[Federal Register Volume 87, Number 78 (Friday, April 22, 2022)]
[Rules and Regulations]
[Pages 24060-24063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08570]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2018-0146; FRL-9681-01-R9]


Approval of Air Quality Implementation Plans; California; Ventura 
County; 8-Hour Ozone Nonattainment Area Requirements; Correction Due to 
Vacatur

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; correction.

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SUMMARY: The Environmental Protection Agency (EPA or ``Agency'') is 
correcting the state implementation plan (SIP) for the State of 
California to remove from the Code of Federal Regulations (CFR) 
revisions to the California SIP that were initially approved into the 
SIP in a June 25, 2020 final action that was subsequently vacated and 
remanded to the EPA by the Court of Appeals for the Ninth Circuit. This 
action is exempt from notice-and-comment rulemaking because it is 
ministerial in nature.

DATES: This final rule is effective on April 22, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2018-0146. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) 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 https://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: Tom Kelly, Air Planning Office (AIR-
2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105, (415) 
972-3856, or by email at [email protected].

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

Table of Contents

I. Background and Rationale for This Action
II. Final Action
III. Statutory and Executive Order Reviews

I. Background and Rationale for This Action

    Ground-level ozone pollution is formed from the reaction of 
volatile organic compounds (VOC) and oxides of nitrogen 
(NOX) in the presence of sunlight.\1\ These two pollutants, 
referred to as ozone precursors, are emitted by many types of sources, 
including on-and off-road motor vehicles and engines, power plants and 
industrial facilities, and smaller area sources such as lawn and garden 
equipment and paints. Scientific evidence indicates that adverse public 
health effects occur following exposure to elevated levels of ozone, 
particularly in children and adults with lung disease. Breathing air 
containing ozone can reduce lung function and inflame airways, which 
can increase respiratory symptoms and aggravate asthma or other lung 
diseases.\2\
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    \1\ The State of California refers to reactive organic gases 
(ROG) rather than VOC in some of its ozone-related SIP submissions. 
ROG and VOC refer essentially to the same set of chemical 
constituents, and for the sake of simplicity, we refer to this set 
of gases as VOC in this final rule.
    \2\ See ``Fact Sheet--2008 Final Revisions to the National 
Ambient Air Quality Standards for Ozone'' dated March 2008.
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    Under section 109 of the Clean Air Act (CAA), the EPA promulgates 
national ambient air quality standards (NAAQS) for pervasive air 
pollutants, such as ozone. The EPA has previously promulgated NAAQS for 
ozone in 1979 and 1997.\3\ In 2008, the EPA revised and further 
strengthened the ozone NAAQS by setting the acceptable level of ozone 
in the ambient air at 0.075 parts per million (ppm) averaged over an 8-
hour period (and herein referred to as the ``2008 ozone NAAQS'').\4\ 
Although the EPA further tightened the 8-hour ozone NAAQS to 0.070 ppm 
in 2015, this action relates to the requirements for the 2008 ozone 
NAAQS.\5\
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    \3\ The ozone NAAQS promulgated in 1979 was 0.12 parts per 
million (ppm) averaged over a 1-hour period (``1-hour ozone 
NAAQS''). See 44 FR 8202 (February 8, 1979). The ozone NAAQS 
promulgated in 1997 was 0.08 ppm averaged over an 8-hour period 
(``1997 ozone NAAQS''). See 62 FR 38856 (July 18, 1997).
    \4\ 73 FR 16436 (March 27, 2008).
    \5\ Information on the 2015 ozone NAAQS is available at 80 FR 
65292 (October 26, 2015).
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    Following promulgation of a new or revised NAAQS, the EPA is 
required under CAA section 107(d) to designate

[[Page 24061]]

areas throughout the country as attaining or not attaining the NAAQS. 
The EPA classifies ozone nonattainment areas under CAA section 181 
according to the severity of the ozone pollution problem, with 
classifications ranging from ``Marginal'' to ``Extreme.'' State 
planning and emissions control requirements for ozone are determined, 
in part, by the nonattainment area's classification. The EPA designated 
Ventura County as nonattainment for the 2008 ozone NAAQS on May 21, 
2012 and classified the area as ``Serious.'' \6\ Ventura County lies 
within California's South Central Coast Air Basin, which includes the 
counties of Santa Barbara and San Luis Obispo, in addition to Ventura 
County. The Ventura County ozone nonattainment area for the 2008 ozone 
NAAQS includes the entire county except for the Channel Islands of 
Anacapa and San Nicolas Islands.
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    \6\ 77 FR 30088 (May 21, 2012).
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    In California, the California Air Resources Board (CARB or 
``State'') is the state agency responsible for the adoption and 
submission to the EPA of California SIP submissions, and it has broad 
authority to establish emissions standards and other requirements for 
mobile sources. Under California law, local and regional air pollution 
control districts in California are responsible for the regulation of 
stationary sources and are generally responsible for the development of 
regional air quality plans. In Ventura County, the Ventura County Air 
Pollution Control District (VCAPCD or ``District'') develops and adopts 
air quality management plans to address CAA planning requirements 
applicable to that region. The District then submits such plans to CARB 
for adoption and submission to the EPA as proposed revisions to the 
California SIP.
    Under the CAA, after the EPA designates areas as nonattainment for 
a NAAQS, states with nonattainment areas are required to submit SIP 
revisions. With respect to areas designated as nonattainment, states 
must implement the 2008 ozone NAAQS under Title 1, part D of the CAA, 
which includes section 172 (``Nonattainment plan provisions in 
general'') and sections 181-185 of subpart 2 (``Additional Provisions 
for Ozone Nonattainment Areas''). To assist states in developing 
effective plans to address ozone nonattainment problems, in 2015, the 
EPA issued a SIP Requirements Rule (SRR) for the 2008 ozone NAAQS 
(``2008 Ozone SRR'') that addresses implementation of the 2008 ozone 
NAAQS, including attainment dates, requirements for emissions 
inventories, attainment and reasonable further progress (RFP) 
demonstrations, and the transition from the 1997 ozone NAAQS to the 
2008 ozone NAAQS and associated anti-backsliding requirements.\7\ The 
2008 Ozone SRR is codified at 40 CFR part 51, subpart AA.
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    \7\ 80 FR 12264 (March 6, 2015).
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    In 2017 and 2018, CARB submitted SIP revisions to address the 
nonattainment planning requirements for Ventura County for the 2008 
ozone NAAQS, including the District's ``Final 2016 Ventura County Air 
Quality Management Plan'' (February 14, 2017) (``2016 Ventura County 
AQMP'') and CARB's ``2018 Updates to the California State 
Implementation Plan'' (``2018 SIP Update''). In two separate final 
rules, we approved the 2016 Ventura County AQMP and the 2018 SIP Update 
as meeting all the applicable statutory and regulatory requirements for 
the Ventura County Serious nonattainment area for the 2008 ozone NAAQS, 
with the exception of the contingency measure requirement.\8\ For the 
contingency measure requirement, we issued a conditional approval that 
relied upon a commitment by the District to amend the District's 
architectural coatings rule to include contingency provisions and a 
commitment by CARB to submit the amended District rule to the EPA 
within a year of final conditional approval of the contingency measure 
element for Ventura County.\9\
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    \8\ 85 FR 11814 (February 27, 2020); and 85 FR 38081 (June 25, 
2020). The EPA's February 27, 2020 final approval of all other 
elements of the 2016 Ventura County AQMP was not challenged and this 
action does not relate to that final action.
    \9\ 85 FR 38081, 38085.
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    Under the CAA, ozone nonattainment areas classified under subpart 2 
as Serious or above must include contingency measures in their SIPs 
consistent with sections 172(c)(9) and 182(c)(9). Contingency measures 
are additional controls or measures to be implemented in the event the 
area fails to make RFP or to attain the NAAQS by the attainment date. 
Contingency measures must be designed to be implemented prospectively; 
already-implemented control measures may not serve as contingency 
measures even if they provide emissions reductions beyond those needed 
for any other CAA purpose. See Bahr v. EPA, 836 F.3d 1218, at 1235-1237 
(9th Cir. 2016). The SIP should contain trigger mechanisms for the 
contingency measures, specify a schedule for implementation, and 
indicate that the measure will be implemented without significant 
further action by the state or the EPA.\10\ Neither the CAA nor the 
EPA's implementing regulations establish a specific amount of emissions 
reductions that implementation of contingency measures must achieve, 
but the 2008 Ozone SRR reiterates the EPA's guidance recommendation 
that contingency measures should provide for emissions reductions 
approximately equivalent to one year's worth of RFP, thus amounting to 
reductions of 3 percent of the baseline emissions inventory for the 
nonattainment area.\11\
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    \10\ 70 FR 71612 (November 29, 2005); see also 2008 Ozone SRR, 
80 FR 12264, 12285.
    \11\ 80 FR 12264, 12285.
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    The contingency measure element for Ventura County for the 2008 
ozone NAAQS consists of the contingency-related portion of the 2016 
Ventura County AQMP and the 2018 SIP Update's updated evaluation of the 
surplus emissions reductions in Ventura County from already-implemented 
measures.\12\ To supplement the contingency measure element for Ventura 
County, the District and CARB committed to adopt and submit a 
contingency measure within one year of the EPA's final conditional 
approval of the contingency measure element.\13\ In December 2019, we 
proposed conditional approval of the contingency measure element of the 
2016 Ventura County AQMP, as modified by the 2018 SIP Update,\14\ and 
the Center for Biological Diversity (CBD) submitted comments 
challenging that proposed action.
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    \12\ 84 FR 70109, 70124 (December 20, 2019).
    \13\ The specific contingency measure that the District 
committed to adopt consists of revisions to the District's 
architectural coatings rule, such as lower VOC content limits for 
certain coating categories, consistent with CARB's 2019 update of 
its Suggested Control Measures for architectural coatings, to take 
effect if the EPA determines that Ventura County failed to achieve 
an RFP milestone or failed to attain the 2008 ozone NAAQS by the 
applicable attainment date.
    \14\ 84 FR 70109.
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    CBD objected to our proposed conditional approval on several 
grounds. First, CBD noted that the Agency had not provided an estimate 
of the emissions reductions that would be achieved by the contingency 
measure and asserted that the Agency must therefore assume the 
reductions to be de minimis. CBD also challenged the proposed 
conditional approval on the grounds that the EPA's consideration of 
surplus emissions reductions from already-implemented measures in 
evaluating the adequacy of contingency measures is functionally no 
different than simply approving the already-implemented measures as 
contingency measures, which is inconsistent with the Bahr v. EPA 
decision. CBD also asserted that the EPA's approach would allow states 
to meet the contingency

[[Page 24062]]

measure requirement through submission of token contingency measures so 
long as already-implemented measures provide for surplus emissions 
reductions equivalent to one year's worth of RFP. Contingency measures, 
according to CBD, should at a minimum equal one year's worth of RFP.
    For our final action, in light of CBD's comment regarding the 
quantification of emissions reductions, based on preliminary estimates 
provided by the District and CARB, the EPA estimated that the 
contingency measure, i.e., the contingency provision in the 
architectural coatings rule, would achieve emissions reductions 
equivalent to approximately two to five percent of one year's worth of 
RFP.\15\ Notwithstanding expected emissions reductions from the 
contingency measure equivalent to only a fraction of one year's worth 
of RFP, we found that the one contingency measure (i.e., once adopted, 
submitted, and approved by the EPA) would be sufficient for the State 
and District to meet the contingency measure requirement for Ventura 
County for the 2008 ozone NAAQS because of the substantial surplus 
emissions reductions we anticipate to occur in the future from already-
implemented measures.
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    \15\ 85 FR 38081, 38083.
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    CBD filed a petition for review of the EPA's June 25, 2020 
conditional approval of the contingency measure element for Ventura 
County for the 2008 ozone NAAQS.\16\ In September 2020, the Court 
granted the EPA's unopposed motion to hold the case in abeyance until a 
decision was reached by the Ninth Circuit in the Association of 
Irritated Residents v. EPA case (No. 19-71223). The petitioners in the 
Association of Irritated Residents v. EPA case had filed a brief 
challenging the EPA's conditional approval of the contingency measure 
element for San Joaquin Valley for the 2008 ozone NAAQS on similar 
grounds as CBD had raised in comments on our proposed conditional 
approval of the contingency measure element for Ventura County.
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    \16\ Center for Biological Diversity v. EPA, Ninth Circuit Court 
of Appeals, Case No. 20-72513.
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    On August 26, 2021, the U.S. Court of Appeals for the Ninth Circuit 
published its decision in the Association of Irritated Residents v. EPA 
case, granting the petition in part and denying the petition in part. 
The Court held that EPA's conditional approval of the contingency 
measure element was arbitrary and capricious because, in the court's 
view, the Agency had changed its position by accepting a contingency 
measure that would achieve far less than one year's worth of RFP as 
meeting the contingency measure requirement without a reasoned 
explanation.\17\ The Court found that by taking into account the 
emissions reductions from already-implemented measures to find that the 
contingency measure would suffice to meet the applicable requirement, 
the EPA was circumventing the court's 2016 holding in Bahr v. EPA. The 
court rejected the EPA's arguments that the Agency's approach was 
grounded in its long-standing guidance and was consistent with the 
court's 2016 Bahr v. EPA decision. The court remanded the conditional 
approval action back to the Agency for further proceedings consistent 
with the decision.
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    \17\ Association of Irritated Residents. v. EPA, 10 F.4th 937 
(9th Cir. 2021).
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    In light of the decision in the Association of Irritated Residents 
v. EPA case and the overlap in the rationales presented by the EPA to 
justify the conditional approvals of the contingency measure elements 
for San Joaquin Valley and Ventura County and the grounds for 
challenging those actions, the EPA filed an unopposed motion for 
vacatur and voluntary remand in the Center for Biological Diversity v. 
EPA case.\18\ The court granted the motion by order dated March 1, 
2022.\19\ We will be proposing a new action on the contingency measure 
element from the 2016 Ventura County AQMP, as modified by the 2018 SIP 
Update, in a separate rulemaking.
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    \18\ Center for Biological Diversity v. EPA, Ninth Circuit Court 
of Appeals, Case No. 20-72513, Docket Entry: 15-1, December 6, 2021.
    \19\ Center for Biological Diversity v. EPA, Ninth Circuit Court 
of Appeals, Case No. 20-72513, Docket Entry: 16, March 1, 2022.
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II. Final Action

    The EPA is correcting the codification of the California SIP in the 
CFR to reflect the vacatur of the EPA's June 25, 2020 final action. The 
EPA is taking this action as a final rule without providing an 
opportunity for public comment because the EPA finds that the 
Administrative Procedure Act (APA) good cause exemption applies. In 
general, the APA requires that general notice of proposed rulemaking 
shall be published in the Federal Register. Such notice must provide an 
opportunity for public participation in the rulemaking process. 
However, the APA also provides a way for an agency to directly issue a 
final rulemaking in certain specific instances. This may occur, in 
particular, when an agency for good cause finds (and incorporates the 
finding and a brief statement of reasons in the rule issued) that 
notice and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest. See 5 U.S.C. 553(b)(3)(B).
    The EPA has determined that it is not necessary to provide an 
opportunity for public comment on this action because the correction of 
the CFR to reflect the vacatur of EPA's June 25, 2020 final action is a 
necessary ministerial act. The Court, through its Order referencing the 
Motion, vacated the rule conditionally approving the revisions to the 
California SIP that this action removes from display in the CFR and 
remanded this matter to the EPA. Therefore, removing the affected 
regulatory text simply implements the decision of the Court, and it 
would serve no useful purpose to provide an opportunity for public 
comment on this issue. In addition, notice-and-comment would be 
contrary to the public interest because it would unnecessarily delay 
the correction of the applicable California SIP as identified in the 
CFR. Such delay could result in confusion on the part of the regulated 
industry and state, local, and tribal air agencies on the actual SIP-
approved provisions in the California SIP. For these reasons, the EPA 
finds good cause to issue a final rulemaking pursuant to section 553 of 
the APA, 5 U.S.C. 553(b)(3)(B). Moreover, the EPA finds that the 
problems outlined above regarding the effects of delaying issuance of 
the rule also provide good cause for not delaying its effective date. 5 
U.S.C. 553(d)(3). Accordingly, the requirement for a delay in effective 
date does not apply and the rule will take effect upon publication in 
the Federal Register. 5 U.S.C. 553(d).

III. Statutory and Executive Order Reviews

A. General Requirements

    This action merely makes ministerial corrections to the SIP 
consistent with state law that the EPA had previously approved 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

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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, this action 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).

B. Submission to Congress and the Comptroller General

    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).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by June 21, 2022. 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 correcting the California SIP to 
reflect the vacatur of EPA's June 25, 2020 final rule 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, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: April 18, 2022.
Deborah Jordan,
Acting Regional Administrator, Region IX.

    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


Sec.  52.220  [Amended]

0
2. Section 52.220 is amended by removing and reserving paragraphs 
(c)(514)(ii)(A)(6) and (c)(532)(ii)(A)(2).


Sec.  52.248  [Amended]

0
3. Section 52.248 is amended by removing and reserving paragraph (j).

[FR Doc. 2022-08570 Filed 4-21-22; 8:45 am]
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