[Federal Register Volume 89, Number 207 (Friday, October 25, 2024)]
[Rules and Regulations]
[Pages 85064-85066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-24707]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2024-0338; FRL-12118-03-R9]


Interim Final Determination To Stay or Defer Sanctions; 
California; San Joaquin Valley Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final determination.

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SUMMARY: The Environmental Protection Agency (EPA) is making an interim 
final determination that the State of California has submitted 
revisions to the California State Implementation Plan (SIP) that 
correct the deficiency prompting the partial disapproval of previous 
SIP submissions addressing the requirements under the Clean Air Act 
(CAA or ``Act'') for contingency measures for the 2008 ozone national 
ambient air quality standards (NAAQS or ``standards'') for the San 
Joaquin Valley ozone nonattainment area. This determination is based 
upon a proposed conditional approval, published elsewhere in this issue 
of the Federal Register, of SIP revisions addressing the contingency 
measure requirements for the 2008 ozone NAAQS for the San Joaquin 
Valley. The effect of this interim final determination is to stay the 
application of the offset sanction and to defer the application of the 
highway sanction that were triggered by the EPA's previous partial 
disapproval of SIP revisions submitted to address the contingency 
measure requirements for the 2008 ozone NAAQS for this area.

DATES: This interim final determination is effective on October 25, 
2024. However, comments will be accepted on or before November 25, 
2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2024-0338 at https://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public 
comment policy, information about CBI or multimedia submissions, and 
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a 
language other than English or if you are a person with a disability 
who needs a reasonable accommodation at no cost to you, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Andrew Ledezma, Air Planning Office 
(ARD-2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105, 
(415) 972-3985, or by email at <a href="/cdn-cgi/l/email-protection#b0fcd5d4d5caddd19ef1ded4c2d5c7f0d5c0d19ed7dfc6"><span class="__cf_email__" data-cfemail="f8b49d9c9d829599d6b9969c8a9d8fb89d8899d69f978e">[email protected]</span></a>.

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

Table of Contents

I. Background
II. EPA Evaluation and Action
III. Statutory and Executive Order Reviews

I. Background

    In March 2019, the EPA took final action to approve, or 
conditionally approve, certain state implementation plan (SIP) 
revisions submitted by the State of California to meet CAA requirements 
for the 2008 ozone NAAQS in the San Joaquin Valley, California, ozone 
nonattainment area.\1\ Specifically, the EPA approved the base year 
emissions inventory, reasonable further progress (RFP) demonstration, 
and motor vehicle emissions budgets, and conditionally approved the 
contingency measure element for the 2008 ozone NAAQS. We justified a 
conditional approval of the contingency measure element, even though 
the contingency measure itself would only achieve a small fraction of 
the recommended amount for contingency measures, on the basis of a 
surplus in emissions reductions that could be anticipated from already-
implemented measures in the milestone years and year after the 
attainment year and a commitment by the State to achieve additional 
emissions reductions by the attainment year in the San Joaquin Valley 
that would reduce the chances that additional contingency measures 
would be needed for failure to attain the 2008 ozone NAAQS by the 
applicable attainment date.\2\
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    \1\ 84 FR 11198 (March 25, 2019).
    \2\ 83 FR 61346, at 61357 (November 29, 2018) (proposed 
conditional approval), finalized at 84 FR 11198, at 11205-11206.
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    Our final conditional approval of the contingency measure element 
was the subject of a legal challenge and, in a 2021 Ninth Circuit 
decision in the Association of Irritated Residents v. EPA case, the 
Court remanded the conditional approval action back to the Agency.\3\ 
In so doing, the Court found that, by taking into account the emissions 
reductions from already-implemented measures to find that the 
contingency measure would suffice to

[[Page 85065]]

meet the applicable requirement, the EPA was circumventing the court's 
2016 holding in Bahr v. EPA.\4\ The Court also held that the EPA could 
not avoid the need for robust contingency measures by assuming that 
they will not be needed.\5\
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    \3\ Association of Irritated Residents v. EPA, 10 F.4th 937 (9th 
Cir. 2021).
    \4\ Id., at 946. The reference to ``Bahr v. EPA'' is to Bahr v. 
EPA, 836 F.3d 1218, at 1235-1237 (9th Cir. 2016). Under the Bahr 
holding, contingency measures under CAA sections 172(c)(9) and 
182(c)(9) must be designed so as to be implemented prospectively; 
already-implemented control measures may not serve as contingency 
measures even if they provide emissions reductions beyond those 
needed for any other CAA purpose.
    \5\ Id. at 947.
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    In October 2022, in light of the Association of Irritated Residents 
v. EPA decision, the EPA took final action to withdraw our previous 
conditional approval and to partially disapprove the contingency 
measure element submitted to address the contingency measure 
requirements for the San Joaquin Valley for the 2008 ozone NAAQS.\6\ We 
did so because we found that, if we did not take into account surplus 
emissions reductions or the State's commitment to achieve additional 
emissions reductions in San Joaquin Valley by the attainment year, then 
the one contingency measure that was included in the contingency 
measure element would have had to shoulder the entire burden of 
achieving the recommended amount for contingency measures (if 
triggered) but would have only achieved a small fraction of the 
recommended amount.\7\ The effective date of our final partial 
disapproval action was November 2, 2022.
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    \6\ 87 FR 59688 (October 3, 2022).
    \7\ Id, at 59690.
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    Pursuant to section 179 of the CAA and 40 CFR 52.31, the EPA's 
partial disapproval of the contingency measure element triggered 
sanctions clocks. More specifically, and as explained in our final 
partial disapproval action, under 40 CFR 52.31, the offset sanction in 
CAA section 179(b)(2) would be imposed 18 months after November 2, 
2022, and the highway funding sanction in CAA section 179(b)(1) would 
be imposed six months after the offset sanction was imposed, unless the 
EPA determines that a subsequent SIP submission corrects the identified 
deficiencies before the applicable deadlines.\8\
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    \8\ Id.
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    In April 2024, in response to our final partial disapproval, the 
State of California adopted and submitted the ``Ozone Contingency 
Measure State Implementation Plan Revision for the 2008 and 2015 8-Hour 
Ozone Standards'' (April 25, 2024) (``2024 SJV Ozone Contingency 
Measure Plan'') to the EPA as a revision to the California SIP.\9\ In 
the Proposed Rules section of this issue of the Federal Register, we 
have proposed to conditionally approve the 2024 SJV Ozone Contingency 
Measure Plan for the 2008 ozone NAAQS for the San Joaquin Valley ozone 
nonattainment area. Based on the proposed conditional approval action 
in this issue of the Federal Register with respect to the contingency 
measure element, we are taking this final rulemaking action, effective 
upon publication, to stay application of the offset sanction and defer 
application of the highway sanction that were triggered by the EPA's 
October 3, 2022 partial disapproval of the contingency measure element 
for the San Joaquin Valley 2008 ozone nonattainment area.\10\ We are 
doing so because we find that it is more likely than not that the 2024 
SJV Ozone Contingency Measure Plan corrects the deficiencies that 
triggered such sanctions, when considered with two contingency measures 
that EPA has approved in separate rulemaking actions \11\ and 
commitments to adopt and submit five additional contingency measures 
for the San Joaquin Valley ozone nonattainment area.
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    \9\ The California Air Resources Board (CARB) submitted the San 
Joaquin Valley Unified Air Pollution Control District's 2024 SJV 
Ozone Contingency Measure Plan electronically on April 29, 2024 as 
an attachment to a letter dated April 26, 2024 from Stephen S. 
Cliff, Ph.D., Executive Officer, CARB, to Martha Guzman, Regional 
Administrator, EPA Region IX.
    \10\ See 40 CFR 52.31(d)(2)(ii).
    \11\ The two existing contingency measures for the 2008 ozone 
NAAQS for the San Joaquin Valley relate to architectural coatings 
and the California smog check program. The EPA approved these 
contingency measures at 87 FR 78544 (December 22, 2022) 
(architectural coatings contingency measure) and 89 FR 56222 (July 
9, 2024) (smog check contingency measure).
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    The EPA is providing the public with an opportunity to comment on 
this stay of the offset sanction and deferral of the highway sanction. 
If comments are submitted that change our assessment, as described in 
this interim final determination and in our proposed conditional 
approval, that the 2024 SJV Ozone Contingency Measure Plan meets the 
contingency measure requirements for the 2008 ozone NAAQS for the San 
Joaquin Valley nonattainment area, we will take final action to lift 
this stay of the offset sanction and deferral of the highway sanction 
under 40 CFR 52.31. If no comments are submitted that change our 
assessment, then all sanctions and any sanction clocks triggered by our 
October 3, 2022 final action will continue to be stayed or deferred 
unless and until the conditional approval converts to a disapproval or 
the EPA proposes to or takes final action to disapprove in whole or in 
part the revised SIP the State submits to fulfill the commitment in the 
conditionally-approved plan, at which time the sanctions would 
reapply.\12\ Any sanction clock triggered by the October 2022 partial 
disapproval would be permanently stopped and sanctions applied, stayed, 
or deferred would be permanently lifted upon a final EPA finding that 
the deficiency forming the basis of the finding has been corrected.\13\
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    \12\ See 40 CFR 52.31(d)(3)(ii).
    \13\ See 40 CFR 52.31(d)(5).
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II. EPA Evaluation and Action

    We are making an interim final determination under 40 CFR 
52.31(d)(2)(ii) to stay the application of the offset sanction and to 
defer the application of the highway sanction associated with our 
October 3, 2022 final action partially disapproving the contingency 
measure element for the 2008 ozone NAAQS for the San Joaquin Valley 
nonattainment area. This determination is based on a concurrent 
proposal to conditionally approve the 2024 SJV Ozone Contingency 
Measure Plan as meeting the 2008 ozone contingency measure requirement, 
which, if fully approved, would correct the deficiencies that triggered 
sanctions under section 179 of the CAA.
    The EPA has preliminarily determined that the submission of the 
2024 SJV Ozone Contingency Measure Plan more likely than not adequately 
addresses the deficiencies identified in the October 3, 2022 partial 
disapproval, when considered together with previously approved 
contingency measures and commitments to adopt and submit additional 
contingency measures in accordance with the commitments in the State's 
commitment letter. As we are proposing conditional approval, relief 
from sanctions should be provided as quickly as possible.
    Therefore, the EPA is invoking the good cause exception under the 
Administrative Procedure Act (APA) in not providing an opportunity for 
comment before this action takes effect (5 U.S.C. 553(b)(3)). However, 
by this action, the EPA is still providing the public with an 
opportunity to comment on the EPA's determination after the effective 
date, and the EPA will consider any comments received in determining 
whether to reverse such action.
    The EPA believes that notice-and-comment rulemaking before the 
effective date of this action is impracticable and contrary to the 
public

[[Page 85066]]

interest. The EPA has reviewed the 2024 SJV Ozone Contingency Measure 
Plan and, through its proposed action, is indicating that it is more 
likely than not that the Plan corrects the deficiencies that were the 
basis for the partial disapproval that started the sanctions clocks. 
Therefore, it is not in the public interest to apply sanctions. The EPA 
believes that it is necessary to use the interim final rulemaking 
process to stay the application of the offset sanction and defer the 
application of the highway sanction while the EPA completes our 
rulemaking process to take final action on the 2024 SJV Ozone 
Contingency Measure Plan. Moreover, with respect to the effective date 
of this action, the EPA is invoking the good cause exception to the 30-
day notice requirement of the APA because the purpose of this document 
is to relieve a restriction (5 U.S.C. 553(d)(1)).

III. Statutory and Executive Order Reviews

    This action stays or defers application of sanctions and imposes no 
additional requirements.

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. This action stays or defers application of sanctions and 
imposes no new requirements.

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 action 
stays or defers application of sanctions and imposes no new 
requirements.

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. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

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: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action stays or defers application of 
sanctions and imposes no new requirements. In addition, this action 
does 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. 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 it does not concern an environmental 
health risk or safety risk.

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

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) 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 (people of color) and low-income 
populations. The EPA believes that this type of action does not concern 
human health or environmental conditions and therefore cannot be 
evaluated with respect to potentially disproportionate and adverse 
effects on people of color, low-income populations, and/or Indigenous 
peoples. This action stays or defers application of sanctions in 
accordance with CAA regulatory provisions and imposes no additional 
requirements.

K. Congressional Review Act (CRA)

    This action is subject to the Congressional Review Act (CRA), and 
the EPA will submit a rule report to each House of the Congress and to 
the Comptroller General of the United States. The CRA allows the 
issuing agency to make a rule effective sooner than otherwise provided 
by the CRA if the agency makes a good cause finding that notice and 
comment rulemaking procedures are impracticable, unnecessary, or 
contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a 
good cause finding for this action as discussed in section II of this 
preamble, including the basis for that finding.

L. Petitions for Judicial Review

    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 December 24, 2024. Filing a petition for 
reconsideration by the EPA Administrator of this action does not affect 
the finality of this action for the purpose of judicial review nor does 
it extend the time within which 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 CAA section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: October 16, 2024.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2024-24707 Filed 10-24-24; 8:45 am]
BILLING CODE 6560-50-P


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