[Federal Register Volume 87, Number 188 (Thursday, September 29, 2022)]
[Rules and Regulations]
[Pages 59021-59024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20858]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0480; FRL-9873-02-R9]


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

DATES: This rule is effective on October 31, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2022-0480. 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: 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. Proposed Action
II. Public Comments and EPA's Responses
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On June 17, 2022 (87 FR 36433), the EPA proposed to disapprove the 
following rules adopted by the AVAQMD and MDAQMD (collectively, ``the 
Districts'') that were submitted for incorporation into the California 
SIP.

                                            Table 1--Submitted Rules
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            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              10/24/11        12/14/11
                                                      Section 185 Penalty.
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[[Page 59022]]

    We proposed to disapprove these rules because some rule provisions 
do not satisfy the requirements of section 110 and part D of the Act. 
These provisions include the following:
    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, which differs from the method EPA has previously 
considered to be generally approvable as explained in the EPA's 
guidance.
    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 the 
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.
    Our proposed action and technical support document (TSD) contain 
more information on the basis for this disapproval and on our 
evaluation of the submitted rules.

II. Public Comments and the EPA's Responses

    The EPA's proposed action provided a 30-day public comment period. 
During the comment period we received one comment from the MDAQMD, and 
one comment from the AVAQMD.
    Comment 1: AVAQMD commented that, ``the current SIP version of the 
AVAQMD New Source Review (NSR) Regulations are those approved for 
SCAQMD on December 4, 1996. Of those SIP approved rules, Rule 1302 
contains applicable definitions including the term `Major Polluting 
Facility.' The AVAQMD and its predecessor agencies has amended and 
caused to be submitted to USEPA these rules on several occasions with a 
shift of the definitions to Rule 1301 and a slight change in 
terminology to `Major Facility.' To avoid confusion on the part of 
regulated facilities, cross references need to be to the current rule 
book rules. Thus, the deficiency as noted in the TSD in Section 4.b.1. 
is not only unavoidable but a direct result of USEPA's inaction on 
prior submissions. As USEPA indicates in the TSD this deficiency will 
be resolved whenever USEPA acts upon the most current NSR submission.''
    Response 1: As indicated in our TSD associated with our proposed 
action, we anticipate that approval of the current locally adopted 
versions of AVAQMD Rule 1301 and AVAQMD Rule 1303 into the SIP will 
resolve this deficiency. The AVAQMD's comment does not appear to 
challenge our proposed action and therefore does not impact our 
proposed disapproval.
    Comment 2: The Districts both commented that it would be helpful if 
the EPA could ``indicate a potential timeline for action on [their 
other section 185 penalty] rules.'' They further mentioned that this 
would enable the Districts ``to either amend Rule 315 quickly so that 
it can be evaluated with the other FCAA 185 penalty rules or to wait 
for EPA to expeditiously identify deficiencies in those other rules'' 
so they can adjust Rule 315 appropriately.
    Response 2: The CAA outlines the EPA's review process, deadlines, 
and timeframes. CAA section 110(k)(2) states that once a submitted plan 
or plan revision is determined complete, the EPA shall act on the 
submission within 12 months of that determination. We understand that 
the Districts would like to streamline their rulemaking efforts. We 
will make every effort to keep the Districts informed of the status of 
submitted SIP revisions in consideration of local district rulemaking 
timelines.
    Comment 3: The Districts both commented that: ``While the Southeast 
Desert Modified AQMD was found to have failed to attain the old 1-hour 
O3 standard based on 2005-2007 data in 2011 it must be noted 
that the area subsequently attained the standard as early as the 2009-
2011 data set. In fact, USEPA noted that such attainment was possible 
based on the preliminary review of the 2010-2012 data set in its Notice 
of Proposed Rulemaking Determination of Attainment of the 1-Hour Ozone 
National Ambient Air Quality Standard in the Southeast Desert 
Nonattainment Area in California on August 25, 2014. This attainment 
determination was finalized on April 15, 2015. Due to the timing of the 
Rule adoption, USEPA's actions and the subsequent attainment 
designation the [AVAQMD/MDAQMD] asserts that the provisions of Rule 315 
have not been triggered and are unlikely to be triggered in the future 
as the 1-hour O3 standard has been fully rescinded.''
    Response 3: The EPA does not agree with the Districts' statement 
that the provisions of Rule 315 have not been triggered and are 
unlikely to be triggered in the future. To the extent that this comment 
is based on the requirement to have a section 185 program for a revoked 
national ambient air quality standard (NAAQS), the Districts are 
incorrect. To the extent that it is based on the text of the rules 
themselves, the EPA does not find support in the text of the rules for 
the proposition that the rules require a trigger to become effective.
    As the commenters note, the EPA found that the Southeast Desert 
Modified Air Quality Management Area (AQMA) failed to attain the now-
revoked 1-hour ozone standard based on 2005-2007 data in 2011.\1\ In 
that action, we explained that although the EPA revoked the 1-hour 
ozone standard, to comply with anti-backsliding requirements of the 
Act, 8-hour ozone nonattainment areas remain subject to certain 
requirements based on their 1-hour ozone classification. Initially, in 
our rules to address the transition from the 1-hour to the 8-hour ozone 
standard, the EPA did not include the section 185 fee program among the 
measures retained as 1-hour ozone anti-backsliding requirements.\2\ 
However, on December 23, 2006, the United States Court of Appeals for 
the District of Columbia Circuit determined that the EPA should not 
have excluded these requirements (and certain others not relevant here) 
from its anti-backsliding requirements.\3\ As a result, the section 185 
major source fee program is maintained as an anti-backsliding measure 
for the 1-hour ozone NAAQS in areas that were classified as Severe or 
Extreme nonattainment for the 1-hour standard at the time of 
revocation.
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    \1\ 76 FR 82133 (December 30, 2011).
    \2\ 69 FR 23951 (April 30, 2004).
    \3\ South Coast Air Quality Management District v. EPA, 472 F.3d 
882 (D.C. Cir. 2006) reh'g denied 489 F.3d 1245 (clarifying that the 
vacatur was limited to the issues on which the court granted the 
petitions for review) (referred to herein as the South Coast case).
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    In our 2011 notice finding that the Southeast Desert Modified AQMA 
failed to attain the 1-hour ozone NAAQS, the EPA explained, citing the 
South Coast decision, that the rationale for the finding was that 
``after revocation of the one-hour ozone standard, the EPA must 
continue to provide a mechanism to give effect to the one-hour anti-
backsliding requirements that have been

[[Page 59023]]

specifically retained'' and that our finding was ``in keeping with this 
responsibility with respect to one-hour anti-backsliding . . . section 
185 fee programs.'' \4\ Specifically, we wrote that a consequence of 
the finding of failure to attain by the attainment date was ``to give 
effect to the section 185 fee requirements to the extent they are not 
already in effect'' within the nonattainment areas covered by the 
finding, including the Southeast Desert Modified AQMA.\5\ Accordingly, 
the districts within the Southeast Desert Modified AQMA are required to 
comply with the section 185 fee program requirements.
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    \4\ 76 FR 82133, 82135.
    \5\ Id. at 82136.
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    The Districts note that ``the area subsequently attained the 
standard as early as the 2009-2011 data set'' and that ``USEPA noted 
that such attainment was possible based on the preliminary review of 
the 2010-2012 data set,'' citing our August 25, 2014 proposal \6\ and 
April 15, 2015 final \7\ rules titled ``Determination of Attainment of 
the 1-Hour Ozone National Ambient Air Quality Standard in the Southeast 
Desert Nonattainment Area in California.'' The EPA's determination that 
the area attained the standard based on the 2009-2011 data set is a 
type of action commonly known as a Clean Data Determination (CDD). The 
CDD does not impact the Districts' section 185 obligations. Section 185 
of the CAA states that this obligation applies to areas that fail to 
attain an ozone NAAQS by the relevant attainment date. Specifically, 
section 185 states, ``[e]ach implementation plan revision required 
under section 7511a(d) and (e) of this title (relating to the 
attainment plan for Severe and Extreme ozone nonattainment areas) shall 
provide that, if the area to which such plan revision applies has 
failed to attain the national primary ambient air quality standard for 
ozone by the applicable attainment date'' major stationary sources in 
the nonattainment area must pay section 185 fees (emphasis added). As 
discussed above, the EPA has determined that the Southeast Desert 
Modified AQMA failed to attain the 1-hour ozone standard by the 
November 15, 2007, applicable attainment date.\8\
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    \6\ 79 FR 50574.
    \7\ 80 FR 20166.
    \8\ 76 FR 82133.
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    Furthermore, section 185 of the Act does not provide relief from 
fees in the event the EPA subsequently issues a CDD. Section 185 
specifically provides that such fees must be paid ``until the area is 
redesignated as an attainment area for ozone.'' A Clean Data 
Determination is not the same as a redesignation to attainment.\9\ 
While the statute specifies that redesignation to attainment will 
remove the requirement for an area to implement the section 185 fee 
requirement, a CDD does not.\10\ Accordingly, our 2015 Determination of 
Attainment for the area did not turn off the section 185 obligation, 
and that requirement remains active in the Southeast Desert Modified 
AQMA.
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    \9\ In order to be redesignated to attainment, the Act requires 
that: (1) an area attain the relevant NAAQS, (2) the area have a 
fully approved attainment plan, (3) the Administrator determine that 
improvement in air quality is due to permanent and enforceable 
reductions in emissions, (4) the area have a fully approved 
maintenance plan, and (5) the State meet all applicable requirements 
for the area under section 110 and Part D of the Act. CAA Sec.  
107(d)(2)(E).
    \10\ See 40 CFR 51.918, specifying that a determination that an 
ozone nonattainment area has attained a NAAQS suspends certain 
requirements, not including the section 185 fee obligation, and that 
a subsequent redesignation to attainment would terminate these 
requirements. See also Memorandum from John D. Seitz, ``Reasonable 
Further Progress, Attainment Demonstration, and Related Requirements 
for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air 
Quality Standard,'' May 10, 1995 (``Determinations made by EPA that 
an area has attained the NAAQS . . . is not equivalent to the 
redesignation of the area to attainment.''); 40 CFR 51.1105, 
describing the ``redesignation substitute'' procedure that allows 
areas that were designated nonattainment for a revoked NAAQS at the 
time of revocation to turn off the anti-backsliding requirements (a 
petition for review regarding this provision is currently pending 
before the Court of Appeals for the District of Columbia in Sierra 
Club v. EPA, Case #20-1121).
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    To the extent that the Districts' assertion that ``the provisions 
of Rule 315 have not been triggered and are unlikely to be triggered in 
the future'' is based on the text of the rules themselves, the EPA does 
not see a basis for this claim. If the Districts' comments are meant to 
suggest that AVAQMD Rule 315 and MDAQMD Rule 315 have not become 
effective or require an event to trigger them in the future, the EPA 
does not agree. Rule 315 does not contain any provisions that indicate 
that a triggering event is required for them to become effective. Rule 
315 ``is applicable to any Facility within the District Portion of the 
AQMA which emits or has the potential to emit nitrogen oxides 
(NOX) or Volatile Organic Compounds (VOC) in an amount 
sufficient to make it a Major Facility'' and ``cease[s] to be 
applicable when the AQMA is designated as attaining the one-hour 
national ambient air quality standard for ozone.'' As discussed above, 
the area has not been redesignated as attaining the 1-hour ozone NAAQS. 
No exemption or other provision of the rule suggests that the rule is 
not applicable or that the rule must be ``triggered'' in any way. 
Accordingly, the EPA does not agree with this aspect of the Districts' 
comments.
    The Districts' suggestions that the rules require a triggering 
event in order to become effective do not impact our proposed 
disapproval because the EPA is proposing to disapprove AVAQMD Rule 315 
and MDAQMD Rule 315 on other grounds. The EPA notes that any rule that 
may be submitted to address the deficiencies identified in this 
rulemaking should not include a future event to trigger applicability 
because the attainment date has already passed and the area has failed 
to attain.

III. EPA Action

    No comments were submitted that change our assessment of the rules 
as described in our proposed action and the associated TSD. Therefore, 
as authorized in section 110(k)(3) of the Act, the EPA is finalizing a 
disapproval of submitted AVAQMD Rule 315 and MDAQMD Rule 315. As a 
result, the offset sanction in CAA section 179(b)(2) will be imposed 18 
months after the effective date this action, and the highway funding 
sanction in CAA section 179(b)(1) six months after the offset sanction 
is imposed. A sanction will not be imposed if the EPA determines that a 
subsequent SIP submission corrects the identified deficiencies before 
the applicable deadline. In addition to the sanctions, CAA section 
110(c) provides that the EPA must promulgate a federal implementation 
plan (FIP) addressing any disapproved elements of the SIP within two 
years after the effective date of the disapproval unless we approve 
subsequent SIP revisions that correct the rule deficiencies. 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. Note that the submitted rules were adopted by AVAQMD and 
MDAQMD, and the EPA's final disapproval does not prevent the local 
agencies from enforcing them.

IV. 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.

[[Page 59024]]

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 SIP disapproval does not in-and-of itself create 
any new information collection burdens, but simply disapproves 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 SIP 
disapproval does not in-and-of itself create any new requirements but 
simply disapproves 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 disapproves 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 
disapproving 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 SIP disapproval does not in-and-of 
itself create any new regulations, but simply disapproves 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 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 Populations

    The state did not evaluate environmental justice considerations as 
part of its SIP submittal. There is no information in the record 
inconsistent with the stated goals of E.O. 12898 of achieving 
environmental justice for people of color, low-income populations, and 
indigenous peoples.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

L. 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 November 28, 2022. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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, Nitrogen oxides, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: September 21, 2022.
Martha Guzman Aceves,
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 52.237 is amended by adding paragraph (c) to read as 
follows:


Sec.  52.237  Part D disapproval.

* * * * *
    (c) The following Clean Air Act section 185 fee rules, and the 
section 185 program plan element for the specified NAAQS, are 
disapproved because they do not meet the requirements of Part D of the 
Clean Air Act.
    (1) Antelope Valley Air Quality Management District.
    (i) Rule 315, ``Federal Clean Air Act Section 185 Penalty,'' 
amended on October 18, 2011, and submitted on December 14, 2011, for 
the 1979 1-hour ozone NAAQS.
    (ii) [Reserved]
    (2) Mojave Desert Air Quality Management District.
    (i) Rule 315, ``Federal Clean Air Act Section 185 Penalty,'' 
amended on October 24, 2011, and submitted on December 14, 2011, for 
the 1979 1-hour ozone NAAQS.
    (ii) [Reserved]

[FR Doc. 2022-20858 Filed 9-28-22; 8:45 am]
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