Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations 889 

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 CAA; and 

• Does not provide EPA with the 

discretionary authority to address 

disproportionate human health or 

environmental effects with practical, 

appropriate, and legally permissible 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this final action does not 

have tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP 

obligations discussed herein do not 

apply to Indian Tribes, and thus this 

action will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by March 8, 2013. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Particulate matter, Nitrogen 

oxides, Sulfur oxides, Reporting and 

recordkeeping requirements. 

Dated: December 18, 2012. 

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 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart D—Arizona 

■ 2. Section 52.131 is added to read as 

follows: 

§ 52.131 Control Strategy and regulations: 

Fine Particle Matter. 

(a) Determination of Attainment: 

Effective February 6, 2013, EPA has 

determined that, based on 2009 to 2011 

ambient air quality data, the Nogales 

PM2.5 nonattainment area has attained 

the 2006 24-hour PM2.5 NAAQS. This 

determination suspends the 

requirements for this area to submit an 

attainment demonstration, associated 

reasonably available control measures, a 

reasonable further progress plan, 

contingency measures, and other 

planning SIPs related to attainment for 

as long as this area continues to attain 

the 2006 24-hour PM2.5 NAAQS. If EPA 

determines, after notice-and-comment 

rulemaking, that this area no longer 

meets the 2006 PM2.5 NAAQS, the 

corresponding determination of 

attainment for that area shall be 

withdrawn. 

(b) [Reserved] 

[FR Doc. 2012–31639 Filed 1–4–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0721; FRL–9767–3] 

Finding of Substantial Inadequacy of 

Implementation Plan; Call for 

California State Implementation Plan 

Revision; South Coast 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: In response to a remand by 

the United States Court of Appeals for 

the Ninth Circuit, and pursuant to the 

Clean Air Act, EPA is taking final action 

to find that the California State 

Implementation Plan (SIP) for the Los 

Angeles-South Coast Air Basin is 

substantially inadequate to comply with 

the obligation to adopt and implement 

a plan providing for attainment of the 1- 

hour ozone standard. In response to this 

finding, California is required to submit 

a SIP revision correcting this deficiency 

within 12 months of the effective date 

of this rule. If EPA finds that California 

has failed to submit a complete SIP 

revision as required by this 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 taking final action establishing the 

order in which mandatory sanctions 

would apply in the event that EPA 

makes a finding of failure to submit a 

SIP revision or disapproves the SIP 

revision. Specifically, the offset sanction 

would apply 18 months after such 

finding or disapproval and highway 

funding restrictions would apply six 

months later. Sanctions would not 

apply if EPA first takes action to stay the 

imposition of the sanctions or to stop 

the sanctions clock based on a 

preliminary or final determination that 

the State has corrected the SIP 

deficiencies. 

DATES: This rule is effective on February 

6, 2013. 

ADDRESSES: EPA has established docket 

EPA–R09–OAR–2012–0721 for this 

action. The index to the docket for this 

action is available electronically at 

http://www.regulations.gov and in hard 

copy at EPA Region IX, 75 Hawthorne 

Street, San Francisco, California, 94105– 

3901. 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. 

FOR FURTHER INFORMATION CONTACT: 

Wienke Tax, Air Planning Office, U.S. 

Environmental Protection Agency, 

Region 9, Mailcode AIR–2, 75 

Hawthorne Street, San Francisco, 

California 94105–3901, 415–947–4192, 

tax.wienke@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

or ‘‘our’’ refer to EPA. 

Table of Contents 

I. Summary of Proposed Action 


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1The 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). 

2Section 110(k)(5) provides, in relevant part, that: 

‘‘Whenever [EPA] finds that the [SIP] for any area 

is substantially inadequate to attain or maintain the 

relevant [NAAQS], * * *, or to otherwise comply 

with any requirement of this chapter, [EPA] shall 

require the State to revise the plan as necessary to 

correct such inadequacies.’’ 

3Our finding of substantial inadequacy under 

CAA section 110(k)(5) for failure to ‘‘adopt and 

implement’’ a 1-hour ozone attainment 

demonstration is not intended as a finding of 

nonimplementation under CAA section 179(a)(4). 

4Under CAA section 182(c)(2)(A), the State must 

submit a revision to the SIP that includes a 

demonstration that the plan, as revised, will 

provide for attainment of the ozone NAAQS. The 

attainment demonstration must be based on 

photochemical grid modeling or any other 

analytical method determined by EPA to be at least 

as effective. Section 182(c)(2)(A) applies within 

ozone nonattainment areas classified as ‘‘serious,’’ 

but as a general matter, areas classified as 

‘‘extreme’’ for the ozone nonattainment area, such 

as the South Coast, are subject to the requirements 

for lower-classified areas, such as those for 

‘‘serious’’ areas, as well as those prescribed 

specifically for ‘‘extreme’’ areas. 

5EPA’s final action challenged in the AIR v. EPA 

case was published at 74 FR 10176 (March 10, 

2009). 

II. Response to Public Comments 

III. Final Action and Consequences 

IV. Statutory and Executive Order Reviews 

I. Summary of Proposed Action 

On September 19, 2012 (77 FR 58072), 

EPA proposed to find that the California 

SIP for the Los Angeles-South Coast Air 

Basin (South Coast) 1 is substantially 

inadequate to comply with the 

obligation to adopt and implement a 

plan providing for attainment of the 1- 

hour ozone national ambient air quality 

standard (NAAQS or ‘‘standard’’). EPA 

proposed this finding pursuant to the 

‘‘SIP call’’ authority found in section 

110(k)(5) of the Clean Air Act (CAA or 

‘‘Act’’).2 In our proposed rule, we 

explained that States remain obligated 

to adopt and implement an attainment 

demonstration plan for the 1-hour ozone 

standard, notwithstanding the 

revocation of the standard in 2005, 

under EPA’s ‘‘anti-backsliding’’ 

regulations governing the transition 

from the 1-hour ozone standard to the 

1997 8-hour ozone standard.3 See 40 

CFR 51.905(a)(1)(i). 

EPA also proposed to require 

California to submit a revision to its SIP 

correcting these deficiencies by a date 

no later than 12 months after the 

effective date of a final rule finding the 

current SIP inadequate. The SIP revision 

must meet the requirements of CAA 

section 182(c)(2)(A) 4 and demonstrate 

attainment of the 1-hour ozone standard 

as expeditiously as practicable but no 

later than five years from the effective 

date of a final SIP call unless the State 

can justify a later date, not to exceed 10 

years beyond the effective date of the 

final SIP call. In considering whether a 

period longer than five years is 

warranted, EPA must consider the 

severity of the remaining nonattainment 

problem in the South Coast and the 

availability and feasibility of pollution 

control measures. See section 172(a)(2). 

We noted that if EPA were to find that 

California has failed to submit a 

complete SIP revision or if EPA 

disapproves such revision, such finding 

or disapproval would trigger clocks for 

mandatory sanctions and an obligation 

for EPA to impose a Federal 

Implementation Plan (FIP). EPA 

proposed that if EPA makes such a 

finding or disapproval, the offset 

sanction would apply 18 months after 

such finding or disapproval and 

highway funding restrictions would 

apply six months later. Sanctions would 

apply unless EPA first takes action to 

stay the imposition of the sanctions or 

to stop the sanctions clock based on a 

preliminary or final determination that 

the State has cured the SIP deficiencies. 

EPA proposed this action in response 

to a decision by the United States Court 

of Appeals for the Ninth Circuit (Ninth 

Circuit or Court) in a lawsuit 

challenging EPA’s partial approval and 

partial disapproval of the 2003 South 

Coast 1-Hour Ozone SIP.5 See 

Association of Irritated Residents v. 

EPA, 632 F.3d 584 (9th Cir. 2011), 

reprinted as amended on January 27, 

2012, 686 F.3d 668, further amended 

February 13, 2012 (‘‘AIR v. EPA’’). 

The 2003 South Coast 1-Hour Ozone 

SIP was intended by California to 

update the attainment demonstration for 

the 1-hour ozone standard for the South 

Coast contained in the 1997/1999 South 

Coast 1-Hour Ozone SIP that EPA 

approved in 2000. Among other issues, 

the petitioners in the AIR v. EPA case 

challenged EPA’s conclusion that the 

Agency’s disapproval of the updated 

attainment demonstration for the 1-hour 

ozone standard in the 2003 South Coast 

1-Hour Ozone SIP did not obligate the 

Agency to promulgate a FIP because the 

plan that was disapproved was not 

required to be submitted given that the 

SIP contained a fully-approved 1-hour 

ozone attainment demonstration for the 

South Coast (i.e., the 1997/1999 South 

Coast 1-Hour Ozone SIP). 

The court disagreed with EPA, and 

held that EPA must promulgate a FIP 

under CAA section 110(c) or issue a SIP 

call where EPA disapproves a new 

attainment demonstration unless the 

Agency determines that the SIP as 

approved remains sufficient to 

demonstrate attainment of the NAAQS. 

In response, EPA reviewed the 1997/ 

1999 South Coast 1-Hour Ozone SIP to 

determine whether it remained 

sufficient to demonstrate attainment of 

the 1-hour ozone standard 

notwithstanding the disapproval of the 

updated 1-hour ozone attainment 

demonstration in the 2003 South Coast 

1-Hour Ozone SIP and determined that 

the SIP was substantially inadequate to 

comply with the obligation under EPA’s 

anti-backsliding regulations to adopt 

and implement a 1-hour ozone 

attainment demonstration. In the 

September 19, 2012 proposed rule, EPA 

proposed this finding of substantial 

inadequacy based on the following 

considerations: 

• Documentation included in the 

2003 South Coast 1-Hour Ozone SIP 

showing that motor vehicle emissions 

were significantly underestimated in the 

1997/1999 South Coast 1-Hour Ozone 

SIP; that the carrying capacity 

associated with attainment of the 1-hour 

ozone standard was significantly lower 

than projected for the 1997/1999 South 

Coast 1-Hour Ozone SIP; and that, as a 

result, additional emissions reductions 

would be necessary to attain the 1-hour 

ozone standard by the applicable 

attainment date (November 15, 2010) 

beyond those incorporated in the 1997/ 

1999 South Coast 1-Hour Ozone SIP; 

• EPA’s ‘‘anti-backsliding’’ 

requirements promulgated in 2004 

governing the transition from the 1-hour 

ozone standard to the 1997 8-hour 

ozone standard and requiring a state to 

adopt and implement an attainment 

demonstration for the 1-hour ozone 

standard (40 CFR 51.905(a)(1)(i)) 

notwithstanding the revocation of the 1- 

hour ozone standard in areas designated 

as nonattainment for the 1997 8-hour 

ozone standard; and 

• EPA’s final determination at 76 FR 

82133 (December 30, 2011) that the 

South Coast area failed to attain the 1- 

hour ozone standard by the applicable 

attainment date (November 15, 2010). 

See the proposed rule at 77 FR 58072, 

at 58074–58075 (September 19, 2012). 

For more information about the 1- 

hour and 8-hour ozone standards, the 

designations and classifications for the 

South Coast, the various South Coast 

SIP revisions submitted in response to 

CAA nonattainment area requirements, 

the litigation over EPA’s action on the 

2003 South Coast 1-Hour Ozone SIP, 

and the rationale behind the proposed 

12-month deadline and sequence of 

mandatory sanctions, please see our 

September 19, 2012 proposed rule. 


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6Under 40 CFR 49.4(a), Tribes will not treated as 

States with respect to specific plan submittal and 

implementation deadlines for NAAQS-related 

requirements, such as the deadline established in 

today’s final SIP call. 

7Section 182(e)(5) states, in part: ‘‘[EPA] may, 

* * *, approve provisions of an implementation 

plan for an Extreme Area which anticipate 

development of new control techniques or 

improvement of existing control technologies, and 

an attainment demonstration based on such 

provisions, if the State demonstrates to the 

satisfaction of the [EPA] that (A) such provisions 

are not necessary to achieve the incremental 

emission reductions required during the first 10 

years after November 15, 1990; and (B) the State has 

submitted enforceable commitments to develop and 

adopt contingency measures to be implemented as 

set forth herein if the anticipated technologies do 

not achieve planned reductions.’’ Provisions in a 

SIP that rely on section 182(e)(5) are commonly 

referred to as ‘‘black box’’ or ‘‘new technology’’ 

provisions. 

II. Response to Public Comments 

As stated above, on September 19, 

2012, EPA proposed to find that the 

California SIP was substantially 

inadequate to comply with the 

obligation to adopt and implement a 

plan providing for attainment of the 1- 

hour ozone standard (see 77 FR 58072), 

and held a 30-day comment period 

which ended on October 19, 2012. On 

October 16, 2012, we received two 

requests to extend the comment period. 

On October 25, 2012, we published a 

Federal Register notice reopening the 

comment period for 14 days (see 77 FR 

65151). This comment period ended on 

November 8, 2012. 

In response to the proposed rule, we 

received 11 comment letters that we 

have grouped into five categories. We 

received comments from: 

• Pechanga Indian ReservationTemecula Band of Luiseno Mission 

Indians (‘‘Pechanga Tribe’’); 

• South Coast Air Quality 

Management District (SCAQMD), and 

the State of California Air Resources 

Board (CARB) (‘‘government agencies’’); 

• Coalition for Clean Air, 

Communities for a Better Environment, 

Natural Resources Defense Council; and 

Physicians for Social Responsibility— 

Los Angeles, (‘‘environmental and 

community groups’’); 

• American Chemistry Council, 

American Coatings Association, 

Consumer Specialty Products 

Association, International Fragrance 

Association, National Aerosol 

Association, and Personal Care Products 

Council (‘‘industry groups’’); and 

• A private citizen. 

None of the commenters challenged 

the proposed finding of substantial 

inadequacy, the proposed one-year 

deadline for submittal of a new 1-hour 

ozone attainment plan, the proposed 

sequence for application of mandatory 

sanctions in the event of failure by 

California to meet the deadline, or the 

proposed application of the provisions 

in 40 CFR 52.31 regarding staying the 

sanctions clock and deferring the 

imposition of sanctions. Instead, the 

comments relate to the contents of a 

future 1-hour ozone attainment 

demonstration for the South Coast and 

the potential impacts of the SIP call on 

Indian tribes in the region. Below, we 

set forth a summary of the comments 

and EPA’s responses. 

Pechanga Tribe 

Comment 1: In its comment letter, the 

Pechanga Tribe requested an 

opportunity to consult on a government 

to government basis with EPA Region IX 

regarding the potential impacts of this 

proposed action on federally recognized 

tribes located in the region. 

Response 1: On November 28, 2012, 

EPA Region IX staff met with members 

and representatives of the Pechanga 

Tribe and explained that, as stated in 

the proposed rule, EPA foresaw no 

direct impact to the Tribe due to a SIP 

call for a new South Coast 1-hour ozone 

attainment demonstration plan. EPA 

acknowledged that a portion of 

Pechanga Indian country lies within the 

South Coast 1-hour ozone ‘‘extreme’’ 

nonattainment area, but indicated that, 

under the ‘‘Tribal Authority Rule’’ (40 

CFR part 49), tribes are not subject to 

SIP submittal deadlines. See 40 CFR 

49.4(a).6 Moreover, under 40 CFR 

49.4(c), Tribes will also not be treated as 

States with respect to the mandatory 

imposition of sanctions under section 

179 of the Act because of a failure to 

submit an implementation plan or 

required plan element by a specific 

deadline, or the submittal of an 

incomplete or disapproved plan or 

element. Thus, the Tribes in the South 

Coast will not be subject to the deadline 

that we are setting today for the State of 

California for submittal of a new 1-hour 

ozone attainment demonstration for the 

South Coast, and the Tribes will not be 

subject to mandatory sanctions in the 

event that sanctions are imposed as a 

consequence of failure to submit or 

disapproval of the submitted SIP 

revision. 

Government Agencies 

Comment 2: In response to the 

attainment date that would be 

established under the proposed SIP call 

(i.e. as expeditiously as practicable but 

no later than five years unless the State 

can justify a later date, not to exceed 10 

years), SCAQMD indicates that it and 

CARB intend to request and justify that 

the full ten years are needed for the 

attainment demonstration. 

Response 2: This comment is not 

relevant for purposes of the current rule 

as it concerns the potential contents of 

a future SIP submittal from the State. 

Consistent with the requirement of CAA 

section 172(a)(2)(A), EPA would 

consider the severity of nonattainment 

and the availability and feasibility of 

pollution control measures in 

determining whether to approve any 

future submitted plan with an 

attainment date that is later than five 

years from the effective date of this final 

rule. 

Comment 3: SCAQMD asserts that the 

new technology provisions of CAA 

section 182(e)(5) are available for the 

purposes of the new 1-hour ozone 

attainment demonstration plan for the 

South Coast so long as the reductions to 

be obtained from them are not needed 

for the first ten years after November 15, 

1990, i.e. through November 15, 2000, 

citing CAA section 182(e)(5). While the 

SCAQMD asserts that the plain language 

of section 182(e)(5) settles any question 

as to whether that provision applies to 

a new 1-hour ozone attainment 

demonstration plan for the ‘‘extreme’’ 

South Coast nonattainment area, it also 

asserts that there is no policy reason to 

interpret the statute to preclude reliance 

on section 182(e)(5) even if the language 

were ambiguous. CARB’s comment 

letter expressed agreement and support 

for comments provided by SCAQMD on 

the availability of CAA section 182(e)(5) 

new technology provisions for the new 

South Coast 1-hour ozone attainment 

demonstration plan. 

Response 3: We did not explicitly 

address section 182(e)(5) 7 in our 

proposed SIP call because its 

availability or lack of availability is not 

directly relevant to the issue of our 

finding of substantial inadequacy of the 

California SIP for the South Coast with 

respect to the 1-hour ozone standard, or 

the issues of submittal or attainment 

dates. Thus, this comment is not 

relevant for purposes of the current rule 

as it concerns the potential contents of 

a future SIP submittal from the State. 

We will consider the approvability of 

the future South Coast 1-hour ozone 

attainment demonstration, including the 

control strategy on which it relies, once 

the plan is submitted, in the context of 

a subsequent rulemaking on the 

submitted plan. 

Environmental and Community Groups 

Comment 4: Citing the long period of 

nonattainment and the health effects of 

ozone at levels even below the 1-hour 

ozone standard, environmental and 

community groups request that the final 


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rule include more details about the need 

for a 1-hour ozone plan in the South 

Coast. 

Response 4: EPA believes that the 

Agency provided sufficient support for 

its finding of substantial inadequacy 

and related SIP call. The rationale for 

the proposed finding and SIP call is set 

forth at 77 FR, 58072, 58074–58075. In 

short, in response to a remand by the 

Ninth Circuit in the AIR v. EPA case, we 

proposed to find the approved 1997/ 

1999 South Coast 1-Hour Ozone SIP is 

substantially inadequate to provide for 

attainment of the 1-hour ozone standard 

and is therefore substantially inadequate 

to comply with EPA’s ‘‘antibacksliding’’ requirement at 40 CFR 

51.905(a)(1)(i) to adopt and implement 

such a plan for the South Coast. We 

based this determination on a review of 

the technical information and updated 

control measure strategy contained in 

the 2003 South Coast SIP and also 

considered our determination in 

December 2011 that the South Coast had 

failed to attain the applicable attainment 

date (2010) for the 1-hour ozone 

standard. Today, we are taking final 

action to find that the California SIP is 

substantially inadequate and to issue 

the SIP call for a new 1-hour ozone 

attainment demonstration plan for the 

South Coast on the basis of the rationale 

set forth in the proposed rule. 

Comment 5: The environmental and 

community groups believe that EPA 

should clearly state that the future 1- 

hour ozone attainment demonstration 

plan cannot rely on the new technology 

provisions of section 182(e)(5) (i.e., the 

‘‘black box’’). The groups contend that 

the text of the CAA demonstrates that 

the black box was not intended to be 

used past the attainment date. In 

support for this contention, the groups 

note that, under section 182(e)(5), there 

can be no contingency measures that are 

‘‘adequate to produce emissions 

reductions sufficient, * * * to achieve 

the periodic emissions reductions * * * 

and attainment by the applicable dates’’ 

where, as is the case for South Coast, the 

attainment date (2010) has passed. 

Response 5: In issuing a SIP call, CAA 

section 110(k)(5) directs EPA to the 

extent that EPA deems appropriate to 

subject the State to the requirements of 

this chapter to which the State was 

subject when it developed and 

submitted the plan for which such 

finding was made, except that the EPA 

may adjust any dates applicable under 

such requirements as appropriate 

(except that the EPA may not adjust any 

attainment date prescribed under part D 

of this subchapter, unless such date has 

elapsed.) In this case, the prescribed 

attainment date (2010) under part D of 

the title I of the CAA for extreme 1-hour 

ozone nonattainment areas, such as the 

South Coast, has passed, and thus, CAA 

section 110(k)(5) authorizes EPA to 

establish a new attainment date for the 

purposes of the new South Coast 1-hour 

ozone attainment demonstration plan. 

With respect to black box provisions, 

as noted in response to comment #3, we 

did not explicitly address section 

182(e)(5) in our proposed SIP call 

because its availability or lack of 

availability is not directly relevant to 

the issue of our finding of substantial 

inadequacy of the California SIP for the 

South Coast with respect to the 1-hour 

ozone standard, or the issues of 

submittal or attainment dates. Thus, this 

comment is not relevant for purposes of 

the current rule as it concerns the 

potential contents of a future SIP 

submittal from the State. We will 

consider the approvability of the future 

South Coast 1-hour ozone attainment 

demonstration, including the control 

strategy on which it relies, once the plan 

is submitted, in the context of a 

subsequent rulemaking on the 

submitted plan. 

Comment 6: The environmental and 

community groups assert that the new 

requirements that must be fulfilled by 

SIPs in 1-hour ozone areas that fail to 

attain by the statutory deadline are 

provided in section 179(d). They further 

assert that the failure to attain does not 

allow areas to start all over again under 

section 182 and that the new plan 

should be governed by sections 110 and 

172, neither of which provide for a 

black box. Moreover, they contend that 

the attainment deadline for these areas 

is governed by section 179(d)(3). 

Response 6: We disagree that the new 

requirements for the new 1-hour 

attainment demonstration are governed 

by the provisions of section 179(d). The 

provisions of section 179(d) are 

triggered by a finding of failure to attain 

the standard under section 179(c), but 

under our anti-backsliding regulations 

governing the transition from the 1-hour 

ozone standard to the 8-hour ozone 

standard, we are no longer obligated to 

determine pursuant to section 179(c) 

whether an area attained the 1-hour 

ozone standard by the applicable 

attainment date for the 1-hour ozone 

standard. See 40 CFR 51.905(e)(2). In 

our 2011 determination that the South 

Coast failed to attain the applicable 

attainment date (2010) for the 1-hour 

ozone standard, we relied on section 

301(a) and the relevant portion of 

section 181(b)(2) for the purpose of 

ensuring implementation of 1-hour 

ozone anti-backsliding requirements, 

such as contingency measures and 

section 185 major stationary source fee 

programs. See 76 FR 82133, at 82145 

(December 30, 2011). We did not make 

the determination of failure to attain 

under section 179(c) and thus the 

provisions of section 179(d) do not 

apply. 

As to the applicability of subpart 2 

requirements, we note that the 

‘‘substantial inadequacy’’ that is the 

basis for our SIP call relates directly to 

the requirements that continue to apply 

to an 8-hour ozone nonattainment area 

by virtue of that area’s classification 

under subpart 2 for the 1-hour ozone 

standard at the time we designated the 

area as nonattainment for the 1997 8- 

hour ozone standard. In this instance, 

the South Coast 8-hour ozone 

nonattainment area remains subject to 

the obligation to adopt and implement 

the ‘‘applicable requirements’’ in 40 

CFR 51.900(f) to the extent such 

requirements apply or applied to the 

South Coast as an ‘‘extreme’’ area for the 

1-hour ozone standard in June 2004 (i.e., 

at designation for the 1997 8-hour ozone 

standard). One such ‘‘applicable 

requirement’’ is the attainment 

demonstration requirement. 40 CFR 

51.900(f)(13). 

EPA had approved a 1-hour ozone 

attainment demonstration plan for the 

South Coast (i.e., the 1997/1999 South 

Coast Ozone SIP) prior to revocation, 

but in response to the remand in the AIR 

v. EPA case, we reconsidered the 

adequacy of 1997/1999 South Coast 

Ozone SIP for compliance with the 

obligation to adopt and implement a 1- 

hour ozone attainment demonstration, 

and proposed to find the 1997/1999 

South Coast Ozone SIP substantially 

inadequate to comply with the antibacksliding requirements and to require 

California to submit a new 1-hour ozone 

attainment demonstration plan for the 

‘‘extreme’’ South Coast 1-hour ozone 

nonattainment area within one year of 

the effective date of the final 

determination. 

Even though we look to subpart 2 (of 

part D) and 40 CFR 51.905(a)(1) as the 

statutory and regulatory basis, 

respectively, for the new South Coast 1- 

hour ozone attainment demonstration, 

we do not view our SIP call for the 

South Coast as allowing California to 

start all over again. The new 1-hour 

ozone attainment demonstration plan 

necessarily will build upon the 

extensive ozone control strategy 

developed over the past 40 years in the 

South Coast. Moreover, the new plan 

will not be allowed 20 years to 

demonstrate attainment of the 1-hour 

ozone standard, as was initially allowed 

for ‘‘extreme’’ ozone nonattainment 

areas, under the CAA Amendments of 

1990. Rather, the new plan must 


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Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations 893 

8Tribes having Indian country within the South 

Coast are not subject to the deadline established 

herein for the State of California nor would they be 

subject to the imposition of mandatory sanctions if 

California were to fail to submit a complete SIP 

revision or if EPA were to disapprove the SIP 

revision submitted by California in response to this 

final SIP call. See 40 CFR 49.4(a) and (c). We also 

note that the FIP provisions in CAA section 

110(c)(1) do not apply to Indian country (40 CFR 

49.4(d)). 

demonstrate attainment as expeditiously 

has practicable but no later than five 

years from the final SIP call unless 

California can justify a later date, not to 

exceed 10 years beyond the final SIP 

call, by considering the severity of the 

remaining nonattainment problem in 

the South Coast and the availability and 

feasibility of pollution control measures. 

Lastly, while we disagree that section 

179(d)(3) applies to establish the 

attainment date for the new 1-hour 

ozone attainment demonstration plan, 

we note that the attainment deadline 

under section 179(d)(3) would only be 

a little over one year earlier than the 

deadline established in this final action 

because they both derive from the 

formulation set forth in section 172(a)(2) 

(‘‘* * * as expeditiously as practicable, 

but no later than 5 years, * * * may 

extend the attainment date * * * for a 

period no greater than 10 years * * *’’). 

The only difference is that the start date 

for the final SIP call will be the effective 

date of this final rule, whereas section 

179(d)(3) would have established a start 

date of December 30, 2011, i.e., the 

publication date of our final finding of 

failure to attain the 1-hour ozone 

standard for the South Coast (76 FR 

82133). 

Comment 7: The environmental and 

community groups contend that, if black 

box measures are allowed for an 

attainment plan developed after a region 

failed to attain the deadline, the state or 

local air district would have no 

incentive to close the black box within 

the attainment timeframes laid out in 

the CAA and could continually roll the 

black box over past the attainment date. 

Second, as a practical matter, the 

environmental and community groups 

contend that allowance for black box 

measures for a plan with at most a ten 

year planning horizon does not allow 

for the time necessary to develop the 

types of new technologies envisioned in 

section 182(e)(5). 

Response 7: With respect to black box 

provisions, as noted in response to 

comment #3, we did not explicitly 

address section 182(e)(5) in our 

proposed SIP call because its 

availability or lack of availability is not 

directly relevant to the issue of our 

finding of substantial inadequacy of the 

California SIP for the South Coast with 

respect to the 1-hour ozone standard, or 

the issues of submittal or attainment 

dates. Thus, this comment is not 

relevant for purposes of the current rule 

as it concerns the potential contents of 

a future SIP submittal from the State. 

Industry Groups 

Comment 8: The industry groups 

assert that EPA should not require 

California to impose further VOC 

reductions on the consumer and 

commercial products for the new South 

Coast 1-hour ozone attainment 

demonstration. They point out that the 

2003 State Strategy included stringent 

consumer and commercial products 

rules to achieve VOC reductions by 

2010, and that this portion of the State 

Strategy was not withdrawn. They 

further contend that additional VOC 

reductions are unnecessary to provide 

for attainment of the 1-hour standard, 

and that EPA has the ability to issue a 

SIP call that focuses on NOX reductions 

to address ozone attainment in the 

South Coast, citing Michigan v. EPA. 

Finally, the industry groups assert that 

control measures for additional VOC 

reductions from consumer products 

would likely not constitute reasonably 

available control technology (RACT) 

because they would not be economically 

or technically feasible. 

Response 8: Through this action, EPA 

is not establishing specific requirements 

that must be included as part of the 

State’s plan to attain the 1-hour ozone 

NAAQS. In general, a State has fairly 

broad discretion to select the mix of 

control measures it will rely on to 

demonstrate attainment and EPA’s role 

is limited to ensuring that the State plan 

meets the minimum criteria in the CAA. 

We are requiring California to submit a 

new attainment demonstration for 1- 

hour ozone, and we leave to the state’s 

discretion whether to impose further 

VOC reductions on sources. 

Private Citizen 

Comment 9: A private citizen states 

that the effect of methane on the air 

quality region is understated and asserts 

that methane affects the ozone layer. 

The citizen reports that current studies 

suggest spikes in methane emissions, 

possibly caused by broken pipelines, 

earthquake faults or malfunctioning 

mitigation equipment, and suggests that 

a multiple agency response is warranted 

to address the situation. 

Response 9: This action is being taken 

with regard to the State’s plan to 

address ground-level ozone and does 

not address the effect of pollutants on 

the ozone layer. EPA agrees that 

pollutants that affect the integrity of the 

ozone layer are a concern and separate 

programs under the Act address that 

problem. We note that many control 

measures that reduce VOC emissions 

have the co-benefit of reducing 

methane, and thus, the new 1-hour 

ozone attainment demonstration and 

related control measures could 

indirectly result in reductions of 

methane emissions in the region. 

III. Final Action and Consequences 

For the reasons provided in the 

proposed rule, and after due 

consideration of the comments received, 

EPA is taking final action, pursuant to 

section 110(k)(5) of the CAA, to find 

that the California SIP is substantially 

inadequate to comply with the 

obligation to adopt and implement a 

plan providing for attainment of the 1- 

hour ozone NAAQS in the Los AngelesSouth Coast ozone nonattainment area. 

In response to this finding, California 

must revise and submit to EPA an 

attainment demonstration SIP for 1-hour 

ozone for the South Coast within 12 

months of the effective date of this rule. 

The SIP must provide for attainment of 

the 1-hour ozone NAAQS in the South 

Coast nonattainment area as 

expeditiously as practicable, but no later 

than five years from the effective date of 

today’s rule, unless the State can 

demonstrate that it needs up to an 

additional five years to attain in light of 

the severity of the nonattainment 

problem and the availability and 

feasibility of control measures. 

If EPA finds that California has failed 

to submit a complete SIP revision as 

required by this 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 FIP.8 In 

connection with mandatory sanctions, 

we are taking final action to establish 

the same sequence for application of 

mandatory sanctions (if California fails 

to submit a new 1-hour ozone plan or 

EPA disapproves the submitted plan) as 

established in 40 CFR 52.31. 

Specifically, our finding of failure to 

submit or our disapproval of the SIP 

revision will trigger the new source 

review (NSR) offset sanction in CAA 

section 179(b)(2) and the highway 

funding sanction under CAA section 

179(b)(1) in the South Coast ozone 

nonattainment area 18 months, and 24 

months, respectively, after the effective 

date of the finding or disapproval. The 

sanctions clock will permanently stop 

once we find the SIP submittal complete 

(if we had issued a finding of failure to 

submit a complete plan) or take final 

action approving (if we had disapproved 

the plan) SIP revisions meeting the 


TKELLEY on DSK3SPTVN1PROD with 
894 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations 

relevant requirements of the CAA prior 

to the time the sanctions would take 

effect. Lastly, we are taking final action 

to apply the provisions in 40 CFR 52.31 

regarding staying the sanctions clock 

and deferring the imposition of 

sanctions where we make a preliminary 

finding that it is more likely than not 

that the deficiency has been corrected. 

A FIP clock triggered by a finding of 

failure to submit or a disapproval of a 

submitted SIP can be stopped only by 

EPA approval of a SIP revision 

correcting the SIP deficiency. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, a finding of 

substantial inadequacy and subsequent 

obligation on a State to revise its SIP 

arise out of section 110(a) and 110(k)(5). 

The finding and State obligation do not 

directly impose any new regulatory 

requirements. In addition, the State 

obligation is not legally enforceable by 

a court of law. EPA would review its 

intended action on any SIP submittal in 

response to the finding in light of 

applicable statutory and Executive 

Order requirements, in subsequent 

rulemaking acting on such SIP 

submittal. For those reasons, this rule: 

• 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 CAA; and 

• 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). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the Tribes 

with Indian country in the subject ozone 

nonattainment area would not be 

subject to the deadline established 

herein for the State of California nor 

would they be subject to the imposition 

of mandatory sanctions if California 

were to fail to submit a complete SIP 

revision or if EPA were to disapprove 

the SIP revision submitted by California 

in response to this final SIP call, and 

EPA notes that it will not impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by March 8, 2013. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: December 19, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2012–31642 Filed 1–4–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0960; FRL–9766–4] 

Interim Final Determination To Stay 

Sanctions, Imperial County Air 

Pollution Control District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Interim final rule. 

SUMMARY: EPA is making an interim 

final determination to stay imposition of 

sanctions based on a proposed approval 

of revisions to the Imperial County Air 

Pollution Control District (ICAPCD) 

portion of the California State 

Implementation Plan (SIP) published 

elsewhere in this Federal Register. The 

revisions concern local rules that 

regulate inhalable particulate matter 

(PM10) emissions from sources of 

fugitive dust such as unpaved roads and 

disturbed soils in open and agricultural 

areas in Imperial County. 

DATES: This interim final determination 

is effective on January 7, 2013. 

However, comments will be accepted 

until February 6, 2013. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2012–0960, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

www.regulations.gov. Follow the on-line 

instructions. 

2. Email: steckel.andrew@epa.gov. 

3. Mail or deliver: Andrew Steckel 

(Air-4), U.S. Environmental Protection 

Agency Region IX, 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 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 

www.regulations.gov or email. 

www.regulations.gov is an ‘‘anonymous 

access’’ system, and EPA will not know 

your identity or contact information 

unless you provide it in the body of 


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