[Federal Register Volume 89, Number 23 (Friday, February 2, 2024)]
[Proposed Rules]
[Pages 7320-7327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02082]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0626; FRL-11614-01-R9]


Air Plan Disapproval; California; Los Angeles-South Coast Air 
Basin; 1997 8-Hour Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
disapprove a state implementation plan (SIP) revision submitted by the 
State of California to meet a Clean Air Act (CAA) requirement for the 
1997 8-hour ozone national ambient air quality standards (NAAQS or 
``standards'') in the Los Angeles-South Coast Air Basin, California 
ozone nonattainment area (``South Coast''). This submission, titled 
``Final Contingency Measure Plan--Planning for Attainment of the 1997 
80 ppb 8-hour Ozone Standard in the South Coast Air Basin,'' 
(``Contingency Measure Plan'' or ``Plan''), addresses the CAA 
requirements for the submission of contingency measures that will be 
implemented if emissions reductions from anticipated technologies 
associated with the area's 1997 ozone NAAQS attainment demonstration 
are not achieved. We are taking comments on this proposal and plan to 
follow with a final action.

DATES: Comments must be received on or before March 4, 2024.

[[Page 7321]]


ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0626 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 
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 a disability 
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: Ginger Vagenas, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3964 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. Ozone Standards, Area Designations, and State Implementation 
Plans
    B. The South Coast Ozone Nonattainment Area
    C. Clean Air Act Provisions for New Technologies
    D. The EPA's Prior Approvals of New Technology Provisions for 
the 1997 8-Hour Ozone Standards
II. Submission From the State of California
III. The EPA's Evaluation
    A. Procedural Requirements
    B. Evaluation for Compliance With Clean Air Act Requirements
IV. The EPA's Proposed Action and Public Comment
V. Statutory and Executive Order Reviews

I. Background

A. Ozone Standards, Area Designations, and State Implementation Plans

    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-road and nonroad motor vehicles and engines,\2\ power 
plants and industrial facilities, and smaller area sources such as lawn 
and garden equipment and paints.
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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. 
As a practical matter, ROG and VOC refer to the same set of chemical 
constituents, and for the sake of simplicity, we refer to this set 
of gases as VOC in this proposed rule.
    \2\ The EPA's definition of ``nonroad engine'' is found at 40 
CFR 1068.30. The State of California uses the term ``off-road'' 
instead of ``nonroad.'' The terms are interchangeable.
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    Scientific evidence indicates that adverse public health effects 
occur following exposure to 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.\3\
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    \3\ ``Fact Sheet--Final Revisions to the National Ambient Air 
Quality Standards for Ozone,'' dated March 2008, available at 
https://www.epa.gov/sites/default/files/2015-08/documents/ozone_fact_sheet.pdf.
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    Under section 109 of the CAA, the EPA promulgates NAAQS for 
pervasive air pollutants, such as ozone. The NAAQS establish 
concentration levels whose attainment and maintenance the EPA has 
determined to be requisite to protect public health and welfare. In 
1979, the EPA established primary (public health-based) and secondary 
(welfare-based) NAAQS for ozone at 0.12 parts per million (ppm) 
averaged over a 1-hour timeframe (``1-hour ozone NAAQS'').\4\ In 1997, 
the EPA revised the primary and secondary ozone NAAQS to set the 
acceptable level of ozone in the ambient air at 0.08 ppm averaged over 
an 8-hour timeframe (``1997 ozone NAAQS'').\5\ The EPA further 
tightened the 8-hour ozone NAAQS to 0.075 ppm in 2008 (``2008 ozone 
NAAQS''),\6\ and to 0.070 ppm in 2015 (``2015 ozone NAAQS'').\7\ The 
EPA subsequently revoked the 1-hour ozone NAAQS \8\ and the 1997 ozone 
NAAQS,\9\ but has retained applicable requirements for anti-backsliding 
purposes for areas that remained designated as nonattainment for those 
standards at the time of revocation.\10\
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    \4\ 44 FR 8202 (February 8, 1979).
    \5\ 62 FR 38856 (July 18, 1997).
    \6\ 73 FR 16436 (March 27, 2008)
    \7\ 80 FR 65292 (October 26, 2015).
    \8\ 70 FR 44470 (August 3, 2005).
    \9\ 80 FR 12264 (March 6, 2015).
    \10\ 40 CFR 51.1100(o). Continuing applicable requirements for 
the 1997 ozone NAAQS include the contingency measures requirement of 
CAA section 182(e)(5). Id. at 51.1100(o)(16); see also id. at 
51.1105.
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    Section 110 of the CAA requires states to develop and submit SIPs 
to implement, maintain, and enforce the NAAQS. States with 
nonattainment areas are required to submit revisions to their SIPs that 
include a control strategy and technical analysis to demonstrate how 
the area will attain the NAAQS by the applicable attainment date 
(referred to as an ``attainment demonstration''), and to meet other 
requirements according to each area's nonattainment classification. 
Under CAA section 181, the EPA classifies ozone nonattainment areas as 
``Marginal,'' ``Moderate,'' ``Serious,'' ``Severe,'' or ``Extreme.''
    The SIP revision that is the subject of this proposed action was 
submitted to address the contingency measures requirement of CAA 
section 182(e)(5) for the 1997 ozone NAAQS. Under this provision, 
states relying on the development of new control techniques or 
improvement of existing technologies (``new technology measures'') to 
demonstrate attainment in an Extreme nonattainment area must submit 
contingency measures to the EPA that will be implemented if the 
anticipated new technology measures do not achieve the planned 
reductions.\11\
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    \11\ The CAA section 182(e)(5) requirements are discussed in 
more detail in Section I.C. of this document.
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B. The South Coast Ozone Nonattainment Area

    The South Coast nonattainment area for the 1997 ozone NAAQS 
consists of Orange County, the southwestern two-thirds of Los Angeles 
County, southwestern San Bernardino County, and western Riverside 
County. The South Coast encompasses an area of approximately 6,600 
square miles and is bounded by the Pacific Ocean to the west and by the 
San Gabriel, San Bernardino, and San Jacinto mountains to the north and 
east.\12\ The population of the South Coast is over 17 million 
people.\13\
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    \12\ For a precise definition of the boundaries of the South 
Coast 1997 ozone nonattainment area, see 40 CFR 81.305.
    \13\ 2016 South Coast Ozone SIP (``2016 AQMP''), p. 1-5.
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    The EPA has classified the South Coast as an ``Extreme'' 
nonattainment area for the 1-hour ozone NAAQS, 1997 ozone NAAQS, 2008 
ozone NAAQS,

[[Page 7322]]

and 2015 ozone NAAQS. For the 1997 ozone NAAQS, the area has an 
attainment date of June 15, 2024.\14\
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    \14\ The EPA initially designated and classified the South Coast 
as a ``Severe-17'' nonattainment area for the 1997 ozone NAAQS in 
2004. 69 FR 23858 (April 30, 2004). We later granted CARB's request 
to reclassify the area to Extreme. 75 FR 24409 (May 5, 2010).
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    California first addressed the planning requirements for the 1997 
ozone NAAQS with the ``Final 2007 Air Quality Management Plan'' (``2007 
South Coast AQMP''), prepared by the South Coast Air Quality Management 
District (SCAQMD), and the ``State Strategy for California's 2007 State 
Implementation Plan'' (``2007 State Strategy''), prepared by the 
California Air Resources Board (CARB). These submittals were 
subsequently revised in 2009 and 2011.\15\ Collectively, we refer to 
these submittals and revisions as the ``2007 South Coast Ozone SIP.'' 
CARB subsequently submitted revisions to the 2007 South Coast Ozone 
SIP's control strategy and commitments for the 1997 ozone NAAQS in 2012 
(``2012 AQMP'') \16\ and 2016 (``2016 South Coast Ozone SIP,'' 
including the ``2016 AQMP'').\17\
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    \15\ 77 FR 12674 (March 1, 2012). These submittals and the 
related materials are included in the associated docket, available 
at https://www.regulations.gov/docket/EPA-R09-OAR-2011-0622.
    \16\ See 79 FR 52526 (September 3, 2014). The 2012 AQMP and 
related materials are included in the associated docket, available 
at https://www.regulations.gov/docket/EPA-R09-OAR-2014-0185.
    \17\ See 84 FR 52005 (October 1, 2019). The 2016 AQMP and 
related materials are included in the associated docket, available 
at https://www.regulations.gov/docket/EPA-R09-OAR-2019-0051.
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C. Clean Air Act Provisions for New Technologies

    For ozone nonattainment areas classified as Extreme, the CAA 
recognizes that an attainment plan may rely to a certain extent on new 
or evolving technologies, given the long time period between developing 
the initial plan and attaining the standards, and the amount of 
emissions reductions needed to attain. CAA section 182(e)(5) authorizes 
the EPA to approve provisions in an Extreme area plan that anticipate 
development of new technology measures, and to approve an attainment 
demonstration based on such provisions, if the state demonstrates that: 
(1) such provisions are not necessary to achieve the incremental 
emission reductions required during the first 10 years after the area's 
nonattainment designation; \18\ and (2) the state has submitted 
enforceable commitments to develop and adopt contingency measures to be 
implemented if the anticipated technologies do not achieve the planned 
reductions (``182(e)(5) contingency measures'').\19\ New technology 
measures may include those that anticipate future technological 
developments as well as those that require complex analyses, decision 
making, and coordination among a number of government agencies.\20\ An 
attainment demonstration that relies on planned reductions from new 
technology measures under section 182(e)(5) must identify the measures 
for which additional time would be needed for development and adoption. 
The plan must also show that the new technology measures cannot be 
fully developed and adopted by the submittal date for the attainment 
demonstration and must contain a schedule outlining the steps leading 
to final development and adoption of the measures.\21\
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    \18\ CAA section 182(e)(5) specifies ``the first 10 years after 
November 15, 1990,'' which reflects the effective date of 
designation for the 1-hour ozone NAAQS. The EPA has interpreted this 
10-year timeframe to run from the effective date of designation for 
the 1997 ozone NAAQS. 76 FR 57872, 57881, n.24.
    \19\ CAA section 182(e)(5). In this document, we refer to such 
contingency measures as ``182(e)(5) contingency measures'' to 
distinguish them from the contingency measures that are required 
under CAA sections 172(c)(9) and 182(c)(9) for a failure to make 
reasonable further progress (RFP) or to attain by the attainment 
date. Attainment and RFP contingency measures are a required element 
of an attainment plan submission under part D of title I of the CAA 
and are subject to the same submittal deadline as the attainment 
plan. A state relying on new technology measures in an Extreme area 
attainment plan must submit 182(e)(5) contingency measures in 
addition to the attainment and RFP contingency measures otherwise 
required for the area. 57 FR 13498, 13524 (April 16, 1992).
    \20\ 57 FR 13498, 13524.
    \21\ Id.
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    The state must submit the required 182(e)(5) contingency measures 
to the EPA no later than 3 years before proposed implementation of the 
plan provisions that anticipate development of new technology measures. 
The EPA approves or disapproves section 182(e)(5) contingency measures 
in accordance with CAA section 110. The contingency measures must be 
adequate to produce emissions reductions sufficient, in conjunction 
with other approved plan provisions, to make reasonable further 
progress (RFP) and to attain by the applicable dates. If the EPA later 
determines that the Extreme area has failed to make RFP or to attain, 
and that such failure is due in whole or part to an inability to fully 
implement the new technology measures approved under CAA section 
182(e)(5), the EPA will require the state to implement the contingency 
measures to the extent necessary to assure compliance with the 
applicable requirement.\22\
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    \22\ CAA section 182(e)(5).
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D. The EPA's Prior Approvals of New Technology Provisions for the 1997 
8-Hour Ozone Standards

    In our action on the South Coast attainment demonstration for the 
1997 ozone NAAQS in the 2007 South Coast Ozone SIP, the EPA approved a 
number of commitments regarding the development of new pollution 
control measures by CARB and the SCAQMD. These included CARB's 
commitments to achieve, by 2023, 141 tons per day (tpd) of 
NOX reductions and 54 tpd of VOC reductions from defined 
measures and to achieve 241 tpd of NOX reductions and 40 tpd 
of VOC reductions from new technology measures.\23\ We also approved 
CARB's commitment to provide 182(e)(5) contingency measures to cover 
any new technology measures shortfall as part of our approval of the 
2007 South Coast Ozone SIP.\24\
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    \23\ 77 FR 12674, 12693 (March 1, 2012). California relied on 
these reductions from new technology measures for the attainment 
demonstration, but not for the RFP demonstration or other 
provisions. 76 FR 57872, 57882.
    \24\ 77 FR 12674, 12693. See also CARB Resolution 11-22 (July 
21, 2011) (CARB commitment to ``develop, adopt, and submit 
contingency measures by 2020 if advanced technology measures do not 
achieve planned reductions'') and letter dated November 18, 2011, 
from James N. Goldstene, Executive Officer, CARB, to Jared 
Blumenfeld, Regional Administrator, EPA Region IX (further 
clarifying CARB commitment).
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    The 2012 AQMP included a list of proposed new technology measures 
intended to provide the emissions reductions necessary to attain both 
the 1-hour ozone standard and the 1997 8-hour ozone standard.\25\ We 
approved these measures both for purposes of the 1-hour ozone 
attainment demonstration and as an update to the 2007 South Coast Ozone 
SIP's new technology measures for the 1997 8-hour ozone standard.\26\
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    \25\ A list of the SCAQMD and CARB new technology measures in 
the 2012 AQMP is included in Table 6 of the EPA's notice of proposed 
rulemaking. 79 FR 29712, 29722 (May 23, 2014).
    \26\ 79 FR 52526, 52537 (September 3, 2014). The amount of 
reductions to be achieved through new technology measures for the 
1997 8-hour ozone standard (40 tpd of VOC and 241 tpd of 
NOX) was unchanged.
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    In the 2016 South Coast Ozone SIP, which included an updated 
control strategy and attainment demonstration for the 1997 ozone 
standards, CARB provided a revised list of new technology measures and 
revised the amount of reductions needed from defined measures and new 
technology measures. CARB committed to achieving aggregate emissions 
reductions of 113 tpd of NOX and 50 to

[[Page 7323]]

51 tpd of VOC, with 108 tpd of NOX reductions and 41 tpd of 
VOC reductions coming from new technology measures, identified as 
``further deployment of cleaner technologies'' addressing emissions 
from on-road light-duty and heavy-duty vehicles, aircraft, locomotives, 
ocean-going vessels, and off-road equipment.\27\ We approved this 
updated demonstration based on CARB's previously-approved commitment to 
submit 182(e)(5) contingency measures by 2020 as necessary to cover any 
emissions reduction shortfall from new technology measures.
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    \27\ 84 FR 28132 (June 17, 2019). See esp. id. at Table 7 
(identifying new technology measures projected to generate 108 tpd 
NOX and 41 tpd VOC emissions reductions needed by 2023).
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    Because reductions from new technology measures were relied on to 
ensure sufficient emissions reductions by 2023 to provide for 
attainment of the 1997 ozone NAAQS by the June 15, 2024 attainment 
date, the 182(e)(5) contingency measures would be triggered upon the 
EPA finding that the area failed to attain and that this failure was 
due in whole or in part to a failure to implement provisions approved 
under CAA section 182(e)(5).\28\
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    \28\ 57 FR 13498, 13524; CAA section 182(e)(5).
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II. Submission From the State of California

    The SCAQMD prepared the Contingency Measure Plan in collaboration 
with CARB.\29\ It was submitted by CARB to the EPA on December 31, 
2019,\30\ and became complete by operation of law on July 1, 2020.
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    \29\ Letter dated December 6, 2019, from Wayne Nastri, Executive 
Officer, SCAQMD, to Richard Corey, Executive Officer, CARB and 
SCAQMD Board Resolution 19-26.
    \30\ Letter dated December 31, 2019, from Richard W. Corey, 
Executive Officer, CARB, to Michael Stoker, Regional Administrator, 
EPA Region 9 (submitted electronically December 31, 2019).
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    The Contingency Measure Plan is intended to address the requirement 
in CAA section 182(e)(5) that states relying on reductions from new 
technology measures to demonstrate attainment must submit contingency 
measures no later than three years before the proposed implementation 
of those new technology measures.\31\ Under CAA section 182(e)(5), 
these contingency measures are required to produce emissions reductions 
sufficient to make up any shortfall in reductions attributed to new 
technology measures that were relied upon to meet the applicable RFP or 
attainment requirements. In this instance, California committed to 
achieve the NOX and VOC reductions necessary to attain the 
1997 ozone NAAQS by 2023, relying in part on reductions from new 
technology measures. CARB's submittal also includes a CARB staff report 
titled ``South Coast 8-Hour Ozone SIP Update'' (``CARB Staff Report''), 
a response to public comments received on the Plan (``CARB Response to 
Comments''), and other supporting documents, which are included in the 
docket for this rulemaking action.
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    \31\ Contingency Measure Plan, p. 2.
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    The Contingency Measure Plan does not include contingency measures 
that could be implemented in the event the area fails to attain because 
the previously anticipated new technologies have not achieved the 
planned reductions. Instead, the Plan updates the State's approach for 
achieving the 108 tpd of NOX reductions that the 2016 AQMP 
attributed to further deployment of cleaner technologies.\32\ This 
updated approach includes three specific strategies: (1) identified 
emissions reductions strategies (24-26 tpd); (2) additional incentive 
funding (15 tpd); and (3) federal sources and federal measures (67-69 
tpd).\33\
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    \32\ Id. at 35.
    \33\ Id. at 39. Although California's approved SIP relies on 
planned reductions from new technology measures for both 
NOX and VOC emissions reductions, and the State committed 
to submitting contingency measures for both, the Contingency Measure 
Plan focuses on achieving NOX reductions. In support of 
this approach, the State notes that for the 1997 ozone NAAQS the 
area is more sensitive to NOX emissions reductions, and 
that VOC reductions from CARB's commitment will occur through 
implementation of the NOX reductions strategy. Id. at 16.
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1. Identified Emissions Reductions Strategies
    Section 3 of the Contingency Measure Plan identifies NOX 
reductions that exceed the anticipated reductions from defined SCAQMD 
measures and CARB regulations identified in the 2016 AQMP. According to 
the Contingency Measure Plan, by 2023, an additional 10.2-12.2 tpd of 
NOX reductions would be achieved through the following: (1) 
RECLAIM transition rules (2 tpd); (2) facility-based mobile source 
measures for commercial airports (0.5 tpd); (3) facility-based mobile 
source measures for marine ports (3.2-5.2 tpd); (4) incentive funding 
(expected future funding) (1.5 tpd); and (5) Metrolink tier 4 
locomotives conversion (3.0 tpd).\34\
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    \34\ Id. at Table 3-1.
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    The Plan estimates that new mobile source measures implemented by 
CARB would provide an additional 6.15 tpd of NOX reductions 
toward the 108 tpd of NOX reductions that the State 
committed to achieving through new technology measures under CAA 
section 182(e)(5). These measures are listed in Table 3-5 of the Plan 
and consist of the following: (1) low-carbon fuel standard and 
alternative diesel fuels regulation (1.7 tpd); (2) airborne toxic 
control measure (ATCM) for portable engines and the statewide portable 
equipment registration program (0.25 tpd); and (3) heavy duty truck 
inspection and maintenance program (4.2 tpd).
    The Contingency Measure Plan also describes a suite of innovative 
measures that were not identified in the 2016 AQMP, but which had been 
adopted, or would soon be adopted, by CARB.\35\ These measures, which 
the Contingency Measure Plan estimates will provide NOX 
reductions of 3.0 tpd, include requirements for State contractors to 
use the cleanest equipment available and for State agencies to purchase 
the cleanest vehicles and equipment available; pricing programs to 
encourage people to take public transit, carpool, or walk at congested 
times of the day; and a measure that would require certain railroads to 
set aside funding for the purchase of cleaner locomotives.
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    \35\ Id. at Tables ES-1 and ES-2, and at 49-52.
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    As described in the Contingency Measure Plan, these reductions, in 
conjunction with a 4.2 tpd adjustment resulting from a previous over-
commitment for reductions from ocean-going vessels,\36\ will provide a 
total of 24-26 tpd of NOX reductions towards the 182(e)(5) 
commitment.\37\
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    \36\ Id. at 47.
    \37\ Id. at Table ES-1.
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2. Additional Incentive Funding
    Section 4 of the Contingency Measure Plan discusses additional 
incentive funding that could speed the transition to technologies that 
are cleaner than required by current regulations. The 2016 AQMP 
identified a need for over $1 billion per year in funds to incentivize 
the transition to clean vehicles, infrastructure, and equipment. The 
SCAQMD notes that in the years between the adoption of the 2016 AQMP 
and the adoption of the Contingency Measure Plan, its efforts to 
increase funding resulted in an approximate doubling of incentive 
funding, to $200-300 million per year.\38\
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    \38\ Id. at 5.
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    To address the shortfall between existing funding and the amount 
the SCAQMD estimated would be needed to adequately fund incentive 
measures that would provide reductions needed for attainment, the 
SCAQMD identifies several additional sources of funding for incentive 
programs and describes its ongoing advocacy efforts to secure more 
funding, including sponsoring

[[Page 7324]]

legislation that would allow the public or the SCAQMD Board to put a 
sales tax measure on the ballot in the South Coast region. The SCAQMD 
estimates this could generate a sustainable source of funding in the 
amount of $1.4 billion per year, and that this amount could generate 15 
tpd of NOX emissions reductions in 2023.\39\
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    \39\ Id. at 53-55.
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3. Federal Sources and Federal Measures
    Section 5 of the Contingency Measure Plan designates additional 
reductions from federal sources and measures that the SCAQMD asserts 
will be necessary for attainment. This section describes California's 
successful efforts to reduce NOX emissions from sources 
subject to its regulatory authority and explains that the State has 
limited authority to impose emissions controls on other significant 
sources of emissions, such as heavy duty trucks and engines sold 
outside California; passenger and freight locomotives, aircraft 
engines, construction and agricultural equipment under 175 horsepower; 
and ocean-going vessels (which the Plan refers to collectively as 
``federal sources'').\40\ The SCAQMD notes that, while NOX 
emissions in the South Coast have decreased by 70 percent since 1997, 
NOX emissions from federal sources have only decreased by 15 
percent over that same time period. Figure ES-3 in the Contingency 
Measure Plan illustrates the reductions that have been achieved since 
2000 and highlights the increasing portion that federal sources 
contribute to the overall emissions inventory.\41\
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    \40\ Id. at 56.
    \41\ Id. at 6.
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    The SCAQMD identifies the emissions reductions potential, by 2023, 
for the following four categories of sources under federal authority or 
responsibility: (1) low-NOX heavy-duty vehicles (up to 35 
tpd); (2) low-NOX ocean-going vessels (up to 28 tpd); (3) 
low-NOX locomotives (up to 11 tpd); and (4) low-
NOX aircraft (up to 4 tpd).\42\
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    \42\ Id. at Table 5-3.
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III. The EPA's Evaluation

A. Procedural Requirements

    CAA sections 110(a)(1) and (2) and section 110(l) require a state 
to provide reasonable public notice and an opportunity for public 
hearing prior to the adoption and submission of a SIP or SIP revision. 
To meet these procedural requirements, every SIP submission should 
include evidence that the state provided adequate public notice and an 
opportunity for a public hearing consistent with the EPA's implementing 
regulations in 40 CFR 51.102.
    CARB's December 31, 2019 SIP submittal package includes 
documentation of the public processes used by the SCAQMD and CARB to 
adopt the Contingency Measure Plan. As documented in the SIP revision 
submittal package, on November 6, 2019, the SCAQMD published a notice 
in newspapers of general circulation in the South Coast that a public 
hearing to consider adoption of the Plan would be held on December 6, 
2019. As documented in the Minute Order of the Air Pollution Control 
Board that is included in the SIP revision submittal package, the 
SCAQMD Governing Board adopted the Contingency Measure Plan on December 
6, 2019, following the public hearing.
    On November 8, 2019, CARB published on its website a notice of a 
public hearing to be held on December 12, 2019, to consider adoption of 
the plan. As evidenced by CARB Resolution 19-31, CARB adopted the 
Contingency Measure Plan on December 12, 2019, following a public 
hearing. Based on documentation included in the December 31, 2019 SIP 
revision submittal package, we find that both the SCAQMD and CARB have 
satisfied the applicable statutory and regulatory requirements for 
reasonable public notice and hearing prior to the adoption and 
submission of the Contingency Measure Plan. Therefore, we find that the 
submission of the Contingency Measure Plan meets the procedural 
requirements for public notice and hearing in CAA sections 110(a) and 
110(l) and in 40 CFR 51.102.

B. Evaluation for Compliance With Clean Air Act Requirements

    As described in Section I.C of this document, CAA section 182(e)(5) 
allows the EPA to approve an attainment demonstration for an Extreme 
ozone area that relies on anticipated new technology measures, if (A) 
the measures are not necessary to achieve emission reductions required 
in the first 10 years after the area's nonattainment designation, and 
(B) the state submits enforceable commitments to develop and adopt 
contingency measures to be implemented if the new technology measures 
do not achieve the planned reductions. The state must submit these 
contingency measures no later than three years before the new 
technology measures would be implemented.
    The EPA approves or disapproves 182(e)(5) contingency measures as 
SIP revisions under CAA section 110. The contingency measures must be 
adequate to produce sufficient emission reductions, in conjunction with 
other provisions of the approved SIP, to allow the Extreme area to make 
RFP and to attain by the applicable attainment date, and must be 
capable of being implemented in the event of a failure to make RFP or 
to attain that is due in whole or part to an inability to fully 
implement the new technology measures approved under CAA 182(e)(5).
    As recounted in Section I.C of this document, the 2007 South Coast 
Ozone SIP's attainment demonstration for the 1997 ozone NAAQS relied on 
new technology measures to achieve 241 tpd of NOX reductions 
and 40 tpd of VOC reductions by 2023. With respect to the 182(e)(5) 
requirements, our approval of the 2007 South Coast Ozone SIP relied on 
CARB's commitment to ``develop, adopt, and submit contingency measures 
by 2020 if advanced technology measures do not achieve planned 
reductions.'' \43\ The 2016 AQMP subsequently revised the reductions 
assigned to new technology measures to 108 tpd of NOX and 41 
tpd of VOC by 2023.
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    \43\ 77 FR 12674, 12693. CARB's commitment is outlined in CARB 
Resolution 11-22 (dated July 21, 2011) and in the letter dated 
November 18, 2011, from James N. Goldstene, Executive Officer, CARB, 
to Jared Blumenfeld, Regional Administrator, EPA Region IX.
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    The Contingency Measure Plan identifies a combination of state and 
federal strategies that CARB and the SCAQMD project would result in the 
108 tpd of NOX reductions previously determined to be 
necessary for the area to attain the 1997 ozone NAAQS. As recounted in 
Section II of this document, these include measures identified since 
the 2016 AQMP that were projected to be adopted by CARB or the SCAQMD 
and to be implemented prior to 2023, as well as reductions anticipated 
from additional incentive funding included in new and anticipated state 
legislation, and additional reductions assigned to federal sources and 
measures that the State asserts will be needed to reach attainment. 
Thus, while some of the identified measures are enforceable and are 
presently being implemented to achieve reductions, others (including 
additional state incentive funding and federal measures) are not fully 
developed or implemented and are not enforceable.\44\
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    \44\ For example, CARB's Response to Comments indicates that the 
State intends to later develop the Plan's incentive measures into 
SIP submittals that are ``surplus, quantifiable, permanent, and 
enforceable,'' and that include an enforceable mechanism to achieve 
the reductions from substitute projects ``if necessary,'' but that 
those elements were not required at the time that the Contingency 
Measure Plan was submitted.

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[[Page 7325]]

    Critically, while the Plan acknowledges a continuing need for 
additional measures to be developed and adopted to satisfy the 
remaining 108 tpd of NOX projected to be necessary for the 
South Coast to attain the 1997 ozone NAAQS, it does not include any 
contingency measures that would be implemented if these anticipated 
measures fail to achieve the necessary reductions. This is inconsistent 
with CAA section 182(e)(5), which requires a state that relies on new 
technology measures for an Extreme area attainment demonstration to 
submit contingency measures that can be implemented in the event that 
the area fails to attain as a result of the state's inability to fully 
implement the new technology measures that were the basis for the EPA's 
approval.\45\
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    \45\ A state would not need to submit 182(e)(5) contingency 
measures if it can demonstrate attainment without relying on 
emission reductions from future development of new technology 
measures. See 84 FR 52005, 52009-52010 (explaining that California 
was not required to submit 182(e)(5) contingency measures for the 1-
hour ozone NAAQS once the State demonstrated that it was no longer 
relying on new technology measures for attainment). See also 
Contingency Measure Plan at 1-2 (``In this submittal, the State must 
demonstrate that the assumed reductions from future technology were 
already achieved, or if not, the State must submit contingency 
measures capable of achieving the remaining emission reductions''). 
Because the Contingency Measure Plan continues to rely on emissions 
reductions from measures requiring additional time for development 
and adoption, the State remains subject to the requirement to submit 
182(e)(5) contingency measures.
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    Additionally, the Contingency Measure Plan's assignment of 
NOX reductions to federal measures and sources subject to 
federal authority is not approvable as a matter of law. In evaluating 
prior SCAQMD attainment plans that included similar ``federal 
assignments,'' the EPA has consistently taken the position that states 
do not have authority under the CAA or the U.S. Constitution to assign 
SIP responsibilities to the federal government.\46\ For the same 
reasons, we see no basis for approving the federal assignments included 
in the Contingency Measure Plan.\47\ In effect, the Contingency Measure 
Plan purports to shift responsibility to achieve reductions needed for 
the South Coast to attain the 1997 ozone NAAQS from the State to the 
federal government, while failing to include any contingency measures 
that could be implemented if the planned reductions from new technology 
measures are not achieved. This approach falls short of CARB's specific 
enforceable commitment to develop, adopt, and submit by 2020 
contingency measures to be implemented if new technology measures do 
not achieve the planned emissions reductions, as well as the statutory 
requirement for CARB to submit contingency measures adequate to produce 
emission reductions sufficient, in conjunction with other approved plan 
provisions, to achieve the emission reductions necessary for 
attainment.
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    \46\ See, e.g., 61 FR 10920, 10936 (March 18, 1996); 62 FR 1150, 
1152 (January 8, 1997); 64 FR 1770, 1776 (January 12, 1999); 75 FR 
71294, 71309 (November 22, 2010).
    \47\ The executive summary to the CARB Staff Report acknowledges 
that federal assignments are not permitted as a matter of law, and 
that the reductions assigned to federal sources and measures do not 
constitute a legally binding requirement upon the EPA. CARB Staff 
Report, p. 6. While we agree with this statement, we do not rely on 
it to reach our conclusion that the Plan as submitted fails to meet 
the contingency measure requirements of 182(e)(5).
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    For the reasons outlined herein, we are proposing to determine that 
the Contingency Measure Plan does not fulfill the contingency measure 
requirements of CAA 182(e)(5), and on that basis to disapprove the 
Plan.\48\
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    \48\ See also CAA section 110(l) (specifying that EPA may not 
approve a SIP revision that would interfere with any applicable 
requirement concerning attainment or any other applicable CAA 
requirement).
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IV. The EPA's Proposed Action and Public Comment

    As authorized in section 110(k)(3) of the CAA, we are proposing 
full disapproval of the Contingency Measure Plan, because it fails to 
provide contingency measures as required by CAA section 182(e)(5), and 
because it relies on improper ``federal assignments'' to achieve the 
necessary reductions. If we finalize this disapproval, CAA section 
110(c) would require the EPA to promulgate a federal implementation 
plan within 24 months after the effective date of the final action, 
unless we approve subsequent SIP revisions that correct the 
deficiencies identified in the final approval.
    In addition, final disapproval would trigger the offset sanction in 
CAA section 179(b)(2) 18 months after the effective date of a final 
disapproval, 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 deficiencies identified in our final action before the applicable 
deadline.
    We will accept comments from the public on the proposed disapproval 
for the next 30 days.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to review state choices, 
and approve those choices if they meet the minimum criteria of the Act. 
Accordingly, this action proposes to disapprove a state submittal as 
not meeting federal requirements, and does not impose any additional 
requirements beyond those imposed by state law.
    Additional information about these statutes and Executive Orders 
can be found at https://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 proposed 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

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., because this proposed SIP disapproval under section 110 
and subchapter I, part D of the CAA will not in-and-of itself create 
any new information collection burdens, but simply disapproves certain 
state requirements submitted for inclusion into the SIP. Burden is 
defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of this proposed 
rule on small entities, small entity is defined as: (1) a small 
business as defined by the Small Business Administration's (SBA) 
regulations at 13 CFR 121.201; (2) a small governmental jurisdiction 
that is a government of a city, county, town, school district, or 
special district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently

[[Page 7326]]

owned and operated and is not dominant in its field.
    After considering the economic impacts of this proposed action on 
small entities, I certify that this proposed action will not have a 
significant impact on a substantial number of small entities. This 
proposed rule does not impose any requirements or create impacts on 
small entities. This proposed SIP disapproval under section 110 and 
subchapter I, part D of the CAA will not in-and-of itself create any 
new requirements but simply disapproves certain state requirements 
submitted for inclusion into the SIP. Accordingly, it affords no 
opportunity for the EPA to fashion for small entities less burdensome 
compliance or reporting requirements or timetables or exemptions from 
all or part of the rule. The fact that the CAA prescribes that various 
consequences (e.g., higher offset requirements) may or will result from 
disapproval actions does not mean that the EPA either can or must 
conduct a regulatory flexibility analysis for this proposed action. 
Therefore, this proposed action will not have a significant economic 
impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    This proposed action contains no Federal mandates under the 
provisions of title II of the Unfunded Mandates Reform Act of 1995 
(UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or 
the private sector. The EPA has determined that the proposed 
disapproval action does not include a federal mandate that may result 
in estimated costs of $100 million or more to either state, local, or 
tribal governments in the aggregate, or to the private sector. 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 proposed action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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.'' This 
proposed 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, as 
specified in Executive Order 13132, because it merely disapproves 
certain state requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA. Thus, Executive Order 13132 
does not apply to this proposed action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This proposed action does not have tribal implications, as 
specified in Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP 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 the 
EPA notes that it will not impose substantial direct costs on tribal 
governments or preempt tribal law. Thus, Executive Order 13175 does not 
apply to this proposed action.

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

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 
1997) as applying only to those regulatory actions that concern health 
or safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
proposed action is not subject to Executive Order 13045 because it is 
not an economically significant regulatory action based on health or 
safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 
1997). This proposed SIP disapproval under section 110 and subchapter 
I, part D of the CAA will not in-and-of itself create any new 
regulations but simply disapproves certain state requirements submitted 
for inclusion into the SIP.

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

    This proposed action is not subject to Executive Order 13211 (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
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. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs the EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. The EPA 
believes that this proposed action is not subject to requirements of 
Section 12(d) of 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

    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
The EPA defines environmental justice as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    Neither CARB nor the SCAQMD evaluated environmental justice 
considerations as part of this SIP submission; the CAA and applicable 
implementing regulations neither prohibit nor require such an 
evaluation. The EPA did not perform an environmental justice analysis 
and did not consider environmental justice in

[[Page 7327]]

this action. Consideration of environmental justice is not required as 
part of this action, and there is no information in the record 
inconsistent with the stated goal of Executive Order 12898 of achieving 
environmental justice for people of color, low-income populations, and 
Indigenous peoples.

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: January 29, 2024.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2024-02082 Filed 2-1-24; 8:45 am]
BILLING CODE 6560-50-P