[Federal Register Volume 82, Number 239 (Thursday, December 14, 2017)]
[Rules and Regulations]
[Pages 58747-58749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26899]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2017-0580; FRL-9972-02-Region 9]


Contingency Measures for the 1997 PM2.5 Standards; California; 
San Joaquin Valley; Correction of Deficiency

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or ``Agency'') is 
taking final action to determine that the deficiency that formed the 
basis for a disapproval of the contingency measures submitted for the 
San Joaquin Valley nonattainment area for the 1997 fine particulate 
matter (PM2.5) national ambient air quality standards 
(NAAQS) has been corrected. The effect of this action is to permanently 
stop the sanctions clocks triggered by the disapproval.

DATES: This final rule is effective December 14, 2017.

ADDRESSES: The EPA has established a docket for this action under 
Docket No. EPA-R09-OAR-2017-0580. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed on 
the website, 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.

FOR FURTHER INFORMATION CONTACT: Rory Mays, EPA Region IX, (415) 972-
3227, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

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

I. Proposed Action

    On October 23, 2017 (82 FR 48944) (herein ``proposed rule''), we 
proposed to determine that the deficiency that formed the basis for a 
disapproval of the contingency measures submitted for the San Joaquin 
Valley \1\ nonattainment area for the 1997 PM2.5 NAAQS 
(``1997 PM2.5 standards'') \2\ has been corrected. We did so 
based on the Agency's approval of California regulations establishing 
standards and other requirements relating to the control of emissions 
from new on-road and new and in-use off-road vehicles and engines 
(herein, ``waiver measures'') into the California State Implementation 
Plan (SIP), and a finding that the purposes of the contingency measure 
requirement, as applicable to the San Joaquin Valley based on its 
initial designation as a nonattainment area for the 1997 
PM2.5 standards, have been fulfilled.
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    \1\ The San Joaquin Valley PM2.5 nonattainment area 
is located in the southern half of California's central valley and 
includes all of San Joaquin, Stanislaus, Merced, Madera, Fresno, 
Tulare, and Kings counties, and the valley portion of Kern County. 
See 40 CFR 81.305.
    \2\ The EPA promulgated the 1997 PM2.5 NAAQS at 62 FR 
38652 (July 18, 1997).
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    Our proposed rule provides a detailed background section that 
describes the relevant NAAQS, area designations, the relevant SIP 
submittal requirements, and the relevant SIP revisions submitted and 
either approved or disapproved by the EPA under Clean Air Act (CAA or 
``Act'') section 110.
    In short, under CAA section 172(c)(9), SIPs for areas designated as 
nonattainment for a NAAQS must be revised to provide for the 
implementation of specific measures (``contingency measures'') to take 
effect if the area fails to make reasonable further progress (RFP) or 
fails to attain by the applicable attainment date. The EPA disapproved 
the contingency measure element of a set of SIP revisions collectively 
referred to as the ``2008 PM2.5 Plan,'' which was developed 
and submitted by California to address SIP requirements triggered by 
the designation of the San Joaquin Valley as a nonattainment area for 
the 1997 PM2.5 NAAQS.\3\
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    \3\ 76 FR 69896 (November 9, 2011) (final action on the 2008 
PM2.5 Plan).
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    In response to the EPA's disapproval of the contingency measure 
element of the 2008 PM2.5 Plan, California submitted a SIP 
revision referred to as the ``2013 Contingency Measure SIP.'' The 2013 
Contingency Measure SIP primarily relied upon California's waiver 
measures, i.e., California mobile source regulations that had been 
waived or authorized by the EPA under CAA section 209, to provide post-
attainment year emissions reductions equivalent to one year's worth of 
RFP.\4\
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    \4\ One year's worth of RFP is the yardstick the EPA has cited 
historically as the approximate quantity of emissions reductions 
that contingency measures should provide to satisfy CAA section 
172(c)(9). See, e.g., 81 FR 58010, at 58066 (August 24, 2016) (final 
rule implementing the PM2.5 NAAQS).
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    The EPA approved,\5\ but later disapproved,\6\ the 2013 Contingency 
Measure SIP in the wake of a court decision \7\ that undermined the 
basis for the EPA's approval. The court decision at issue held that 
waiver measures must be approved into the SIP if California relies upon 
them to meet CAA SIP requirements, thereby rejecting the EPA's 
longstanding practice allowing California SIP credit for waiver 
measures notwithstanding their absence from the SIP. Our disapproval of 
the 2013 Contingency Measure SIP became effective on June 13, 2016, and 
started a sanctions clock for imposition of offset sanctions 18 months 
after June 13, 2016, and highway sanctions 6 months later, pursuant to 
CAA section 179 and our regulations at 40 CFR 52.31, unless the State 
submits and the EPA approves, prior to the implementation of the 
sanctions, a SIP submission that corrects the deficiencies identified 
in the disapproval action.\8\
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    \5\ 79 FR 29327 (May 22, 2014) (final action approving the 2013 
Contingency Measure SIP).
    \6\ 81 FR 29498 (May 12, 2016) (final action disapproving the 
2013 Contingency Measure SIP).
    \7\ Committee for a Better Arvin v. EPA, 786 F.3d 1169 (9th Cir. 
2015) (``Committee for a Better Arvin'') (partially granting and 
partially denying petition for review).
    \8\ The offset sanction applies to New Source Review (NSR) 
permits for new major stationary sources or major modifications 
proposed in a nonattainment area, and it increases the ratio of 
emissions reductions (i.e., offsets) to increased emissions from the 
new or modified source, which must be obtained to receive an NSR 
permit, to 2 to 1. The highway sanction prohibits, with certain 
exceptions, the U.S. Department of Transportation from approving or 
funding transportation projects in a nonattainment area.
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    Since the disapproval of the 2013 Contingency Measure SIP, we have 
approved the waiver measures as

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revisions to the California SIP,\9\ and our approval of them as part of 
the SIP addresses the specific deficiency that formed the basis of our 
May 12, 2016 disapproval of the 2013 Contingency Measure SIP. Moreover, 
since the 2014 attainment year (for the 2008 PM2.5 Plan), 
the waiver measures and related vehicle fleet turnover have achieved 
post-attainment year emission reductions equivalent to approximately 
one year's worth of RFP as calculated for the 2008 PM2.5 
Plan. The waiver measures have thus provided for sufficient progress 
towards attainment of the 1997 PM2.5 standards while a new 
attainment plan is being prepared.\10\ Therefore, in our proposed rule 
we found that the purposes of the contingency measure requirement, as 
applicable to the San Joaquin Valley based on the area's designation in 
2005 for the 1997 PM2.5 NAAQS, have been fulfilled, and we 
proposed to determine that the deficiency that formed the basis for the 
disapproval of the 2013 Contingency Measure SIP has been corrected. We 
are finalizing this determination in today's action.
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    \9\ 81 FR 39424 (June 16, 2016) and 82 FR 14446 (March 21, 
2017).
    \10\ In response to the EPA's determination of failure to attain 
the 1997 PM2.5 NAAQS, 81 FR 84481 (November 23, 2016), 
the San Joaquin Valley Unified Air Pollution Control District and 
California Air Resources Board are preparing a new attainment plan 
with contingency measures for the 1997 PM2.5 NAAQS for 
the San Joaquin Valley.
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    For a more detailed discussion of the regulatory context and 
rationale for our action, please see the proposed rule.

II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period 
which ended on November 22, 2017. During this period, we received no 
comments.

III. Final Action

    For the reasons given in our proposed rule and summarized herein, 
the EPA is making a final determination that the deficiency that formed 
the basis of our disapproval of the 2013 Contingency Measure SIP for 
the San Joaquin Valley for the 1997 PM2.5 NAAQS has been 
corrected by the approval of the waiver measures as a revision to the 
California SIP and the finding that the waiver measures have achieved 
post-2014 attainment year emissions reductions sufficient to fulfill 
the purposes of the contingency measure requirement in CAA section 
172(c)(9). This final determination permanently stops the sanctions 
clocks triggered by our disapproval of the 2013 Contingency Measure 
SIP. See CAA section 179(a) and 40 CFR 52.31(d)(5).
    In accordance with 5 U.S.C. 553(d), the EPA finds there is good 
cause for this action to become effective immediately upon publication. 
This is because a delayed effective date is unnecessary due to the 
nature of the determination made herein that a deficiency in a previous 
SIP approval has been corrected. The immediate effective date for this 
action is authorized under both 5 U.S.C. 553(d)(1), which provides that 
rulemaking actions may become effective less than 30 days after 
publication if the rule ``grants or recognizes an exemption or relieves 
a restriction,'' and section 553(d)(3), which allows an effective date 
less than 30 days after publication ``as otherwise provided by the 
agency for good cause found and published with the rule.'' The purpose 
of the 30-day waiting period prescribed in section 553(d) is to give 
affected parties a reasonable time to adjust their behavior and prepare 
before the final rule takes effect. This rulemaking, however, does not 
create any new regulatory requirement such that affected parties would 
need time to prepare before the rule takes effect. Rather, today's rule 
makes a determination that has the effect of permanently stopping 
sanctions clocks triggered by a previous SIP disapproval action. For 
these reasons, the EPA finds good cause under 5 U.S.C. 553(d)(3) for 
this action to become effective on the date of publication of this 
action.

IV. Statutory and Executive Order Reviews

    This action is a determination that a deficiency that is the basis 
for sanctions has been corrected and imposes no additional 
requirements. For that reason, this 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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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 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, this action does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because it will not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the federal government and 
Indian tribes, or on the distribution of power and responsibilities 
between the federal government and Indian tribes, as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 February 12, 2018. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not

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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, Sulfur oxides, 
Particulate matter.

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

    Dated: December 4, 2017.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 2017-26899 Filed 12-13-17; 8:45 am]
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