[Federal Register Volume 86, Number 10 (Friday, January 15, 2021)]
[Rules and Regulations]
[Pages 3820-3826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28020]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2019-0176; FRL-10017-96-Region 9]
Air Plan Approval; California; South Coast Air Quality Management
District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve a revision to the South Coast Air Quality Management
District (SCAQMD) portion of the California State Implementation Plan
(SIP). This revision concerns emissions of oxides of nitrogen
(NOX) from on-road heavy-duty vehicles. We are approving a
local measure to reduce emissions from these sources under the Clean
Air Act (CAA or the Act).
DATES: This rule will be effective on February 16, 2021.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2019-0176. All documents in the docket are
listed on the http://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available through http://www.regulations.gov, or please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section for
additional availability information. If you need assistance in a
language other than English or if you are a person with disabilities
who needs a reasonable accommodation at no cost to you, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Rebecca Newhouse, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3004 or by
email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.
Table of Contents
I. Proposed Action
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews
I. Proposed Action
On April 25, 2019 (84 FR 17365), the EPA proposed to approve the
following measure, submitted by the California Air Resources Board
(CARB), into the California SIP.
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Local agency Resolution # Measure title Adopted Submitted
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CARB................................. 18-3 South Coast On-Road 03/22/18 05/04/18
Heavy-Duty Vehicle
Incentive Measure.
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We proposed to approve the South Coast On-Road Heavy-Duty Vehicle
Incentive Measure based on a determination that it satisfies the
applicable CAA requirements for approval of voluntary measures for SIP
[[Page 3821]]
emission reduction credit. Our proposal was based on our evaluation of
the documents provided in the SIP submission, including the measure
itself (i.e., the State commitments set forth on page 5 of CARB
Resolution 18-3), CARB's analysis of the measure in a document entitled
``South Coast On-Road Heavy-Duty Vehicle Incentive Measure,'' Release
Date: February 16, 2018 (hereafter ``Demonstration''), and a document
entitled ``Additional Information for the South Coast On-Road Heavy-
Duty Vehicle Incentive Measure.'' Our proposed rule and associated
technical support document (TSD) \1\ contain more information about the
SIP submission and our evaluation thereof.
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\1\ EPA Region IX, ``Technical Support Document for EPA's
Rulemaking for the California State Implementation Plan, California
Air Resources Board Resolution 18-3, South Coast On-Road Heavy-Duty
Vehicle Incentive Measure,'' April 2019.
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On November 24, 2020, CARB submitted a technical clarification to
the South Coast On-Road Heavy-Duty Vehicle Incentive Measure that
clarifies its commitment to make certain documents concerning the
incentive projects implemented to achieve emission reductions available
to the public upon request. CARB adopted this technical clarification
to the measure by Executive Order S-20-030 (November 23, 2020).\2\ We
refer to CARB's commitments in Resolution 18-3, as clarified by
Executive Order S-20-030, as the ``South Coast Incentive Measure.''
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\2\ Letter dated November 23, 2020, from Richard W. Corey,
Executive Officer, CARB, to John W. Busterud, Regional
Administrator, EPA Region IX (transmitting, inter alia, CARB
Executive Order S-20-030, ``Adoption and Submittal of Technical
Clarifications to the South Coast On-Road Heavy-Duty Incentive
Measure,'' November 23, 2020).
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II. Public Comments and EPA Responses
The EPA's proposed action provided a 30-day public comment period.
During this period, we received comments from Earthjustice, on behalf
of a coalition of environmental and community organizations, and
comments from an anonymous commenter.\3\
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\3\ Letter dated May 28, 2019, from Adriano L. Martinez,
Earthjustice, to Rynda Kay, EPA, Region IX, Subject: ``Docket ID No.
EPA-R09-OAR-2019-0176'' (on behalf of the California Communities
Against Toxics, Center for Community Action and Environmental
Justice, Coalition for a Safe Environment, and the Natural Resources
Defense Council) and letter dated May 28, 2019, from anonymous
commenter.
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We respond below to a selection of the most significant comments on
our proposed rule. We respond to all other comments that are germane to
the proposed rule in our separate Response to Comments document
available at https://www.regulations.gov, Docket ID No. EPA- R09-OAR-
2019-0176. We do not respond to the comments from the anonymous
commenter because they fail to identify any specific issue that is
germane to our action on this measure.
Comment 1: Earthjustice states that the South Coast Incentive
Measure does not satisfy the enforceability requirements in section
110(a)(2)(A) of the CAA. Citing the EPA's Memo to Docket for a
rulemaking entitled ``State Implementation Plans: Response to Petition
for Rulemaking; Finding of Substantial Inadequacy; and SIP Calls to
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction,'' Earthjustice states that to be
``enforceable,'' a measure must be enforceable by the state, the EPA,
and citizens. Earthjustice also states that the mere approval of a
measure into the SIP does not convert an unenforceable provision into
an enforceable one, and that the EPA's SIP rulemaking must explain how
the proposed measure can be enforced. According to Earthjustice, the
EPA's proposed rule to approve the South Coast Incentive Measure has
not provided a legally defensible analysis of how this rule is
enforceable.
Response 1: We agree with Earthjustice's statement that the mere
approval of a measure into the SIP does not convert an unenforceable
provision into an enforceable one, but we disagree with Earthjustice's
claim that CARB's commitments in the South Coast Incentive Measure are
not enforceable. We explain below how the EPA and citizens may enforce
the provisions of CARB's SIP commitments in the South Coast Incentive
Measure. We respond to Earthjustice's more specific comments concerning
enforceability in our responses to comments 2 through 11. We note that
our evaluation here is limited to CARB's commitments in the South Coast
Incentive Measure and that the EPA will review each incentive-based
control measure submitted by a state on a case-by-case basis, following
notice-and-comment rulemaking, to determine whether the applicable
requirements of the Act are met.
Under CAA section 110(a)(2)(A), SIPs must include enforceable
emission limitations and other control measures, means or techniques
necessary to meet the requirements of the Act, as well as timetables
for compliance. Similarly, section 172(c)(6) provides that
nonattainment area SIPs must include enforceable emission limitations
and such other control measures, means or techniques as may be
necessary or appropriate to provide for attainment of the national
ambient air quality standards (NAAQS) by the applicable attainment
date.
Control measures, including commitments in SIPs, are enforced
through CAA section 304(a), which provides for citizen suits to be
brought against any ``person,'' including a state,\4\ who is alleged
``to be in violation of . . . an emission standard or limitation. .
..'' ``Emission standard or limitation'' is defined in subsection (f)
of section 304.\5\ As observed in Conservation Law Foundation, Inc. v.
James Busey et al., 79 F.3d 1250, 1258 (1st Cir. 1996):
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\4\ CAA section 302(e) (defining ``person'' to include a State
or political subdivision thereof).
\5\ Section 304(f) of the CAA defines ``emission standard or
limitation,'' in relevant part, to mean ``a schedule or timetable of
compliance'' which is in effect under the Act ``or under an
applicable implementation plan.'' Section 302(p) of the Act defines
``schedule and timetable of compliance'' to mean ``a schedule of
required measures including an enforceable sequence of actions or
operations leading to compliance with an emission limitation, other
limitation, prohibition, or standard.'' Section 302(q) of the Act
defines ``[a]pplicable implementation plan,'' in relevant part, as
``the portion (or portions) of the implementation plan, or most
recent revision thereof, which has been approved under section 110
of [title I of the Act] . . . and which implements the relevant
requirements of [the Act].''
Courts interpreting citizen suit jurisdiction have largely
focused on whether the particular standard or requirement plaintiffs
sought to enforce was sufficiently specific. Thus, interpreting
citizen suit jurisdiction as limited to claims ``for violations of
specific provisions of the act or specific provisions of an
applicable implementation plan,'' the Second Circuit held that suits
can be brought to enforce specific measures, strategies, or
commitments designed to ensure compliance with the NAAQS, but not to
enforce the NAAQS directly. See, e.g., Wilder, 854 F.2d at 613-14.
Courts have repeatedly applied this test as the linchpin of citizen
suit jurisdiction. See, e.g., Coalition Against Columbus Ctr. v.
City of New York, 967 F.2d 764, 769-71 (2d Cir. 1992); Cate v.
Transcontinental Gas Pipe Line Corp., 904 F. Supp. 526, 530-32 (W.D.
Va. 1995); Citizens for a Better Env't v. Deukmejian, 731 F. Supp.
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1448, 1454-59 (N.D. Cal.), modified, 746 F. Supp. 976 (1990).
Thus, courts have found that the citizen suit provision cannot be
used to enforce the aspirational goal of attaining the NAAQS but can be
used to enforce specific strategies to achieve that goal.\6\
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\6\ See also Committee for a Better Arvin, et al. v. EPA, 786
F.3d 1169, 1181 (9th Cir. 2015) (finding that California's
commitments to propose and adopt emission control measures and to
achieve aggregate emission reductions are enforceable ``emission
standards or limitations'' under the CAA).
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SIP control measures and commitments may also be enforced by the
EPA under section 113(a)(1) of the Act, which authorizes the EPA to
issue notices and compliance orders, assess administrative penalties,
and bring civil actions against any ``person,'' including
[[Page 3822]]
a state, who ``has violated or is in violation of any requirement or
prohibition of an applicable implementation plan. . . .'' \7\
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\7\ CAA section 113(a)(1)-(2) (establishing EPA's SIP
enforcement authorities), section 302(e) (defining ``person'' to
include a state or political subdivision thereof), and section
302(q) (defining ``applicable implementation plan'' to include the
portion(s) of the implementation plan approved under CAA section 110
that implement relevant CAA requirements).
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CARB's commitments in the South Coast Incentive Measure are set
forth on page 5 of CARB Resolution 18-3 (March 22, 2018), as clarified
by Executive Order S-20-030 (November 23, 2020),\8\ and include six key
components, as summarized below:
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\8\ CARB Resolution 18-3, ``South Coast On-Road Heavy Duty
Vehicle Incentive Measure'' (March 22, 2018), 5 and CARB Executive
Order S-20-030, ``Adoption and Submittal of Technical Clarifications
to the South Coast On-Road Heavy-Duty Incentive Measure'' (November
23, 2020) (hereafter ``South Coast Incentive Measure'').
(1) A commitment to monitor the District's implementation of
1,300 on-road heavy-duty compression ignition truck repower and
replacement projects in accordance with specified portions of the
2017 Carl Moyer Guidelines;
(2) a commitment to achieve 1 ton per day (tpd) of reductions in
NOX emissions from the 2023 baseline inventory in the
2016 South Coast AQMP through implementation of these repower or
replacement projects or substitute measures in the South Coast Air
Basin (hereafter ``tonnage commitment'');
(3) a commitment to submit reports to the EPA by March 31 of
each year from 2020 through 2023, each of which must include, among
other things, specific information about the incentive projects
funded through the previous year, about changes to the applicable
guidelines, and about actions by CARB and the District to monitor
projects for compliance with contract requirements (hereafter
``annual demonstration reports'');
(4) a commitment to make each annual demonstration report
publicly available or available upon request;
(5) a commitment to provide to the public, upon request, certain
project-specific documents relied upon in the preparation of CARB's
annual demonstration reports, including project applications, grant
contracts, and inspection-related documents, and
(6) a commitment to adopt and submit to the EPA, by September 1,
2022, substitute measures or rules that address any shortfall in
emission reductions required to meet the tonnage commitment by no
later than January 1, 2023, if the EPA determines by July 1, 2021
that information submitted by CARB is insufficient to demonstrate
that it will fulfill the tonnage commitment on schedule.\9\
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\9\ Id. We use the shorthand term ``insufficiency finding'' to
refer to a determination by the EPA that information submitted by
CARB is insufficient to demonstrate that CARB will fulfill the
tonnage commitment on schedule. An insufficiency finding by the EPA
triggers CARB's obligation, under the terms of paragraph 5 of the
South Coast Incentive Measure, to adopt and submit substitute
measures and/or rules that address any shortfall in required
emission reductions.
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In the Demonstration, CARB states that ``CARB is the responsible
party for enforcement of this measure and is responsible for achieving
the emission reductions from this measure,'' \10\ thus expressing
CARB's decision to voluntarily commit itself to fulfilling the tonnage
commitment and to being held accountable for failure to fulfill this
commitment.
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\10\ Demonstration, 14.
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Upon the EPA's approval of these commitments into the SIP under CAA
section 110, the commitments will become federally enforceable
requirements of an ``applicable implementation plan'' as defined in CAA
section 302(q). Therefore, as discussed below, both citizens and the
EPA may enforce these commitments under CAA sections 304(a)(1) and
113(a)(1), respectively. We describe each enforceable component of the
South Coast Incentive Measure below.
First, the South Coast Incentive Measure obligates CARB to monitor
District implementation of 1,300 on-road heavy-duty compression
ignition truck repower and replacement projects in accordance with
specified portions of the 2017 Carl Moyer Guidelines.\11\ The 2017 Carl
Moyer Guidelines enable CARB to carry out its oversight
responsibilities by requiring, among other things, that air districts
(1) maintain, for specified periods of time, all project-related
documentation obtained from participating sources and through the air
district's on-site project inspections; \12\ (2) make such documents
available to CARB staff during CARB's periodic ``incentive program
reviews'' and upon request; \13\ (3) submit a certified ``yearly
report'' to CARB containing specific information about funded projects,
including information sufficient to calculate emission reductions and
cost-effectiveness for source categories where required; \14\ and (4)
allow CARB and its designees to conduct fiscal audits and to inspect
project engines, vehicles, and/or equipment and associated records
during the contract term.\15\ The 2017 Carl Moyer Guidelines also
specifically identify types of actions on the part of the implementing
air district that CARB may treat as violations of program
requirements--e.g., misuse of Carl Moyer Program funds to fund
ineligible projects and insufficient, incomplete, or inaccurate project
documentation \16\--and authorize CARB to enforce the terms of a
project contract at any time during the contract term to ensure that
emission reductions are obtained.\17\ If CARB fails to document in each
annual demonstration report the steps it has taken to exercise these
monitoring responsibilities, that failure would constitute a violation
of the SIP commitment.
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\11\ South Coast Incentive Measure, para. 1. CARB is required
under California law to monitor air district implementation of Carl
Moyer projects to ensure compliance with the applicable guidelines.
California Health & Safety Code (Ca. HSC) section 44291(d)
(requiring CARB to ``monitor district programs to ensure that
participating districts conduct their programs consistent with the
criteria and guidelines established by the state board and the
commission pursuant to this chapter'').
\12\ The 2017 Carl Moyer Guidelines require that each
implementing air district maintain a file for each funded project (a
``project file'') that includes, among other things, a copy of the
application, a copy of the executed project contract and any related
amendments, photographic and other documentation of the baseline
(replaced) engine, vehicle, or equipment, and photographic and other
documentation of the new engine, vehicle, or equipment. 2017 Carl
Moyer Guidelines, Volume I, Part 1, Chapter 3, Section S
(``Requirements for Project Applications''), para. 2; Section T
(``Application Evaluation and Project Selection''), paras. 1 and 8;
Section V (``Minimum Contract Requirements''); Section W (``Project
Pre-Inspection''); and Section X (``Project Post-Inspection''). Air
districts must generally maintain each project file for three years
after the end of the contract term. Id. at Section T (``Application
Evaluation and Project Selection''), para. 8.
\13\ Id. at Section M (``Yearly Report''), para. 4 and Section R
(``Incentive Program Review''), para. 5.
\14\ Id. at Section M (``Yearly Report'').
\15\ Id. at Section V (``Minimum Contract Requirements''), para.
10.
\16\ Id. at Section Q (``Program Nonperformance'').
\17\ Id. at Section V (``Minimum Contract Requirements''), para.
11 (``Repercussions for NonPerformance'').
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Second, the South Coast Incentive Measure obligates CARB to
achieve, by December 31, 2022, 1 tpd of reductions in NOX
emissions from the 2023 baseline inventory \18\ in the 2016 South Coast
AQMP through implementation of these projects in the South Coast Air
Basin or substitute measures and/or rules consistent with paragraph 5
of the commitment.\19\ If CARB fails to achieve 1 tpd of NOX
emission reductions by December 31, 2022 through implementation of the
identified incentive projects or substitute measures and/or rules that
meet the identified criteria, that failure would constitute a violation
of the SIP commitment.
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\18\ CARB uses the term ``baseline inventory'' to refer to the
projected emissions inventories for future years that account for,
among other things, the ongoing effects of economic growth and
adopted emissions control requirements.
\19\ South Coast Incentive Measure, para. 2. We understand that
the reference to ``substitute measures'' in paragraph 2 is intended
to reference the ``substitute measures and/or rules'' that CARB must
adopt and submit under paragraph 5 if the EPA determines that
information submitted by CARB fails to demonstrate that CARB will
fulfill the tonnage commitment on schedule.
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Third, the South Coast Incentive Measure obligates CARB to submit
[[Page 3823]]
annual demonstration reports to the EPA by March 31 each year from 2020
through 2023, each of which must include, among other things, specific
information about the incentive projects funded through the previous
year, about changes to the applicable guidelines, and about actions by
CARB and the District to monitor projects for compliance with contract
requirements.\20\ If CARB fails to timely submit an annual
demonstration report containing all of the information listed in
paragraph 3 of the South Coast Incentive Measure, that failure would
constitute a violation of the SIP commitment.
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\20\ Id. at para. 3.
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Fourth, the South Coast Incentive Measure obligates CARB to make
each annual demonstration report publicly available or available upon
request. If CARB fails to make any annual demonstration report publicly
available or to provide it within a reasonable period after receiving a
request for it, that failure would constitute a violation of the SIP
commitment.
Fifth, the South Coast Incentive Measure obligates CARB to provide
to any requestor, beginning May 15, 2021 and through 2029, certain
project-specific documents relied upon in the preparation of CARB's
annual demonstration reports, including project applications, grant
contracts, and inspection-related documents. If CARB fails to provide
any of these project records within a reasonable period after receiving
a request, that failure would constitute a violation of the SIP
commitment.
Finally, the South Coast Incentive Measure obligates CARB to adopt
and submit to the EPA, by September 1, 2022, substitute measures and/or
rules that address any shortfall in emission reductions no later than
January 1, 2023, if the EPA determines by July 1, 2021 that information
submitted by CARB is insufficient to demonstrate that it will fulfill
the tonnage commitment on schedule. If CARB fails to adopt and submit
timely substitute measures and/or rules sufficient to address a
shortfall in required emission reductions, this failure would
constitute a violation of the SIP commitment. We provide a more
detailed discussion of CARB's obligation to adopt and submit substitute
measures in Response 7 in the Response to Comments document.
This series of actions mandated by the South Coast Incentive
Measure constitutes a specific enforceable strategy for achieving a
specific amount of NOX emission reductions by the beginning
of 2023. The fact that CARB may meet its SIP commitments by adopting
measures that are not specifically identified in the SIP, or through
one of several available techniques, does not render the requirement to
achieve the emissions reductions unenforceable.\21\
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\21\ Citizens for a Better Environment v. Deukmejian, 731 F.
Supp. 1448, 1454-59 (N.D. Cal. 1990) (``the basic commitment to
adopt and implement additional measures, should the identified
conditions occur, constitutes a specific strategy, fully enforceable
in a citizens action, although the exact contours of those measures
are not spelled out''), modified, 746 F. Supp. 976 (1990) (holding
state and district liable for failing to satisfy SIP commitment).
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For all of these reasons, we conclude that CARB's commitments in
the South Coast Incentive Measure to monitor and report annually on the
implementation of specific types of incentive projects, to achieve a
specified tonnage of NOX emission reductions from these
projects or substitute measures, to make the annual demonstration
reports and related documentation available to the public, and to adopt
and submit substitute control measures where necessary to address an
emission reduction shortfall identified by the EPA, constitute
appropriate means, techniques, or schedules for compliance under
sections 110(a)(2)(A) and 172(c)(6) of the Act.
Comment 2: Earthjustice states that citizens and the EPA can only
enforce ``violations,'' and that the EPA must describe what would
constitute a violation of the SIP provisions being approved here.
Citing section 304(a)(1) of the CAA, Earthjustice states that citizens
can commence civil actions for violations of emission standards or
limitations or orders issued by the EPA or a state with respect to such
standards or limitations. Additionally, citing section 113(a)(1) of the
Act, Earthjustice states that the EPA can enforce a violation of any
requirement or prohibition of an applicable implementation plan.
According to Earthjustice, the EPA ``suggests that EPA and citizens can
enforce the commitments to achieve and report on emission reductions''
but that the EPA and the South Coast Incentive Measure ``muddy what
exactly would constitute a violation.''
Earthjustice notes the EPA's statement in the TSD that to be
enforceable, program violations must be defined, and asserts that the
EPA must explain where in the South Coast Incentive Measure such
definitions are provided.
Response 2: We disagree with Earthjustice's claim that the
commitments at issue in this action do not create obligations that EPA
or citizens can enforce, were CARB or the District to violate them. We
identify in Response 1 the types of violations of the commitments that
could provide the basis for an enforcement action by the EPA or by
citizens under section 113(a)(1) or 304(a)(1) of the CAA, respectively.
As explained in Response 1, CARB's commitments, as set forth in the
South Coast Incentive Measure, constitute a specific enforceable
strategy for achieving 1 tpd of NOX emission reductions on a
fixed schedule and, upon approval into the SIP, become requirements of
an ``applicable implementation plan'' as defined in CAA section 302(q).
Although the South Coast Incentive Measure does not specifically define
potential violations of the commitments, we find that it describes each
of the actions that CARB has committed to undertake in sufficient
detail to enable the EPA and the public to determine whether and when a
violation has occurred. Accordingly, these commitments are enforceable
by citizens under CAA section 304(a)(1) and by the EPA under CAA
section 113(a)(1).
Comment 3: Earthjustice states that CARB's commitment to
``monitor'' District implementation of projects in accordance with the
Carl Moyer Guidelines is a ``vague and unenforceable commitment.''
Earthjustice asks what would constitute a violation, and how one could
prove that CARB is not monitoring implementation in accordance with the
guidelines. Earthjustice asserts that there is no means of measuring or
independently verifying compliance because there is no reporting
requirement and no deadline. Additionally, Earthjustice claims that the
reference to ``1300 repower and replacement projects'' in CARB's
commitment ``is a deliberate attempt to mislead the reader on what is
actually required.'' For example, Earthjustice states, nothing in this
monitoring ``requirement'' specifies that these projects actually need
to occur.
Response 3: We disagree with these comments. CARB's commitment to
monitor District implementation of projects in accordance with the 2017
Carl Moyer Guidelines is enforceable through specific provisions in the
South Coast Incentive Measure that require CARB to, among other things,
report annually on the incentive projects it is relying on to achieve
emission reductions and the actions that CARB has taken to ensure that
these projects comply with the contracts issued by the District in
accordance with the 2017 Carl Moyer Guidelines. See Response 1.
Specifically, the South Coast Incentive Measure obligates CARB to
[[Page 3824]]
identify, in each annual demonstration report submitted to the EPA by
March 31 of each year from 2020 through 2023, those specific projects
funded through the previous year that CARB is relying on to achieve the
tonnage commitment. CARB must identify each of these projects ``by
project identification number, project life and implementation date,
description of both baseline and new equipment, applicable incentive
program guidelines, and quantified emission reductions.'' \22\
Additionally, each annual demonstration report must describe any
changes to the 2017 Carl Moyer Guidelines and related impacts on
program integrity, describe CARB's and the District's actions to
monitor selected projects for compliance with contract requirements,
and contain CARB's determination of whether the identified projects are
projected to achieve the full 1 tpd of NOX emission
reductions in the South Coast Air Basin by 2023.\23\
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\22\ South Coast Incentive Measure, para. 3.a. The ``project
life'' begins on the purchase date of the new equipment and is the
period during which the project is under contract. Email dated
February 13, 2020, from Austin Hicks (CARB) to Rynda Kay (EPA Region
IX), Subject: ``RE: Follow-up questions on the Valley Incentive
Measure.'' We understand the ``implementation date'' to mean the
post-inspection date, which is the date on which the District
verifies that the old equipment has been destroyed and that the new
equipment has been purchased, is operational, and is the same
equipment that was used in the emission reduction calculations. 2017
Carl Moyer Guidelines, Volume I, Part 1, Chapter 3, Section V
(``Minimum Contract Requirements'') and Section X (``Project Post-
Inspection'').
\23\ Id. at paras. 3.b-3.d.
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These provisions ensure that CARB's annual demonstration reports
will contain both the project-specific information needed to
independently calculate the emission reductions that CARB attributes to
each project and the programmatic information needed to determine
whether CARB and the District are taking appropriate steps to ensure
that the identified projects comply with contract terms, which in turn
assure compliance with the 2017 Carl Moyer Guidelines.\24\ The 2017
Carl Moyer Guidelines specifically require that air districts audit at
least five percent of active Carl Moyer projects or 20 active projects
(whichever is less), including any audits conducted following
unsatisfactory annual reporting.\25\ If CARB's annual demonstration
report for a given year fails to identify the project-specific
information described in paragraph 3.a of the South Coast Incentive
Measure or to document the steps that CARB and the District have taken
to monitor selected projects for compliance with contract terms,
consistent with paragraph 3.c of the South Coast Incentive Measure, the
EPA or citizens may bring an enforcement action against CARB for
violating its monitoring and reporting obligations.
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\24\ The 2017 Carl Moyer Guidelines require that each contract
issued to a grantee contain provisions to ensure compliance with
Carl Moyer program requirements. See, e.g., 2017 Carl Moyer
Guidelines, Volume I, Part 1, Chapter 3, Section V, para. 6(C)
(requiring that each contract state that the project complies with
Moyer Program requirements) and para. 11(C) (requiring that each
contract inform grantee that CARB and the District may seek any
remedies available under the law for noncompliance with Moyer
Program requirements).
\25\ 2017 Carl Moyer Guidelines, Volume I, Part 1, Chapter 3,
Section AA (``Air District Audit of Projects''), para. 1.
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We also disagree with Earthjustice's claim that the reference to
``1300 repower and replacement projects'' in CARB's commitment is
misleading as to what is actually required. As explained in Response 1,
CARB is specifically obligated to monitor the District's implementation
of at least 1,300 on-road heavy-duty compression ignition truck repower
and replacement projects in accordance with specified portions of the
2017 Carl Moyer Guidelines.\26\ The 2017 Carl Moyer Guidelines enable
CARB to monitor the District's compliance with these guidelines by
requiring, among other things, that air districts maintain compliance-
related documentation, make such documents available to CARB staff upon
request, submit certified ``yearly reports'' to CARB containing
specific information about funded projects, and allow CARB and its
designees to inspect project engines, vehicles, and/or equipment and
associated records during the contract term.\27\ The 2017 Carl Moyer
Guidelines also specifically identify types of actions on the part of
the implementing air district that CARB may treat as program violations
and authorize CARB to enforce the terms of a project contract.\28\ If
CARB fails to document in each annual demonstration report the steps it
has taken to exercise these monitoring responsibilities, that failure
would constitute a violation of the SIP commitment.
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\26\ South Coast Incentive Measure, para. 1.
\27\ See footnotes 12-15, supra.
\28\ See footnotes 16 and 17, supra.
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Additionally, as explained in Response 1, CARB is obligated to
achieve 1 tpd of NOX emission reductions in the South Coast
Air Basin, either through implementation of the identified truck
repower and replacement projects or through substitute measures adopted
and submitted in accordance with the deadlines specified in paragraph 5
of the South Coast Incentive Measure.\29\ Thus, although CARB is not
necessarily obligated to ensure that 1,300 incentive projects are
implemented or to achieve 1 tpd of NOX emission reductions
through these incentive projects, CARB is obligated to monitor at least
1,300 such projects for purposes of determining whether those projects
will achieve 1 tpd of NOX emission reductions by December
31, 2022. If those projects do not fulfill the tonnage commitment, CARB
is obligated to adopt and submit substitute measures sufficient to
address the shortfall.\30\
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\29\ South Coast Incentive Measure, para. 2.
\30\ Id.
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Comment 4: Earthjustice states that nothing in CARB's commitment to
``achieve 1 ton per day of [NOX] emission reductions . . .
by December 31, 2022'' specifies where these emission reductions must
come from or where they must occur. Earthjustice claims that nothing
specifies whether these reductions must be the result of some action by
the agencies or merely the result of favorable economic conditions, and
that CARB has relied on the latter in the past to claim compliance with
similar ``commitments.'' Earthjustice further claims that there is no
way for the EPA or citizens to look at the entire emissions inventory
for the South Coast on December 31, 2022 and determine whether CARB has
achieved this emission reduction, and that even if overall emissions
increase between 2019 and 2022, CARB could still claim that but for
some unspecified reason, the total NOX emissions would have
been 1 tpd higher. Earthjustice argues that because there is no way to
prove that CARB has not achieved the 1 tpd of NOX
reductions, the commitment fails to define any possible violation and
is not practicably enforceable.
Response 4: We identify in Response 1 the types of violations of
the commitments that could provide the basis for an enforcement action
by the EPA or by citizens under section 113(a)(1) or 304(a)(1) of the
CAA, respectively. As explained in Response 1, CARB's commitments
constitute a specific enforceable strategy for achieving 1 tpd of
NOX emission reductions on a fixed schedule and, upon
approval into the SIP, become requirements of an ``applicable
implementation plan'' as defined in CAA section 302(q). Accordingly,
these commitments are enforceable by citizens under CAA section
304(a)(1) and by the EPA under CAA section 113(a)(1).
Earthjustice's characterization of CARB's commitments is incorrect
in several respects. First, with respect to
[[Page 3825]]
CARB's commitment to achieve 1 tpd of NOX emission
reductions by December 31, 2022, Earthjustice claims incorrectly that
the commitments do not specify where these emission reductions must
come from or where they must occur. The South Coast Incentive Measure
specifies that CARB must achieve 1 tpd of NOX emission
reductions through implementation of one or both of the following types
of measures: (1) Heavy-duty compression-ignition truck repower and
replacement projects implemented in accordance with specified portions
of the 2017 Carl Moyer Guidelines, and/or (2) substitute measures and/
or rules adopted and submitted to the EPA by specified deadlines.\31\
It also makes clear that these emission reductions must occur in the
South Coast Air Basin.\32\
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\31\ South Coast Incentive Measure, paras. 1, 2, and 5.
\32\ Id. at para. 2 (requiring CARB to achieve NOX
emission reductions ``from the 2023 baseline inventory, as detailed
in the 2016 South Coast Air Quality Management Plan and discussed in
the State SIP Strategy, through implementation of these projects or
substitute measures for the [South Coast Air] Basin.''). The 2016
South Coast Air Quality Management Plan (AQMP), relevant portions of
the 2016 State Strategy and other related documents (hereafter
``2016 South Coast Ozone SIP'') contain California's attainment
demonstrations for the 1979 1-hour ozone NAAQS, the 1997 ozone NAAQS
and the 2008 ozone NAAQS in the South Coast Air Basin. 84 FR 52005,
52012-52013 (October 1, 2019).
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Second, Earthjustice claims incorrectly that nothing in the
commitment ``specifies whether [the emission reductions] must be the
result of some action by the agencies or merely the result of favorable
economic conditions,'' and that CARB has relied on the latter in the
past to claim compliance with similar ``commitments.'' As explained in
Response 1, the South Coast Incentive Measure explicitly states that
CARB will do the following:
By December 31, 2022, achieve one ton per day of reductions in
NOX emissions from the 2023 baseline inventory, as
detailed in the 2016 South Coast Air Quality Management Plan and
discussed in the State SIP Strategy, through implementation of these
projects or substitute measures for the [South Coast Air] Basin;
[and]
If U.S. EPA determines by July 1, 2021, that information
submitted by CARB is insufficient to demonstrate that emission
reductions required under Paragraph 2 will occur on schedule, adopt
and submit to U.S. EPA, no later than September 1, 2022, substitute
measures and/or rules that will achieve emission reductions
addressing the shortfall as expeditiously as practicable and no
later than January 1, 2023.\33\
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\33\ South Coast Incentive Measure, paras. 2, 5.
Thus, by its terms, the South Coast Incentive Measure obligates
CARB to ``achieve'' 1 tpd of NOX emission reductions no
later than January 1, 2023, either by confirming implementation of
identified incentive projects in accordance with the specified portions
of the 2017 Carl Moyer Guidelines or by adopting and submitting to the
EPA substitute measures and/or rules that achieve equivalent emission
reductions. In the interpretative statements preceding these
commitments and in the Demonstration, CARB states that it is creating a
``publicly-enforceable commitment to achieve emission reductions'' \34\
and confirms that ``CARB is the responsible party for enforcement of
this measure and is responsible for achieving the emission reductions
from this measure.'' \35\ Nowhere in the South Coast Incentive Measure
or in CARB's interpretative statements does CARB indicate that
favorable economic conditions may suffice to achieve the aggregate
tonnage commitments.
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\34\ CARB Resolution 18-3, 4 (``Whereas, the South Coast
Incentive Measure provides a publicly-enforceable commitment to
achieve emission reductions'').
\35\ Demonstration, 14.
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We note that in prior EPA actions approving aggregate tonnage
commitments from CARB, the EPA has rejected claims that ``actual
emission decreases'' resulting from an economic recession or other
circumstances may count towards meeting the commitments and made clear
that the only permissible means for achieving the required emission
reductions is through notice-and-comment rulemaking procedures leading
to the adoption and implementation of enforceable control measures.\36\
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\36\ See, e.g., 76 FR 69896, 69914-16 (November 9, 2011)
(approving PM2.5 attainment demonstration for San Joaquin
Valley).
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Third, Earthjustice suggests, incorrectly, that the EPA and
citizens would have to look at the entire emissions inventory for the
South Coast on December 31, 2022, to determine whether CARB has
achieved 1 tpd of NOX emission reductions. For the reasons
stated in this response and earlier in Response 1, it is not necessary
to review an emissions inventory to determine whether CARB has achieved
the required reductions. The South Coast Incentive Measure obligates
CARB to provide, in each annual demonstration report submitted to the
EPA from March 2020 through March 2023, detailed information about each
incentive project that CARB is relying on to achieve the required 1 tpd
of NOX emission reductions.\37\ Each of these annual
demonstration reports must be readily available to the public on CARB's
website or available upon request.\38\ If CARB's 2023 annual
demonstration report (which is due March 31, 2023) fails to demonstrate
that the identified projects have achieved 1 tpd of NOX
emission reductions from the 2023 baseline inventory in the 2016 South
Coast AQMP, citizens may sue CARB for violating its SIP commitment. The
tonnage commitment remains enforceable even if the EPA has not made an
insufficiency determination in accordance with paragraph 5 of the South
Coast Incentive Measure. See Response 6 and Response 8 in the Response
to Comments document.
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\37\ South Coast Incentive Measure, para. 3.
\38\ Id. at para. 4.
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Additionally, if the EPA determines by July 1, 2021, that
information submitted by CARB is insufficient to demonstrate that the
emission reductions necessary to fulfill the 2023 tonnage commitment
will occur on schedule, CARB must adopt and submit to the EPA, no later
than September 1, 2022, substitute measures and/or rules that will
achieve emission reductions addressing the shortfall as expeditiously
as practicable and no later than January 1, 2023.\39\ Any such
substitute control measure must be adopted following state rulemaking
procedures through which the EPA and the public may track the State's
progress in achieving the requisite emissions reductions. We expect
CARB to make clear during any such rulemaking that it is proposing the
identified measure or rule for purposes of submission to the EPA
consistent with its commitment in the South Coast Incentive
Measure.\40\ If, following an insufficiency finding by the EPA, CARB
fails to adopt and submit substitute control measures that fully
address the identified shortfall in required emission reductions by the
relevant deadline, citizens may sue CARB for violating its SIP
commitment.
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\39\ By its terms, the commitment is to ``adopt and submit to
U.S. EPA. . . substitute measures and/or rules''--i.e., new or
revised control measures subject to notice-and-comment rulemaking--
that achieve the necessary emission reductions, if the EPA makes an
insufficiency finding. Id. at para. 5.
\40\ See EPA, Memorandum dated November 22, 2011, from Janet
McCabe, Deputy Assistant Administrator, EPA Office of Air and
Radiation, to Air Division Directors, EPA Regions 1-10, Attachment B
(``Guidelines to States Agencies for Preparing the Public Notices
for State Implementation Plan (SIP) Revisions'') (noting that state
public notices must state that the regulation or document at issue
will be submitted to the EPA for approval into the SIP).
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For all of these reasons, we disagree with Earthjustice's claim
that the South Coast Incentive Measure fails to define any possible
violation and is not practicably enforceable.
[[Page 3826]]
III. Final Action
No comments were submitted that change our assessment of the rule
as described in our proposed action. Therefore, the EPA is fully
approving this measure into the California SIP in accordance with
section 110(k)(3) of the Act.
In addition, the EPA is determining that CARB's adoption,
implementation, and submission of the South Coast Incentive Measure
satisfy the State's commitment in the 2016 South Coast Ozone SIP to
bring to the Board for consideration an incentive-based measure for on-
road heavy-duty vehicles and achieves 1 tpd of CARB's aggregate
NOX emission reduction commitment for 2023, as codified in
40 CFR 52.220(c)(517)(ii)(A)(3).\41\
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\41\ 84 FR 52005, 52013-52014 (October 1, 2019) (referencing
CARB Resolution 17-7 (March 23, 2017), Attachment A (``Proposed New
SIP Measures and Schedule'')) and 84 FR 28132, 28149 (June 17, 2019)
(Table 6, ``Defined Measures in the 2016 State Strategy--
Continued'').
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We are codifying this measure as additional material in the code of
federal regulations (CFR), rather than through incorporation by
reference, because, under its terms, the measure contains commitments
enforceable only against CARB and because the measure is not a
substantive rule of general applicability.
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 16, 2021. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Dated: December 11, 2020.
John Busterud,
Regional Administrator, Region IX.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--CALIFORNIA
0
2. Section 52.220 is amended by adding paragraph (c)(550) to read as
follows:
Sec. 52.220 Identification of plan-in part.
* * * * *
(c) * * *
(550) The following plan was submitted on May 4, 2018 by the
Governor's designee.
(i) [Reserved]
(ii) Additional materials. (A) California Air Resources Board.
(1) CARB Resolution 18-3, adopted March 22, 2018, as revised by
Executive Order S-20-030, adopted November 23, 2020.
(2) [Reserved]
(B) [Reserved]
[FR Doc. 2020-28020 Filed 1-14-21; 8:45 am]
BILLING CODE 6560-50-P