Air Plan Disapproval; California; Los Angeles-South Coast Air Basin; 1997 8-Hour Ozone, 7320-7327 [2024-02082]
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Federal Register / Vol. 89, No. 23 / Friday, February 2, 2024 / Proposed Rules
NAAQS for the Department. In support
of this proposed action, we have
concluded that our approval of the
submitted 2015 ozone certification for
the Department would comply with
section 110(l) of the Act because our
approval of the ozone certification will
not interfere with continued attainment
or maintenance of the NAAQS in the
Department. Similarly, we find that the
submitted revision is approvable under
section 193 of the Act because it does
not modify any control requirement in
effect before November 15, 1990,
without ensuring equivalent or greater
emission reductions. The EPA has
concluded that the State’s submission
fulfills the 40 CFR 51.1314 revision
requirement and meets the requirements
of CAA sections 110, 172(c)(5), 173,
182(a)(2)(C), 193, and the minimum SIP
requirements of 40 CFR 51.165. If we
finalize this action as proposed, our
action will incorporate this certification
into the federally enforceable SIP and be
codified through revisions to 40 CFR
52.1470 (Identification of plan).
The EPA has made, and will continue
to make, the State’s submission and all
other materials available electronically
through https://www.regulations.gov
and at the EPA Region IX Office (please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of
this preamble for more information). We
will accept comments from the public
on this proposal until March 4, 2024.
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V. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, the EPA’s role is to
approve state choices, provided that
they meet the criteria of the Clean Air
Act. Accordingly, this proposed action
merely proposes to approve state law as
meeting federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this proposed action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 14094 (88 FR
21879, April 11, 2023);
• 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
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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 subject to Executive Order
13045 (62 FR 19885, April 23, 1997)
because it proposes to approve a state
program;
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001); and
• 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.
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).
Executive Order 12898 (Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies
to identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on minority populations
and low-income populations to the
greatest extent practicable and
permitted by law. The EPA defines
environmental justice (EJ) as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies.’’ The EPA
further defines the term fair treatment to
mean that ‘‘no group of people should
bear a disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
The State did not evaluate
environmental justice considerations as
part of its SIP submittal; the CAA and
applicable implementing regulations
neither prohibit nor require such an
evaluation. The EPA did not perform an
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EJ analysis and did not consider EJ in
this action. Consideration of EJ is not
required as part of this action, and there
is no information in the record
inconsistent with the stated goal of E.O.
12898 of achieving environmental
justice for people of color, low-income
populations, and Indigenous peoples.
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.
Dated: January 29, 2024.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2024–02088 Filed 2–1–24; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2023–0626; FRL–11614–
01–R9]
Air Plan Disapproval; California; Los
Angeles-South Coast Air Basin; 1997
8-Hour Ozone
Environmental Protection
Agency (EPA).
AGENCY:
ACTION:
Proposed rule.
The Environmental Protection
Agency (EPA) is proposing to
disapprove a state implementation plan
(SIP) revision submitted by the State of
California to meet a Clean Air Act
(CAA) requirement for the 1997 8-hour
ozone national ambient air quality
standards (NAAQS or ‘‘standards’’) in
the Los Angeles-South Coast Air Basin,
California ozone nonattainment area
(‘‘South Coast’’). This submission, titled
‘‘Final Contingency Measure Plan—
Planning for Attainment of the 1997 80
ppb 8-hour Ozone Standard in the
South Coast Air Basin,’’ (‘‘Contingency
Measure Plan’’ or ‘‘Plan’’), addresses the
CAA requirements for the submission of
contingency measures that will be
implemented if emissions reductions
from anticipated technologies associated
with the area’s 1997 ozone NAAQS
attainment demonstration are not
achieved. We are taking comments on
this proposal and plan to follow with a
final action.
SUMMARY:
Comments must be received on
or before March 4, 2024.
DATES:
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Federal Register / Vol. 89, No. 23 / Friday, February 2, 2024 / Proposed Rules
Submit your comments,
identified by Docket ID No. EPA–R09–
OAR–2023–0626 at https://
www.regulations.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. The EPA may publish
any comment received to its public
docket. Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
For the full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets. If you need
assistance in a language other than
English or if you are a person with a
disability who needs a reasonable
accommodation at no cost to you, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Ginger Vagenas, EPA Region IX, 75
Hawthorne St., San Francisco, CA
94105. By phone: (415) 972–3964 or by
email at vagenas.ginger@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ refer to the EPA.
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Table of Contents
I. Background
A. Ozone Standards, Area Designations,
and State Implementation Plans
B. The South Coast Ozone Nonattainment
Area
C. Clean Air Act Provisions for New
Technologies
D. The EPA’s Prior Approvals of New
Technology Provisions for the 1997 8Hour Ozone Standards
II. Submission From the State of California
III. The EPA’s Evaluation
A. Procedural Requirements
B. Evaluation for Compliance With Clean
Air Act Requirements
IV. The EPA’s Proposed Action and Public
Comment
V. Statutory and Executive Order Reviews
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I. Background
A. Ozone Standards, Area Designations,
and State Implementation Plans
Ground-level ozone pollution is
formed from the reaction of volatile
organic compounds (VOC) and oxides of
nitrogen (NOX) in the presence of
sunlight.1 These two pollutants, referred
to as ozone precursors, are emitted by
many types of sources, including onroad and nonroad motor vehicles and
engines,2 power plants and industrial
facilities, and smaller area sources such
as lawn and garden equipment and
paints.
Scientific evidence indicates that
adverse public health effects occur
following exposure to ozone,
particularly in children and adults with
lung disease. Breathing air containing
ozone can reduce lung function and
inflame airways, which can increase
respiratory symptoms and aggravate
asthma or other lung diseases.3
Under section 109 of the CAA, the
EPA promulgates NAAQS for pervasive
air pollutants, such as ozone. The
NAAQS establish concentration levels
whose attainment and maintenance the
EPA has determined to be requisite to
protect public health and welfare. In
1979, the EPA established primary
(public health-based) and secondary
(welfare-based) NAAQS for ozone at
0.12 parts per million (ppm) averaged
over a 1-hour timeframe (‘‘1-hour ozone
NAAQS’’).4 In 1997, the EPA revised the
primary and secondary ozone NAAQS
to set the acceptable level of ozone in
the ambient air at 0.08 ppm averaged
over an 8-hour timeframe (‘‘1997 ozone
NAAQS’’).5 The EPA further tightened
the 8-hour ozone NAAQS to 0.075 ppm
in 2008 (‘‘2008 ozone NAAQS’’),6 and to
0.070 ppm in 2015 (‘‘2015 ozone
NAAQS’’).7 The EPA subsequently
revoked the 1-hour ozone NAAQS 8 and
the 1997 ozone NAAQS,9 but has
1 The State of California refers to ‘‘reactive
organic gases’’ (ROG) rather than VOC in some of
its ozone-related SIP submissions. As a practical
matter, ROG and VOC refer to the same set of
chemical constituents, and for the sake of
simplicity, we refer to this set of gases as VOC in
this proposed rule.
2 The EPA’s definition of ‘‘nonroad engine’’ is
found at 40 CFR 1068.30. The State of California
uses the term ‘‘off-road’’ instead of ‘‘nonroad.’’ The
terms are interchangeable.
3 ‘‘Fact Sheet—Final Revisions to the National
Ambient Air Quality Standards for Ozone,’’ dated
March 2008, available at https://www.epa.gov/sites/
default/files/2015-08/documents/ozone_fact_
sheet.pdf.
4 44 FR 8202 (February 8, 1979).
5 62 FR 38856 (July 18, 1997).
6 73 FR 16436 (March 27, 2008)
7 80 FR 65292 (October 26, 2015).
8 70 FR 44470 (August 3, 2005).
9 80 FR 12264 (March 6, 2015).
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retained applicable requirements for
anti-backsliding purposes for areas that
remained designated as nonattainment
for those standards at the time of
revocation.10
Section 110 of the CAA requires states
to develop and submit SIPs to
implement, maintain, and enforce the
NAAQS. States with nonattainment
areas are required to submit revisions to
their SIPs that include a control strategy
and technical analysis to demonstrate
how the area will attain the NAAQS by
the applicable attainment date (referred
to as an ‘‘attainment demonstration’’),
and to meet other requirements
according to each area’s nonattainment
classification. Under CAA section 181,
the EPA classifies ozone nonattainment
areas as ‘‘Marginal,’’ ‘‘Moderate,’’
‘‘Serious,’’ ‘‘Severe,’’ or ‘‘Extreme.’’
The SIP revision that is the subject of
this proposed action was submitted to
address the contingency measures
requirement of CAA section 182(e)(5)
for the 1997 ozone NAAQS. Under this
provision, states relying on the
development of new control techniques
or improvement of existing technologies
(‘‘new technology measures’’) to
demonstrate attainment in an Extreme
nonattainment area must submit
contingency measures to the EPA that
will be implemented if the anticipated
new technology measures do not
achieve the planned reductions.11
B. The South Coast Ozone
Nonattainment Area
The South Coast nonattainment area
for the 1997 ozone NAAQS consists of
Orange County, the southwestern twothirds of Los Angeles County,
southwestern San Bernardino County,
and western Riverside County. The
South Coast encompasses an area of
approximately 6,600 square miles and is
bounded by the Pacific Ocean to the
west and by the San Gabriel, San
Bernardino, and San Jacinto mountains
to the north and east.12 The population
of the South Coast is over 17 million
people.13
The EPA has classified the South
Coast as an ‘‘Extreme’’ nonattainment
area for the 1-hour ozone NAAQS, 1997
ozone NAAQS, 2008 ozone NAAQS,
10 40 CFR 51.1100(o). Continuing applicable
requirements for the 1997 ozone NAAQS include
the contingency measures requirement of CAA
section 182(e)(5). Id. at 51.1100(o)(16); see also id.
at 51.1105.
11 The CAA section 182(e)(5) requirements are
discussed in more detail in Section I.C. of this
document.
12 For a precise definition of the boundaries of the
South Coast 1997 ozone nonattainment area, see 40
CFR 81.305.
13 2016 South Coast Ozone SIP (‘‘2016 AQMP’’),
p. 1–5.
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and 2015 ozone NAAQS. For the 1997
ozone NAAQS, the area has an
attainment date of June 15, 2024.14
California first addressed the planning
requirements for the 1997 ozone
NAAQS with the ‘‘Final 2007 Air
Quality Management Plan’’ (‘‘2007
South Coast AQMP’’), prepared by the
South Coast Air Quality Management
District (SCAQMD), and the ‘‘State
Strategy for California’s 2007 State
Implementation Plan’’ (‘‘2007 State
Strategy’’), prepared by the California
Air Resources Board (CARB). These
submittals were subsequently revised in
2009 and 2011.15 Collectively, we refer
to these submittals and revisions as the
‘‘2007 South Coast Ozone SIP.’’ CARB
subsequently submitted revisions to the
2007 South Coast Ozone SIP’s control
strategy and commitments for the 1997
ozone NAAQS in 2012 (‘‘2012
AQMP’’) 16 and 2016 (‘‘2016 South
Coast Ozone SIP,’’ including the ‘‘2016
AQMP’’).17
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C. Clean Air Act Provisions for New
Technologies
For ozone nonattainment areas
classified as Extreme, the CAA
recognizes that an attainment plan may
rely to a certain extent on new or
evolving technologies, given the long
time period between developing the
initial plan and attaining the standards,
and the amount of emissions reductions
needed to attain. CAA section 182(e)(5)
authorizes the EPA to approve
provisions in an Extreme area plan that
anticipate development of new
technology measures, and to approve an
attainment demonstration based on such
provisions, if the state demonstrates
that: (1) such provisions are not
necessary to achieve the incremental
emission reductions required during the
first 10 years after the area’s
nonattainment designation; 18 and (2)
14 The EPA initially designated and classified the
South Coast as a ‘‘Severe-17’’ nonattainment area
for the 1997 ozone NAAQS in 2004. 69 FR 23858
(April 30, 2004). We later granted CARB’s request
to reclassify the area to Extreme. 75 FR 24409 (May
5, 2010).
15 77 FR 12674 (March 1, 2012). These submittals
and the related materials are included in the
associated docket, available at https://
www.regulations.gov/docket/EPA-R09-OAR-20110622.
16 See 79 FR 52526 (September 3, 2014). The 2012
AQMP and related materials are included in the
associated docket, available at https://
www.regulations.gov/docket/EPA-R09-OAR-20140185.
17 See 84 FR 52005 (October 1, 2019). The 2016
AQMP and related materials are included in the
associated docket, available at https://
www.regulations.gov/docket/EPA-R09-OAR-20190051.
18 CAA section 182(e)(5) specifies ‘‘the first 10
years after November 15, 1990,’’ which reflects the
effective date of designation for the 1-hour ozone
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the state has submitted enforceable
commitments to develop and adopt
contingency measures to be
implemented if the anticipated
technologies do not achieve the planned
reductions (‘‘182(e)(5) contingency
measures’’).19 New technology measures
may include those that anticipate future
technological developments as well as
those that require complex analyses,
decision making, and coordination
among a number of government
agencies.20 An attainment
demonstration that relies on planned
reductions from new technology
measures under section 182(e)(5) must
identify the measures for which
additional time would be needed for
development and adoption. The plan
must also show that the new technology
measures cannot be fully developed and
adopted by the submittal date for the
attainment demonstration and must
contain a schedule outlining the steps
leading to final development and
adoption of the measures.21
The state must submit the required
182(e)(5) contingency measures to the
EPA no later than 3 years before
proposed implementation of the plan
provisions that anticipate development
of new technology measures. The EPA
approves or disapproves section
182(e)(5) contingency measures in
accordance with CAA section 110. The
contingency measures must be adequate
to produce emissions reductions
sufficient, in conjunction with other
approved plan provisions, to make
reasonable further progress (RFP) and to
attain by the applicable dates. If the EPA
later determines that the Extreme area
has failed to make RFP or to attain, and
that such failure is due in whole or part
to an inability to fully implement the
new technology measures approved
under CAA section 182(e)(5), the EPA
will require the state to implement the
contingency measures to the extent
necessary to assure compliance with the
applicable requirement.22
D. The EPA’s Prior Approvals of New
Technology Provisions for the 1997 8Hour Ozone Standards
In our action on the South Coast
attainment demonstration for the 1997
ozone NAAQS in the 2007 South Coast
Ozone SIP, the EPA approved a number
of commitments regarding the
development of new pollution control
measures by CARB and the SCAQMD.
These included CARB’s commitments to
achieve, by 2023, 141 tons per day (tpd)
of NOX reductions and 54 tpd of VOC
reductions from defined measures and
to achieve 241 tpd of NOX reductions
and 40 tpd of VOC reductions from new
technology measures.23 We also
approved CARB’s commitment to
provide 182(e)(5) contingency measures
to cover any new technology measures
shortfall as part of our approval of the
2007 South Coast Ozone SIP.24
The 2012 AQMP included a list of
proposed new technology measures
intended to provide the emissions
reductions necessary to attain both the
1-hour ozone standard and the 1997 8hour ozone standard.25 We approved
these measures both for purposes of the
1-hour ozone attainment demonstration
and as an update to the 2007 South
Coast Ozone SIP’s new technology
measures for the 1997 8-hour ozone
standard.26
In the 2016 South Coast Ozone SIP,
which included an updated control
strategy and attainment demonstration
for the 1997 ozone standards, CARB
provided a revised list of new
technology measures and revised the
amount of reductions needed from
defined measures and new technology
measures. CARB committed to
achieving aggregate emissions
reductions of 113 tpd of NOX and 50 to
22 CAA
section 182(e)(5).
FR 12674, 12693 (March 1, 2012). California
relied on these reductions from new technology
measures for the attainment demonstration, but not
for the RFP demonstration or other provisions. 76
FR 57872, 57882.
24 77 FR 12674, 12693. See also CARB Resolution
11–22 (July 21, 2011) (CARB commitment to
‘‘develop, adopt, and submit contingency measures
by 2020 if advanced technology measures do not
achieve planned reductions’’) and letter dated
November 18, 2011, from James N. Goldstene,
Executive Officer, CARB, to Jared Blumenfeld,
Regional Administrator, EPA Region IX (further
clarifying CARB commitment).
25 A list of the SCAQMD and CARB new
technology measures in the 2012 AQMP is included
in Table 6 of the EPA’s notice of proposed
rulemaking. 79 FR 29712, 29722 (May 23, 2014).
26 79 FR 52526, 52537 (September 3, 2014). The
amount of reductions to be achieved through new
technology measures for the 1997 8-hour ozone
standard (40 tpd of VOC and 241 tpd of NOX) was
unchanged.
23 77
NAAQS. The EPA has interpreted this 10-year
timeframe to run from the effective date of
designation for the 1997 ozone NAAQS. 76 FR
57872, 57881, n.24.
19 CAA section 182(e)(5). In this document, we
refer to such contingency measures as ‘‘182(e)(5)
contingency measures’’ to distinguish them from
the contingency measures that are required under
CAA sections 172(c)(9) and 182(c)(9) for a failure
to make reasonable further progress (RFP) or to
attain by the attainment date. Attainment and RFP
contingency measures are a required element of an
attainment plan submission under part D of title I
of the CAA and are subject to the same submittal
deadline as the attainment plan. A state relying on
new technology measures in an Extreme area
attainment plan must submit 182(e)(5) contingency
measures in addition to the attainment and RFP
contingency measures otherwise required for the
area. 57 FR 13498, 13524 (April 16, 1992).
20 57 FR 13498, 13524.
21 Id.
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51 tpd of VOC, with 108 tpd of NOX
reductions and 41 tpd of VOC
reductions coming from new technology
measures, identified as ‘‘further
deployment of cleaner technologies’’
addressing emissions from on-road
light-duty and heavy-duty vehicles,
aircraft, locomotives, ocean-going
vessels, and off-road equipment.27 We
approved this updated demonstration
based on CARB’s previously-approved
commitment to submit 182(e)(5)
contingency measures by 2020 as
necessary to cover any emissions
reduction shortfall from new technology
measures.
Because reductions from new
technology measures were relied on to
ensure sufficient emissions reductions
by 2023 to provide for attainment of the
1997 ozone NAAQS by the June 15,
2024 attainment date, the 182(e)(5)
contingency measures would be
triggered upon the EPA finding that the
area failed to attain and that this failure
was due in whole or in part to a failure
to implement provisions approved
under CAA section 182(e)(5).28
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II. Submission From the State of
California
The SCAQMD prepared the
Contingency Measure Plan in
collaboration with CARB.29 It was
submitted by CARB to the EPA on
December 31, 2019,30 and became
complete by operation of law on July 1,
2020.
The Contingency Measure Plan is
intended to address the requirement in
CAA section 182(e)(5) that states relying
on reductions from new technology
measures to demonstrate attainment
must submit contingency measures no
later than three years before the
proposed implementation of those new
technology measures.31 Under CAA
section 182(e)(5), these contingency
measures are required to produce
emissions reductions sufficient to make
up any shortfall in reductions attributed
to new technology measures that were
relied upon to meet the applicable RFP
or attainment requirements. In this
instance, California committed to
achieve the NOX and VOC reductions
27 84 FR 28132 (June 17, 2019). See esp. id. at
Table 7 (identifying new technology measures
projected to generate 108 tpd NOX and 41 tpd VOC
emissions reductions needed by 2023).
28 57 FR 13498, 13524; CAA section 182(e)(5).
29 Letter dated December 6, 2019, from Wayne
Nastri, Executive Officer, SCAQMD, to Richard
Corey, Executive Officer, CARB and SCAQMD
Board Resolution 19–26.
30 Letter dated December 31, 2019, from Richard
W. Corey, Executive Officer, CARB, to Michael
Stoker, Regional Administrator, EPA Region 9
(submitted electronically December 31, 2019).
31 Contingency Measure Plan, p. 2.
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necessary to attain the 1997 ozone
NAAQS by 2023, relying in part on
reductions from new technology
measures. CARB’s submittal also
includes a CARB staff report titled
‘‘South Coast 8-Hour Ozone SIP
Update’’ (‘‘CARB Staff Report’’), a
response to public comments received
on the Plan (‘‘CARB Response to
Comments’’), and other supporting
documents, which are included in the
docket for this rulemaking action.
The Contingency Measure Plan does
not include contingency measures that
could be implemented in the event the
area fails to attain because the
previously anticipated new technologies
have not achieved the planned
reductions. Instead, the Plan updates
the State’s approach for achieving the
108 tpd of NOX reductions that the 2016
AQMP attributed to further deployment
of cleaner technologies.32 This updated
approach includes three specific
strategies: (1) identified emissions
reductions strategies (24–26 tpd); (2)
additional incentive funding (15 tpd);
and (3) federal sources and federal
measures (67–69 tpd).33
1. Identified Emissions Reductions
Strategies
Section 3 of the Contingency Measure
Plan identifies NOX reductions that
exceed the anticipated reductions from
defined SCAQMD measures and CARB
regulations identified in the 2016
AQMP. According to the Contingency
Measure Plan, by 2023, an additional
10.2–12.2 tpd of NOX reductions would
be achieved through the following: (1)
RECLAIM transition rules (2 tpd); (2)
facility-based mobile source measures
for commercial airports (0.5 tpd); (3)
facility-based mobile source measures
for marine ports (3.2–5.2 tpd); (4)
incentive funding (expected future
funding) (1.5 tpd); and (5) Metrolink tier
4 locomotives conversion (3.0 tpd).34
The Plan estimates that new mobile
source measures implemented by CARB
would provide an additional 6.15 tpd of
NOX reductions toward the 108 tpd of
NOX reductions that the State
committed to achieving through new
technology measures under CAA section
32 Id.
at 35.
at 39. Although California’s approved SIP
relies on planned reductions from new technology
measures for both NOX and VOC emissions
reductions, and the State committed to submitting
contingency measures for both, the Contingency
Measure Plan focuses on achieving NOX reductions.
In support of this approach, the State notes that for
the 1997 ozone NAAQS the area is more sensitive
to NOX emissions reductions, and that VOC
reductions from CARB’s commitment will occur
through implementation of the NOX reductions
strategy. Id. at 16.
34 Id. at Table 3–1.
33 Id.
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182(e)(5). These measures are listed in
Table 3–5 of the Plan and consist of the
following: (1) low-carbon fuel standard
and alternative diesel fuels regulation
(1.7 tpd); (2) airborne toxic control
measure (ATCM) for portable engines
and the statewide portable equipment
registration program (0.25 tpd); and (3)
heavy duty truck inspection and
maintenance program (4.2 tpd).
The Contingency Measure Plan also
describes a suite of innovative measures
that were not identified in the 2016
AQMP, but which had been adopted, or
would soon be adopted, by CARB.35
These measures, which the Contingency
Measure Plan estimates will provide
NOX reductions of 3.0 tpd, include
requirements for State contractors to use
the cleanest equipment available and for
State agencies to purchase the cleanest
vehicles and equipment available;
pricing programs to encourage people to
take public transit, carpool, or walk at
congested times of the day; and a
measure that would require certain
railroads to set aside funding for the
purchase of cleaner locomotives.
As described in the Contingency
Measure Plan, these reductions, in
conjunction with a 4.2 tpd adjustment
resulting from a previous overcommitment for reductions from oceangoing vessels,36 will provide a total of
24–26 tpd of NOX reductions towards
the 182(e)(5) commitment.37
2. Additional Incentive Funding
Section 4 of the Contingency Measure
Plan discusses additional incentive
funding that could speed the transition
to technologies that are cleaner than
required by current regulations. The
2016 AQMP identified a need for over
$1 billion per year in funds to
incentivize the transition to clean
vehicles, infrastructure, and equipment.
The SCAQMD notes that in the years
between the adoption of the 2016
AQMP and the adoption of the
Contingency Measure Plan, its efforts to
increase funding resulted in an
approximate doubling of incentive
funding, to $200–300 million per year.38
To address the shortfall between
existing funding and the amount the
SCAQMD estimated would be needed to
adequately fund incentive measures that
would provide reductions needed for
attainment, the SCAQMD identifies
several additional sources of funding for
incentive programs and describes its
ongoing advocacy efforts to secure more
funding, including sponsoring
35 Id.
at Tables ES–1 and ES–2, and at 49–52.
at 47.
37 Id. at Table ES–1.
38 Id. at 5.
36 Id.
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legislation that would allow the public
or the SCAQMD Board to put a sales tax
measure on the ballot in the South Coast
region. The SCAQMD estimates this
could generate a sustainable source of
funding in the amount of $1.4 billion
per year, and that this amount could
generate 15 tpd of NOX emissions
reductions in 2023.39
3. Federal Sources and Federal
Measures
Section 5 of the Contingency Measure
Plan designates additional reductions
from federal sources and measures that
the SCAQMD asserts will be necessary
for attainment. This section describes
California’s successful efforts to reduce
NOX emissions from sources subject to
its regulatory authority and explains
that the State has limited authority to
impose emissions controls on other
significant sources of emissions, such as
heavy duty trucks and engines sold
outside California; passenger and freight
locomotives, aircraft engines,
construction and agricultural equipment
under 175 horsepower; and ocean-going
vessels (which the Plan refers to
collectively as ‘‘federal sources’’).40 The
SCAQMD notes that, while NOX
emissions in the South Coast have
decreased by 70 percent since 1997,
NOX emissions from federal sources
have only decreased by 15 percent over
that same time period. Figure ES–3 in
the Contingency Measure Plan
illustrates the reductions that have been
achieved since 2000 and highlights the
increasing portion that federal sources
contribute to the overall emissions
inventory.41
The SCAQMD identifies the
emissions reductions potential, by 2023,
for the following four categories of
sources under federal authority or
responsibility: (1) low-NOX heavy-duty
vehicles (up to 35 tpd); (2) low-NOX
ocean-going vessels (up to 28 tpd); (3)
low-NOX locomotives (up to 11 tpd);
and (4) low-NOX aircraft (up to 4 tpd).42
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III. The EPA’s Evaluation
A. Procedural Requirements
CAA sections 110(a)(1) and (2) and
section 110(l) require a state to provide
reasonable public notice and an
opportunity for public hearing prior to
the adoption and submission of a SIP or
SIP revision. To meet these procedural
requirements, every SIP submission
should include evidence that the state
provided adequate public notice and an
opportunity for a public hearing
39 Id.
at 53–55.
at 56.
41 Id. at 6.
42 Id. at Table 5–3.
40 Id.
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consistent with the EPA’s implementing
regulations in 40 CFR 51.102.
CARB’s December 31, 2019 SIP
submittal package includes
documentation of the public processes
used by the SCAQMD and CARB to
adopt the Contingency Measure Plan. As
documented in the SIP revision
submittal package, on November 6,
2019, the SCAQMD published a notice
in newspapers of general circulation in
the South Coast that a public hearing to
consider adoption of the Plan would be
held on December 6, 2019. As
documented in the Minute Order of the
Air Pollution Control Board that is
included in the SIP revision submittal
package, the SCAQMD Governing Board
adopted the Contingency Measure Plan
on December 6, 2019, following the
public hearing.
On November 8, 2019, CARB
published on its website a notice of a
public hearing to be held on December
12, 2019, to consider adoption of the
plan. As evidenced by CARB Resolution
19–31, CARB adopted the Contingency
Measure Plan on December 12, 2019,
following a public hearing. Based on
documentation included in the
December 31, 2019 SIP revision
submittal package, we find that both the
SCAQMD and CARB have satisfied the
applicable statutory and regulatory
requirements for reasonable public
notice and hearing prior to the adoption
and submission of the Contingency
Measure Plan. Therefore, we find that
the submission of the Contingency
Measure Plan meets the procedural
requirements for public notice and
hearing in CAA sections 110(a) and
110(l) and in 40 CFR 51.102.
B. Evaluation for Compliance With
Clean Air Act Requirements
As described in Section I.C of this
document, CAA section 182(e)(5) allows
the EPA to approve an attainment
demonstration for an Extreme ozone
area that relies on anticipated new
technology measures, if (A) the
measures are not necessary to achieve
emission reductions required in the first
10 years after the area’s nonattainment
designation, and (B) the state submits
enforceable commitments to develop
and adopt contingency measures to be
implemented if the new technology
measures do not achieve the planned
reductions. The state must submit these
contingency measures no later than
three years before the new technology
measures would be implemented.
The EPA approves or disapproves
182(e)(5) contingency measures as SIP
revisions under CAA section 110. The
contingency measures must be adequate
to produce sufficient emission
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reductions, in conjunction with other
provisions of the approved SIP, to allow
the Extreme area to make RFP and to
attain by the applicable attainment date,
and must be capable of being
implemented in the event of a failure to
make RFP or to attain that is due in
whole or part to an inability to fully
implement the new technology
measures approved under CAA
182(e)(5).
As recounted in Section I.C of this
document, the 2007 South Coast Ozone
SIP’s attainment demonstration for the
1997 ozone NAAQS relied on new
technology measures to achieve 241 tpd
of NOX reductions and 40 tpd of VOC
reductions by 2023. With respect to the
182(e)(5) requirements, our approval of
the 2007 South Coast Ozone SIP relied
on CARB’s commitment to ‘‘develop,
adopt, and submit contingency
measures by 2020 if advanced
technology measures do not achieve
planned reductions.’’ 43 The 2016
AQMP subsequently revised the
reductions assigned to new technology
measures to 108 tpd of NOX and 41 tpd
of VOC by 2023.
The Contingency Measure Plan
identifies a combination of state and
federal strategies that CARB and the
SCAQMD project would result in the
108 tpd of NOX reductions previously
determined to be necessary for the area
to attain the 1997 ozone NAAQS. As
recounted in Section II of this
document, these include measures
identified since the 2016 AQMP that
were projected to be adopted by CARB
or the SCAQMD and to be implemented
prior to 2023, as well as reductions
anticipated from additional incentive
funding included in new and
anticipated state legislation, and
additional reductions assigned to
federal sources and measures that the
State asserts will be needed to reach
attainment. Thus, while some of the
identified measures are enforceable and
are presently being implemented to
achieve reductions, others (including
additional state incentive funding and
federal measures) are not fully
developed or implemented and are not
enforceable.44
43 77 FR 12674, 12693. CARB’s commitment is
outlined in CARB Resolution 11–22 (dated July 21,
2011) and in the letter dated November 18, 2011,
from James N. Goldstene, Executive Officer, CARB,
to Jared Blumenfeld, Regional Administrator, EPA
Region IX.
44 For example, CARB’s Response to Comments
indicates that the State intends to later develop the
Plan’s incentive measures into SIP submittals that
are ‘‘surplus, quantifiable, permanent, and
enforceable,’’ and that include an enforceable
mechanism to achieve the reductions from
substitute projects ‘‘if necessary,’’ but that those
elements were not required at the time that the
Contingency Measure Plan was submitted.
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Critically, while the Plan
acknowledges a continuing need for
additional measures to be developed
and adopted to satisfy the remaining
108 tpd of NOX projected to be
necessary for the South Coast to attain
the 1997 ozone NAAQS, it does not
include any contingency measures that
would be implemented if these
anticipated measures fail to achieve the
necessary reductions. This is
inconsistent with CAA section 182(e)(5),
which requires a state that relies on new
technology measures for an Extreme
area attainment demonstration to submit
contingency measures that can be
implemented in the event that the area
fails to attain as a result of the state’s
inability to fully implement the new
technology measures that were the basis
for the EPA’s approval.45
Additionally, the Contingency
Measure Plan’s assignment of NOX
reductions to federal measures and
sources subject to federal authority is
not approvable as a matter of law. In
evaluating prior SCAQMD attainment
plans that included similar ‘‘federal
assignments,’’ the EPA has consistently
taken the position that states do not
have authority under the CAA or the
U.S. Constitution to assign SIP
responsibilities to the federal
government.46 For the same reasons, we
see no basis for approving the federal
assignments included in the
Contingency Measure Plan.47 In effect,
the Contingency Measure Plan purports
to shift responsibility to achieve
45 A state would not need to submit 182(e)(5)
contingency measures if it can demonstrate
attainment without relying on emission reductions
from future development of new technology
measures. See 84 FR 52005, 52009–52010
(explaining that California was not required to
submit 182(e)(5) contingency measures for the 1hour ozone NAAQS once the State demonstrated
that it was no longer relying on new technology
measures for attainment). See also Contingency
Measure Plan at 1–2 (‘‘In this submittal, the State
must demonstrate that the assumed reductions from
future technology were already achieved, or if not,
the State must submit contingency measures
capable of achieving the remaining emission
reductions’’). Because the Contingency Measure
Plan continues to rely on emissions reductions from
measures requiring additional time for development
and adoption, the State remains subject to the
requirement to submit 182(e)(5) contingency
measures.
46 See, e.g., 61 FR 10920, 10936 (March 18, 1996);
62 FR 1150, 1152 (January 8, 1997); 64 FR 1770,
1776 (January 12, 1999); 75 FR 71294, 71309
(November 22, 2010).
47 The executive summary to the CARB Staff
Report acknowledges that federal assignments are
not permitted as a matter of law, and that the
reductions assigned to federal sources and measures
do not constitute a legally binding requirement
upon the EPA. CARB Staff Report, p. 6. While we
agree with this statement, we do not rely on it to
reach our conclusion that the Plan as submitted
fails to meet the contingency measure requirements
of 182(e)(5).
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reductions needed for the South Coast
to attain the 1997 ozone NAAQS from
the State to the federal government,
while failing to include any contingency
measures that could be implemented if
the planned reductions from new
technology measures are not achieved.
This approach falls short of CARB’s
specific enforceable commitment to
develop, adopt, and submit by 2020
contingency measures to be
implemented if new technology
measures do not achieve the planned
emissions reductions, as well as the
statutory requirement for CARB to
submit contingency measures adequate
to produce emission reductions
sufficient, in conjunction with other
approved plan provisions, to achieve
the emission reductions necessary for
attainment.
For the reasons outlined herein, we
are proposing to determine that the
Contingency Measure Plan does not
fulfill the contingency measure
requirements of CAA 182(e)(5), and on
that basis to disapprove the Plan.48
IV. The EPA’s Proposed Action and
Public Comment
As authorized in section 110(k)(3) of
the CAA, we are proposing full
disapproval of the Contingency Measure
Plan, because it fails to provide
contingency measures as required by
CAA section 182(e)(5), and because it
relies on improper ‘‘federal
assignments’’ to achieve the necessary
reductions. If we finalize this
disapproval, CAA section 110(c) would
require the EPA to promulgate a federal
implementation plan within 24 months
after the effective date of the final
action, unless we approve subsequent
SIP revisions that correct the
deficiencies identified in the final
approval.
In addition, final disapproval would
trigger the offset sanction in CAA
section 179(b)(2) 18 months after the
effective date of a final disapproval, and
the highway funding sanction in CAA
section 179(b)(1) six months after the
offset sanction is imposed. A sanction
will not be imposed if the EPA
determines that a subsequent SIP
submission corrects the deficiencies
identified in our final action before the
applicable deadline.
We will accept comments from the
public on the proposed disapproval for
the next 30 days.
48 See also CAA section 110(l) (specifying that
EPA may not approve a SIP revision that would
interfere with any applicable requirement
concerning attainment or any other applicable CAA
requirement).
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7325
V. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the
EPA’s role is to review state choices,
and approve those choices if they meet
the minimum criteria of the Act.
Accordingly, this action proposes to
disapprove a state submittal as not
meeting federal requirements, and does
not impose any additional requirements
beyond those imposed by state law.
Additional information about these
statutes and Executive Orders can be
found at https://www2.epa.gov/lawsregulations/laws-and-executive-orders.
A. Executive Order 12866, Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This proposed action is not a
significant regulatory action and was
therefore not submitted to the Office of
Management and Budget (OMB) for
review.
B. Paperwork Reduction Act
This proposed action does not impose
an information collection burden under
the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.,
because this proposed SIP disapproval
under section 110 and subchapter I, part
D of the CAA will not in-and-of itself
create any new information collection
burdens, but simply disapproves certain
state requirements submitted for
inclusion into the SIP. Burden is
defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to conduct
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements unless the
agency certifies that the rule will not
have a significant economic impact on
a substantial number of small entities.
Small entities include small businesses,
small not-for-profit enterprises, and
small governmental jurisdictions. For
purposes of assessing the impacts of this
proposed rule on small entities, small
entity is defined as: (1) a small business
as defined by the Small Business
Administration’s (SBA) regulations at 13
CFR 121.201; (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district, or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise which is independently
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owned and operated and is not
dominant in its field.
After considering the economic
impacts of this proposed action on small
entities, I certify that this proposed
action will not have a significant impact
on a substantial number of small
entities. This proposed rule does not
impose any requirements or create
impacts on small entities. This proposed
SIP disapproval under section 110 and
subchapter I, part D of the CAA will not
in-and-of itself create any new
requirements but simply disapproves
certain state requirements submitted for
inclusion into the SIP. Accordingly, it
affords no opportunity for the EPA to
fashion for small entities less
burdensome compliance or reporting
requirements or timetables or
exemptions from all or part of the rule.
The fact that the CAA prescribes that
various consequences (e.g., higher offset
requirements) may or will result from
disapproval actions does not mean that
the EPA either can or must conduct a
regulatory flexibility analysis for this
proposed action. Therefore, this
proposed action will not have a
significant economic impact on a
substantial number of small entities.
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D. Unfunded Mandates Reform Act
This proposed action contains no
Federal mandates under the provisions
of title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), 2 U.S.C.
1531–1538 for state, local, or tribal
governments or the private sector. The
EPA has determined that the proposed
disapproval action does not include a
federal mandate that may result in
estimated costs of $100 million or more
to either state, local, or tribal
governments in the aggregate, or to the
private sector. This action proposes to
disapprove pre-existing requirements
under state or local law and imposes no
new requirements. Accordingly, no
additional costs to state, local, or tribal
governments, or to the private sector,
result from this proposed action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires the EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by state
and local officials in the development of
regulatory policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the states, on the relationship
between the national government and
the states, or on the distribution of
power and responsibilities among the
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various levels of government.’’ This
proposed action does not have
federalism implications. It will not have
substantial direct effects on the states,
on the relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132, because it
merely disapproves certain state
requirements for inclusion into the SIP
and does not alter the relationship or
the distribution of power and
responsibilities established in the CAA.
Thus, Executive Order 13132 does not
apply to this proposed action.
F. Executive Order 13175, Coordination
With Indian Tribal Governments
This proposed action does not have
tribal implications, as specified in
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP that
the EPA is proposing to disapprove
would not 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, and the EPA notes that it
will not impose substantial direct costs
on tribal governments or preempt tribal
law. Thus, Executive Order 13175 does
not apply to this proposed action.
G. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
The EPA interprets Executive Order
13045 (62 FR 19885, April 23, 1997) as
applying only to those regulatory
actions that concern health or safety
risks, such that the analysis required
under section 5–501 of the Executive
Order has the potential to influence the
regulation. This proposed action is not
subject to Executive Order 13045
because it is not an economically
significant regulatory action based on
health or safety risks subject to
Executive Order 13045 (62 FR 19885,
April 23, 1997). This proposed SIP
disapproval under section 110 and
subchapter I, part D of the CAA will not
in-and-of itself create any new
regulations but simply disapproves
certain state requirements submitted for
inclusion into the SIP.
H. Executive Order 13211, Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This proposed action is not subject to
Executive Order 13211 (66 FR 28355,
May 22, 2001) because it is not a
significant regulatory action under
Executive Order 12866.
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I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, 12(d) (15 U.S.C. 272 note)
directs the EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. NTTAA directs the
EPA to provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards. The
EPA believes that this proposed action
is not subject to requirements of Section
12(d) of NTTAA because application of
those requirements would be
inconsistent with the CAA.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Population
Executive Order 12898 (Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
February 16, 1994) directs federal
agencies to identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on minority populations
and low-income populations to the
greatest extent practicable and
permitted by law. The EPA defines
environmental justice as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies.’’ The EPA
further defines the term fair treatment to
mean that ‘‘no group of people should
bear a disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
Neither CARB nor the SCAQMD
evaluated environmental justice
considerations as part of this SIP
submission; the CAA and applicable
implementing regulations neither
prohibit nor require such an evaluation.
The EPA did not perform an
environmental justice analysis and did
not consider environmental justice in
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this action. Consideration of
environmental justice is not required as
part of this action, and there is no
information in the record inconsistent
with the stated goal of Executive Order
12898 of achieving environmental
justice for people of color, low-income
populations, and Indigenous peoples.
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: January 29, 2024.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2024–02082 Filed 2–1–24; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Parts 383 and 384
[Docket No. FMCSA–2023–0115]
RIN 2126–AC46
Amendments to the Commercial
Driver’s License Requirements;
Increased Flexibility for Testing and for
Drivers After Passing the Skills Test
Federal Motor Carrier Safety
Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
FMCSA proposes to increase
flexibility for State Driver Licensing
Agencies (SDLAs) and commercial
driver’s license (CDL) applicants by
expanding applicants’ ability to take a
CDL skills test in a State other than their
State of domicile; permitting a
commercial learner’s permit (CLP)
holder who has passed the CDL skills
test to operate a commercial motor
vehicle (CMV) on public roads without
having a qualified CDL holder in the
passenger seat; eliminating the
requirement that an applicant wait at
least 14 days to take the CDL skills test
following initial issuance of the CLP.
The NPRM also proposes to remove the
requirement that CMV drivers must
have a passenger (P) endorsement to
transport CMVs designed to carry
passengers, including school buses,
when the vehicle is being transported in
a driveaway-towaway operation and the
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SUMMARY:
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vehicle is not carrying any passengers.
Additionally, FMCSA proposes to
require that third-party knowledge
examiners be subject to the training,
certification, and record check
standards currently applicable to State
knowledge examiners and third-party
knowledge testers be subject to the
auditing and monitoring requirements
now applicable to third-party skills
testers. The NPRM responds to petitions
for rulemaking from the American
Trucking Associations (ATA) and the
New Hampshire Department of
Transportation (NHDOT), as discussed
below. FMCSA believes these proposals
would improve the efficiency and
convenience of CDL issuance and
improve highway safety by further
ensuring the integrity of third-party CDL
knowledge testing.
DATES: Comments must be received on
or before April 2, 2024.
ADDRESSES: You may submit comments
identified by Docket Number FMCSA–
2023–0115 using any of the following
methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov/docket/
FMCSA-2023-0115/document. Follow
the online instructions for submitting
comments.
• Mail: Dockets Operations, U.S.
Department of Transportation, 1200
New Jersey Avenue SE, West Building,
Ground Floor, Washington, DC 20590–
0001.
• Hand Delivery or Courier: Dockets
Operations, U.S. Department of
Transportation, 1200 New Jersey
Avenue SE, West Building, Ground
Floor, Washington, DC 20590–0001,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
To be sure someone is there to help you,
please call (202) 366–9317 or (202) 366–
9826 before visiting Dockets Operations.
• Fax: (202) 493–2251.
FOR FURTHER INFORMATION CONTACT:
Patrick D. Nemons, Director, Office of
Safety Programs, FMCSA, 1200 New
Jersey Avenue SE, Washington, DC
20590–0001; (202) 385–2400;
patrick.nemons@dot.gov. If you have
questions on viewing or submitting
material to the docket, call Dockets
Operations at (202) 366–9826.
SUPPLEMENTARY INFORMATION: FMCSA
organizes this NPRM as follows:
I. Public Participation and Request for
Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
D. Comments on the Information
Collection
II. Executive Summary
A. Purpose and Summary of the Regulatory
Action
PO 00000
Frm 00031
Fmt 4702
Sfmt 4702
7327
B. Summary of Major Provisions
C. Costs and Benefits
III. Abbreviations
IV. Legal Basis
V. Background
VI. Discussion of Proposed Rulemaking
VII. Section-by-Section Analysis
VIII. Severability
IX. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and
Review), E.O. 13563 (Improving
Regulation and Regulatory Review), and
DOT Regulatory Policies and Procedures
B. Congressional Review Act
C. Waiver of Advance Notice of Proposed
Rulemaking
D. Regulatory Flexibility Act (Small
Entities)
E. Assistance for Small Entities
F. Unfunded Mandates Reform Act of 1995
G. Paperwork Reduction Act (Collection of
Information)
H. E.O. 13132 (Federalism)
I. Privacy
J. E.O. 13175 (Indian Tribal Governments)
K. National Environmental Policy Act of
1969
I. Public Participation and Request for
Comments
A. Submitting Comments
If you submit a comment, please
include the docket number for this
NPRM (FMCSA–2023–0115), indicate
the specific section of this document to
which your comment applies, and
provide a reason for each suggestion or
recommendation. You may submit your
comments and material online or by fax,
mail, or hand delivery, but please use
only one of these means. FMCSA
recommends that you include your
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address, or a phone number in the body
of your document so FMCSA can
contact you if there are questions
regarding your submission.
To submit your comment online, go to
https://www.regulations.gov/docket/
FMCSA-2023-0115/document, click on
this NPRM, click ‘‘Comment,’’ and type
your comment into the text box on the
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If you submit your comments by mail
or hand delivery, submit them in an
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know that they reached the facility,
please enclose a stamped, self-addressed
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FMCSA will consider all comments
and material received during the
comment period.
Confidential Business Information (CBI)
CBI is commercial or financial
information that is both customarily and
actually treated as private by its owner.
Under the Freedom of Information Act
E:\FR\FM\02FEP1.SGM
02FEP1
]]>Agencies
[Federal Register Volume 89, Number 23 (Friday, February 2, 2024)]
[Proposed Rules]
[Pages 7320-7327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02082]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2023-0626; FRL-11614-01-R9]
Air Plan Disapproval; California; Los Angeles-South Coast Air
Basin; 1997 8-Hour Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
disapprove a state implementation plan (SIP) revision submitted by the
State of California to meet a Clean Air Act (CAA) requirement for the
1997 8-hour ozone national ambient air quality standards (NAAQS or
``standards'') in the Los Angeles-South Coast Air Basin, California
ozone nonattainment area (``South Coast''). This submission, titled
``Final Contingency Measure Plan--Planning for Attainment of the 1997
80 ppb 8-hour Ozone Standard in the South Coast Air Basin,''
(``Contingency Measure Plan'' or ``Plan''), addresses the CAA
requirements for the submission of contingency measures that will be
implemented if emissions reductions from anticipated technologies
associated with the area's 1997 ozone NAAQS attainment demonstration
are not achieved. We are taking comments on this proposal and plan to
follow with a final action.
DATES: Comments must be received on or before March 4, 2024.
[[Page 7321]]
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0626 at https://www.regulations.gov. For comments submitted at
Regulations.gov, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a
language other than English or if you are a person with a disability
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: Ginger Vagenas, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3964 or by
email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. Background
A. Ozone Standards, Area Designations, and State Implementation
Plans
B. The South Coast Ozone Nonattainment Area
C. Clean Air Act Provisions for New Technologies
D. The EPA's Prior Approvals of New Technology Provisions for
the 1997 8-Hour Ozone Standards
II. Submission From the State of California
III. The EPA's Evaluation
A. Procedural Requirements
B. Evaluation for Compliance With Clean Air Act Requirements
IV. The EPA's Proposed Action and Public Comment
V. Statutory and Executive Order Reviews
I. Background
A. Ozone Standards, Area Designations, and State Implementation Plans
Ground-level ozone pollution is formed from the reaction of
volatile organic compounds (VOC) and oxides of nitrogen
(NOX) in the presence of sunlight.\1\ These two pollutants,
referred to as ozone precursors, are emitted by many types of sources,
including on-road and nonroad motor vehicles and engines,\2\ power
plants and industrial facilities, and smaller area sources such as lawn
and garden equipment and paints.
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\1\ The State of California refers to ``reactive organic gases''
(ROG) rather than VOC in some of its ozone-related SIP submissions.
As a practical matter, ROG and VOC refer to the same set of chemical
constituents, and for the sake of simplicity, we refer to this set
of gases as VOC in this proposed rule.
\2\ The EPA's definition of ``nonroad engine'' is found at 40
CFR 1068.30. The State of California uses the term ``off-road''
instead of ``nonroad.'' The terms are interchangeable.
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Scientific evidence indicates that adverse public health effects
occur following exposure to ozone, particularly in children and adults
with lung disease. Breathing air containing ozone can reduce lung
function and inflame airways, which can increase respiratory symptoms
and aggravate asthma or other lung diseases.\3\
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\3\ ``Fact Sheet--Final Revisions to the National Ambient Air
Quality Standards for Ozone,'' dated March 2008, available at
https://www.epa.gov/sites/default/files/2015-08/documents/ozone_fact_sheet.pdf.
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Under section 109 of the CAA, the EPA promulgates NAAQS for
pervasive air pollutants, such as ozone. The NAAQS establish
concentration levels whose attainment and maintenance the EPA has
determined to be requisite to protect public health and welfare. In
1979, the EPA established primary (public health-based) and secondary
(welfare-based) NAAQS for ozone at 0.12 parts per million (ppm)
averaged over a 1-hour timeframe (``1-hour ozone NAAQS'').\4\ In 1997,
the EPA revised the primary and secondary ozone NAAQS to set the
acceptable level of ozone in the ambient air at 0.08 ppm averaged over
an 8-hour timeframe (``1997 ozone NAAQS'').\5\ The EPA further
tightened the 8-hour ozone NAAQS to 0.075 ppm in 2008 (``2008 ozone
NAAQS''),\6\ and to 0.070 ppm in 2015 (``2015 ozone NAAQS'').\7\ The
EPA subsequently revoked the 1-hour ozone NAAQS \8\ and the 1997 ozone
NAAQS,\9\ but has retained applicable requirements for anti-backsliding
purposes for areas that remained designated as nonattainment for those
standards at the time of revocation.\10\
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\4\ 44 FR 8202 (February 8, 1979).
\5\ 62 FR 38856 (July 18, 1997).
\6\ 73 FR 16436 (March 27, 2008)
\7\ 80 FR 65292 (October 26, 2015).
\8\ 70 FR 44470 (August 3, 2005).
\9\ 80 FR 12264 (March 6, 2015).
\10\ 40 CFR 51.1100(o). Continuing applicable requirements for
the 1997 ozone NAAQS include the contingency measures requirement of
CAA section 182(e)(5). Id. at 51.1100(o)(16); see also id. at
51.1105.
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Section 110 of the CAA requires states to develop and submit SIPs
to implement, maintain, and enforce the NAAQS. States with
nonattainment areas are required to submit revisions to their SIPs that
include a control strategy and technical analysis to demonstrate how
the area will attain the NAAQS by the applicable attainment date
(referred to as an ``attainment demonstration''), and to meet other
requirements according to each area's nonattainment classification.
Under CAA section 181, the EPA classifies ozone nonattainment areas as
``Marginal,'' ``Moderate,'' ``Serious,'' ``Severe,'' or ``Extreme.''
The SIP revision that is the subject of this proposed action was
submitted to address the contingency measures requirement of CAA
section 182(e)(5) for the 1997 ozone NAAQS. Under this provision,
states relying on the development of new control techniques or
improvement of existing technologies (``new technology measures'') to
demonstrate attainment in an Extreme nonattainment area must submit
contingency measures to the EPA that will be implemented if the
anticipated new technology measures do not achieve the planned
reductions.\11\
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\11\ The CAA section 182(e)(5) requirements are discussed in
more detail in Section I.C. of this document.
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B. The South Coast Ozone Nonattainment Area
The South Coast nonattainment area for the 1997 ozone NAAQS
consists of Orange County, the southwestern two-thirds of Los Angeles
County, southwestern San Bernardino County, and western Riverside
County. The South Coast encompasses an area of approximately 6,600
square miles and is bounded by the Pacific Ocean to the west and by the
San Gabriel, San Bernardino, and San Jacinto mountains to the north and
east.\12\ The population of the South Coast is over 17 million
people.\13\
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\12\ For a precise definition of the boundaries of the South
Coast 1997 ozone nonattainment area, see 40 CFR 81.305.
\13\ 2016 South Coast Ozone SIP (``2016 AQMP''), p. 1-5.
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The EPA has classified the South Coast as an ``Extreme''
nonattainment area for the 1-hour ozone NAAQS, 1997 ozone NAAQS, 2008
ozone NAAQS,
[[Page 7322]]
and 2015 ozone NAAQS. For the 1997 ozone NAAQS, the area has an
attainment date of June 15, 2024.\14\
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\14\ The EPA initially designated and classified the South Coast
as a ``Severe-17'' nonattainment area for the 1997 ozone NAAQS in
2004. 69 FR 23858 (April 30, 2004). We later granted CARB's request
to reclassify the area to Extreme. 75 FR 24409 (May 5, 2010).
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California first addressed the planning requirements for the 1997
ozone NAAQS with the ``Final 2007 Air Quality Management Plan'' (``2007
South Coast AQMP''), prepared by the South Coast Air Quality Management
District (SCAQMD), and the ``State Strategy for California's 2007 State
Implementation Plan'' (``2007 State Strategy''), prepared by the
California Air Resources Board (CARB). These submittals were
subsequently revised in 2009 and 2011.\15\ Collectively, we refer to
these submittals and revisions as the ``2007 South Coast Ozone SIP.''
CARB subsequently submitted revisions to the 2007 South Coast Ozone
SIP's control strategy and commitments for the 1997 ozone NAAQS in 2012
(``2012 AQMP'') \16\ and 2016 (``2016 South Coast Ozone SIP,''
including the ``2016 AQMP'').\17\
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\15\ 77 FR 12674 (March 1, 2012). These submittals and the
related materials are included in the associated docket, available
at https://www.regulations.gov/docket/EPA-R09-OAR-2011-0622.
\16\ See 79 FR 52526 (September 3, 2014). The 2012 AQMP and
related materials are included in the associated docket, available
at https://www.regulations.gov/docket/EPA-R09-OAR-2014-0185.
\17\ See 84 FR 52005 (October 1, 2019). The 2016 AQMP and
related materials are included in the associated docket, available
at https://www.regulations.gov/docket/EPA-R09-OAR-2019-0051.
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C. Clean Air Act Provisions for New Technologies
For ozone nonattainment areas classified as Extreme, the CAA
recognizes that an attainment plan may rely to a certain extent on new
or evolving technologies, given the long time period between developing
the initial plan and attaining the standards, and the amount of
emissions reductions needed to attain. CAA section 182(e)(5) authorizes
the EPA to approve provisions in an Extreme area plan that anticipate
development of new technology measures, and to approve an attainment
demonstration based on such provisions, if the state demonstrates that:
(1) such provisions are not necessary to achieve the incremental
emission reductions required during the first 10 years after the area's
nonattainment designation; \18\ and (2) the state has submitted
enforceable commitments to develop and adopt contingency measures to be
implemented if the anticipated technologies do not achieve the planned
reductions (``182(e)(5) contingency measures'').\19\ New technology
measures may include those that anticipate future technological
developments as well as those that require complex analyses, decision
making, and coordination among a number of government agencies.\20\ An
attainment demonstration that relies on planned reductions from new
technology measures under section 182(e)(5) must identify the measures
for which additional time would be needed for development and adoption.
The plan must also show that the new technology measures cannot be
fully developed and adopted by the submittal date for the attainment
demonstration and must contain a schedule outlining the steps leading
to final development and adoption of the measures.\21\
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\18\ CAA section 182(e)(5) specifies ``the first 10 years after
November 15, 1990,'' which reflects the effective date of
designation for the 1-hour ozone NAAQS. The EPA has interpreted this
10-year timeframe to run from the effective date of designation for
the 1997 ozone NAAQS. 76 FR 57872, 57881, n.24.
\19\ CAA section 182(e)(5). In this document, we refer to such
contingency measures as ``182(e)(5) contingency measures'' to
distinguish them from the contingency measures that are required
under CAA sections 172(c)(9) and 182(c)(9) for a failure to make
reasonable further progress (RFP) or to attain by the attainment
date. Attainment and RFP contingency measures are a required element
of an attainment plan submission under part D of title I of the CAA
and are subject to the same submittal deadline as the attainment
plan. A state relying on new technology measures in an Extreme area
attainment plan must submit 182(e)(5) contingency measures in
addition to the attainment and RFP contingency measures otherwise
required for the area. 57 FR 13498, 13524 (April 16, 1992).
\20\ 57 FR 13498, 13524.
\21\ Id.
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The state must submit the required 182(e)(5) contingency measures
to the EPA no later than 3 years before proposed implementation of the
plan provisions that anticipate development of new technology measures.
The EPA approves or disapproves section 182(e)(5) contingency measures
in accordance with CAA section 110. The contingency measures must be
adequate to produce emissions reductions sufficient, in conjunction
with other approved plan provisions, to make reasonable further
progress (RFP) and to attain by the applicable dates. If the EPA later
determines that the Extreme area has failed to make RFP or to attain,
and that such failure is due in whole or part to an inability to fully
implement the new technology measures approved under CAA section
182(e)(5), the EPA will require the state to implement the contingency
measures to the extent necessary to assure compliance with the
applicable requirement.\22\
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\22\ CAA section 182(e)(5).
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D. The EPA's Prior Approvals of New Technology Provisions for the 1997
8-Hour Ozone Standards
In our action on the South Coast attainment demonstration for the
1997 ozone NAAQS in the 2007 South Coast Ozone SIP, the EPA approved a
number of commitments regarding the development of new pollution
control measures by CARB and the SCAQMD. These included CARB's
commitments to achieve, by 2023, 141 tons per day (tpd) of
NOX reductions and 54 tpd of VOC reductions from defined
measures and to achieve 241 tpd of NOX reductions and 40 tpd
of VOC reductions from new technology measures.\23\ We also approved
CARB's commitment to provide 182(e)(5) contingency measures to cover
any new technology measures shortfall as part of our approval of the
2007 South Coast Ozone SIP.\24\
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\23\ 77 FR 12674, 12693 (March 1, 2012). California relied on
these reductions from new technology measures for the attainment
demonstration, but not for the RFP demonstration or other
provisions. 76 FR 57872, 57882.
\24\ 77 FR 12674, 12693. See also CARB Resolution 11-22 (July
21, 2011) (CARB commitment to ``develop, adopt, and submit
contingency measures by 2020 if advanced technology measures do not
achieve planned reductions'') and letter dated November 18, 2011,
from James N. Goldstene, Executive Officer, CARB, to Jared
Blumenfeld, Regional Administrator, EPA Region IX (further
clarifying CARB commitment).
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The 2012 AQMP included a list of proposed new technology measures
intended to provide the emissions reductions necessary to attain both
the 1-hour ozone standard and the 1997 8-hour ozone standard.\25\ We
approved these measures both for purposes of the 1-hour ozone
attainment demonstration and as an update to the 2007 South Coast Ozone
SIP's new technology measures for the 1997 8-hour ozone standard.\26\
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\25\ A list of the SCAQMD and CARB new technology measures in
the 2012 AQMP is included in Table 6 of the EPA's notice of proposed
rulemaking. 79 FR 29712, 29722 (May 23, 2014).
\26\ 79 FR 52526, 52537 (September 3, 2014). The amount of
reductions to be achieved through new technology measures for the
1997 8-hour ozone standard (40 tpd of VOC and 241 tpd of
NOX) was unchanged.
---------------------------------------------------------------------------
In the 2016 South Coast Ozone SIP, which included an updated
control strategy and attainment demonstration for the 1997 ozone
standards, CARB provided a revised list of new technology measures and
revised the amount of reductions needed from defined measures and new
technology measures. CARB committed to achieving aggregate emissions
reductions of 113 tpd of NOX and 50 to
[[Page 7323]]
51 tpd of VOC, with 108 tpd of NOX reductions and 41 tpd of
VOC reductions coming from new technology measures, identified as
``further deployment of cleaner technologies'' addressing emissions
from on-road light-duty and heavy-duty vehicles, aircraft, locomotives,
ocean-going vessels, and off-road equipment.\27\ We approved this
updated demonstration based on CARB's previously-approved commitment to
submit 182(e)(5) contingency measures by 2020 as necessary to cover any
emissions reduction shortfall from new technology measures.
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\27\ 84 FR 28132 (June 17, 2019). See esp. id. at Table 7
(identifying new technology measures projected to generate 108 tpd
NOX and 41 tpd VOC emissions reductions needed by 2023).
---------------------------------------------------------------------------
Because reductions from new technology measures were relied on to
ensure sufficient emissions reductions by 2023 to provide for
attainment of the 1997 ozone NAAQS by the June 15, 2024 attainment
date, the 182(e)(5) contingency measures would be triggered upon the
EPA finding that the area failed to attain and that this failure was
due in whole or in part to a failure to implement provisions approved
under CAA section 182(e)(5).\28\
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\28\ 57 FR 13498, 13524; CAA section 182(e)(5).
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II. Submission From the State of California
The SCAQMD prepared the Contingency Measure Plan in collaboration
with CARB.\29\ It was submitted by CARB to the EPA on December 31,
2019,\30\ and became complete by operation of law on July 1, 2020.
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\29\ Letter dated December 6, 2019, from Wayne Nastri, Executive
Officer, SCAQMD, to Richard Corey, Executive Officer, CARB and
SCAQMD Board Resolution 19-26.
\30\ Letter dated December 31, 2019, from Richard W. Corey,
Executive Officer, CARB, to Michael Stoker, Regional Administrator,
EPA Region 9 (submitted electronically December 31, 2019).
---------------------------------------------------------------------------
The Contingency Measure Plan is intended to address the requirement
in CAA section 182(e)(5) that states relying on reductions from new
technology measures to demonstrate attainment must submit contingency
measures no later than three years before the proposed implementation
of those new technology measures.\31\ Under CAA section 182(e)(5),
these contingency measures are required to produce emissions reductions
sufficient to make up any shortfall in reductions attributed to new
technology measures that were relied upon to meet the applicable RFP or
attainment requirements. In this instance, California committed to
achieve the NOX and VOC reductions necessary to attain the
1997 ozone NAAQS by 2023, relying in part on reductions from new
technology measures. CARB's submittal also includes a CARB staff report
titled ``South Coast 8-Hour Ozone SIP Update'' (``CARB Staff Report''),
a response to public comments received on the Plan (``CARB Response to
Comments''), and other supporting documents, which are included in the
docket for this rulemaking action.
---------------------------------------------------------------------------
\31\ Contingency Measure Plan, p. 2.
---------------------------------------------------------------------------
The Contingency Measure Plan does not include contingency measures
that could be implemented in the event the area fails to attain because
the previously anticipated new technologies have not achieved the
planned reductions. Instead, the Plan updates the State's approach for
achieving the 108 tpd of NOX reductions that the 2016 AQMP
attributed to further deployment of cleaner technologies.\32\ This
updated approach includes three specific strategies: (1) identified
emissions reductions strategies (24-26 tpd); (2) additional incentive
funding (15 tpd); and (3) federal sources and federal measures (67-69
tpd).\33\
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\32\ Id. at 35.
\33\ Id. at 39. Although California's approved SIP relies on
planned reductions from new technology measures for both
NOX and VOC emissions reductions, and the State committed
to submitting contingency measures for both, the Contingency Measure
Plan focuses on achieving NOX reductions. In support of
this approach, the State notes that for the 1997 ozone NAAQS the
area is more sensitive to NOX emissions reductions, and
that VOC reductions from CARB's commitment will occur through
implementation of the NOX reductions strategy. Id. at 16.
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1. Identified Emissions Reductions Strategies
Section 3 of the Contingency Measure Plan identifies NOX
reductions that exceed the anticipated reductions from defined SCAQMD
measures and CARB regulations identified in the 2016 AQMP. According to
the Contingency Measure Plan, by 2023, an additional 10.2-12.2 tpd of
NOX reductions would be achieved through the following: (1)
RECLAIM transition rules (2 tpd); (2) facility-based mobile source
measures for commercial airports (0.5 tpd); (3) facility-based mobile
source measures for marine ports (3.2-5.2 tpd); (4) incentive funding
(expected future funding) (1.5 tpd); and (5) Metrolink tier 4
locomotives conversion (3.0 tpd).\34\
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\34\ Id. at Table 3-1.
---------------------------------------------------------------------------
The Plan estimates that new mobile source measures implemented by
CARB would provide an additional 6.15 tpd of NOX reductions
toward the 108 tpd of NOX reductions that the State
committed to achieving through new technology measures under CAA
section 182(e)(5). These measures are listed in Table 3-5 of the Plan
and consist of the following: (1) low-carbon fuel standard and
alternative diesel fuels regulation (1.7 tpd); (2) airborne toxic
control measure (ATCM) for portable engines and the statewide portable
equipment registration program (0.25 tpd); and (3) heavy duty truck
inspection and maintenance program (4.2 tpd).
The Contingency Measure Plan also describes a suite of innovative
measures that were not identified in the 2016 AQMP, but which had been
adopted, or would soon be adopted, by CARB.\35\ These measures, which
the Contingency Measure Plan estimates will provide NOX
reductions of 3.0 tpd, include requirements for State contractors to
use the cleanest equipment available and for State agencies to purchase
the cleanest vehicles and equipment available; pricing programs to
encourage people to take public transit, carpool, or walk at congested
times of the day; and a measure that would require certain railroads to
set aside funding for the purchase of cleaner locomotives.
---------------------------------------------------------------------------
\35\ Id. at Tables ES-1 and ES-2, and at 49-52.
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As described in the Contingency Measure Plan, these reductions, in
conjunction with a 4.2 tpd adjustment resulting from a previous over-
commitment for reductions from ocean-going vessels,\36\ will provide a
total of 24-26 tpd of NOX reductions towards the 182(e)(5)
commitment.\37\
---------------------------------------------------------------------------
\36\ Id. at 47.
\37\ Id. at Table ES-1.
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2. Additional Incentive Funding
Section 4 of the Contingency Measure Plan discusses additional
incentive funding that could speed the transition to technologies that
are cleaner than required by current regulations. The 2016 AQMP
identified a need for over $1 billion per year in funds to incentivize
the transition to clean vehicles, infrastructure, and equipment. The
SCAQMD notes that in the years between the adoption of the 2016 AQMP
and the adoption of the Contingency Measure Plan, its efforts to
increase funding resulted in an approximate doubling of incentive
funding, to $200-300 million per year.\38\
---------------------------------------------------------------------------
\38\ Id. at 5.
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To address the shortfall between existing funding and the amount
the SCAQMD estimated would be needed to adequately fund incentive
measures that would provide reductions needed for attainment, the
SCAQMD identifies several additional sources of funding for incentive
programs and describes its ongoing advocacy efforts to secure more
funding, including sponsoring
[[Page 7324]]
legislation that would allow the public or the SCAQMD Board to put a
sales tax measure on the ballot in the South Coast region. The SCAQMD
estimates this could generate a sustainable source of funding in the
amount of $1.4 billion per year, and that this amount could generate 15
tpd of NOX emissions reductions in 2023.\39\
---------------------------------------------------------------------------
\39\ Id. at 53-55.
---------------------------------------------------------------------------
3. Federal Sources and Federal Measures
Section 5 of the Contingency Measure Plan designates additional
reductions from federal sources and measures that the SCAQMD asserts
will be necessary for attainment. This section describes California's
successful efforts to reduce NOX emissions from sources
subject to its regulatory authority and explains that the State has
limited authority to impose emissions controls on other significant
sources of emissions, such as heavy duty trucks and engines sold
outside California; passenger and freight locomotives, aircraft
engines, construction and agricultural equipment under 175 horsepower;
and ocean-going vessels (which the Plan refers to collectively as
``federal sources'').\40\ The SCAQMD notes that, while NOX
emissions in the South Coast have decreased by 70 percent since 1997,
NOX emissions from federal sources have only decreased by 15
percent over that same time period. Figure ES-3 in the Contingency
Measure Plan illustrates the reductions that have been achieved since
2000 and highlights the increasing portion that federal sources
contribute to the overall emissions inventory.\41\
---------------------------------------------------------------------------
\40\ Id. at 56.
\41\ Id. at 6.
---------------------------------------------------------------------------
The SCAQMD identifies the emissions reductions potential, by 2023,
for the following four categories of sources under federal authority or
responsibility: (1) low-NOX heavy-duty vehicles (up to 35
tpd); (2) low-NOX ocean-going vessels (up to 28 tpd); (3)
low-NOX locomotives (up to 11 tpd); and (4) low-
NOX aircraft (up to 4 tpd).\42\
---------------------------------------------------------------------------
\42\ Id. at Table 5-3.
---------------------------------------------------------------------------
III. The EPA's Evaluation
A. Procedural Requirements
CAA sections 110(a)(1) and (2) and section 110(l) require a state
to provide reasonable public notice and an opportunity for public
hearing prior to the adoption and submission of a SIP or SIP revision.
To meet these procedural requirements, every SIP submission should
include evidence that the state provided adequate public notice and an
opportunity for a public hearing consistent with the EPA's implementing
regulations in 40 CFR 51.102.
CARB's December 31, 2019 SIP submittal package includes
documentation of the public processes used by the SCAQMD and CARB to
adopt the Contingency Measure Plan. As documented in the SIP revision
submittal package, on November 6, 2019, the SCAQMD published a notice
in newspapers of general circulation in the South Coast that a public
hearing to consider adoption of the Plan would be held on December 6,
2019. As documented in the Minute Order of the Air Pollution Control
Board that is included in the SIP revision submittal package, the
SCAQMD Governing Board adopted the Contingency Measure Plan on December
6, 2019, following the public hearing.
On November 8, 2019, CARB published on its website a notice of a
public hearing to be held on December 12, 2019, to consider adoption of
the plan. As evidenced by CARB Resolution 19-31, CARB adopted the
Contingency Measure Plan on December 12, 2019, following a public
hearing. Based on documentation included in the December 31, 2019 SIP
revision submittal package, we find that both the SCAQMD and CARB have
satisfied the applicable statutory and regulatory requirements for
reasonable public notice and hearing prior to the adoption and
submission of the Contingency Measure Plan. Therefore, we find that the
submission of the Contingency Measure Plan meets the procedural
requirements for public notice and hearing in CAA sections 110(a) and
110(l) and in 40 CFR 51.102.
B. Evaluation for Compliance With Clean Air Act Requirements
As described in Section I.C of this document, CAA section 182(e)(5)
allows the EPA to approve an attainment demonstration for an Extreme
ozone area that relies on anticipated new technology measures, if (A)
the measures are not necessary to achieve emission reductions required
in the first 10 years after the area's nonattainment designation, and
(B) the state submits enforceable commitments to develop and adopt
contingency measures to be implemented if the new technology measures
do not achieve the planned reductions. The state must submit these
contingency measures no later than three years before the new
technology measures would be implemented.
The EPA approves or disapproves 182(e)(5) contingency measures as
SIP revisions under CAA section 110. The contingency measures must be
adequate to produce sufficient emission reductions, in conjunction with
other provisions of the approved SIP, to allow the Extreme area to make
RFP and to attain by the applicable attainment date, and must be
capable of being implemented in the event of a failure to make RFP or
to attain that is due in whole or part to an inability to fully
implement the new technology measures approved under CAA 182(e)(5).
As recounted in Section I.C of this document, the 2007 South Coast
Ozone SIP's attainment demonstration for the 1997 ozone NAAQS relied on
new technology measures to achieve 241 tpd of NOX reductions
and 40 tpd of VOC reductions by 2023. With respect to the 182(e)(5)
requirements, our approval of the 2007 South Coast Ozone SIP relied on
CARB's commitment to ``develop, adopt, and submit contingency measures
by 2020 if advanced technology measures do not achieve planned
reductions.'' \43\ The 2016 AQMP subsequently revised the reductions
assigned to new technology measures to 108 tpd of NOX and 41
tpd of VOC by 2023.
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\43\ 77 FR 12674, 12693. CARB's commitment is outlined in CARB
Resolution 11-22 (dated July 21, 2011) and in the letter dated
November 18, 2011, from James N. Goldstene, Executive Officer, CARB,
to Jared Blumenfeld, Regional Administrator, EPA Region IX.
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The Contingency Measure Plan identifies a combination of state and
federal strategies that CARB and the SCAQMD project would result in the
108 tpd of NOX reductions previously determined to be
necessary for the area to attain the 1997 ozone NAAQS. As recounted in
Section II of this document, these include measures identified since
the 2016 AQMP that were projected to be adopted by CARB or the SCAQMD
and to be implemented prior to 2023, as well as reductions anticipated
from additional incentive funding included in new and anticipated state
legislation, and additional reductions assigned to federal sources and
measures that the State asserts will be needed to reach attainment.
Thus, while some of the identified measures are enforceable and are
presently being implemented to achieve reductions, others (including
additional state incentive funding and federal measures) are not fully
developed or implemented and are not enforceable.\44\
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\44\ For example, CARB's Response to Comments indicates that the
State intends to later develop the Plan's incentive measures into
SIP submittals that are ``surplus, quantifiable, permanent, and
enforceable,'' and that include an enforceable mechanism to achieve
the reductions from substitute projects ``if necessary,'' but that
those elements were not required at the time that the Contingency
Measure Plan was submitted.
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[[Page 7325]]
Critically, while the Plan acknowledges a continuing need for
additional measures to be developed and adopted to satisfy the
remaining 108 tpd of NOX projected to be necessary for the
South Coast to attain the 1997 ozone NAAQS, it does not include any
contingency measures that would be implemented if these anticipated
measures fail to achieve the necessary reductions. This is inconsistent
with CAA section 182(e)(5), which requires a state that relies on new
technology measures for an Extreme area attainment demonstration to
submit contingency measures that can be implemented in the event that
the area fails to attain as a result of the state's inability to fully
implement the new technology measures that were the basis for the EPA's
approval.\45\
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\45\ A state would not need to submit 182(e)(5) contingency
measures if it can demonstrate attainment without relying on
emission reductions from future development of new technology
measures. See 84 FR 52005, 52009-52010 (explaining that California
was not required to submit 182(e)(5) contingency measures for the 1-
hour ozone NAAQS once the State demonstrated that it was no longer
relying on new technology measures for attainment). See also
Contingency Measure Plan at 1-2 (``In this submittal, the State must
demonstrate that the assumed reductions from future technology were
already achieved, or if not, the State must submit contingency
measures capable of achieving the remaining emission reductions'').
Because the Contingency Measure Plan continues to rely on emissions
reductions from measures requiring additional time for development
and adoption, the State remains subject to the requirement to submit
182(e)(5) contingency measures.
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Additionally, the Contingency Measure Plan's assignment of
NOX reductions to federal measures and sources subject to
federal authority is not approvable as a matter of law. In evaluating
prior SCAQMD attainment plans that included similar ``federal
assignments,'' the EPA has consistently taken the position that states
do not have authority under the CAA or the U.S. Constitution to assign
SIP responsibilities to the federal government.\46\ For the same
reasons, we see no basis for approving the federal assignments included
in the Contingency Measure Plan.\47\ In effect, the Contingency Measure
Plan purports to shift responsibility to achieve reductions needed for
the South Coast to attain the 1997 ozone NAAQS from the State to the
federal government, while failing to include any contingency measures
that could be implemented if the planned reductions from new technology
measures are not achieved. This approach falls short of CARB's specific
enforceable commitment to develop, adopt, and submit by 2020
contingency measures to be implemented if new technology measures do
not achieve the planned emissions reductions, as well as the statutory
requirement for CARB to submit contingency measures adequate to produce
emission reductions sufficient, in conjunction with other approved plan
provisions, to achieve the emission reductions necessary for
attainment.
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\46\ See, e.g., 61 FR 10920, 10936 (March 18, 1996); 62 FR 1150,
1152 (January 8, 1997); 64 FR 1770, 1776 (January 12, 1999); 75 FR
71294, 71309 (November 22, 2010).
\47\ The executive summary to the CARB Staff Report acknowledges
that federal assignments are not permitted as a matter of law, and
that the reductions assigned to federal sources and measures do not
constitute a legally binding requirement upon the EPA. CARB Staff
Report, p. 6. While we agree with this statement, we do not rely on
it to reach our conclusion that the Plan as submitted fails to meet
the contingency measure requirements of 182(e)(5).
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For the reasons outlined herein, we are proposing to determine that
the Contingency Measure Plan does not fulfill the contingency measure
requirements of CAA 182(e)(5), and on that basis to disapprove the
Plan.\48\
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\48\ See also CAA section 110(l) (specifying that EPA may not
approve a SIP revision that would interfere with any applicable
requirement concerning attainment or any other applicable CAA
requirement).
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IV. The EPA's Proposed Action and Public Comment
As authorized in section 110(k)(3) of the CAA, we are proposing
full disapproval of the Contingency Measure Plan, because it fails to
provide contingency measures as required by CAA section 182(e)(5), and
because it relies on improper ``federal assignments'' to achieve the
necessary reductions. If we finalize this disapproval, CAA section
110(c) would require the EPA to promulgate a federal implementation
plan within 24 months after the effective date of the final action,
unless we approve subsequent SIP revisions that correct the
deficiencies identified in the final approval.
In addition, final disapproval would trigger the offset sanction in
CAA section 179(b)(2) 18 months after the effective date of a final
disapproval, and the highway funding sanction in CAA section 179(b)(1)
six months after the offset sanction is imposed. A sanction will not be
imposed if the EPA determines that a subsequent SIP submission corrects
the deficiencies identified in our final action before the applicable
deadline.
We will accept comments from the public on the proposed disapproval
for the next 30 days.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to review state choices,
and approve those choices if they meet the minimum criteria of the Act.
Accordingly, this action proposes to disapprove a state submittal as
not meeting federal requirements, and does not impose any additional
requirements beyond those imposed by state law.
Additional information about these statutes and Executive Orders
can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866, Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This proposed action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act
This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq., because this proposed SIP disapproval under section 110
and subchapter I, part D of the CAA will not in-and-of itself create
any new information collection burdens, but simply disapproves certain
state requirements submitted for inclusion into the SIP. Burden is
defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. For purposes of assessing the impacts of this proposed
rule on small entities, small entity is defined as: (1) a small
business as defined by the Small Business Administration's (SBA)
regulations at 13 CFR 121.201; (2) a small governmental jurisdiction
that is a government of a city, county, town, school district, or
special district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently
[[Page 7326]]
owned and operated and is not dominant in its field.
After considering the economic impacts of this proposed action on
small entities, I certify that this proposed action will not have a
significant impact on a substantial number of small entities. This
proposed rule does not impose any requirements or create impacts on
small entities. This proposed SIP disapproval under section 110 and
subchapter I, part D of the CAA will not in-and-of itself create any
new requirements but simply disapproves certain state requirements
submitted for inclusion into the SIP. Accordingly, it affords no
opportunity for the EPA to fashion for small entities less burdensome
compliance or reporting requirements or timetables or exemptions from
all or part of the rule. The fact that the CAA prescribes that various
consequences (e.g., higher offset requirements) may or will result from
disapproval actions does not mean that the EPA either can or must
conduct a regulatory flexibility analysis for this proposed action.
Therefore, this proposed action will not have a significant economic
impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
This proposed action contains no Federal mandates under the
provisions of title II of the Unfunded Mandates Reform Act of 1995
(UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or
the private sector. The EPA has determined that the proposed
disapproval action does not include a federal mandate that may result
in estimated costs of $100 million or more to either state, local, or
tribal governments in the aggregate, or to the private sector. This
action proposes to disapprove pre-existing requirements under state or
local law and imposes no new requirements. Accordingly, no additional
costs to state, local, or tribal governments, or to the private sector,
result from this proposed action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.'' This
proposed action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132, because it merely disapproves
certain state requirements for inclusion into the SIP and does not
alter the relationship or the distribution of power and
responsibilities established in the CAA. Thus, Executive Order 13132
does not apply to this proposed action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
This proposed action does not have tribal implications, as
specified in Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP that the EPA is proposing to disapprove would not 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, and the
EPA notes that it will not impose substantial direct costs on tribal
governments or preempt tribal law. Thus, Executive Order 13175 does not
apply to this proposed action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 (62 FR 19885, April 23,
1997) as applying only to those regulatory actions that concern health
or safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
proposed action is not subject to Executive Order 13045 because it is
not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997). This proposed SIP disapproval under section 110 and subchapter
I, part D of the CAA will not in-and-of itself create any new
regulations but simply disapproves certain state requirements submitted
for inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed action is not subject to Executive Order 13211 (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs the EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards. The EPA
believes that this proposed action is not subject to requirements of
Section 12(d) of NTTAA because application of those requirements would
be inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
The EPA defines environmental justice as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' The EPA further defines the term fair treatment to mean
that ``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
Neither CARB nor the SCAQMD evaluated environmental justice
considerations as part of this SIP submission; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. The EPA did not perform an environmental justice analysis
and did not consider environmental justice in
[[Page 7327]]
this action. Consideration of environmental justice is not required as
part of this action, and there is no information in the record
inconsistent with the stated goal of Executive Order 12898 of achieving
environmental justice for people of color, low-income populations, and
Indigenous peoples.
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: January 29, 2024.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2024-02082 Filed 2-1-24; 8:45 am]
BILLING CODE 6560-50-P
