[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
[[Page 30235]]
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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