[Federal Register Volume 74, Number 190 (Friday, October 2, 2009)]
[Proposed Rules]
[Pages 50936-50939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23796]



[[Page 50936]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2008-0693; FRL-8965-2]


Approval and Promulgation of Implementation Plans: 1-Hour Ozone 
Attainment Contingency Measures for the San Joaquin Valley, CA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On July 14, 2009, EPA proposed to disapprove the attainment 
contingency measures in the extreme area plan for attainment of the 1-
hour ozone standard in California's San Joaquin Valley. EPA is now 
proposing to approve these contingency measures and to withdraw its 
proposed disapproval. This proposed approval is based on technical 
information provided to EPA by the California Air Resources Board.

DATES: Comments must be submitted by November 2, 2009.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2008-0693, by one of the following methods:
    1. Agency Web site: http://www.regulations.gov. EPA prefers 
receiving comments through this electronic public docket and comment 
system. Follow the online instructions to submit comments.
    2. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the online instructions.
    3. E-mail: <a href="/cdn-cgi/l/email-protection#f7809e949f9285d991859699949284b7928796d9909881"><span class="__cf_email__" data-cfemail="97e0fef4fff2e5b9f1e5f6f9f4f2e4d7f2e7f6b9f0f8e1">[email protected]</span></a>.
    4. Mail or deliver: Ms. Marty Robin, Office of Air Planning (AIR-
2), U.S. Environmental Protection Agency, Region 9, 75 Hawthorne 
Street, San Francisco, CA 94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through the 
agency Web site, eRulemaking portal, or e-mail. The agency Web site and 
eRulemaking portal are anonymous access systems, and EPA will not know 
your identity or contact information unless you provide it in the body 
of your comment. If you send e-mail directly to EPA, your e-mail 
address will be automatically captured and included as part of the 
public comment. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region 9, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI). To inspect the hard copy materials, please schedule an 
appointment during normal business hours with the contact listed in the 
FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Frances Wicher, U.S. EPA Region 9, 
415-972-3957, Office of Air Planning (AIR-2), U.S. Environmental 
Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 
94105-3901, <a href="/cdn-cgi/l/email-protection#57203e343f322579312536393432241732273679303821"><span class="__cf_email__" data-cfemail="96e1fff5fef3e4b8f0e4f7f8f5f3e5d6f3e6f7b8f1f9e0">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,'' 
``us,'' and ``our'' mean U.S. EPA.

I. Summary of EPA's July 14, 2009 Proposed Action on the SJV 1-Hour 
Ozone Plan

    On July 14, 2009 at 74 FR 33933, EPA proposed to approve in part 
and disapprove in part State implementation plan (SIP) revisions 
submitted to EPA by the State of California. California made these 
submittals to meet the Clean Air Act (CAA) requirements applicable to 
the San Joaquin Valley, California ozone nonattainment area (SJV area). 
The SJV area became subject to these requirements following its 2004 
reclassification from severe to extreme for the 1-hour ozone national 
ambient air quality standard (NAAQS). 69 FR 20550 (April 15, 2004). In 
1997, we revised the ozone NAAQS by lowering the level to 0.08 ppm and 
extending the averaging time to eight hours \1\ and subsequently 
revoked the 1-hour ozone standard. The SJV area, however, remains 
subject to most of these CAA requirements for the 1-hour ozone standard 
through the anti-backsliding provisions in EPA's rule implementing the 
8-hour ozone standard (Phase 1 Rule). See 40 CFR 51.905(a).
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    \1\ See 62 FR 38856 (July 18, 1997). In 2008 we lowered the 8-
hour ozone standard to 0.075 ppm. See 73 FR 16436 (March 27, 2008). 
The references in this proposed rule to the 8-hour standard are to 
the 1997 standard as codified at 40 CFR 50.10.
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    EPA proposed to approve California's 1-hour ozone SIP submissions 
for the SJV area as meeting the applicable 1-hour requirements as 
provided under the CAA and interpreted in the Phase 1 Rule for 
attainment demonstrations, rate-of-progress (ROP) demonstrations and 
related contingency measures, and other control requirements. EPA also 
proposed to disapprove the contingency measures that would take effect 
if the area failed to attain the 1-hour ozone standard by the 
applicable attainment date. A complete discussion of EPA's proposed 
actions is in the July 14, 2009 proposal.
    The three SIP submissions that are the subject of our July 14, 2008 
proposal are, first, the ``Extreme Ozone Attainment Demonstration 
Plan'' adopted by the San Joaquin Valley Air Pollution Control District 
(SJVAPCD) in 2004 and amended in 2005. We refer to the plan and its 
amendment, collectively, as the ``2004 SIP'' in this proposed rule. The 
2004 SIP addresses CAA requirements for extreme 1-hour ozone areas 
including control measures, ROP and attainment demonstrations, and 
contingency measures.
    The second SIP submission addressed in the July 14 proposal, is 
``Clarifications Regarding the 2004 Extreme Ozone Attainment 
Demonstration Plan'' (2008 Clarifications) adopted by the SJVAPCD in 
2008. The 2008 Clarifications provide updates to the 2004 SIP related 
to reasonably available control technology (RACT) measures adopted by 
the SJVAPCD, the ROP demonstrations, and contingency measures.
    The third SIP submission addressed in the July 14 proposal is the 
``2003 State and Federal Strategy for the California State 
Implementation Plan,'' adopted by the California Air Resources Board 
(ARB) in October, 2003 (2003 State Strategy). This strategy document, 
as modified by the ARB resolution adopting it, identifies ARB's 
regulatory agenda to reduce ozone and particulate matter in California, 
including specific commitments to reduce emissions in the San Joaquin 
Valley. The 2004 SIP relies in part on the 2003 State Strategy for the 
reductions needed to demonstrate attainment and ROP for the 1-hour 
ozone standard. A complete description of each of these SIP submittals 
can be found in the July 14, 2009 proposal.

II. Contingency Measures

A. Requirements for Contingency Measures for the 1-Hour Ozone Standard

    CAA sections 172(c)(9) and 182(c)(9) require that SIPs contain 
contingency measures that will take effect without further action by 
the State or EPA if an

[[Page 50937]]

area fails to attain the ozone standard by the applicable date (section 
172(c)(9)) or fails to meet a ROP milestone (section 182(c)(9)).
    In 1992, EPA issued a General Preamble describing our preliminary 
views on how we intended to review 1-hour ozone plans submitted to meet 
these and other CAA requirements. See ``General Preamble for 
Implementation of Title I of the Clean Air Act Amendments of 1990.'' 57 
FR 13498 (April 16, 1992). The General Preamble as well as other EPA 
guidance documents related to 1-hour ozone plans continue to guide our 
review of the 1-hour ozone requirements that remain applicable 
following revocation of that standard.
    The Act does not specify how many contingency measures are needed 
or the magnitude of emission reductions that must be provided by these 
measures. However, EPA provided initial guidance interpreting the 
contingency measure requirements in the General Preamble at 13510. Our 
interpretation is based upon the language in sections 172(c)(9) and 
182(c)(9) in conjunction with the control measure requirements of 
sections 172(c), 182(b) and 182(c)(2)(B), the reclassification and 
failure to attain provisions of section 181(b) and other provisions. In 
the General Preamble, EPA indicated that States with moderate and above 
ozone nonattainment areas should include sufficient contingency 
measures so that, upon implementation of such measures, additional 
reductions of 3 percent of the emissions in the adjusted base year 
inventory (or such lesser percentage that will cure the identified 
failure) would be achieved in the year following the year in which the 
failure is identified. States may use reductions in either of the two 
precursors to ozone formation--volatile organic compounds (VOC) or 
nitrogen oxides (NO<INF>X</INF>)--to meet the contingency measure 
requirement. See General Preamble at 13520. States may also use a 
combination of NO<INF>X</INF> and VOC reductions to meet the 
requirement. See General Preamble at 13520, footnote 6. Finally, States 
must show that their contingency measures can be implemented with 
minimal further action on their part and with no additional rulemaking 
actions.
    In subsequent guidance, EPA stated that contingency measures could 
be implemented early, i.e., prior to the milestone or attainment 
date.\2\ Under this policy, States are allowed to use excess reductions 
from already adopted measures to meet the CAA sections 172(c)(9) and 
182(c)(9) contingency measures requirement. The key is that the CAA 
requires extra reductions that are not relied on for ROP or attainment 
and that will provide a cushion while the plan is being revised to 
fully address the failure. Nothing in the CAA precludes a State from 
implementing such measures before they are triggered. This approach has 
been approved by EPA in numerous SIPs. See 62 FR 15844 (April 3, 1997); 
62 FR 66279 (December 18, 1997); 66 FR 30811 (June 8, 2001); 66 FR 586 
and 66 FR 634 (January 3, 2001). In the only adjudicated challenge to 
this approach, the court upheld it. See LEAN v. EPA, 382 F.3d 575 (5th 
Cir. 2004). 70 FR 71611, 71651.
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    \2\ See Memorandum from G.T. Helms, EPA, to EPA Air Branch 
Chiefs, Regions I-X, entitled ``Early Implementation of Contingency 
Measures for Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' 
August 13, 1993.
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    In 2004, EPA designated and classified most areas of the country 
under the 1997 8-hour ozone standard. 69 FR 23858 (April 30, 2004). At 
the same time, we issued the Phase 1 rule. 69 FR 23951 (April 30, 
2004). The Phase 1 rule provided that the 1-hour ozone standard would 
be revoked in most areas of the country (including the SJV area), 
effective June 15, 2005. See 40 CFR 50.9(b); 69 FR at 23996 and 70 FR 
44470 (August 3, 2005).
    The Phase 1 rule also set forth anti-backsliding principles to 
ensure continued progress toward attainment of the 8-hour ozone 
standard by identifying which 1-hour ozone standard requirements remain 
applicable after revocation of that standard. 40 CFR 51.900(f). In the 
Phase I rule, EPA initially determined that contingency measures for 
the 1-hour ozone standard would not be required once the standard was 
revoked. See 70 FR 30592 (May 26, 2005). However, the DC Circuit in 
South Coast Air Quality Management District, et al., v. EPA, 472 F.3d 
882 (DC Cir. 2006), rehearing denied 489 F.3d 1245 (2007), vacated the 
provision of the Phase 1 rule that waived the 1-hour contingency 
measure requirements. Consequently, areas subject to the anti-
backsliding requirements, such as the SJV area, must continue to meet 
the CAA sections 172(c)(9) and 182(c)(9) requirements. We have proposed 
to revise 40 CFR 51.900(f), the regulatory definition of ``applicable 
requirement'' for purposes of the anti-backsliding provisions in 40 CFR 
51. 905, in order to remove the vacated provision and to add language 
consistent with the Court's holding that contingency measures for 
failure to attain or to make reasonable further progress toward 
attaining the 1-hour standard continue to apply in such areas. See 74 
FR 2936 (January 16, 2009).

B. EPA's July 14, 2009 Proposal on the Attainment Contingency Measures 
in the SJV 1-Hour Ozone Plan

    One-hour ozone nonattainment areas classified as extreme under CAA 
section 181(b)(3) must demonstrate attainment ``as expeditiously as 
practicable'' but not later than the date specified in CAA section 
181(a), November 15, 2010. The 2004 SIP contains a demonstration that 
the SJV area will attain the 1-hour ozone standard by that date. In our 
July 14, 2009 proposed action on the 2004 SIP, we proposed to approve 
the attainment demonstration. 74 FR at 33942. The attainment 
contingency measure requirement calls for a showing that there are 
fully adopted contingency measures that will achieve emission 
reductions in excess of the levels needed for attainment and sufficient 
to provide continued ROP in the year after the attainment date, i.e., 3 
percent reductions from the pre-1990 adjusted baseline in 2011 if 
triggered by a failure to attain. Table 4 in our July 14, 2009 proposal 
reproduces the ROP demonstrations in the 2004 SIP. 74 FR at 33941. 
Based on the 2010 adjusted baseline in this ROP demonstration, an 
additional 3 percent in the year after the attainment year equates to 
approximately 15.3 tpd of VOC or 20.7 tpd of NO<INF>X</INF> with 
NO<INF>X</INF> substitution.
    Table 5 in the July 14, 2009 proposal shows that there are no 
excess reductions from adopted measures in the 2004 SIP's attainment 
demonstration and that, in addition to the adopted measures that make 
significant reductions toward attainment, the plan relies on 
commitments to adopt measures to achieve the additional reductions 
needed to demonstrate attainment. However, Table 6 in the July 14 
proposal shows that there are 10 tpd NO<INF>X</INF> and 5 tpd VOC in 
reductions in 2011 from adopted and creditable on-road mobile source 
measures that could serve to fulfill a portion of the attainment 
contingency measure requirement. These amounts collectively provide 
just a 2.4 percent rate of progress in 2011, short of the suggested 3 
percent.
    The SJV 1-hour ozone plan did not provide any information on post-
2010 emission reductions in any source category other than on-road 
motor vehicles.
    Based on the information available to EPA at the time of the July 
14, 2009 proposal, the State had not demonstrated that there were 
sufficient excess reductions to satisfy the attainment contingency 
measure requirement. We therefore proposed to disapprove the attainment 
contingency

[[Page 50938]]

measures provision in the SJV 1-hour ozone plan as not meeting the 
requirements of CAA section 172(c)(9). See 74 FR at 33944. We stated in 
that proposal that the State could remedy this failure by submitting 
either new contingency measures or a demonstration that existing 
creditable measures provide, consistent with the guidance cited above, 
sufficient emission reductions in 2011. Id.

C. Additional Information Submitted by California

    In an August 28, 2009 letter, ARB provided information on the 
effect on emission levels in the SJV area of fleet turnover in the off-
road mobile source category. ARB also provided a demonstration that 
these emission reductions, combined with the reductions in the on-road 
mobile source sector, are more than the 3 percent of adjusted base 
inventory emissions suggested by EPA guidance, and that these 
reductions are not relied upon to satisfy rate of progress and 
attainment demonstration requirements. See letter, James Goldstene, 
ARB, to Marty Robins, EPA (Goldstene letter). We have reproduced ARB's 
demonstration, contained in the attachment to the Goldstene letter, in 
Table 1 below.

   TABLE 1--Emission Reductions Available To Satisfy the Clean Air Act
        Contingency Measure Requirement for ``Failure To Attain''
                   [San Joaquin Valley, Summer Season]
------------------------------------------------------------------------
                Line                         NOX             ROG \3\
------------------------------------------------------------------------
A. 1990 Adjusted Baseline Emissions                689               509
 in 2010 (Note 1)...................
B. Emission Reductions from                         10                 5
 California's Existing On-road Motor
 Vehicle Emission Control Program
 (2010 to 2011) (Note 2)............
C. Emission Reductions from                        5.7               3.6
 California's Existing Off-road
 Equipment Emission Control Program
 (2010 to 2011).....................
D. Total Mobile Source Emission                     16                 9
 Reductions (2010-2011).............
E. Mobile Source Emission Reductions              2.3%              1.7%
 as a Percent of the 1990 Adjusted
 Baseline Emissions in 2010.........
                                     -----------------------------------
F. Total Mobile Source Emission
 Reductions as a Percent of the 1990
 Adjusted Baseline Emissions in 2010                 4.0%
------------------------------------------------------------------------
Note 1. From Table 2 ``San Joaquin Valley Rate of Progress'' in the 2008
  Clarification.
Note 2. From Table 3 ``Baseline Motor Vehicle Emissions 2000-2010'' in
  the 2008 Clarification.

    The reductions in the off-road engine category were taken from 
baseline emission inventories developed as inputs to the air quality 
modeling supporting the attainment demonstration in the 2004 SIP. These 
baseline emission inventories include reductions only from measures 
adopted prior to September 2002; therefore, the estimate of emission 
reductions from the off-road engines category reflect only these 
measures. See e-mail, Jeff Lindberg, ARB, to Frances Wicher, EPA, 
``2011 Off-Road Emission Estimates for the San Joaquin Valley's 1-hour 
Ozone Plan,'' September 10, 2009.
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    \3\ ARB uses the term ``reactive organic gases'' (ROG) in its 
documents. For the purposes of this proposed rule, VOC and ROG are 
interchangeable.
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    By 2002, California already had in place a comprehensive off-road 
mobile source control program that included both VOC and NO<INF>X</INF> 
emissions standards for lawn and garden equipment, recreational boats, 
off-road recreational vehicles, and many other off-road engine 
categories. A list of ARB's adopted off-road measures can be found in 
Table 15 of the technical support document (TSD) for our July 14, 2009 
proposal.\4\ California has been granted a waiver or has applied for a 
waiver under CAA section 209 for these measures \5\ and/or the 
California emission limits are identical or very similar to EPA 
regulations. EPA had also adopted by September 2002 measures that 
reduce emissions from new construction and farm equipment and 
locomotives that apply in California.<SUP>6 7</SUP> As described in our 
July 14, 2009 proposal, emission reductions from both section 209 
waiver measures and Federal measures are fully creditable for 
contingency measures. See 74 FR at 33936, 33938.
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    \4\ Because this proposed action supplements our July 14, 2009 
proposal, the docket number, EPA-R09-OAR-2008-0693, for both 
proposed actions is the same.
    \5\ Under CAA sections 209(a) and (e)(1), States are pre-empted 
from adopting or enforcing emission standards for both on-road or 
non-(off-) road new vehicles and new vehicle engines. Under CAA 
section 209(b) and (e)(2), California must be granted a waiver of 
this pre-emption upon certain findings by EPA although we may not 
waive pre-emption for locomotives and for certain new construction 
or agricultural engines. See CAA section 209(e)(1).
    \6\ Tier 2 and 3 non-road engines standards, 63 FR 56968 
(October, 23, 1998).
    \7\ Locomotive standards, 63 FR 18978 (May 16, 1998).
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    As shown in Table 1 above, creditable State and Federal on-road and 
off-road measures provide a combined 4 percent rate of progress in 2011 
which is more than the 3 percent ROP suggested in EPA guidance on 
contingency measures. Therefore, we propose to approve the attainment 
contingency measures provision in the SJV 1-hour ozone plan as meeting 
the requirements of CAA section 172(c)(9) and the anti-backsliding 
requirements of EPA's Phase 1 implementation rule and to withdraw our 
July 14, 2009 proposed disapproval of this provision.

III. Summary of Proposed Action

    Based on our review of the additional information provided by ARB, 
we are proposing to approve the contingency measure provisions in the 
SJV 1-hour ozone plan as meeting the requirements of CAA section 
172(c)(9) for contingency measures that must be implemented if an area 
fails to attain by its attainment date. We are also proposing to 
withdraw our July 14, 2009 proposed disapproval of these contingency 
measures.
    These proposals to approve and withdraw address only the 
contingency measures provision for failure to attain in the SJV 1-hour 
ozone plan. The public comment period for the July 14, 2009 proposal 
closed on August 31, 2009. 74 FR 40123 (August 11, 2009). EPA is not 
reopening the comment period on any other aspects of its July 14, 2009 
proposed action on the SJV 1-hour ozone plan. Therefore, comments in 
response to the proposals herein must be limited to issues related to 
the proposed approval of the attainment contingency measures in the SJV 
1-hour ozone plan and the proposed withdrawal of the July 14, 2009 
proposed disapproval of these measures.

[[Page 50939]]

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to either review by the Office of Management 
and Budget or to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001).
    This action merely proposes to approve a portion of a State-adopted 
attainment plan for the San Joaquin Valley Air Basin and withdraw a 
previous proposal and does not impose any additional requirements. 
Accordingly, the Administrator certifies that this proposed action will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Because this proposed action does not impose any additional enforceable 
duties, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This proposed action does not have Tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
plan is not approved to apply in Indian country located in the State. 
It will not impose substantial direct costs on Tribal governments or 
preempt Tribal law.
    This proposed action also does not have Federalism implications 
because it does 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 (64 FR 43255, 
August 10, 1999). This proposed action merely proposes to approve a 
portion of a State-adopted plan and does not alter the relationship or 
the distribution of power and responsibilities established in the CAA.
    Executive Order 12898 establishes a Federal policy for 
incorporating environmental justice into Federal agency actions by 
directing agencies to identify and address, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority and 
low-income populations. Today's action involves a proposed approval of 
a State-adopted plan. It will not have disproportionately high and 
adverse effects on any communities in the area, including minority and 
low-income communities.
    This proposed action also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant. The requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. This proposed action does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen oxides, Ozone, Volatile organic compounds.

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

    Dated: September 23, 2009.
Jane Diamond,
Acting Regional Administrator, Region IX.
[FR Doc. E9-23796 Filed 10-1-09; 8:45 am]
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