[Federal Register Volume 86, Number 107 (Monday, June 7, 2021)]
[Proposed Rules]
[Pages 30234-30237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11706]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2021-0341; FRL-10024-59-Region 9]


Severe Area Submission Requirements for the 2008 Ozone NAAQS; 
California; Eastern Kern Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In the Rules and Regulations section of this Federal Register, 
the Environmental Protection Agency (EPA) is granting a request by the 
California Air Resources Board (CARB or ``State'') to voluntarily 
reclassify the Eastern Kern nonattainment area (``Eastern Kern'') from 
``Serious'' to ``Severe'' for the 2008 8-hour ozone National Ambient 
Air Quality Standards (NAAQS) under section 181(b)(3) of the Clean Air 
Act (CAA). In this action, the EPA is proposing a schedule for the 
State to submit revisions to the state implementation plan (SIP) 
addressing Severe area requirements and to submit revisions to the 
title V operating permit rules for this area. Under the EPA's proposed 
schedule, California would be required to submit SIP revisions 
addressing Severe area requirements for Eastern Kern, including 
revisions to New Source Review (NSR) rules, no later than 18 months 
from the effective date of the EPA's final rule reclassifying Eastern 
Kern to Severe. Submittal of any corresponding revisions to the title V 
rules that apply in Eastern Kern would be due within six months of the 
effective date of the reclassification. Lastly, the EPA is proposing a 
deadline for implementation of new Reasonably

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Available Control Technology (RACT) rules as expeditiously as 
practicable but no later than 18 months from the date when the Severe 
area RACT SIP will be due.

DATES: Comments must be received on or before July 7, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2021-0341 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 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: Ben Leers, Air Planning Office (AIR-
2), EPA Region IX, (415) 947-4279, [email protected].

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

Table of Contents

I. Background
II. Severe Area Requirements and Proposed Schedule
    A. Severe Area Plan Requirements
    B. NSR and Title V Program Revisions
    C. Federal Reformulated Gasoline
III. Proposed Action and Request for Public Comment
IV. Statutory and Executive Order Reviews

I. Background

    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'').\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,'' \2\ or ``Extreme,'' depending upon the ozone 
design value for an area.\3\ 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, CAA planning requirements than 
lower classified areas but are allowed more time to attain the ozone 
NAAQS. See, generally, subpart 2 of part D of title I of the CAA.
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    \1\ 73 FR 16436 (March 27, 2008).
    \2\ Throughout this document, we use the term ``Severe'' to 
refer to Severe areas that have up to 15 years to attain the ozone 
standards. The ozone area designation tables in 40 CFR part 81 
specify ``Severe-15'' to distinguish such areas from ``Severe-17'' 
areas, which are Severe areas that have up to 17 years to attain the 
ozone standards.
    \3\ 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 designated and classified the 
Eastern Kern area \4\ under the CAA as Marginal nonattainment for the 
2008 8-hour ozone NAAQS.\5\ EPA's classification of Eastern Kern as a 
Marginal ozone nonattainment area established a requirement that the 
area attain the 2008 ozone NAAQS as expeditiously as practicable, but 
no later than three years from the date of designation as 
nonattainment, i.e., July 20, 2015. Under CAA section 181(b)(2), the 
EPA is required to determine whether an area attained the ozone NAAQS 
by the applicable attainment date. In May 2016, the EPA found that 
Eastern Kern failed to attain the 2008 ozone NAAQS by the July 20, 2015 
Marginal attainment date and reclassified the area as Moderate for the 
2008 ozone NAAQS with a new maximum attainment date of July 20, 
2018.\6\
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    \4\ Kern County is located in the southern-most portion of 
California's Central Valley. The western portion 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 portion of 
Kern County is part of the Mojave Desert air basin. The Eastern Kern 
ozone nonattainment area covers the eastern portion 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.
    \5\ 77 FR 30088 (May 21, 2012).
    \6\ 81 FR 26697 (May 4, 2016).
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    On October 25, 2017, CARB submitted the ``Eastern Kern Air 
Pollution Control District 2017 Ozone Attainment Plan for the Federal 
75 ppb 8-Hour Ozone Standard'' (``the Eastern Kern 2017 Ozone Plan''), 
which included a request for voluntary reclassification of the Eastern 
Kern ozone nonattainment area from Moderate to Serious. Effective 
August 6, 2018, the EPA granted CARB's request and reclassified the 
Eastern Kern ozone nonattainment area as Serious for the 2008 ozone 
NAAQS with a new maximum attainment date of July 20, 2021.\7\
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    \7\ 83 FR 31334 (July 5, 2018).
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    By letter dated May 15, 2021, CARB submitted a request from the 
Eastern Kern Air Pollution Control District (``District'') to the EPA 
to voluntarily reclassify the Eastern Kern ozone nonattainment area 
from Serious to Severe for the 2008 8-hour ozone NAAQS.\8\ In the Rules 
and Regulations section of this Federal Register, the EPA is granting 
California's request and reclassifying the Eastern Kern area from 
Serious to Severe nonattainment for the 2008 8-hour ozone NAAQS. In 
this action, we are proposing a schedule for the State to submit the 
plan elements for a Severe ozone nonattainment area.
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    \8\ Letter dated May 15, 2021, from Richard W. Corey, Executive 
Officer, CARB, to Deborah Jordan, Acting Regional Administrator, EPA 
Region IX. In the letter, CARB also requests reclassification of 
Eastern Kern to Serious for the 2015 ozone NAAQS. The EPA will take 
action on the reclassification request with respect to the 2015 
ozone NAAQS in a separate rulemaking.
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II. Severe Area Requirements and Proposed Schedule

    In this action, we are proposing to require the State to submit SIP 
revisions to address the requirements resulting from the EPA's 
reclassification of Eastern Kern to Severe nonattainment for the 2008 
ozone NAAQS by no later than 18 months from the effective date of the 
EPA's final rule reclassifying Eastern Kern to Severe. Under this 
proposal, the State's submittal(s) would need to include a Severe area 
plan that addresses the requirements of CAA section 182(d) as well as 
revisions to the NSR rules applicable to the area. We are also 
proposing a schedule for submittal of revised title V rules within six 
months of the effective date of the EPA's final reclassification rule 
as explained in greater detail below.

A. Severe Area Plan Requirements

    CARB must submit SIP revisions for Eastern Kern that satisfy the 
general air quality planning requirements under CAA section 172(c) and 
specific requirements for Severe areas under

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CAA section 182(d), as interpreted and described in the final SIP 
Requirements Rule for the 2008 ozone NAAQS. See 40 CFR 51.1100 et seq.
    For areas initially designated Severe, the CAA and the EPA's ozone 
SIP Requirements Rules (SRR) for the 2008 ozone NAAQS \9\ generally 
provide, depending on the element, up to four years from the date of 
designation to submit the required SIP elements to the EPA. The 
statutory deadline for all SIP submissions for areas initially 
designated as Severe for the 2008 ozone NAAQS was July 20, 2016 
(excluding the CAA section 185 fee program). Because the deadlines for 
areas initially designated as Severe have passed (except for the CAA 
section 185 fee program), the EPA is invoking its general CAA section 
301(a) authority to propose a new deadline of 18 months from the 
effective date of the final rule reclassifying Eastern Kern as Severe 
for the State to submit SIP revisions addressing the Severe area 
requirements for Eastern Kern.
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    \9\ The EPA promulgated the SRR for the 2008 ozone NAAQS at 40 
CFR part 52, subpart AA.
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    For ozone areas reclassified by operation of law under CAA section 
181(b)(2) from Moderate to Serious, we have generally established 12-
month SIP submission deadlines.\10\ However, we find that an 18-month 
schedule for submittal of SIP revisions is appropriate for 
reclassifications from Serious to Severe given the longer interval to 
the maximum attainment date associated with areas reclassified to 
Severe as compared to areas reclassified to Serious. That is, the 
maximum attainment dates extend from six to nine years from the 
effective date of designation for areas reclassified from Moderate to 
Serious, but from nine to 15 years for areas reclassified from Serious 
to Severe.\11\ Therefore, we find that providing a longer period for 
submittal of SIP revisions addressing Severe area requirements for 
Eastern Kern is appropriate and allows CARB and the District to finish 
reviews of available control measures, adopt revisions to necessary 
control strategies, address other SIP requirements and complete the 
public notice process necessary to adopt and submit timely SIP 
revisions. Lastly, while the deadline for submittal of the CAA section 
185 fee program for areas originally classified as Severe has not yet 
expired, we are proposing the same schedule for submittal of the CAA 
section 185 fee program for Eastern Kern as for the other Severe area 
SIP requirements to assure consistency among the required submissions.
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    \10\ See, e.g., 75 FR 79302 (Dec. 20, 2010) (Dallas-Ft. Worth, 
Texas, reclassification to Serious for the 1997 8-hour ozone NAAQS); 
69 FR 16483 (March 30, 2004) (Beaumont-Port Arthur, Texas, 
reclassification to Serious for the 1979 1-hour ozone NAAQS); 68 FR 
4836 (Jan. 30, 2003) (St. Louis, Missouri, reclassification to 
Serious for the 1979 1-hour ozone NAAQS).
    \11\ 40 CFR 51.1103.
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    With respect to implementation of new RACT controls in Eastern 
Kern, we are proposing that such controls be implemented as 
expeditiously as practicable, but no later than 18 months from the date 
when the Severe area RACT SIP will be due, i.e., 36 months from the 
effective date of the EPA's final rule reclassifying Eastern Kern to 
Severe (assuming we finalize the proposed 18-month schedule for 
submittal). We believe that such an implementation deadline 
appropriately balances the necessity of providing sources sufficient 
time to come into compliance with the new RACT controls while also 
ensuring that RACT controls are in place in time to provide for 
attainment consistent with the overarching goal of improving air 
quality as quickly as possible to improve public health outcomes.

B. NSR and Title V Program Revisions

    In section II.A of this proposed rule, we are proposing a deadline 
of no later than 18 months from the effective date of EPA's final rule 
reclassifying Eastern Kern to Severe for submittal of revised District 
NSR rules as a SIP revision. The District NSR rules for Eastern Kern 
must be revised to reflect the Severe area definitions for new major 
sources and major modifications and to increase the offset ratios for 
these sources consistent with CAA section 182(d)(2). Under CAA section 
182(d)(2), the volatile organic compound and oxides of nitrogen offset 
ratios for major sources and modifications in a Severe nonattainment 
area must be at least 1.3 to 1, or at least 1.2 to 1 if the plan 
requires all existing major sources in the nonattainment area to use 
best available control technology.
    The District must also make any changes in its title V operating 
permits program for Eastern Kern necessary to reflect the change in the 
major source threshold from 50 tons per year for Serious areas to 25 
tons per year for Severe areas. We are proposing a deadline of six 
months from the effective date of reclassification to Severe for the 
District to submit the required title V revisions. Given the narrow 
scope of the required revisions, we consider a deadline of six months 
from the effective date of reclassification as a sufficient period of 
time to allow the District to make the required changes without 
imposing a lengthy delay in the requirement for sources newly subject 
to the title V program to submit a timely application.\12\
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    \12\ A source newly subject to the title V permit program is 
required to submit a title V application within 12 months after the 
source becomes subject to the program. See 40 CFR 70.5(a)(1)(i).
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C. Federal Reformulated Gasoline

    The Clean Air Act requires that the sale of conventional gasoline 
be prohibited in any ozone nonattainment area that is reclassified as 
Severe, resulting in federal reformulated gasoline (RFG) being sold in 
any such area.\13\ The prohibition on the sale of conventional gasoline 
takes effect one year after the effective date of the reclassification 
to Severe. California law requires the sale of California Phase 3 RFG 
(CaRFG3) throughout the state, and the EPA has exempted gasoline fuel 
meeting the CaRFG3 regulations from the requirements that would 
otherwise apply under the federal RFG regulations.\14\ We issued this 
exemption because we found that gasoline complying with the CaRFG3 
regulations provides emissions benefits equivalent to federal RFG 
regulations and because California's compliance and enforcement program 
is sufficiently rigorous to assure that the standards are met.\15\ 
Thus, reclassification of Eastern Kern to Severe does not impact the 
continued applicability of California's regulations that require the 
sale of CaRFG3 in the Eastern Kern area. Should California's 
regulations no longer apply in the future, the EPA's RFG regulations 
would apply in keeping with the CAA. In a separate action, the EPA 
would add Eastern Kern to the list of federal RFG covered areas in 40 
CFR part 1090.
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    \13\ See the definitions of ``covered area,'' ``conventional 
gasoline,'' and ``reformulated gasoline'' in CAA section 211(k)(10).
    \14\ 40 CFR 1090.625. See also 85 FR 78412 at 78430, footnote 70 
(December 4, 2020).
    \15\ 70 FR 75914 (December 21, 2005).
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III. Proposed Action and Request for Public Comment

    For the reasons provided above, the EPA is proposing to establish a 
deadline of no later than 18 months from the effective date of the 
final rule reclassifying Eastern Kern as Severe for the State of 
California to submit SIP revisions addressing all Severe area SIP 
elements for the Eastern Kern ozone nonattainment area. We are 
proposing to establish a deadline of six months for any necessary 
revisions to the title V rules for the Eastern Kern area. The EPA is 
proposing a deadline for implementation of new RACT controls as 
expeditiously as practicable but no later than 18 months from the 
effective

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date of the date when the Severe area RACT SIP will be due, i.e., 36 
months from the effective date of the EPA's final rule reclassifying 
Eastern Kern to Severe (assuming we finalize the proposed 18-month 
schedule for submittal). We will accept comments from the public on 
this proposed rule for the next 30 days. The deadline and instructions 
for submission of comments are provided in the DATES and ADDRESSES 
sections at the beginning of this preamble.

IV. 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. Because the statutory 
requirements are clearly defined with respect to the differently 
classified areas, and because those requirements are automatically 
triggered by reclassification, the timing of the submittal of the 
Severe area requirements 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).
    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.) and that 
this proposed rule 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 seeking comment solely on the timing of submittal requirements.
    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 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, nor 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 
CAA.
    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.
    As this proposal would set a deadline for the submittal of CAA 
required plans and information, 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. The EPA believes that this action, 
which addresses the timing for the submittal of Severe area ozone 
planning requirements, does not have disproportionately high and 
adverse human health or environmental health effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Volatile organic compounds.

    Dated: May 27, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 2021-11706 Filed 6-4-21; 8:45 am]
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