[Federal Register Volume 88, Number 10 (Tuesday, January 17, 2023)]
[Rules and Regulations]
[Pages 2541-2543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00567]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0962; FRL-10505-01-R9]


Finding of Failure To Submit State Implementation Plan Revisions 
Required Under Clean Air Act Section 185; California; Sacramento Metro 
Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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SUMMARY: The EPA is taking final action finding that the state of 
California has failed to submit state implementation plan (SIP) 
revisions for the Sacramento Metro nonattainment area to satisfy 
certain requirements of the Clean Air Act (CAA) for the 2008 8-hour 
ozone National Ambient Air Quality Standards (NAAQS). Specifically, 
these requirements pertain to the assessment and collection of fees 
under CAA section 185. This action triggers certain CAA deadlines for 
the imposition of sanctions if California does not submit the required 
SIP revisions within the specified timeframes. This finding also 
establishes a CAA deadline for the EPA to promulgate federal 
implementation plans (FIPs) to address the CAA section 185 requirements 
if the State does not submit or the EPA does not approve the State's 
section 185 SIP revisions.

DATES: This action is effective on February 16, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2022-0962. 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: Mae Wang, EPA Region IX, 75 Hawthorne 
St., San Francisco, CA 94105. By phone: (415) 947-4137 or by email at 
[email protected].

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

Table of Contents

I. Background
    A. The Sacramento Metro Ozone Nonattainment Area
    B. Statutory and Regulatory Requirements
    C. Consequences of Findings of Failure To Submit a SIP
II. EPA Action
III. Statutory and Executive Order Reviews

I. Background

A. The Sacramento Metro Ozone Nonattainment Area

    The Sacramento Metro ozone nonattainment area in California 
consists of Sacramento and Yolo counties and portions of El Dorado, 
Placer, Solano and Sutter counties. For a precise description of the 
geographic boundaries of the Sacramento Metro area for the 2008 ozone 
NAAQS, see the Code of Federal Regulations (CFR) at 40 CFR 81.305. 
Several local air agencies have jurisdiction in this area. Sacramento 
County is under the jurisdiction of the Sacramento Metropolitan Air 
Quality Management District (Sacramento Metropolitan AQMD). Yolo County 
and the eastern portion of Solano County comprise the Yolo-Solano Air 
Quality Management District (Yolo-Solano AQMD). The southern portion of 
Sutter County is

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part of the Feather River Air Quality Management District (Feather 
River AQMD). The western portion of Placer County is part of the Placer 
County Air Pollution Control District (Placer County APCD). Lastly, the 
western portion of El Dorado County is part of the El Dorado County Air 
Quality Management District (El Dorado County AQMD). In California, the 
California Air Resources Board (CARB) is the agency responsible for the 
adoption and submission of SIPs and SIP revisions to the EPA. Working 
jointly with CARB, local and regional air pollution control districts 
in California are responsible for the development of regional air 
quality plans. These agencies adopt and submit their plans to CARB for 
state adoption and submission to the EPA as revisions to the California 
SIP.
    On May 21, 2012 (77 FR 30088), the EPA designated the Sacramento 
Metro area as nonattainment for the 2008 ozone standard and classified 
the area as Severe-15. This designation was effective on July 20, 2012. 
The 8-hour ozone designations and classifications for California areas 
are codified at 40 CFR 81.305.

B. Statutory and Regulatory Requirements

    Section 185 of the CAA requires states with Severe and Extreme 
ozone nonattainment areas to have a plan that implements the program 
specified in that section. The CAA section 185 fee program provides for 
collecting fees from each major stationary source of volatile organic 
compounds (VOC) and oxides of nitrogen (NOX) for each 
calendar year following a failure to attain the ozone standard by the 
applicable attainment date. While CAA section 185 expressly mentions 
VOC, CAA section 182(f) extends the application of this provision to 
NOX by providing that ``plan provisions required under 
[subpart D] for major stationary sources of [VOC] shall also apply to 
major stationary sources of [NOX].'' CAA section 185(b) 
specifies the method for computing the fee amount. Section 185(a) 
specifies that the fee is payable for each calendar year beginning 
after the attainment date, until the area is redesignated as an 
attainment area for ozone. Each such plan revision should include 
procedures for assessment and collection of such fees. No source is 
required to pay any fee for emissions during a year for which the area 
receives an extension of their attainment date under CAA section 
181(a)(5).
    On March 6, 2015 (80 FR 12263), the EPA established a final rule 
for implementing the 2008 ozone NAAQS. That rule established deadlines 
for submitting various elements of an ozone nonattainment area SIP. The 
due date for fee programs is codified at 40 CFR 51.1117. For each ozone 
nonattainment area initially classified Severe or Extreme for the 2008 
ozone NAAQS, the state must submit a SIP revision within 10 years of 
the effective date of the area's nonattainment designation that meets 
the requirements of CAA section 185. The deadline for California to 
submit CAA section 185 fee programs for the Sacramento Metro area for 
the 2008 ozone NAAQS was July 20, 2022.

C. Consequences of Findings of Failure To Submit a SIP

    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. Additionally, CAA section 110(c) 
specifies that any of these findings also triggers an obligation for 
the EPA to promulgate a FIP within 2 years of the finding if the state 
has not submitted and the EPA has not approved the required submission. 
The first finding, that a state has failed to submit a plan or one or 
more elements of a plan required under the CAA, is the finding relevant 
to this action.
    The EPA is finding that the state of California has failed to make 
required CAA section 185 fee program SIP submissions for portions of 
the Sacramento Metro nonattainment area for the 2008 8-hour ozone 
NAAQS. Pursuant to CAA section 179(a) and (b) and 40 CFR 52.31, the EPA 
must affirmatively determine that California has submitted the required 
plan revisions for the Sacramento Metro area within 18 months of the 
effective date of this rulemaking, or the offset sanction identified in 
CAA section 179(b)(2) and 40 CFR 52.31 will apply in each portion of 
the area that remains subject to the finding. Additionally, if the EPA 
has not affirmatively determined that the State has made a complete 
submission for the area within 6 months after the offset sanction is 
imposed, then the highway funding sanction will apply to each portion 
of the area that remains subject to the finding, in accordance with CAA 
section 179(b)(1) and 40 CFR 52.31. Lastly, CAA section 110(c) requires 
that no later than 2 years after the effective date of this finding, 
the EPA must promulgate a FIP if the State has not submitted and the 
EPA has not approved the required SIP revisions as fully meeting the 
CAA section 185 fee obligation for the 2008 ozone NAAQS. The 18- and 
24-month clocks for any area will stop and the sanctions will not take 
effect if the EPA finds that the State has made a complete submittal 
within the required timeframe.

II. EPA Action

    In this action, the EPA is making a finding that the state of 
California has failed to submit CAA section 185 fee programs for the 
2008 ozone NAAQS for the portions of the Sacramento Metro ozone 
nonattainment area that are under the jurisdiction of the following air 
agencies: El Dorado County AQMD, Placer County APCD, Sacramento 
Metropolitan AQMD, and Yolo-Solano AQMD. California submitted a CAA 
section 185 fee program SIP revision for the Feather River AQMD portion 
of the Sacramento Metro area on July 5, 2022, and it was determined 
complete on October 28, 2022. Therefore, the portion of the Sacramento 
Metro ozone nonattainment area that is under the jurisdiction of the 
Feather River AQMD is not subject to this action. This finding starts 
the 18-month emission offset sanctions clock, the 24-month highway 
funding sanctions clock, and a 24-month clock for promulgation by the 
EPA of a FIP.

III. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders 
can be found at https://www2.epa.gov/laws-regulations/laws-and-
executive-orders.

A. 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).

[[Page 2543]]

B. 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.

C. 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 or create any new information collection burdens.

D. 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.

E. 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 any new requirements. 
Accordingly, no additional costs to state, local, or tribal 
governments, or to the private sector, result from this action.

F. 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.

G. 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.

H. 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 create any new regulations. 
This action finds that a state has failed to submit required SIP 
revisions.

I. 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.

J. 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. This 
action does not involve technical standards.

K. 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. The EPA has determined that this final rule will not 
have disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
directly affect the level of protection provided to human health or the 
environment. This action finds that a state has not met the requirement 
to submit CAA section 185 fee program SIP revisions and begins clocks 
that could result in the imposition of sanctions if the state continues 
to not meet this statutory obligation. If the state fails to submit the 
required SIP revisions or submits SIP revisions that the EPA cannot 
approve, then the EPA will be required to develop the plans in lieu of 
the state.

L. 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).

M. 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 March 20, 2023. 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, Nitrogen oxides, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: December 23, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-00567 Filed 1-13-23; 8:45 am]
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