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[Federal Register Volume 89, Number 250 (Tuesday, December 31, 2024)]
[Rules and Regulations]
[Pages 107012-107015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31396]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0649; FRL-11647-02-R9]

Air Plan Revisions; California; Feather River Air Quality 
Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve a revision to the Feather River Air Quality 
Management District (FRAQMD) portion of the California State 
Implementation Plan (SIP). This revision concerns a rule submitted to 
address section 185 of the Clean Air Act (CAA or ``Act'').

DATES: This rule is effective January 30, 2025.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2023-0649. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available through https://www.regulations.gov, or please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section for additional availability information. 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: Mae Wang, EPA Region IX, 75 Hawthorne 
St., San Francisco, CA 94105; phone: (415) 947-4137; email: 
[email protected].

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

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Proposed Action

    On February 12, 2024 (89 FR 9813), the EPA proposed to approve the 
following rule into the California SIP.

------------------------------------------------------------------------
  Local agency     Rule No.      Rule title       Amended     Submitted
------------------------------------------------------------------------
FRAQMD.........         7.15  Clean Air Act      04/04/2022   07/05/2022
                               Nonattainment
                               Fees.
------------------------------------------------------------------------

    We proposed to approve this rule because we determined that it 
complies with the relevant CAA requirements. Our proposed action 
contains more information on the rule and our evaluation.

II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. 
During this period, we received five comments. Three of these comments 
were supportive of our proposed action, one was not germane to the 
action, and one stated that the rule submittal is not approvable. All 
the comments can be found in the docket for this rulemaking. We thank 
the commenters for their input. One of these commenters in support of 
the proposed action asked why there was no mention of California and 
COVID-19. FRAQMD Rule 7.15 was adopted and submitted to address the CAA 
section 185 fee program for Federal ozone nonattainment areas. Because 
COVID-19 does not bear on whether or not the submitted rule fulfills 
the requirements of section 185 of the CAA, we do not consider COVID-19 
relevant to this rulemaking.
    The comment in opposition to our proposed action was submitted from 
Air Law for All, Ltd., on behalf of the Center for Biological Diversity 
(the commenter from here on referred to as ``ALFA'' or ``the 
commenter''). We have summarized below the substance of the comments 
from ALFA, identifying discrete points made by the commenter, and 
responding to each in turn.
    Before responding to the issues raised by the commenter, we will 
first correct two factual misstatements in the comment letter. In the 
Background section of ALFA's comment letter, the commenter states that 
``In 2012, EPA determined that the area had met the 1-hour standards by 
the applicable attainment date for those standards.'' The reference 
cited was an EPA action on October 18, 2012 (77 FR 64036). In that 
action, the EPA determined that complete, quality-assured, and 
certified air quality data for the Sacramento Metro 1-hour ozone 
nonattainment area show continuous attainment for the 1-hour ozone 
national ambient air quality standards (NAAQS) since 2009. We would 
like to clarify that this clean data finding was not a determination 
that the area had attained the NAAQS by the applicable attainment date, 
but instead a finding that the area had achieved attaining levels of 
air quality for the 2009-2011 period, which was after the applicable 
attainment date. The commenter also incorrectly stated, ``For the 2008 
8-hour standards, the applicable attainment date is December 31, 
2027.'' The applicable attainment date for the Sacramento Metro ozone 
nonattainment area for the 2008 8-hour ozone NAAQS is July 20, 2027. 
See 40 CFR 51.1103(a) Table 1, 77 FR 30160 (May 21, 2012) and 80 FR 
12264 (March 6, 2015).
    Comment #1: The commenter states that the EPA has not carried out 
its duty to determine whether the Sacramento Metro nonattainment area 
has attained the 1997 8-hour NAAQS by the June 15, 2019 attainment 
date. The commenter states that ``[t]his information is germane to 
EPA's action, as the failure to attain would trigger the ozone fee 
requirement, for which the public and the regulated community must 
receive notice.'' Therefore, the commenter claims that ``EPA's proposal 
notice is insufficient, because it gives no notice of the legal 
consequences of EPA's approval.''

[[Page 107013]]

    Response #1: It is not clear in what manner the commenter is 
alleging that the proposal notice is insufficient regarding the lack of 
notice of the ``legal consequences'' of the EPA's approval. As an 
initial matter, the commenter is correct that, as of the time of this 
action, the EPA has not made a determination as to whether the 
Sacramento Metro ozone nonattainment area attained the 1997 8-hour 
ozone NAAQS by the applicable attainment date. The commenter appears to 
be asserting that the approvability of a CAA section 185 rule 
submission depends in some way on whether or not the EPA has made such 
a finding, and because the EPA has not yet done so, the proposed rule 
did not sufficiently detail the legal consequences of approving Rule 
7.15 into the SIP. The approvability of a section 185 rule submission 
does not depend on whether or not the EPA has previously made a finding 
that the area has failed to attain the relevant NAAQS. In some 
instances, the EPA has approved section 185 programs after making a 
finding that the area has failed to attain by the applicable attainment 
date.\1\ In other instances, the EPA has approved a section 185 program 
prior to determining whether an area has attained the standard by the 
applicable attainment date.\2\ The legal consequences of approving 
FRAQMD Rule 7.15 into the SIP are clear. Rule 7.15 section C.1 provides 
that fees will be assessed for emissions in the previous calendar year, 
beginning the year after the effective date of an EPA finding published 
in the Federal Register that the area has not attained an ozone NAAQS 
by the attainment date. The fact that the EPA has not made such a 
finding at the time the rule was adopted, submitted, or approved into 
the SIP is not relevant to the approvability of Rule 7.15. If the EPA 
in a future rulemaking proposes to find that the area failed to attain 
the 1997 ozone NAAQS by the applicable attainment date, or that it did 
attain the 1997 ozone NAAQS by the applicable attainment date, such 
finding would itself be subject to notice and comment via a separate 
Federal Register notice at that time. Should the EPA finalize a finding 
that the area failed to attain by the applicable attainment date, then 
pursuant to Rule 7.15 section C.1, fees would be assessed for emissions 
in the previous calendar year. Accordingly, the EPA disagrees with the 
commenters' assertion that the EPA's notice does not give sufficient 
notice of the legal consequences of approving Rule 7.15 into the 
California SIP.
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    \1\ See, e.g., 76 FR 82133, December 30, 2011 (finding that the 
Los Angeles-South Coast Air Basin Area and the San Joaquin Valley 
Area did not attain the 1-hour ozone NAAQS by the applicable 
attainment date); 77 FR 50021, August 20, 2012 (approving the 
section 185 rule for the 1-hour ozone NAAQS applicable to the San 
Joaquin Valley Area); and 77 FR 74372, December 14, 2012 (approving 
the section 185 rule for the 1-hour ozone NAAQS applicable to the 
South Coast Air Basin).
    \2\ See, e.g., 69 FR 77909, December 29, 2004 (approving the 
section 185 rule for the 1-hour ozone NAAQS applicable to the 
Virginia portion of the Metropolitan Washington DC Severe Ozone 
Nonattainment Area); and 73 FR 43360, July 25, 2008 (determining 
that the Metropolitan Washington DC nonattainment area attained the 
1-hour ozone NAAQS by the applicable attainment date).
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    Comment #2: The commenter claims that ozone emission fees are 
imposed upon a nonattainment area's failure to attain an ozone NAAQS, 
regardless of the timing of an EPA determination that the area failed 
to attain. The commenter states that CAA section 185(a) provides that 
emission fees must be paid for ``each calendar year beginning after the 
attainment date, until the area is redesignated as an attainment area 
for ozone.'' Thus, the commenter specifically objects to the language 
in FRAQMD Rule 7.15 section C.1 that states, ``beginning in the year 
after the effective date of a final determination published in the 
Federal Register that the area has not attained the standard by the 
attainment date, the Air Pollution Control Officer shall assess the 
Clean Air Act Fees for emissions in the previous calendar year.'' The 
commenter claims that even though the EPA is overdue in making a 
determination that the Sacramento Metro ozone nonattainment area failed 
to attain the 1997 ozone NAAQS, CAA section 185(a) requires fees to be 
collected for the years 2020, 2021, 2022, and 2023.
    Response #2: The EPA notes as an initial matter that there are no 
major stationary sources in the portion of the Sacramento Metro ozone 
nonattainment area regulated by the FRAQMD, nor have there been at any 
point since the 2005 attainment date for the 1-hour ozone NAAQS.\3\ 
Thus, there were no sources in the area subject to the rule in the 
years 2020, 2021, 2022, and 2023, and the commenter's statement that 
the rule must require fees be collected for those years is without any 
practical import because no fees would be owed or collected in any 
case. Notwithstanding this fact, the EPA acknowledges that the 
hypothetical scenario raised by the commenter could potentially become 
relevant if all of the three following conditions were met: (1) the 
Sacramento Metro nonattainment area failed to attain a particular ozone 
NAAQS by the applicable attainment date for that NAAQS, (2) the EPA 
finalized a finding of failure to attain for that NAAQS two or more 
calendar years following the attainment year for that NAAQS, and (3) a 
new major stationary source had begun operating in the portion of the 
Sacramento Metro ozone nonattainment area regulated by the FRAQMD prior 
to the year in which the EPA issued its finding of failure to 
attain.\4\ In that hypothetical scenario, Rule 7.15 would require such 
a source to begin paying fees in the year following the effective date 
of the EPA's finding of failure to attain for emissions in the previous 
calendar year (that is, for emissions occurring in the calendar year of 
the effective date of the EPA's finding of failure to attain), but not 
for any emissions in prior years.
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    \3\ The staff report for FRAQMD Rule 7.15 confirms that ``There 
were no major sources in the SFNA portion of Sutter County when the 
Rule 7.15 was adopted in 2010 and there have been no new sources 
since that date.'' The submitted staff report, dated March 4, 2022, 
also states, ``The District has reviewed all current and pending 
permit applications and has determined that there are no applicable 
sources in the Sutter County portion of the SFNA. Therefore, Rule 
7.15 does not apply to any current or anticipated sources in the 
District.'' The EPA's review of available facilities databases and 
permit applications shows no new major sources have begun operating 
in the relevant area since that time.
    \4\ Because the fee obligation in Rule 7.15 becomes applicable 
the year after the effective date of an EPA finding of failure to 
attain, but applies to emissions from ``the previous calendar 
year,'' the rule would collect fees for emissions occurring in the 
year the EPA's finding became effective.
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    The EPA has not established a comprehensive approach to section 185 
fees that may be due retroactively for emissions in years prior to the 
EPA issuing a finding of failure to attain. The EPA does not believe 
that the present rulemaking, for which the question is only theoretical 
and for which there are no identifiable parties at interest, is the 
proper forum for establishing a position on section 185 fees that may 
be due retroactively. The EPA believes that addressing this question in 
a future notice and comment rulemaking would provide a more appropriate 
forum for a range of impacted parties to provide input on this 
question. We do not believe that the hypothetical scenario above 
precludes our approval of Rule 7.15, which will require fees be paid by 
any potential future major stationary sources for all ozone NAAQS. Even 
if that hypothetical scenario comes to pass for a particular NAAQS in 
the future, the EPA could address any potential deficiencies under its 
section 185(d) authority (which is discussed in further detail in the 
response to Comment #4). As a result, the EPA finds that the timing of 
the rule's applicability

[[Page 107014]]

provisions does not preclude our final approval of Rule 7.15.
    Comment #3: The commenter claims that ``an emissions fee program 
must collect separate emissions fees for each ozone standard for which 
an area is classified as Severe or Extreme.'' The commenter further 
states, ``For the Feather River rule to be fully approvable, it must 
make clear that two separate fees are to be paid if the area fails to 
attain both standards. In addition, the baseline appropriate for each 
particular standard must be used for each fee. However, the rule text 
does not explicitly address this requirement.''
    Response #3: The EPA agrees with the commenter's claim that CAA 
section 185 fees must be calculated and collected separately for each 
ozone NAAQS. However, the EPA disagrees with the commenter's claim that 
Rule 7.15 is not sufficiently clear on this point, because Rule 7.15 
does require fees to be calculated and paid for each applicable 
standard. As stated in the FRAQMD staff report for Rule 7.15, the rule 
was amended to include the 8-hour ozone standards because the 
originally adopted version of the rule only applied to the 1-hour ozone 
standard. The staff report says, ``The amendments would apply to the 
existing 8-hour standards that were amended in 1997, 2008, and 2015 and 
any future 8-hour standards.''
    Additionally, the rule itself in sections A.2 and A.4 refers to 
multiple standards. When discussing the cessation of fees, section A.4 
states that fees ``for any ozone standard will cease on the effective 
date of the United States Environmental Protection Agency final action 
redesignating the nonattainment area to attainment for that standard'' 
(italics added), which indicates that the fee obligation would continue 
for each other applicable NAAQS for which the area is still designated 
nonattainment and classified as Severe or Extreme. The rule's 
definition for the term ``Attainment Year'' in section B.1 also refers 
to multiple standards, which is consistent with the conclusion that the 
rule addresses the CAA section 185 fee requirement for each individual 
standard. Although the EPA notes that the rule language could be more 
explicit to state that the fees for each individual NAAQS are assessed 
separately, we conclude that the rule is sufficiently clear on this 
point.
    Comment #4: The commenter states that ``EPA must immediately 
promulgate procedures for collecting emissions fees.'' The commenter 
claims that the EPA has an independent obligation under CAA section 
185(d) to promulgate these procedures regardless of whether a federal 
implementation plan obligation is triggered. The commenter also claims 
that CAA ``section 185(d) requires the EPA to collect `unpaid fees' if 
the state has not done so.'' Additionally, the commenter states that 
the EPA has a ``mandatory duty'' under the Act to collect section 185 
fees for ``the Sacramento metropolitan ozone area for the years 2020 
through 2023, and possibly other nonattainment areas as well.'' The 
commenter also notes that ``section 301(a) of the Act requires EPA to 
promulgate procedures ensuring `fairness and uniformity' in 
implementing and enforcing the Act across EPA's regional offices'' and 
suggests that ``a uniform set of procedures for collections of 
emissions fees'' is the best approach to do so.
    Response #4: The issues raised in this comment are outside the 
scope of the current rulemaking. Section 185(d) provides in part:
    ``If the Administrator has found that the fee provisions of the 
implementation plan do not meet the requirements of this section, or if 
the Administrator makes a finding that the State is not administering 
and enforcing the fee required under this section, the Administrator 
shall, in addition to any other action authorized under this 
subchapter, collect, in accordance with procedures promulgated by the 
Administrator, the unpaid fees required under subsection (a) of this 
section.''
    According to this provision, the EPA shall collect ``unpaid fees'' 
required under subsection (a) if either (1) the Administrator has found 
that the fee provisions of the SIP do not meet the requirements of 
section 185, or (2) the Administrator makes a finding that the State is 
not administering and enforcing the section 185 fee obligation. As 
explained in the response to Comment #2, there are currently no major 
stationary sources in the area regulated by Rule 7.15, nor were there 
any major stationary sources in the applicable area in the years 2020 
through 2023. As a result, there are no ``unpaid fees'' for the EPA to 
collect in the area at issue in this rulemaking. Should the EPA in the 
future make either of the above-enumerated findings, and outstanding 
unpaid fees exist at that time, the EPA could at that time exercise its 
authority under section 185(d) to collect such fees. However, the EPA 
is under no obligation to promulgate procedures for doing so in the 
FRAQMD at this time, nor are the EPA's potential obligations under 
section 185(d) relevant to the approvability of Rule 7.15. 
Additionally, any potential section 185 fee obligations for areas 
outside of the FRAQMD have no relevance to the approvability of the 
present rule submission from the FRAQMD.
    Accordingly, the commenter's assertion that the EPA has a 
``mandatory duty'' to collect fees for ``the Sacramento metropolitan 
ozone area for the years 2020 through 2023, and possibly other 
nonattainment areas as well'' is outside the scope of this action.
    With respect to the commenter's statement that the section 301(a) 
requirement for ``fairness and uniformity'' in the criteria, 
procedures, and policies applied by the regional offices suggests that 
``a uniform set of procedures for collections of emissions fees'' is 
the best approach, this is also outside the scope of the current 
rulemaking. As noted, the EPA does not have any duty to exercise its 
section 185(d) authority in the FRAQMD at this time.

III. EPA Action

    No comments were submitted that change our assessment of the rule 
as described in our proposed action. Therefore, as authorized in 
section 110(k)(3) of the Act, the EPA is approving FRAQMD Rule 7.15 
into the California SIP. This final approval action also removes the 
EPA's obligation to promulgate a Federal Implementation Plan (FIP) for 
the FRAQMD portion of the Sacramento Metro ozone nonattainment area by 
permanently stopping the FIP clock associated with the January 5, 2010 
(75 FR 232) finding of failure to submit.\5\
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    \5\ Although the imposition of sanctions due to the January 5, 
2010 finding was deferred on May 18, 2011 (76 FR 28661), and was 
permanently stopped with our October 28, 2022 completeness letter, 
there remained an obligation for the EPA to promulgate a FIP 
associated with the January 5, 2010 action.
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IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of FRAQMD 
Rule 7.15, ``Clean Air Act Nonattainment Fees,'' amended on April 4, 
2022, which addresses the CAA section 185 fee program requirements. The 
EPA has made, and will continue to make, these documents available 
through www.regulations.gov and at the EPA Region IX Office (please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section of this preamble for more information).

[[Page 107015]]

V. 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. 42 U.S.C 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve State 
choices, provided that they meet the criteria of the CAA. Accordingly, 
this action merely approves State law as meeting Federal requirements 
and does not impose additional requirements beyond those imposed by 
State law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.S. 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 subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a State program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     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.
    In addition, the SIP is not approved to 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. In those areas of 
Indian country, the rule does not have Tribal implications and will not 
impose substantial direct costs on Tribal governments or preempt Tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
Executive Order 14096 (Revitalizing Our Nation's Commitment to 
Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on 
and supplements E.O. 12898 and defines environmental justice (EJ) as, 
among other things, ``the just treatment and meaningful involvement of 
all people, regardless of income, race, color, national origin, Tribal 
affiliation, or disability, in agency decision-making and other Federal 
activities that affect human health and the environment.''
    The State did not evaluate EJ considerations as part of its SIP 
submittal; the CAA and applicable implementing regulations neither 
prohibit nor require such an evaluation. The EPA did not perform an EJ 
analysis and did not consider EJ in this action. Consideration of EJ is 
not required as part of this action, and there is no information in the 
record inconsistent with the stated goal of Executive Orders 12898 and 
14096 of achieving EJ for communities with EJ concerns.
    This action is subject to the Congressional Review Act, 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).
    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 March 3, 2025. 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, Nitrogen oxides, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: December 23, 2024.
Martha Guzman Aceves,
Regional Administrator, Region IX.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends part 52, chapter I, title 40 of the Code of 
Federal Regulations 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)(607)(i)(C) to read 
as follows:

Sec.  52.220   Identification of plan--in part.

* * * * *
    (c) * * *
    (607) * * *
    (i) * * *
    (C) Feather River Air Quality Management District.
    (1) Rule 7.15, ``Clean Air Act Nonattainment Fees,'' amended on 
April 4, 2022.
    (2) [Reserved]
* * * * *
[FR Doc. 2024-31396 Filed 12-30-24; 8:45 am]
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