[Federal Register Volume 83, Number 93 (Monday, May 14, 2018)]
[Proposed Rules]
[Pages 22235-22238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-10217]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R09-OAR-2018-0223; FRL-9978-01-Region 9]


Air Plan Approval; California; Eastern Kern Air Pollution Control 
District; Reclassification

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Under the Clean Air Act, the Environmental Protection Agency 
(EPA) is proposing to grant a request by the State of California to 
reclassify the Eastern Kern County (``Eastern Kern'') nonattainment 
area from ``Moderate'' to ``Serious'' for the 2008 ozone national 
ambient air quality standards (NAAQS). In connection with the 
reclassification, the EPA is proposing to establish a deadline of no 
later than 12 months from the effective date of reclassification for 
submittal of revisions to the Eastern Kern portion of the California 
State Implementation Plan (SIP) to meet certain additional requirements 
for Serious ozone nonattainment areas. The EPA has already received SIP 
revision submittals addressing most of the additional SIP requirements.

DATES: Any comments must arrive by June 13, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2018-0223 at http://www.regulations.gov, or via email to Nancy 
Levin, at [email protected]. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments.

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Once submitted, comments cannot be edited or removed from 
Regulations.gov. For either manner of submission, the EPA may publish 
any comment received to its public docket. Do not submit electronically 
any information you consider to be Confidential Business Information 
(CBI) or other information whose disclosure is restricted by statute. 
Multimedia submissions (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 http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Nancy Levin, EPA Region IX, (415) 972-
3848, [email protected].

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

Table of Contents

I. Background
II. State Request for Reclassification
III. Evaluation of Voluntary Reclassification Request
IV. Proposed Action and Public Comment
V. Statutory and Executive Order Reviews

I. Background

    The Clean Air Act (CAA) requires the EPA to establish a NAAQS for 
certain pervasive pollutants that ``may reasonably be anticipated to 
endanger public health and welfare'' and to develop a primary and 
secondary standard for each NAAQS. The primary standard is designed to 
protect public health with an adequate margin of safety, and the 
secondary standard is designed to protect public welfare and the 
environment. The EPA has set NAAQS for six common air pollutants, 
referred to as criteria pollutants, including ozone. The NAAQS 
represents the air quality levels an area must meet to comply with the 
CAA.
    Ozone is a gas composed of three oxygen atoms and is created by a 
chemical reaction between volatile organic compounds (VOC) and oxides 
of nitrogen (NOX) in the atmosphere in the presence of 
sunlight. Ground-level ozone can harm human health and the environment. 
Ozone exposure has been associated with increased susceptibility to 
respiratory infections, medication use by asthmatics, doctor visits, 
and emergency department visits and hospital admissions for individuals 
with respiratory disease. Ozone exposure may also contribute to 
premature death, especially in people with heart and lung disease.
    In March 2008, the EPA strengthened the primary and secondary 
eight-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm 
(``2008 ozone NAAQS''). 73 FR 16436 (March 27, 2008).\1\ In accordance 
with section 107(d) of the CAA, the EPA must designate an area 
``nonattainment'' if it is violating the NAAQS or if it is contributing 
to a violation of the NAAQS in a nearby area. With respect to the ozone 
NAAQS, the EPA further classifies nonattainment areas as ``Marginal,'' 
``Moderate,'' ``Serious,'' ``Severe,'' or ``Extreme,'' depending upon 
the ozone design value for an area.\2\ See CAA section 181(a)(1). As a 
general matter, higher classified ozone nonattainment areas are subject 
to a greater number of, and more stringent, SIP requirements than lower 
classified areas but are allowed more time to demonstrate attainment of 
the ozone NAAQS. See, generally, subpart 2 of part D of title I of the 
CAA. Depending upon the classification, states with ozone nonattainment 
areas are required under the CAA to develop and submit SIP revisions 
providing for, among other elements, a base year emissions inventory, 
new source review (NSR), implementation of reasonably available control 
technology (RACT), reasonable further progress (RFP), a demonstration 
of attainment, and contingency measures.
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    \1\ Today's proposed rule relates to classifications and SIP 
submittal obligations associated with the 2008 ozone NAAQS. In 2015, 
the EPA further tightened the 8-hour ozone NAAQS from 0.075 ppm to 
0.070 ppm (``2015 ozone NAAQS''). 80 FR 65292 (October 26, 2015). 
Designations, classifications and SIP obligations for the 2015 ozone 
NAAQS are being addressed separately from this action.
    \2\ For the 2008 ozone NAAQS, the design value at each 
monitoring site is the annual fourth-highest daily maximum 8-hour 
average ozone concentration, averaged over three years. The design 
value for an area is the highest design value among the monitoring 
sites.
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    Effective July 20, 2012, the EPA established initial air quality 
designations for the 2008 ozone NAAQS. The EPA designated and initially 
classified Eastern Kern \3\ as a Marginal nonattainment area for the 
2008 ozone NAAQS. 77 FR 30088 (May 21, 2012). For Marginal ozone 
nonattainment areas, the attainment date for the 2008 ozone NAAQS is as 
expeditious as practicable but not later than three years from the 
effective date of designation, i.e., no later than July 20, 2015. See 
40 CFR 51.1103(a).
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    \3\ Kern County is located in the southern-most portion of 
California's Central Valley. The western half of Kern County is part 
of the San Joaquin Valley air basin and is included within the San 
Joaquin Valley ozone nonattainment area. The eastern half of Kern 
County is part of the Mojave Desert air basin. The Eastern Kern 
ozone nonattainment area covers the eastern half of the county 
excluding Indian Wells Valley. For more detail on the boundaries of 
the Eastern Kern ozone nonattainment area, see the 2008 ozone table 
in 40 CFR 81.305.
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    Under CAA section 181(b)(2), the EPA is required to determine 
whether an area attained the ozone NAAQS by the applicable attainment 
date, and in May 2016, the EPA found that Eastern Kern had failed to 
attain the 2008 ozone NAAQS by the applicable Marginal attainment date 
(i.e., by July 20, 2015) and reclassified the area as Moderate. 81 FR 
26697 (May 4, 2016). For Moderate ozone nonattainment areas, the 
attainment date is as expeditious as practicable but not later than 
July 20, 2018. See 40 CFR 51.1103(a). States with newly-reclassified 
Moderate ozone areas were required to submit SIP revisions meeting the 
applicable Moderate area requirements by January 1, 2017. 81 FR 26697 
(May 4, 2016).

II. State Request for Reclassification

    As described above, in 2016, the EPA reclassified the Eastern Kern 
2008 ozone nonattainment area to Moderate, and, in response to the 
reclassification, the Eastern Kern Air Pollution Control District 
(EKAPCD) began to develop an ozone plan meeting the applicable ozone 
nonattainment area requirements, such as an attainment demonstration. 
However, in light of the attainment demonstration needs for the area, 
the EKAPCD developed the ozone plan, titled Eastern Kern Air Pollution 
Control District 2017 Ozone Attainment Plan for the Federal 75 ppb 8-
Hour Ozone Standard (``Eastern Kern 2017 Ozone Plan''), to meet 
Serious, rather than Moderate, ozone nonattainment requirements. The 
Eastern Kern 2017 Ozone Plan includes a request to the California Air 
Resources Board (CARB) to formally submit a request to the EPA asking 
for voluntary reclassification of the Eastern Kern ozone nonattainment 
area from Moderate to Serious for the 2008 ozone NAAQS.\4\ On July 27, 
2017, the EKAPCD adopted the Eastern Kern 2017 Ozone Plan and 
transmitted the plan to CARB for approval and submittal to the EPA. 
Through Resolution 17-25 (dated September 28, 2017), CARB adopted the 
plan and the EKAPCD's request for voluntary

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reclassification. Subsequently, on October 25, 2017, CARB submitted the 
Eastern Kern 2017 Ozone Plan to the EPA as a revision to the California 
SIP. CARB's October 25, 2017 SIP revision submittal constitutes a 
request for reclassification of the Eastern Kern ozone nonattainment 
area.
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    \4\ See page vi of the Eastern Kern 2017 Ozone Plan.
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III. Evaluation of Voluntary Reclassification Request

    Under the EPA's ozone implementation rule at 40 CFR 51.1103(b), a 
state may request, and the EPA must approve, a higher classification 
for any reason in accordance with CAA section 181(b)(3).\5\ We find 
that the plain language of CAA section 181(b)(3) and 40 CFR 51.1103(b) 
mandates that we approve voluntary reclassification requests, and thus, 
the EPA proposes in this action to grant CARB's request to reclassify 
the Eastern Kern nonattainment area from Moderate to Serious for the 
2008 ozone NAAQS. Upon the effective date of a final action granting 
the reclassification, the area will be required to attain the 2008 
ozone NAAQS as expeditiously as practicable, but not later than July 
20, 2021.
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    \5\ CAA section 181(b)(3) provides that the EPA shall grant the 
request of any state to reclassify an ozone nonattainment area to a 
higher classification.
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    By granting a state's request to reclassify an ozone nonattainment 
area to a higher classification, the EPA must address submittal 
deadlines for SIP requirements that have become applicable to an area 
as a result of its higher classification. Such SIP requirements include 
submittals that include provisions to require implementation of RACT 
for existing stationary sources and permits for new or modified 
stationary sources (i.e., NSR), and to provide for RFP, attainment and 
contingency measures. For areas reclassified from Moderate to Serious, 
the ``major source'' threshold for RACT and NSR purposes falls from 100 
tons per year of VOC or NOX to 50 tons per year of VOC or 
NOX.
    As noted above, in October 2017, CARB submitted the Eastern Kern 
2017 Ozone Plan to the EPA as a revision to the California SIP. We have 
reviewed the October 2017 submittal and find that it addresses the 
following Serious ozone area SIP requirements: Base year emissions 
inventory, emission statements, reasonably available control measure 
(RACM) demonstration, RFP, attainment demonstration and contingency 
measures.
    In addition, on August 9, 2017, CARB submitted the EKAPCD's 
Reasonably Available Control Technology (RACT) State Implementation 
Plan (SIP) for the 2008 Ozone National Ambient Air Quality Standards 
(NAAQS) (``Eastern Kern 2017 RACT SIP'') to the EPA as a revision to 
the California SIP. The Eastern Kern 2017 RACT SIP was developed to 
meet the RACT requirements for Serious ozone nonattainment areas in 
anticipation of submittal by CARB to the EPA of the voluntary 
reclassification request contained in the Eastern Kern 2017 Ozone 
Plan.\6\ We have reviewed the August 2017 SIP submittal and find that 
it addresses the following Serious ozone area RACT-related SIP 
requirements: VOC sources covered by a Control Technology Guidelines 
(CTG) document and non-CTG major sources of VOC. The Eastern Kern 2017 
RACT SIP does not fully address RACT requirements for non-CTG major 
sources of NOX.
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    \6\ See pages 9 and 10 of the Eastern Kern 2017 RACT SIP.
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    Upon review of the two SIP revision submittals described above, we 
find that all the SIP elements that apply to Eastern Kern as a Serious 
ozone nonattainment area for the 2008 ozone NAAQS have been addressed 
except for NSR and RACT for major sources of NOX. The EPA is 
proposing a schedule for additional SIP revisions for these two SIP 
elements of no later than 12 months from the effective date of 
reclassification.\7\
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    \7\ Upon the effective date of reclassification, we note that 
certain regulatory changes would occur automatically and do not 
require a SIP revision. For example, upon reclassification from 
Moderate to Serious, the applicability (or ``de minimis'') 
thresholds under our General Conformity rule (see 40 CFR part 93) 
would drop from 100 tons per year to 50 tons per year for VOC or 
NOX. See 40 CFR 93.153(b)(1). Under the General 
Conformity rule, federal agencies bear the responsibility of 
determining conformity of actions in nonattainment and maintenance 
areas that require Federal permits, approvals, or funding.
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IV. Proposed Action and Public Comment

    Pursuant to CAA section 181(b)(3) and 40 CFR 51.1103(b), the EPA is 
proposing to grant the reclassification request by the State of 
California for the Eastern Kern 2008 ozone nonattainment area from 
Moderate to Serious, and to change the ``California--2008 8-Hour Ozone 
NAAQS (Primary and secondary)'' table in 40 CFR 81.305 accordingly. In 
connection with the reclassification, the EPA is proposing to establish 
a deadline of no later than 12 months from the effective date of 
reclassification for submittal of revisions to the Eastern Kern portion 
of the SIP to meet the Serious area requirements for NSR and for RACT 
for major sources of NOX. The EPA is not proposing a SIP 
revision schedule for any Serious area SIP requirements for which SIP 
submittals have already been received. We will accept comments from the 
public on this proposal until June 13, 2018.

V. Statutory and Executive Order Reviews

    Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 
13563 (76 FR 3821, January 21, 2011), this proposed action is not a 
``significant regulatory action'' and therefore is not subject to 
review by the Office of Management and Budget. Voluntary 
reclassifications under section 181(b)(3) of the CAA are based solely 
upon requests by the state, and the EPA is required under the CAA to 
grant them. This proposed action does not, in and of itself, impose any 
new requirements on any sector of the economy. In addition, because the 
statutory requirements are clearly defined with respect to the 
differently classified areas, and because those requirements are 
automatically triggered by classification, reclassification does not 
impose a materially adverse impact under Executive Order 12866. For 
these reasons, this proposed action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). 
Furthermore, this proposed action is not an Executive Order 13771 (82 
FR 9339, February 2, 2017) regulatory action because actions such as 
reclassifications made at the request of a state are exempt under 
Executive Order 12866.
    In addition, I certify that this proposed rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This 
proposed action 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), because the EPA is 
required to grant requests by states for voluntary reclassifications 
and such reclassifications in and of themselves do not impose any 
federal intergovernmental mandate.
    Executive Order 13175 (65 FR 67249, November 9, 2000) requires the 
EPA to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the

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relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes.'' There are no Indian reservation lands 
or other areas where the EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction within the Eastern Kern ozone nonattainment 
area, and thus, this proposed rule does not have tribal implications 
and will not impose substantial direct costs on tribal governments or 
preempt tribal law as specified by Executive Order 13175.
    This proposed action also does not have Federalism implications 
because it does 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 (64 FR 43255, 
August 10, 1999). This proposed action does not alter the relationship 
or the distribution of power and responsibilities established in the 
Clean Air Act.
    This proposed rule also is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because the EPA interprets 
Executive Order 13045 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.
    Reclassification actions do not involve technical standards and 
thus, the requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. 
This proposed rule does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).
    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs 
policies, and activities on minority populations and low-income 
populations in the United States. This proposed reclassification action 
relates to ozone, a pollutant that is regional in nature, and is not 
the type of action that could result in the types of local impacts 
addressed in Executive Order 12898.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Intergovernmental 
relations, National parks, Ozone, Wilderness areas.

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

    Dated: May 1, 2018.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 2018-10217 Filed 5-11-18; 8:45 am]
 BILLING CODE 6560-50-P