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[Federal Register Volume 81, Number 92 (Thursday, May 12, 2016)]
[Rules and Regulations]
[Pages 29498-29501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11125]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2013-0534; FRL-9946-29-Region 9]

Withdrawal of Approval and Disapproval of Air Quality 
Implementation Plans; California; San Joaquin Valley; Contingency 
Measures for the 1997 PM2.5 Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is withdrawing a May 
22, 2014 final action approving a state implementation plan (SIP) 
revision submitted by the State of California under the Clean Air Act 
(CAA) to address contingency measure requirements for the 1997 annual 
and 24-hour national ambient air quality standards (NAAQS) for fine 
particulate matter (PM2.5) in the San Joaquin Valley. 
Simultaneously, EPA is disapproving this SIP submission. These final 
actions are in response to a decision issued by the U.S. Court of 
Appeals for the Ninth

[[Page 29499]]

Circuit (Committee for a Better Arvin v. EPA, 786 F.3d 1169 (9th Cir. 
2015)) remanding EPA's approval of a related SIP submission and 
rejecting EPA's rationale for approving plan submissions that rely on 
California mobile source control measures to meet SIP requirements such 
as contingency measures, which was a necessary basis for the May 22, 
2014 final rule. Finally, EPA is issuing a protective finding for 
transportation conformity determinations for the disapproval.

DATES: This rule is effective June 13, 2016.

ADDRESSES: The EPA has established docket number EPA-R09-OAR-2013-0534 
for this action. Generally, documents in the docket for this action are 
available electronically at http://www.regulations.gov or in hard copy 
at EPA Region IX, 75 Hawthorne Street, San Francisco, California 94015-
3901. While all documents in the docket are listed at http://www.regulations.gov, some information may be publicly available only at 
the hard copy location (e.g., copyrighted material, large maps), 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: Doris Lo, EPA Region IX, (415) 972-
3959, lo.doris@epa.gov.

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

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On August 17, 2015, EPA proposed to withdraw its May 22, 2014 final 
action approving California's July 3, 2013 submission to address 
contingency measure requirements for the 1997 annual and 24-hour 
PM2.5 NAAQS in the San Joaquin Valley (2013 Contingency 
Measure Submittal).\1\ Simultaneously, EPA proposed to disapprove this 
SIP submission. These proposed actions were in response to a decision 
issued by the U.S. Court of Appeals for the Ninth Circuit remanding 
EPA's approval of a related SIP submission and rejecting EPA's 
rationale for approving SIP submissions that rely on California mobile 
source control measures not actually part of the EPA-approved SIP in 
order to meet SIP requirements (Committee for a Better Arvin v. EPA, 
786 F.3d 1169 (9th Cir. 2015)), which was a necessary basis for the May 
22, 2014 final rule. EPA's May 22, 2014, approval of the 2013 
Contingency Measure Submittal likewise relied on the same California 
mobile source control measures.
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    \1\ 80 FR 49190 (August 17, 2015).
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    EPA proposed to determine that the disapproval of the 2013 
Contingency Measure Submittal would not start a mandatory sanctions 
clock or Federal implementation plan (FIP) clock because the specific 
type of contingency measure at issue in that submittal was no longer a 
required attainment plan element for the San Joaquin Valley (SJV) area. 
The California Air Resources Board (CARB) had submitted the 2013 
Contingency Measure Submittal to address the contingency measure 
requirement in CAA section 172(c)(9) as applied to the 2008 
PM2.5 Plan, which provided for attainment of the 1997 
PM2.5 NAAQS in the SJV by April 5, 2015, the latest 
permissible attainment date for this area under subpart 1 of part D, 
title I of the Act. EPA stated in the proposed rule that, as a 
consequence of EPA's March 27, 2015 reclassification of the SJV area 
from ``Moderate'' to ``Serious'' nonattainment for the 1997 
PM2.5 NAAQS, the specific requirement for contingency 
measures for failure to attain as a Moderate area plan requirement had 
been eliminated and superseded by different planning obligations under 
subpart 4 of part D, title I of the Act.\2\ Because the State had 
submitted the 2013 Contingency Measure Submittal to address a 
contingency measure requirement for failure to attain by a statutory 
attainment date that no longer applied to the area (April 5, 2015), EPA 
proposed to find that this SIP submittal no longer addressed an 
applicable requirement of part D, title I of the Act, and that the 
disapproval of it therefore would not trigger sanctions. For the same 
reason, EPA proposed to find that disapproval of the submission would 
not create any deficiency in a mandatory component of the SIP for the 
area and, therefore, would not trigger the obligation on EPA to 
promulgate a FIP under section 110(c) of the Act.\3\
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    \2\ Id. at 49192.
    \3\ Id.
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II. Public Comments and EPA Responses

    EPA received one comment on the proposed action, submitted by 
Earthjustice. EPA summarizes and responds to the comment below.
    Comment: Earthjustice argues that EPA has no legal basis for 
proposing to determine that the disapproval of the 2013 Contingency 
Measure Submittal would not start a mandatory sanctions clock or FIP 
clock. According to Earthjustice, section 179(a)(2) of the Clean Air 
Act provides that sanctions ``shall apply'' if EPA disapproves a 
submission based on its failure to meet one or more CAA requirements 
applicable to nonattainment areas, and section 110(c) provides that EPA 
``shall promulgate a Federal implementation plan at any time within 2 
years after [EPA] . . . disapproves a State implementation plan in 
whole or in part . . . .'' Earthjustice asserts that contingency 
measures under CAA section 172(c)(9) are required elements for all 
attainment plans for nonattainment areas and must provide for the 
implementation of specific measures that will be undertaken if the area 
fails to attain, regardless of the applicable attainment date. Although 
EPA has some flexibility to establish a schedule for submitting a plan 
meeting the requirements of section 172(c), according to Earthjustice, 
that schedule may not be extended beyond three years from the date of 
the nonattainment designation, a date that has passed for the San 
Joaquin Valley. Earthjustice argues that the contingency measure 
requirement was not a ``Moderate area'' requirement and is not reset or 
eliminated with reclassification under subpart 4, and that although 
reclassification as a ``Serious area'' may affect the tonnage of 
reductions that must be achieved, it does not eliminate the section 
172(c)(9) requirement that the District was required to meet years ago. 
For all of these reasons, Earthjustice argues that the disapproval of 
this submittal triggers a sanctions clock under CAA section 179 and a 
FIP clock under section 110(c).
    Response: Upon further consideration of these issues, EPA agrees 
with the commenter that the disapproval of the 2013 Contingency Measure 
Submittal triggers a mandatory sanctions clock under CAA section 179 
and a FIP clock under section 110(c).
    Section 179(a) of the Act provides that, for any SIP revision 
required under part D of title I of the Act or required in response to 
a finding of substantial inadequacy as described in section 110(k), if 
EPA disapproves a submission for a nonattainment area based on the 
state's failure to meet one or more of the CAA requirements applicable 
to the area, mandatory sanctions under section 179(b) shall apply. The 
2013 Contingency Measure Submittal was a plan revision required under 
part D of

[[Page 29500]]

title I of the Act for the purposes of implementing the 1997 
PM2.5 NAAQS in the SJV PM2.5 nonattainment area. 
As explained in the proposed action, EPA is disapproving the 2013 
Contingency Measure Submittal based on the failure to meet the 
contingency measure requirement in CAA section 172(c)(9) for the area--
i.e., because of the reliance on California waiver measures that EPA 
has not approved into the California SIP. This disapproval triggers a 
mandatory sanctions clock under section 179.
    Section 110(c) of the Act states that EPA ``shall promulgate a 
Federal implementation plan at any time within 2 years after the 
Administrator--. . . (B) disapproves a State implementation plan 
submission in whole or in part,'' unless the State corrects the 
deficiency and EPA approves the plan or plan revision before 
promulgating such FIP. As a consequence of our disapproval of the 2013 
Contingency Measure Submittal, the California SIP does not contain any 
contingency measures to be triggered if the SJV area fails to attain 
the 1997 PM2.5 NAAQS by the Serious area attainment date, 
which is currently December 31, 2015. Because this disapproval creates 
a deficiency in the SIP, the disapproval triggers the obligation on EPA 
to promulgate a FIP under section 110(c), unless the State submits and 
EPA approves a SIP revision correcting the deficiency within two years 
of the disapproval.
    As explained in the proposed action, contingency measures for 
failure to attain by the Moderate area attainment date are no longer 
required in the SJV as the requirement for such measures has been 
superseded by the requirement for contingency measures as part of a 
Serious area plan for the 1997 PM2.5 NAAQS in this area.\4\ 
Thus, the State is no longer required to adopt contingency measures for 
failure to attain by April 5, 2015. Because the SJV area is currently 
classified as a Serious nonattainment area for the 1997 
PM2.5 NAAQS, however, the State must satisfy the contingency 
measure requirement in section 172(c)(9) as applied to a Serious area 
attainment plan to provide for attainment of the 1997 PM2.5 
NAAQS in the SJV no later than the applicable attainment date, which is 
currently December 31, 2015.
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    \4\ Id. at 49192 (August 17, 2015).
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    California submitted a Serious area plan for the 1997 
PM2.5 NAAQS in the SJV on June 25, 2015, together with 
requests for extension of the Serious area attainment date under CAA 
section 188(e) to December 31, 2018 and December 31, 2020 for the 1997 
24-hour and annual standards, respectively, and EPA has proposed to 
grant these requests for extension of the attainment date.\5\ If EPA 
takes final action to extend the Serious area attainment date for the 
1997 PM2.5 NAAQS in the SJV, the State will be obligated to 
adopt and submit contingency measures to be implemented if the SJV area 
fails to make reasonable further progress or to attain the 1997 
PM2.5 NAAQS by the extended attainment date(s) approved by 
EPA in that action. We encourage the State and District to consult with 
EPA during their development of a corrective SIP submission to ensure 
that it fully satisfies the section 172(c)(9) contingency measure 
requirement for the 1997 PM2.5 NAAQS in the SJV area and 
thereby corrects the current deficiency in the SIP.
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    \5\ 81 FR 6936 at 6938 (February 9, 2016).
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III. Final Action

    EPA is withdrawing its May 22, 2014 final action approving the 2013 
Contingency Measure Submittal. Simultaneously, under section 110(k)(3) 
of the Act, EPA is disapproving this SIP submission for failure to 
satisfy the requirements of CAA section 172(c)(9).
    Under section 179(a) of the CAA, a final disapproval of a submittal 
that addresses a requirement of part D of title I of the CAA or is 
required in response to a finding of substantial inadequacy as 
described in CAA section 110(k)(5) (SIP Call), triggers a sanction 
clock under CAA section 179(b) that runs from the effective date of the 
final action. The first sanction, the offset sanction in CAA section 
179(b)(2), will apply in the SJV PM2.5 nonattainment area 18 
months after June 13, 2016. The second sanction, highway funding 
sanctions in CAA section 179(b)(1), will apply in the area six months 
after the offset sanction is imposed. Neither sanction will be imposed 
under the CAA if California submits and we approve, prior to the 
implementation of the sanctions, a SIP submission that corrects the 
deficiencies identified in this final action.
    In addition to the sanctions, CAA section 110(c)(1) provides that 
EPA must promulgate a federal implementation plan (FIP) addressing the 
deficiency at any time within two years after June 13, 2016, the 
effective date of this rule, unless the state makes a SIP submission to 
correct the deficiency and EPA approves such submission before 
promulgating a FIP.
    Because we previously approved the RFP and attainment 
demonstrations and the motor vehicle emissions budgets,\6\ we are 
issuing a protective finding under 40 CFR 93.120(a)(3) to the 
disapproval of the contingency measures. Without a protective finding, 
the final disapproval would result in a conformity freeze, under which 
only projects in the first four years of the most recent conforming 
Regional Transportation Plan and Transportation Improvement Programs 
can proceed. During a freeze, no new RTPs, TIPs or RTP/TIP amendments 
can be found to conform.\7\ Under this protective finding, the final 
disapproval of the contingency measures does not result in a 
transportation conformity freeze in the San Joaquin Valley 
PM2.5 nonattainment area.
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    \6\ 76 FR 69896 (November 9, 2011).
    \7\ 40 CFR 93.120(a)(2).
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IV. Statutory and Executive Order Reviews

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

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA, because this SIP disapproval does not in-and-of itself create 
any new information collection burdens, but simply disapproves certain 
State requirements for inclusion in the SIP.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. This SIP 
disapproval does not in-and-of itself create any new requirements but 
simply disapproves certain State requirements for inclusion in the SIP.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action disapproves pre-existing requirements 
under State or local law, and imposes no new requirements. Accordingly, 
no additional costs to State, local, or tribal

[[Page 29501]]

governments, or to the private sector, result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because the SIP revision that the EPA is 
disapproving 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 will not impose substantial direct costs on 
tribal governments or preempt tribal law. Thus, Executive Order 13175 
does not apply to this action.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because this SIP disapproval does not in-and-of 
itself create any new regulations, but simply disapproves certain State 
requirements for inclusion in the SIP.

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

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. The EPA 
believes that this action is not subject to the requirements of section 
12(d) of the 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

    The EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 11, 2016. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Sulfur oxides.

    Dated: April 29, 2016.
Jared Blumenfeld,
Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by adding paragraph (c)(438)(ii)(C) to 
read as follows:

Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (438) * * *
    (ii) * * *
    (C) Previously approved in paragraphs (c)(438)(ii)(A)(1), 
(c)(438)(ii)(A)(2), (c)(438)(ii)(A)(3), and (c)(438)(ii)(B)(1) of this 
section and now deleted without replacement: ``Quantifying Contingency 
Reductions for the 2008 PM2.5 Plan'' (dated June 20, 2013), 
SJVUAPCD Governing Board Resolution No. 13-6-18 (dated June 20, 2013), 
Electronic mail (dated July 24, 2013) from Samir Sheikh to Kerry Drake, 
and California Air Resources Board Executive Order 13-30 (dated June 
27, 2013).
* * * * *

0
3. Section 52.237 is amended by adding paragraph (a)(8) to read as 
follows:

Sec.  52.237  Part D disapproval.

    (a) * * *
    (8) The contingency measure portion of the 2008 PM2.5 
Plan for attainment of the 1997 PM2.5 standards in the San 
Joaquin Valley (June 2013).

[FR Doc. 2016-11125 Filed 5-11-16; 8:45 am]
 BILLING CODE 6560-50-P
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