100(o)(13) for the 1-hour ozone standard (see 81 FR 2153-2154 from the proposed rule);
• Through EPA-approved District rules 2201, 4306, and 4352, the 2013 Ozone Plan meets the clean fuels or advanced control technology for boilers requirement in CAA section 182(e)(3) and 40 CFR 40 CFR 51.1105(a)(1) and 51.1100(o)(6) for the 1-hour ozone standard (see 81 FR 2154 from the proposed rule); and
• The 2013 Ozone Plan (particularly, appendix D and the related technical supplement submitted by CARB on June 19, 2014) demonstrates that the State has adopted sufficient transportation control strategies (TCSs) and transportation control measures (TCMs) to offset the growth in emissions from growth in VMT and vehicle trips in the San Joaquin Valley for the purposes of the 1-hour ozone and 1997 8-hour ozone standards and thereby complies with the VMT emissions offset requirement in CAA section 182(d)(1)(A) and 40 CFR 51.1105(a)(1) and 51.1100(o)(10) for those standards (see 81 FR 2154-2158 from the proposed rule).

Lastly, we indicated in our proposed rule that, given that the 2013 Ozone Plan is based in part on the permanence and enforceability of the waiver measures, the EPA would not finalize approval of the 2013 Ozone Plan until the Agency takes final action to approve the waiver measures as part of the California SIP. The comment period for our proposed approval of the waiver measures SIP revision has closed, but the Agency has yet to issue a final rule. However, given that the statutory deadline for final action by the EPA on CARB's December 20, 2013 submittal of the 2013 Ozone Plan has passed and given that we expect that the EPA will take final action on the waiver measures SIP revision in the near term, we believe that taking action on the 2013 Ozone Plan at this time is reasonable and appropriate. If, however, final action on the waiver measures SIP revision is delayed beyond the near term, we will take appropriate remedial action to ensure that our action on the 2013 Ozone Plan is fully supportable or we will reconsider this action in light of changed circumstances.

Please see our January 15, 2016 proposed rule and the related Technical Support Document for more information concerning the background for this action and for a more detailed discussion of the rationale for approval of the 2013 Ozone Plan.

II. Public Comments

Our January 15, 2016 proposed rule provided a 30-day public comment period, which closed on February 16, 2016. We received no comments on our proposal during this period.

III. Final Action

For the reasons discussed in the January 15, 2016 proposed rule and summarized above, the EPA is approving, under CAA section 110(k)(3), CARB's submittal dated December 20, 2013 of the San Joaquin Valley 2013 Ozone Plan as a revision to the California SIP. In so doing, the EPA is approving the following elements of the plan as meeting the specified requirements for the revoked 1-hour ozone standard:

• RACM demonstration as meeting the requirements of CAA section 172(c)(1) and 40 CFR 51.1105(a)(1) and 51.1100(o)(17);
• ROP demonstrations as meeting the requirements of CAA section 172(c)(2) and 182(c)(2)(B), and 40 CFR 51.1105(a)(1) and 51.1100(o)(4);
• Attainment demonstration as meeting the requirements of CAA section 182(c)(2)(A), and 40 CFR 51.1105(a)(1) and 51.1100(o)(12);
• ROP contingency measures as meeting the requirements of CAA sections 182(c)(9) and 40 CFR 51.1105(a)(1) and 51.1100(o)(13); and
• Provisions for clean fuels or advanced control technology for boilers as meeting the requirements of CAA section 182(e)(3) and 40 CFR 51.1105(a)(1) and 51.1100(o)(6).

The EPA is also approving the 2013 Ozone Plan as meeting the specified requirements for the revoked 1-hour ozone standard and the revoked 1997 8-hour ozone standard:

• VMT emissions offset demonstrations as meeting the requirements of CAA section 182(d)(1)(A) and 40 CFR 51.1105(a)(1) and 51.1100(o)(10).

IV. 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 approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves a state plan as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. 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);
• 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).

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have Tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes.”

Eight Indian tribes are located within the boundaries of the San Joaquin Valley air quality planning area for the 1-hour ozone and 1997 8-hours ozone standards: The Big Sandy Rancheria of Mono Indians of California, the Cold Springs Rancheria of Mono Indians of California, the North Fork Rancheria of Mono Indians of California, the Picayune Rancheria of Chukchansi Indians of California, the Santa Rosa Rancheria of the Tachi Yokut Tribe, the Table Mountain Rancheria of California, the Tejon Indian Tribe, and the Tule River Indian Tribe of the Tule River Reservation.

The EPA's approval of the various SIP elements submitted by CARB to address the 1-hour ozone standard and 1997 8-hours ozone standard in the San Joaquin Valley would not have tribal implications because the SIP is not approved to 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. In those areas of Indian country, the SIP approvals do not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Therefore, the EPA has concluded that the action will not have tribal implications for the purposes of Executive Order 13175, and will not impose substantial direct costs upon the tribes, nor will it preempt Tribal law. We note that none of the tribes located in the San Joaquin Valley has requested eligibility to administer programs under the CAA.

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 June 6, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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 regulations
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Authority: 42 U.S.C. 7401 et seq.

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart F—California

2. Section 52.220 is amended by:

a. Removing and reserving paragraph (c)(371); and

b. Adding paragraph (c)(470) to read as follows: