Approval of Air Quality Implementation Plans; California; Ventura County; 8-Hour Ozone Nonattainment Area Requirements, 38081-38086 [2020-11931]

Download as PDF 38081 Federal Register / Vol. 85, No. 123 / Thursday, June 25, 2020 / Rules and Regulations 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. 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 August 24, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for Rule No. 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, Carbon monoxide, Greenhouse gases, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: May 29, 2020. Gregory Sopkin, Regional Administrator, Region 8. For the reasons stated in the preamble, EPA amends 40 CFR part 52 as follows: State effective date Rule title * * * EPA effective date 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 JJ—North Dakota 2. In § 52.1820, amend paragraph (c) by: ■ a. Revising, under the center heading ‘‘33.1–15–14. Designated Air Contaminant Sources Permit to Construct Minor Source Permit to Operate Title V Permit to Operate,’’ the table entry for: 33.1–15–14–02. Permit to construct; ■ b. Revising, under the center heading ‘‘33.1–15–15. Prevention of Significant Deterioration of Air Quality,’’ the table entry for 33.1–15–15–01.2. Scope. The revisions read as follows: ■ § 52.1820 * Identification of plan. * * (c) * * * * * Final rule citation/date * * * Comments * 33.1–15–14. Designated Air Contaminant Sources Permit to Construct Minor Source Permit to Operate Title V Permit to Operate * 33.1–15–14–02 * * Permit to Construct ......................... * * * 7/1/16 * 7/27/20 * * [Insert Federal Register citation], 6/25/20. * * * * * 33.1–15–15. Prevention of Significant Deterioration of Air Quality * 33.1–15–15– 01.2. * * Scope .............................................. * * * * * * * 7/1/16 * * [FR Doc. 2020–12059 Filed 6–24–20; 8:45 am] 7/27/20 * * [Insert Federal Register citation], 6/25/20. * * ENVIRONMENTAL PROTECTION AGENCY BILLING CODE 6560–50–P 40 CFR Part 52 jbell on DSKJLSW7X2PROD with RULES [EPA–R09–OAR–2018–0146; FRL–10009– 22–Region 9] Approval of Air Quality Implementation Plans; California; Ventura County; 8-Hour Ozone Nonattainment Area Requirements Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: VerDate Sep<11>2014 16:57 Jun 24, 2020 Jkt 250001 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 * * * The Environmental Protection Agency (EPA) is taking final action to conditionally approve portions of two state implementation plan (SIP) submissions from the State of California to meet Clean Air Act (CAA or ‘‘the Act’’) requirements for the 2008 8-hour ozone national ambient air quality standards (NAAQS or ‘‘standards’’) in the Ventura County, California (‘‘Ventura County’’) ozone nonattainment area. The two SIP submissions include the ‘‘Final 2016 Ventura County Air Quality Management Plan,’’ and the Ventura County portion of the ‘‘2018 Updates to SUMMARY: E:\FR\FM\25JNR1.SGM 25JNR1 38082 Federal Register / Vol. 85, No. 123 / Thursday, June 25, 2020 / Rules and Regulations the California State Implementation Plan.’’ In this action, the EPA refers to these submittals collectively as the ‘‘2016 Ventura County Ozone SIP.’’ The 2016 Ventura County Ozone SIP addresses the nonattainment area requirements for the 2008 ozone NAAQS, including the requirements for an emissions inventory, attainment demonstration, reasonable further progress, reasonably available control measures, contingency measures, among others; and establishes motor vehicle emissions budgets. In a separate final rule, the EPA took final action to approve the 2016 Ventura County Ozone SIP as meeting all the applicable ozone nonattainment area requirements except for the contingency measures requirement. In this action, the EPA is taking final action to conditionally approve the contingency measures element of the 2016 Ventura County Ozone SIP. DATES: This rule will be effective on July 27, 2020. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA–R09–OAR–2018–0146. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, 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: John Kelly, Air Planning Office (AIR–2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105, (415) 947–4151, or by email at kelly.johnj@epa.gov. SUPPLEMENTARY INFORMATION: Table of Contents I. Summary of the Proposed Action II. Public Comments and EPA Responses III. Final Action IV. Statutory and Executive Order Reviews jbell on DSKJLSW7X2PROD with RULES I. Summary of the Proposed Action On December 20, 2019, the EPA proposed to approve, under CAA section 110(k)(3), or to conditionally approve, under CAA section 110(k)(4), all or portions of submittals from the California Air Resources Board (CARB) of revisions to the California SIP for the Ventura County ozone nonattainment VerDate Sep<11>2014 16:57 Jun 24, 2020 Jkt 250001 area for the 2008 ozone NAAQS.1 The relevant SIP revisions include Ventura County Air Pollution Control District’s (VCAPCD’s or ‘‘District’s’’) Final 2016 Ventura County Air Quality Management Plan (‘‘2016 Ventura County AQMP’’), and the Ventura County portion of CARB’s 2018 Updates to the California State Implementation Plan (‘‘2018 SIP Update’’). Collectively, we refer to these revisions as the 2016 Ventura County Ozone SIP, and we refer to our December 20, 2019 proposed rule as the ‘‘proposed rule.’’ Our proposed conditional approval of the contingency measures element of the 2016 Ventura County AQMP relied on specific commitments: (1) From the District to modify an existing rule or rules that would provide for additional emissions reductions in the event that Ventura County fails to meet a reasonable further progress (RFP) milestone or fails to attain the 2008 ozone NAAQS by the applicable attainment date, and (2) from CARB to submit the revised District rule(s) to the EPA as a SIP revision within 12 months of our final action.2 For more information on the SIP revision submittals and related commitments, please see our proposed rule. In our proposed rule, we provided background information on the ozone standards,3 area designations, related SIP revision requirements under the CAA, and the EPA’s implementing regulations for the 2008 ozone NAAQS, referred to as the 2008 Ozone SIP Requirements Rule (‘‘2008 Ozone SRR’’). To summarize, the Ventura County ozone nonattainment area is classified as Serious for the 2008 ozone NAAQS, and the 2016 Ventura County Ozone SIP was developed to address all the SIP requirements that apply to a Serious nonattainment area for the 2008 1 84 FR 70109. Ventura County lies within California’s South Central Coast Air Basin, which includes the counties of Santa Barbara and San Luis Obispo in addition to Ventura County. The Ventura County ozone nonattainment area for the 2008 ozone NAAQS includes the entire county except for the Channel Islands of Anacapa and San Nicolas Islands. See 40 CFR 81.305. 2 Letter dated August 16, 2019, from Michael Villegas, Air Pollution Control Officer, VCAPCD, to Richard Corey, Executive Officer, CARB; and letter dated August 30, 2019, from Richard W. Corey, Executive Officer, CARB to Mike Stoker, Regional Administrator, Region IX. 3 Ground-level ozone pollution is formed from the reaction of volatile organic compounds (VOC) and oxides of nitrogen (NOX) in the presence of sunlight. The 2008 ozone NAAQS is 0.075 parts per million (eight-hour average). CARB refers to reactive organic gases (ROG) in some of its ozonerelated submittals. The CAA and the EPA’s regulations refer to VOC, rather than ROG, but both terms cover essentially the same set of gases. In this final rule, we use the Federal term (VOC) to refer to this set of gases. PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 ozone NAAQS other than the SIP requirements for new source review and reasonably available control technology previously addressed in separate submittals and EPA actions. For our proposed rule, we reviewed the various SIP elements contained in the 2016 Ventura County Ozone SIP, evaluated them for compliance with statutory and regulatory requirements, and proposed to conclude that they meet all applicable requirements with the exception of the contingency measures element. On February 27, 2020, the EPA took final action to approve all the elements of the 2016 Ventura County Ozone SIP except for the contingency measures element.4 In our February 27, 2020 final rule, we indicated that we would be taking final action on the contingency measures element in a separate final rule. This action is our final action on the contingency measures element. With respect to the contingency measures element of the 2016 Ventura County Ozone SIP, in our proposed rule, we evaluated the element for compliance with the CAA sections 172(c)(9) and 182(c)(9). We explained that the key is that the statute requires that contingency measures provide for additional emissions reductions that are not relied on for RFP or attainment and that the purpose of contingency measures is to provide continued emissions reductions while the plan is being revised to meet the missed milestone or attainment date. We further explained that neither the CAA nor the EPA’s implementing regulations for the 2008 Ozone NAAQS require that contingency measures achieve a specific amount of emissions reductions, but that the EPA will evaluate that on a case-by-case basis depending on the facts and circumstances. In our proposed rule, in light of the Bahr decision,5 we determined that the contingency measures element of the 2016 Ventura County Ozone SIP could not be fully approved without supplementation by the District and CARB. However, we also determined that the element could be conditionally approved as meeting the requirements of CAA sections 172(c)(9) and 182(c)(9) for the 2008 ozone NAAQS, based upon commitments from the District and CARB to adopt and submit a revised rule or rules with provisions designed to 4 85 FR 11814. v. EPA, 836 F.3d 1218 (9th Cir. 2016) (‘‘Bahr’’) (rejecting early-implementation of contingency measures and concluding that a contingency measure under CAA section 172(c)(9) must take effect at the time the area fails to make RFP or attain by the applicable attainment date, not before). 5 Bahr E:\FR\FM\25JNR1.SGM 25JNR1 Federal Register / Vol. 85, No. 123 / Thursday, June 25, 2020 / Rules and Regulations take effect if the area fails to meet an RFP milestone or fails to attain by the applicable attainment date.6 Please see our proposed rule for more information concerning the background for this action and for a more detailed discussion of the rationale for conditional approval of the contingency measures element of the 2016 Ventura County Ozone SIP. jbell on DSKJLSW7X2PROD with RULES II. Public Comments and EPA Responses The public comment period on the proposed rule opened on December 20, 2019, the date of its publication in the Federal Register, and closed on January 21, 2020. During this period, the EPA received five anonymous comments and one comment letter submitted by Air Law for All on behalf of the Center for Biological Diversity, the Center for Environmental Health, and Citizens for Responsible Oil and Gas (collectively referred to herein as ‘‘CBD’’). In our February 27, 2020 final action on the 2016 Ventura County Ozone SIP other than the contingency measures element, we explained that the EPA was not responding to the five anonymous commenters because their comments are either not adverse or not pertinent to the proposed action. We also indicated that the comment letter from CBD relates solely to our proposed conditional approval of the contingency measures element, and that we would be addressing CBD’s comments in a separate final rule on the contingency measures element. We address CBD’s comments in the following paragraphs of this final rule. Comment #1: CBD recounts the background leading to the Bahr decision and provides a discussion of policy implications of that decision. CBD also provides its negative critique of the LEAN decision 7 and asserts that EPA must interpret the contingency measures requirement consistent with the Bahr decision on a nationwide basis and not just within the Ninth Circuit’s jurisdiction. Response #1: In our proposed rule, we explain that we have reviewed the contingency measures element of the 2016 Ventura County Ozone SIP in light of the Bahr decision. In other words, for the purposes of our review and action on the 2016 Ventura County Ozone SIP, we accept the Bahr decision as governing our review of the contingency 6 See 84 FR 70109, 70123–70125 from the proposed rule. 7 LEAN v. EPA, 382 F.3d 575 (5th Cir. 2004) (‘‘LEAN’’) (upholding contingency measures that were previously required and implemented where they were in excess of the attainment demonstration and RFP SIP). VerDate Sep<11>2014 16:57 Jun 24, 2020 Jkt 250001 measures element. The issue of extending the Bahr decision with respect to the contingency measures requirement outside of the jurisdiction of the Ninth Circuit is beyond the scope of this rulemaking. Comment #2: Because the District did not quantify the potential additional emissions reductions from any of the three prospective contingency measures, CBD asserts that the reductions must be assumed to be de minimis. Response #2: In our proposed rule, we acknowledged that the potential contingency measures that were identified by the District would not achieve one year’s worth of RFP, given the types of measures under consideration and the magnitude of emissions reductions constituting one year’s worth of RFP in this nonattainment area. We disagree that it is necessary to have an estimate of the emissions reductions for purposes of proposing a conditional approval. However, in response to this comment, the District and CARB developed preliminary estimates of the reductions that would likely be achieved by the contingency measures under consideration, if triggered by a failure to achieve an RFP milestone or failure to attain the 2008 ozone NAAQS by the applicable attainment date.8 In developing the preliminary estimates, the District narrowed the list of prospective contingency measures to a single one, i.e., amendments to Rule 74.2 (‘‘Architectural Coatings’’).9 We have reviewed the preliminary estimates for the amendments to Rule 74.2, and find that they are based on reasonable assumptions and factors. Based on the preliminary estimates, emissions reductions from amendments to Rule 74.2 would likely be in the range of 0.02 to 0.06 tons per day (tpd) of volatile organic compounds (VOC), which amount to approximately 2 to 5 percent of one year’s worth of RFP.10 As we anticipated in our proposed rule, the reductions would not amount to one year’s worth of RFP. CBD asserts that, if the EPA or the District develop preliminary emissions estimates for the prospective contingency measures, then the EPA must necessarily re-propose action on the contingency measures element. We disagree and find that the development of the estimates and presentation herein 8 See email dated February 26, 2020 and attachment from Sylvia Vanderspek, CARB, to Ali Ghasemi, VCAPCD, et al. 9 See email dated May 8, 2020, from Ali Ghasemi, VCAPCD, to Anita Lee, EPA Region IX. 10 As noted in the proposed rule at 70125, one year’s worth of RFP is 1.1 tpd of VOC or 0.8 tpd of NOX. PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 38083 is a logical outgrowth of the proposed rule and CBD’s comments. The quantification of emissions reductions does not affect our rationale for our proposed conditional approval of the contingency measures element because we assumed that the reductions, whatever they would ultimately be, would not be equivalent to one year’s worth of RFP. Comment #3: CBD asserts that consideration of surplus emissions reductions from already-implemented measures in evaluating the adequacy of contingency measures is functionally no different than simply approving the already-implemented measures as contingency measures, which is inconsistent with the Bahr decision. CBD also asserts that the EPA’s approach in this action would allow states to meet the contingency measures requirement through submittal of token de minimis contingency measures so long as already-implemented measures provide for surplus emissions reductions equivalent to one year’s worth of RFP. CBD views the EPA’s consideration of surplus reductions from already-implemented measures as relying on a factor Congress has not intended the Agency to consider in evaluating the adequacy of contingency measures under CAA section 172(c)(9). Response #3: First, the EPA does not interpret CAA section 172(c)(9) or 182(c)(9) as allowing states to meet the requirements through submittal merely of token or de minimis contingency measures. States must include contingency measures in nonattainment plans that will be triggered in the event of a failure to meet RFP or failure to attain. However, the number of such contingency measures, or the amount of emissions reductions that such measures need to achieve, may vary. As explained in the proposal, the EPA considers it appropriate to take into account the full facts and circumstances at issue in a given nonattainment area when evaluating the adequacy of contingency measures, and this may include approving contingency measures that achieve less than the one year’s worth of RFP in that area. The EPA emphasizes that it does not interpret the CAA to require states to adopt only token or de minimis contingency measures; it interprets the CAA to require contingency measures appropriate for the area. Second, we disagree that, if the EPA takes into account the total facts and circumstances in a given nonattainment area when assessing the adequacy of contingency measures, and in particular the amount of emissions reductions that such measures will achieve, that this E:\FR\FM\25JNR1.SGM 25JNR1 jbell on DSKJLSW7X2PROD with RULES 38084 Federal Register / Vol. 85, No. 123 / Thursday, June 25, 2020 / Rules and Regulations contradicts Congressional intent. The specific explicit factors Congress intended the Agency to use in evaluating contingency measures are set forth in CAA sections 172(c)(9) and 182(c)(9) and include specificity (‘‘implementation of specific measures’’), timing (‘‘measures to be undertaken’’ and ‘‘to take effect’’), triggers (if the area fails to attain the NAAQS by the applicable [NAAQS] or if the area fails to meet any applicable milestone), federal enforceability (‘‘included in the [SIP]’’), and readiness (measures must be designed to take effect without further action by the state or the EPA). We will review the contingency measure that is the subject of the conditional approval with those factors in mind when we receive the submittal of the revised District rule as a SIP revision from CARB. Neither CAA section 172(c)(9) nor 182(c)(9) contain language implying that the factors discussed above are the only factors for the Agency to consider. Neither section specifies the magnitude of emissions reductions that contingency measures must achieve as an explicit factor for the EPA to consider, although consideration of the magnitude is appropriate in determining whether the contingency measure or measures submitted by the state meet the requirements of CAA sections 172(c)(9) and 182(c)(9). Consideration of the magnitude of emissions reductions is appropriate because contingency measures serve a remedial function where an area fails to achieve an RFP milestone or fails to attain the NAAQS by the applicable attainment date, and RFP and attainment are achieved through emissions reductions.11 Just as the CAA does not include the magnitude of emissions reductions as a specific explicit consideration, the CAA also does not prescribe how the EPA is to evaluate that question. As such, the EPA is not relying on a factor that Congress did not intend the EPA to consider when the Agency considers the emissions reductions from alreadyimplemented measures that are surplus to those needed for RFP or attainment within a given nonattainment area when evaluating whether the state’s contingency measure submittal meets CAA sections 172(c)(9) and 182(c)(9). Comment #4: CBD asserts that contingency measures should at a minimum equal one year’s worth of RFP and asserts that CAA section 182(g) provides statutory support for the interpretation that contingency 11 See, e.g., CAA sections 107(d)(3)(E)(iii), 171(1), 182(c)(1). VerDate Sep<11>2014 16:57 Jun 24, 2020 Jkt 250001 measures should provide for one year’s worth of RFP. Response #4: Neither the CAA nor the EPA’s implementing regulations for the ozone NAAQS establish a specific amount of emissions reductions that implementation of contingency measures must achieve. However, consistent with our long-standing guidance, we agree that contingency measures should generally provide for emissions reductions approximately equivalent to one year’s worth of progress, which, for Serious ozone nonattainment areas such as Ventura County, amounts to reductions of 3 percent of the RFP baseline emissions inventory for the nonattainment area. CBD finds statutory support in CAA section 182(g) for the EPA’s recommendation that contingency measures should generally provide for one year’s worth of progress. We do not disagree that our recommendation concerning emissions reductions from contingency measures comports generally with the statutory scheme for attainment planning. However, like sections 172(c)(9) and 182(c)(9), section 182(g) does not explicitly identify the magnitude of reductions that contingency measures must achieve nor does not it address how to evaluate the reductions from contingency measures in light of the facts and circumstances of a given nonattainment area. In making the recommendation that contingency measures typically achieve one year’s worth of RFP, the EPA has considered the overarching purpose of such measures in the context of attainment planning. The purpose of emissions reductions from implementation of contingency measures is to ensure that, in the event of a failure to meet an RFP milestone or a failure to attain the NAAQS by the applicable attainment date, the state will continue to make progress toward attainment though additional emissions reductions at a rate similar to that specified under the RFP requirements. The intent is that the state will achieve the emissions reductions from the contingency measures while conducting additional control measure development and implementation as necessary to correct the RFP shortfall or as part of a new attainment demonstration plan.12 The facts and circumstances of a given nonattainment area may justify larger or smaller amounts of emissions reductions for contingency measure purposes. In reviewing a SIP revision for compliance with CAA sections 172(c)(9) and 182(c)(9), the EPA evaluates 12 57 PO 00000 FR 13498, at 13512 (April 16, 1992). Frm 00054 Fmt 4700 Sfmt 4700 whether the contingency measure or measures would provide emissions reductions that, when considered with surplus emissions reductions from other measures, ensure sufficient continued progress in the event of a failure to achieve an RFP milestone or to attain the ozone NAAQS by the applicable attainment date. We continue to evaluate the sufficiency of continued progress that will result from contingency measures in light of our guidance, but in appropriate circumstances do not believe that the contingency measures themselves must provide for one year’s worth of RFP. Such appropriate circumstances include situations in which sufficient progress would be maintained by the contingency measures and surplus emissions reductions from other sources while the state proceeds to develop and implement additional control measures as necessary to correct the RFP shortfall or as part of a new attainment demonstration plan. In other words, if there are additional emissions reductions projected to occur after the RFP milestone years or the attainment year that a state has not relied upon for purposes of RFP or attainment or to meet other nonattainment plan requirements, and that result from measures the state has not adopted as contingency measures, then those reductions may support EPA approval of contingency measures identified by the state even if the contingency measures would result in less than one year’s worth of RFP in appropriate circumstances. As to whether the contingency measure, once adopted, would provide for sufficient continued progress in the event of a failure to achieve an RFP milestone or a failure to attain the NAAQS, we reviewed the documentation provided in the 2018 SIP Update of ‘‘surplus’’ reductions, as clarified by CARB in August 2019 from CARB’s already-adopted mobile source control program in the two RFP milestone years and in the year following the attainment year. For the Ventura County nonattainment area, CARB’s estimates of ‘‘surplus’’ reductions in the RFP milestone years (5.1 tpd of oxides of nitrogen (NOX) in 2020 and 7.1 tpd of NOX in 2017) are 6 to 9 times greater than one year’s worth of progress (0.8 tpd of NOX).13 13 Based on the emissions estimates and projections shown in table 4 of the proposed rule. More specifically, the estimate of the RFP milestone surplus as ranging from 5.1 tpd to 7.1 tpd of NOX is based on the surplus in terms of percentages (range of 19.6% (in 2000) to 27.4% (in 2017)) times the 2011 baseline NOX emissions level of 26.0 tpd. The proposed rule cited a range of 6.5 tpd to 7.1 E:\FR\FM\25JNR1.SGM 25JNR1 Federal Register / Vol. 85, No. 123 / Thursday, June 25, 2020 / Rules and Regulations With respect to the year after the attainment year, CARB estimates that NOX emissions in Ventura County will be approximately 0.9 tpd lower in 2021 than in the 2020 attainment year due to mobile source controls and vehicle turnover, and thus continued emissions reductions are assured in the year after the attainment year even before accounting for the emissions reductions from the to-be-adopted local contingency measure.14 As such, we conclude that the to-be-adopted District contingency measure need not in itself achieve one year’s worth of RFP. In conclusion, we anticipate that the emissions reductions from the contingency measure ultimately adopted by the District will be sufficient, although we expect that it will achieve less than 1.1 tpd of VOC or 0.8 tpd of NOX reductions (i.e., one year’s worth of RFP), because other surplus emission reductions measures (not relied upon directly to meet the statutory contingency measure requirement or any other nonattainment plan requirement including RFP or attainment) will ensure sufficient continued progress in the event of a failure to achieve an RFP milestone or a failure to attain the NAAQS by the applicable attainment date. Therefore, we expect the contingency measure, once adopted and submitted, to be sufficient to remedy the deficiency in the contingency measures element of the 2016 Ventura County Ozone SIP, and the commitment to submit such a contingency measure as an appropriate basis for a conditional approval. jbell on DSKJLSW7X2PROD with RULES III. Final Action For the reasons discussed above, under CAA section 110(k)(4), the EPA is taking final action to conditionally approve as a revision to the California SIP the contingency measures element of the 2016 Ventura County Ozone SIP, submitted by CARB on April 11, 2017 and December 5, 2018, as meeting the requirements of CAA sections 172(c)(9) and 182(c)(9) for RFP and attainment contingency measures.15 Our conditional approval is based on tpd for the RPF surplus, but those estimates were based on the 2018 SIP Update and not the updated RFP demonstration summarized in table 4 of the proposed rule. 14 See pages A–9 and A–10 of the 2018 SIP Update. As shown on pages A–7 and A–8 of the 2018 SIP Update, VOC emissions are also expected to decrease between 2020 and 2021 (by 0.3 tpd). 15 More specifically, we are conditionally approving chapter 7 (‘‘Contingency Measures’’) of the Final 2016 Ventura County Air Quality Management Plan, as submitted on April 11, 2017, and chapter III.C (‘‘Contingency Measures’’) of the 2018 Updates to the California State Implementation Plan, as submitted on December 5, 2018. VerDate Sep<11>2014 16:57 Jun 24, 2020 Jkt 250001 commitments by the District and CARB to supplement the contingency measures element of the 2016 Ventura County Ozone SIP through submission, as a SIP revision (within one year of the effective date of our final conditional approval action), of a revised District rule that would add new limits or other requirements if an RFP milestone is not met or if Ventura County fails to attain the 2008 ozone NAAQS by the applicable attainment date.16 IV. Statutory and Executive Order Reviews Under the Clean Air Act, 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 Clean Air Act. Accordingly, this action merely conditionally approves state plans 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); • 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); 16 Letter dated August 16, 2019, from Michael Villegas, Air Pollution Control Officer, VCAPCD, to Richard Corey, Executive Officer, CARB; letter dated August 30, 2019, from Richard W. Corey, Executive Officer, CARB, to Mike Stoker, Regional Administrator, EPA Region IX. PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 38085 • 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 Clean Air Act; 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, 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 rule does 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). 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 August 24, 2020. 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 E:\FR\FM\25JNR1.SGM 25JNR1 38086 Federal Register / Vol. 85, No. 123 / Thursday, June 25, 2020 / Rules and Regulations reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: May 27, 2020. John Busterud, Regional Administrator, Region IX. [FR Doc. 2020–11931 Filed 6–24–20; 8:45 am] BILLING CODE 6560–50–P Chapter I, title 40 of the Code of Federal Regulations is amended as follows: FEDERAL MARITIME COMMISSION 46 CFR Part 530 PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS [Docket No. 20–02] RIN 3072–AC80 1. The authority citation for part 52 continues to read as follows: ■ Service Contracts ACTION: Subpart F—California 2. Section 52.220 is amended by adding paragraphs (c)(514)(ii)(A)(6) and (c)(532)(ii)(A)(2) to read as follows: ■ Identification of plan—in part. * * * * * (c) * * * (514) * * * (ii) * * * (A) * * * (6) 2018 Updates to the California State Implementation Plan, adopted on October 25, 2018, chapter III (‘‘SIP Elements for Ventura County’’), section III.C (‘‘Contingency Measures’’); only. * * * * * (532) * * * (ii) * * * (A) * * * (2) Final 2016 Ventura County Air Quality Management Plan, adopted February 14, 2017, chapter 7 (‘‘Contingency Measures’’), only. * * * * * 3. Section 52.248 is amended by adding paragraph (j) to read as follows: ■ § 52.248 Identification of plan—conditional approval. jbell on DSKJLSW7X2PROD with RULES * * * * * (j) The EPA is conditionally approving the California State Implementation Plan (SIP) for Ventura County for the 2008 ozone NAAQS with respect to the contingency measures requirements of CAA sections 172(c)(9) and 182(c)(9). The conditional approval is based on a commitment from the Ventura County Air Pollution Control District (District) in a letter dated August 16, 2019, to adopt a specific rule revision, and a commitment from the California Air Resources Board (CARB) dated August 30, 2019, to submit the amended District rule to the EPA within 12 months of the effective date of the VerDate Sep<11>2014 16:57 Jun 24, 2020 Jkt 250001 Federal Maritime Commission. Final rule. AGENCY: Authority: 42 U.S.C. 7401 et seq. § 52.220 final conditional approval. If the District or CARB fail to meet their commitments within one year of the effective date of the final conditional approval, the conditional approval is treated as a disapproval. The Federal Maritime Commission (FMC or Commission) amends its regulations governing service contracts to eliminate the requirement that ocean carriers publish a concise statement of essential terms with each service contract. The rule will reduce regulatory burden. DATES: Effective June 25, 2020. FOR FURTHER INFORMATION CONTACT: For technical questions, contact Florence A. Carr, Director, Bureau of Trade Analysis, Federal Maritime Commission, 800 North Capitol Street NW, Washington, DC 20573–0001. Phone: (202) 523–5796. Email: TradeAnalysis@fmc.gov. For legal questions, contact William Shakely, Acting General Counsel, Federal Maritime Commission, 800 North Capitol Street NW, Washington, DC 20573–0001. Phone: (202) 523–5740. Email: GeneralCounsel@fmc.gov. SUPPLEMENTARY INFORMATION: SUMMARY: I. Introduction This rulemaking was initiated pursuant to the Commission’s December 20, 2019 Order in FMC Docket No. P3– 18, which granted in part and denied in part, a petition by the World Shipping Council (WSC) for regulatory relief. Pet’n of the World Shipping Council for an Exemption from Certain Provisions of the Shipping Act of 1984, as amended, and for a Rulemaking Proceeding, Pet. No. P3–18, 1 F.M.C.2d 504 (FMC Dec. 20, 2019). Specifically, the Commission granted WSC’s request for an exemption from the requirement in 46 U.S.C. 40502(d) that carriers publish a concise Statement of Essential Terms (ETs) with each service contract, determining that an exemption from section 40502(d) would not result in a substantial reduction in competition or PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 be detrimental to commerce, and further determined to initiate a rulemaking to implement the ET publication exemption. On February 14, 2020, the Commission issued a Notice of Proposed Rulemaking (NPRM) to obtain public comments regarding its proposal to implement the exemption by removing the ET publication requirements in 46 CFR part 530. 85 FR 8527 (Feb. 14, 2020). The Commission calculated that the proposed rule would reduce the regulatory burden associated with these requirements. The comment period for the NPRM expired April 14, 2020. Two comments were received, from the National Industrial Transportation League (NITL) and the World Shipping Council. II. Discussion As described in more detail below, the final rule adopts much of the proposed regulatory text without substantive change. The final rule eliminates the requirement in § 530.12 that carriers publish ETs for individual service contracts. Although the NPRM proposed replacing this requirement with a requirement that carriers publish general service contract rules and notices as a separate part of the individual carrier’s automated tariff system, the Commission has determined to make this provision optional rather than mandatory. The final rule also adopts the following regulatory changes proposed in the NPRM: (1) Changes to other sections in Part 530 to reflect the elimination of the ET publication requirements; (2) the correction of outdated references to FMC bureaus and offices in Part 530; and (3) the correction of an outdated reference to a Department of Defense Command. A. Removal of ET Publication Requirements Commenters in the subject rulemaking did not identify a use for the publication of ETs corresponding to individual service contracts, and therefore, supported their elimination. NITL strongly supports the Commission’s NPRM. Agreeing with the Commission’s assessment that ‘‘the publication of Statements of Essential Terms corresponding to individual service contracts is of questionable value,’’ NITL believes that the current ET publication requirements ‘‘impose significant regulatory costs and burdens on ocean carriers, without providing any meaningful benefits to shippers that outweigh the costs.’’ WSC supports the NPRM to the extent it would eliminate the requirement to publish service contract essential terms. E:\FR\FM\25JNR1.SGM 25JNR1

Agencies

[Federal Register Volume 85, Number 123 (Thursday, June 25, 2020)]
[Rules and Regulations]
[Pages 38081-38086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11931]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2018-0146; FRL-10009-22-Region 9]


Approval of Air Quality Implementation Plans; California; Ventura 
County; 8-Hour Ozone Nonattainment Area Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to conditionally approve portions of two state implementation 
plan (SIP) submissions from the State of California to meet Clean Air 
Act (CAA or ``the Act'') requirements for the 2008 8-hour ozone 
national ambient air quality standards (NAAQS or ``standards'') in the 
Ventura County, California (``Ventura County'') ozone nonattainment 
area. The two SIP submissions include the ``Final 2016 Ventura County 
Air Quality Management Plan,'' and the Ventura County portion of the 
``2018 Updates to

[[Page 38082]]

the California State Implementation Plan.'' In this action, the EPA 
refers to these submittals collectively as the ``2016 Ventura County 
Ozone SIP.'' The 2016 Ventura County Ozone SIP addresses the 
nonattainment area requirements for the 2008 ozone NAAQS, including the 
requirements for an emissions inventory, attainment demonstration, 
reasonable further progress, reasonably available control measures, 
contingency measures, among others; and establishes motor vehicle 
emissions budgets. In a separate final rule, the EPA took final action 
to approve the 2016 Ventura County Ozone SIP as meeting all the 
applicable ozone nonattainment area requirements except for the 
contingency measures requirement. In this action, the EPA is taking 
final action to conditionally approve the contingency measures element 
of the 2016 Ventura County Ozone SIP.

DATES: This rule will be effective on July 27, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2018-0146. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, 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: John Kelly, Air Planning Office (AIR-
2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105, (415) 
947-4151, or by email at [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Summary of the Proposed Action
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews

I. Summary of the Proposed Action

    On December 20, 2019, the EPA proposed to approve, under CAA 
section 110(k)(3), or to conditionally approve, under CAA section 
110(k)(4), all or portions of submittals from the California Air 
Resources Board (CARB) of revisions to the California SIP for the 
Ventura County ozone nonattainment area for the 2008 ozone NAAQS.\1\ 
The relevant SIP revisions include Ventura County Air Pollution Control 
District's (VCAPCD's or ``District's'') Final 2016 Ventura County Air 
Quality Management Plan (``2016 Ventura County AQMP''), and the Ventura 
County portion of CARB's 2018 Updates to the California State 
Implementation Plan (``2018 SIP Update''). Collectively, we refer to 
these revisions as the 2016 Ventura County Ozone SIP, and we refer to 
our December 20, 2019 proposed rule as the ``proposed rule.''
---------------------------------------------------------------------------

    \1\ 84 FR 70109. Ventura County lies within California's South 
Central Coast Air Basin, which includes the counties of Santa 
Barbara and San Luis Obispo in addition to Ventura County. The 
Ventura County ozone nonattainment area for the 2008 ozone NAAQS 
includes the entire county except for the Channel Islands of Anacapa 
and San Nicolas Islands. See 40 CFR 81.305.
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    Our proposed conditional approval of the contingency measures 
element of the 2016 Ventura County AQMP relied on specific commitments: 
(1) From the District to modify an existing rule or rules that would 
provide for additional emissions reductions in the event that Ventura 
County fails to meet a reasonable further progress (RFP) milestone or 
fails to attain the 2008 ozone NAAQS by the applicable attainment date, 
and (2) from CARB to submit the revised District rule(s) to the EPA as 
a SIP revision within 12 months of our final action.\2\ For more 
information on the SIP revision submittals and related commitments, 
please see our proposed rule.
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    \2\ Letter dated August 16, 2019, from Michael Villegas, Air 
Pollution Control Officer, VCAPCD, to Richard Corey, Executive 
Officer, CARB; and letter dated August 30, 2019, from Richard W. 
Corey, Executive Officer, CARB to Mike Stoker, Regional 
Administrator, Region IX.
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    In our proposed rule, we provided background information on the 
ozone standards,\3\ area designations, related SIP revision 
requirements under the CAA, and the EPA's implementing regulations for 
the 2008 ozone NAAQS, referred to as the 2008 Ozone SIP Requirements 
Rule (``2008 Ozone SRR''). To summarize, the Ventura County ozone 
nonattainment area is classified as Serious for the 2008 ozone NAAQS, 
and the 2016 Ventura County Ozone SIP was developed to address all the 
SIP requirements that apply to a Serious nonattainment area for the 
2008 ozone NAAQS other than the SIP requirements for new source review 
and reasonably available control technology previously addressed in 
separate submittals and EPA actions.
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    \3\ Ground-level ozone pollution is formed from the reaction of 
volatile organic compounds (VOC) and oxides of nitrogen 
(NOX) in the presence of sunlight. The 2008 ozone NAAQS 
is 0.075 parts per million (eight-hour average). CARB refers to 
reactive organic gases (ROG) in some of its ozone-related 
submittals. The CAA and the EPA's regulations refer to VOC, rather 
than ROG, but both terms cover essentially the same set of gases. In 
this final rule, we use the Federal term (VOC) to refer to this set 
of gases.
---------------------------------------------------------------------------

    For our proposed rule, we reviewed the various SIP elements 
contained in the 2016 Ventura County Ozone SIP, evaluated them for 
compliance with statutory and regulatory requirements, and proposed to 
conclude that they meet all applicable requirements with the exception 
of the contingency measures element. On February 27, 2020, the EPA took 
final action to approve all the elements of the 2016 Ventura County 
Ozone SIP except for the contingency measures element.\4\ In our 
February 27, 2020 final rule, we indicated that we would be taking 
final action on the contingency measures element in a separate final 
rule. This action is our final action on the contingency measures 
element.
---------------------------------------------------------------------------

    \4\ 85 FR 11814.
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    With respect to the contingency measures element of the 2016 
Ventura County Ozone SIP, in our proposed rule, we evaluated the 
element for compliance with the CAA sections 172(c)(9) and 182(c)(9). 
We explained that the key is that the statute requires that contingency 
measures provide for additional emissions reductions that are not 
relied on for RFP or attainment and that the purpose of contingency 
measures is to provide continued emissions reductions while the plan is 
being revised to meet the missed milestone or attainment date. We 
further explained that neither the CAA nor the EPA's implementing 
regulations for the 2008 Ozone NAAQS require that contingency measures 
achieve a specific amount of emissions reductions, but that the EPA 
will evaluate that on a case-by-case basis depending on the facts and 
circumstances.
    In our proposed rule, in light of the Bahr decision,\5\ we 
determined that the contingency measures element of the 2016 Ventura 
County Ozone SIP could not be fully approved without supplementation by 
the District and CARB. However, we also determined that the element 
could be conditionally approved as meeting the requirements of CAA 
sections 172(c)(9) and 182(c)(9) for the 2008 ozone NAAQS, based upon 
commitments from the District and CARB to adopt and submit a revised 
rule or rules with provisions designed to

[[Page 38083]]

take effect if the area fails to meet an RFP milestone or fails to 
attain by the applicable attainment date.\6\
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    \5\ Bahr v. EPA, 836 F.3d 1218 (9th Cir. 2016) (``Bahr'') 
(rejecting early-implementation of contingency measures and 
concluding that a contingency measure under CAA section 172(c)(9) 
must take effect at the time the area fails to make RFP or attain by 
the applicable attainment date, not before).
    \6\ See 84 FR 70109, 70123-70125 from the proposed rule.
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    Please see our proposed rule for more information concerning the 
background for this action and for a more detailed discussion of the 
rationale for conditional approval of the contingency measures element 
of the 2016 Ventura County Ozone SIP.

II. Public Comments and EPA Responses

    The public comment period on the proposed rule opened on December 
20, 2019, the date of its publication in the Federal Register, and 
closed on January 21, 2020. During this period, the EPA received five 
anonymous comments and one comment letter submitted by Air Law for All 
on behalf of the Center for Biological Diversity, the Center for 
Environmental Health, and Citizens for Responsible Oil and Gas 
(collectively referred to herein as ``CBD'').
    In our February 27, 2020 final action on the 2016 Ventura County 
Ozone SIP other than the contingency measures element, we explained 
that the EPA was not responding to the five anonymous commenters 
because their comments are either not adverse or not pertinent to the 
proposed action. We also indicated that the comment letter from CBD 
relates solely to our proposed conditional approval of the contingency 
measures element, and that we would be addressing CBD's comments in a 
separate final rule on the contingency measures element. We address 
CBD's comments in the following paragraphs of this final rule.
    Comment #1: CBD recounts the background leading to the Bahr 
decision and provides a discussion of policy implications of that 
decision. CBD also provides its negative critique of the LEAN decision 
\7\ and asserts that EPA must interpret the contingency measures 
requirement consistent with the Bahr decision on a nationwide basis and 
not just within the Ninth Circuit's jurisdiction.
---------------------------------------------------------------------------

    \7\ LEAN v. EPA, 382 F.3d 575 (5th Cir. 2004) (``LEAN'') 
(upholding contingency measures that were previously required and 
implemented where they were in excess of the attainment 
demonstration and RFP SIP).
---------------------------------------------------------------------------

    Response #1: In our proposed rule, we explain that we have reviewed 
the contingency measures element of the 2016 Ventura County Ozone SIP 
in light of the Bahr decision. In other words, for the purposes of our 
review and action on the 2016 Ventura County Ozone SIP, we accept the 
Bahr decision as governing our review of the contingency measures 
element. The issue of extending the Bahr decision with respect to the 
contingency measures requirement outside of the jurisdiction of the 
Ninth Circuit is beyond the scope of this rulemaking.
    Comment #2: Because the District did not quantify the potential 
additional emissions reductions from any of the three prospective 
contingency measures, CBD asserts that the reductions must be assumed 
to be de minimis.
    Response #2: In our proposed rule, we acknowledged that the 
potential contingency measures that were identified by the District 
would not achieve one year's worth of RFP, given the types of measures 
under consideration and the magnitude of emissions reductions 
constituting one year's worth of RFP in this nonattainment area. We 
disagree that it is necessary to have an estimate of the emissions 
reductions for purposes of proposing a conditional approval. However, 
in response to this comment, the District and CARB developed 
preliminary estimates of the reductions that would likely be achieved 
by the contingency measures under consideration, if triggered by a 
failure to achieve an RFP milestone or failure to attain the 2008 ozone 
NAAQS by the applicable attainment date.\8\ In developing the 
preliminary estimates, the District narrowed the list of prospective 
contingency measures to a single one, i.e., amendments to Rule 74.2 
(``Architectural Coatings'').\9\ We have reviewed the preliminary 
estimates for the amendments to Rule 74.2, and find that they are based 
on reasonable assumptions and factors. Based on the preliminary 
estimates, emissions reductions from amendments to Rule 74.2 would 
likely be in the range of 0.02 to 0.06 tons per day (tpd) of volatile 
organic compounds (VOC), which amount to approximately 2 to 5 percent 
of one year's worth of RFP.\10\ As we anticipated in our proposed rule, 
the reductions would not amount to one year's worth of RFP.
---------------------------------------------------------------------------

    \8\ See email dated February 26, 2020 and attachment from Sylvia 
Vanderspek, CARB, to Ali Ghasemi, VCAPCD, et al.
    \9\ See email dated May 8, 2020, from Ali Ghasemi, VCAPCD, to 
Anita Lee, EPA Region IX.
    \10\ As noted in the proposed rule at 70125, one year's worth of 
RFP is 1.1 tpd of VOC or 0.8 tpd of NOX.
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    CBD asserts that, if the EPA or the District develop preliminary 
emissions estimates for the prospective contingency measures, then the 
EPA must necessarily re-propose action on the contingency measures 
element. We disagree and find that the development of the estimates and 
presentation herein is a logical outgrowth of the proposed rule and 
CBD's comments. The quantification of emissions reductions does not 
affect our rationale for our proposed conditional approval of the 
contingency measures element because we assumed that the reductions, 
whatever they would ultimately be, would not be equivalent to one 
year's worth of RFP.
    Comment #3: CBD asserts that consideration of surplus emissions 
reductions from already-implemented measures in evaluating the adequacy 
of contingency measures is functionally no different than simply 
approving the already-implemented measures as contingency measures, 
which is inconsistent with the Bahr decision. CBD also asserts that the 
EPA's approach in this action would allow states to meet the 
contingency measures requirement through submittal of token de minimis 
contingency measures so long as already-implemented measures provide 
for surplus emissions reductions equivalent to one year's worth of RFP. 
CBD views the EPA's consideration of surplus reductions from already-
implemented measures as relying on a factor Congress has not intended 
the Agency to consider in evaluating the adequacy of contingency 
measures under CAA section 172(c)(9).
    Response #3: First, the EPA does not interpret CAA section 
172(c)(9) or 182(c)(9) as allowing states to meet the requirements 
through submittal merely of token or de minimis contingency measures. 
States must include contingency measures in nonattainment plans that 
will be triggered in the event of a failure to meet RFP or failure to 
attain. However, the number of such contingency measures, or the amount 
of emissions reductions that such measures need to achieve, may vary. 
As explained in the proposal, the EPA considers it appropriate to take 
into account the full facts and circumstances at issue in a given 
nonattainment area when evaluating the adequacy of contingency 
measures, and this may include approving contingency measures that 
achieve less than the one year's worth of RFP in that area. The EPA 
emphasizes that it does not interpret the CAA to require states to 
adopt only token or de minimis contingency measures; it interprets the 
CAA to require contingency measures appropriate for the area.
    Second, we disagree that, if the EPA takes into account the total 
facts and circumstances in a given nonattainment area when assessing 
the adequacy of contingency measures, and in particular the amount of 
emissions reductions that such measures will achieve, that this

[[Page 38084]]

contradicts Congressional intent. The specific explicit factors 
Congress intended the Agency to use in evaluating contingency measures 
are set forth in CAA sections 172(c)(9) and 182(c)(9) and include 
specificity (``implementation of specific measures''), timing 
(``measures to be undertaken'' and ``to take effect''), triggers (if 
the area fails to attain the NAAQS by the applicable [NAAQS] or if the 
area fails to meet any applicable milestone), federal enforceability 
(``included in the [SIP]''), and readiness (measures must be designed 
to take effect without further action by the state or the EPA). We will 
review the contingency measure that is the subject of the conditional 
approval with those factors in mind when we receive the submittal of 
the revised District rule as a SIP revision from CARB.
    Neither CAA section 172(c)(9) nor 182(c)(9) contain language 
implying that the factors discussed above are the only factors for the 
Agency to consider. Neither section specifies the magnitude of 
emissions reductions that contingency measures must achieve as an 
explicit factor for the EPA to consider, although consideration of the 
magnitude is appropriate in determining whether the contingency measure 
or measures submitted by the state meet the requirements of CAA 
sections 172(c)(9) and 182(c)(9). Consideration of the magnitude of 
emissions reductions is appropriate because contingency measures serve 
a remedial function where an area fails to achieve an RFP milestone or 
fails to attain the NAAQS by the applicable attainment date, and RFP 
and attainment are achieved through emissions reductions.\11\
---------------------------------------------------------------------------

    \11\ See, e.g., CAA sections 107(d)(3)(E)(iii), 171(1), 
182(c)(1).
---------------------------------------------------------------------------

    Just as the CAA does not include the magnitude of emissions 
reductions as a specific explicit consideration, the CAA also does not 
prescribe how the EPA is to evaluate that question. As such, the EPA is 
not relying on a factor that Congress did not intend the EPA to 
consider when the Agency considers the emissions reductions from 
already-implemented measures that are surplus to those needed for RFP 
or attainment within a given nonattainment area when evaluating whether 
the state's contingency measure submittal meets CAA sections 172(c)(9) 
and 182(c)(9).
    Comment #4: CBD asserts that contingency measures should at a 
minimum equal one year's worth of RFP and asserts that CAA section 
182(g) provides statutory support for the interpretation that 
contingency measures should provide for one year's worth of RFP.
    Response #4: Neither the CAA nor the EPA's implementing regulations 
for the ozone NAAQS establish a specific amount of emissions reductions 
that implementation of contingency measures must achieve. However, 
consistent with our long-standing guidance, we agree that contingency 
measures should generally provide for emissions reductions 
approximately equivalent to one year's worth of progress, which, for 
Serious ozone nonattainment areas such as Ventura County, amounts to 
reductions of 3 percent of the RFP baseline emissions inventory for the 
nonattainment area.
    CBD finds statutory support in CAA section 182(g) for the EPA's 
recommendation that contingency measures should generally provide for 
one year's worth of progress. We do not disagree that our 
recommendation concerning emissions reductions from contingency 
measures comports generally with the statutory scheme for attainment 
planning. However, like sections 172(c)(9) and 182(c)(9), section 
182(g) does not explicitly identify the magnitude of reductions that 
contingency measures must achieve nor does not it address how to 
evaluate the reductions from contingency measures in light of the facts 
and circumstances of a given nonattainment area.
    In making the recommendation that contingency measures typically 
achieve one year's worth of RFP, the EPA has considered the overarching 
purpose of such measures in the context of attainment planning. The 
purpose of emissions reductions from implementation of contingency 
measures is to ensure that, in the event of a failure to meet an RFP 
milestone or a failure to attain the NAAQS by the applicable attainment 
date, the state will continue to make progress toward attainment though 
additional emissions reductions at a rate similar to that specified 
under the RFP requirements. The intent is that the state will achieve 
the emissions reductions from the contingency measures while conducting 
additional control measure development and implementation as necessary 
to correct the RFP shortfall or as part of a new attainment 
demonstration plan.\12\ The facts and circumstances of a given 
nonattainment area may justify larger or smaller amounts of emissions 
reductions for contingency measure purposes.
---------------------------------------------------------------------------

    \12\ 57 FR 13498, at 13512 (April 16, 1992).
---------------------------------------------------------------------------

    In reviewing a SIP revision for compliance with CAA sections 
172(c)(9) and 182(c)(9), the EPA evaluates whether the contingency 
measure or measures would provide emissions reductions that, when 
considered with surplus emissions reductions from other measures, 
ensure sufficient continued progress in the event of a failure to 
achieve an RFP milestone or to attain the ozone NAAQS by the applicable 
attainment date. We continue to evaluate the sufficiency of continued 
progress that will result from contingency measures in light of our 
guidance, but in appropriate circumstances do not believe that the 
contingency measures themselves must provide for one year's worth of 
RFP. Such appropriate circumstances include situations in which 
sufficient progress would be maintained by the contingency measures and 
surplus emissions reductions from other sources while the state 
proceeds to develop and implement additional control measures as 
necessary to correct the RFP shortfall or as part of a new attainment 
demonstration plan. In other words, if there are additional emissions 
reductions projected to occur after the RFP milestone years or the 
attainment year that a state has not relied upon for purposes of RFP or 
attainment or to meet other nonattainment plan requirements, and that 
result from measures the state has not adopted as contingency measures, 
then those reductions may support EPA approval of contingency measures 
identified by the state even if the contingency measures would result 
in less than one year's worth of RFP in appropriate circumstances.
    As to whether the contingency measure, once adopted, would provide 
for sufficient continued progress in the event of a failure to achieve 
an RFP milestone or a failure to attain the NAAQS, we reviewed the 
documentation provided in the 2018 SIP Update of ``surplus'' 
reductions, as clarified by CARB in August 2019 from CARB's already-
adopted mobile source control program in the two RFP milestone years 
and in the year following the attainment year. For the Ventura County 
nonattainment area, CARB's estimates of ``surplus'' reductions in the 
RFP milestone years (5.1 tpd of oxides of nitrogen (NOX) in 
2020 and 7.1 tpd of NOX in 2017) are 6 to 9 times greater 
than one year's worth of progress (0.8 tpd of NOX).\13\

[[Page 38085]]

With respect to the year after the attainment year, CARB estimates that 
NOX emissions in Ventura County will be approximately 0.9 
tpd lower in 2021 than in the 2020 attainment year due to mobile source 
controls and vehicle turnover, and thus continued emissions reductions 
are assured in the year after the attainment year even before 
accounting for the emissions reductions from the to-be-adopted local 
contingency measure.\14\ As such, we conclude that the to-be-adopted 
District contingency measure need not in itself achieve one year's 
worth of RFP.
---------------------------------------------------------------------------

    \13\ Based on the emissions estimates and projections shown in 
table 4 of the proposed rule. More specifically, the estimate of the 
RFP milestone surplus as ranging from 5.1 tpd to 7.1 tpd of 
NOX is based on the surplus in terms of percentages 
(range of 19.6% (in 2000) to 27.4% (in 2017)) times the 2011 
baseline NOX emissions level of 26.0 tpd. The proposed 
rule cited a range of 6.5 tpd to 7.1 tpd for the RPF surplus, but 
those estimates were based on the 2018 SIP Update and not the 
updated RFP demonstration summarized in table 4 of the proposed 
rule.
    \14\ See pages A-9 and A-10 of the 2018 SIP Update. As shown on 
pages A-7 and A-8 of the 2018 SIP Update, VOC emissions are also 
expected to decrease between 2020 and 2021 (by 0.3 tpd).
---------------------------------------------------------------------------

    In conclusion, we anticipate that the emissions reductions from the 
contingency measure ultimately adopted by the District will be 
sufficient, although we expect that it will achieve less than 1.1 tpd 
of VOC or 0.8 tpd of NOX reductions (i.e., one year's worth 
of RFP), because other surplus emission reductions measures (not relied 
upon directly to meet the statutory contingency measure requirement or 
any other nonattainment plan requirement including RFP or attainment) 
will ensure sufficient continued progress in the event of a failure to 
achieve an RFP milestone or a failure to attain the NAAQS by the 
applicable attainment date. Therefore, we expect the contingency 
measure, once adopted and submitted, to be sufficient to remedy the 
deficiency in the contingency measures element of the 2016 Ventura 
County Ozone SIP, and the commitment to submit such a contingency 
measure as an appropriate basis for a conditional approval.

III. Final Action

    For the reasons discussed above, under CAA section 110(k)(4), the 
EPA is taking final action to conditionally approve as a revision to 
the California SIP the contingency measures element of the 2016 Ventura 
County Ozone SIP, submitted by CARB on April 11, 2017 and December 5, 
2018, as meeting the requirements of CAA sections 172(c)(9) and 
182(c)(9) for RFP and attainment contingency measures.\15\ Our 
conditional approval is based on commitments by the District and CARB 
to supplement the contingency measures element of the 2016 Ventura 
County Ozone SIP through submission, as a SIP revision (within one year 
of the effective date of our final conditional approval action), of a 
revised District rule that would add new limits or other requirements 
if an RFP milestone is not met or if Ventura County fails to attain the 
2008 ozone NAAQS by the applicable attainment date.\16\
---------------------------------------------------------------------------

    \15\ More specifically, we are conditionally approving chapter 7 
(``Contingency Measures'') of the Final 2016 Ventura County Air 
Quality Management Plan, as submitted on April 11, 2017, and chapter 
III.C (``Contingency Measures'') of the 2018 Updates to the 
California State Implementation Plan, as submitted on December 5, 
2018.
    \16\ Letter dated August 16, 2019, from Michael Villegas, Air 
Pollution Control Officer, VCAPCD, to Richard Corey, Executive 
Officer, CARB; letter dated August 30, 2019, from Richard W. Corey, 
Executive Officer, CARB, to Mike Stoker, Regional Administrator, EPA 
Region IX.
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IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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 Clean Air Act. 
Accordingly, this action merely conditionally approves state plans 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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 Clean Air Act; 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, 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 rule does 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).
    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 August 24, 2020. 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

[[Page 38086]]

reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: May 27, 2020.
John Busterud,
Regional Administrator, Region IX.

    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 paragraphs (c)(514)(ii)(A)(6) 
and (c)(532)(ii)(A)(2) to read as follows:


Sec.  52.220  Identification of plan--in part.

* * * * *
    (c) * * *
    (514) * * *
    (ii) * * *
    (A) * * *
    (6) 2018 Updates to the California State Implementation Plan, 
adopted on October 25, 2018, chapter III (``SIP Elements for Ventura 
County''), section III.C (``Contingency Measures''); only.
* * * * *
    (532) * * *
    (ii) * * *
    (A) * * *
    (2) Final 2016 Ventura County Air Quality Management Plan, adopted 
February 14, 2017, chapter 7 (``Contingency Measures''), only.
* * * * *


0
3. Section 52.248 is amended by adding paragraph (j) to read as 
follows:


Sec.  52.248  Identification of plan--conditional approval.

* * * * *
    (j) The EPA is conditionally approving the California State 
Implementation Plan (SIP) for Ventura County for the 2008 ozone NAAQS 
with respect to the contingency measures requirements of CAA sections 
172(c)(9) and 182(c)(9). The conditional approval is based on a 
commitment from the Ventura County Air Pollution Control District 
(District) in a letter dated August 16, 2019, to adopt a specific rule 
revision, and a commitment from the California Air Resources Board 
(CARB) dated August 30, 2019, to submit the amended District rule to 
the EPA within 12 months of the effective date of the final conditional 
approval. If the District or CARB fail to meet their commitments within 
one year of the effective date of the final conditional approval, the 
conditional approval is treated as a disapproval.

[FR Doc. 2020-11931 Filed 6-24-20; 8:45 am]
BILLING CODE 6560-50-P
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