Clean Air Plans; 2008 8-Hour Ozone Nonattainment Area Requirements; Western Nevada County, California, 27524-27532 [2021-10510]
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Federal Register / Vol. 86, No. 97 / Friday, May 21, 2021 / Rules and Regulations
The Coast
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[FR Doc. 2021–10737 Filed 5–20–21; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2019–0440; FRL–10022–
39–Region 9]
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Clean Air Plans; 2008 8-Hour Ozone
Nonattainment Area Requirements;
Western Nevada County, California
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action to
SUMMARY:
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approve, or conditionally approve, all or
portions of a state implementation plan
(SIP) revision submitted by the State of
California to meet Clean Air Act (CAA
or ‘‘Act’’) requirements for the 2008 8hour ozone national ambient air quality
standards (NAAQS or ‘‘standards’’) in
the Nevada County (Western part),
California ozone nonattainment area
(‘‘Western Nevada County’’). The SIP
revision is the ‘‘Ozone Attainment Plan,
Western Nevada County, State
Implementation Plan for the 2008
Primary Federal 8-Hour Ozone Standard
of .075 ppm’’ (‘‘2018 Western Nevada
County Ozone Plan’’ or ‘‘Plan’’). The
2018 Western Nevada County Ozone
Plan addresses the ‘‘Serious’’
nonattainment area requirements for the
2008 ozone NAAQS, including the
requirements for emissions inventories,
attainment demonstration, reasonable
further progress, reasonably available
control measures, and contingency
measures, among others; and establishes
motor vehicle emissions budgets. The
EPA is approving the 2018 Western
Nevada County Ozone Plan as meeting
all the applicable ozone nonattainment
area requirements except for the
contingency measure requirement,
which the EPA is conditionally
approving.
DATES:
This rule is effective on June 21,
2021.
The EPA has established a
docket for this action under Docket ID
No. EPA–R09–OAR–2019–0440. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
www.regulations.gov, or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional availability information. 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: T.
Khoi Nguyen, Air Planning Office (AIR–
2), EPA Region IX, 75 Hawthorne Street,
San Francisco, CA 94105, (415) 947–
4120, or by email at nguyen.thien@
epa.gov.
ADDRESSES:
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SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary of the Proposed Action
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews
I. Summary of the Proposed Action
On January 12, 2021, the EPA
proposed to approve, under CAA
section 110(k)(3), and to conditionally
approve, under CAA section 110(k)(4), a
submittal from the California Air
Resources Board (CARB) and the
Northern Sierra Air Quality
Management District (NSAQMD or
‘‘District’’) as a revision to the California
SIP for the Western Nevada County
nonattainment area.1 The SIP revision is
the 2018 Western Nevada County Ozone
Plan.2 We refer to our January 12, 2021,
proposed rule as the ‘‘proposed rule.’’
In our proposed rule, we provided
background information on the ozone
standards,3 area designations, and
related SIP revision requirements under
the CAA and the EPA’s implementing
regulations for the 2008 ozone
standards, referred to as the 2008 Ozone
SIP Requirements Rule (‘‘2008 Ozone
SRR’’).4 To summarize, the Western
Nevada County ozone nonattainment
area is classified as Serious for the 2008
ozone NAAQS, and the 2018 Western
Nevada County Ozone Plan was
developed to address the statutory and
regulatory requirements for revisions to
the SIP for the Western Nevada County
Serious ozone nonattainment area.
Our proposed conditional approval of
the contingency measures element of
the 2018 Western Nevada County Ozone
Plan relied on specific commitments: (1)
From the District to adopt a rule that
1 86 FR 2318 (January 12, 2021). The Western
Nevada County nonattainment area for the 2008
ozone NAAQS consists of the portion of Nevada
County west of the ridge of the Sierra Nevada
mountains. For a precise definition of the
boundaries of the Western Nevada County 2008
ozone nonattainment area, see 40 CFR 81.305.
2 Letter dated December 2, 2018, from Richard
Corey, Executive Officer, CARB, to Mike Stoker,
Regional Administrator, U.S. Environmental
Protection Agency Region IX. The 2018 Western
Nevada County Ozone Plan was submitted
electronically through the EPA’s State Planning
Electronic Collaboration System on December 7,
2018, making this date the effective date of
submittal. The Plan was deemed complete by
operation of law six months after submittal, on June
7, 2019. Our proposed rule incorrectly identified
the December 2, 2018 letter date as the submittal
date, and June 2, 2019 as the date that the Plan was
deemed complete by operation of law.
3 The 1-hour ozone NAAQS is 0.12 parts per
million (ppm) (one-hour average), the 1997 ozone
NAAQS is 0.08 ppm (eight-hour average), and the
2008 ozone NAAQS is 0.075 ppm (eight-hour
average).
4 2008 Ozone SRR, 80 FR 12264, 12283 (March 6,
2015).
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would provide for additional emissions
reductions in the event that Western
Nevada County fails to meet a
reasonable further progress (RFP)
milestone or fails to attain the 2008
ozone NAAQS by the applicable
attainment date, and (2) from CARB to
submit the adopted District rule to the
EPA as a SIP revision within 12 months
of our final action.5 For more
information on the SIP revision
submittals and related commitments,
please see our proposed rule.
In our proposed rule, we reviewed the
various SIP elements contained in the
2018 Western Nevada County Ozone
Plan, evaluated them for compliance
with statutory and regulatory
requirements, and concluded that they
meet all applicable requirements, except
for the contingency measure
requirement, for which the EPA
proposed conditional approval. More
specifically, in our proposed rule, we
based our proposed actions on the
following determinations:
• CARB and the District met all
applicable procedural requirements for
public notice and hearing prior to the
adoption and submittal of the 2018
Western Nevada County Ozone Plan; 6
• The 2011 base year emissions
inventory from the 2018 Western
Nevada County Ozone Plan is
comprehensive, accurate, and current,
and therefore meets the requirements of
CAA sections 172(c)(3) and 182(a)(1)
and 40 CFR 51.1115. Additionally, the
future year baseline projections reflect
appropriate calculation methods and the
latest planning assumptions and are
properly supported by the SIP-approved
stationary and mobile source
measures; 7
• The process followed by the District
to identify reasonably available control
measures (RACM) is generally
consistent with the EPA’s
recommendations; the District’s rules
provide for the implementation of
RACM for stationary and area sources of
oxides of nitrogen (NOX) and volatile
organic compounds (VOC); 8 CARB and
5 Letter dated November 16, 2020, from Richard
Corey, Executive Officer, CARB, to John Busterud,
Regional Administrator, EPA Region IX. CARB’s
letter also forwarded the District’s commitment
letter to the EPA. The District’s letter is dated
October 26, 2020, from Gretchen Bennitt, NSAQMD
Air Pollution Control Officer, to Richard Corey,
CARB Executive Officer.
6 86 FR 2318, 2321.
7 Id. at 2321–2322 and 2326–2330.
8 Ground-level ozone pollution is formed from the
reaction of VOC and NOX in the presence of
sunlight. CARB refers to reactive organic gases
(ROG) in some of its ozone-related submittals. The
CAA and the EPA’s regulations refer to VOC, rather
than ROG, but both terms cover essentially the same
set of gases. In this final rule, we use the term VOC
to refer to this set of gases.
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the Nevada County Transportation
Commission (NCTC) provide for the
implementation of RACM for mobile
sources of NOX and VOC; there are no
additional RACM that would advance
attainment of the 2008 ozone NAAQS in
Western Nevada County by at least one
year; and therefore, the 2018 Western
Nevada County Ozone Plan provides for
the implementation of all RACM as
required by CAA section 172(c)(1) and
40 CFR 51.1112(c); 9
• The photochemical modeling in the
2018 Western Nevada County Ozone
Plan shows that existing CARB and
District control measures are sufficient
to attain the 2008 ozone NAAQS by the
applicable attainment date in Western
Nevada County; given the
documentation in the 2018 Western
Nevada County Ozone Plan of modeling
procedures and good model
performance, the modeling is adequate
to support the attainment
demonstration; and therefore the 2018
Western Nevada County Ozone Plan
meets the attainment demonstration
requirements of CAA section
182(c)(2)(A) and 40 CFR 51.1108; 10
• The 15 percent rate-of-progress
(ROP) demonstration element in the
2018 Western Nevada County Ozone
Plan meets the requirements of CAA
section 182(b)(1); 11
• The RFP demonstration in the 2018
Western Nevada County Ozone Plan
provides for emissions reductions of
VOC or NOX of at least 3 percent per
year on average for each three-year
period, beginning 6 years after the
baseline year until the attainment date,
and thereby meets the requirements of
CAA sections 172(c)(2) and 182(c)(2)(B)
and 40 CFR 51.1110(a)(2)(ii); 12
• The motor vehicle emissions
budgets in the 2018 Western Nevada
County Ozone Plan are consistent with
the RFP demonstration, are clearly
identified and precisely quantified, and
meet all other applicable statutory and
regulatory requirements in 40 CFR
93.118(e), including the adequacy
criteria in 40 CFR 93.118(e)(4) and (5); 13
and
• Through previous EPA approvals of
the 1993 Photochemical Assessment
Monitoring Station SIP revision, the
‘‘Annual Network Plan Covering
Monitoring Operations in 25 California
Air Districts, July 2020’’ with respect to
the Western Nevada County element,14
9 86
FR 2318, 2323–2326.
at 2326–2328.
11 Id. at 2330.
12 Id. at 2330–2332.
13 Id. at 2334–2335.
14 Letter dated November 5, 2020, from Gwen
Yoshimura, Manager, Air Quality Analysis Office,
10 Id.
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27525
and CARB’s enhanced monitoring plan
submittal for Western Nevada County,15
the enhanced monitoring requirements
under CAA section 182(c)(1) and 40
CFR 51.1102 for Western Nevada
County have been met.16
In light of the decision from the Ninth
Circuit Court of Appeals in Bahr v. EPA
(‘‘Bahr’’),17 the District 18 and CARB 19
committed to supplement the
contingency measure element through
submission, as a SIP revision (within
one year of our final conditional
approval action), of a revised District
rule or rules that would add new limits
or other requirements if an RFP
milestone is not met or if the area fails
to attain the 2008 ozone NAAQS by the
applicable attainment date.20 The EPA
proposed to conditionally approve the
contingency measure element as
meeting the requirements of CAA
sections 172(c)(9) and 182(c)(9).
For the emissions statement element,
the proposed rule states that District
Rule 513, ‘‘Emissions Statements and
Recordkeeping,’’ approved as a revision
to the California SIP on June 21, 2017,21
fulfills the relevant emissions statement
requirements of CAA section
182(a)(3)(B)(i).22 Accordingly, the
emissions statement element was
previously satisfied through the EPA’s
approval of Rule 513 on June 21, 2017.
However, the EPA’s December 11, 2017
finding of failure to submit action
incorrectly identified the emissions
statement element for Western Nevada
County as not having been submitted.23
Additionally, we note that language in
EPA Region IX, to Ravi Ramalingam, Chief,
Consumer Products and Air Quality Assessment
Branch, Air Quality Planning and Science Division,
CARB.
15 Letter dated November 9, 2020, from Dr.
Michael T. Benjamin, Chief, Air Quality Planning
and Science Division, CARB, to Meredith Kurpius,
Assistant Director, EPA Region IX, enclosing the
‘‘2020 Monitoring Network Assessment (October
2020).’’ The assessment includes a five-year
network assessment and an updated enhanced
monitoring plan, as required by 40 CFR 58,
Appendix D, Section 5(a).
16 86 FR 2318, 2336.
17 Bahr v. EPA, 836 F.3d 1218 (9th Cir. 2016)
(rejecting early-implementation of contingency
measures and concluding that the contingency
measure requirement of CAA section 172(c)(9) can
only be satisfied by a measure that takes effect at
the time the area fails to make RFP or attain by the
applicable attainment date, not before).
18 Letter dated October 26, 2020, from Gretchen
Bennitt, NSAQMD Air Pollution Control Officer, to
Richard Corey, CARB Executive Officer.
19 Letter dated November 16, 2020, from Richard
Corey, Executive Officer, CARB, to John Busterud,
Regional Administrator, EPA Region IX. CARB’s
letter also forwarded the District’s commitment
letter to the EPA.
20 86 FR 2318, 2332–2333.
21 82 FR 28240 (June 21, 2017).
22 86 FR 2318, 2323.
23 82 FR 58118 (December 11, 2017).
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subpart 1 RFP requirements for
attainment plans under section 172(c)(2)
(the commenter refers to these as
‘‘attainment RFP’’ requirements) from
the subpart 2 RFP requirements
applicable to ‘‘Moderate’’ and above and
also Serious and above ozone
nonattainment areas under CAA
182(b)(1)(A)(i) and 182(c)(2)(B)
respectively (the commenter refers to
these as ‘‘VOC RFP’’ requirements).
Similarly, CBD distinguishes the
subpart 1 contingency measure
requirements at CAA 172(c)(9) (which,
according to the commenter, are
applicable upon a failure to make
‘‘attainment RFP’’ or to attain a NAAQS
by the applicable attainment date) from
the subpart 2 contingency measure
requirements at CAA 182(c)(9) (which,
according to the commenter, are
applicable upon a failure to meet any
applicable ‘‘VOC RFP’’ milestone). CBD
argues that under CAA 182(c)(9), the
subpart 2 VOC RFP contingency
measure requirements are ‘‘in addition
to’’ the subpart 1 attainment RFP
contingency measures, and that this
language compels the EPA to require
separate, distinct VOC RFP contingency
measures, including not only the
triggers for these measures, but the
substantive contingency measures
themselves. CBD asserts that the subpart
1 RFP and contingency measure
requirements are distinct in purpose
from the subpart 2 RFP and contingency
measure requirements, and that CAA
172(c)(9) attainment RFP contingency
measures are intended to make progress
II. Public Comments and EPA
towards attainment while a state
Responses
assesses the additional reductions
The public comment period on the
needed to timely attain the ozone
proposed rule opened on January 12,
standards, whereas CAA 182(c)(9) VOC
2021, the date of its publication in the
RFP contingency measures are intended
Federal Register, and closed on
to make progress in VOC emission
February 11, 2021. During this period,
reductions if the state elects to trigger
the EPA received one comment letter
them instead of reclassification or
submitted by Air Law for All, Ltd. on
adoption of an economic incentive
behalf of the Center for Biological
program.
Diversity and the Center for
Additionally, CBD asserts that the
Environmental Health (collectively
EPA entirely fails to discuss CAA
referred to herein as ‘‘CBD’’). We
182(c)(9)’s clear language, the structural
address CBD’s comments in the
distinction between what the
following paragraphs of this final rule.
commenter asserts are separate
Comment #1: CBD asserts that the
attainment RFP and VOC RFP
EPA has conflated the requirements for
requirements, and the corresponding
contingency measures under subparts 1
and 2 of part D of title I of the CAA. CBD need to have distinct attainment RFP
contingency measures and VOC RFP
distinguishes the generally applicable
contingency measures. Given this
distinction, CBD says, the EPA cannot
24 82 FR 28240, 28241 (finding that Rule 513
approve the single submitted
fulfills relevant emission statement requirements of
CAA 182(a)(3)(B)(i)).
contingency measure as meeting both
25 See 86 FR 2318, 2335.
attainment RFP and VOC RFP
26 See id. at 2320.
contingency measure requirements. CBD
27 See Demographic Information About the
concludes that the EPA must propose
County, County of Nevada, California, available at
for comment its theory for how it can
https://www.mynevadacounty.com/378/
Demographic-Information-About-the-County.
reconcile these distinct RFP
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the proposed rule stating that the EPA
was ‘‘propos[ing] to find’’ that Rule 513
meets the emissions statement
requirements could be read to indicate
that the EPA was proposing to address
this element in the proposed rule.
Therefore, we now clarify that the EPA’s
June 21, 2017 approval of Rule 513
satisfied the emissions statement
element for Western Nevada County
prior to the finding of failure to submit
action and prior to the proposed rule.24
For the clean fuels fleet program
element, the proposed rule states that
through the 1994 ‘‘Opt-Out Program’’
SIP revision, the clean fuels fleet
program requirements in CAA sections
182(c)(4) and 246 and 40 CFR 51.1102
for Western Nevada County have been
met with respect to the 2008 ozone
NAAQS.25 However, CAA section
246(a)(3) applies only to certain ozone
nonattainment areas with a 1980
population of 250,000 or more. As
indicated in our proposed rule, Western
Nevada County has a population of
83,000,26 and the area’s population was
below 250,000 in 1980.27 Therefore, we
now clarify that Western Nevada County
is not subject to the clean fuels fleet
program element for the 2008 ozone
NAAQS.
Please see our proposed rule for more
information concerning the background
for this action and for a more detailed
discussion of the rationale for approval
or conditional approval of the abovelisted elements of the 2018 Western
Nevada County Ozone Plan.
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requirements in order to approve the
submission as meeting the contingency
measure requirement for both.
Response to Comment #1: As the
commenter notes, Serious ozone
nonattainment areas are subject to both
the general requirements for
nonattainment plans in subpart 1, and
the specific requirements for ozone
areas in subpart 2, including the
requirements related to RFP and
contingency measures. This is
consistent with the structure of the CAA
as modified under the 1990
amendments, which introduced
additional subparts to part D of title I of
the CAA to address requirements for
specific NAAQS pollutants, including
ozone (subpart 2), carbon monoxide
(CO) (subpart 3), particulate matter
(subpart 4), and sulfur oxides, nitrogen
dioxide, and lead (subpart 5).
These subparts apply tailored
requirements for these pollutants,
including those based on an area’s
designation and classification, in
addition to and often in place of the
generally applicable provisions retained
in subpart 1. While CAA 172(c)(2) of
subpart 1 states only that nonattainment
plans ‘‘shall require reasonable further
progress,’’ CAA 182(b)(1) and
182(c)(2)(B) of subpart 2 provide
specific percent reduction targets for
ozone nonattainment areas to meet the
RFP requirement. Put another way,
subpart 2 further defines RFP for ozone
nonattainment areas by specifying the
incremental amount of emissions
reduction required by set dates for those
areas.28 In the context of section
182(c)(2)(B), the percentage reduction
target constitutes an RFP ‘‘milestone’’ as
described in section 182(g), by which
the EPA determines a Serious ozone
nonattainment area’s compliance with
the RFP requirements. For Serious and
above ozone nonattainment areas, CAA
section 182(c)(2)(B) defines RFP by
setting specific annual percent
reductions and allows averaging over a
3-year period, and 182(g) establishes an
RFP tracking mechanism called a
‘‘milestone’’ such that failure to meet a
milestone equates to failure to meet the
RFP requirement; they are one and the
28 CAA 171(1) defines reasonable further progress
as ‘‘such annual incremental reductions in
emissions of the relevant air pollutant as are
required by this part or may reasonably be required
by the Administrator for the purpose of ensuring
attainment of the applicable national ambient air
quality standard by the applicable date.’’ As the
commenter notes, the words ‘‘this part’’ in the
statutory definition of RFP refer to part D of title
I of the CAA, which contains both the general
requirements in subpart 1 and the pollutant-specific
requirements in subparts 2–5 (including the ozonespecific RFP requirements in CAA 182(b)(1) and
182(c)(2)(B) for Serious areas).
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same.29 Similarly, while CAA 172(c)(9)
establishes the general requirement for
nonattainment plans to provide
contingency measures that are triggered
in the event that the area fails to make
RFP or to attain a NAAQS by the
applicable attainment date, CAA
182(c)(9) specifies that a Serious area
nonattainment plan for an ozone
NAAQS must provide for the
implementation of contingency
measures to address a failure to meet a
milestone, which, per the terms of CAA
182(g), is the same as failing to make
RFP. Likewise, for CO nonattainment
areas, section 187(a)(3) of subpart 3
addresses contingency measure
provisions based on consistency
between previously projected and actual
or subsequently projected VMT levels,
as well as failure to attain by the
required deadline. These pollutantspecific contingency measure provisions
are described in the EPA’s General
Preamble for the Implementation of
Title I of the Clean Air Act Amendments
of 1990 (‘‘General Preamble’’), which
explains that the additional contingency
measure provisions in subparts 2 and 3
are similar to the general contingency
measure requirements at CAA 172(c)(9),
except that the focus is on the planning
requirements applicable to ozone and
CO.30
As CBD notes, CAA 182(c)(9) specifies
that plans for ozone nonattainment
areas classified as Serious or above must
provide for the implementation of
contingency measures for failure to meet
an ozone RFP milestone, ‘‘[i]n addition
to the contingency provisions’’ required
under CAA 172(c)(9). The commenter
argues that this language requires states
to submit contingency measures
specifically allocated to address the
section 182(c)(9) RFP milestones, in
addition to other separate contingency
measures to address the general RFP
and attainment requirements in CAA
172(c)(9). This interpretation is based
upon the commenter’s related
interpretation of the subpart 2 RFP
milestones as distinct requirements
separate from the general RFP
requirements in subpart 1, reflected in
the commenter’s distinction of
‘‘attainment RFP’’ and ‘‘VOC RFP.’’
These interpretations run counter to
the EPA’s longstanding approach to the
RFP and contingency measure
provisions for the ozone NAAQS, and
we disagree that the statutory text
29 See CAA 182(g)(1) (explaining that an
‘‘applicable milestone’’ is the emissions reduction
required to be achieved by the end of an interval
pursuant to the RFP provisions at CAA 182(b)(1)
and the corresponding RFP requirements of
182(c)(2)(B) and (C) for Serious areas).
30 57 FR 13498, 13511 (April 16, 1992).
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compels the commenter’s suggested
approach. Contrary to the commenter’s
suggestion, an area that is subject to the
subpart 2 RFP milestones is not subject
to any separate milestones or
requirements for demonstrating ozone
RFP under the general RFP provisions
in subpart 1. This point is specifically
addressed in the General Preamble,
which specifies that a state that meets
the specific subpart 2 milestones ‘‘will
also satisfy the general RFP
requirements of section 172(c)(2) for the
time period discussed.’’ 31 This
approach is retained in the
implementation rules for the 1997 and
2008 ozone NAAQS, which specify RFP
milestones for ozone nonattainment
areas that incorporate both the general
RFP requirements in subpart 1 as well
as the ozone-specific RFP requirements
in subpart 2, depending on the area’s
classification and whether the area
already has an approved 15 percent rateof-progress plan for a prior ozone
NAAQS.32
We disagree with the commenter that
the subpart 1 and subpart 2 RFP
requirements have distinct purposes
that require the EPA to establish
separate milestones or requirements for
each. Under either subpart, the purpose
of RFP is to ensure attainment by the
applicable attainment date.33 As
described above, the RFP requirements
in CAA 182(b)(1) and 182(c)(2)(B) define
specific RFP milestones applicable to,
respectively, Moderate and above and
Serious and above ozone nonattainment
areas, for purposes of demonstrating
compliance with the general RFP
requirement at CAA 172(c)(2).
Because there are no separate
milestones or requirements for
demonstrating ozone RFP under the
general RFP provisions in subpart 1, and
because the purposes of RFP are the
same under each subpart, we similarly
disagree with the commenter that a state
would be required to submit separate
contingency measures to address the
RFP and milestone requirements of
subparts 1 and 2. The commenter asserts
that the language in CAA 182(c)(9)
stating the requirements for contingency
31 General Preamble, 57 FR 13498, 13510 (for
CAA 182(b)(1) milestones); id. at 13518 (for
182(c)(2)(B) milestones).
32 40 CFR 51.1110; see also 70 FR 71612, 71615
(November 29, 2005); 80 FR 12264, 12271 (March
6, 2015).
33 See CAA 171(1); see also 70 FR 71612, 71648
(November 29, 2005) (‘‘[W]hether dealing with the
general RFP requirement of section 172(c)(2), or the
more specific RFP requirements of subpart 2 for
classified ozone nonattainment areas (i.e., the 15
percent plan requirement of section 182(b)(1) and
the 3 percent per year requirement of section
182(c)(2)), the purpose of RFP is to ensure
attainment by the applicable attainment date.’’).
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measures in Serious and above ozone
nonattainment areas are ‘‘in addition to
the contingency provisions required
under section [172(c)(9)]’’ refers to both
the triggers for contingency measures
and the contingency measures
themselves. In other words, the
commenter asserts that the EPA must
require the state to submit contingency
measures to address RFP failures under
subpart 1 and additional contingency
measures to address such failures under
subpart 2.
As explained above, CAA 182(c)(9)
requires state nonattainment plans for
Serious and above ozone nonattainment
areas to provide for the implementation
of contingency measures to be
undertaken if an area fails to meet an
applicable milestone, i.e., RFP. Because
a ‘‘milestone,’’ as the term is used in
CAA section 182(g), is applicable only
to areas classified as Serious and above,
CAA 182(c)(9) represents an additional
requirement that states must address in
an ozone nonattainment plan
submission for these areas. Section
182(c)(9) requires that certain state
submissions must provide for the
implementation of contingency
measures in the event of a failure to
meet a milestone; it does not require the
state to submit separate and distinct
contingency measures allocated
exclusively for a failure to meet a
milestone. Serious and above areas
remain subject to the general
contingency measure requirement
described at CAA 172(c)(9), including
the requirement for contingency
measures to take effect in the event of
a failure to attain the NAAQS by the
applicable attainment date (which is not
provided for in CAA 182(c)(9)), as well
as the requirement for contingency
measures to address a failure to make
RFP (i.e., under CAA 182(c)(9), a failure
to meet an applicable milestone under
CAA 182(g)). CAA 182(c)(9) therefore
applies a more specific requirement ‘‘in
addition to’’ the general requirements at
CAA 172(c)(9), by establishing failure to
meet a CAA 182(g) milestone as a
specific trigger for contingency
measures in Serious and above ozone
nonattainment areas.34
This is consistent with the EPA’s
longstanding interpretation of the
contingency measure requirements, as
set out in the General Preamble and the
34 As explained above and in the proposed rule,
the District and CARB have met this requirement
by committing to supplement the contingency
measures element by submitting, within one year of
our final conditional approval action, a SIP revision
that establishes contingency measures that will be
triggered if the area fails to meet an RFP milestone
for the 2008 ozone NAAQS or fails to reach
attainment by the applicable attainment date. See
86 FR 2318, 2320.
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EPA’s implementation rules for the 1997
and 2008 ozone NAAQS. For all of the
foregoing reasons, this interpretation is
reasonable and appropriate.
We also disagree with the
commenter’s suggestion that the EPA
would be required to re-propose and
take comment on our rationale for
reconciling the subpart 1 and subpart 2
contingency measures requirements. As
described above, our approach in this
action reflects the EPA’s longstanding
interpretation of the statutory
requirements as set out in the General
Preamble and in the ozone NAAQS
implementation rules, including the
implementation rule for the 2008 ozone
NAAQS, for which the EPA solicited
and received public comment on our
proposed approaches to RFP,
contingency measures, and other topics.
Comment #2: CBD notes that the
milestone provisions at CAA 182(g)
provide an enforceable tracking and
triggering mechanism for subpart 2
contingency measures, and asserts that
because the EPA has conflated
attainment RFP contingency measures
and VOC RFP contingency measures, it
has not created any separate,
enforceable mechanism for tracking and
triggering the subpart 1 contingency
measures. CBD asserts that the EPA
cannot reasonably approve contingency
measures that cannot be triggered, and
argues that the EPA’s failure to provide
an enforceable tracking and triggering
mechanism for the subpart 1
contingency measures is an
impermissible interpretation of CAA
172(c)(9) because it is unmoored from
the purposes and concerns of that part.
CBD asserts that without an enforceable
commitment by the state to track and
report on annual emission reductions,
the EPA’s discretionary authorities,
such as a SIP call under CAA 110(k)(5),
are inadequate to address this failure,
and that those authorities do not allow
the EPA to trigger the subpart 1
contingency measures by determining
that attainment RFP has not been met.
Response to Comment #2: Under CAA
172(c)(9), attainment contingency
measures are triggered by the EPA’s
finding under CAA 181(b)(2) that an
area has failed to attain a NAAQS by the
applicable attainment date. This finding
is based on the design value for the area
as of the attainment date, which
represents ambient ozone concentration
data collected for the area. A finding of
failure to attain by the attainment date
triggers contingency measures to be
implemented in the area, without
further action by the state or the EPA.35
Therefore, the enforceable tracking and
35 See
General Preamble, 57 FR 13498, 13512.
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triggering mechanism for attainment
contingency measures are the EPA’s
determinations under CAA 181(b)(2)
regarding whether the ozone
nonattainment areas are in attainment
by their applicable attainment date.
Further, contingency measures are also
triggered by an area’s failure to reach an
RFP milestone, as described by the
commenter.
As explained above, the RFP
requirements for the 2008 ozone
NAAQS are described in the 2008 ozone
SRR 36 and codified at 40 CFR 51.1110.
These requirements incorporate the
subpart 1 and subpart 2 RFP
requirements as they apply to
nonattainment areas for the 2008 ozone
NAAQS, depending on classification
and whether the area has an approved
15 percent rate-of-progress plan for the
1-hour or 1997 ozone NAAQS. The
percentage reductions described therein
represent the applicable subpart 1 and
subpart 2 obligations for an area to
demonstrate RFP for the 2008 ozone
NAAQS,37 and a failure to meet these
obligations will trigger RFP contingency
measures as described above and in the
proposed rule. Accordingly, we disagree
with the commenter that there is not an
enforceable mechanism for tracking and
triggering the RFP contingency
measures under subpart 1.
Comment #3: CBD recounts the
backgrounds and outcomes of the Bahr
decision and the recent Sierra Club
decision from the D.C. Circuit Court of
Appeals,38 and discusses policy
implications of those decisions. CBD
also negatively critiques the LEAN
decision from the Fifth Circuit Court of
Appeals,39 which the commenter asserts
was in error.
Response to Comment #3: Our
proposed rule explains that we have
reviewed the contingency measures
element of the 2018 Western Nevada
County Ozone Plan in light of the Bahr
decision which is applicable within the
jurisdiction of the Ninth Circuit Court of
Appeals. The more recent Sierra Club
decision, issued after our proposed rule,
is consistent with the Bahr decision’s
treatment of contingency measures. For
the purposes of our review and action
36 80
FR 12264, 12263 (March 6, 2015).
General Preamble, 57 FR 13498, 13510 and
13518 (explaining that an area that meets the RPF
milestones specified in subpart 2 ‘‘will also satisfy
the general RFP requirements of section 172(c)(2)
for the time period discussed.’’).
38 Sierra Club v. EPA, 985 F.3d 1055 (D.C. Cir.
2021).
39 Louisiana Environmental Action Network v.
EPA, 382 F.3d 575 (5th Cir. 2004) (‘‘LEAN’’)
(upholding contingency measures that were
previously required and implemented where they
were in excess of the attainment demonstration and
RFP SIP).
37 See
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on the 2018 Western Nevada County
Ozone Plan, we agree that the Bahr and
Sierra Club decisions govern our review
of the contingency measures element.
Comment #4: CBD notes that
longstanding EPA policy states
contingency measures should equal one
year of RFP, and states that the EPA is
nonetheless proposing to conditionally
approve contingency measures that fall
far short of this amount, based on
surplus emission reductions from
already-implemented measures. CBD
asserts that consideration of surplus
emissions reductions from alreadyimplemented measures in evaluating the
adequacy of contingency measures is
functionally no different than simply
approving the already-implemented
measures as contingency measures,
which the commenter says is
inconsistent with the Bahr and Sierra
Club decisions.
CBD views the EPA’s consideration of
surplus reductions from alreadyimplemented measures as relying on a
factor Congress has not intended the
Agency to consider in evaluating the
adequacy of contingency measures
under CAA section 172(c)(9). According
to CBD, the plain language of sections
172(c)(9) and 182(c)(9), as explained by
the Bahr and Sierra Club decisions,
explicitly limits the factors that the EPA
may consider by prohibiting use of
already implemented measures either as
de jure or de facto contingency
measures. CBD indicates that it
disagrees with the EPA’s response to
recent similar comments that CBD
submitted for our action on the Ventura
County 2008 ozone plan.40
Response to Comment #4: Neither the
CAA nor the EPA’s implementing
regulations for the ozone NAAQS
establish a specific amount of emissions
reductions that implementation of
contingency measures must achieve.
However, consistent with our
longstanding guidance, we agree that
contingency measures should generally
provide for emissions reductions
approximately equivalent to one year’s
worth of progress, which, for Serious
ozone nonattainment areas such as
Western Nevada County, amounts to
reductions of 3 percent of the RFP
baseline emissions inventory for the
nonattainment area.
As we described in the prior response
document referenced in this comment,
in recommending that contingency
measures typically achieve one year’s
worth of RFP, the EPA considers the
overarching purpose of such measures
in the context of attainment planning.
The purpose of emissions reductions
40 85
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from implementation of contingency
measures is to ensure that, in the event
of a failure to meet an RFP milestone or
a failure to attain the NAAQS by the
applicable attainment date, the state
will continue to make progress toward
attainment though additional emissions
reductions at a rate similar to that
specified under the RFP requirements.
The intent is that the state will achieve
the emissions reductions from the
contingency measures while conducting
additional control measure development
and implementation, as necessary to
correct the RFP shortfall to meet the
next applicable milestone or as part of
a new attainment demonstration plan.41
The facts and circumstances of a given
nonattainment area may justify larger or
smaller amounts of emissions
reductions for contingency measure
purposes.
In reviewing a SIP revision for
compliance with CAA sections 172(c)(9)
and 182(c)(9), the EPA evaluates
whether the contingency measure or
measures would provide emissions
reductions that, when considered with
surplus emissions reductions from other
measures not otherwise required or
relied upon in the plan, ensure
sufficient continued progress in the
event of a failure to achieve an RFP
milestone or to attain the ozone NAAQS
by the applicable attainment date. We
continue to evaluate the sufficiency of
continued progress that will result from
contingency measures in light of our
guidance, but in appropriate
circumstances do not believe that the
contingency measures themselves must
provide for one year’s worth of RFP.
Such appropriate circumstances include
situations in which sufficient progress
would be maintained by the
contingency measures and surplus
emissions reductions from other
sources, while the state proceeds to
develop and implement additional
control measures as necessary to correct
the RFP shortfall or as part of a new
attainment demonstration plan. In other
words, if there are additional emissions
reductions projected to occur after the
RFP milestone years or the attainment
year that a state has not relied upon for
purposes of RFP or attainment or to
meet other nonattainment plan
requirements, and that result from
measures the state has not adopted as
contingency measures, then those
reductions may support EPA approval
of contingency measures identified by
the state even if the contingency
measures would result in less than one
year’s worth of RFP in appropriate
circumstances.
41 57
FR 13498, 13512 (April 16, 1992).
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We disagree that this approach
contradicts Congressional intent. The
specific explicit factors Congress
intended the Agency to use in
evaluating the contingency measures at
issue here are set forth in CAA sections
172(c)(9) and 182(c)(9) and include
specificity (‘‘implementation of specific
measures’’), timing (‘‘measures to be
undertaken’’ and ‘‘to take effect’’),
triggers (if the area fails to attain the
NAAQS by the applicable [NAAQS] or
if the area fails to meet any applicable
milestone), federal enforceability
(‘‘included in the [SIP]’’), and readiness
(measures must be designed to take
effect without further action by the state
or the EPA). However, neither CAA
section 172(c)(9) nor 182(c)(9) contains
language implying that these are the
only factors for the EPA to consider.
Neither section specifies the magnitude
of emissions reductions that
contingency measures must achieve as
an explicit factor for the EPA to
consider, although consideration of the
magnitude is appropriate in determining
whether the contingency measure or
measures submitted by the state meet
the requirements of CAA sections
172(c)(9) and 182(c)(9). Consideration of
the magnitude of emissions reductions
is appropriate because contingency
measures serve a remedial function
where an area fails to achieve an RFP
milestone or fails to attain the NAAQS
by the applicable attainment date, and
RFP and attainment are achieved
through emissions reductions.42
Just as the CAA does not include the
magnitude of emissions reductions as a
specific explicit consideration, the CAA
also does not prescribe how the EPA is
to evaluate that question. As such, the
EPA is not relying on a factor that
Congress did not intend the EPA to
consider when the Agency considers the
emissions reductions from alreadyimplemented measures that are surplus
to those needed for RFP or attainment
within a given nonattainment area when
evaluating whether the state’s
contingency measure submittal meets
CAA sections 172(c)(9) and 182(c)(9).
Comment #5: CBD states that the EPA
does not say whether the surplus
emissions reductions considered in
evaluating the adequacy of contingency
measures will remain surplus if the
42 See, e.g., CAA sections 107(d)(3)(E)(iii), 171(1),
182(c)(1). Under CAA 182(g)(3), in the event that a
Serious or Severe ozone nonattainment area fails to
meet an applicable milestone, the state may elect to
implement contingency measures determined by
the EPA as adequate to meet the next milestone, to
have the area reclassified to the next higher
classification, or to adopt an economic incentive
program. If the state elects to implement
contingency measures, the EPA may require further
measures as necessary to meet the next milestone.
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27529
contingency measures are triggered.
CBD asserts that because these surplus
reductions are not contingency
measures approved into the SIP (which
the commenter notes would contravene
the Bahr decision), the EPA might
consider them surplus even after the
area had failed to make RFP, and use the
surplus reductions as context to approve
inadequate continency measures.
Response to Comment #5: As
described in the proposed rule, the 2018
Western Nevada County Ozone Plan
provides surplus emissions reductions
from CARB’s already-adopted mobile
source control program in the two RFP
milestone years and in the year
following the attainment year. CARB’s
estimates of surplus reductions in the
RFP milestone years are 11 to 15 times
greater than the amount required to
show one year’s worth of RFP.43 In the
year after the attainment year, CARB
estimates that NOX emissions in
Western Nevada County will be
approximately 0.23 tons per day (tpd)
lower in 2021 than in the 2020
attainment year due to mobile source
controls and vehicle turnover.44 On this
basis, we found that the District’s
contingency measures do not need to
achieve one year’s worth of RFP alone,
because these contingency measures
and other surplus emission reductions
will ensure sufficient continued
progress in the event of a failure to
achieve an RFP milestone or a failure to
attain the NAAQS by the applicable
attainment date. We therefore
conditionally approved the Plan based
on the District’s commitment to adopt
and submit specific enforceable
contingency measures as described in
letters from the District and CARB.
In the event that contingency
measures were triggered for failure to
meet an RFP milestone, the District
would be required to adopt new
contingency measures to take effect in
the event of any subsequent failure that
would trigger a contingency measure.45
As described above and in the proposed
rule, the EPA evaluates any contingency
measures submission to ensure that the
submitted measures will continue to
43 CARB estimates surplus reductions of 1.9 tpd
of NOX in 2017 and 2.6 tpd of NOX in 2020,
compared to the 0.17 tpd of NOX that represents
one year’s worth of RFP. These estimates are
derived from the surplus percentages listed in Table
4 of the proposed rule (34 percent in 2017 and 45.9
percent in 2020) multiplied by the 2011 baseline
NOX emissions level of 5.69 tpd. See 86 FR 2318,
2331.
44 See 86 FR 2318, 2333.
45 See, e.g., General Preamble, 57 FR 13498,
13520 (explaining that a state is required to adopt
additional measures to replace previously used
contingency measures, to assure the continuing
availability of contingency measures).
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make progress toward attainment in the
event of a milestone or attainment
failure through additional emissions
reductions at a rate similar to that
specified under the RFP requirements,
given the facts and circumstances of the
nonattainment area. Therefore, an
evaluation of what emissions reductions
are surplus would occur when a new
contingency measure is submitted,
following a failure to meet an RFP
milestone or a failure to attain by the
attainment date.
Comment #6: CBD asserts that the
proposed rule approaches arbitrary and
capricious decision making because it
states that it is useful to distinguish RFP
contingency measures and attainment
contingency measures but does not
apply any relevant distinction between
the two. CBD asserts that the proposed
rule is arbitrary and capricious because
it abandons a theory from a previous
rulemaking that measures the adequacy
of attainment contingency measures by
attempting to predict what is necessary
to make up a shortfall for a failure to
attain without providing an explanation.
CBD says that the EPA needs to find a
measure for attainment contingency
measures that aligns with the statute
and is rational. CBD suggests that the
EPA could require a state to use RACM
measures not needed for expeditious
attainment as contingency measures.
CBD notes that these measures might be
de minimis, and that the EPA could
require one year of RFP as a fallback.
Response to Comment #6: As
explained in the proposed rule, for
purposes of the ozone NAAQS the EPA
distinguishes RFP contingency
measures from attainment contingency
measures, respectively, as contingency
measures to address potential failures to
achieve RFP milestones and to address
potential failure to attain the NAAQS.46
This distinction is useful for the
purposes of evaluating the adequacy of
the emissions reductions from the
contingency measures (once adopted
and submitted), relative to the facts and
circumstances of the area, and the
anticipated needs to address a shortfall
in the relevant years.
CBD’s reference to the EPA’s theory
for measuring the adequacy of
attainment contingency measures
includes a citation to our proposed
rulemaking for the Sacramento Metro
nonattainment area. This appears to
refer to the EPA’s finding for that area
that the committed contingency
measures that served as the basis for our
conditional approval were projected to
be sufficient to correct a failure to attain
in less than a year from the attainment
46 86
FR 2318, 2333.
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date, and therefore reflect continued
progress for purposes of the attainment
contingency measure requirements.47
As described in the proposed rule, the
2018 Western Nevada County Ozone
Plan shows that reductions from the
proposed contingency measure,
combined with additional emissions
reductions from other sources that the
state does not rely upon to meet other
requirements in the nonattainment plan
in the year following the attainment
year, will exceed one year’s worth of
RFP.48 For this reason and for the
reasons described above, we disagree
that our conditional approval of the
attainment contingency measures is
arbitrary and capricious.
A described above, we disagree that
the EPA’s longstanding approach to
evaluating attainment contingency
measures is not rational or does not
align with the CAA. To CBD’s specific
suggestion that an area should use
RACM measures not needed for
expeditious attainment as contingency
measures, we agree that this option may
be available to some districts and
states 49 but disagree with the
commenter’s suggestion that the EPA
would be constrained against approving
other measures that are consistent with
the Act and the EPA’s implementing
regulations with respect to contingency
measure requirements.
Comment #7: CBD’s Appendix
provides numerous comments directed
at the EPA’s NOX Substitution
Guidance, contending that the EPA’s
NOX Substitution Guidance is
illegitimate. These comments assert
generally that the NOX Substitution
Guidance contradicts CAA section
182(c)(2)(C) by recommending a
procedure that fails to demonstrate any
equivalence between VOC and NOX
reductions, relies on incorrect policy
assumptions, and gives legal
justifications that are without merit.
Response to Comment #7: Comments
relating solely to the NOX Substitution
Guidance are outside the scope of this
rulemaking action. As noted in our
proposed rule, our approval of the
District’s use of NOX substitution is
supported by local conditions and needs
as documented in the modeling and
47 See
85 FR 68509, 68529 (October 29, 2020). See
General Preamble, 57 FR 13498, 13511 (explaining
that where a failure to attain or meet RFP can be
corrected in less than one year, the EPA may
consider contingency measures that are
proportionally less than one year’s worth of RFP
sufficient to correct the identified failure).
48 86 FR 2318, 2333 (January 12, 2021).
49 See, e.g., 81 FR 58010, 58066 (August 24, 2016)
(suggesting measures identified as possible RACM
or RACT that are not needed for expeditious
attainment may be suitable as contingency
measures).
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analysis included in the 2018 Western
Nevada County Ozone Plan, and is
consistent with the requirements in
CAA section 182(c)(2)(C).
III. Final Action
No comments were submitted that
change our assessment of the 2018
Western Nevada County Ozone Plan as
described in our proposed action.
Therefore, for the reasons discussed in
detail in the proposed rule and
summarized herein, under CAA section
110(k)(3), the EPA is taking final action
to approve as a revision to the California
SIP the following portions of the 2018
Western Nevada County Ozone Plan for
the 2008 ozone NAAQS submitted by
CARB on December 7, 2018:
• Base year emissions inventory
element as meeting the requirements of
CAA sections 172(c)(3) and 182(a)(1)
and 40 CFR 51.1115;
• RACM demonstration element as
meeting the requirements of CAA
section 172(c)(1) and 40 CFR 51.1112(c);
• Attainment demonstration element
as meeting the requirements of CAA
section 182(c)(2)(A) and 40 CFR
51.1108;
• ROP demonstration element as
meeting the requirements of CAA
182(b)(1) and 40 CFR 51.1110(a)(4)(i);
• RFP demonstration element as
meeting the requirements of CAA
sections 172(c)(2), 182(b)(1), and
182(c)(2)(B), and 40 CFR
51.1110(a)(4)(iii); and
• Motor vehicle emissions budgets for
the RFP milestone and attainment year
of 2020, as shown below, because they
are consistent with the RFP and
attainment demonstrations for the 2008
ozone NAAQS approved herein and
meet the other criteria in 40 CFR
93.118(e).
TABLE 1—TRANSPORTATION CONFORMITY BUDGETS FOR 2020 FOR
THE 2008 OZONE NAAQS IN WESTERN NEVADA COUNTY
[Summer planning inventory, tpd]
2020
VOC
Motor vehicle emissions
budget ...........................
I
0.8
NOX
I
1.7
Source: Table 7 of the 2018 Western Nevada County Ozone Plan.
We are also taking final action to find
that the:
• Requirements for enhanced
monitoring under CAA section 182(c)(1)
and 40 CFR 51.1102 for Western Nevada
County for the 2008 ozone NAAQS have
been met; and
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• The submitted 2020 budgets from
the 2018 Western Nevada County Ozone
Plan are adequate for transportation
conformity purposes.50
Lastly, we are conditionally
approving, under CAA section 110(k)(4),
the contingency measures element of
the 2018 Western Nevada County Ozone
Plan as meeting the requirements of
CAA sections 172(c)(9) and 182(c)(9) for
RFP and attainment contingency
measures. Our approval is based on
commitments by the District and CARB
to supplement the element through
submission, as a SIP revision (within
one year of our final conditional
approval action), of a District rule that
would add new limits or other
requirements that would apply if an
RFP milestone is not met or if Western
Nevada County fails to attain the 2008
ozone NAAQS by the applicable
attainment date.51
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IV. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, the EPA’s role is to
approve state choices, provided that
they meet the criteria of the Clean Air
Act. Accordingly, this action merely
approves state law as meeting federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• 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
50 Pursuant to 40 CFR 93.118(f)(2)(iii), the EPA’s
adequacy determination is effective upon
publication of this final rule in the Federal
Register. The proposed rule proposed to find that
Western Nevada County had met the clean fuels
fleet program requirements in CAA sections
182(c)(4) and 246 and 40 CFR 51.1102 for the 2008
ozone NAAQS through the State’s 1994 ‘‘Opt-Out
Program’’ SIP revision. However, as explained
above, the area is not subject to this element
because its 1980 population was less than 250,000.
51 Letter dated November 16, 2020, from Richard
Corey, Executive Officer, CARB, to John Busterud,
Regional Administrator, EPA Region IX. CARB’s
letter also forwarded the District’s commitment
letter to the EPA. The District’s letter is dated
October 26, 2020, from Gretchen Bennitt, NSAQMD
Air Pollution Control Officer, to Richard Corey,
CARB Executive Officer.
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16:03 May 20, 2021
Jkt 253001
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, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where the EPA or
an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. The EPA will
submit a report containing this action
and other required information to the
U.S. Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of the rule in the Federal
Register. A major rule cannot take effect
until 60 days after it is published in the
Federal Register. This action is not a
‘‘major rule’’ as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
PO 00000
Frm 00025
Fmt 4700
Sfmt 4700
27531
appropriate circuit by July 20, 2021.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action for
the purposes of judicial review nor does
it extend the time within which a
petition for judicial review may be filed,
and shall not postpone the effectiveness
of such rule or action. This action may
not be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 13, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
For the reasons stated in the
preamble, the EPA amends chapter I,
title 40 of the Code of Federal
Regulations as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart F—California
2. Section 52.220 is amended by
adding paragraph (c)(554) to read as
follows:
■
§ 52.220
Identification of plan—in part.
*
*
*
*
*
(c) * * *
(554) The following plan was
submitted on December 7, 2018 by the
Governor’s designee.
(i) [Reserved]
(ii) Additional materials. (A) Northern
Sierra Air Quality Management District
(1) Ozone Attainment Plan, Western
Nevada County, State Implementation
Plan for the 2008 Primary Federal
8-Hour Ozone Standard of .075 ppm,
adopted on October 22, 2018.
(2) [Reserved]
(B) [Reserved]
■ 3. Section 52.244 is amended by
adding paragraph (a)(12) to read as
follows:
§ 52.244
Motor vehicle emissions budgets.
(a) * * *
(12) Nevada County (Western part),
approved June 21, 2021.
*
*
*
*
*
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21MYR1
27532
Federal Register / Vol. 86, No. 97 / Friday, May 21, 2021 / Rules and Regulations
4. Section 52.248 is amended by
adding paragraph (l) to read as follows:
■
§ 52.248 Identification of plan—conditional
approval.
*
*
*
*
*
(l) The EPA is conditionally
approving the California State
Implementation Plan (SIP) for Nevada
County (Western part) for the 2008
ozone NAAQS with respect to the
contingency measures requirements of
CAA sections 172(c)(9) and 182(c)(9).
The conditional approval is based on a
commitment from the Northern Sierra
Air Quality Management District
(District) in a letter dated October 26,
2020, to adopt a specific rule revision,
and a commitment from the California
Air Resources Board (CARB) dated
November 16, 2020, to submit the
amended District rule to the EPA within
12 months of the effective date of the
final conditional approval. If the District
or CARB fail to meet their commitments
within one year of the effective date of
the final conditional approval, the
conditional approval is treated as a
disapproval.
[FR Doc. 2021–10510 Filed 5–20–21; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
[EPA–R10–OAR–2020–0190; FRL–10023–
66–Region 10]
Air Plan Approval; ID: Logan UtahIdaho PM2.5 Redesignation to
Attainment and Maintenance Plan
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is redesignating the Idaho
portion of the Logan, Utah-Idaho fine
particulate matter (PM2.5) nonattainment
area (Logan UT-ID NAA) to attainment
for the 2006 PM2.5 National Ambient Air
Quality Standard (NAAQS). EPA is also
approving a maintenance plan for the
area demonstrating continued
compliance with the 2006 PM2.5
NAAQS through 2031, which the Idaho
Department of Environmental Quality
(IDEQ) submitted along with the
redesignation request on September 13,
2019, for inclusion in the Idaho State
Implementation Plan (SIP).
Additionally, EPA is approving the 2031
motor vehicle emissions budgets
included in Idaho’s maintenance plan
for PM2.5, nitrogen oxides (NOX) and
volatile organic compounds (VOC). EPA
jbell on DSKJLSW7X2PROD with RULES
SUMMARY:
VerDate Sep<11>2014
16:03 May 20, 2021
Jkt 253001
is taking this final action pursuant to the
Clean Air Act (CAA or the Act).
DATES: This rule is effective on June 21,
2021.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R10–OAR–2020–0190. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
www.regulations.gov, or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional availability information.
FOR FURTHER INFORMATION CONTACT:
Adam Clark, (206) 553–1495,
clark.adam@epa.gov, EPA Region 10,
1200 6th Avenue, Suite 155, Seattle,
Washington, 98101.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, it is
intended to refer to EPA.
I. Background
On October 17, 2006, EPA revised the
level of the 24-hour PM2.5 NAAQS,
lowering the primary and secondary
standards from the 1997 standard of 65
micrograms per cubic meter (mg/m3) to
35 mg/m3 (71 FR 61144). On November
13, 2009, EPA designated a portion of
Franklin County, Idaho and portions of
Cache County, Utah nonattainment for
the 2006 24-hour PM2.5 NAAQS (74 FR
58688). This cross-boundary
nonattainment area is referred to as the
Logan, UT-ID PM2.5 NAA. On
September 13, 2019, IDEQ submitted to
EPA a request to redesignate the Idaho
portion of the Logan UT-ID PM2.5 NAA
to attainment, per CAA section
107(d)(3)(E). IDEQ also submitted a
CAA section 175A maintenance plan to
demonstrate continued attainment of
the 2006 PM2.5 NAAQS in the area for
at least 10 years after approval of the
redesignation. On February 17, 2021,
EPA proposed to redesignate the
Franklin County, ID portion of the
Logan UT-ID PM2.5 NAA to attainment
and approve into the Idaho SIP the
associated maintenance plan (86 FR
9884). As described in detail in that
action, EPA’s proposed approval of the
redesignation request and maintenance
plan is based upon our determination
that the area attains the 2006 24-hour
PM2.5 NAAQS and that all other CAA
PO 00000
Frm 00026
Fmt 4700
Sfmt 4700
section 107(d)(3)(E) redesignation
criteria have been met for the area.
II. Response to Comments
EPA received comments from three
individuals during the 30-day comment
period following publication of the
proposed approval in the Federal
Register. A summary of these comments
and EPA’s responses is provided below.
Comment 1: Two of the commenters
expressed concern about the current air
quality in the Logan, UT-ID PM2.5 NAA,
commonly referred to as the Cache
Valley. One of these commenters stated
that attainment had only been achieved
‘‘on paper,’’ but that air quality in the
Cache Valley remained poor. This
commenter suggested different local
causes of poor air quality, including an
increase in the number of diesel pickup
trucks and snowmobiles in the area, the
burning of agricultural fields and
ditches, the burning of slashed trees by
the U.S. Forest Service, and nonadherence to idling restrictions. Both
commenters asserted that the poor air
quality in the area caused negative
health impacts for them (including the
need to purchase indoor air purifiers),
and often prevented them from
recreating outdoors.
Response 1: The comments speak
generally about air quality in the area,
but do not provide any specific
information to contradict EPA’s
proposed finding that the Logan UT-ID
area meets the criteria for redesignation
under CAA Section 107(d)(3)(E) for the
2006 PM2.5 NAAQS. As discussed in
detail in the proposal, EPA’s review of
air monitoring data in the Logan UT-ID
PM2.5 NAA demonstrates that the area
has attained the 2006 24-hour PM2.5
NAAQS continuously since the 2015–
2017 design value period which was the
basis for our October 19, 2018
determination of attainment by the
attainment date and clean data
determination (86 FR 9886). These
comments do not provide a basis to
reconsider EPA’s determination that the
area meets the criteria under CAA
Section 107(d)(3)(E) or to otherwise
disapprove IDEQ’s redesignation request
or associated maintenance plan for the
Idaho portion of the Logan UT-ID NAA.
Comment 2: Two of the commenters
provided suggestions to improve air
quality in the Cache Valley. One
commenter stated that the Cache Valley
needs access to Tier 3 gasoline and more
electric vehicle (EV) charging stations.
Another commenter asserted that the
state ‘‘thwarts efforts to induce private
citizens to own appropriate vehicles
that can reduce air pollution by
proposing to increasing personal
property taxes from 200–400%+ on
E:\FR\FM\21MYR1.SGM
21MYR1
]]>Agencies
[Federal Register Volume 86, Number 97 (Friday, May 21, 2021)]
[Rules and Regulations]
[Pages 27524-27532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10510]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2019-0440; FRL-10022-39-Region 9]
Clean Air Plans; 2008 8-Hour Ozone Nonattainment Area
Requirements; Western Nevada County, California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve, or conditionally approve, all or portions of a state
implementation plan (SIP) revision submitted by the State of California
to meet Clean Air Act (CAA or ``Act'') requirements for the 2008 8-hour
ozone national ambient air quality standards (NAAQS or ``standards'')
in the Nevada County (Western part), California ozone nonattainment
area (``Western Nevada County''). The SIP revision is the ``Ozone
Attainment Plan, Western Nevada County, State Implementation Plan for
the 2008 Primary Federal 8-Hour Ozone Standard of .075 ppm'' (``2018
Western Nevada County Ozone Plan'' or ``Plan''). The 2018 Western
Nevada County Ozone Plan addresses the ``Serious'' nonattainment area
requirements for the 2008 ozone NAAQS, including the requirements for
emissions inventories, attainment demonstration, reasonable further
progress, reasonably available control measures, and contingency
measures, among others; and establishes motor vehicle emissions
budgets. The EPA is approving the 2018 Western Nevada County Ozone Plan
as meeting all the applicable ozone nonattainment area requirements
except for the contingency measure requirement, which the EPA is
conditionally approving.
DATES: This rule is effective on June 21, 2021.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2019-0440. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available through https://www.regulations.gov, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information. 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: T. Khoi Nguyen, Air Planning Office
(AIR-2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105,
(415) 947-4120, or by email at [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary of the Proposed Action
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews
I. Summary of the Proposed Action
On January 12, 2021, the EPA proposed to approve, under CAA section
110(k)(3), and to conditionally approve, under CAA section 110(k)(4), a
submittal from the California Air Resources Board (CARB) and the
Northern Sierra Air Quality Management District (NSAQMD or
``District'') as a revision to the California SIP for the Western
Nevada County nonattainment area.\1\ The SIP revision is the 2018
Western Nevada County Ozone Plan.\2\ We refer to our January 12, 2021,
proposed rule as the ``proposed rule.''
---------------------------------------------------------------------------
\1\ 86 FR 2318 (January 12, 2021). The Western Nevada County
nonattainment area for the 2008 ozone NAAQS consists of the portion
of Nevada County west of the ridge of the Sierra Nevada mountains.
For a precise definition of the boundaries of the Western Nevada
County 2008 ozone nonattainment area, see 40 CFR 81.305.
\2\ Letter dated December 2, 2018, from Richard Corey, Executive
Officer, CARB, to Mike Stoker, Regional Administrator, U.S.
Environmental Protection Agency Region IX. The 2018 Western Nevada
County Ozone Plan was submitted electronically through the EPA's
State Planning Electronic Collaboration System on December 7, 2018,
making this date the effective date of submittal. The Plan was
deemed complete by operation of law six months after submittal, on
June 7, 2019. Our proposed rule incorrectly identified the December
2, 2018 letter date as the submittal date, and June 2, 2019 as the
date that the Plan was deemed complete by operation of law.
---------------------------------------------------------------------------
In our proposed rule, we provided background information on the
ozone standards,\3\ area designations, and related SIP revision
requirements under the CAA and the EPA's implementing regulations for
the 2008 ozone standards, referred to as the 2008 Ozone SIP
Requirements Rule (``2008 Ozone SRR'').\4\ To summarize, the Western
Nevada County ozone nonattainment area is classified as Serious for the
2008 ozone NAAQS, and the 2018 Western Nevada County Ozone Plan was
developed to address the statutory and regulatory requirements for
revisions to the SIP for the Western Nevada County Serious ozone
nonattainment area.
---------------------------------------------------------------------------
\3\ The 1-hour ozone NAAQS is 0.12 parts per million (ppm) (one-
hour average), the 1997 ozone NAAQS is 0.08 ppm (eight-hour
average), and the 2008 ozone NAAQS is 0.075 ppm (eight-hour
average).
\4\ 2008 Ozone SRR, 80 FR 12264, 12283 (March 6, 2015).
---------------------------------------------------------------------------
Our proposed conditional approval of the contingency measures
element of the 2018 Western Nevada County Ozone Plan relied on specific
commitments: (1) From the District to adopt a rule that
[[Page 27525]]
would provide for additional emissions reductions in the event that
Western Nevada County fails to meet a reasonable further progress (RFP)
milestone or fails to attain the 2008 ozone NAAQS by the applicable
attainment date, and (2) from CARB to submit the adopted District rule
to the EPA as a SIP revision within 12 months of our final action.\5\
For more information on the SIP revision submittals and related
commitments, please see our proposed rule.
---------------------------------------------------------------------------
\5\ Letter dated November 16, 2020, from Richard Corey,
Executive Officer, CARB, to John Busterud, Regional Administrator,
EPA Region IX. CARB's letter also forwarded the District's
commitment letter to the EPA. The District's letter is dated October
26, 2020, from Gretchen Bennitt, NSAQMD Air Pollution Control
Officer, to Richard Corey, CARB Executive Officer.
---------------------------------------------------------------------------
In our proposed rule, we reviewed the various SIP elements
contained in the 2018 Western Nevada County Ozone Plan, evaluated them
for compliance with statutory and regulatory requirements, and
concluded that they meet all applicable requirements, except for the
contingency measure requirement, for which the EPA proposed conditional
approval. More specifically, in our proposed rule, we based our
proposed actions on the following determinations:
CARB and the District met all applicable procedural
requirements for public notice and hearing prior to the adoption and
submittal of the 2018 Western Nevada County Ozone Plan; \6\
---------------------------------------------------------------------------
\6\ 86 FR 2318, 2321.
---------------------------------------------------------------------------
The 2011 base year emissions inventory from the 2018
Western Nevada County Ozone Plan is comprehensive, accurate, and
current, and therefore meets the requirements of CAA sections 172(c)(3)
and 182(a)(1) and 40 CFR 51.1115. Additionally, the future year
baseline projections reflect appropriate calculation methods and the
latest planning assumptions and are properly supported by the SIP-
approved stationary and mobile source measures; \7\
---------------------------------------------------------------------------
\7\ Id. at 2321-2322 and 2326-2330.
---------------------------------------------------------------------------
The process followed by the District to identify
reasonably available control measures (RACM) is generally consistent
with the EPA's recommendations; the District's rules provide for the
implementation of RACM for stationary and area sources of oxides of
nitrogen (NOX) and volatile organic compounds (VOC); \8\
CARB and the Nevada County Transportation Commission (NCTC) provide for
the implementation of RACM for mobile sources of NOX and
VOC; there are no additional RACM that would advance attainment of the
2008 ozone NAAQS in Western Nevada County by at least one year; and
therefore, the 2018 Western Nevada County Ozone Plan provides for the
implementation of all RACM as required by CAA section 172(c)(1) and 40
CFR 51.1112(c); \9\
---------------------------------------------------------------------------
\8\ Ground-level ozone pollution is formed from the reaction of
VOC and NOX in the presence of sunlight. CARB refers to
reactive organic gases (ROG) in some of its ozone-related
submittals. The CAA and the EPA's regulations refer to VOC, rather
than ROG, but both terms cover essentially the same set of gases. In
this final rule, we use the term VOC to refer to this set of gases.
\9\ 86 FR 2318, 2323-2326.
---------------------------------------------------------------------------
The photochemical modeling in the 2018 Western Nevada
County Ozone Plan shows that existing CARB and District control
measures are sufficient to attain the 2008 ozone NAAQS by the
applicable attainment date in Western Nevada County; given the
documentation in the 2018 Western Nevada County Ozone Plan of modeling
procedures and good model performance, the modeling is adequate to
support the attainment demonstration; and therefore the 2018 Western
Nevada County Ozone Plan meets the attainment demonstration
requirements of CAA section 182(c)(2)(A) and 40 CFR 51.1108; \10\
---------------------------------------------------------------------------
\10\ Id. at 2326-2328.
---------------------------------------------------------------------------
The 15 percent rate-of-progress (ROP) demonstration
element in the 2018 Western Nevada County Ozone Plan meets the
requirements of CAA section 182(b)(1); \11\
---------------------------------------------------------------------------
\11\ Id. at 2330.
---------------------------------------------------------------------------
The RFP demonstration in the 2018 Western Nevada County
Ozone Plan provides for emissions reductions of VOC or NOX
of at least 3 percent per year on average for each three-year period,
beginning 6 years after the baseline year until the attainment date,
and thereby meets the requirements of CAA sections 172(c)(2) and
182(c)(2)(B) and 40 CFR 51.1110(a)(2)(ii); \12\
---------------------------------------------------------------------------
\12\ Id. at 2330-2332.
---------------------------------------------------------------------------
The motor vehicle emissions budgets in the 2018 Western
Nevada County Ozone Plan are consistent with the RFP demonstration, are
clearly identified and precisely quantified, and meet all other
applicable statutory and regulatory requirements in 40 CFR 93.118(e),
including the adequacy criteria in 40 CFR 93.118(e)(4) and (5); \13\
and
---------------------------------------------------------------------------
\13\ Id. at 2334-2335.
---------------------------------------------------------------------------
Through previous EPA approvals of the 1993 Photochemical
Assessment Monitoring Station SIP revision, the ``Annual Network Plan
Covering Monitoring Operations in 25 California Air Districts, July
2020'' with respect to the Western Nevada County element,\14\ and
CARB's enhanced monitoring plan submittal for Western Nevada
County,\15\ the enhanced monitoring requirements under CAA section
182(c)(1) and 40 CFR 51.1102 for Western Nevada County have been
met.\16\
---------------------------------------------------------------------------
\14\ Letter dated November 5, 2020, from Gwen Yoshimura,
Manager, Air Quality Analysis Office, EPA Region IX, to Ravi
Ramalingam, Chief, Consumer Products and Air Quality Assessment
Branch, Air Quality Planning and Science Division, CARB.
\15\ Letter dated November 9, 2020, from Dr. Michael T.
Benjamin, Chief, Air Quality Planning and Science Division, CARB, to
Meredith Kurpius, Assistant Director, EPA Region IX, enclosing the
``2020 Monitoring Network Assessment (October 2020).'' The
assessment includes a five-year network assessment and an updated
enhanced monitoring plan, as required by 40 CFR 58, Appendix D,
Section 5(a).
\16\ 86 FR 2318, 2336.
---------------------------------------------------------------------------
In light of the decision from the Ninth Circuit Court of Appeals in
Bahr v. EPA (``Bahr''),\17\ the District \18\ and CARB \19\ committed
to supplement the contingency measure element through submission, as a
SIP revision (within one year of our final conditional approval
action), of a revised District rule or rules that would add new limits
or other requirements if an RFP milestone is not met or if the area
fails to attain the 2008 ozone NAAQS by the applicable attainment
date.\20\ The EPA proposed to conditionally approve the contingency
measure element as meeting the requirements of CAA sections 172(c)(9)
and 182(c)(9).
---------------------------------------------------------------------------
\17\ Bahr v. EPA, 836 F.3d 1218 (9th Cir. 2016) (rejecting
early-implementation of contingency measures and concluding that the
contingency measure requirement of CAA section 172(c)(9) can only be
satisfied by a measure that takes effect at the time the area fails
to make RFP or attain by the applicable attainment date, not
before).
\18\ Letter dated October 26, 2020, from Gretchen Bennitt,
NSAQMD Air Pollution Control Officer, to Richard Corey, CARB
Executive Officer.
\19\ Letter dated November 16, 2020, from Richard Corey,
Executive Officer, CARB, to John Busterud, Regional Administrator,
EPA Region IX. CARB's letter also forwarded the District's
commitment letter to the EPA.
\20\ 86 FR 2318, 2332-2333.
---------------------------------------------------------------------------
For the emissions statement element, the proposed rule states that
District Rule 513, ``Emissions Statements and Recordkeeping,'' approved
as a revision to the California SIP on June 21, 2017,\21\ fulfills the
relevant emissions statement requirements of CAA section
182(a)(3)(B)(i).\22\ Accordingly, the emissions statement element was
previously satisfied through the EPA's approval of Rule 513 on June 21,
2017. However, the EPA's December 11, 2017 finding of failure to submit
action incorrectly identified the emissions statement element for
Western Nevada County as not having been submitted.\23\ Additionally,
we note that language in
[[Page 27526]]
the proposed rule stating that the EPA was ``propos[ing] to find'' that
Rule 513 meets the emissions statement requirements could be read to
indicate that the EPA was proposing to address this element in the
proposed rule. Therefore, we now clarify that the EPA's June 21, 2017
approval of Rule 513 satisfied the emissions statement element for
Western Nevada County prior to the finding of failure to submit action
and prior to the proposed rule.\24\
---------------------------------------------------------------------------
\21\ 82 FR 28240 (June 21, 2017).
\22\ 86 FR 2318, 2323.
\23\ 82 FR 58118 (December 11, 2017).
\24\ 82 FR 28240, 28241 (finding that Rule 513 fulfills relevant
emission statement requirements of CAA 182(a)(3)(B)(i)).
---------------------------------------------------------------------------
For the clean fuels fleet program element, the proposed rule states
that through the 1994 ``Opt-Out Program'' SIP revision, the clean fuels
fleet program requirements in CAA sections 182(c)(4) and 246 and 40 CFR
51.1102 for Western Nevada County have been met with respect to the
2008 ozone NAAQS.\25\ However, CAA section 246(a)(3) applies only to
certain ozone nonattainment areas with a 1980 population of 250,000 or
more. As indicated in our proposed rule, Western Nevada County has a
population of 83,000,\26\ and the area's population was below 250,000
in 1980.\27\ Therefore, we now clarify that Western Nevada County is
not subject to the clean fuels fleet program element for the 2008 ozone
NAAQS.
---------------------------------------------------------------------------
\25\ See 86 FR 2318, 2335.
\26\ See id. at 2320.
\27\ See Demographic Information About the County, County of
Nevada, California, available at https://www.mynevadacounty.com/378/Demographic-Information-About-the-County.
---------------------------------------------------------------------------
Please see our proposed rule for more information concerning the
background for this action and for a more detailed discussion of the
rationale for approval or conditional approval of the above-listed
elements of the 2018 Western Nevada County Ozone Plan.
II. Public Comments and EPA Responses
The public comment period on the proposed rule opened on January
12, 2021, the date of its publication in the Federal Register, and
closed on February 11, 2021. During this period, the EPA received one
comment letter submitted by Air Law for All, Ltd. on behalf of the
Center for Biological Diversity and the Center for Environmental Health
(collectively referred to herein as ``CBD''). We address CBD's comments
in the following paragraphs of this final rule.
Comment #1: CBD asserts that the EPA has conflated the requirements
for contingency measures under subparts 1 and 2 of part D of title I of
the CAA. CBD distinguishes the generally applicable subpart 1 RFP
requirements for attainment plans under section 172(c)(2) (the
commenter refers to these as ``attainment RFP'' requirements) from the
subpart 2 RFP requirements applicable to ``Moderate'' and above and
also Serious and above ozone nonattainment areas under CAA
182(b)(1)(A)(i) and 182(c)(2)(B) respectively (the commenter refers to
these as ``VOC RFP'' requirements). Similarly, CBD distinguishes the
subpart 1 contingency measure requirements at CAA 172(c)(9) (which,
according to the commenter, are applicable upon a failure to make
``attainment RFP'' or to attain a NAAQS by the applicable attainment
date) from the subpart 2 contingency measure requirements at CAA
182(c)(9) (which, according to the commenter, are applicable upon a
failure to meet any applicable ``VOC RFP'' milestone). CBD argues that
under CAA 182(c)(9), the subpart 2 VOC RFP contingency measure
requirements are ``in addition to'' the subpart 1 attainment RFP
contingency measures, and that this language compels the EPA to require
separate, distinct VOC RFP contingency measures, including not only the
triggers for these measures, but the substantive contingency measures
themselves. CBD asserts that the subpart 1 RFP and contingency measure
requirements are distinct in purpose from the subpart 2 RFP and
contingency measure requirements, and that CAA 172(c)(9) attainment RFP
contingency measures are intended to make progress towards attainment
while a state assesses the additional reductions needed to timely
attain the ozone standards, whereas CAA 182(c)(9) VOC RFP contingency
measures are intended to make progress in VOC emission reductions if
the state elects to trigger them instead of reclassification or
adoption of an economic incentive program.
Additionally, CBD asserts that the EPA entirely fails to discuss
CAA 182(c)(9)'s clear language, the structural distinction between what
the commenter asserts are separate attainment RFP and VOC RFP
requirements, and the corresponding need to have distinct attainment
RFP contingency measures and VOC RFP contingency measures. Given this
distinction, CBD says, the EPA cannot approve the single submitted
contingency measure as meeting both attainment RFP and VOC RFP
contingency measure requirements. CBD concludes that the EPA must
propose for comment its theory for how it can reconcile these distinct
RFP requirements in order to approve the submission as meeting the
contingency measure requirement for both.
Response to Comment #1: As the commenter notes, Serious ozone
nonattainment areas are subject to both the general requirements for
nonattainment plans in subpart 1, and the specific requirements for
ozone areas in subpart 2, including the requirements related to RFP and
contingency measures. This is consistent with the structure of the CAA
as modified under the 1990 amendments, which introduced additional
subparts to part D of title I of the CAA to address requirements for
specific NAAQS pollutants, including ozone (subpart 2), carbon monoxide
(CO) (subpart 3), particulate matter (subpart 4), and sulfur oxides,
nitrogen dioxide, and lead (subpart 5).
These subparts apply tailored requirements for these pollutants,
including those based on an area's designation and classification, in
addition to and often in place of the generally applicable provisions
retained in subpart 1. While CAA 172(c)(2) of subpart 1 states only
that nonattainment plans ``shall require reasonable further progress,''
CAA 182(b)(1) and 182(c)(2)(B) of subpart 2 provide specific percent
reduction targets for ozone nonattainment areas to meet the RFP
requirement. Put another way, subpart 2 further defines RFP for ozone
nonattainment areas by specifying the incremental amount of emissions
reduction required by set dates for those areas.\28\ In the context of
section 182(c)(2)(B), the percentage reduction target constitutes an
RFP ``milestone'' as described in section 182(g), by which the EPA
determines a Serious ozone nonattainment area's compliance with the RFP
requirements. For Serious and above ozone nonattainment areas, CAA
section 182(c)(2)(B) defines RFP by setting specific annual percent
reductions and allows averaging over a 3-year period, and 182(g)
establishes an RFP tracking mechanism called a ``milestone'' such that
failure to meet a milestone equates to failure to meet the RFP
requirement; they are one and the
[[Page 27527]]
same.\29\ Similarly, while CAA 172(c)(9) establishes the general
requirement for nonattainment plans to provide contingency measures
that are triggered in the event that the area fails to make RFP or to
attain a NAAQS by the applicable attainment date, CAA 182(c)(9)
specifies that a Serious area nonattainment plan for an ozone NAAQS
must provide for the implementation of contingency measures to address
a failure to meet a milestone, which, per the terms of CAA 182(g), is
the same as failing to make RFP. Likewise, for CO nonattainment areas,
section 187(a)(3) of subpart 3 addresses contingency measure provisions
based on consistency between previously projected and actual or
subsequently projected VMT levels, as well as failure to attain by the
required deadline. These pollutant-specific contingency measure
provisions are described in the EPA's General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990
(``General Preamble''), which explains that the additional contingency
measure provisions in subparts 2 and 3 are similar to the general
contingency measure requirements at CAA 172(c)(9), except that the
focus is on the planning requirements applicable to ozone and CO.\30\
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\28\ CAA 171(1) defines reasonable further progress as ``such
annual incremental reductions in emissions of the relevant air
pollutant as are required by this part or may reasonably be required
by the Administrator for the purpose of ensuring attainment of the
applicable national ambient air quality standard by the applicable
date.'' As the commenter notes, the words ``this part'' in the
statutory definition of RFP refer to part D of title I of the CAA,
which contains both the general requirements in subpart 1 and the
pollutant-specific requirements in subparts 2-5 (including the
ozone-specific RFP requirements in CAA 182(b)(1) and 182(c)(2)(B)
for Serious areas).
\29\ See CAA 182(g)(1) (explaining that an ``applicable
milestone'' is the emissions reduction required to be achieved by
the end of an interval pursuant to the RFP provisions at CAA
182(b)(1) and the corresponding RFP requirements of 182(c)(2)(B) and
(C) for Serious areas).
\30\ 57 FR 13498, 13511 (April 16, 1992).
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As CBD notes, CAA 182(c)(9) specifies that plans for ozone
nonattainment areas classified as Serious or above must provide for the
implementation of contingency measures for failure to meet an ozone RFP
milestone, ``[i]n addition to the contingency provisions'' required
under CAA 172(c)(9). The commenter argues that this language requires
states to submit contingency measures specifically allocated to address
the section 182(c)(9) RFP milestones, in addition to other separate
contingency measures to address the general RFP and attainment
requirements in CAA 172(c)(9). This interpretation is based upon the
commenter's related interpretation of the subpart 2 RFP milestones as
distinct requirements separate from the general RFP requirements in
subpart 1, reflected in the commenter's distinction of ``attainment
RFP'' and ``VOC RFP.''
These interpretations run counter to the EPA's longstanding
approach to the RFP and contingency measure provisions for the ozone
NAAQS, and we disagree that the statutory text compels the commenter's
suggested approach. Contrary to the commenter's suggestion, an area
that is subject to the subpart 2 RFP milestones is not subject to any
separate milestones or requirements for demonstrating ozone RFP under
the general RFP provisions in subpart 1. This point is specifically
addressed in the General Preamble, which specifies that a state that
meets the specific subpart 2 milestones ``will also satisfy the general
RFP requirements of section 172(c)(2) for the time period discussed.''
\31\ This approach is retained in the implementation rules for the 1997
and 2008 ozone NAAQS, which specify RFP milestones for ozone
nonattainment areas that incorporate both the general RFP requirements
in subpart 1 as well as the ozone-specific RFP requirements in subpart
2, depending on the area's classification and whether the area already
has an approved 15 percent rate-of-progress plan for a prior ozone
NAAQS.\32\
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\31\ General Preamble, 57 FR 13498, 13510 (for CAA 182(b)(1)
milestones); id. at 13518 (for 182(c)(2)(B) milestones).
\32\ 40 CFR 51.1110; see also 70 FR 71612, 71615 (November 29,
2005); 80 FR 12264, 12271 (March 6, 2015).
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We disagree with the commenter that the subpart 1 and subpart 2 RFP
requirements have distinct purposes that require the EPA to establish
separate milestones or requirements for each. Under either subpart, the
purpose of RFP is to ensure attainment by the applicable attainment
date.\33\ As described above, the RFP requirements in CAA 182(b)(1) and
182(c)(2)(B) define specific RFP milestones applicable to,
respectively, Moderate and above and Serious and above ozone
nonattainment areas, for purposes of demonstrating compliance with the
general RFP requirement at CAA 172(c)(2).
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\33\ See CAA 171(1); see also 70 FR 71612, 71648 (November 29,
2005) (``[W]hether dealing with the general RFP requirement of
section 172(c)(2), or the more specific RFP requirements of subpart
2 for classified ozone nonattainment areas (i.e., the 15 percent
plan requirement of section 182(b)(1) and the 3 percent per year
requirement of section 182(c)(2)), the purpose of RFP is to ensure
attainment by the applicable attainment date.'').
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Because there are no separate milestones or requirements for
demonstrating ozone RFP under the general RFP provisions in subpart 1,
and because the purposes of RFP are the same under each subpart, we
similarly disagree with the commenter that a state would be required to
submit separate contingency measures to address the RFP and milestone
requirements of subparts 1 and 2. The commenter asserts that the
language in CAA 182(c)(9) stating the requirements for contingency
measures in Serious and above ozone nonattainment areas are ``in
addition to the contingency provisions required under section
[172(c)(9)]'' refers to both the triggers for contingency measures and
the contingency measures themselves. In other words, the commenter
asserts that the EPA must require the state to submit contingency
measures to address RFP failures under subpart 1 and additional
contingency measures to address such failures under subpart 2.
As explained above, CAA 182(c)(9) requires state nonattainment
plans for Serious and above ozone nonattainment areas to provide for
the implementation of contingency measures to be undertaken if an area
fails to meet an applicable milestone, i.e., RFP. Because a
``milestone,'' as the term is used in CAA section 182(g), is applicable
only to areas classified as Serious and above, CAA 182(c)(9) represents
an additional requirement that states must address in an ozone
nonattainment plan submission for these areas. Section 182(c)(9)
requires that certain state submissions must provide for the
implementation of contingency measures in the event of a failure to
meet a milestone; it does not require the state to submit separate and
distinct contingency measures allocated exclusively for a failure to
meet a milestone. Serious and above areas remain subject to the general
contingency measure requirement described at CAA 172(c)(9), including
the requirement for contingency measures to take effect in the event of
a failure to attain the NAAQS by the applicable attainment date (which
is not provided for in CAA 182(c)(9)), as well as the requirement for
contingency measures to address a failure to make RFP (i.e., under CAA
182(c)(9), a failure to meet an applicable milestone under CAA 182(g)).
CAA 182(c)(9) therefore applies a more specific requirement ``in
addition to'' the general requirements at CAA 172(c)(9), by
establishing failure to meet a CAA 182(g) milestone as a specific
trigger for contingency measures in Serious and above ozone
nonattainment areas.\34\
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\34\ As explained above and in the proposed rule, the District
and CARB have met this requirement by committing to supplement the
contingency measures element by submitting, within one year of our
final conditional approval action, a SIP revision that establishes
contingency measures that will be triggered if the area fails to
meet an RFP milestone for the 2008 ozone NAAQS or fails to reach
attainment by the applicable attainment date. See 86 FR 2318, 2320.
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This is consistent with the EPA's longstanding interpretation of
the contingency measure requirements, as set out in the General
Preamble and the
[[Page 27528]]
EPA's implementation rules for the 1997 and 2008 ozone NAAQS. For all
of the foregoing reasons, this interpretation is reasonable and
appropriate.
We also disagree with the commenter's suggestion that the EPA would
be required to re-propose and take comment on our rationale for
reconciling the subpart 1 and subpart 2 contingency measures
requirements. As described above, our approach in this action reflects
the EPA's longstanding interpretation of the statutory requirements as
set out in the General Preamble and in the ozone NAAQS implementation
rules, including the implementation rule for the 2008 ozone NAAQS, for
which the EPA solicited and received public comment on our proposed
approaches to RFP, contingency measures, and other topics.
Comment #2: CBD notes that the milestone provisions at CAA 182(g)
provide an enforceable tracking and triggering mechanism for subpart 2
contingency measures, and asserts that because the EPA has conflated
attainment RFP contingency measures and VOC RFP contingency measures,
it has not created any separate, enforceable mechanism for tracking and
triggering the subpart 1 contingency measures. CBD asserts that the EPA
cannot reasonably approve contingency measures that cannot be
triggered, and argues that the EPA's failure to provide an enforceable
tracking and triggering mechanism for the subpart 1 contingency
measures is an impermissible interpretation of CAA 172(c)(9) because it
is unmoored from the purposes and concerns of that part. CBD asserts
that without an enforceable commitment by the state to track and report
on annual emission reductions, the EPA's discretionary authorities,
such as a SIP call under CAA 110(k)(5), are inadequate to address this
failure, and that those authorities do not allow the EPA to trigger the
subpart 1 contingency measures by determining that attainment RFP has
not been met.
Response to Comment #2: Under CAA 172(c)(9), attainment contingency
measures are triggered by the EPA's finding under CAA 181(b)(2) that an
area has failed to attain a NAAQS by the applicable attainment date.
This finding is based on the design value for the area as of the
attainment date, which represents ambient ozone concentration data
collected for the area. A finding of failure to attain by the
attainment date triggers contingency measures to be implemented in the
area, without further action by the state or the EPA.\35\ Therefore,
the enforceable tracking and triggering mechanism for attainment
contingency measures are the EPA's determinations under CAA 181(b)(2)
regarding whether the ozone nonattainment areas are in attainment by
their applicable attainment date. Further, contingency measures are
also triggered by an area's failure to reach an RFP milestone, as
described by the commenter.
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\35\ See General Preamble, 57 FR 13498, 13512.
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As explained above, the RFP requirements for the 2008 ozone NAAQS
are described in the 2008 ozone SRR \36\ and codified at 40 CFR
51.1110. These requirements incorporate the subpart 1 and subpart 2 RFP
requirements as they apply to nonattainment areas for the 2008 ozone
NAAQS, depending on classification and whether the area has an approved
15 percent rate-of-progress plan for the 1-hour or 1997 ozone NAAQS.
The percentage reductions described therein represent the applicable
subpart 1 and subpart 2 obligations for an area to demonstrate RFP for
the 2008 ozone NAAQS,\37\ and a failure to meet these obligations will
trigger RFP contingency measures as described above and in the proposed
rule. Accordingly, we disagree with the commenter that there is not an
enforceable mechanism for tracking and triggering the RFP contingency
measures under subpart 1.
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\36\ 80 FR 12264, 12263 (March 6, 2015).
\37\ See General Preamble, 57 FR 13498, 13510 and 13518
(explaining that an area that meets the RPF milestones specified in
subpart 2 ``will also satisfy the general RFP requirements of
section 172(c)(2) for the time period discussed.'').
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Comment #3: CBD recounts the backgrounds and outcomes of the Bahr
decision and the recent Sierra Club decision from the D.C. Circuit
Court of Appeals,\38\ and discusses policy implications of those
decisions. CBD also negatively critiques the LEAN decision from the
Fifth Circuit Court of Appeals,\39\ which the commenter asserts was in
error.
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\38\ Sierra Club v. EPA, 985 F.3d 1055 (D.C. Cir. 2021).
\39\ Louisiana Environmental Action Network v. EPA, 382 F.3d 575
(5th Cir. 2004) (``LEAN'') (upholding contingency measures that were
previously required and implemented where they were in excess of the
attainment demonstration and RFP SIP).
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Response to Comment #3: Our proposed rule explains that we have
reviewed the contingency measures element of the 2018 Western Nevada
County Ozone Plan in light of the Bahr decision which is applicable
within the jurisdiction of the Ninth Circuit Court of Appeals. The more
recent Sierra Club decision, issued after our proposed rule, is
consistent with the Bahr decision's treatment of contingency measures.
For the purposes of our review and action on the 2018 Western Nevada
County Ozone Plan, we agree that the Bahr and Sierra Club decisions
govern our review of the contingency measures element.
Comment #4: CBD notes that longstanding EPA policy states
contingency measures should equal one year of RFP, and states that the
EPA is nonetheless proposing to conditionally approve contingency
measures that fall far short of this amount, based on surplus emission
reductions from already-implemented measures. CBD asserts that
consideration of surplus emissions reductions from already-implemented
measures in evaluating the adequacy of contingency measures is
functionally no different than simply approving the already-implemented
measures as contingency measures, which the commenter says is
inconsistent with the Bahr and Sierra Club decisions.
CBD views the EPA's consideration of surplus reductions from
already-implemented measures as relying on a factor Congress has not
intended the Agency to consider in evaluating the adequacy of
contingency measures under CAA section 172(c)(9). According to CBD, the
plain language of sections 172(c)(9) and 182(c)(9), as explained by the
Bahr and Sierra Club decisions, explicitly limits the factors that the
EPA may consider by prohibiting use of already implemented measures
either as de jure or de facto contingency measures. CBD indicates that
it disagrees with the EPA's response to recent similar comments that
CBD submitted for our action on the Ventura County 2008 ozone plan.\40\
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\40\ 85 FR 38081, 38084 (June 25, 2020).
---------------------------------------------------------------------------
Response to Comment #4: Neither the CAA nor the EPA's implementing
regulations for the ozone NAAQS establish a specific amount of
emissions reductions that implementation of contingency measures must
achieve. However, consistent with our longstanding guidance, we agree
that contingency measures should generally provide for emissions
reductions approximately equivalent to one year's worth of progress,
which, for Serious ozone nonattainment areas such as Western Nevada
County, amounts to reductions of 3 percent of the RFP baseline
emissions inventory for the nonattainment area.
As we described in the prior response document referenced in this
comment, in recommending that contingency measures typically achieve
one year's worth of RFP, the EPA considers the overarching purpose of
such measures in the context of attainment planning. The purpose of
emissions reductions
[[Page 27529]]
from implementation of contingency measures is to ensure that, in the
event of a failure to meet an RFP milestone or a failure to attain the
NAAQS by the applicable attainment date, the state will continue to
make progress toward attainment though additional emissions reductions
at a rate similar to that specified under the RFP requirements. The
intent is that the state will achieve the emissions reductions from the
contingency measures while conducting additional control measure
development and implementation, as necessary to correct the RFP
shortfall to meet the next applicable milestone or as part of a new
attainment demonstration plan.\41\ The facts and circumstances of a
given nonattainment area may justify larger or smaller amounts of
emissions reductions for contingency measure purposes.
---------------------------------------------------------------------------
\41\ 57 FR 13498, 13512 (April 16, 1992).
---------------------------------------------------------------------------
In reviewing a SIP revision for compliance with CAA sections
172(c)(9) and 182(c)(9), the EPA evaluates whether the contingency
measure or measures would provide emissions reductions that, when
considered with surplus emissions reductions from other measures not
otherwise required or relied upon in the plan, ensure sufficient
continued progress in the event of a failure to achieve an RFP
milestone or to attain the ozone NAAQS by the applicable attainment
date. We continue to evaluate the sufficiency of continued progress
that will result from contingency measures in light of our guidance,
but in appropriate circumstances do not believe that the contingency
measures themselves must provide for one year's worth of RFP. Such
appropriate circumstances include situations in which sufficient
progress would be maintained by the contingency measures and surplus
emissions reductions from other sources, while the state proceeds to
develop and implement additional control measures as necessary to
correct the RFP shortfall or as part of a new attainment demonstration
plan. In other words, if there are additional emissions reductions
projected to occur after the RFP milestone years or the attainment year
that a state has not relied upon for purposes of RFP or attainment or
to meet other nonattainment plan requirements, and that result from
measures the state has not adopted as contingency measures, then those
reductions may support EPA approval of contingency measures identified
by the state even if the contingency measures would result in less than
one year's worth of RFP in appropriate circumstances.
We disagree that this approach contradicts Congressional intent.
The specific explicit factors Congress intended the Agency to use in
evaluating the contingency measures at issue here are set forth in CAA
sections 172(c)(9) and 182(c)(9) and include specificity
(``implementation of specific measures''), timing (``measures to be
undertaken'' and ``to take effect''), triggers (if the area fails to
attain the NAAQS by the applicable [NAAQS] or if the area fails to meet
any applicable milestone), federal enforceability (``included in the
[SIP]''), and readiness (measures must be designed to take effect
without further action by the state or the EPA). However, neither CAA
section 172(c)(9) nor 182(c)(9) contains language implying that these
are the only factors for the EPA to consider. Neither section specifies
the magnitude of emissions reductions that contingency measures must
achieve as an explicit factor for the EPA to consider, although
consideration of the magnitude is appropriate in determining whether
the contingency measure or measures submitted by the state meet the
requirements of CAA sections 172(c)(9) and 182(c)(9). Consideration of
the magnitude of emissions reductions is appropriate because
contingency measures serve a remedial function where an area fails to
achieve an RFP milestone or fails to attain the NAAQS by the applicable
attainment date, and RFP and attainment are achieved through emissions
reductions.\42\
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\42\ See, e.g., CAA sections 107(d)(3)(E)(iii), 171(1),
182(c)(1). Under CAA 182(g)(3), in the event that a Serious or
Severe ozone nonattainment area fails to meet an applicable
milestone, the state may elect to implement contingency measures
determined by the EPA as adequate to meet the next milestone, to
have the area reclassified to the next higher classification, or to
adopt an economic incentive program. If the state elects to
implement contingency measures, the EPA may require further measures
as necessary to meet the next milestone.
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Just as the CAA does not include the magnitude of emissions
reductions as a specific explicit consideration, the CAA also does not
prescribe how the EPA is to evaluate that question. As such, the EPA is
not relying on a factor that Congress did not intend the EPA to
consider when the Agency considers the emissions reductions from
already-implemented measures that are surplus to those needed for RFP
or attainment within a given nonattainment area when evaluating whether
the state's contingency measure submittal meets CAA sections 172(c)(9)
and 182(c)(9).
Comment #5: CBD states that the EPA does not say whether the
surplus emissions reductions considered in evaluating the adequacy of
contingency measures will remain surplus if the contingency measures
are triggered. CBD asserts that because these surplus reductions are
not contingency measures approved into the SIP (which the commenter
notes would contravene the Bahr decision), the EPA might consider them
surplus even after the area had failed to make RFP, and use the surplus
reductions as context to approve inadequate continency measures.
Response to Comment #5: As described in the proposed rule, the 2018
Western Nevada County Ozone Plan provides surplus emissions reductions
from CARB's already-adopted mobile source control program in the two
RFP milestone years and in the year following the attainment year.
CARB's estimates of surplus reductions in the RFP milestone years are
11 to 15 times greater than the amount required to show one year's
worth of RFP.\43\ In the year after the attainment year, CARB estimates
that NOX emissions in Western Nevada County will be
approximately 0.23 tons per day (tpd) lower in 2021 than in the 2020
attainment year due to mobile source controls and vehicle turnover.\44\
On this basis, we found that the District's contingency measures do not
need to achieve one year's worth of RFP alone, because these
contingency measures and other surplus emission reductions will ensure
sufficient continued progress in the event of a failure to achieve an
RFP milestone or a failure to attain the NAAQS by the applicable
attainment date. We therefore conditionally approved the Plan based on
the District's commitment to adopt and submit specific enforceable
contingency measures as described in letters from the District and
CARB.
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\43\ CARB estimates surplus reductions of 1.9 tpd of
NOX in 2017 and 2.6 tpd of NOX in 2020,
compared to the 0.17 tpd of NOX that represents one
year's worth of RFP. These estimates are derived from the surplus
percentages listed in Table 4 of the proposed rule (34 percent in
2017 and 45.9 percent in 2020) multiplied by the 2011 baseline
NOX emissions level of 5.69 tpd. See 86 FR 2318, 2331.
\44\ See 86 FR 2318, 2333.
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In the event that contingency measures were triggered for failure
to meet an RFP milestone, the District would be required to adopt new
contingency measures to take effect in the event of any subsequent
failure that would trigger a contingency measure.\45\ As described
above and in the proposed rule, the EPA evaluates any contingency
measures submission to ensure that the submitted measures will continue
to
[[Page 27530]]
make progress toward attainment in the event of a milestone or
attainment failure through additional emissions reductions at a rate
similar to that specified under the RFP requirements, given the facts
and circumstances of the nonattainment area. Therefore, an evaluation
of what emissions reductions are surplus would occur when a new
contingency measure is submitted, following a failure to meet an RFP
milestone or a failure to attain by the attainment date.
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\45\ See, e.g., General Preamble, 57 FR 13498, 13520 (explaining
that a state is required to adopt additional measures to replace
previously used contingency measures, to assure the continuing
availability of contingency measures).
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Comment #6: CBD asserts that the proposed rule approaches arbitrary
and capricious decision making because it states that it is useful to
distinguish RFP contingency measures and attainment contingency
measures but does not apply any relevant distinction between the two.
CBD asserts that the proposed rule is arbitrary and capricious because
it abandons a theory from a previous rulemaking that measures the
adequacy of attainment contingency measures by attempting to predict
what is necessary to make up a shortfall for a failure to attain
without providing an explanation. CBD says that the EPA needs to find a
measure for attainment contingency measures that aligns with the
statute and is rational. CBD suggests that the EPA could require a
state to use RACM measures not needed for expeditious attainment as
contingency measures. CBD notes that these measures might be de
minimis, and that the EPA could require one year of RFP as a fallback.
Response to Comment #6: As explained in the proposed rule, for
purposes of the ozone NAAQS the EPA distinguishes RFP contingency
measures from attainment contingency measures, respectively, as
contingency measures to address potential failures to achieve RFP
milestones and to address potential failure to attain the NAAQS.\46\
This distinction is useful for the purposes of evaluating the adequacy
of the emissions reductions from the contingency measures (once adopted
and submitted), relative to the facts and circumstances of the area,
and the anticipated needs to address a shortfall in the relevant years.
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\46\ 86 FR 2318, 2333.
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CBD's reference to the EPA's theory for measuring the adequacy of
attainment contingency measures includes a citation to our proposed
rulemaking for the Sacramento Metro nonattainment area. This appears to
refer to the EPA's finding for that area that the committed contingency
measures that served as the basis for our conditional approval were
projected to be sufficient to correct a failure to attain in less than
a year from the attainment date, and therefore reflect continued
progress for purposes of the attainment contingency measure
requirements.\47\ As described in the proposed rule, the 2018 Western
Nevada County Ozone Plan shows that reductions from the proposed
contingency measure, combined with additional emissions reductions from
other sources that the state does not rely upon to meet other
requirements in the nonattainment plan in the year following the
attainment year, will exceed one year's worth of RFP.\48\ For this
reason and for the reasons described above, we disagree that our
conditional approval of the attainment contingency measures is
arbitrary and capricious.
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\47\ See 85 FR 68509, 68529 (October 29, 2020). See General
Preamble, 57 FR 13498, 13511 (explaining that where a failure to
attain or meet RFP can be corrected in less than one year, the EPA
may consider contingency measures that are proportionally less than
one year's worth of RFP sufficient to correct the identified
failure).
\48\ 86 FR 2318, 2333 (January 12, 2021).
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A described above, we disagree that the EPA's longstanding approach
to evaluating attainment contingency measures is not rational or does
not align with the CAA. To CBD's specific suggestion that an area
should use RACM measures not needed for expeditious attainment as
contingency measures, we agree that this option may be available to
some districts and states \49\ but disagree with the commenter's
suggestion that the EPA would be constrained against approving other
measures that are consistent with the Act and the EPA's implementing
regulations with respect to contingency measure requirements.
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\49\ See, e.g., 81 FR 58010, 58066 (August 24, 2016) (suggesting
measures identified as possible RACM or RACT that are not needed for
expeditious attainment may be suitable as contingency measures).
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Comment #7: CBD's Appendix provides numerous comments directed at
the EPA's NOX Substitution Guidance, contending that the
EPA's NOX Substitution Guidance is illegitimate. These
comments assert generally that the NOX Substitution Guidance
contradicts CAA section 182(c)(2)(C) by recommending a procedure that
fails to demonstrate any equivalence between VOC and NOX
reductions, relies on incorrect policy assumptions, and gives legal
justifications that are without merit.
Response to Comment #7: Comments relating solely to the
NOX Substitution Guidance are outside the scope of this
rulemaking action. As noted in our proposed rule, our approval of the
District's use of NOX substitution is supported by local
conditions and needs as documented in the modeling and analysis
included in the 2018 Western Nevada County Ozone Plan, and is
consistent with the requirements in CAA section 182(c)(2)(C).
III. Final Action
No comments were submitted that change our assessment of the 2018
Western Nevada County Ozone Plan as described in our proposed action.
Therefore, for the reasons discussed in detail in the proposed rule and
summarized herein, under CAA section 110(k)(3), the EPA is taking final
action to approve as a revision to the California SIP the following
portions of the 2018 Western Nevada County Ozone Plan for the 2008
ozone NAAQS submitted by CARB on December 7, 2018:
Base year emissions inventory element as meeting the
requirements of CAA sections 172(c)(3) and 182(a)(1) and 40 CFR
51.1115;
RACM demonstration element as meeting the requirements of
CAA section 172(c)(1) and 40 CFR 51.1112(c);
Attainment demonstration element as meeting the
requirements of CAA section 182(c)(2)(A) and 40 CFR 51.1108;
ROP demonstration element as meeting the requirements of
CAA 182(b)(1) and 40 CFR 51.1110(a)(4)(i);
RFP demonstration element as meeting the requirements of
CAA sections 172(c)(2), 182(b)(1), and 182(c)(2)(B), and 40 CFR
51.1110(a)(4)(iii); and
Motor vehicle emissions budgets for the RFP milestone and
attainment year of 2020, as shown below, because they are consistent
with the RFP and attainment demonstrations for the 2008 ozone NAAQS
approved herein and meet the other criteria in 40 CFR 93.118(e).
Table 1--Transportation Conformity Budgets for 2020 for the 2008 Ozone
NAAQS in Western Nevada County
[Summer planning inventory, tpd]
------------------------------------------------------------------------
2020
-------------------
VOC NOX
------------------------------------------------------------------------
Motor vehicle emissions budget...................... 0.8 1.7
------------------------------------------------------------------------
Source: Table 7 of the 2018 Western Nevada County Ozone Plan.
We are also taking final action to find that the:
Requirements for enhanced monitoring under CAA section
182(c)(1) and 40 CFR 51.1102 for Western Nevada County for the 2008
ozone NAAQS have been met; and
[[Page 27531]]
The submitted 2020 budgets from the 2018 Western Nevada
County Ozone Plan are adequate for transportation conformity
purposes.\50\
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\50\ Pursuant to 40 CFR 93.118(f)(2)(iii), the EPA's adequacy
determination is effective upon publication of this final rule in
the Federal Register. The proposed rule proposed to find that
Western Nevada County had met the clean fuels fleet program
requirements in CAA sections 182(c)(4) and 246 and 40 CFR 51.1102
for the 2008 ozone NAAQS through the State's 1994 ``Opt-Out
Program'' SIP revision. However, as explained above, the area is not
subject to this element because its 1980 population was less than
250,000.
---------------------------------------------------------------------------
Lastly, we are conditionally approving, under CAA section
110(k)(4), the contingency measures element of the 2018 Western Nevada
County Ozone Plan as meeting the requirements of CAA sections 172(c)(9)
and 182(c)(9) for RFP and attainment contingency measures. Our approval
is based on commitments by the District and CARB to supplement the
element through submission, as a SIP revision (within one year of our
final conditional approval action), of a District rule that would add
new limits or other requirements that would apply if an RFP milestone
is not met or if Western Nevada County fails to attain the 2008 ozone
NAAQS by the applicable attainment date.\51\
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\51\ Letter dated November 16, 2020, from Richard Corey,
Executive Officer, CARB, to John Busterud, Regional Administrator,
EPA Region IX. CARB's letter also forwarded the District's
commitment letter to the EPA. The District's letter is dated October
26, 2020, from Gretchen Bennitt, NSAQMD Air Pollution Control
Officer, to Richard Corey, CARB Executive Officer.
---------------------------------------------------------------------------
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
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, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 20, 2021. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 13, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
For the reasons stated in the preamble, the EPA amends chapter I,
title 40 of the Code of Federal Regulations as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
0
2. Section 52.220 is amended by adding paragraph (c)(554) to read as
follows:
Sec. 52.220 Identification of plan--in part.
* * * * *
(c) * * *
(554) The following plan was submitted on December 7, 2018 by the
Governor's designee.
(i) [Reserved]
(ii) Additional materials. (A) Northern Sierra Air Quality
Management District
(1) Ozone Attainment Plan, Western Nevada County, State
Implementation Plan for the 2008 Primary Federal 8-Hour Ozone Standard
of .075 ppm, adopted on October 22, 2018.
(2) [Reserved]
(B) [Reserved]
0
3. Section 52.244 is amended by adding paragraph (a)(12) to read as
follows:
Sec. 52.244 Motor vehicle emissions budgets.
(a) * * *
(12) Nevada County (Western part), approved June 21, 2021.
* * * * *
[[Page 27532]]
0
4. Section 52.248 is amended by adding paragraph (l) to read as
follows:
Sec. 52.248 Identification of plan--conditional approval.
* * * * *
(l) The EPA is conditionally approving the California State
Implementation Plan (SIP) for Nevada County (Western part) for the 2008
ozone NAAQS with respect to the contingency measures requirements of
CAA sections 172(c)(9) and 182(c)(9). The conditional approval is based
on a commitment from the Northern Sierra Air Quality Management
District (District) in a letter dated October 26, 2020, to adopt a
specific rule revision, and a commitment from the California Air
Resources Board (CARB) dated November 16, 2020, to submit the amended
District rule to the EPA within 12 months of the effective date of the
final conditional approval. If the District or CARB fail to meet their
commitments within one year of the effective date of the final
conditional approval, the conditional approval is treated as a
disapproval.
[FR Doc. 2021-10510 Filed 5-20-21; 8:45 am]
BILLING CODE 6560-50-P
