[Federal Register Volume 87, Number 188 (Thursday, September 29, 2022)]
[Rules and Regulations]
[Pages 59012-59015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20874]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0798; FRL-10218-01-R9]


Finding of Failure To Submit Contingency Measures for the 2008 8-
Hour Ozone NAAQS; Coachella Valley, California, and West Mojave Desert, 
California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to find that the State of California has failed to submit State 
Implementation Plan (SIP) revisions to satisfy the contingency measures 
requirements of the Clean Air Act (CAA) for the 2008 8-hour ozone 
National Ambient Air Quality Standards (NAAQS or ``standards'') for 
both the Riverside County (Coachella Valley), California (``Coachella 
Valley'') and Los Angeles-San Bernardino Counties (West Mojave Desert), 
California (``West Mojave

[[Page 59013]]

Desert'') nonattainment areas. Under the CAA and the EPA's implementing 
regulations, by July 20, 2016, California was required to submit, among 
other SIP revisions, contingency measures for the Coachella Valley and 
West Mojave Desert nonattainment areas to be triggered if the areas 
fail to attain or fail to meet reasonable further progress (RFP). The 
State submitted the required SIP revisions, but subsequently withdrew 
the contingency measures portion. This finding establishes a 2-year 
deadline for the EPA to promulgate Federal Implementation Plans (FIPs) 
to address the contingency measure requirements for these areas, 
unless, prior to the EPA promulgating FIPs, California submits, and the 
EPA approves, SIP revisions that meet these requirements. The CAA also 
provides for the imposition of sanctions if California does not submit 
the required SIP revisions within timeframes specified by the CAA.

DATES: This final action is effective on October 31, 2022.

FOR FURTHER INFORMATION CONTACT: Michael Dorantes, Air Planning Office 
(AIR-2), EPA Region IX, (415) 972-3934, [email protected].

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

Table of Contents

I. Notice and Comment Under the Administrative Procedure Act (APA)
II. Background and Overview
    A. Ozone Standards, Area Designations, and SIP Development
    B. State Submissions and Withdrawals
III. Final Action and Consequences of a Finding of Failure To Submit
IV. Statutory and Executive Order Reviews

I. Notice and Comment Under the Administrative Procedure Act (APA)

    Section 553 of the APA, 5 U.S.C. 553(b)(3)(B), provides that, when 
an agency for good cause finds that notice and public procedure are 
impracticable, unnecessary, or contrary to the public interest, the 
agency may issue a rule without providing notice and an opportunity for 
public comment. The EPA has determined that there is good cause for 
making this final agency action without prior proposal and opportunity 
for comment because no significant EPA judgment is involved in making 
findings of failure to submit SIPs, or elements of SIPs, required by 
the CAA, where states and territories have made no submissions, or 
incomplete submissions, to meet the requirement. Thus, notice and 
public procedures are unnecessary. The EPA finds that this constitutes 
good cause under 5 U.S.C. 553(b)(3)(B).

II. Background and Overview

A. Ozone Standards, Area Designations, and SIP Development

    Under section 109 of the CAA, the EPA promulgates NAAQS for 
pervasive air pollutants, such as ozone. In 2008, the EPA promulgated 
new 8-hour primary and secondary ozone NAAQS of 0.075 ppm (``2008 ozone 
NAAQS'') to replace the 1997 ozone NAAQS of 0.08 ppm.\1\ Although the 
EPA further strengthened the 8-hour ozone NAAQS to 0.070 ppm in 2015, 
this action relates to the requirements for the 2008 ozone NAAQS.\2\ 
Following promulgation of new or revised NAAQS, the EPA is required by 
the CAA to designate areas throughout the nation as either attaining or 
not attaining the standards. Effective July 20, 2012, the EPA 
designated both Coachella Valley and West Mojave Desert as 
nonattainment for the 2008 ozone NAAQS and classified the areas as 
``Severe-15.'' \3\ Areas designated nonattainment for ozone NAAQS are 
subject to the general nonattainment area planning requirements of CAA 
section 172 and to the ozone-specific planning requirements of CAA 
section 182.
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    \1\ 73 FR 16436 (March 27, 2008).
    \2\ Information on the 2015 ozone NAAQS is available at 80 FR 
65292 (October 26, 2015).
    \3\ 77 FR 30088 (May 21, 2012).
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    On March 6, 2015, the EPA published a final implementation rule for 
the 2008 ozone NAAQS, detailing the requirements applicable to ozone 
nonattainment areas and providing specific deadlines for SIP 
submittals.\4\ For areas classified Serious and above, the SIP 
revisions providing for an attainment demonstration, RFP demonstration, 
and attainment and RFP contingency measures were due 4 years after the 
effective date of area designations (i.e., by July 20, 2016).\5\ 
Contingency measures are additional controls or measures to be 
implemented in the event an area fails to make RFP or to attain the 
NAAQS by the attainment date.
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    \4\ 80 FR 12264 (March 6, 2015).
    \5\ 40 CFR 51.1108(b) and 40 CFR 51.1110.
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    In California, the California Air Resources Board (CARB) is the 
agency responsible for the adoption and submission to the EPA of SIPs 
and SIP revisions. Working jointly with CARB, local and regional air 
pollution control districts in California are responsible for the 
development of regional air quality plans. The South Coast Air Quality 
Management District (SCAQMD) develops and adopts plans to address CAA 
planning requirements applicable to the Coachella Valley. The Antelope 
Valley Air Quality Management District (AVAQMD) and Mojave Desert Air 
Quality Management District (MDAQMD) share responsibility for air 
quality planning in the West Mojave Desert. These agencies adopt and 
submit their plans to CARB for state adoption and submission to the EPA 
as revisions to the California SIP.

B. State Submissions and Withdrawals

    CARB submitted contingency measures for the 2008 ozone NAAQS for 
the Coachella Valley in the Final 2016 Air Quality Management Plan 
(March 2017) (``2016 AQMP''), submitted on April 27, 2017,\6\ the 
Coachella Valley 8-Hour Ozone Attainment Contingency (``Coachella 
Attainment Contingency'') submitted on May 5, 2017,\7\ and the 2018 
Updates to the California State Implementation Plan (``2018 SIP 
Update'') submitted on December 5, 2018. On September 16, 2020, the EPA 
approved the relevant portions of these SIP revisions as meeting all 
applicable ozone nonattainment area requirements for the 2008 ozone 
NAAQS in the Coachella Valley, except for the contingency measure 
requirements, for which the EPA deferred action.\8\
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    \6\ Letter dated April 27, 2017, from Richard Corey, Executive 
Officer, CARB, to Alexis Strauss, Acting Regional Administrator, EPA 
Region IX.
    \7\ Letter dated May 5, 2017, from Richard Corey, Executive 
Officer, CARB, to Alexis Strauss, Acting Regional Administrator, EPA 
Region IX.
    \8\ 85 FR 57714 (September 16, 2020).
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    CARB submitted contingency measures for the 2008 ozone NAAQS for 
the West Mojave Desert in a SIP revision submitted on June 2, 2017.\9\ 
This submittal includes attainment plans prepared by the AVAQMD 
(``AVAQMD Attainment Plan'') \10\ and the MDAQMD (``MDAQMD Attainment 
Plan''),\11\ an accompanying staff report prepared by CARB (``CARB 
Staff Report''),\12\ and other supporting documents. We refer to all 
the documents collectively submitted to the EPA on June 2, 2017 as the 
``2016 WMD Attainment Plan.'' Some elements of the 2016 WMD Attainment 
Plan were updated for the

[[Page 59014]]

West Mojave Desert nonattainment area in the 2018 SIP Update. On 
September 27, 2021, the EPA took final action to approve the relevant 
portions of the 2016 WMD Attainment Plan and 2018 SIP Update as meeting 
all the applicable ozone nonattainment area requirements, except for 
the contingency measure requirements, for which the EPA deferred 
action.\13\ CARB subsequently submitted additional contingency measures 
provisions in the Amendment to the 75 ppb 2008 8hr O3 Contingency 
Measure for MDAQMD portion of the Western Mojave Desert Nonattainment 
Area (``MDAQMD Contingency Amendment'') on February 1, 2022.\14\
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    \9\ Letter dated June 2, 2017, from Richard Corey, Executive 
Officer, CARB, to Alexis Strauss, Acting Regional Administrator, EPA 
Region IX.
    \10\ AVAQMD, ``AVAQMD Federal 75 ppb Ozone Attainment Plan 
(Western Mojave Desert Nonattainment Area),'' adopted on March 21, 
2017.
    \11\ MDAQMD, ``MDAQMD Federal 75 ppb Ozone Attainment Plan 
(Western Mojave Desert Nonattainment Area),'' adopted on February 
27, 2017.
    \12\ CARB, Staff Report, ``CARB Review of the Mojave Desert AQMD 
and Antelope Valley AQMD Federal 75 ppb Ozone Attainment Plans for 
the Western Mojave Desert Nonattainment Area,'' released April 21, 
2017.
    \13\ 86 FR 53223 (September 27, 2021).
    \14\ Letter dated January 31, 2022, from Richard W. Corey, CARB, 
to Martha Guzman, Regional Administrator, EPA Region IX.
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    On August 26, 2021, following CARB's submittals for the Coachella 
Valley and West Mojave Desert, the U.S. Court of Appeals for the Ninth 
Circuit remanded the EPA's conditional approval of contingency measures 
for the 2008 ozone NAAQS for the San Joaquin Valley nonattainment area, 
finding that the EPA had not provided a reasoned explanation for 
considering emission reductions from already-implemented measures.\15\ 
CARB subsequently withdrew the contingency measures elements of the 
2016 AQMP, the Coachella Attainment Contingency, and the relevant 
portions of the 2018 SIP Update (for the Coachella Valley), and the 
contingency measures elements of the 2016 WMD Attainment Plan, the 
relevant portions of the 2018 SIP Update, and the MDAQMD Contingency 
Amendment (for the West Mojave Desert),\16\ following requests from the 
local air districts.\17\
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    \15\ Association of Irritated Residents v. EPA, 10 F.4th 937 
(9th Cir. 2021).
    \16\ See two letters dated August 8, 2022, from Edie Chang, 
Deputy Executive Officer to Martha Guzman, Regional Administrator, 
USEPA Region IX, addressing Coachella Valley and West Mojave Desert.
    \17\ See letter dated June 24, 2022, from Wayne Nastri, 
Executive Officer, SCAQMD, to Richard Corey, Executive Officer, CARB 
and letters dated June 30, 2022, from Bret Banks, Executive 
Director/APCO, AVAQMD, and Brad Poiriez, Executive Director/APCO, 
MDAQMD, to Sylvia Vanderspek, Air Quality Planning Branch Chief, 
CARB.
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III. Final Action and Consequences of a Finding of Failure To Submit

    Based upon the withdrawal of the contingency measures described in 
Section II of this rulemaking, the EPA is finding that California has 
failed to make required submittals for the 2008 ozone NAAQS for the 
Coachella Valley and West Mojave Desert nonattainment areas. With this 
finding, section 179 of the CAA starts sanctions clocks and a FIP 
clock. Section 179(a) of the CAA specifies the consequences if the EPA 
finds that a state has failed to make a required SIP submission, if the 
EPA has determined that a submitted SIP is incomplete, or if the EPA 
has disapproved a SIP submission. If the EPA has not affirmatively 
determined that California has made complete submissions to address the 
contingency measures requirements for the Coachella Valley or West 
Mojave Desert nonattainment areas within 18 months of the effective 
date of this action, the offset sanction identified in section 
179(b)(2) will apply within that area, pursuant to section 179(a) and 
(b) and 40 CFR 52.31. If the EPA has not affirmatively determined that 
California has made a complete SIP submission for either area within 
six months after imposition of the offset sanction, the highway funding 
sanction will be imposed, as required under section 179(b)(1) of the 
CAA and 40 CFR 52.31.
    California may avoid these sanctions by taking timely action to 
remedy this finding. The 18-month clock governing the CAA's imposition 
of sanctions for these areas will stop and sanctions will not take 
effect if the EPA finds that the State has made a complete SIP 
submission addressing the contingency measures requirements for these 
areas area within 18 months of the date of this finding. Similarly, the 
EPA is not required to promulgate a FIP if California makes the 
required SIP submissions, and the EPA takes final action to approve the 
submissions within two years of this finding of failure to submit a 
required SIP. In sum, the CAA does not require sanctions or a FIP if 
the State and the EPA take timely action to remedy this finding.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders 
can be found at http://www2.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 therefore 
was 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 provisions of the PRA because it does not impose additional 
requirements beyond those imposed by state law.

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 beyond those 
imposed by state law.

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 does not impose additional requirements 
beyond those imposed by state law. Accordingly, no additional costs to 
State, local, or tribal governments, or to the private sector, will 
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, Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175, because this action does 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 it does not impose additional 
requirements beyond those imposed by state law.

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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)

    This action does not involve technical standards.

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

    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 effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. There is no information in the record inconsistent with 
the stated goals of Executive Order 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 action 
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 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, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Ozone, Reporting and recordkeeping requirements.

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

    Dated: September 21, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-20874 Filed 9-28-22; 8:45 am]
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