[Federal Register Volume 82, Number 185 (Tuesday, September 26, 2017)]
[Rules and Regulations]
[Pages 44736-44738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20445]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2017-0426; FRL-9966-86-Region 9]


Finding of Failure To Submit State Implementation Plans Required 
for the 2008 8-Hour Ozone NAAQS; California; Sacramento Metro

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action finding that the state of California has failed to submit State 
Implementation Plans (SIPs) to satisfy certain requirements of the 
Clean Air Act (CAA) for the 2008 8-hour ozone National Ambient Air 
Quality Standards (NAAQS or ``standards''). Under the CAA and EPA's 
implementing regulations, states with nonattainment areas classified as 
Moderate, Serious, Severe or Extreme were required to submit by July 
20, 2016, SIPs demonstrating reasonable further progress (RFP) and 
attainment of the 2008 8-hour ozone standard as expeditiously as 
practicable but no later than the applicable dates established in the 
implementing regulations. States were also required to submit 
contingency plans to be triggered if attainment or RFP milestones were 
not met. The EPA is by this action making a finding of failure to 
submit attainment demonstration, attainment demonstration contingency, 
RFP, and RFP contingency SIPs for the Sacramento Metro nonattainment 
area. If the EPA has not affirmatively found that the state has 
submitted the required plans within 18 months, the offset sanction 
applies in the area. If within 6 additional months the EPA has still 
not affirmatively determined that the state has submitted the required 
plan, the highway funding sanction applies in the area. No later than 2 
years after the EPA makes the finding, if the state has not submitted, 
and EPA has not approved, the required SIP, the EPA must promulgate a 
Federal Implementation Plan.

DATES: This action will be effective on October 26, 2017.

FOR FURTHER INFORMATION CONTACT: Laura Lawrence, EPA Region IX, (415) 
972-3407, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to the EPA.

Notice and Comment Under the Administrative Procedure Act (APA)

    Section 553 of the APA, 5 U.S.C. 553(b)(3)(B), provides that, when 
an agency for good cause finds that notice and public procedure are 
impracticable, unnecessary or contrary to the public interest, the 
agency may issue a rule without providing notice and an opportunity for 
public comment. The EPA has determined that there is good cause for 
making this final agency action without prior proposal and opportunity 
for comment because no significant EPA judgment is involved in making a 
finding of failure to submit SIPs, or elements of SIPs, required by the 
CAA, where states have made no submission or incomplete submissions, to 
meet the requirement. Thus, notice and public procedures are 
unnecessary. The EPA finds that this constitutes good cause under 5 
U.S.C. 553(b)(3)(B).

I. Background and Overview

A. Statutory Requirements

    On March 27, 2008, the EPA issued its final action to revise the 
NAAQS for ozone to establish new 8-hour standards.\1\ In that action, 
the EPA promulgated identical revised primary and secondary ozone 
standards, designed to protect public health and welfare, of 0.075 
parts per million (ppm).\2\ Those standards are met when the 3-year 
average of the annual fourth highest daily maximum 8-hour average ozone 
concentration is less than or equal to 0.075 ppm.\3\
---------------------------------------------------------------------------

    \1\ 73 FR 16436.
    \2\ Since the 2008 primary and secondary NAAQS for ozone are 
identical, for convenience, we refer to both as ``the 2008 ozone 
NAAQS'' or ``the 2008 ozone standard.''
    \3\ 40 CFR 50.15.
---------------------------------------------------------------------------

    Promulgation of a revised NAAQS triggers a requirement for the EPA 
to designate areas of the country as nonattainment, attainment or 
unclassifiable for the standards. For the ozone NAAQS, this also 
involves classifying any nonattainment areas at the time of 
designation.\4\ Ozone nonattainment areas are classified based on the 
severity of their ozone levels (as determined based on the area's 
``design value,'' which represents air quality in the area for the most 
recent three years). The possible classifications for ozone 
nonattainment areas are Marginal, Moderate, Serious, Severe, and 
Extreme.\5\ Nonattainment areas with a ``lower'' classification have 
ozone levels that are closer to the standard than areas with a 
``higher'' classification.\6\
---------------------------------------------------------------------------

    \4\ CAA sections 107(d)(1) and 181(a)(1).
    \5\ CAA section 181(a)(1).
    \6\ See 40 CFR 51.1103 for the design value thresholds for each 
classification for the 2008 ozone NAAQS.
---------------------------------------------------------------------------

    On May 21, 2012 and June 11, 2012, the EPA issued rules designating 
areas throughout the country as nonattainment, attainment, or 
unclassifiable for the 2008 ozone NAAQS, effective July 20, 2012, and 
establishing classifications for the

[[Page 44737]]

designated nonattainment areas.\7\ The Sacramento Metro \8\ area was 
designated nonattainment with a classification of Severe. Areas 
designated nonattainment for the ozone NAAQS are subject to the general 
nonattainment area planning requirements of CAA section 172 and also to 
the ozone-specific planning requirements of CAA section 182.
---------------------------------------------------------------------------

    \7\ 77 FR 30088 (May 21, 2012) and 77 FR 34221 (June 11, 2012).
    \8\ The Sacramento Metro area consists of Sacramento and Yolo 
counties and portions of El Dorado, Placer, Solano and Sutter 
counties. For a precise description of the geographic boundaries of 
the Sacramento Metro area, see 40 CFR 81.305. Sacramento County is 
under the jurisdiction of the Sacramento Metropolitan Air Quality 
Management District. Yolo County and the eastern portion of Solano 
County comprise the Yolo-Solano AQMD. Sutter County is part of the 
Feather River AQMD. The Placer County Air Pollution Control District 
and the El Dorado County AQMD have jurisdiction over their 
respective counties.
---------------------------------------------------------------------------

    Ozone nonattainment areas in the lower classification levels have 
fewer and/or less stringent mandatory air quality planning and control 
requirements than those in higher classifications. For a Marginal area, 
a state is required to submit a baseline emission inventory, a rule 
requiring emissions statements from stationary sources, and a 
Nonattainment New Source Review (NNSR) program for the relevant ozone 
standard.\9\ For each higher ozone nonattainment classification, a 
state needs to comply with all lower area classification requirements, 
plus additional emissions controls and more expansive NNSR offset 
requirements. For areas classified Serious and above, a state needs to 
comply with the Marginal and Moderate area requirements, plus 
additional submittal requirements, including: A demonstration (based on 
photochemical modeling) showing the area will attain by the applicable 
attainment date; a demonstration that the area will reduce emissions by 
certain prescribed percentages averaged over each consecutive 3-year 
period until the attainment date; and contingency plans that are 
triggered in the event that the attainment date or an RFP milestone is 
not met.\10\
---------------------------------------------------------------------------

    \9\ CAA section 182(a).
    \10\ CAA sections 172(c)(9), 182(c)(2)(A) and (B), and 
182(c)(9).
---------------------------------------------------------------------------

    On March 6, 2015, the EPA established a final implementation rule 
for the 2008 ozone NAAQS (``2008 Ozone SIP Requirements Rule'').\11\ 
The purpose of that action was to detail the requirements applicable to 
ozone nonattainment areas and provide specific deadlines for SIP 
submittals. For areas classified Serious and above, the required 
submission of SIP revisions providing for an attainment demonstration, 
RFP demonstrations, and attainment and RFP contingency measures was due 
4 years after the effective date of area designation (i.e., July 20, 
2016).\12\
---------------------------------------------------------------------------

    \11\ 80 FR 12264.
    \12\ 40 CFR 51.1108(b) and 40 CFR 51.1110.
---------------------------------------------------------------------------

B. Consequences of Findings of Failure To Submit

    For plan requirements under subpart D, title I of the CAA, such as 
those for ozone nonattainment areas, if the EPA finds that a state has 
failed to make the required SIP submittal or that a submitted SIP is 
incomplete, then CAA section 179(a) establishes specific consequences, 
including the eventual imposition of mandatory sanctions for the 
affected area. Additionally, such a finding triggers an obligation 
under CAA section 110(c) for the EPA to promulgate a FIP no later than 
2 years from the finding of failure to submit a complete SIP, if the 
affected state has not submitted, and the EPA has not approved, the 
required SIP submittal.
    If the EPA has not affirmatively determined that a state has 
submitted a complete SIP addressing the deficiency that is the basis 
for the finding within 18 months of the effective date of this 
rulemaking, then pursuant to CAA section 179(a) and (b) and 40 CFR 
52.31, the offset sanction identified in CAA section 179(b)(2) will 
apply in the affected nonattainment area. If the EPA has not 
affirmatively determined that the state has submitted a complete SIP 
addressing the deficiency that is the basis for the finding within 6 
months after the offset sanction is imposed, then the highway funding 
sanction will apply in the affected nonattainment area, in accordance 
with CAA section 179(b)(1) and 40 CFR 52.31. If the state does not make 
the required SIP submittal and the EPA does not take final action to 
approve the submittal within 2 years of the effective date of these 
findings, the EPA is required to promulgate a FIP, pursuant to CAA 
section 179(a) and 40 CFR 52.31 for the affected nonattainment area.

II. Final Action

    We have yet to receive the required ozone SIP revision submittal 
from California for the Sacramento Metro area, and the submittal is 
more than six-months past due. The EPA is finding that California has 
failed to submit a SIP revision providing for an attainment 
demonstration, RFP demonstrations, and contingency measures (for 
attainment or RFP) for the 2008 ozone NAAQS for the Sacramento Metro 
area as required under subparts 1 and 2 of part D of title 1 of the CAA 
and the 2008 Ozone SIP Requirements Rule. The consequences of this 
finding is discussed above in section I.B. of this document.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Executive Order 
13563: Improving Regulation and Regulatory Review

    This 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 (PRA)

    This action does not impose an information collection burden under 
the provisions of the PRA. This final rule does not establish any new 
information collection requirement apart from what is already required 
by law. This rule relates to the requirement in the CAA for states to 
submit SIPs under sections 172 and 182 which address the statutory 
requirements that apply to areas designated as nonattainment for the 
ozone NAAQS.

C. Regulatory Flexibility Act (RFA)

    I certify that this rule will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. The rule is 
a finding that California has not submitted the necessary SIP 
revisions.

D. Unfunded Mandates Reform Act of 1995 (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This 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.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This rule finds that California has failed to 
submit SIP revisions that satisfy certain

[[Page 44738]]

nonattainment area planning requirements under sections 172 and 182 of 
the CAA for the 2008 ozone NAAQS for the Sacramento Metro area. No 
tribe is subject to the requirement to submit an implementation plan 
under section 172 or under subpart 2 of part D of Title I of the CAA. 
Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern health or safety risks that the EPA has 
reason to believe may disproportionately affect children, per the 
definition of ``covered regulatory action'' in section 2-202 of the 
Executive Order. This action is not subject to Executive Order 13045 
because it is a finding that California has failed to submit certain 
SIP revisions that satisfy the nonattainment area planning requirements 
under sections 172 and 182 of the CAA for the 2008 ozone NAAQS for the 
Sacramento Metro area and does not directly or disproportionately 
affect children.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed 
by this action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low-income, 
or indigenous populations. In finding that California has failed to 
submit SIP revisions that satisfy certain nonattainment area planning 
requirements under sections 172 and 182 of the CAA for the 2008 ozone 
NAAQS for the Sacramento Metro area, this action does not directly 
affect the level of protection provided to human health or the 
environment.

J. Congressional Review Act (CRA)

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

L. Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 27, 2017. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements.

    Dated: August 14, 2017.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 2017-20445 Filed 9-25-17; 8:45 am]
 BILLING CODE 6560-50-P