Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Proposed Rules 58067 

requirements. As such and based upon 

the above two sections we are proposing 

to find that for both the CTG categories 

identified in Table 2 and all Non-CTG 

sources Texas has RACT-level controls 

in place for the HGB Area under the 

1997 8-Hour ozone standard. 

L. Is Texas’ approach to for RACT 

determination for major NOX sources 

based on the June 13, 2007 and April 6, 

2010 submittals acceptable? 

Texas has identified a list of major 

NOX sources in the HGB Area, in its 

Appendix D of the April 6, 2010 

submittal. TCEQ reviewed the point 

source emissions inventory and title V 

databases to identify all major sources of 

NOX emissions. All sources in the title 

V database that were listed as a major 

source for NOX emissions were included 

in the RACT analysis. Since the point 

source emissions inventory database 

reports actual emissions rather than 

potential to emit emissions, the TCEQ 

reviewed sources that reported actual 

emissions as low as 10 tpy of NOX to 

account for the difference between 

actual and potential emissions. To be 

conservative, sites from the emissions 

inventory database with emissions of 10 

tpy or more of NOX that were not 

identified in the title V database and 

could not be verified as minor sources 

by other means are also included in the 

RACT analysis. We have reviewed 

TCEQ’s April 6, 2010 submittal and find 

their approach to include these sources 

in the inventory of the sources 

acceptable. 

Texas reviewed the list of sources and 

certified that it has the appropriate NOX

control measures in place for the 

affected sources. In addition, as a part 

of 1-Hour ozone attainment 

demonstration plan for the HGB Area at 

70 FR 58136, October 5, 2005, and 71 

FR 52676, September 6, 2006, Texas has 

met RACT for VOC and NOX sources. 

We are proposing to approve TCEQ’s 

determination that NOX control 

measures in Chapter 117 meet RACT 

requirements for major sources of NOX

in the HGB Area under the 1997 8-Hour 

ozone NAAQS. 

III. Proposed Action 

Today, we are proposing to find that 

for VOC, CTG categories identified in 

Table 2 and major Non-CTG sources, 

and for NOX, Texas has RACT-level 

controls in place for the HGB Area 

under the 1997 8-Hour ozone standard. 

The EPA had previously approved 

RACT for VOC and NOX into Texas’ SIP 

under the 1-Hour ozone standard. We 

are also proposing to approve the 2007 

VMEP into Texas SIP. 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. If a portion of the 

plan revision meets all the applicable 

requirements of this chapter and Federal 

regulations, the Administrator may 

approve the plan revision in part. 42 

U.S.C. 7410(k); 40 CFR 52.02(a). Thus, 

in reviewing SIP submissions, EPA’s 

role is to approve state choices that meet 

the criteria of the Act, and to disapprove 

state choices that do not meet the 

criteria of the Act. Accordingly, this 

proposed action approves state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• 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); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994); and 

• This rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because the SIP is not approved 

to apply in Indian country located in the 

state, and EPA notes that it will not 

impose substantial direct costs on tribal 

governments or preempt tribal law. 

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

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Hydrocarbons, 

Incorporation by reference, 

Intergovernmental relations, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: September 6, 2012. 

Lynda F. Carroll, 

Acting Regional Administrator, Region 6. 

[FR Doc. 2012–23152 Filed 9–18–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0713; FRL–9727–6] 

Disapproval of Implementation Plan 

Revisions; State of California; South 

Coast VMT Emissions Offset 

Demonstrations 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to withdraw 

its final approvals of state 

implementation plan revisions 

submitted by the State of California to 

meet the vehicle-miles-traveled 

emissions offset requirement under the 

Clean Air Act for the Los Angeles-South 

Coast Air Basin 1-hour and 8-hour 

ozone nonattainment areas. EPA is also 

proposing to disapprove the same plan 

revisions. EPA is proposing the 

withdrawal and disapproval actions in 

response to a remand by the Ninth 

Circuit Court of Appeals in Association 

of Irritated Residents v. EPA. The effect 

of this action, if finalized as proposed, 

would be to trigger deadlines by which 

new plan revisions meeting the 

applicable requirements must be 

submitted by the State of California and 

approved by EPA to avoid sanctions and 

to avoid an obligation on EPA to 

promulgate a federal implementation 

plan. 

DATES: Written comments must be 

received on or before October 19, 2012. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2012–0713, by one of the 

following methods: 


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58068 Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Proposed Rules 

1 Ground-level ozone or smog is formed when 

oxides of nitrogen (NOX), volatile organic 

compounds (VOC), and oxygen react in the 

presence of sunlight, generally at elevated 

temperatures. Strategies for reducing smog typically 

require reductions in both VOC and NOX emissions. 

Ozone causes serious health problems by damaging 

lung tissue and sensitizing the lungs to other 

irritants. When inhaled, even at very low levels, 

ozone can cause acute respiratory problems, 

aggravate asthma, temporary decreases in lung 

capacity of 15 to 20 percent in healthy adults, 

inflammation of lung tissue, lead to hospital 

admissions and emergency room visits, and impair 

the body’s immune system defenses, making people 

more susceptible to respiratory illnesses, including 

bronchitis and pneumonia. 

2 In 2008, EPA tightened the 8-hour ozone 

NAAQS to 0.075 ppm, see 73 FR 16436 (March 27, 

2008). Today’s proposed action relates only to SIP 

requirements arising from the classifications and 

designations of the South Coast with respect to the 

1979 1-hour ozone and 1997 8-hour ozone 

standards. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Email: tax.wienke@epa.gov. 

• Mail or deliver: Wienke Tax, Air 

Planning Office, U.S. Environmental 

Protection Agency, Region 9, Mailcode 

AIR–2, 75 Hawthorne Street, San 

Francisco, California 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 

information claimed to be 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 http:// 

www.regulations.gov or email. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, and 

EPA will not know your identity or 

contact information unless you provide 

it in the body of your comment. If you 

send an email comment directly to EPA, 

your email 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 on 

the http://www.regulations.gov Web site 

and in hard copy at EPA Region IX, 75 

Hawthorne Street, San Francisco, 

California, 94105. 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 at 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 

below. 

FOR FURTHER INFORMATION CONTACT: 

Wienke Tax, Air Planning Office, U.S. 

Environmental Protection Agency, 

Region 9, Mail Code AIR–2, 75 

Hawthorne Street, San Francisco, 

California 94105–3901, 415–947–4192, 

tax.wienke@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

A. Regulatory Context 

B. South Coast Ozone Designations and 

Classifications and Related SIP Revisions 

C. Litigation on EPA’s Final Action on 

2003 South Coast 1-Hour Ozone SIP 

D. Litigation on EPA’s Final Action on 

2007 South Coast 8-Hour Ozone SIP 

II. Proposed Withdrawal of Previous 

Approvals, and Proposed Disapproval, of 

VMT Emissions Offset Demonstrations 

III. Proposed Action and Request for Public 

Comment 

IV. Statutory and Executive Order Reviews 

I. Background 

A. Regulatory Context 

The Clean Air Act (CAA or Act) 

requires EPA to establish national 

ambient air quality standards (NAAQS 

or ‘‘standards’’) for certain widespread 

pollutants that cause or contribute to air 

pollution that is reasonably anticipated 

to endanger public health or welfare 

(see sections 108 and 109 of the CAA). 

In 1979, under section 109 of the 

CAA, EPA established a primary healthbased NAAQS for ozone 1 at 0.12 parts 

per million (ppm) averaged over a 1- 

hour period. See 44 FR 8202; (February 

8, 1979). The Act, as amended in 1990, 

required EPA to designate as 

nonattainment any area that had been 

designated as nonattainment before the 

1990 Amendments [section 107(d)(1)(C) 

of the Act; 56 FR 56694; (November 6, 

1991)]. The Act further classified 1-hour 

ozone nonattainment areas, based on the 

severity of their nonattainment problem, 

as Marginal, Moderate, Serious, Severe, 

or Extreme. 

The control requirements and date by 

which attainment of the 1-hour ozone 

standard was to be achieved varied with 

an area’s classification. Marginal areas 

were subject to the fewest mandated 

control requirements and had the 

earliest attainment date, November 15, 

1993, while Extreme areas were subject 

to the most stringent planning 

requirements and were provided the 

most time to attain the standard, until 

November 15, 2010. The various ozone 

planning requirements to which 

Extreme ozone nonattainment areas are 

subject are set forth in section 172(c) 

and section 182(a)–(e) of the CAA. Of 

particular importance for the purposes 

of this proposed action, section 

182(d)(1)(A) requires the following: 

Within 2 years after November 15, 1992, 

the State shall submit a revision that 

identifies and adopts specific enforceable 

transportation control strategies and 

transportation control measures to offset any 

growth in emissions from growth in vehicle 

miles traveled or numbers of vehicle trips in 

such area and to attain reduction in motor 

vehicle emissions as necessary, in 

combination with other emission reduction 

requirements of this subpart, to comply with 

the requirements of subsection (b)(2)(B) and 

(c)(2)(B) of this section (pertaining to 

periodic emissions reduction requirements). 

The State shall consider measures specified 

in section 7408(f) of this title, and choose 

from among and implement such measures as 

necessary to demonstrate attainment with the 

national ambient air quality standards; in 

considering such measures, the State should 

ensure adequate access to downtown, other 

commercial, and residential areas and should 

avoid measures that increase or related 

emissions and congestion rather than reduce 

them. 

EPA believes that it is appropriate to 

treat the three required elements of 

section 182(d)(1)(A) (i.e., offsetting 

emissions growth, attainment of the 

rate-of-progress (ROP) reduction, and 

attainment of the ozone NAAQS) as 

separable. As to the first element of 

CAA section 182(d)(1)(A) (i.e., offsetting 

emissions growth caused by growth in 

vehicle miles travelled (VMT)), EPA had 

historically interpreted this CAA 

provision to allow areas to meet the 

requirement by demonstrating that 

emissions from motor vehicles decline 

each year through the attainment year. 

See, e.g., 57 FR 13498, at 13521–15323; 

(April 16, 1992). This proposed rule 

relates only to the first element of 

section 182(d)(1)(A) (i.e., offsetting 

emissions growth caused by growth in 

VMT). Herein, we refer to this element 

as the Vehicle Miles Traveled (VMT) 

emissions offset requirement (‘‘VMT 

emissions offset requirement’’) and the 

demonstration submitted to us to 

address this requirement as the ‘‘VMT 

emissions offset demonstration.’’ 

In 1997, EPA replaced the 1-hour 

ozone standard with an 8-hour ozone 

standard of 0.08 ppm. See 62 FR 38856; 

(July 18, 1997).2 We promulgated final 

rules to implement the 1997 8-hour 

ozone standard in two phases. The 

‘‘Phase 1’’ rule, which was issued on 

April 30, 2004 (69 FR 23951) 

establishes, among other things, the 


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3The South Coast includes Orange County, the 

southwestern two-thirds of Los Angeles County, 

southwestern San Bernardino County, and western 

Riverside County (see 40 CFR 81.305). 

4Letter from Elaine Chang, Deputy Executive 

Officer, South Coast Air Quality Management 

District, dated September 10, 2008, approved at 40 

CFR 52.220(c)(339)(ii)(B)(2). 

5 In response to comments on EPA’s proposal to 

partially approve and partially disapprove the 2003 

South Coast 1-Hour Ozone SIP, EPA indicated that 

the second and third elements of CAA section 

182(d)(1)(A) were satisfied in 1997 when EPA 

approved the 1994 South Coast 1-Hour Ozone SIP’s 

transportation control strategies and TCMs, such as 

TCM–1 (‘‘Transportation Improvements’’), which 

includes the capital and non-capital facilities, 

projects, and programs contained in the Regional 

Mobility Element and programmed through the 

Regional Transportation Improvement Program 

(RTIP) process to reduce emissions, in the same 

action in which EPA approved the South Coast ROP 

and attainment demonstrations. See 74 FR 10176, 

at 10179; (March 10, 2009). 

6See pages 6–23 and 6–27 (table 6–12) of the 

Final 2007 Air Quality Management Plan, June 

2007, prepared by the South Coast Air Quality 

Management District. 

classification structure and 

corresponding attainment deadlines, as 

well as the anti-backsliding principles 

for the transition from the 1-hour ozone 

standard to the 8-hour ozone standard. 

For an area that was designated 

nonattainment for the 1-hour ozone 

standard at the time when EPA 

designated it as nonattainment for the 

1997 8-hour ozone standard as part of 

the initial 8-hour ozone designations, 

most of the requirements that had 

applied by virtue of the area’s 

classification for the 1-hour ozone 

standard continue to apply even after 

revocation of the 1-hour ozone standard 

(which occurred in June 2005 for most 

areas). See 40 CFR 51.905(a)(1) and 40 

CFR 51.900(f). Thus, for example, an 

area that was designated nonattainment 

and classified as Extreme for the 1-hour 

ozone standard at the time of an initial 

designation of nonattainment for the 8- 

hour standard remains subject to the 

VMT emissions offset requirement 

under CAA section 182(d)(1)(A) for the 

1-hour ozone NAAQS even if the area 

would not otherwise have been subject 

to that particular requirement based on 

the area’s classification for the 1997 8- 

hour ozone standard. See 40 CFR 

51.905(a)(1) and 40 CFR 51.900(f)(11). 

The Phase 2 rule, which was issued 

on November 29, 2005 (70 FR 71612), 

addresses the SIP obligations for the 

1997 8-hour ozone standard. Under the 

Phase 2 rule, an area that is designated 

as nonattainment for the 1997 8-hour 

ozone standard, and classified under 

subpart 2 (of part D of title I of the 

CAA), is subject to the requirements of 

subpart 2 that apply for that 

classification. See 40 CFR 51.902(a). 

Among the requirements for areas 

classified as Severe or Extreme for the 

1997 8-hour ozone standard is the VMT 

emissions offset requirement under 

CAA section 182(d)(1)(A). 

B. South Coast Ozone Designations and 

Classifications and Related SIP 

Revisions 

As noted above, the CAA, as amended 

in 1990, required EPA to designate as 

nonattainment any area that had been 

designated as nonattainment before the 

1990 Amendments. The CAA also 

required EPA to classify nonattainment 

areas as Marginal, Moderate, Serious, 

Severe, or Extreme depending upon the 

design value of the area. On November 

6, 1991, EPA designated the Los 

Angeles-South Coast Air Basin Area 

(‘‘South Coast’’) 3 as nonattainment and 

classified it as Extreme for the 1-hour 

ozone standard; thus the area had an 

attainment date no later than November 

15, 2010 (56 FR 56694). 

The California Air Resources Board 

(CARB) has submitted a number of SIP 

revisions over the years for the South 

Coast Air Basin to address 1-hour ozone 

SIP planning requirements. Specifically, 

in 1994, CARB submitted a 1-hour 

ozone SIP that, among other things, 

included for the South Coast an 

attainment demonstration, ROP 

demonstrations, and transportation 

control measures (TCMs). In 1997, EPA 

approved the 1994 Ozone SIP as it 

applied to the South Coast for the 1- 

hour standard. See 62 FR 1150; (January 

8, 1997). 

In 1997 and 1999, CARB submitted 

revisions to the 1994 South Coast 1- 

Hour Ozone SIP, including revised ROP 

demonstrations, and a revised 

attainment demonstration (‘‘1997/1999 

South Coast 1-Hour Ozone SIP’’). See 65 

FR 18903; (April 10, 2000). In 2004, 

CARB submitted revisions to the 1997/ 

1999 South Coast 1-Hour Ozone SIP 

(‘‘2003 South Coast 1-Hour Ozone SIP’’). 

In 2008, the 2003 South Coast 1-Hour 

Ozone SIP was supplemented by 

submittal of a VMT emissions offset 

demonstration 4 that was intended to 

comply with the VMT emissions offset 

requirement by showing that there 

would be no upturn in emissions 

between the area’s base year for the SIP 

revision and the area’s attainment year. 

In 2009, EPA disapproved the revised 

ROP demonstrations and attainment 

demonstration in the 2003 South Coast 

1-Hour Ozone SIP, but approved the 

VMT emissions offset demonstration 

that had been submitted in 2008. 74 FR 

10176; (March 10, 2009).5

With respect to the 1997 8-hour 

standard, EPA designated the South 

Coast as nonattainment and classified 

the area as ‘‘Severe-17,’’ but later 

approved a request by California to 

reclassify the South Coast to ‘‘Extreme.’’ 

See 69 FR 23858; (April 30, 2004) and 

75 FR 24409; (May 5, 2010). In 2007, 

CARB submitted a SIP revision to 

address the 8-hour ozone SIP planning 

requirements for the South Coast (‘‘2007 

South Coast 8-hour Ozone SIP’’). The 

2007 South Coast 8-Hour Ozone SIP 

included, among many other elements, 

a VMT emissions offset demonstration 

addressing the VMT emissions offset 

requirement under CAA section 

182(d)(1)(A).6 Consistent with the 

approach used for the demonstration 

submitted for 1-hour ozone purposes in 

2008, the 2007 South Coast 8-Hour 

Ozone SIP showed compliance with the 

VMT emissions offset requirement, as 

then interpreted by EPA, by showing 

that aggregate motor vehicle emissions 

are projected to decrease each year from 

the base year through the attainment 

year (2024). 

In March 2012, EPA approved the 

2007 South Coast 8-Hour Ozone SIP, 

including the VMT emissions offset 

demonstration addressing the VMT 

emissions offset requirement under 

CAA section 182(d)(1)(A). See 77 FR 

12674; (March 1, 2012). 

C. Litigation on EPA’s Final Action on 

2003 South Coast 1-Hour Ozone SIP 

In approving the VMT emissions 

offset demonstration that was submitted 

by the South Coast Air Quality 

Management District to supplement the 

2003 South Coast 1-Hour Ozone SIP, 

EPA applied its then-longstanding 

interpretation of the VMT emissions 

offset requirement under CAA section 

182(d)(1)(A) that no TCMs are necessary 

if aggregate motor vehicle emissions are 

projected to decline each year from the 

base year of the plan to the attainment 

year. See 74 FR 10176, at 10179–10180; 

(March 10, 2009). EPA’s 2009 approval 

was challenged in the U.S. Court of 

Appeals for the Ninth Circuit, and, in 

2011, the court ruled against EPA, 

determining that EPA incorrectly 

interpreted the statutory phrase ‘‘growth 

in emissions’’ in section 182(d)(1)(A) as 

meaning a growth in ‘‘aggregate motor 

vehicle emissions.’’ In other words, the 

court ruled that additional 

transportation control strategies and 

measures are required whenever vehicle 

emissions are projected to be higher 

than they would have been had vehicle 

miles traveled not increased, even when 

aggregate vehicle emissions are actually 

decreasing. Association of Irritated 

Residents v. EPA, 632 F.3d 584, at 596– 

597 (9th Cir. 2011), reprinted as 


tkelley on DSK3SPTVN1PROD with PROPOSALS
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amended on January 27, 2012, 686 F.3d 

668, further amended February 13, 2012 

(‘‘AIR v. EPA’’). 

Based on this reasoning, the court 

remanded the approval of the VMT 

emissions offset demonstration back to 

EPA for further proceedings consistent 

with the opinion. In May 2011, EPA 

filed a petition for panel rehearing 

requesting the court to reconsider its 

decision as to the VMT emissions offset 

requirement. In January 2012, the court 

denied the request and issued the 

mandate shortly thereafter. 

D. Litigation on EPA’s Final Action on 

2007 South Coast 8-Hour Ozone SIP 

As of December 15, 2011, the time of 

signature on the final rule approving the 

2007 South Coast 8-hour Ozone SIP, the 

court had not yet responded to our 

petition for panel rehearing in AIR v. 

EPA. Notwithstanding adverse 

comments on the proposed approval of 

the VMT emissions offset demonstration 

in the 2007 South Coast 8-Hour Ozone 

SIP, EPA proceeded to approve the 

demonstration on the basis of the same 

rationale that had been rejected by the 

Ninth Circuit in connection with the 

VMT emissions offset demonstration 

submitted as part of the 2003 South 

Coast 1-Hour Ozone SIP. The final rule 

was ultimately published on March 1, 

2012 (77 FR 12674). Shortly thereafter, 

several environmental and community 

groups filed a lawsuit in the Ninth 

Circuit challenging that approval. 

Communities for a Better Environment, 

et al. v. EPA, No. 12–71340. 

II. Proposed Withdrawal of Previous 

Approvals, and Proposed Disapproval, 

of VMT Emissions Offset 

Demonstrations 

As noted above, the Ninth Circuit 

rejected EPA’s long-standing 

interpretation of the first element of 

section 182(d)(1)(A) that states could 

demonstrate compliance with the VMT 

emissions offset requirement through 

submittal of aggregate motor vehicle 

emissions estimates showing year-overyear declines in such emissions. These 

demonstrations formed the basis for our 

consideration and approval of the 

section 182(d)(1)(A) VMT emissions 

offset demonstrations submitted in 

connection with the 2003 South Coast 1- 

Hour Ozone SIP and the 2007 South 

Coast 8-Hour Ozone SIP. In response to 

the court’s rejection of our 

interpretation of the Act and its remand 

of our action approving the VMT 

emissions offset demonstration for the 

1-hour ozone standard, we are 

proposing the following two actions. 

First, we are proposing to withdraw 

our previous approval of the VMT 

emissions offset demonstration in our 

March 8, 2009 final action on the 2003 

South Coast 1-Hour Ozone SIP. Second, 

we are proposing to withdraw our 

March 1, 2012 approval of the portion 

of the 2007 South Coast 8-Hour Ozone 

SIP that was submitted to address the 

VMT emissions offset requirement of 

CAA section 182(d)(1)(A). 

Withdrawal of our approvals of the 

two section 182(d)(1)(A) demonstrations 

would remove them from the California 

SIP and we would be obligated to take 

action on them under section 110(k), 

unless the State were to also withdraw 

the demonstrations from their 

submissions to us. To date, the State has 

not withdrawn these demonstrations. 

Therefore, in this action, we are 

proposing to disapprove them. 

Specifically, we are proposing to 

disapprove the demonstrations 

submitted by California to demonstrate 

compliance with the VMT emissions 

offset requirement under CAA section 

182(d)(1)(A) with respect to the 1-hour 

and 8-hour ozone standards because 

they are predicated on EPA’s previous 

interpretation of section 182(d)(1)(A) 

that has been rejected by the Ninth 

Circuit. The demonstrations are not 

consistent with the court’s ruling on the 

requirements of section 182(d)(1)(A) 

because they fail to identify, compared 

to a baseline assuming no VMT growth, 

the level of increased emissions 

resulting solely from VMT growth and 

to show how such increased emissions 

have been offset through adoption and 

implementation of transportation 

control strategies and transportation 

control measures. 

III. Proposed Action and Request for 

Public Comment 

EPA is proposing to withdraw and to 

disapprove our final approvals of SIP 

revisions submitted by the State of 

California to demonstrate compliance 

with the VMT emissions offset 

requirement under CAA section 

182(d)(1)(A) with respect to the 1-hour 

and 8-hour ozone standards in the 

South Coast nonattainment area. EPA is 

proposing this action in response to a 

decision of the Ninth Circuit in AIR v. 

EPA. Under section 110(k) of the Clean 

Air Act, we are proposing to disapprove 

these same plan elements because they 

reflect an approach to showing 

compliance with section 182(d)(1)(A) 

that was rejected by the court as 

inconsistent with the CAA section 

182(d)(1)(A) VMT emissions offset 

requirement. Should we finalize the 

disapproval proposed here, the offset 

sanction in CAA section 179(b)(2) 

would apply in the South Coast ozone 

nonattainment area 18 months after the 

effective date of the final disapproval. 

The highway funding sanctions in CAA 

section 179(b)(1) would apply in the 

area six months after the offset sanction 

is imposed. These sanctions will apply 

unless we take final action approving 

SIP revisions meeting the relevant 

requirements of the CAA prior to the 

time the sanctions would take effect. If 

we propose approval of a SIP revision 

meeting the relevant requirements of the 

CAA and determine at that time that it 

is more likely than not the deficiency 

has been corrected, sanctions would be 

deferred. See 40 CFR 52.31 which sets 

forth when sanctions apply and when 

they may be stopped or deferred. 

In addition to the sanctions, CAA 

section 110(c) provides that EPA must 

promulgate a federal implementation 

plan addressing the deficiency that is 

the basis for this disapproval two years 

after the effective date of the 

disapproval unless we have approved a 

revised SIP before that date. 

We are soliciting comments on these 

proposed actions. Comments will be 

accepted for 30 days following 

publication of this proposal in the 

Federal Register. We will consider all 

comments in our final rulemaking. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12988, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 128665, 

entitled ‘‘Regulatory Planning and 

Review.’’ 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). 

C. Regulatory Reduction 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. 

This rule will not have a significant 

impact on a substantial number of small 

entities because SIP approvals or 

disapprovals under section 110 and 

subchapter I, part D of the Clean Air Act 

do not create any new requirements but 

simply approve or disapprove 


tkelley on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Proposed Rules 58071 

requirements that the State is already 

imposing. Therefore, because the 

proposed withdrawal of previous 

approvals of certain SIP revisions, and 

proposed disapproval of the same, do 

not create any new requirements, I 

certify that this proposed action will not 

have a significant economic impact on 

a substantial number of small entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

Clean Air Act, preparation of flexibility 

analysis would constitute Federal 

inquiry into the economic 

reasonableness of State action. The 

Clean Air Act forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. U.S. 

EPA, 427 U.S. 246, 255–66 (1976); 42 

U.S.C. 7410(a)(2). 

D. Unfunded Mandates Reform Act 

Under section 202 of the Unfunded 

Mandates Reform Act of 1995 

(‘‘Unfunded Mandates Act’’), signed 

into law on March 22, 1995, EPA must 

prepare a budgetary impact statement to 

accompany any proposed or final rule 

that includes a Federal mandate that 

may result in estimated costs to State, 

local, or tribal governments in the 

aggregate; or to the private sector, of 

$100 million or more. Under section 

205, EPA must select the most costeffective and least burdensome 

alternative that achieves the objectives 

of the rule and is consistent with 

statutory requirements. Section 203 

requires EPA to establish a plan for 

informing and advising any small 

governments that may be significantly 

or uniquely impacted by the rule. 

EPA has determined that the 

proposed withdrawal and 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 

Federal action proposes to withdraw 

previous approvals of certain SIP 

revisions, and proposes disapproval of 

the same, 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 

Federalism (64 FR 43255, August 10, 

1999) revokes and replaces Executive 

Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental 

Partnership). Executive Order 13132 

requires 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.’’ Under 

Executive Order 13132, EPA may not 

issue a regulation that has federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. EPA also may not issue a 

regulation that has federalism 

implications and that preempts State 

law unless the Agency consults with 

State and local officials early in the 

process of developing the proposed 

regulation. 

This rule 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 proposes to withdraw previous 

approvals of certain SIP revisions 

implementing a Federal standard, and 

proposes disapproval of the same, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. Thus, the requirements of 

section 6 of the Executive Order do not 

apply to this rule. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This proposed rule does 

not have tribal implications, as specified 

in Executive Order 13175. It will not 

have substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

Thus, Executive Order 13175 does not 

apply to this proposed rule. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

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 rule is not subject to 

Executive Order 13045, because it 

proposes to withdraw previous 

approvals of certain SIP revisions 

implementing a federal standard, and 

proposes disapproval of the same. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule is not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (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 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 requires Federal 

agencies to evaluate existing technical 

standards when developing a new 

regulation. To comply with NTTAA, 

EPA must consider and use ‘‘voluntary 

consensus standards’’ (VCS) if available 

and applicable when developing 

programs and policies unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. 

The EPA believes that VCS are 

inapplicable to this proposed action. 

Today’s proposed action does not 

require the public to perform activities 

conducive to the use of VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Population 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 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 or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 


tkelley on DSK3SPTVN1PROD with PROPOSALS
58072 Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Proposed Rules 

1 Ground-level ozone or smog is formed when 

oxides of nitrogen (NOX), volatile organic 

compounds (VOC), and oxygen react in the 

presence of sunlight, generally at elevated 

temperatures. Strategies for reducing smog typically 

require reductions in both VOC and NOX emissions. 

Ozone causes serious health problems by damaging 

lung tissue and sensitizing the lungs to other 

irritants. When inhaled, even at very low levels, 

ozone can cause acute respiratory problems, 

aggravate asthma, temporary decreases in lung 

capacity of 15 to 20 percent in healthy adults, 

inflammation of lung tissue, lead to hospital 

admissions and emergency room visits, and impair 

the body’s immune system defenses, making people 

more susceptible to respiratory illnesses, including 

bronchitis and pneumonia. 

proposed rulemaking. In reviewing SIP 

submissions, EPA’s role is to approve or 

disapprove state choices, based on the 

criteria of the Clean Air Act. 

Accordingly, this action merely 

proposes to withdraw previous 

approvals of certain SIP revisions, and 

proposes disapproval of the same, and 

will not in-and-of itself create any new 

requirements. Accordingly, it does not 

provide EPA with the discretionary 

authority to address, as appropriate, 

disproportionate human health or 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

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

Dated: August 30, 2012. 

Jared Blumenfeld, 

Regional Administrator, EPA Region IX. 

[FR Doc. 2012–22973 Filed 9–18–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0721; FRL–9727–5] 

Finding of Substantial Inadequacy of 

Implementation Plan; Call for 

California State Implementation Plan 

Revision; South Coast 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: In response to a remand by 

the Ninth Circuit Court of Appeals, and 

pursuant to the Clean Air Act, EPA is 

proposing to find that the California 

State Implementation Plan (SIP) for the 

Los Angeles-South Coast Air Basin 

(South Coast) is substantially 

inadequate to comply with the 

obligation to adopt and implement a 

plan providing for attainment of the 1- 

hour ozone standard. If EPA finalizes 

this proposed finding of substantial 

inadequacy, California would be 

required to revise its SIP to correct these 

deficiencies within 12 months of the 

effective date of our final rule. If EPA 

finds that California has failed to submit 

a complete SIP revision as required by 

a final rule or if EPA disapproves such 

a revision, such finding or disapproval 

would trigger clocks for mandatory 

sanctions and an obligation for EPA to 

impose a Federal Implementation Plan. 

EPA is also proposing that if EPA makes 

such a finding or disapproval, sanctions 

would apply consistent with our 

regulations, such that the offset sanction 

would apply 18 months after such 

finding or disapproval and highway 

funding restrictions would apply six 

months later unless EPA first takes 

action to stay the imposition of the 

sanctions or to stop the sanctions clock 

based on the State curing the SIP 

deficiencies. 

DATES: Written comments must be 

received on or before October 19, 2012. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2012–0721, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Email: tax.wienke@epa.gov. 

• Mail or deliver: Wienke Tax, Air 

Planning Office, U.S. Environmental 

Protection Agency, Region 9, Mailcode 

AIR–2, 75 Hawthorne Street, San 

Francisco, California 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 

information claimed to be 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 http:// 

www.regulations.gov or email. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, and 

EPA will not know your identity or 

contact information unless you provide 

it in the body of your comment. If you 

send an email comment directly to EPA, 

your email 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 on 

the http://www.regulations.gov Web site 

and in hard copy at EPA Region IX, 75 

Hawthorne Street, San Francisco, 

California, 94105. 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 at 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 

below. 

FOR FURTHER INFORMATION CONTACT: 

Wienke Tax, Air Planning Office, U.S. 

Environmental Protection Agency, 

Region 9, Mail Code AIR–2, 75 

Hawthorne Street, San Francisco, 

California 94105–3901, 415–947–4192, 

tax.wienke@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

A. Regulatory Context 

B. South Coast Ozone Designations and 

Classifications and Related SIP Revisions 

C. Litigation on EPA’s Final Action on 

2003 South Coast 1-Hour Ozone SIP 

D. Determination of South Coast’s Failure 

to Attain 1-Hour Ozone Standard 

II. Rationale for Proposed SIP Call 

III. Consequences of Proposed SIP Call 

IV. Proposed Action and Request for Public 

Comment 

V. Statutory and Executive Order Reviews 

I. Background 

A. Regulatory Context 

The Clean Air Act (CAA or Act) 

requires EPA to establish national 

ambient air quality standards (NAAQS 

or ‘‘standards’’) for certain widespread 

pollutants that cause or contribute to air 

pollution that is reasonably anticipated 

to endanger public health or welfare 

(see sections 108 and 109 of the CAA). 

In 1979, under section 109 of the 

CAA, EPA established a primary healthbased NAAQS for ozone 1 at 0.12 parts 

per million (ppm) averaged over a 1- 

hour period. See 44 FR 8202 (February 

8, 1979). The Act, as amended in 1990, 

required EPA to designate as 

nonattainment any area that had been 

designated as nonattainment before the 

1990 Amendments [section 107(d)(1)(C) 

of the Act; 56 FR 56694; (November 6, 

1991)]. The Act further classified these 

areas, based on the severity of their 


tkelley on DSK3SPTVN1PROD with PROPOSALS