[Federal Register Volume 87, Number 117 (Friday, June 17, 2022)]
[Proposed Rules]
[Pages 36433-36436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13045]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-EPA-R09-OAR-2022-0480; FRL-9873-01-R9]


Air Plan Disapproval; California; Antelope Valley Air Quality 
Management District and Mojave Desert Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
disapprove revisions to the Antelope Valley Air Quality Management 
District (AVAQMD) and the Mojave Desert Air Quality Management District 
(MDAQMD) portions of the California State Implementation Plan (SIP) 
concerning rules submitted to address section 185 of the Clean Air Act 
(CAA or the Act) with respect to the 1-hour ozone standard. We are 
proposing action on these local rules that were submitted as equivalent 
alternatives to a statutory section 185 program. We are taking comments 
on this proposal and plan to follow with a final action.

DATES: Comments must be received on or before July 18, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0480 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

[[Page 36434]]

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: Donnique Sherman, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4129 or by 
email at [email protected].

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

Table of Contents

I. The State's Submittal
    A. What rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted rules?
II. EPA's Evaluation and Action
    A. How is the EPA evaluating these rules?
    B. Do these rules meet the evaluation criteria?
    C. What are the rule deficiencies?
    D. EPA Recommendations To Further Improve These Rules
    E. Proposed Action and Public Comment
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rules did the State submit?

    Table 1 lists the rules proposed for disapproval with the dates 
that they were adopted by the local agencies and submitted by the 
California Air Resources Board (CARB).

                                            Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
             Local Agency                  Rule No.            Rule title             Amended        Submitted
----------------------------------------------------------------------------------------------------------------
AVAQMD................................             315  Federal Clean Air Act           10/18/11        12/14/11
                                                         Section 185 Penalty.
MDAQMD................................             315  Federal Clean Air Act           10/14/11        12/14/11
                                                         Section 185 Penalty.
----------------------------------------------------------------------------------------------------------------

    On June 14, 2012, the submittals for AVAQMD Rule 315 and MDAQMD 
Rule 315 were deemed by operation of law to meet the completeness 
criteria in 40 CFR part 51 Appendix V, which must be met before formal 
EPA review.

B. Are there other versions of these rules?

    There are no previous versions of AVAQMD Rule 315 in the SIP, 
although the AVAQMD adopted an earlier version of this rule on February 
15, 2011, and CARB submitted it to us on April 22, 2011. We consider 
this earlier submittal to have been superseded by the December 14, 2011 
submittal. While we can act on only the most recently submitted 
version, we have also reviewed materials provided with previous 
submittals.
    There are no previous versions of MDAQMD Rule 315 in the SIP, 
although the MDAQMD adopted an earlier version of this rule on February 
28, 2011, and CARB submitted it to us on April 22, 2011. We consider 
this earlier submittal to have been superseded by the December 14, 2011 
submittal. While we can act on only the most recently submitted 
version, we have also reviewed materials provided with previous 
submittals.

C. What is the purpose of the submitted rules?

    Under sections 182(d)(3), (e), (f) and 185 of the Act, states with 
ozone nonattainment areas classified as Severe or Extreme are required 
to submit a SIP revision that requires major stationary sources of 
volatile organic compounds (VOC) or oxides of nitrogen (NOX) 
emissions in the area to pay a fee if the area fails to attain the 
standard by the attainment date. The required SIP revision must provide 
for annual payment of the fees, computed in accordance with CAA section 
185(b).
    The purpose of AVAQMD Rule 315 and MDAQMD Rule 315 is to satisfy 
the requirements of sections 182 and 185 of the Act by utilizing an 
equivalency approach consistent with the principles of section 172(e) 
of the Act. Under these rules, AVAQMD and MDAQMD will track, calculate, 
analyze, and report on expenditures designed to result in VOC or 
NOX reductions within the Districts, to implement an 
alternative program that is not less stringent than a statutory CAA 
section 185 fee program. The rules include calculation of the CAA 
section 185 fee obligation, establishment of a CAA section 185 
equivalency ``Tracking Account,'' an annual demonstration of 
equivalency, reporting to CARB and the EPA, and a provision requiring 
major sources to pay fees directly in the event the area fails to 
establish equivalency. The ``Tracking Account'' would include funds 
from qualified programs that are surplus to the 1-hour ozone SIP and 
designed to result in direct reductions or facilitate future reductions 
of VOC or NOX emissions, as approved by the EPA.

II. EPA's Evaluation and Action

A. How is the EPA evaluating these rules?

    SIP rules must be enforceable (see CAA section 110(a)(2)), must not 
interfere with applicable requirements concerning attainment and 
reasonable further progress or other CAA requirements (see CAA section 
110(l)), and must not modify certain SIP control requirements in 
nonattainment areas without ensuring equivalent or greater emissions 
reductions (see CAA section 193). The EPA is also evaluating these 
rules for consistency with the statutory requirements of CAA section 
185. Equivalent alternative programs designed to meet the CAA section 
185 obligation for the 1-hour ozone national ambient air quality 
standard (NAAQS) must be consistent with the principles of CAA section 
172(e) and must be ``not less stringent'' than the statutory section 
185 program.
    Guidance and policy documents that we use to evaluate 
enforceability, revision/relaxation and rule stringency requirements 
for the applicable criteria pollutants include the following:

    1. ``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 
57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, 
and Deviations,'' EPA, May 25, 1988 (the Bluebook, revised January 
11, 1990).
    3. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).

B. Do these rules meet the evaluation criteria?

    AVAQMD Rule 315 and MDAQMD Rule 315 implement a fee equivalency 
approach consistent with the principles of CAA section 172(e).\1\ The 
rules are

[[Page 36435]]

largely consistent with general CAA requirements regarding SIP 
submissions. However, the EPA proposes to disapprove the rules because 
they contain provisions that do not meet our evaluation criteria and 
affect rule enforceability and stringency. These deficiencies are 
summarized below and discussed further in the technical support 
document (TSD) for these rules.
---------------------------------------------------------------------------

    \1\ We have previously set out the legal rationale for 
equivalent alternative section 185 programs. See 76 FR 45212 (July 
28, 2011), and 77 FR 1895 (January 12, 2012) and the accompanying 
docket materials.
---------------------------------------------------------------------------

C. What are the rule deficiencies?

    These provisions do not satisfy the requirements of section 110 and 
part D of title I of the Act and prevent full approval of the SIP 
submittal. We propose to disapprove the SIP revision based on the 
following deficiencies:

    1. AVAQMD Rule 315 refers to the term ``Major Facility'' as 
defined in ``District Rule 1301.'' The current SIP-approved Rule 
1301 for AVAQMD does not contain a definition of ``Major Facility.''
    2. The Districts did not provide a justification for the method 
chosen to calculate alternate baseline emissions for facilities with 
emissions that are irregular, cyclical, or otherwise vary 
significantly.
    3. The rules establish an area-wide equivalency ``Tracking 
Account.'' This system requires the cooperation and coordination of 
three districts: AVAQMD, MDAQMD, and the South Coast Air Quality 
Management District (SCAQMD). Each rule requires the respective Air 
Pollution Control Officer (APCO) to request an accounting from other 
Districts, but there is no requirement for the APCO to provide their 
accounting to the other Districts. The rules assume accounting 
across the three Districts with the same system in place. SCAQMD 
does not have a rule that contains the same provisions. As a result, 
the area-wide accounting system is not enforceable.
    4. The formula for calculating the penalty fee needs correcting 
to properly reflect the inflation adjustment based on the Consumer 
Price Index.

    The TSD for AVAQMD Rule 315 and MDAQMD Rule 315 contains further 
discussion and analysis of these deficiencies.

D. EPA Recommendations To Further Improve These Rules

    The TSD describes additional rule revisions that we recommend for 
the next time the Districts modify these rules.

E. Proposed Action and Public Comment

    As authorized in section 110(k)(3) of the Act, we are proposing 
full disapproval of submitted AVAQMD Rule 315 and MDAQMD Rule 315. If 
we finalize this disapproval, the final disapproval action would 
trigger sanctions under CAA section 179(a)(2) and 40 CFR 52.31 unless 
the EPA approves subsequent SIP revisions that correct the rule 
deficiencies within 18 months of the effective date of the final 
action. In addition to the sanctions, CAA section 110(c)(1) provides 
that the EPA must promulgate a federal implementation plan (FIP) 
addressing any disapproved elements of the plan within two years after 
the effective date of the disapproval unless the State submits, and the 
EPA approves, the required SIP submittal. As a result of the EPA's 
January 5, 2010 determination that California had failed to submit the 
required CAA section 185 fee programs for the 1-hour ozone NAAQS for 
certain nonattainment areas (75 FR 232), the EPA is already subject to 
a statutory deadline to promulgate a FIP for this purpose.
    We will accept comments from the public on the proposed disapproval 
for the next 30 days.

III. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA, because this proposed SIP disapproval, if finalized, will not 
in-and-of itself create any new information collection burdens, but 
will simply disapprove certain state requirements for inclusion in the 
SIP.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. This 
proposed SIP disapproval, if finalized, will not in-and-of itself 
create any new requirements but will simply disapprove certain state 
requirements for inclusion in the SIP.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action proposes to disapprove pre-existing 
requirements under state or local law, and imposes no new requirements. 
Accordingly, no additional costs to state, local, or tribal 
governments, or to the private sector, result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because the SIP revision that the EPA is 
proposing to disapprove would not 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, and will not impose substantial direct 
costs on tribal governments or preempt tribal law. Thus, Executive 
Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive order. This action is not subject to 
Executive Order 13045 because this proposed SIP disapproval, if 
finalized, will not in-and-of itself create any new regulations, but 
will simply disapprove certain state requirements for inclusion in the 
SIP.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent

[[Page 36436]]

with applicable law or otherwise impractical. The EPA believes that 
this action is not subject to the requirements of section 12(d) of the 
NTTAA because application of those requirements would be inconsistent 
with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    The EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: June 12, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-13045 Filed 6-16-22; 8:45 am]
BILLING CODE 6560-50-P