[Federal Register Volume 86, Number 184 (Monday, September 27, 2021)]
[Rules and Regulations]
[Pages 53223-53228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20618]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2020-0254; FRL-8727-02-R9]


Clean Air Plans; 2008 8-Hour Ozone Nonattainment Area 
Requirements; West Mojave Desert, California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve portions of state implementation plan (SIP) revisions 
submitted by the State of California to meet Clean Air Act (CAA or 
``Act'') requirements for the 2008 8-hour ozone national ambient air 
quality standards (NAAQS or ``standards'') in the Los Angeles-San 
Bernardino Counties (West Mojave Desert), California ozone 
nonattainment area (``West Mojave Desert'' or WMD). The SIP revisions 
address the ``Severe-15'' nonattainment area requirements for the 2008 
ozone NAAQS, including the requirements for emissions inventories, 
attainment demonstration, reasonable further progress, reasonably 
available control measures, and contingency measures, among others; and 
establishes motor vehicle emissions budgets. The EPA is approving the 
SIP revisions as meeting all the applicable ozone nonattainment area 
requirements, except for the contingency measures requirement, for 
which the EPA is deferring action.

DATES: This rule is effective on October 27, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2020-0254. 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 
disabilities 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: Tom Kelly, Air Planning Office (AIR-
2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105, (415) 
972-3856, or by email at kelly.thomasp@epa.gov.

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

I. Summary of the Proposed Action

    On May 10, 2021, the EPA proposed to approve, under CAA section 
110(k)(3), and to conditionally approve, under CAA section 110(k)(4), 
two SIP submittals from the California Air Resources Board (CARB) 
addressing planning obligations for the West Mojave Desert \1\ as a 
Severe-15 nonattainment area for the 2008 ozone NAAQS.\2\ The first, 
submitted June 2, 2017, includes attainment plans prepared by the 
Antelope Valley Air Quality Management District (AVAQMD) and the Mojave 
Desert Air Quality Management District (MDAQMD) (collectively, 
``Districts''), an accompanying staff report prepared by CARB (``CARB 
Staff Report''), and other supporting documents.\3\ We refer to all the 
documents submitted to the EPA on June 2, 2017, as the ``2016 WMD 
Attainment Plan.''
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    \1\ 86 FR 24809 (May 10, 2021). The West Mojave Desert consists 
of the northeast portion of Los Angeles County and the southwest 
portion of San Bernardino County. For a precise definition of the 
boundaries of the West Mojave Desert 2008 ozone nonattainment area, 
see 40 CFR 81.305.
    \2\ In accordance with CAA section 181(a)(1), 40 CFR 51.1102 and 
51.1103(a), nonattainment areas classified as Severe-15 must attain 
the NAAQS within 15 years of the effective date of the nonattainment 
designation.
    \3\ ``AVAQMD Federal 75 ppb Ozone Attainment Plan (Western 
Mojave Desert Nonattainment Area),'' adopted on March 21, 2017, 
``MDAQMD Federal 75 ppb Ozone Attainment Plan (Western Mojave Desert 
Nonattainment Area),'' adopted on February 27, 2017, and ``CARB 
Review of the Mojave Desert AQMD and Antelope Valley AQMD Federal 75 
ppb Ozone Attainment Plans for the Western Mojave Desert 
Nonattainment Area,'' released April 21, 2017.
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    The second submittal, sent on December 11, 2018, is the ``2018 
Updates to the California State Implementation Plan'' (``2018 SIP 
Update'').\4\ CARB adopted the 2018 SIP Update on October 25, 2018. 
CARB developed the 2018 SIP Update in response to the court's decision 
in South Coast II \5\ vacating the 2008 Ozone SIP Requirements Rule 
(``2008 Ozone SRR'') \6\ with respect to the use of an alternate 
baseline year for demonstrating reasonable further progress (RFP), and 
to address contingency measure requirements in the wake of the decision 
by the Ninth Circuit Court of Appeals in Bahr v. EPA (``Bahr'').\7\ The 
2018 SIP Update includes updates for eight different California ozone 
nonattainment areas. We have previously approved portions of the 2018 
SIP Update related to other nonattainment areas.\8\ For the West Mojave 
Desert, the 2018 SIP Update includes an RFP demonstration using the 
required 2011 baseline year and revised motor vehicle emission budgets 
for the 2008 ozone NAAQS.\9\
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    \4\ Letter dated December 5, 2018, from Richard Corey, Executive 
Officer, CARB, to Mike Stoker, Regional Administrator, EPA Region 
IX, and electronically transmitted to the EPA's State Planning 
Electronic Collaboration System on December 11, 2018.
    \5\ South Coast Air Quality Management District v. EPA, 882 F.3d 
1138 (D.C. Cir. 2018). The term ``South Coast II'' is used in 
reference to the 2018 court decision to distinguish it from a 
decision published in 2006 also referred to as ``South Coast.'' The 
earlier decision involved a challenge to the EPA's Phase 1 
implementation rule for the 1997 ozone NAAQS. South Coast Air 
Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006).
    \6\ 2008 Ozone SRR, 80 FR 12264, 12283 (March 6, 2015).
    \7\ Bahr v. EPA, 836 F.3d 1218 (9th Cir. 2016). In this case, 
the court rejected the EPA's longstanding interpretation of CAA 
section 172(c)(9) as allowing for early implementation of 
contingency measures. The court concluded that a contingency measure 
must take effect at the time the area fails to make RFP or attain by 
the applicable attainment date, not before. See also Sierra Club v. 
EPA, 985 F.3d 1055 (D.C. Cir. 2021), reaching a similar decision. 
These cases are addressed below in Section III.G of this document.
    \8\ See, e.g., 84 FR 11198 (March 25, 2019) (final approval of 
the San Joaquin Valley portion of the 2018 SIP Update) and 84 FR 
52005 (October 1, 2019) (final approval of the South Coast portion 
of the 2018 SIP Update).
    \9\ CARB withdrew the 2016 WMD Attainment Plan RFP demonstration 
in a letter dated December 18, 2019, from Richard Corey, Executive 
Officer, CARB, to Michael Stoker, Regional Administrator, EPA Region 
IX.
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    In our proposed rule, we provided background information on the 
ozone standards,\10\ area designations, and

[[Page 53224]]

related SIP revision requirements under the CAA and the EPA's 
implementing regulations for the 2008 ozone standards, referred to as 
the 2008 Ozone SRR. To summarize, the West Mojave Desert is classified 
as Severe-15 for the 2008 ozone NAAQS, and CARB's submittals were 
developed to address the statutory and regulatory requirements for 
revisions to the SIP for the West Mojave Desert Severe-15 ozone 
nonattainment area.
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    \10\ The 1-hour ozone NAAQS is 0.12 parts per million (ppm) 
(one-hour average), the 1997 ozone NAAQS is 0.08 ppm (eight-hour 
average), and the 2008 ozone NAAQS is 0.075 ppm (eight-hour 
average).
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    Under the 2008 Ozone SRR, areas classified as Severe-15 for the 
2008 ozone NAAQS must demonstrate attainment within 15 years of the 
effective date of the nonattainment designation, July 20, 2027, and 
states must implement all control measures needed for attainment no 
later than the beginning of the attainment year ozone season.\11\ The 
attainment year ozone season is defined as the ozone season immediately 
preceding a nonattainment area's outermost attainment date, or 2026.
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    \11\ 80 FR 12264 (March 6, 2015).
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    Our proposed conditional approval of the contingency measures 
element of the 2016 WMD Attainment Plan relied on specific commitments: 
(1) The MDAQMD would submit a board resolution further detailing the 
circumstances, timing, and procedure for implementing this contingency 
measure, within 11 months of the EPA's final conditional approval of 
the contingency measures element of the 2016 WMD Attainment Plan,\12\ 
and (2) CARB would submit the adopted board resolution to the EPA as a 
SIP revision within 12 months of the EPA's final action.\13\ For more 
information on these SIP submittals and related commitments, please see 
our proposed rule.
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    \12\ Letter dated March 29, 2021, from Brad Poiriez, Executive 
Officer, MDAQMD, to Richard Corey, Executive Officer, CARB.
    \13\ Letter dated April 9, 2021, from Michael Benjamin, Chief, 
Air Quality Planning and Science Division, CARB, to Deborah Jordan, 
Acting Regional Administrator, EPA Region IX. CARB's letter also 
forwarded the MDAQMD's commitment letter to the EPA. The MDAQMD's 
letter is dated March 29, 2021, from Brad Poiriez, Executive 
Officer, MDAQMD, to Richard Corey, CARB Executive Officer.
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    In our proposed rule, we reviewed the various SIP elements 
contained in CARB's submittals, evaluated them for compliance with 
statutory and regulatory requirements, and concluded that they meet all 
applicable requirements, except for the contingency measure 
requirement, for which the EPA proposed conditional approval. More 
specifically, in our proposed rule, we based our proposed actions on 
the following determinations:
     CARB and the Districts met all applicable procedural 
requirements for public notice and hearing prior to the adoption and 
submittal of the 2016 WMD Attainment Plan and the 2018 SIP Update; \14\
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    \14\ 86 FR 24809, 24812.
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     The 2012 base year emissions inventory from the 2016 WMD 
Attainment Plan is comprehensive, accurate, and current, and therefore 
meets the requirements of CAA sections 172(c)(3) and 182(a)(1) and 40 
CFR 51.1115. Additionally, the future year baseline projections reflect 
appropriate calculation methods and the latest planning assumptions and 
are properly supported by the SIP-approved stationary and mobile source 
measures; \15\
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    \15\ Id. at 24812-24814 and 24816-24819.
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     The emissions statement element of the 2016 WMD Attainment 
Plan meets the requirements for emissions statements under CAA section 
182(a)(3)(B) and 40 CFR 51.1102 for the 2008 ozone NAAQS; \16\
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    \16\ Id. at 24814-24815.
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     The process followed by the Districts to identify 
reasonably available control measures (RACM) is generally consistent 
with the EPA's recommendations; the Districts' rules provide for the 
implementation of RACM for stationary and area sources of oxides of 
nitrogen (NOX) and volatile organic compounds (VOC); \17\ 
CARB and the Districts provide for the implementation of RACM for 
mobile sources of NOX and VOC; there are no additional RACM 
that would advance attainment of the 2008 ozone NAAQS in the West 
Mojave Desert by at least one year; and therefore, the 2016 WMD 
Attainment Plan provides for the implementation of all RACM as required 
by CAA section 172(c)(1) and 40 CFR 51.1112(c); \18\
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    \17\ Ground-level ozone pollution is formed from the reaction of 
VOC and NOX in the presence of sunlight. CARB refers to 
reactive organic gases (ROG) in some of its ozone-related 
submittals. The CAA and the EPA's regulations refer to VOC, rather 
than ROG, but both terms cover essentially the same set of gases.
    \18\ 86 FR 24809, 24815-24816.
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     The photochemical modeling in the 2016 WMD Attainment Plan 
shows that existing CARB and District control measures are sufficient 
to attain the 2008 ozone NAAQS by the applicable attainment date, July 
20 2027; given the documentation in the 2016 WMD Attainment Plan of 
modeling procedures and good model performance, the modeling is 
adequate to support the attainment demonstration; and therefore the 
2016 WMD Attainment Plan meets the attainment demonstration 
requirements of CAA section 182(c)(2)(A) and 40 CFR 51.1108; \19\
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    \19\ Id. at 24816-24819.
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     The RFP demonstration in the 2018 SIP Update provides for 
emissions reductions of VOC or NOX of at least 3 percent per 
year on average for each three-year period, beginning 6 years after the 
baseline year until the attainment date, and thereby meets the 
requirements of CAA sections 172(c)(2) and 182(c)(2)(B) and 40 CFR 
51.1110(a)(2)(ii); \20\
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    \20\ Id. at 24819-24821.
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     The vehicle miles traveled (VMT) emissions offset 
demonstration shows that CARB and the Southern California Association 
of Governments have adopted sufficient transportation control 
strategies and transportation control measures to offset the growth in 
emissions from growth in VMT and vehicle trips in the West Mojave 
Desert, and thereby complies with the VMT emissions offset requirement 
in CAA section 182(d)(1)(A) and 40 CFR 51.1102 for the 2008 ozone 
NAAQS; \21\
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    \21\ Id. at 24821-24823.
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     The motor vehicle emissions budgets in the 2018 SIP Update 
are consistent with the RFP demonstration, are clearly identified and 
precisely quantified, and meet all other applicable statutory and 
regulatory requirements in 40 CFR 93.118(e), including the adequacy 
criteria in 40 CFR 93.118(e)(4) and (5); \22\ and
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    \22\ Id. at 24825-24827. In light of CARB's request to limit the 
duration of the approval of the budgets in the 2018 SIP Update and 
in anticipation of the EPA's approval, in the near term, of an 
updated version of CARB's EMFAC (short for EMission FACtor) model 
for use in SIP development and transportation conformity in 
California to include updated vehicle mix and emissions data, we 
proposed to limit the duration of our approval of the budgets until 
replacement budgets have been found adequate. See id. at 24827.
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     Through previous EPA approvals of California's vehicle 
inspection and maintenance (I/M) program, the 1994 ``Opt-Out Program'' 
SIP revision, the 1993 Photochemical Assessment Monitoring Station SIP 
revision, and the 2020 annual monitoring network plan for the West 
Mojave Desert, the 2016 WMD Attainment Plan adequately addresses, for 
the 2008 ozone NAAQS, the enhanced I/M requirements in CAA section 
182(c)(3) and 40 CFR 51.1102; the clean fuels fleet program in CAA 
sections 182(c)(4) and 246 and 40 CFR 51.1102; and the enhanced ambient 
air monitoring requirements in CAA section 182(c)(1) and 40 CFR 
51.1102.\23\
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    \23\ Id. at 24827-24828.

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[[Page 53225]]

    For the enhanced I/M element, the proposed rule notes that an 
enhanced I/M program is currently implemented in a portion of the West 
Mojave Desert.\24\ As summarized above, the proposed rule identifies 
this program as a required element for the area under CAA section 
182(c)(3). On review, however, we have confirmed that the West Mojave 
Desert does not meet the population threshold in CAA section 
182(c)(3),\25\ and therefore is not subject to the enhanced I/M 
requirement for the 2008 ozone NAAQS. The State of California has 
elected to implement an enhanced I/M vehicle program in portions of the 
West Mojave Desert as part of the ozone control strategy for the area. 
We most recently approved California's I/M program in 2010.\26\
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    \24\ Id. at 24827.
    \25\ 40 CFR 51.350(a)(2) (requiring enhanced I/M in any 1990 
Census-defined urbanized area within an ozone nonattainment area 
classified as Serious or above with a 1980 Census-defined urbanized 
area with a population of 200,000 or more).
    \26\ 75 FR 38023 (July 1, 2010). See also related notice of 
proposed rulemaking at 74 FR 41818 (August 19, 2009).
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    In light of the Bahr decision, the MDAQMD \27\ and CARB \28\ 
committed to supplement the contingency measure element through 
submission, as a SIP revision (within one year of our final conditional 
approval action), of a board resolution further detailing the 
circumstances, timing, and procedures for implementing I/M in the 
portion of the West Mojave Desert not subject to enhanced I/M,\29\ if 
an RFP milestone is not met or if the area fails to attain the 2008 
ozone NAAQS by the applicable attainment date.\30\ The EPA proposed to 
conditionally approve the contingency measure element as meeting the 
requirements of CAA sections 172(c)(9) and 182(c)(9). Please see our 
proposed rule for more information concerning the background for this 
action and for a more detailed discussion of the rationale for approval 
or conditional approval of the above-listed elements of CARB's 
submittals.
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    \27\ Letter dated March 29, 2021, from Brad Poiriez, Executive 
Officer, MDAQMD, to Richard Corey, CARB Executive Officer.
    \28\ Letter dated April 9, 2021, from Michael Benjamin, Chief, 
Air Quality Planning and Science Division, CARB, to Deborah Jordan, 
Acting Regional Administrator, EPA Region IX. CARB's letter also 
forwarded the MDAQMD's commitment letter to the EPA.
    \29\ As described in the proposed rule, enhanced I/M is 
implemented in the West Mojave Desert in all of the area under the 
jurisdiction of the AVAQMD and in a portion of the area under the 
jurisdiction of the MDAQMD.
    \30\ 86 FR 24809, 24823-24825.
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II. Public Comments and EPA Responses

    The public comment period on the proposed rule opened on May 10, 
2021, the date of its publication in the Federal Register, and closed 
on June 9, 2021. During this period, the EPA received two comment 
letters, one submitted by an individual and one submitted by the 
Colorado River Indian Tribes (CRIT or ``Tribes''). We address the 
comments in the following paragraphs of this final rule.
    Comment #1: CRIT objected to language in the proposal stating that 
``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,'' and that the proposed action therefore ``does 
not have tribal implications and will not impose substantial direct 
costs on tribal governments or preempt tribal law'' in these areas. 
CRIT argued that this analysis takes an overly narrow view of tribal 
interests, noting that the Tribes' ancestral homelands extend far 
beyond the boundaries of the Tribes' reservation, and that these areas 
have substantial cultural, spiritual, and religious significance for 
the Tribes. For this reason, CRIT stated, they have an interest in 
ensuring that air quality impacts in the West Mojave Desert are 
adequately considered and mitigated, even where they lack jurisdiction. 
CRIT observed that the EPA has a responsibility to consult on a 
government-to-government basis with federally recognized tribal 
governments when EPA actions and decisions may affect tribal interests, 
based on Executive Order 13175 and the EPA Region IX draft tribal 
consultation guidelines,\31\ and stated that this responsibility is not 
limited to actions on lands where tribes have jurisdiction.\32\ CRIT 
requested a 15-day extension to review the proposal and provide 
comments, because they were not provided notice of the proposal and 
were not aware of any formal consultation occuring between the EPA and 
tribes located within the West Mojave Desert.
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    \31\ EPA Region IX, ``EPA Tribal Consultation Best Practices for 
Air and Radiation Division Regulatory Actions (Draft),'' September 
2020 (``Draft Consultation Best Practices'').
    \32\ CRIT also cites California state authorities governing 
state tribal consultation procedures and indicates that it sent its 
comments to CARB.
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    Response to Comment #1: As indicated in the EPA Region IX tribal 
consultation document cited by the commenter, for proposed Planning 
Office actions on SIP submittals that do not affect the designation or 
classification of a nonattainment area (e.g., attainment plans), our 
general practice is to provide notification to tribes located within 
the applicable nonattainment area, and to consult with tribes if 
requested.\33\ We recognize that EPA actions may also be of interest to 
tribes with jurisdictional lands located outside of the nonattainment 
area. For this reason, going forward, we intend to provide notification 
of these SIP actions to tribes that have expressed interest in EPA 
rulemaking within the area, in addition to tribes with jurisdictional 
lands located within the area. Consistent with this approach, we will 
include CRIT on future notifications for planning actions related to 
the West Mojave Desert nonattainment area.
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    \33\ Draft Consultation Best Practices at 6. The EPA issued a 
final version of this document on August 22, 2021. See EPA Region 
IX, ``EPA Tribal Consultation Best Practices for Air and Radiation 
Division Regulatory Actions,'' August 22, 2021.
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    On June 17, 2021, the EPA sent a letter inviting CRIT to discuss 
this proposed action and any concerns the Tribes might have, and to 
offer CRIT the chance to provide additional input on the action by July 
2, 2021, consistent with our practices for tribal consultation and 
involvement.\34\ CRIT did not request additional discussions with the 
EPA or provide any additional input on this proposed action.
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    \34\ Letter dated June 17, 2021, from Elizabeth J. Adams, 
Director, Air and Radiation Division, EPA Region IX, to Amelia 
Flores, Chairperson, Colorado River Indian Tribes.
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    Comment #2: CRIT commented that the EPA's analysis does not address 
whether CARB's control measures for off-road mobile sources will reduce 
overall use of those sources. CRIT explained that the Tribes have been 
involved in other regional planning efforts regarding off-road vehicles 
in the West Mojave Desert, and are concerned about the impact of off-
road vehicle use on cultural resources and the potential for removal of 
artifacts.
    Response to Comment #2: Off-road mobile sources include trains, 
aircraft, off-road equipment (e.g., construction and mining vehicles) 
and off-road recreational vehicles (e.g., off-road motorcycles and all-
terrain vehicles). Within the off-road mobile source category, off-road 
recreational vehicles constitute a relatively small portion of the 
overall inventory.\35\ To the extent

[[Page 53226]]

that on-road vehicles travel off-road, these emissions would be 
captured within the on-road category. Federal and CARB regulations do 
not generally rely on operational limits to achieve emission 
reductions. For example, one State measure approved into the California 
SIP rule restricts off-road vehicles that do not meet current emission 
standards (e.g., older off-road vehicles) from operating in ozone 
nonattainment areas during periods when the area may not attain the 
ozone standards (e.g., summer months) but does not limit the operation 
of compliant off-road vehicles.\36\ Another State rule approved into 
the SIP limits evaporative emission of fuel for off-road vehicles.\37\ 
As related to attainment of the 2008 ozone NAAQS, California measures 
related to off-road vehicles generally ensure that emissions of ozone 
precursors from this source category are controlled within the 
nonattainment area, but do not restrict or reduce overall usage of off-
road engines meeting current emissions standards. We recognize the 
concerns expressed by CRIT related to the impacts of off-road vehicle 
usage on cultural resources and artifacts. The Bureau of Land 
Management and the National Park Service, within the U.S. Department of 
the Interior, oversee off-road vehicle use in the eastern portion of 
the West Mojave Desert and may have additional information regarding 
use of off-road vehicles in the West Mojave Desert and potential 
impacts to cultural resources.
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    \35\ Emissions from off-road recreational vehicles are estimated 
at 0.034 tons per day (tpd) of NOX in the 2012 baseline 
year (0.1 percent of total off-road emissions), and 0.05 tpd in the 
2026 attainment year (0.3 percent of total off-road emissions). In 
contrast, emissions from trains are estimated at more than 28 tpd of 
NOX in 2012 (87 percent of total off-road emissions) and 
12.5 tpd in 2026 (80 percent of total off-road emissions). Values 
for 2012 are from the CARB Staff Report, Appendix A-2, and values 
from 2018 SIP Update.
    \36\ California Health and Safety Code Title 13, Division 3, 
Chapter 9, Article 3, Section 2413, was approved as a Clean Air Act 
waiver measure, 79 FR 6584 (February 4, 2014), and as a revision to 
the California SIP, 81 FR 39424 (June 16, 2016).
    \37\ California Health and Safety Code Title 13, Division 3, 
Chapter 9, Article 3, Section 2412, was approved as a Clean Air Act 
waiver measure, 79 FR 6584 (February 4, 2014), and as a revision to 
the California SIP, 81 FR 39424 (June 16, 2016).
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    Comment #3: Both commenters suggested that the 2016 WMD Attainment 
Plan should be revised to demonstrate attainment of the 2015 ozone 
NAAQS (0.070 ppm), rather than the 2008 ozone NAAQS (0.075 ppm), 
arguing that it would be more efficient to address the more recent 
standards as part of this SIP revision. The individual commenter stated 
that the EPA's failure to require this revision could be challenged as 
arbitrary and capricious under the Administrative Procedure Act.
    Response to Comment #3: The EPA agrees with the commenters 
regarding the importance of the West Mojave Desert timely addressing 
and attaining the 2015 ozone NAAQS. Nonetheless, the 2008 ozone NAAQS 
remain in effect for all areas, and the Western Mojave Desert remains 
subject to planning obligations for these standards, in addition to its 
new and overlapping obligations for the more stringent 2015 ozone 
NAAQS. Therefore, we disagree that the State must revise the 2016 WMD 
Attainment Plan to address the 2015 ozone NAAQS.
    As described in the proposed rule, under CAA section 109, the EPA 
promulgates primary and secondary NAAQS for pervasive air pollutants 
such as ozone, and periodically reviews these NAAQS to determine 
whether to revise them or to establish new standards.\38\ Under CAA 
section 110, states with nonattainment areas must submit SIP revisions 
to attain these NAAQS, and to meet other requirements based on 
nonattainment classification. When EPA revises a NAAQS to lower the 
level of the standard, the previous NAAQS remain in effect until 
revoked; after a NAAQS is revoked, areas designated nonattainment for 
that NAAQS remain subject to continuing applicable requirements as 
``anti-backsliding'' obligations.\39\
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    \38\ See 88 FR at 24810.
    \39\ See, e.g., 40 CFR 51.1105 (anti-backsliding obligations for 
1-hour and 1997 ozone NAAQS).
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    The proposed rule describes the requirements for the 2008 ozone 
NAAQS, and how the 2016 WMD Attainment Plan satisfies the obligations 
of the West Mojave Desert as a Severe-15 nonattainment area for this 
standard, including the obligation to demonstrate attainment of the 
2008 NAAQS by no later than July 20, 2027. The EPA's subsequent 
promulgation of the 2015 ozone NAAQS does not relieve the area from 
these obligations for the 2008 ozone NAAQS. Similarly, the EPA's 
approval of the 2016 WMD Attainment Plan does not relieve the area of 
its obligations for the 2015 ozone NAAQS. For the 2015 ozone NAAQS, 
California is required to submit a plan to address most elements for 
the West Mojave Desert by August 3, 2022, and to demonstrate attainment 
by no later than August 3, 2033.\40\ Our approval of the 2016 WMD 
Attainment Plan will ensure that the attainment plan is federally 
enforceable as a mechanism for attaining the 2008 ozone NAAQS. 
Additionally, we anticipate that implementation of the West Mojave 
Desert control strategy for the 2008 ozone NAAQS as described in the 
2016 WMD Attainment Plan will aid in the area's attainment of the 2015 
ozone NAAQS by ensuring that the area realizes consistent emissions 
reductions while the State undertakes planning efforts for the more 
stringent standards. The EPA will work with CARB and the Districts to 
ensure that requirements applicable to the 2015 NAAQS are addressed in 
a later submittal for the West Mojave Desert.
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    \40\ See 40 CFR 51.1303(a) and 51.1308(b). The EPA designated 
the West Mojave Desert as nonattainment for the 2015 ozone NAAQS 
effective August 3, 2018. 83 FR 25776 (June 4, 2018).
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III. Final Action

    No comments were submitted that change our assessment of CARB's 
submittals as described in our proposed action. Therefore, for the 
reasons discussed in detail in the proposed rule and summarized herein, 
under CAA section 110(k)(3), the EPA is taking final action to approve 
as a revision to the California SIP the following portions of the 2016 
WMD Attainment Plan for the 2008 ozone NAAQS, submitted by CARB on June 
2, 2017, and the 2018 SIP Update, submitted on December 11, 2018:
     Base year emissions inventory element in the 2016 WMD 
Attainment Plan as meeting the requirements of CAA sections 172(c)(3) 
and 182(a)(1) and 40 CFR 51.1115;
     Emissions statement element in the 2016 WMD Attainment 
Plan as meeting the requirements of CAA section 182(a)(3)(B) and 40 CFR 
51.1102;
     RACM demonstration element in the 2016 WMD Attainment 
Plan, as meeting the requirements of CAA section 172(c)(1) and 40 CFR 
51.1112(c);
     Attainment demonstration element in the 2016 WMD 
Attainment Plan as meeting the requirements of CAA section 182(c)(2)(A) 
and 40 CFR 51.1108;
     RFP demonstration element in the 2018 SIP Update as 
meeting the requirements of CAA sections 172(c)(2), 182(b)(1), and 
182(c)(2)(B), and 40 CFR 51.1110(a)(2)(ii);
     VMT emissions offset demonstration element in the 2016 WMD 
Attainment Plan as meeting the requirements of CAA section 182(d)(1)(A) 
and 40 CFR 51.1102; and
     Motor vehicle emissions budgets in the 2018 SIP Update for 
the 2020 and 2023 RFP milestone year and the 2026 attainment year 
because they are consistent with the RFP and attainment demonstrations 
approved herein and meet the other criteria in 40 CFR 93.118(e).

[[Page 53227]]



 Table 1--Transportation Conformity Budgets for 2020 for the 2008 Ozone
                     NAAQS in the West Mojave Desert
                     [Average summer weekday, tpd] a
------------------------------------------------------------------------
                  Budget year                       VOC          NOX
------------------------------------------------------------------------
2020..........................................          3.7          8.4
2023..........................................          3.3          4.6
2026..........................................          3.0          4.2
------------------------------------------------------------------------
\a\ Source: Table VI-3 from the 2018 SIP Update.

    We are also taking final action to find that the:
     2020 budgets from the 2018 SIP Update (Table 1) are 
adequate for transportation conformity purposes; \41\
---------------------------------------------------------------------------

    \41\ Pursuant to 40 CFR 93.118(f)(2)(iii), the EPA's adequacy 
determination is effective upon publication of this final rule in 
the Federal Register.
---------------------------------------------------------------------------

     Clean fuels fleet program element in the 2016 WMD 
Attainment Plan meets the requirements of CAA sections 182(c)(4)(A) and 
246 and 40 CFR 51.1102 for the 2008 ozone NAAQS; and
     Enhanced monitoring element in the 2016 WMD Attainment 
Plan meets the requirements of CAA section 182(c)(1) and 40 CFR 51.1102 
for the 2008 ozone NAAQS.
    With respect to the budgets, we are taking final action to limit 
the duration of our approval to last only until the effective date of 
the EPA's adequacy finding for any subsequently submitted budgets. We 
are doing so at CARB's request and in light of the benefits of using 
EMFAC2017-derived budgets \42\ prior to our taking final action on the 
future SIP revision that includes the updated budgets.
---------------------------------------------------------------------------

    \42\ On August 15, 2019, the EPA approved and announced the 
availability of EMFAC2017, the latest update to the EMFAC model for 
use by state and local governments to meet CAA requirements. See 84 
FR 41717 (August 15, 2019).
---------------------------------------------------------------------------

    As described above, the proposed rule also proposed to 
conditionally approve, under CAA section 110(k)(4), the contingency 
measure element of the 2016 WMD Attainment Plan as meeting the 
requirements of CAA sections 172(c)(9) and 182(c)(9) for RFP and 
attainment contingency measures. Following publication of the proposed 
rule, the Ninth Circuit Court of Appeals issued a decision in 
Association of Irritated Residents v. U.S. Environmental Protection 
Agency, which remanded the EPA's conditional approval of contingency 
measures for another California nonattainment area.\43\ Based on this 
decision, we are deferring final action on the contingency measure 
element.
---------------------------------------------------------------------------

    \43\ Association of Irritated Residents v. U.S. Environmental 
Protection Agency, No. 19-71223 (9th Cir. Aug. 26, 2021).
---------------------------------------------------------------------------

    Finally, we are amending the regulatory text at 40 CFR 
52.220(c)(514) to identify the submittal date for the 2018 SIP Update 
as December 11, 2018, the date that the submittal was electronically 
received through the State Planning Electronic Collaboration System. 
The current regulatory text identifies the submittal date as December 
5, 2018, which is the date of the CARB cover letter accompanying the 
submittal.

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 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 13563 (76 FR 3821, January 21, 2011);
     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 Clean Air Act; and
     Does not provide the 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, 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).
    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 November 26, 2021. 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 dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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


[[Page 53228]]


    Dated: September 18, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.

    For the reasons stated in the preamble, the EPA amends 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 revising paragraph (c)(514) 
introductory text and adding paragraphs (c)(514)(ii)(A)(9) and (c)(563) 
to read as follows:


Sec.  52.220   Identification of plan--in part.

* * * * *
    (c) * * *
    (514) The following plan was submitted on December 11, 2018, by the 
Governor's designee as an attachment to a letter dated December 5, 
2018.
* * * * *
    (ii) * * *
    (A) * * *
    (9) 2018 Updates to the California State Implementation Plan, 
adopted on October 25, 2018, chapter VI (``SIP Elements for the Western 
Mojave Desert''), and pages A-19 through A-22 of Appendix A 
(``Nonattainment Area Inventories'').
* * * * *
    (563) The following plan was submitted on June 2, 2017 by the 
Governor's designee.
    (i) [Reserved]
    (ii) Additional materials. (A) California Air Resources Board
    (1) CARB Review of the Mojave Desert AQMD and Antelope Valley AQMD 
Federal 75 ppb Ozone Attainment Plans for the Western Mojave Desert 
Nonattainment Area, released April 21, 2017.
    (2) [Reserved]
    (B) Antelope Valley Air Quality Management District.
    (1) AVAQMD Federal 75 ppb Ozone Attainment Plan (Western Mojave 
Desert Nonattainment Area), adopted on March 21, 2017, except the 
following portions: Chapter 2--Emission Inventories; ``Reasonable 
Further Progress Requirements,'' including Table 3 (pages 18-20); 
``Conformity Budgets'' (page 21); ``Transportation Conformity,'' 
including Table 4 (pages 21-23); Appendix A--Base Year Emission 
Inventory; and Appendix B--Future Year Emission Inventories.
    (2) [Reserved]
    (C) Mojave Desert Air Quality Management District
    (1) MDAQMD Federal 75 ppb Ozone Attainment Plan (Western Mojave 
Desert Nonattainment Area), adopted on February 27, 2017, except the 
following portions: Chapter 2--Emission Inventories; ``Reasonable 
Further Progress Requirements,'' including Table 3 (pages 20-22); 
``Conformity Budgets'' (page 23); ``Transportation Conformity,'' 
including Table 4 (pages 23-25); Appendix A--Base Year Emission 
Inventory; and Appendix B--Future Year Emission Inventories.
    (2) [Reserved]
* * * * *

0
3. Section 52.244 is amended by adding paragraph (a)(13) to read as 
follows:


Sec.  52.244   Motor vehicle emissions budgets.

    (a) * * *
    (13) West Mojave Desert, approved October 27, 2021.
* * * * *
[FR Doc. 2021-20618 Filed 9-24-21; 8:45 am]
BILLING CODE 6560-50-P


