Approval and Promulgation of Air Quality State Implementation Plans; California; Plumas County; Moderate Area Plan for the 2012 PM2.5, 78050-78058 [2020-26648]
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Federal Register / Vol. 85, No. 233 / Thursday, December 3, 2020 / Proposed Rules
of a publication in the Federal Register
of a notice of intent, the notice-andcomment requirements of section 553 of
the Administrative Procedure Act
(APA), 5 U.S.C. 553, do not apply to this
notice of intent. The APA expressly
differentiates between an order and a
rule, as it defines an ‘‘order’’ to mean a
‘‘final disposition, whether affirmative,
negative, injunctive, or declaratory in
form, of an agency in a matter other
than rule making.’’ 5 U.S.C. 551(6)
(emphasis added). The specific language
chosen by Congress indicates an
intention for DEA to proceed through
the issuance of an order instead of
proceeding by rulemaking. Given that
Congress specifically requires the
Administrator to follow rulemaking
procedures for other kinds of scheduling
actions, see 21 U.S.C. 811(a), it is
noteworthy that, in 21 U.S.C. 811(h)(1),
Congress authorized the issuance of
temporary scheduling actions by order
rather than by rule.
In the alternative, even assuming that
this notice of intent might be subject to
section 553 of the APA, the Acting
Administrator finds that there is good
cause to forgo the notice-and-comment
requirements of section 553, as any
further delays in the process for
issuance of temporary scheduling orders
would be impracticable and contrary to
the public interest in view of the
manifest urgency to avoid an imminent
hazard to the public safety.
Although DEA believes this notice of
intent to issue a temporary scheduling
order is not subject to the notice-andcomment requirements of section 553 of
the APA, DEA notes that in accordance
with 21 U.S.C. 811(h)(4), the Acting
Administrator took into consideration
comments submitted by the Assistant
Secretary in response to the notice that
DEA transmitted to the Assistant
Secretary pursuant to such subsection.
Further, DEA believes that this
temporary scheduling action is not a
‘‘rule’’ as defined by 5 U.S.C. 601(2),
and, accordingly, is not subject to the
requirements of the Regulatory
Flexibility Act. The requirements for the
preparation of an initial regulatory
flexibility analysis in 5 U.S.C. 603(a) are
not applicable where, as here, DEA is
not required by section 553 of the APA
or any other law to publish a general
notice of proposed rulemaking.
In accordance with the principles of
Executive Orders (E.O.) 12866, 13563,
and 13771, this notice of intent is not
a significant regulatory action. E.O.
12866 directs agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
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(including potential economic,
environmental, public health, and safety
effects; distributive impacts; and
equity). E.O. 13563 is supplemental to
and reaffirms the principles, structures,
and definitions governing regulatory
review as established in E.O. 12866.
E.O. 12866 classifies a ‘‘significant
regulatory action,’’ requiring review by
the Office of Management and Budget
(OMB), as any regulatory action that is
likely to result in a rule that may: (1)
Have an annual effect on the economy
of $100 million or more or adversely
affect in a material way the economy; a
sector of the economy; productivity;
competition; jobs; the environment;
public health or safety; or State, local,
or tribal governments or communities;
(2) create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency; (3)
materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs, or the rights and obligations
of recipients thereof; or (4) raise novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the Executive
Order. Because this is not a rulemaking
action, this is not a significant
regulatory action as defined in Section
3(f) of E.O. 12866. In addition, this
action does not meet the definition of an
E.O. 13771 regulatory action, and the
repeal and cost offset requirements of
E.O. 13771 have not been triggered.
This action will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with E.O. 13132
(Federalism), it is determined that this
action does not have sufficient
federalism implications to warrant the
preparation of a Federalism Assessment.
List of Subjects in 21 CFR Part 1308
Administrative practice and
procedure, Drug traffic control,
Reporting and recordkeeping
requirements.
For the reasons set out above, DEA
proposes to amend 21 CFR part 1308 as
follows:
PART 1308—SCHEDULES OF
CONTROLLED SUBSTANCES
1. The authority citation for part 1308
continues to read as follows:
■
Authority: 21 U.S.C. 811, 812, 871(b),
956(b), unless otherwise noted.
2. In § 1308.11, add paragraph (h)(49)
to read as follows:
■
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§ 1308.11
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Schedule I
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(h) * * *
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(49) 1-(1-(1-(4-bromophenyl)
ethyl)piperidin-4-yl)-1,3-dihydro2H-benzo[d]imidazol-2-one, its
isomers, esters, ethers, salts and
salts of isomers, esters and ethers
(Other names: brorphine; 1-[1-[1(4-bromophenyl)ethyl]-4piperidinyl]-1,3-dihydro-2Hbenzimidazol-2-one) ....................
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9098
*
Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020–26301 Filed 12–2–20; 8:45 am]
BILLING CODE 4410–09–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2020–0534; FRL–10016–
98–Region 9]
Approval and Promulgation of Air
Quality State Implementation Plans;
California; Plumas County; Moderate
Area Plan for the 2012 PM2.5 NAAQS
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
through parallel processing a state
implementation plan (SIP) revision
submitted by the State of California to
address Clean Air Act (CAA or ‘‘Act’’)
requirements for the 2012 annual fine
particulate matter (PM2.5) national
ambient air quality standard (NAAQS or
‘‘standard’’) in the Plumas County
Moderate PM2.5 nonattainment area
(‘‘Portola nonattainment area’’). The
submitted SIP revision is the State’s
‘‘Proposed Portola PM2.5 Plan
Contingency Measure SIP Submittal’’
(‘‘Proposed PM2.5 Plan Revision’’),
which includes a revised City of Portola
ordinance regulating PM2.5 emission
sources and the State’s demonstration
that this submission meets the Moderate
area contingency measure requirement
for the 2012 annual PM2.5 NAAQS in the
Portola nonattainment area. The EPA is
also proposing to approve the
contingency measure element of the
Moderate area attainment plan for the
Portola nonattainment area, as revised
and supplemented by the Proposed
PM2.5 Plan Revision. Because the EPA is
proceeding by parallel processing, the
agency is proposing, in the alternative,
to disapprove the contingency measure
element of the Moderate area attainment
SUMMARY:
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plan if the State does not submit the
final, adopted PM2.5 Plan Revision in
substantially the same form before we
take final action.
I. Background
Any comments on this proposal
must be received by January 4, 2021.
DATES:
Submit your comments,
identified by Docket ID No. EPA–R09–
OAR–2020–0534 at https://
www.regulations.gov, or via email to
Ungvarsky.john@epa.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. For either manner of
submission, the EPA may publish any
comment received to its public docket.
Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (e.g., audio or video) must
be accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section
for additional availability information. If
you need assistance in a language other
than English or if you are a person with
disabilities who needs a reasonable
accommodation at no cost to you, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
ADDRESSES:
John
Ungvarsky, Air Planning Office (AIR–2),
EPA Region IX, 75 Hawthorne Street,
San Francisco, CA 94105, (415) 972–
3963 or ungvarsky.john@epa.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us,’’
or ‘‘our’’ refer to the EPA.
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Table of Contents
I. Background
II. Summary of the Proposed PM2.5 Plan
Revision
III. Clean Air Act Requirements for PM2.5
Contingency Measures and Other Control
Measures
IV. Completeness Review of the Proposed
PM2.5 Plan Revision
V. Review of the Proposed PM2.5 Plan
Revision
VI. Proposed Actions and Request for Public
Comment
VII. Incorporation by Reference
VIII. Statutory and Executive Order Reviews
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On January 15, 2013, the EPA
strengthened the primary annual
NAAQS for particulate matter with a
diameter of 2.5 microns or less by
lowering the level from 15.0 micrograms
per cubic meter (mg/m3) to 12.0 mg/m3
(‘‘2012 PM2.5 NAAQS’’).1 The EPA
established this standard after
considering substantial evidence from
numerous health studies demonstrating
that serious health effects are associated
with exposures to PM2.5 concentrations
above these levels.
Epidemiological studies have shown
statistically significant correlations
between elevated PM2.5 levels and
premature mortality. Other important
health effects associated with PM2.5
exposure include aggravation of
respiratory and cardiovascular disease
(as indicated by increased hospital
admissions, emergency room visits,
absences from school or work, and
restricted activity days), changes in lung
function, and increased respiratory
symptoms. Individuals particularly
sensitive to PM2.5 exposure include
older adults, people with heart and lung
disease, and children.2 PM2.5 can be
emitted directly into the atmosphere as
a solid or liquid particle (‘‘primary
PM2.5’’ or ‘‘direct PM2.5’’) or can be
formed in the atmosphere (‘‘secondary
PM2.5’’) as a result of various chemical
reactions among precursor pollutants
such as nitrogen oxides, sulfur oxides,
volatile organic compounds, and
ammonia.3
Following promulgation of a new or
revised NAAQS, the EPA is required by
CAA section 107(d) to designate areas
throughout the nation as attaining or not
attaining the NAAQS. The EPA
designated and classified the Portola
nonattainment area as ‘‘Moderate’’
nonattainment for the 2012 annual
PM2.5 standards based on ambient
monitoring data that showed the area
was above 12.0 mg/m3 for the 2011–2013
monitoring period.4 For the 2011–2013
period, the annual PM2.5 design value
for the Portola area was 12.8 mg/m3
based on monitored readings at the 161
Nevada Street and 420 Gulling Street
monitors.5
1 78 FR 3086 and 40 CFR 50.18. Unless otherwise
noted, all references to the PM2.5 NAAQS in this
document are to the 2012 annual NAAQS of 12.0
mg/m3 codified at 40 CFR 50.18.
2 Id.
3 EPA, Air Quality Criteria for Particulate Matter,
No. EPA/600/P–99/002aF and EPA/600/P–99/
002bF, October 2004.
4 80 FR 2206 (January 15, 2015).
5 From 2000 through early 2013, the Portola PM
2.5
monitoring site was located at 161 Nevada Street.
In 2013, the site was relocated to 420 Gulling Street.
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78051
The Portola PM2.5 nonattainment area
includes the City of Portola (‘‘Portola’’),
which has a population of
approximately 2,100 and is located at an
elevation of 4,890 feet in an
intermountain basin isolated by rugged
mountains. For a precise description of
the geographic boundaries of the Portola
PM2.5 nonattainment area, see 40 CFR
81.305.
Portola averages 20 inches of
precipitation annually. From October
through March the Portola
nonattainment area has very cold
temperatures with an average daily low
temperature of approximately 22
degrees Fahrenheit. The combination of
mountainous terrain, cold temperatures,
and elevation can cause atmospheric
inversions and impair PM2.5 dispersion,
especially during the winter.
The local air district with primary
responsibility for developing a plan to
attain the 2012 annual PM2.5 NAAQS in
this area is the Northern Sierra Air
Quality Management District (NSAQMD
or ‘‘District’’). The District worked
cooperatively with the California Air
Resources Board (CARB) in preparing
the Proposed PM2.5 Plan Revision.
Under state law, authority for regulating
sources under state jurisdiction in the
Portola nonattainment area is split
between the District, which has
responsibility for regulating stationary
and most area sources, and CARB,
which has responsibility for regulating
most mobile sources.
On February 28, 2017, California
submitted the ‘‘Portola Fine Particulate
Matter (PM2.5) Attainment Plan’’
(‘‘Portola PM2.5 Plan’’ or ‘‘Plan’’) to
address the CAA’s Moderate area
requirements for the 2012 annual PM2.5
NAAQS in the Portola nonattainment
area. On March 25, 2019, the EPA
approved all of the Portola PM2.5 Plan,
except for the contingency measure
element.6 The components of the
Portola PM2.5 Plan that the EPA
approved include the modeled
demonstration that the area will attain
the 2012 annual PM2.5 NAAQS by the
applicable attainment date, which is
December 31, 2021; the State and
District control strategy for attaining the
NAAQS by this date, including all
reasonably available control measures
and control technologies (RACM/RACT)
and additional reasonable measures
necessary for expeditious attainment;
the reasonable further progress (RFP)
demonstration and related quantitative
milestones for the October 15, 2019 and
October 15, 2022 quantitative milestone
dates applicable to the area; and the
6 84
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motor vehicle emissions budgets for
2019 and 2021.7
As part of the attainment control
strategy, the Portola PM2.5 Plan relies on
‘‘Ordinance No. 344: An Ordinance of
the City of Portola, County of Plumas
Amending Chapter 15.10 of the City of
Portola Municipal Code Providing for
Regulation of Wood Stoves and
Fireplaces’’ (‘‘City Ordinance No. 344’’)
to achieve direct PM2.5 emission
reductions necessary for attainment by
the December 31, 2021 attainment date.
The EPA approved City Ordinance No.
344 into the SIP on March 5, 2018.8 The
attainment control strategy in the
Portola PM2.5 Plan also relies on an
enforceable State commitment to
implement an incentive grant program
called the ‘‘Greater Portola Woodstove
Change-out Program 2016’’ (‘‘Wood
Stove Program’’) during the 2016 to
2021 period to fund the replacement of
uncertified wood stoves with newer,
EPA-certified devices and to educate
residents on proper ways to store and
burn wood. The EPA approved the
Wood Stove Program into the SIP on
April 2, 2018.9
City Ordinance No. 344 and the
District’s Wood Stove Program
collectively establish most of the
recommended program elements
outlined in the EPA’s guidance
document entitled ‘‘Strategies for
Reducing Residential Wood Smoke,’’ 10
including a wood burning curtailment
program in section 15.10.060 of City
Ordinance No. 344 (Mandatory
Curtailment of Wood Burning Heaters,
Wood Burning Fireplaces, Wood-Fired
Fire Pits and Wood-Fired Cookstoves
During Stagnant Conditions).11 The
Portola PM2.5 Plan relies primarily on
the Wood Stove Program to achieve the
PM2.5 emission reductions necessary for
the Portola nonattainment area to attain
the 2012 annual PM2.5 NAAQS by
December 31, 2021.12
The Portola PM2.5 Plan also contains
a contingency measure element in
section VI.B that identifies the woodburning curtailment provision in section
15.10.060 of City Ordinance No. 344
and a District policy designed to
7 Id.
8 83
FR 9213.
FR 13871.
10 EPA, ‘‘Strategies for Reducing Residential
Wood Smoke,’’ Publication No. EPA–456/B–13–
001, revised March 2013.
11 83 FR 64774, 64782 (December 18, 2018)
(proposed action on Portola PM2.5 Plan) and EPA,
Region IX, ‘‘Technical Support Document for the
EPA’s Rulemaking for the California State
Implementation Plan, Northern Sierra Air Quality
Management District, City of Portola Ordinance
344, Wood Stove and Fireplace Ordinance,’’ July
2017 (‘‘Ordinance 344 TSD’’), 6.
12 83 FR 64774, 64788 (December 18, 2018).
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incentivize certain types of wood stove
change-outs as contingency measures
for the 2012 annual PM2.5 NAAQS.13
The EPA did not act on this element of
the Portola PM2.5 Plan as part of its
March 25, 2019 final action.14
On May 22, 2019, the Center for
Biological Diversity filed a complaint in
the United States District Court for the
Northern District of California alleging
that the EPA had, among other things,
failed to take final action either
approving or disapproving the
contingency measure element of the
Portola PM2.5 Plan. On February 19,
2020, the court issued an order
directing, inter alia, that the EPA ‘‘sign
a notice of final rulemaking to approve,
disapprove, conditionally approve, or
approve in part and conditionally
approve or disapprove in part’’ the
contingency measure element of the
Portola PM2.5 Plan, under CAA sections
110(k)(2)-(4), no later than March 1,
2021.15
II. Summary of the Proposed PM2.5 Plan
Revision
On September 9, 2020, the City of
Portola adopted ‘‘Ordinance No. 359,
An Ordinance of the City of Portola,
County of Plumas Amending Chapter
15.10 of the City of Portola Municipal
Code Providing for Regulation of Wood
Stoves and Fireplaces and the
Prohibition of the Open Burning of Yard
Waste’’ (‘‘City Ordinance No. 359’’). City
Ordinance No. 359 amends City
Ordinance No. 344, as codified in
Chapter 15.10 of the Portola Municipal
Code.16
Specifically, section 15.10.070
(Curtailment Levels and Period) of City
Ordinance No. 359 contains a
contingency measure that revises and
supplements the contingency measure
element of the Portola PM2.5 Plan. City
Ordinance No. 359 also contains new
provisions that ban all open burning of
yard waste and debris within the City of
Portola, with limited exceptions, and
renumbers several sections of the prior
version of this ordinance (City
Ordinance No. 354) without change.17
The additional open burning provisions
in City Ordinance No. 359 are not part
of the contingency measure element of
the Plan. CARB has requested that the
EPA entirely replace City Ordinance No.
13 Portola PM
2.5 Plan, 72–74 (section VI.B,
‘‘Contingency Measure’’).
14 84 FR 11208.
15 Center for Biological Diversity, et al. v. Andrew
Wheeler, Case No. 3:19-cv-02782–EMC, Order (N.D.
Cal., February 19, 2020).
16 NSAQMD, Resolution 2020–09 (October 26,
2020).
17 City of Portola, Ordinance No. 359, adopted
September 9, 2020.
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344 in the SIP with City Ordinance No.
359.18
On October 26, 2020, the District
Governing Board adopted City
Ordinance No. 359 and, through
Resolution 2020–09, instructed the
District to submit City Ordinance No.
359 to CARB for inclusion in the SIP.19
On October 28, 2020, CARB submitted
City Ordinance No. 359, together with a
document entitled ‘‘Proposed Portola
PM2.5 Plan Contingency Measure SIP
Submittal,’’ October 16, 2020 (hereafter
‘‘CARB Staff Report’’), to the EPA with
a request for approval into the SIP
through the EPA’s parallel processing
procedures in 40 CFR part 51, appendix
V, section 2.3.20 We refer to City
Ordinance No. 359 and the CARB Staff
Report together as the ‘‘Proposed PM2.5
Plan Revision.’’ CARB has scheduled
the Proposed PM2.5 Plan Revision for a
hearing before the CARB Governing
Board on November 19, 2020, and if it
is then adopted, CARB will submit the
final PM2.5 Plan Revision to the EPA for
approval into the California SIP.21
III. Clean Air Act Requirements for
PM2.5 Contingency Measures and Other
Control Measures
A. Requirements for Contingency
Measures
Under CAA section 172(c)(9) and the
EPA’s implementing regulations for the
PM2.5 NAAQS (‘‘PM2.5 SIP Requirements
Rule’’),22 each SIP submission for a
nonattainment area must include
contingency measures to be
implemented if the area fails to meet
requirements concerning RFP, fails to
meet requirements concerning
quantitative milestones, or fails to attain
the NAAQS by the applicable
attainment date. Contingency measures
must be fully adopted rules or control
measures that are ready to be
implemented quickly upon being
triggered and that take effect without
significant further action by the State or
the EPA.23 The purpose of the
contingency measures is to continue
progress in reducing emissions while a
18 NSAQMD, Resolution 2020–09 (October 26,
2020).
19 Id. Resolution 2020–09 instructs the District to
exclude paragraph 15.10.060(B) (concerning
penalties), section 15.10.100 (Violations), and
section 15.10.110 (Continuing violations—each day
being a separate violation) from the SIP submission.
20 Letter dated October 28, 2020, from Richard
Corey, Executive Officer, CARB, to John Busterud,
Regional Administrator, EPA Region IX, with
enclosures. Although both the City and the District
have adopted City Ordinance No. 359, CARB has
not yet adopted it.
21 Id.
22 81 FR 58010 (August 24, 2016), codified at 40
CFR part 51, subpart Z.
23 81 FR 58010, 58066 and Addendum, 42015.
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state revises its SIP to meet a missed
RFP requirement, to meet a missed
quantitative milestone requirement, or
to correct ongoing nonattainment.
Under the PM2.5 SIP Requirements
Rule, contingency measures must be
implemented following a determination
by the EPA that the state has failed: (1)
To meet any RFP requirement in the
approved SIP; (2) to meet any
quantitative milestone in the approved
SIP; (3) to submit a required quantitative
milestone report; or (4) to attain the
applicable PM2.5 NAAQS by the
applicable attainment date.24 The
contingency measures adopted as part of
a PM2.5 attainment plan must consist of
control measures for the area that are
not otherwise required to meet other
nonattainment plan requirements (e.g.,
to meet RACM/RACT requirements) and
must specify the timeframe within
which their requirements become
effective following any of the EPA
determinations specified in 40 CFR
51.1014(a).
Neither the CAA nor the EPA’s
implementing regulations establish a
specific level of emission reductions
that implementation of contingency
measures must achieve, but EPA
guidance recommends that contingency
measures should provide for emission
reductions equivalent to approximately
one year of reductions needed for RFP,
calculated as the overall level of
reductions needed to demonstrate
attainment divided by the number of
years from the base year to the
attainment year. In general, we expect
all actions needed to effect full
implementation of the contingency
measures to occur within 60 days after
the EPA notifies the state of a failure to
attain or to meet an RFP or quantitative
milestone requirement.25
It has been the EPA’s longstanding
interpretation of section 172(c)(9) that
states may rely on existing Federal
measures (e.g., Federal mobile source
measures based on the incremental
turnover of the motor vehicle fleet each
year) and state or local SIP measures
already scheduled for implementation
that provide emissions reductions in
excess of those needed to meet any
other nonattainment plan requirements,
such as RACM/RACT, RFP, or
expeditious attainment requirements. In
Bahr v. EPA (‘‘Bahr’’), however, the
Ninth Circuit Court of Appeals rejected
the EPA’s interpretation of CAA section
172(c)(9) as allowing for approval of
already implemented control measures
24 40
CFR 51.1014(a).
FR 58010, 58066. See also General
Preamble, 13512, 13543–13544, and Addendum,
42014–42015.
25 81
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as contingency measures.26 The Ninth
Circuit concluded that contingency
measures must be measures that would
take effect at the time the area fails to
make RFP or to attain by the applicable
attainment date, not before.27 Thus,
within the geographic jurisdiction of the
Ninth Circuit, states cannot rely on
already implemented measures to
comply with the contingency measure
requirement under CAA section
172(c)(9).
To comply with section 172(c)(9), as
interpreted in the Bahr decision, a state
must develop, adopt, and submit
contingency measures to be triggered
upon a failure to meet an RFP
milestone, failure to meet requirements
concerning quantitative milestones, or
failure to attain the NAAQS by the
applicable attainment date regardless of
the extent to which alreadyimplemented measures would achieve
surplus emission reductions beyond
those necessary to meet RFP or
quantitative milestone requirements and
beyond those projected to achieve
attainment of the NAAQS.
B. General Requirements for SIP Control
Measures
SIP control measures and revisions
thereto must be enforceable,28 must not
interfere with applicable requirements
concerning attainment and RFP or other
CAA requirements,29 and must not
modify certain SIP control requirements
in nonattainment areas without
ensuring equivalent or greater emissions
reductions.30 Generally, in PM2.5
nonattainment areas classified as
Moderate, SIP control measures must
also implement RACM, including
RACT, and additional reasonable
measures.31
IV. Completeness Review of the
Proposed PM2.5 Plan Revision
On October 28, 2020, CARB submitted
the Proposed PM2.5 Plan Revision with
a request that the EPA approve the
submission into the SIP through the
parallel processing procedures in 40
CFR part 51, appendix V, section 2.3.
Parallel processing refers to a process
that utilizes concurrent state and
Federal proposed rulemaking actions.
Generally, the state submits a copy of
the proposed regulation or other
revisions to the EPA before conducting
its public hearing and completing its
26 Bahr v. EPA, 836 F.3d 1218, 1235–1237 (9th
Cir. 2016).
27 Id.
28 CAA section 110(a)(2)(A).
29 CAA section 110(l).
30 CAA section 193.
31 CAA sections 172(c)(1) and 189(a)(1)(C) and 40
CFR 51.1009.
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public comment process under state
law. The EPA reviews this proposed
state action and prepares a notice of
proposed rulemaking under Federal
law. In some cases, the EPA publishes
its notice of proposed rulemaking in the
Federal Register during the same time
frame that the state is holding its own
public hearing and public comment
process. The state and the EPA then
provide for concurrent public comment
periods on both the state action and
Federal action on the initial SIP
submission from the state. If, after
completing its public comment process
and after the EPA’s public comment
process has run, the state materially
changes its final SIP submission to the
EPA from the initial proposed
submission, the EPA evaluates those
changes and decides whether to publish
another notice of proposed rulemaking
in light of those changes or to proceed
to taking final action on its proposed
action and describe the state’s changes
in its final rulemaking action. Any final
rulemaking action by the EPA will occur
only after the state formally adopts and
submits its final submission to the EPA.
Section 110(k)(1)(B) of the CAA
requires the EPA to determine whether
a SIP submission is complete within 60
days of receipt. This section also
provides that if the EPA has not
affirmatively determined a SIP
submission to be complete or
incomplete, it will become complete by
operation of law six months after the
date of submission. The EPA’s SIP
completeness criteria are found in 40
CFR part 51, appendix V. The EPA has
reviewed the Proposed PM2.5 Plan
Revision and finds that it fulfills the
completeness criteria of appendix V,
with the exception of the requirements
of paragraphs 2.1(e)–2.1(h), which do
not apply to plans submitted for parallel
processing.
CAA sections 110(a)(1) and (2) and
110(l) require each state to provide
reasonable public notice and
opportunity for public hearing prior to
the adoption and submission of a SIP
submission to the EPA. To meet this
requirement, a state’s SIP submission
must include evidence that the state
provided adequate public notice and an
opportunity for a public hearing,
consistent with the EPA’s implementing
regulations in 40 CFR 51.102. However,
because the Proposed PM2.5 Plan
Revision was submitted for parallel
processing, it is exempt from this
requirement at the time of initial
submission to the EPA, pursuant to 40
CFR part 51, appendix V, section 2.3.1.
CARB and the District are required to
meet these procedural criteria during
the parallel processing period, and prior
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to adopting and submitting the final SIP
submission to the EPA. The EPA will
determine whether the final submission
meets these requirements at the time of
any final action on the PM2.5 Plan
Revision.
V. Review of the Proposed PM2.5 Plan
Revision
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A. Revised Contingency Measure
Element of Portola PM2.5 Plan
The contingency measure element in
section VI.B of the Portola PM2.5 Plan,
as submitted February 28, 2017,
discusses two potential contingency
measures for the 2012 PM2.5 NAAQS: (1)
The mandatory wood-burning
curtailment provision in section
15.10.060 of SIP-approved City
Ordinance No. 344; and (2) a District
‘‘policy’’ to incentivize only certain
types of wood stove change-outs
following a determination by the
District that the area will not meet the
2019 RFP emission target.32 The Plan
indicates that the District identified
these measures as potential contingency
measures because they are not
accounted for in the regional attainment
demonstration modeling for the 2012
PM2.5 NAAQS.33
The mandatory curtailment provision
in SIP-approved City Ordinance No. 344
becomes effective January 1, 2021, and
will prohibit the use of wood burning
heaters, wood burning fireplaces, woodfired fire pits and wood-fired cookstoves
within city limits whenever the District
declares a mandatory curtailment
during the months of January, February,
November, and December, unless it is
an approved and currently registered
EPA-certified wood burning heater.34
The District will declare a mandatory
curtailment whenever it determines that
the 24-hour average PM2.5 concentration
may exceed 30 mg/m3 on a given day
and that adverse meteorological
conditions are expected to persist.35
The District ‘‘policy’’ to incentivize
only certain types of wood stove
change-outs is not associated with a
specific control measure. Section VI.B of
the Portola PM2.5 Plan states that if the
District estimates, by October 31, 2018,
that the area will not meet the 2019 RFP
emission target, the District will only
incentivize the replacement of older
wood stoves with pellet stoves, propane
stoves, or wood stoves meeting the
32 Portola PM
2.5 Plan, 72–74 (section VI.B,
‘‘Contingency Measure’’). The EPA did not act on
the contingency measure element of the Portola
PM2.5 Plan as part of its March 25, 2019 final action
(84 FR 11208).
33 Portola PM
2.5 Plan, 73.
34 City Ordinance No. 344, section 15.10.060.
35 Id.
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‘‘Step 2’’ emission limits in the EPA’s
new source performance standards
(NSPS) for wood heating devices.36
City Ordinance No. 359 contains a
new contingency measure that revises
and supplements the contingency
measure element of the Portola PM2.5
Plan.37 The new provision, in section
15.10.070 of City Ordinance No. 359,
would strengthen the mandatory
curtailment provision in SIP-approved
City Ordinance No. 344 and would
become effective within 60 days after
the EPA makes any of the four
determinations listed in 40 CFR
51.1014(a).38 Specifically, the
mandatory curtailment provision in
section 15.10.070 of City Ordinance No.
359 would prohibit the use of wood
burning heaters, wood burning
fireplaces, wood-fired fire pits, and
wood-fired cookstoves within city limits
whenever the District declares a
mandatory curtailment during the
months of September through April,
unless it is an approved and currently
registered EPA-certified wood burning
heater.39 The District would declare a
mandatory curtailment whenever it
determines that the 24-hour average
PM2.5 concentration may exceed 20 mg/
m3 on a given day and adverse
meteorological conditions are expected
to persist.40 CARB estimates that, if
triggered, the requirements in section
15.10.070 of City Ordinance No. 359
would achieve reductions in direct
PM2.5 emissions of 0.0024 tons per day
(tpd) in 2022.41
The CARB Staff Report contains the
State’s quantification of additional
direct PM2.5 emission reductions
estimated to be achieved in the Portola
nonattainment area in 2022, the year
after the December 31, 2021, attainment
date applicable to the Portola
nonattainment area. CARB attributes
these additional emission reductions to
ongoing implementation of the Wood
Stove Program and several other control
measures and programs that will
achieve PM2.5 emission reductions
beyond those emission reductions
necessary for attainment by the
December 31, 2021 attainment date,
including increased participation in a
voluntary curtailment program outside
of the City of Portola and the District’s
36 Portola
PM2.5 Plan, 74.
the EPA’s final approval of City
Ordinance No. 359, this ordinance (excluding
paragraph 15.10.060(B) and sections 15.10.100 and
15.10.110) will entirely replace City Ordinance No.
344 in the SIP. NSAQMD, Resolution 2020–09
(October 26, 2020), 4 (para. 9).
38 City Ordinance No. 359, section 15.10.070.
39 Id.
40 Id.
41 CARB Staff Report, 9 (Table 6).
37 Upon
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disbursement of 2019 Targeted Airshed
Grant funds to weatherize 30 homes in
the Portola nonattainment area.42 CARB
estimates that the emission reductions
that will result from implementation of
these other measures and programs,
together with the emission reductions
that would result from implementation
of the contingency measure in City
Ordinance No. 359, will achieve a total
of 0.0087 tpd of direct PM2.5 reductions
in 2022.
B. Additional Revisions in City
Ordinance No. 359
The District implements open burning
requirements in NSAQMD rules 300—
317 that apply to a variety of area
sources such as agricultural burning,
forest burning, range improvement, and
residences.43 Neither these rules nor
City Ordinance No. 344, however,
restrict the open burning of yard waste.
City Ordinance No. 359 contains a new
prohibition on the open burning of yard
waste, related definitions, and limited
exemptions. These provisions are not
part of the contingency measure element
of City Ordinance No. 359 but
supplement the existing PM2.5 control
strategy in the Portola nonattainment
area. Specifically, City Ordinance No.
359 contains the following new
provisions:
• Definitions of the terms ‘‘debris,’’
‘‘open burning,’’ ‘‘recreational fire,’’ and
‘‘yard waste’’ (section 15.10.020);
• A provision that bans all open
burning of yard waste and debris within
Portola, except as otherwise authorized
in section 15.10.026 (section 15.10.025);
and
• Provisions to exempt three types of
burning activities from the ban on open
burning: Certain open outdoor fires used
only for cooking or for recreation,
‘‘training burns’’ permitted in advance
by the Fire Chief and the District, and
certain health- and safety-related
burning activities for which the Fire
Chief and the District have issued
special burn permits (section 15.10.026).
City Ordinance No. 359 would also
renumber the following provisions:
Section 15.10.080 (Outdoor Wood-Fired
Boiler Installation Prohibited), located
at section 15.10.070 in City Ordinance
No. 344; section 15.10.090 (Wood Stove
Retailers/Contractors Required to
Provide Educational Materials), located
at section 15.10.080 in City Ordinance
No. 344; and numerous definitions in
section 15.10.020. These renumbering
revisions would not affect the substance
of these provisions.
42 CARB
Staff Report, 10–13.
EPA approved NSAQMD rules 300 to 317
into the SIP on September 16, 1997 (62 FR 48480)
and August 19, 1999 (64 FR 45170).
43 The
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C. EPA Evaluation
Section 172(c)(9) of the CAA and EPA
regulations require states to include
contingency measures in nonattainment
area plans to address potential failure to
achieve RFP milestones, failure to meet
requirements concerning quantitative
milestones, and failure to attain the
NAAQS by the applicable attainment
date. For purposes of evaluating the
contingency measure element of the
Proposed PM2.5 Plan Revision, we find
it useful to distinguish between
contingency measures to address
potential failure to attain the NAAQS
(‘‘attainment contingency measures’’)
and contingency measures to address
potential failure to achieve RFP
milestones or to meet quantitative
milestone requirements (‘‘RFP
contingency measures’’).
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1. Contingency Measure Element of
Portola PM2.5 Plan
The Portola PM2.5 Plan, as submitted
February 28, 2017, identifies the
mandatory curtailment provision in SIPapproved City Ordinance No. 344 as an
attainment contingency measure and
identifies a District ‘‘policy’’ to
incentivize the replacement of older
wood stoves with only pellet stoves,
propane stoves, or wood stoves meeting
the ‘‘Step 2’’ emission limits in the
EPA’s NSPS for wood heating devices as
an RFP contingency measure.44
The mandatory curtailment provision
in section 15.10.060 of City Ordinance
No. 344 does not qualify for use as a
contingency measure under CAA
section 172(c)(9) because City
Ordinance No. 344 is a SIP-approved
component of the attainment control
strategy in the Portola PM2.5 Plan.45
Additionally, because this provision
takes effect on January 1, 2021, before
the December 31, 2021 attainment date
and October 15, 2022 RFP milestone
date applicable to the area, this measure
is an already implemented measure that
cannot be used to comply with the
section 172(c)(9) contingency measure
requirement under the Ninth Circuit’s
decision in Bahr.
The District’s described ‘‘policy’’ for
incentivizing the replacement of older
wood burning devices with cleaner
residential heating devices also does not
qualify for use as a contingency measure
under CAA section 172(c)(9) because it
is not a fully adopted rule or control
measure that is ready to be implemented
44 Portola
PM2.5 Plan, 74.
FR 64774, 64780–64784 (December 18,
2018) (describing City Ordinance No. 344 and other
control measures in the Portola PM2.5 Plan as RACM
and additional reasonable measures for the 2012
PM2.5 NAAQS).
45 83
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quickly upon being triggered and does
not specify the timeframe within which
its requirements would take effect
following any of the EPA
determinations specified in 40 CFR
51.1014(a).
Thus, the contingency measure
element of the Portola PM2.5 Plan, as
submitted February 28, 2017, fails to
satisfy the requirements for contingency
measures in CAA section 172(c)(9) and
40 CFR 51.1014.
2. Revised Contingency Measure for
Attainment Purposes
City Ordinance No. 359 contains a
new contingency measure that revises
and supplements the contingency
measure element of the Portola PM2.5
Plan. The new provision, in section
15.10.070 of City Ordinance No. 359,
would increase the stringency of the
mandatory curtailment provision in
section 15.10.060 of SIP-approved City
Ordinance No. 344 by lowering the
threshold at which the District will
declare a mandatory curtailment from
30 mg/m3 to 20 mg/m3 and by extending
the period during which the District
may declare such mandatory
curtailments from four months (January
to December) to eight months
(September to April).46 This revised
contingency measure would satisfy the
requirements of CAA section 172(c)(9)
and 40 CFR 51.1014 because it: (i)
Would take effect without significant
further action by the State or the EPA,
if the EPA makes any of the four
determinations listed in 40 CFR
51.1014(a); (ii) would consist of control
requirements not otherwise included in
the attainment control strategy for the
Portola nonattainment area; and (iii)
would specify the timeframe within
which it becomes effective following
any of the EPA determinations listed in
40 CFR 51.1014(a).
We also considered the adequacy of
the contingency measure from the
standpoint of the magnitude of emission
reductions the measure would provide
if triggered. Neither the CAA nor the
EPA’s implementing regulations for the
PM2.5 NAAQS establish a specific
amount of emission reductions that
implementation of contingency
measures must achieve, but we
generally expect that contingency
measures should provide for emission
reductions approximately equivalent to
one year’s worth of RFP. For the 2012
PM2.5 NAAQS in the Portola
nonattainment area, one year’s worth of
reductions needed for RFP is
46 Compare City Ordinance No. 359, section
15.10.070 with City Ordinance No. 344, section
15.10.060.
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78055
approximately 0.0085 tpd of direct
PM2.5 reductions.47
The CARB Staff Report contains the
State’s quantification of the emission
reductions anticipated from
implementation of section 15.010.070 of
City Ordinance No. 359. The State
estimates that lowering the curtailment
threshold to 20 mg/m3 and extending the
potential curtailment period by four
months would reduce PM2.5 emissions
by an additional 0.0024 tpd in 2022, the
year after the attainment year for the
2012 PM2.5 NAAQS in the Portola
nonattainment area.48 This estimated
reduction in emissions from the
contingency measure alone does not
achieve one year’s worth of RFP for the
Portola nonattainment area. However, in
the Proposed PM2.5 Plan Revision CARB
provides the larger SIP planning context
in which to judge the adequacy of the
contingency measure by identifying
surplus direct PM2.5 reductions
estimated to be achieved in 2022 from
other measures. The surplus emission
reductions result from already
implemented measures and programs,
including the ongoing implementation
of the Wood Stove Program (0.0059 tpd),
increased participation in a voluntary
curtailment program outside of the City
of Portola (0.0007 tpd), and the District’s
disbursement of 2019 Targeted Airshed
Grant funds to weatherize 30 homes in
the Portola nonattainment area (0.0002
tpd).49 Because these surplus emission
reductions result from already
implemented measures, they cannot
themselves constitute contingency
measures. However, these measures
provide additional reductions that
CARB believes may be taken into
consideration when evaluating the
adequacy of the emission reductions
from the contingency measure. CARB
estimates that these other control
measures and programs, together with
the contingency measure in City
Ordinance No. 359, would achieve a
total of 0.0087 tpd of direct PM2.5
reductions in 2022.
We have reviewed the State’s
emission reduction estimates for 2022,
as shown in the CARB Staff Report, and
find the calculations reasonable. We
therefore agree with the State’s
conclusion that ongoing implementation
of the measures and programs identified
by the State in the CARB Staff Report
47 Portola
PM2.5 Plan, 73 (Table 19).
Staff Report, 9 (Table 6).
49 CARB Staff Report, 10–13. These emission
reductions are surplus to those relied upon in the
control strategy for attaining the 2012 PM2.5 NAAQS
in the Portola PM2.5 Plan because they occur after
the December 31, 2021 attainment date and/or will
be achieved through implementation of measures
adopted after the Plan’s adoption.
48 CARB
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provides surplus emission reductions
beyond those necessary to demonstrate
attainment by the December 31, 2021,
Moderate area attainment date for the
2012 annual PM2.5 NAAQS in the
Portola nonattainment area. While such
surplus emission reductions from
already implemented measures in the
year after the 2021 attainment year
cannot constitute contingency measures
themselves, we consider them relevant
in evaluating the adequacy of the
emission reductions that will result
from the contingency measure that
CARB has proposed to adopt in order to
meet the requirements of section
172(c)(9). In light of the ongoing
reductions in emissions of direct PM2.5
achieved by the District measures and
programs identified in the CARB Staff
Report, the emission reductions from
the District contingency measure (i.e.,
section 10.050.070 of City Ordinance
No. 359) would be sufficient to meet the
attainment contingency measure
requirement for the 2012 PM2.5 NAAQS,
even though the measure would achieve
emission reductions less than one year’s
worth of RFP.
3. Revised Contingency Measure for RFP
and Quantitative Milestone Purposes
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The applicable quantitative milestone
dates for the 2012 PM2.5 NAAQS in the
Portola nonattainment area are October
15, 2019 and October 15, 2022.50 On
May 5, 2019, CARB submitted the
‘‘Portola 2019 Quantitative Milestone
Report’’ (‘‘2019 QM Report’’) to the
EPA.51 The 2019 QM Report includes a
certification from the Governor’s
designee that the 2019 quantitative
milestone for the Portola PM2.5
nonattainment area has been achieved
and a demonstration that the adopted
control strategy has been fully
implemented. The 2019 QM Report also
contains a demonstration of how the
emission reductions achieved to date
compare to those required or scheduled
to meet RFP. The State and District
conclude in the 2019 QM Report that
the emission reductions needed to
demonstrate RFP have been achieved
and that the 2019 quantitative milestone
has been met in the Portola
nonattainment area. On November 3,
2020, the EPA determined that the 2019
QM Report was adequate.52
50 40 CFR 51.1013(a)(1); see also 83 FR 64774,
64790 (December 18, 2018).
51 Letter dated May 5, 2019, from Richard W.
Corey, Executive Officer, CARB, to Mike Stoker,
Regional Administrator, EPA Region IX, with
enclosure.
52 Letter dated November 3, 2020, from Deborah
Jordan, Acting Regional Administrator, EPA Region
IX, to Richard W. Corey, Executive Officer, CARB,
regarding 2019 Quantitative Milestone Report for
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Because the State and District have
demonstrated that the Portola
nonattainment area has met its 2019
quantitative milestones, RFP
contingency measures for the 2019
milestone year are no longer needed.
The sole purpose of RFP contingency
measures is to provide continued
progress if an area fails to meet its RFP
or quantitative milestone requirements.
Failure to meet RFP or quantitative
milestone requirements for 2019 would
have required California to implement
an RFP contingency measure.53 In this
case, however, the 2019 QM Report
demonstrates that actual emission levels
in 2019 were consistent with the
approved 2019 RFP milestone year
targets for direct PM2.5 in the Portola
PM2.5 Plan and that the adopted control
strategy is being implemented as
scheduled. Accordingly, RFP
contingency measures for 2019 no
longer have meaning or purpose, and
the EPA proposes to find that the
requirement for them is now moot as
applied to the Portola nonattainment
area.
With respect to the 2022 RFP
milestone year, the contingency
measure in section 10.050.070 of City
Ordinance No. 359 would take effect if
the EPA determines that the area has
failed to meet a requirement concerning
RFP or quantitative milestones 54 but
would not, by itself, be sufficient to
achieve emission reductions equivalent
to one year’s worth of RFP. The CARB
Staff Report, however, states that
continued implementation of the
existing wood-stove changeout program
together with several new measures and
programs will result in surplus PM2.5
emission reductions in the 2022 RFP
milestone year and in 2023.55 These
measures and programs include a
chimney sweep voucher program,
additional weatherization of homes,
wood sheds for households in the
nonattainment area to keep firewood
dry, and the provision of a reliable and
affordable supply of seasoned wood.56
The CARB Staff Report states that funds
awarded to the District from the EPA’s
2018 and 2019/2020 Targeted Airshed
Grants will ensure continuous
the 2012 annual PM2.5 National Ambient Air
Quality Standards.
53 Under section 189(c)(3) of the CAA, if a state
fails to submit a required quantitative milestone
report or the EPA determines that the area has not
met an applicable milestone, the EPA must require
the state, within nine months after such failure or
determination, to submit a plan revision that
assures that the state will achieve the next
milestone (or attain the NAAQS, if there is no next
milestone) by the applicable date.
54 City Ordinance No. 359, section 10.050.070.
55 CARB Staff Report, 14–15.
56 Id.
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education, outreach, and
implementation and enforcement of
these and additional programs designed
to further reduce PM2.5 emissions in the
Portola nonattainment area after 2022.57
In light of these ongoing and additional
reductions in emissions of direct PM2.5,
the emission reductions from the
District’s contingency measure (i.e.,
section 10.050.070 of City Ordinance
No. 359) would be sufficient to meet the
2022 RFP contingency measure
requirement for the 2012 PM2.5 NAAQS,
even though the measure would achieve
emission reductions less than one year’s
worth of RFP for the area.
We note that if the EPA determines
that the Portola nonattainment area has
failed to attain the 2012 PM2.5 NAAQS
by the December 31, 2021 attainment
date and thereby triggers the
contingency measure provision in
section 10.050.070 of City Ordinance
No. 359, the State would be required to
a submit a replacement contingency
measure to address the 2022 milestone
date. However, timely submittal of a
quantitative milestone report for the
2022 milestone date would, if found
adequate by the EPA, moot the
contingency measure requirement for
this milestone date.
4. Additional Revisions in City
Ordinance No. 359
The new prohibition on the open
burning of yard waste, related
definitions, and limited exemptions in
City Ordinance No. 359 are clear and
the monitoring, recordkeeping,
reporting and other provisions in the
ordinance ensure that affected sources
and regulators can consistently evaluate
and determine compliance with these
additional provisions. These revisions
are therefore consistent with CAA
requirements regarding enforceability.
Additionally, these new provisions in
City Ordinance No. 359 comply with
CAA section 110(l) because they
strengthen the SIP by adding new
requirements for the control of PM2.5
emissions from open burning activities
in the Portola nonattainment area and
would not interfere with any applicable
requirement concerning attainment and
RFP or any other applicable requirement
of the CAA. Section 193 does not apply
to this action because City Ordinance
No. 359 does not modify a control
requirement in effect before November
15, 1990.58 We are not evaluating the
57 Id.
58 City Ordinance No. 359 modifies a control
requirement that the EPA approved into the SIP on
March 5, 2018 (83 FR 9213) (approving City
Ordinance No. 344 into SIP). Upon the EPA’s final
approval of City Ordinance No. 359 into the SIP,
this ordinance (excluding paragraph 15.10.060(B)
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Plan), if the State fails to adopt and
submit the PM2.5 Plan Revision in time
for the EPA to take final action by
March 1, 2021, because the contingency
measure element of the Plan as
submitted February 28, 2017, fails to
satisfy the contingency measure
requirements in CAA section 172(c)(9)
and 40 CFR 51.1014.
If we finalize the proposed
disapproval, the offset sanction in CAA
section 179(b)(2) would apply in the
Portola PM2.5 nonattainment area 18
months after the effective date of the
final disapproval. The highway funding
sanctions in CAA section 179(b)(1)
would apply in the area six months after
the offset sanction is imposed. These
VI. Proposed Actions and Request for
sanctions would apply unless we take
Public Comment
final action to approve SIP revisions
The EPA is proposing to approve the
that meet the relevant CAA
contingency measure element of the
requirements prior to the time the
Portola PM2.5 Plan, as revised and
sanctions would take effect. In addition
supplemented by the Proposed PM2.5
to the sanctions, CAA section 110(c)
Plan Revision, as meeting the
provides that the EPA must promulgate
contingency measure requirements of
a Federal implementation plan
CAA section 172(c)(9) and 40 CFR
addressing the deficiency that is the
51.1014 for the 2012 annual PM2.5
basis for a disapproval, two years after
NAAQS in the Portola nonattainment
the effective date of the disapproval,
area. Our proposed approval is
unless we have approved a revised SIP
contingent upon the State’s submission
submission correcting the deficiency
of the final, adopted PM2.5 Plan Revision before that date.
in time for the EPA to finalize this
Finally, the EPA is proposing to
action by March 1, 2021, our courtapprove the new provisions in City
Ordinance No. 359 concerning open
ordered deadline for taking final action
burning of yard wastes and other debris,
on the contingency measure element of
the Plan. The EPA also proposes to find including related definitions and
exemptions. These provisions
that the requirement for RFP
strengthen the SIP and are consistent
contingency measures for the 2019
milestone date is moot as applied to the with CAA requirements regarding
Portola nonattainment area, because the enforceability and SIP provisions. At the
State’s and District’s request, we are not
State’s and District’s 2019 QM Report
acting on paragraph 15.10.060(B),
adequately demonstrates that the
section 15.10.100, or section 15.10.110
emission reductions needed to
of City Ordinance No. 359.
demonstrate RFP have been achieved
We will accept comments from the
and that the 2019 quantitative milestone
public on these proposals for the next
has been met in the Portola
30 days. The deadline and instructions
nonattainment area.
for submission of comments are
The EPA is proposing, in the
provided in the DATES and ADDRESSES
alternative, to disapprove the
sections at the beginning of this
contingency measure element of the
preamble.
Portola PM2.5 Plan, as submitted
February 28, 2017 (section VI.B of the
VII. Incorporation by Reference
khammond on DSKJM1Z7X2PROD with PROPOSALS
stringency of these provisions for
compliance with specific CAA control
standards at this time and will do so as
part of our action on any subsequently
submitted attainment plan for the
Portola nonattainment area, as
appropriate.59
The District has excluded from the
SIP submission paragraph 15.10.060(B)
and sections 15.10.100 and 15.10.110 of
City Ordinance No. 359 regarding
penalties and violations.60 These
paragraphs are not necessary for SIP
approval and could lead to confusion
with respect to similar Federal
requirements set forth in CAA section
113.
and sections 15.10.100 and 15.10.110) will entirely
replace City Ordinance No. 344. NSAQMD,
Resolution 2020–09 (October 26, 2020), 4 (para. 9).
59 The EPA previously determined that the
Portola PM2.5 Plan contains all RACM necessary for
expeditious attainment of the 2012 PM2.5 NAAQS
by the December 31, 2021 Moderate area attainment
date. 84 FR 11208 (March 25, 2019). If the EPA
determines that the Portola nonattainment area has
failed to attain the NAAQS by this date, the area
will be reclassified as a Serious area, and the State
will be required to submit a revised attainment plan
for the area that provides for the implementation of
best available control measures (BACM) within four
years after such reclassification. CAA sections
188(b)(2) and 189(b)(1)(B).
60 NSAQMD, Resolution 2020–09 (October 26,
2020), 3 (paragraphs. 6, 7).
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In this rule, the EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, the EPA is
proposing to incorporate by reference
the CARB measure described in Section
II of this preamble (City Ordinance No.
359). The EPA has made, and will
continue to make, these materials
available through www.regulations.gov
and at the EPA Region IX Office (please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of
this preamble for more information).
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78057
VIII. 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 proposed action
merely proposes to approve, or
conditionally approve, state plans as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this proposed 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
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Federal Register / Vol. 85, No. 233 / Thursday, December 3, 2020 / Proposed Rules
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 proposed 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).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Ammonia,
Incorporation by reference,
Intergovernmental relations, Nitrogen
dioxide, Particulate matter, Reporting
and recordkeeping requirements, Sulfur
dioxide, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 17, 2020.
John Busterud,
Regional Administrator, Region IX.
[FR Doc. 2020–26648 Filed 12–2–20; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
49 CFR Part 571
[Docket No. NHTSA–2020–0106]
RIN 2127–AM15
Framework for Automated Driving
System Safety
National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Advance notice of proposed
rulemaking (ANPRM).
AGENCY:
NHTSA is requesting
comment on the development of a
framework for Automated Driving
System (ADS) safety. The framework
would objectively define, assess, and
manage the safety of ADS performance
while ensuring the needed flexibility to
enable further innovation. The Agency
is seeking to draw upon existing Federal
and non-Federal foundational efforts
and tools in structuring the framework
as ADS continue to develop. NHTSA
seeks specific feedback on key
components that can meet the need for
motor vehicle safety while enabling
innovative designs, in a manner
consistent with agency authorities.
DATES: Written comments are due no
later than February 1, 2021.
ADDRESSES: Comments must refer to the
docket number above and be submitted
by one of the following methods:
khammond on DSKJM1Z7X2PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
20:17 Dec 02, 2020
Jkt 253001
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
• Mail: Docket Management Facility,
M–30, U.S. Department of
Transportation, West Building, Ground
Floor, Room W12–140, 1200 New Jersey
Avenue SE, Washington, DC 20590.
• Hand Delivery or Courier: U.S.
Department of Transportation, West
Building, Ground Floor, Room W12–
140, 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5
p.m. Eastern time, Monday through
Friday, except Federal holidays. To be
sure someone is there to help you,
please call (202) 366–9322 before
coming.
• Fax: 202–493–2251.
Regardless of how you submit your
comments, you must include the docket
number identified in the heading of this
document.
Note that all comments received,
including any personal information
provided, will be posted without change
to https://www.regulations.gov. Please
see the ‘‘Privacy Act’’ heading below.
You may call the Docket Management
Facility at 202–366–9322. For access to
the docket to read background
documents or comments received, go to
https://www.regulations.gov or the street
address listed above. To be sure
someone is there to help you, please call
(202) 366–9322 before coming. We will
continue to file relevant information in
the Docket as it becomes available.
Privacy Act: In accordance with 5
U.S.C. 553(c), DOT solicits comments
from the public to inform its decisionmaking process. DOT posts these
comments, without edit, including any
personal information the commenter
provides, to https://www.regulations.gov,
as described in the system of records
notice (DOT/ALL–14 FDMS), which can
be reviewed at https://
www.transportation.gov/privacy.
Anyone can search the electronic form
of all comments received into any of our
dockets by the name of the individual
submitting the comment (or signing the
comment, if submitted on behalf of an
association, business, labor union, etc.).
FOR FURTHER INFORMATION CONTACT:
For legal issues, Sara R. Bennett,
Attorney-Advisor, Vehicle Rulemaking
and Harmonization, Office of Chief
Counsel, 202–366–2992, email
Sara.Bennett@dot.gov.
For research issues, Lori Summers,
Director, Office of Vehicle Crash
Avoidance and Electronic Controls
Research, telephone: 202–366–4917,
email Lori.Summers@dot.gov.
For rulemaking issues, Tim J.
Johnson, Acting Director, Office of
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Crash Avoidance Standards, telephone
202–366–1810, email Tim.Johnson@
dot.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Introduction
A. Development of ADS
B. Potential Benefits of ADS
C. NHTSA Regulatory Activity To Remove
Unintentional and Unnecessary Barriers
to the Development and Deployment of
ADS Vehicles
D. Need for a Safety Framework, Including
Implementation and Oversight
Mechanisms, for Federal Efforts To
Address ADS Performance
III. Safety Framework—Core Elements,
Potential Approaches, and Current
Activities
A. Engineering Measures—Core Elements
of ADS Safety Performance
1. Core ADS Safety Functions
2. Other Safety Functions
3. Federal Engineering Measure
Development Efforts
4. Other Notable Efforts Under
Consideration as Engineering Measures
B. Process Measures—Safety Risk
Minimization in the Design,
Development, and Refinement of ADS
1. Functional Safety
2. Safety of the Intended Functionality
3. UL 4600
IV. Safety Framework—Administrative
Mechanisms for Implementation and
Oversight
A. Voluntary Mechanisms
1. Safety Self-Assessment and Other
Disclosure/Reporting
2. New Car Assessment Program (NCAP)
3. Operational Guidance
B. Regulatory Mechanisms
1. Mandatory Reporting and/or Disclosure
2. NHTSA’s FMVSS Setting Authority
3. Applying the Established FMVSS
Framework to ADS Safety Principles
4. Reforming How NHTSA Drafts New
FMVSS To Keep Pace With Rapidly
Evolving Technology
5. Examples of Regulatory Approaches
D. Timing and Phasing of FMVSS
Development and Implementation
E. Critical Factors Considered in Designing,
Assessing, and Selecting Administrative
Mechanisms
V. Questions and Requests
VI. Preparation and Submission of Written
Comments
VII. Regulatory Notices
I. Executive Summary
Over the past several years, NHTSA
has published numerous research
reports, guidance documents, advance
notices of proposed rulemakings, and,
on March 30, 2020 (85 FR 17624), a
notice of proposed rulemaking relating
to the development of vehicles
equipped with Automated Driving
Systems (ADS).1 An ADS is the
1 ADS, as defined by SAE International and as
used in this document, refers to driving automation
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[Federal Register Volume 85, Number 233 (Thursday, December 3, 2020)]
[Proposed Rules]
[Pages 78050-78058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26648]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2020-0534; FRL-10016-98-Region 9]
Approval and Promulgation of Air Quality State Implementation
Plans; California; Plumas County; Moderate Area Plan for the 2012 PM2.5
NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve through parallel processing a state implementation plan (SIP)
revision submitted by the State of California to address Clean Air Act
(CAA or ``Act'') requirements for the 2012 annual fine particulate
matter (PM2.5) national ambient air quality standard (NAAQS
or ``standard'') in the Plumas County Moderate PM2.5
nonattainment area (``Portola nonattainment area''). The submitted SIP
revision is the State's ``Proposed Portola PM2.5 Plan
Contingency Measure SIP Submittal'' (``Proposed PM2.5 Plan
Revision''), which includes a revised City of Portola ordinance
regulating PM2.5 emission sources and the State's
demonstration that this submission meets the Moderate area contingency
measure requirement for the 2012 annual PM2.5 NAAQS in the
Portola nonattainment area. The EPA is also proposing to approve the
contingency measure element of the Moderate area attainment plan for
the Portola nonattainment area, as revised and supplemented by the
Proposed PM2.5 Plan Revision. Because the EPA is proceeding
by parallel processing, the agency is proposing, in the alternative, to
disapprove the contingency measure element of the Moderate area
attainment
[[Page 78051]]
plan if the State does not submit the final, adopted PM2.5
Plan Revision in substantially the same form before we take final
action.
DATES: Any comments on this proposal must be received by January 4,
2021.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2020-0534 at https://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, the EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (e.g., audio or video) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section for
additional availability information. If you need assistance in a
language other than English or if you are a person with disabilities
who needs a reasonable accommodation at no cost to you, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: John Ungvarsky, Air Planning Office
(AIR-2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105,
(415) 972-3963 or [email protected]
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' or
``our'' refer to the EPA.
Table of Contents
I. Background
II. Summary of the Proposed PM2.5 Plan Revision
III. Clean Air Act Requirements for PM2.5 Contingency
Measures and Other Control Measures
IV. Completeness Review of the Proposed PM2.5 Plan
Revision
V. Review of the Proposed PM2.5 Plan Revision
VI. Proposed Actions and Request for Public Comment
VII. Incorporation by Reference
VIII. Statutory and Executive Order Reviews
I. Background
On January 15, 2013, the EPA strengthened the primary annual NAAQS
for particulate matter with a diameter of 2.5 microns or less by
lowering the level from 15.0 micrograms per cubic meter ([micro]g/m\3\)
to 12.0 [micro]g/m\3\ (``2012 PM2.5 NAAQS'').\1\ The EPA
established this standard after considering substantial evidence from
numerous health studies demonstrating that serious health effects are
associated with exposures to PM2.5 concentrations above
these levels.
---------------------------------------------------------------------------
\1\ 78 FR 3086 and 40 CFR 50.18. Unless otherwise noted, all
references to the PM2.5 NAAQS in this document are to the
2012 annual NAAQS of 12.0 [micro]g/m\3\ codified at 40 CFR 50.18.
---------------------------------------------------------------------------
Epidemiological studies have shown statistically significant
correlations between elevated PM2.5 levels and premature
mortality. Other important health effects associated with
PM2.5 exposure include aggravation of respiratory and
cardiovascular disease (as indicated by increased hospital admissions,
emergency room visits, absences from school or work, and restricted
activity days), changes in lung function, and increased respiratory
symptoms. Individuals particularly sensitive to PM2.5
exposure include older adults, people with heart and lung disease, and
children.\2\ PM2.5 can be emitted directly into the
atmosphere as a solid or liquid particle (``primary PM2.5''
or ``direct PM2.5'') or can be formed in the atmosphere
(``secondary PM2.5'') as a result of various chemical
reactions among precursor pollutants such as nitrogen oxides, sulfur
oxides, volatile organic compounds, and ammonia.\3\
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\2\ Id.
\3\ EPA, Air Quality Criteria for Particulate Matter, No. EPA/
600/P-99/002aF and EPA/600/P-99/002bF, October 2004.
---------------------------------------------------------------------------
Following promulgation of a new or revised NAAQS, the EPA is
required by CAA section 107(d) to designate areas throughout the nation
as attaining or not attaining the NAAQS. The EPA designated and
classified the Portola nonattainment area as ``Moderate'' nonattainment
for the 2012 annual PM2.5 standards based on ambient
monitoring data that showed the area was above 12.0 [micro]g/m\3\ for
the 2011-2013 monitoring period.\4\ For the 2011-2013 period, the
annual PM2.5 design value for the Portola area was 12.8
[micro]g/m\3\ based on monitored readings at the 161 Nevada Street and
420 Gulling Street monitors.\5\
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\4\ 80 FR 2206 (January 15, 2015).
\5\ From 2000 through early 2013, the Portola PM2.5
monitoring site was located at 161 Nevada Street. In 2013, the site
was relocated to 420 Gulling Street.
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The Portola PM2.5 nonattainment area includes the City
of Portola (``Portola''), which has a population of approximately 2,100
and is located at an elevation of 4,890 feet in an intermountain basin
isolated by rugged mountains. For a precise description of the
geographic boundaries of the Portola PM2.5 nonattainment
area, see 40 CFR 81.305.
Portola averages 20 inches of precipitation annually. From October
through March the Portola nonattainment area has very cold temperatures
with an average daily low temperature of approximately 22 degrees
Fahrenheit. The combination of mountainous terrain, cold temperatures,
and elevation can cause atmospheric inversions and impair
PM2.5 dispersion, especially during the winter.
The local air district with primary responsibility for developing a
plan to attain the 2012 annual PM2.5 NAAQS in this area is
the Northern Sierra Air Quality Management District (NSAQMD or
``District''). The District worked cooperatively with the California
Air Resources Board (CARB) in preparing the Proposed PM2.5
Plan Revision. Under state law, authority for regulating sources under
state jurisdiction in the Portola nonattainment area is split between
the District, which has responsibility for regulating stationary and
most area sources, and CARB, which has responsibility for regulating
most mobile sources.
On February 28, 2017, California submitted the ``Portola Fine
Particulate Matter (PM2.5) Attainment Plan'' (``Portola
PM2.5 Plan'' or ``Plan'') to address the CAA's Moderate area
requirements for the 2012 annual PM2.5 NAAQS in the Portola
nonattainment area. On March 25, 2019, the EPA approved all of the
Portola PM2.5 Plan, except for the contingency measure
element.\6\ The components of the Portola PM2.5 Plan that
the EPA approved include the modeled demonstration that the area will
attain the 2012 annual PM2.5 NAAQS by the applicable
attainment date, which is December 31, 2021; the State and District
control strategy for attaining the NAAQS by this date, including all
reasonably available control measures and control technologies (RACM/
RACT) and additional reasonable measures necessary for expeditious
attainment; the reasonable further progress (RFP) demonstration and
related quantitative milestones for the October 15, 2019 and October
15, 2022 quantitative milestone dates applicable to the area; and the
[[Page 78052]]
motor vehicle emissions budgets for 2019 and 2021.\7\
---------------------------------------------------------------------------
\6\ 84 FR 11208.
\7\ Id.
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As part of the attainment control strategy, the Portola
PM2.5 Plan relies on ``Ordinance No. 344: An Ordinance of
the City of Portola, County of Plumas Amending Chapter 15.10 of the
City of Portola Municipal Code Providing for Regulation of Wood Stoves
and Fireplaces'' (``City Ordinance No. 344'') to achieve direct
PM2.5 emission reductions necessary for attainment by the
December 31, 2021 attainment date. The EPA approved City Ordinance No.
344 into the SIP on March 5, 2018.\8\ The attainment control strategy
in the Portola PM2.5 Plan also relies on an enforceable
State commitment to implement an incentive grant program called the
``Greater Portola Woodstove Change-out Program 2016'' (``Wood Stove
Program'') during the 2016 to 2021 period to fund the replacement of
uncertified wood stoves with newer, EPA-certified devices and to
educate residents on proper ways to store and burn wood. The EPA
approved the Wood Stove Program into the SIP on April 2, 2018.\9\
---------------------------------------------------------------------------
\8\ 83 FR 9213.
\9\ 83 FR 13871.
---------------------------------------------------------------------------
City Ordinance No. 344 and the District's Wood Stove Program
collectively establish most of the recommended program elements
outlined in the EPA's guidance document entitled ``Strategies for
Reducing Residential Wood Smoke,'' \10\ including a wood burning
curtailment program in section 15.10.060 of City Ordinance No. 344
(Mandatory Curtailment of Wood Burning Heaters, Wood Burning
Fireplaces, Wood-Fired Fire Pits and Wood-Fired Cookstoves During
Stagnant Conditions).\11\ The Portola PM2.5 Plan relies
primarily on the Wood Stove Program to achieve the PM2.5
emission reductions necessary for the Portola nonattainment area to
attain the 2012 annual PM2.5 NAAQS by December 31, 2021.\12\
---------------------------------------------------------------------------
\10\ EPA, ``Strategies for Reducing Residential Wood Smoke,''
Publication No. EPA-456/B-13-001, revised March 2013.
\11\ 83 FR 64774, 64782 (December 18, 2018) (proposed action on
Portola PM2.5 Plan) and EPA, Region IX, ``Technical
Support Document for the EPA's Rulemaking for the California State
Implementation Plan, Northern Sierra Air Quality Management
District, City of Portola Ordinance 344, Wood Stove and Fireplace
Ordinance,'' July 2017 (``Ordinance 344 TSD''), 6.
\12\ 83 FR 64774, 64788 (December 18, 2018).
---------------------------------------------------------------------------
The Portola PM2.5 Plan also contains a contingency
measure element in section VI.B that identifies the wood-burning
curtailment provision in section 15.10.060 of City Ordinance No. 344
and a District policy designed to incentivize certain types of wood
stove change-outs as contingency measures for the 2012 annual
PM2.5 NAAQS.\13\ The EPA did not act on this element of the
Portola PM2.5 Plan as part of its March 25, 2019 final
action.\14\
---------------------------------------------------------------------------
\13\ Portola PM2.5 Plan, 72-74 (section VI.B,
``Contingency Measure'').
\14\ 84 FR 11208.
---------------------------------------------------------------------------
On May 22, 2019, the Center for Biological Diversity filed a
complaint in the United States District Court for the Northern District
of California alleging that the EPA had, among other things, failed to
take final action either approving or disapproving the contingency
measure element of the Portola PM2.5 Plan. On February 19,
2020, the court issued an order directing, inter alia, that the EPA
``sign a notice of final rulemaking to approve, disapprove,
conditionally approve, or approve in part and conditionally approve or
disapprove in part'' the contingency measure element of the Portola
PM2.5 Plan, under CAA sections 110(k)(2)-(4), no later than
March 1, 2021.\15\
---------------------------------------------------------------------------
\15\ Center for Biological Diversity, et al. v. Andrew Wheeler,
Case No. 3:19-cv-02782-EMC, Order (N.D. Cal., February 19, 2020).
---------------------------------------------------------------------------
II. Summary of the Proposed PM2.5 Plan Revision
On September 9, 2020, the City of Portola adopted ``Ordinance No.
359, An Ordinance of the City of Portola, County of Plumas Amending
Chapter 15.10 of the City of Portola Municipal Code Providing for
Regulation of Wood Stoves and Fireplaces and the Prohibition of the
Open Burning of Yard Waste'' (``City Ordinance No. 359''). City
Ordinance No. 359 amends City Ordinance No. 344, as codified in Chapter
15.10 of the Portola Municipal Code.\16\
---------------------------------------------------------------------------
\16\ NSAQMD, Resolution 2020-09 (October 26, 2020).
---------------------------------------------------------------------------
Specifically, section 15.10.070 (Curtailment Levels and Period) of
City Ordinance No. 359 contains a contingency measure that revises and
supplements the contingency measure element of the Portola
PM2.5 Plan. City Ordinance No. 359 also contains new
provisions that ban all open burning of yard waste and debris within
the City of Portola, with limited exceptions, and renumbers several
sections of the prior version of this ordinance (City Ordinance No.
354) without change.\17\ The additional open burning provisions in City
Ordinance No. 359 are not part of the contingency measure element of
the Plan. CARB has requested that the EPA entirely replace City
Ordinance No. 344 in the SIP with City Ordinance No. 359.\18\
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\17\ City of Portola, Ordinance No. 359, adopted September 9,
2020.
\18\ NSAQMD, Resolution 2020-09 (October 26, 2020).
---------------------------------------------------------------------------
On October 26, 2020, the District Governing Board adopted City
Ordinance No. 359 and, through Resolution 2020-09, instructed the
District to submit City Ordinance No. 359 to CARB for inclusion in the
SIP.\19\ On October 28, 2020, CARB submitted City Ordinance No. 359,
together with a document entitled ``Proposed Portola PM2.5
Plan Contingency Measure SIP Submittal,'' October 16, 2020 (hereafter
``CARB Staff Report''), to the EPA with a request for approval into the
SIP through the EPA's parallel processing procedures in 40 CFR part 51,
appendix V, section 2.3.\20\ We refer to City Ordinance No. 359 and the
CARB Staff Report together as the ``Proposed PM2.5 Plan
Revision.'' CARB has scheduled the Proposed PM2.5 Plan
Revision for a hearing before the CARB Governing Board on November 19,
2020, and if it is then adopted, CARB will submit the final
PM2.5 Plan Revision to the EPA for approval into the
California SIP.\21\
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\19\ Id. Resolution 2020-09 instructs the District to exclude
paragraph 15.10.060(B) (concerning penalties), section 15.10.100
(Violations), and section 15.10.110 (Continuing violations--each day
being a separate violation) from the SIP submission.
\20\ Letter dated October 28, 2020, from Richard Corey,
Executive Officer, CARB, to John Busterud, Regional Administrator,
EPA Region IX, with enclosures. Although both the City and the
District have adopted City Ordinance No. 359, CARB has not yet
adopted it.
\21\ Id.
---------------------------------------------------------------------------
III. Clean Air Act Requirements for PM2.5 Contingency
Measures and Other Control Measures
A. Requirements for Contingency Measures
Under CAA section 172(c)(9) and the EPA's implementing regulations
for the PM2.5 NAAQS (``PM2.5 SIP Requirements
Rule''),\22\ each SIP submission for a nonattainment area must include
contingency measures to be implemented if the area fails to meet
requirements concerning RFP, fails to meet requirements concerning
quantitative milestones, or fails to attain the NAAQS by the applicable
attainment date. Contingency measures must be fully adopted rules or
control measures that are ready to be implemented quickly upon being
triggered and that take effect without significant further action by
the State or the EPA.\23\ The purpose of the contingency measures is to
continue progress in reducing emissions while a
[[Page 78053]]
state revises its SIP to meet a missed RFP requirement, to meet a
missed quantitative milestone requirement, or to correct ongoing
nonattainment.
---------------------------------------------------------------------------
\22\ 81 FR 58010 (August 24, 2016), codified at 40 CFR part 51,
subpart Z.
\23\ 81 FR 58010, 58066 and Addendum, 42015.
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Under the PM2.5 SIP Requirements Rule, contingency
measures must be implemented following a determination by the EPA that
the state has failed: (1) To meet any RFP requirement in the approved
SIP; (2) to meet any quantitative milestone in the approved SIP; (3) to
submit a required quantitative milestone report; or (4) to attain the
applicable PM2.5 NAAQS by the applicable attainment
date.\24\ The contingency measures adopted as part of a
PM2.5 attainment plan must consist of control measures for
the area that are not otherwise required to meet other nonattainment
plan requirements (e.g., to meet RACM/RACT requirements) and must
specify the timeframe within which their requirements become effective
following any of the EPA determinations specified in 40 CFR 51.1014(a).
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\24\ 40 CFR 51.1014(a).
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Neither the CAA nor the EPA's implementing regulations establish a
specific level of emission reductions that implementation of
contingency measures must achieve, but EPA guidance recommends that
contingency measures should provide for emission reductions equivalent
to approximately one year of reductions needed for RFP, calculated as
the overall level of reductions needed to demonstrate attainment
divided by the number of years from the base year to the attainment
year. In general, we expect all actions needed to effect full
implementation of the contingency measures to occur within 60 days
after the EPA notifies the state of a failure to attain or to meet an
RFP or quantitative milestone requirement.\25\
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\25\ 81 FR 58010, 58066. See also General Preamble, 13512,
13543-13544, and Addendum, 42014-42015.
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It has been the EPA's longstanding interpretation of section
172(c)(9) that states may rely on existing Federal measures (e.g.,
Federal mobile source measures based on the incremental turnover of the
motor vehicle fleet each year) and state or local SIP measures already
scheduled for implementation that provide emissions reductions in
excess of those needed to meet any other nonattainment plan
requirements, such as RACM/RACT, RFP, or expeditious attainment
requirements. In Bahr v. EPA (``Bahr''), however, the Ninth Circuit
Court of Appeals rejected the EPA's interpretation of CAA section
172(c)(9) as allowing for approval of already implemented control
measures as contingency measures.\26\ The Ninth Circuit concluded that
contingency measures must be measures that would take effect at the
time the area fails to make RFP or to attain by the applicable
attainment date, not before.\27\ Thus, within the geographic
jurisdiction of the Ninth Circuit, states cannot rely on already
implemented measures to comply with the contingency measure requirement
under CAA section 172(c)(9).
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\26\ Bahr v. EPA, 836 F.3d 1218, 1235-1237 (9th Cir. 2016).
\27\ Id.
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To comply with section 172(c)(9), as interpreted in the Bahr
decision, a state must develop, adopt, and submit contingency measures
to be triggered upon a failure to meet an RFP milestone, failure to
meet requirements concerning quantitative milestones, or failure to
attain the NAAQS by the applicable attainment date regardless of the
extent to which already-implemented measures would achieve surplus
emission reductions beyond those necessary to meet RFP or quantitative
milestone requirements and beyond those projected to achieve attainment
of the NAAQS.
B. General Requirements for SIP Control Measures
SIP control measures and revisions thereto must be enforceable,\28\
must not interfere with applicable requirements concerning attainment
and RFP or other CAA requirements,\29\ and must not modify certain SIP
control requirements in nonattainment areas without ensuring equivalent
or greater emissions reductions.\30\ Generally, in PM2.5
nonattainment areas classified as Moderate, SIP control measures must
also implement RACM, including RACT, and additional reasonable
measures.\31\
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\28\ CAA section 110(a)(2)(A).
\29\ CAA section 110(l).
\30\ CAA section 193.
\31\ CAA sections 172(c)(1) and 189(a)(1)(C) and 40 CFR 51.1009.
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IV. Completeness Review of the Proposed PM2.5 Plan Revision
On October 28, 2020, CARB submitted the Proposed PM2.5
Plan Revision with a request that the EPA approve the submission into
the SIP through the parallel processing procedures in 40 CFR part 51,
appendix V, section 2.3. Parallel processing refers to a process that
utilizes concurrent state and Federal proposed rulemaking actions.
Generally, the state submits a copy of the proposed regulation or other
revisions to the EPA before conducting its public hearing and
completing its public comment process under state law. The EPA reviews
this proposed state action and prepares a notice of proposed rulemaking
under Federal law. In some cases, the EPA publishes its notice of
proposed rulemaking in the Federal Register during the same time frame
that the state is holding its own public hearing and public comment
process. The state and the EPA then provide for concurrent public
comment periods on both the state action and Federal action on the
initial SIP submission from the state. If, after completing its public
comment process and after the EPA's public comment process has run, the
state materially changes its final SIP submission to the EPA from the
initial proposed submission, the EPA evaluates those changes and
decides whether to publish another notice of proposed rulemaking in
light of those changes or to proceed to taking final action on its
proposed action and describe the state's changes in its final
rulemaking action. Any final rulemaking action by the EPA will occur
only after the state formally adopts and submits its final submission
to the EPA.
Section 110(k)(1)(B) of the CAA requires the EPA to determine
whether a SIP submission is complete within 60 days of receipt. This
section also provides that if the EPA has not affirmatively determined
a SIP submission to be complete or incomplete, it will become complete
by operation of law six months after the date of submission. The EPA's
SIP completeness criteria are found in 40 CFR part 51, appendix V. The
EPA has reviewed the Proposed PM2.5 Plan Revision and finds
that it fulfills the completeness criteria of appendix V, with the
exception of the requirements of paragraphs 2.1(e)-2.1(h), which do not
apply to plans submitted for parallel processing.
CAA sections 110(a)(1) and (2) and 110(l) require each state to
provide reasonable public notice and opportunity for public hearing
prior to the adoption and submission of a SIP submission to the EPA. To
meet this requirement, a state's SIP submission must include evidence
that the state provided adequate public notice and an opportunity for a
public hearing, consistent with the EPA's implementing regulations in
40 CFR 51.102. However, because the Proposed PM2.5 Plan
Revision was submitted for parallel processing, it is exempt from this
requirement at the time of initial submission to the EPA, pursuant to
40 CFR part 51, appendix V, section 2.3.1. CARB and the District are
required to meet these procedural criteria during the parallel
processing period, and prior
[[Page 78054]]
to adopting and submitting the final SIP submission to the EPA. The EPA
will determine whether the final submission meets these requirements at
the time of any final action on the PM2.5 Plan Revision.
V. Review of the Proposed PM2.5 Plan Revision
A. Revised Contingency Measure Element of Portola PM2.5 Plan
The contingency measure element in section VI.B of the Portola
PM2.5 Plan, as submitted February 28, 2017, discusses two
potential contingency measures for the 2012 PM2.5 NAAQS: (1)
The mandatory wood-burning curtailment provision in section 15.10.060
of SIP-approved City Ordinance No. 344; and (2) a District ``policy''
to incentivize only certain types of wood stove change-outs following a
determination by the District that the area will not meet the 2019 RFP
emission target.\32\ The Plan indicates that the District identified
these measures as potential contingency measures because they are not
accounted for in the regional attainment demonstration modeling for the
2012 PM2.5 NAAQS.\33\
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\32\ Portola PM2.5 Plan, 72-74 (section VI.B,
``Contingency Measure''). The EPA did not act on the contingency
measure element of the Portola PM2.5 Plan as part of its
March 25, 2019 final action (84 FR 11208).
\33\ Portola PM2.5 Plan, 73.
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The mandatory curtailment provision in SIP-approved City Ordinance
No. 344 becomes effective January 1, 2021, and will prohibit the use of
wood burning heaters, wood burning fireplaces, wood-fired fire pits and
wood-fired cookstoves within city limits whenever the District declares
a mandatory curtailment during the months of January, February,
November, and December, unless it is an approved and currently
registered EPA-certified wood burning heater.\34\ The District will
declare a mandatory curtailment whenever it determines that the 24-hour
average PM2.5 concentration may exceed 30 [mu]g/m\3\ on a
given day and that adverse meteorological conditions are expected to
persist.\35\
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\34\ City Ordinance No. 344, section 15.10.060.
\35\ Id.
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The District ``policy'' to incentivize only certain types of wood
stove change-outs is not associated with a specific control measure.
Section VI.B of the Portola PM2.5 Plan states that if the
District estimates, by October 31, 2018, that the area will not meet
the 2019 RFP emission target, the District will only incentivize the
replacement of older wood stoves with pellet stoves, propane stoves, or
wood stoves meeting the ``Step 2'' emission limits in the EPA's new
source performance standards (NSPS) for wood heating devices.\36\
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\36\ Portola PM2.5 Plan, 74.
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City Ordinance No. 359 contains a new contingency measure that
revises and supplements the contingency measure element of the Portola
PM2.5 Plan.\37\ The new provision, in section 15.10.070 of
City Ordinance No. 359, would strengthen the mandatory curtailment
provision in SIP-approved City Ordinance No. 344 and would become
effective within 60 days after the EPA makes any of the four
determinations listed in 40 CFR 51.1014(a).\38\ Specifically, the
mandatory curtailment provision in section 15.10.070 of City Ordinance
No. 359 would prohibit the use of wood burning heaters, wood burning
fireplaces, wood-fired fire pits, and wood-fired cookstoves within city
limits whenever the District declares a mandatory curtailment during
the months of September through April, unless it is an approved and
currently registered EPA-certified wood burning heater.\39\ The
District would declare a mandatory curtailment whenever it determines
that the 24-hour average PM2.5 concentration may exceed 20
[mu]g/m\3\ on a given day and adverse meteorological conditions are
expected to persist.\40\ CARB estimates that, if triggered, the
requirements in section 15.10.070 of City Ordinance No. 359 would
achieve reductions in direct PM2.5 emissions of 0.0024 tons
per day (tpd) in 2022.\41\
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\37\ Upon the EPA's final approval of City Ordinance No. 359,
this ordinance (excluding paragraph 15.10.060(B) and sections
15.10.100 and 15.10.110) will entirely replace City Ordinance No.
344 in the SIP. NSAQMD, Resolution 2020-09 (October 26, 2020), 4
(para. 9).
\38\ City Ordinance No. 359, section 15.10.070.
\39\ Id.
\40\ Id.
\41\ CARB Staff Report, 9 (Table 6).
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The CARB Staff Report contains the State's quantification of
additional direct PM2.5 emission reductions estimated to be
achieved in the Portola nonattainment area in 2022, the year after the
December 31, 2021, attainment date applicable to the Portola
nonattainment area. CARB attributes these additional emission
reductions to ongoing implementation of the Wood Stove Program and
several other control measures and programs that will achieve
PM2.5 emission reductions beyond those emission reductions
necessary for attainment by the December 31, 2021 attainment date,
including increased participation in a voluntary curtailment program
outside of the City of Portola and the District's disbursement of 2019
Targeted Airshed Grant funds to weatherize 30 homes in the Portola
nonattainment area.\42\ CARB estimates that the emission reductions
that will result from implementation of these other measures and
programs, together with the emission reductions that would result from
implementation of the contingency measure in City Ordinance No. 359,
will achieve a total of 0.0087 tpd of direct PM2.5
reductions in 2022.
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\42\ CARB Staff Report, 10-13.
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B. Additional Revisions in City Ordinance No. 359
The District implements open burning requirements in NSAQMD rules
300--317 that apply to a variety of area sources such as agricultural
burning, forest burning, range improvement, and residences.\43\ Neither
these rules nor City Ordinance No. 344, however, restrict the open
burning of yard waste. City Ordinance No. 359 contains a new
prohibition on the open burning of yard waste, related definitions, and
limited exemptions. These provisions are not part of the contingency
measure element of City Ordinance No. 359 but supplement the existing
PM2.5 control strategy in the Portola nonattainment area.
Specifically, City Ordinance No. 359 contains the following new
provisions:
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\43\ The EPA approved NSAQMD rules 300 to 317 into the SIP on
September 16, 1997 (62 FR 48480) and August 19, 1999 (64 FR 45170).
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Definitions of the terms ``debris,'' ``open burning,''
``recreational fire,'' and ``yard waste'' (section 15.10.020);
A provision that bans all open burning of yard waste and
debris within Portola, except as otherwise authorized in section
15.10.026 (section 15.10.025); and
Provisions to exempt three types of burning activities
from the ban on open burning: Certain open outdoor fires used only for
cooking or for recreation, ``training burns'' permitted in advance by
the Fire Chief and the District, and certain health- and safety-related
burning activities for which the Fire Chief and the District have
issued special burn permits (section 15.10.026).
City Ordinance No. 359 would also renumber the following
provisions: Section 15.10.080 (Outdoor Wood-Fired Boiler Installation
Prohibited), located at section 15.10.070 in City Ordinance No. 344;
section 15.10.090 (Wood Stove Retailers/Contractors Required to Provide
Educational Materials), located at section 15.10.080 in City Ordinance
No. 344; and numerous definitions in section 15.10.020. These
renumbering revisions would not affect the substance of these
provisions.
[[Page 78055]]
C. EPA Evaluation
Section 172(c)(9) of the CAA and EPA regulations require states to
include contingency measures in nonattainment area plans to address
potential failure to achieve RFP milestones, failure to meet
requirements concerning quantitative milestones, and failure to attain
the NAAQS by the applicable attainment date. For purposes of evaluating
the contingency measure element of the Proposed PM2.5 Plan
Revision, we find it useful to distinguish between contingency measures
to address potential failure to attain the NAAQS (``attainment
contingency measures'') and contingency measures to address potential
failure to achieve RFP milestones or to meet quantitative milestone
requirements (``RFP contingency measures'').
1. Contingency Measure Element of Portola PM2.5 Plan
The Portola PM2.5 Plan, as submitted February 28, 2017,
identifies the mandatory curtailment provision in SIP-approved City
Ordinance No. 344 as an attainment contingency measure and identifies a
District ``policy'' to incentivize the replacement of older wood stoves
with only pellet stoves, propane stoves, or wood stoves meeting the
``Step 2'' emission limits in the EPA's NSPS for wood heating devices
as an RFP contingency measure.\44\
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\44\ Portola PM2.5 Plan, 74.
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The mandatory curtailment provision in section 15.10.060 of City
Ordinance No. 344 does not qualify for use as a contingency measure
under CAA section 172(c)(9) because City Ordinance No. 344 is a SIP-
approved component of the attainment control strategy in the Portola
PM2.5 Plan.\45\ Additionally, because this provision takes
effect on January 1, 2021, before the December 31, 2021 attainment date
and October 15, 2022 RFP milestone date applicable to the area, this
measure is an already implemented measure that cannot be used to comply
with the section 172(c)(9) contingency measure requirement under the
Ninth Circuit's decision in Bahr.
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\45\ 83 FR 64774, 64780-64784 (December 18, 2018) (describing
City Ordinance No. 344 and other control measures in the Portola
PM2.5 Plan as RACM and additional reasonable measures for
the 2012 PM2.5 NAAQS).
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The District's described ``policy'' for incentivizing the
replacement of older wood burning devices with cleaner residential
heating devices also does not qualify for use as a contingency measure
under CAA section 172(c)(9) because it is not a fully adopted rule or
control measure that is ready to be implemented quickly upon being
triggered and does not specify the timeframe within which its
requirements would take effect following any of the EPA determinations
specified in 40 CFR 51.1014(a).
Thus, the contingency measure element of the Portola
PM2.5 Plan, as submitted February 28, 2017, fails to satisfy
the requirements for contingency measures in CAA section 172(c)(9) and
40 CFR 51.1014.
2. Revised Contingency Measure for Attainment Purposes
City Ordinance No. 359 contains a new contingency measure that
revises and supplements the contingency measure element of the Portola
PM2.5 Plan. The new provision, in section 15.10.070 of City
Ordinance No. 359, would increase the stringency of the mandatory
curtailment provision in section 15.10.060 of SIP-approved City
Ordinance No. 344 by lowering the threshold at which the District will
declare a mandatory curtailment from 30 [mu]g/m\3\ to 20 [mu]g/m\3\ and
by extending the period during which the District may declare such
mandatory curtailments from four months (January to December) to eight
months (September to April).\46\ This revised contingency measure would
satisfy the requirements of CAA section 172(c)(9) and 40 CFR 51.1014
because it: (i) Would take effect without significant further action by
the State or the EPA, if the EPA makes any of the four determinations
listed in 40 CFR 51.1014(a); (ii) would consist of control requirements
not otherwise included in the attainment control strategy for the
Portola nonattainment area; and (iii) would specify the timeframe
within which it becomes effective following any of the EPA
determinations listed in 40 CFR 51.1014(a).
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\46\ Compare City Ordinance No. 359, section 15.10.070 with City
Ordinance No. 344, section 15.10.060.
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We also considered the adequacy of the contingency measure from the
standpoint of the magnitude of emission reductions the measure would
provide if triggered. Neither the CAA nor the EPA's implementing
regulations for the PM2.5 NAAQS establish a specific amount
of emission reductions that implementation of contingency measures must
achieve, but we generally expect that contingency measures should
provide for emission reductions approximately equivalent to one year's
worth of RFP. For the 2012 PM2.5 NAAQS in the Portola
nonattainment area, one year's worth of reductions needed for RFP is
approximately 0.0085 tpd of direct PM2.5 reductions.\47\
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\47\ Portola PM2.5 Plan, 73 (Table 19).
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The CARB Staff Report contains the State's quantification of the
emission reductions anticipated from implementation of section
15.010.070 of City Ordinance No. 359. The State estimates that lowering
the curtailment threshold to 20 [micro]g/m\3\ and extending the
potential curtailment period by four months would reduce
PM2.5 emissions by an additional 0.0024 tpd in 2022, the
year after the attainment year for the 2012 PM2.5 NAAQS in
the Portola nonattainment area.\48\ This estimated reduction in
emissions from the contingency measure alone does not achieve one
year's worth of RFP for the Portola nonattainment area. However, in the
Proposed PM2.5 Plan Revision CARB provides the larger SIP
planning context in which to judge the adequacy of the contingency
measure by identifying surplus direct PM2.5 reductions
estimated to be achieved in 2022 from other measures. The surplus
emission reductions result from already implemented measures and
programs, including the ongoing implementation of the Wood Stove
Program (0.0059 tpd), increased participation in a voluntary
curtailment program outside of the City of Portola (0.0007 tpd), and
the District's disbursement of 2019 Targeted Airshed Grant funds to
weatherize 30 homes in the Portola nonattainment area (0.0002 tpd).\49\
Because these surplus emission reductions result from already
implemented measures, they cannot themselves constitute contingency
measures. However, these measures provide additional reductions that
CARB believes may be taken into consideration when evaluating the
adequacy of the emission reductions from the contingency measure. CARB
estimates that these other control measures and programs, together with
the contingency measure in City Ordinance No. 359, would achieve a
total of 0.0087 tpd of direct PM2.5 reductions in 2022.
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\48\ CARB Staff Report, 9 (Table 6).
\49\ CARB Staff Report, 10-13. These emission reductions are
surplus to those relied upon in the control strategy for attaining
the 2012 PM2.5 NAAQS in the Portola PM2.5 Plan
because they occur after the December 31, 2021 attainment date and/
or will be achieved through implementation of measures adopted after
the Plan's adoption.
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We have reviewed the State's emission reduction estimates for 2022,
as shown in the CARB Staff Report, and find the calculations
reasonable. We therefore agree with the State's conclusion that ongoing
implementation of the measures and programs identified by the State in
the CARB Staff Report
[[Page 78056]]
provides surplus emission reductions beyond those necessary to
demonstrate attainment by the December 31, 2021, Moderate area
attainment date for the 2012 annual PM2.5 NAAQS in the
Portola nonattainment area. While such surplus emission reductions from
already implemented measures in the year after the 2021 attainment year
cannot constitute contingency measures themselves, we consider them
relevant in evaluating the adequacy of the emission reductions that
will result from the contingency measure that CARB has proposed to
adopt in order to meet the requirements of section 172(c)(9). In light
of the ongoing reductions in emissions of direct PM2.5
achieved by the District measures and programs identified in the CARB
Staff Report, the emission reductions from the District contingency
measure (i.e., section 10.050.070 of City Ordinance No. 359) would be
sufficient to meet the attainment contingency measure requirement for
the 2012 PM2.5 NAAQS, even though the measure would achieve
emission reductions less than one year's worth of RFP.
3. Revised Contingency Measure for RFP and Quantitative Milestone
Purposes
The applicable quantitative milestone dates for the 2012
PM2.5 NAAQS in the Portola nonattainment area are October
15, 2019 and October 15, 2022.\50\ On May 5, 2019, CARB submitted the
``Portola 2019 Quantitative Milestone Report'' (``2019 QM Report'') to
the EPA.\51\ The 2019 QM Report includes a certification from the
Governor's designee that the 2019 quantitative milestone for the
Portola PM2.5 nonattainment area has been achieved and a
demonstration that the adopted control strategy has been fully
implemented. The 2019 QM Report also contains a demonstration of how
the emission reductions achieved to date compare to those required or
scheduled to meet RFP. The State and District conclude in the 2019 QM
Report that the emission reductions needed to demonstrate RFP have been
achieved and that the 2019 quantitative milestone has been met in the
Portola nonattainment area. On November 3, 2020, the EPA determined
that the 2019 QM Report was adequate.\52\
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\50\ 40 CFR 51.1013(a)(1); see also 83 FR 64774, 64790 (December
18, 2018).
\51\ Letter dated May 5, 2019, from Richard W. Corey, Executive
Officer, CARB, to Mike Stoker, Regional Administrator, EPA Region
IX, with enclosure.
\52\ Letter dated November 3, 2020, from Deborah Jordan, Acting
Regional Administrator, EPA Region IX, to Richard W. Corey,
Executive Officer, CARB, regarding 2019 Quantitative Milestone
Report for the 2012 annual PM2.5 National Ambient Air
Quality Standards.
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Because the State and District have demonstrated that the Portola
nonattainment area has met its 2019 quantitative milestones, RFP
contingency measures for the 2019 milestone year are no longer needed.
The sole purpose of RFP contingency measures is to provide continued
progress if an area fails to meet its RFP or quantitative milestone
requirements. Failure to meet RFP or quantitative milestone
requirements for 2019 would have required California to implement an
RFP contingency measure.\53\ In this case, however, the 2019 QM Report
demonstrates that actual emission levels in 2019 were consistent with
the approved 2019 RFP milestone year targets for direct
PM2.5 in the Portola PM2.5 Plan and that the
adopted control strategy is being implemented as scheduled.
Accordingly, RFP contingency measures for 2019 no longer have meaning
or purpose, and the EPA proposes to find that the requirement for them
is now moot as applied to the Portola nonattainment area.
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\53\ Under section 189(c)(3) of the CAA, if a state fails to
submit a required quantitative milestone report or the EPA
determines that the area has not met an applicable milestone, the
EPA must require the state, within nine months after such failure or
determination, to submit a plan revision that assures that the state
will achieve the next milestone (or attain the NAAQS, if there is no
next milestone) by the applicable date.
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With respect to the 2022 RFP milestone year, the contingency
measure in section 10.050.070 of City Ordinance No. 359 would take
effect if the EPA determines that the area has failed to meet a
requirement concerning RFP or quantitative milestones \54\ but would
not, by itself, be sufficient to achieve emission reductions equivalent
to one year's worth of RFP. The CARB Staff Report, however, states that
continued implementation of the existing wood-stove changeout program
together with several new measures and programs will result in surplus
PM2.5 emission reductions in the 2022 RFP milestone year and
in 2023.\55\ These measures and programs include a chimney sweep
voucher program, additional weatherization of homes, wood sheds for
households in the nonattainment area to keep firewood dry, and the
provision of a reliable and affordable supply of seasoned wood.\56\ The
CARB Staff Report states that funds awarded to the District from the
EPA's 2018 and 2019/2020 Targeted Airshed Grants will ensure continuous
education, outreach, and implementation and enforcement of these and
additional programs designed to further reduce PM2.5
emissions in the Portola nonattainment area after 2022.\57\ In light of
these ongoing and additional reductions in emissions of direct
PM2.5, the emission reductions from the District's
contingency measure (i.e., section 10.050.070 of City Ordinance No.
359) would be sufficient to meet the 2022 RFP contingency measure
requirement for the 2012 PM2.5 NAAQS, even though the
measure would achieve emission reductions less than one year's worth of
RFP for the area.
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\54\ City Ordinance No. 359, section 10.050.070.
\55\ CARB Staff Report, 14-15.
\56\ Id.
\57\ Id.
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We note that if the EPA determines that the Portola nonattainment
area has failed to attain the 2012 PM2.5 NAAQS by the
December 31, 2021 attainment date and thereby triggers the contingency
measure provision in section 10.050.070 of City Ordinance No. 359, the
State would be required to a submit a replacement contingency measure
to address the 2022 milestone date. However, timely submittal of a
quantitative milestone report for the 2022 milestone date would, if
found adequate by the EPA, moot the contingency measure requirement for
this milestone date.
4. Additional Revisions in City Ordinance No. 359
The new prohibition on the open burning of yard waste, related
definitions, and limited exemptions in City Ordinance No. 359 are clear
and the monitoring, recordkeeping, reporting and other provisions in
the ordinance ensure that affected sources and regulators can
consistently evaluate and determine compliance with these additional
provisions. These revisions are therefore consistent with CAA
requirements regarding enforceability.
Additionally, these new provisions in City Ordinance No. 359 comply
with CAA section 110(l) because they strengthen the SIP by adding new
requirements for the control of PM2.5 emissions from open
burning activities in the Portola nonattainment area and would not
interfere with any applicable requirement concerning attainment and RFP
or any other applicable requirement of the CAA. Section 193 does not
apply to this action because City Ordinance No. 359 does not modify a
control requirement in effect before November 15, 1990.\58\ We are not
evaluating the
[[Page 78057]]
stringency of these provisions for compliance with specific CAA control
standards at this time and will do so as part of our action on any
subsequently submitted attainment plan for the Portola nonattainment
area, as appropriate.\59\
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\58\ City Ordinance No. 359 modifies a control requirement that
the EPA approved into the SIP on March 5, 2018 (83 FR 9213)
(approving City Ordinance No. 344 into SIP). Upon the EPA's final
approval of City Ordinance No. 359 into the SIP, this ordinance
(excluding paragraph 15.10.060(B) and sections 15.10.100 and
15.10.110) will entirely replace City Ordinance No. 344. NSAQMD,
Resolution 2020-09 (October 26, 2020), 4 (para. 9).
\59\ The EPA previously determined that the Portola
PM2.5 Plan contains all RACM necessary for expeditious
attainment of the 2012 PM2.5 NAAQS by the December 31,
2021 Moderate area attainment date. 84 FR 11208 (March 25, 2019). If
the EPA determines that the Portola nonattainment area has failed to
attain the NAAQS by this date, the area will be reclassified as a
Serious area, and the State will be required to submit a revised
attainment plan for the area that provides for the implementation of
best available control measures (BACM) within four years after such
reclassification. CAA sections 188(b)(2) and 189(b)(1)(B).
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The District has excluded from the SIP submission paragraph
15.10.060(B) and sections 15.10.100 and 15.10.110 of City Ordinance No.
359 regarding penalties and violations.\60\ These paragraphs are not
necessary for SIP approval and could lead to confusion with respect to
similar Federal requirements set forth in CAA section 113.
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\60\ NSAQMD, Resolution 2020-09 (October 26, 2020), 3
(paragraphs. 6, 7).
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VI. Proposed Actions and Request for Public Comment
The EPA is proposing to approve the contingency measure element of
the Portola PM2.5 Plan, as revised and supplemented by the
Proposed PM2.5 Plan Revision, as meeting the contingency
measure requirements of CAA section 172(c)(9) and 40 CFR 51.1014 for
the 2012 annual PM2.5 NAAQS in the Portola nonattainment
area. Our proposed approval is contingent upon the State's submission
of the final, adopted PM2.5 Plan Revision in time for the
EPA to finalize this action by March 1, 2021, our court-ordered
deadline for taking final action on the contingency measure element of
the Plan. The EPA also proposes to find that the requirement for RFP
contingency measures for the 2019 milestone date is moot as applied to
the Portola nonattainment area, because the State's and District's 2019
QM Report adequately demonstrates that the emission reductions needed
to demonstrate RFP have been achieved and that the 2019 quantitative
milestone has been met in the Portola nonattainment area.
The EPA is proposing, in the alternative, to disapprove the
contingency measure element of the Portola PM2.5 Plan, as
submitted February 28, 2017 (section VI.B of the Plan), if the State
fails to adopt and submit the PM2.5 Plan Revision in time
for the EPA to take final action by March 1, 2021, because the
contingency measure element of the Plan as submitted February 28, 2017,
fails to satisfy the contingency measure requirements in CAA section
172(c)(9) and 40 CFR 51.1014.
If we finalize the proposed disapproval, the offset sanction in CAA
section 179(b)(2) would apply in the Portola PM2.5
nonattainment area 18 months after the effective date of the final
disapproval. The highway funding sanctions in CAA section 179(b)(1)
would apply in the area six months after the offset sanction is
imposed. These sanctions would apply unless we take final action to
approve SIP revisions that meet the relevant CAA requirements prior to
the time the sanctions would take effect. In addition to the sanctions,
CAA section 110(c) provides that the EPA must promulgate a Federal
implementation plan addressing the deficiency that is the basis for a
disapproval, two years after the effective date of the disapproval,
unless we have approved a revised SIP submission correcting the
deficiency before that date.
Finally, the EPA is proposing to approve the new provisions in City
Ordinance No. 359 concerning open burning of yard wastes and other
debris, including related definitions and exemptions. These provisions
strengthen the SIP and are consistent with CAA requirements regarding
enforceability and SIP provisions. At the State's and District's
request, we are not acting on paragraph 15.10.060(B), section
15.10.100, or section 15.10.110 of City Ordinance No. 359.
We will accept comments from the public on these proposals for the
next 30 days. The deadline and instructions for submission of comments
are provided in the DATES and ADDRESSES sections at the beginning of
this preamble.
VII. Incorporation by Reference
In this rule, the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference the CARB measure described in Section II of this preamble
(City Ordinance No. 359). The EPA has made, and will continue to make,
these materials available through www.regulations.gov and at the EPA
Region IX Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
VIII. 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 proposed action merely proposes to approve, or
conditionally approve, state plans as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this proposed 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
[[Page 78058]]
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
proposed 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).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Ammonia,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Particulate matter, Reporting and recordkeeping requirements,
Sulfur dioxide, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 17, 2020.
John Busterud,
Regional Administrator, Region IX.
[FR Doc. 2020-26648 Filed 12-2-20; 8:45 am]
BILLING CODE 6560-50-P
