
[Federal Register Volume 82, Number 47 (Monday, March 13, 2017)]
[Rules and Regulations]
[Pages 13390-13392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-04804]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2016-0660; FRL-9958-80-Region 9]


Approval of California Air Plan; Owens Valley Serious Area Plan 
for the 1987 24-Hour PM10 Standard

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 state implementation plan (SIP) revision submitted 
by the State of California to meet Clean Air Act (CAA or ``Act'') 
requirements applicable to the Owens Valley PM10 
nonattainment area (NA). The Owens Valley PM10 NA is 
classified as a ``Serious'' nonattainment area for the national ambient 
air quality standards (NAAQS) for particulate matter of ten microns or 
less (PM10). The submitted SIP revision is the ``Great Basin 
Unified Air Pollution Control District 2016 Owens Valley Planning Area 
PM10 State Implementation Plan'' (``2016 PM10 
Plan'' or ``Plan''). The State's obligation to submit the 2016 
PM10 Plan was triggered by the EPA's 2007 finding that the 
Owens Valley PM10 NA had failed to meet its December 31, 
2006, deadline to attain the PM10 NAAQS. The CAA requires a 
Serious PM10 nonattainment area that fails to meet its 
attainment deadline to submit a plan providing for attainment of the 
PM10 NAAQS and for an annual reduction in PM10 
emissions of not less than five percent until attainment of the 
PM10 NAAQS. The EPA is approving the 2016 PM10 
Plan because it meets all relevant statutory and regulatory 
requirements.

DATES: This rule is effective on April 12, 2017.

ADDRESSES: The EPA has established a docket for this action, identified 
by Docket ID Number EPA-R09-OAR-2016-0660. The index to the docket is 
available electronically at http://www.regulations.gov or in hard copy 
at the EPA Region IX office, 75 Hawthorne Street, San Francisco, 
California. 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 in either location (e.g., confidential business information). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed below.

FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, EPA Region IX, 415-
972-3964, vagenas.ginger@epa.gov.

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

Table of Contents

I. Summary of Proposed Action
II. Public Comments and the EPA's Response to Comments
III. EPA's Final Action
IV. Statutory and Executive Order Reviews

I. Summary of Proposed Action

    On December 12, 2016, the EPA proposed to approve the Owens Valley 
2016 PM10 Plan, which the State of California submitted on 
June 9, 2016, as meeting all relevant statutory and regulatory 
requirements under the CAA.\1\ As discussed in our proposed rule, the 
Owens Valley PM10 NA is a Serious PM10 
nonattainment area that is located in the southern portion of the Owens 
Valley in Inyo County, California.\2\
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    \1\ 81 FR 89407.
    \2\ The boundary of the Owens Valley PM10 
nonattainment area is defined in 40 CFR 81.305 as Hydrologic Unit 
#18090103.
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    California's obligation to submit the 2016 PM10 Plan was 
triggered by the EPA's June 6, 2007 finding that the Owens Valley 
PM10 NA had failed to meet its December 31, 2006 deadline to 
attain the PM10 NAAQS.\3\ The CAA requires a Serious 
PM10 NA that fails to meet its attainment deadline to submit 
a plan providing for attainment of the PM10 NAAQS and for an 
annual emission reduction in PM10 or PM10 
precursors of not less than five percent per year until attainment. Our 
December 12, 2016 proposed rule provides the background and rationale 
for this action.
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    \3\ 72 FR 31183.
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II. Public Comments and the EPA's Response to Comments

    The EPA provided a 30-day public comment period on our proposed 
action. The comment period ended on January 11, 2017. We received two 
public comment letters: One from the Timbisha Shoshone Tribe and one 
from the Big Pine Paiute Tribe of the Owens Valley. The submitted 
comment letters, which we have summarized and responded to below, are 
in our docket.
    Comment 1: The Timbisha Shoshone Tribe expressed its support for 
our approval of the 2016 PM10 Plan.
    Response 1: The EPA appreciates the Timbisha Shoshone Tribe's 
support of our approval.
    Comment 2: The Big Pine Paiute Tribe's (``Tribe'') comment letter 
acknowledged the effectiveness of the

[[Page 13391]]

dust control measures that have been required under the 2016 
PM10 Plan and the progress that has been made in improving 
air quality in the Owens Valley over the past 20 years. The Tribe's 
comment letter did not raise any objections to our determination that 
the Plan meets the CAA requirements or to our approval of the 2016 
PM10 Plan. The Tribe articulated a number of concerns 
regarding the broader context of the historical events resulting in the 
desiccation of the Owens Lake bed, which are discussed in our specific 
responses below.
    Response 2: The EPA appreciates the Tribe's acknowledgement of the 
effectiveness of the dust control measures and agrees that the air 
quality in the Owens Valley has improved significantly over the past 20 
years.
    Comment 3: The Tribe considers the EPA's action in this rulemaking 
to be too narrow to address all of the environmental and cultural 
issues caused by Los Angeles Department of Water and Power's (LADWP) 
historic and on-going diversion of water from the Owens Valley. The 
Tribe states that the diversion of water from the Owens Lake bed should 
be defined as a ``project'' and therefore subject to the California 
Environmental Quality Act (CEQA).
    Response 3: The EPA understands the Tribe's concern with LADWP's 
diversion of water from the Owens Valley. The EPA's role under the CAA, 
however, is to review attainment plans to determine their compliance 
with the applicable provisions of the Act. If a plan meets those 
provisions, the CAA requires that we approve it so that it becomes 
enforceable under the Act. Such approval ensures the control measures 
adopted by a state will be implemented so that air quality will be 
improved and the NAAQS will be attained. The EPA is finalizing our 
proposed approval of the 2016 PM10 Plan because it meets the 
requirements of the CAA.
    We also recognize the Tribe's comment concerning the scope of the 
definition of a ``project'' under CEQA. CEQA is a state law, and the 
EPA does not have a role in implementing it.
    Comment 4: The Tribe commented that mitigation measures that have 
been implemented on the Owens Lake bed may have resulted in the 
disruption or destruction of cultural sites and artifacts. The Tribe 
states that ``sites previously regarded as not significant (or 
``eligible'' for the national or California register of historic 
resources) were undoubtedly destroyed before they were seen in their 
true context.'' The Tribe notes that ``relatively recently, the Owens 
Lake Cultural Resources Task Force (CRTF) was formed to address 
cultural resources affected by the dust control effort and make 
recommendations on protection.'' While the Tribe views the formation of 
the CRTF as ``too little too late,'' it acknowledges that ``at least it 
is now an attempt to protect what remains and to pursue adequate 
compensatory mitigation.'' The Tribe recommends continuation of the 
CRTF and expansion of its scope beyond the Owens Lake bed. Finally, the 
Tribe requests the EPA's participation on the CRTF.
    Response 4: The EPA agrees that the CRTF has a significant role to 
play in the preservation of cultural resources. We encourage all 
parties to continue these efforts. In consultation with the CRTF, the 
EPA will consider the Tribe's invitation to participate.
    Comment 5: The Tribe states that the laws that ``are supposed to 
protect the environment and allow for tribal consultation are not 
always effective in practice and thus often fail to truly protect the 
environment and foster meaningful government to government 
consultation.'' The Tribe views the law protecting air quality as 
``strong'' but states that the law is ``weaker when it comes to tribal 
consultation and protecting cultural resources.'' The Tribe notes that 
it appreciated the EPA's consultation teleconference on December 21, 
2016, but that the consultation was ``too little too late.'' Finally, 
the Tribe notes that ``resources important to tribes (and all people) 
should be protected under the public trust doctrine the same as air 
quality.''
    Response 5: The EPA acknowledges the Tribe's concerns and 
encourages all stakeholders to work together to address the 
environmental and cultural issues highlighted by the Tribe. We take our 
role in implementing the CAA and our role in fostering timely and 
meaningful consultation seriously. We consider our approval of the 2016 
PM10 Plan as a critical step in protecting human health and 
the environment. We also believe that, given the scope of this action, 
consultation was timely and appropriate. We invited the Tribe to 
consult with us on December 1, 2016, and consultation was held on 
December 21, 2016. In this particular instance, we consulted with the 
Tribe regarding our specific proposed action to approve the Owens 
Valley PM10 Plan as meeting all requirements of the CAA. We 
understand the Tribe's view that because the water diversions and 
subsequent impacts began ``decades before the state or the nation had 
environmentally protective laws'' in place, consultation is ``too 
little, too late.'' As we expressed during our consultation 
teleconference, we appreciate the concerns the Tribe explained in 
consultation and in its comment letter. We also note that the Tribe 
generally supports our approval of the 2016 PM10 Plan and 
its effect of improved air quality and attainment of the 
PM10 NAAQS.

III. EPA's Final Action

    The EPA is approving the Serious area 2016 PM10 Plan 
submitted by the State of California for the Owens Valley 
PM10 nonattainment area. Specifically, the EPA is approving 
the 2016 PM10 Plan with respect to the following CAA 
requirements: Public notice and involvement under section 110(a)(1); 
emissions inventories under section 172(c)(3); the control measures in 
Rule 433 under section 110(k)(3) as meeting the requirements of 
sections 110(a) and 189(b)(1)(B); reasonable further progress and 
quantitative milestones under section 189(c); the contingency measure 
in Rule 433 under section 172(c)(9); and the demonstration of 
attainment under section 189(b)(1)(A). The EPA is also approving the 
State's request for an extension of the attainment date to June 6, 
2017, pursuant to CAA sections 188 and 179.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable federal regulations. 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 Clean Air Act. 
Accordingly, this final 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 final action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described

[[Page 13392]]

in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide the 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, 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). We notified local tribes of our proposed approval and held two 
tribal consultations during the comment period.
    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. The 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 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 May 12, 2017. 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, Particulate matter, Reporting 
and recordkeeping requirements.

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

    Dated: January 13, 2017.
Deborah Jordan,
Acting Regional Administrator, Region IX.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart F--California

0
2. Section 52.220 is amended by revising paragraph (c)(483) 
introductory text and by adding paragraph (c)(483)(ii) to read as 
follows:


Sec.  52.220  Identification of plan--in part.

* * * * *
    (c) * * *
    (483) The following plan was submitted on June 9, 2016, by the 
Governor's designee. * * *
    (ii) Additional materials.
    (A) Great Basin Unified Air Pollution Control District (GBUAPCD).
    (1) ``2016 Owens Valley Planning Area PM10 State 
Implementation Plan,'' adopted April 13, 2016, excluding all of the 
following: Section 10.1 (``Proposed Rule 433''); Appendix I-1 (``2006 
Settlement Agreement''); Appendix II-1 (``2014 Stipulated Judgement''); 
Appendices D (``2008 GBUAPCD Board Order No. 080128-01''), E (``2013 
GBUAPCD Board Order No. 130916-01''), and F (``GBUAPCD Fugitive Dust 
Rules (400, 401, 402)'') of Appendix V-1 (``Owens Valley Planning Area 
2016 State Implementation Plan BACM Assessment); Appendix VI-2 (``Owens 
Lake Dust Mitigation Program Phase 9/10 Project--Final Environmental 
Impact Report (May 2015)''); and Appendix X-1 (``Proposed Rule 433'').

[FR Doc. 2017-04804 Filed 3-10-17; 8:45 am]
 BILLING CODE 6560-50-P


