[Federal Register Volume 88, Number 115 (Thursday, June 15, 2023)]
[Rules and Regulations]
[Pages 39179-39182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12634]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2020-0425; FRL-10618-02-R9]


Disapproval of Clean Air Plans; Sacramento Metro, California; 
Contingency Measures for 2008 Ozone Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to disapprove under the Clean Air Act (CAA or ``Act''), state 
implementation plan (SIP) submissions from the State of California that 
address contingency measures requirements for the 2008 ozone national 
ambient air quality standards (NAAQS) in the Sacramento Metro, 
California ozone nonattainment area. The EPA is finalizing this 
disapproval because the SIP submissions do not provide for contingency 
measures that would be triggered if the area fails to attain the NAAQS 
or make reasonable further progress (RFP).

DATES: This rule is effective on July 17, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2020-0425. 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: Laura Lawrence, EPA Region IX, (415) 
972-3407, [email protected].

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

Table of Contents

I. Summary of Proposed Action
    A. Regulatory Background
    B. State Submissions and Previous EPA Actions
    C. Contingency Measures Requirements
II. Public Comments
III. Final Action and Clean Air Act Consequences
IV. Statutory and Executive Order Reviews

I. Summary of Proposed Action

A. Regulatory Background

    On March 28, 2023, the EPA proposed to disapprove under the CAA, 
SIP submissions from the State of California that address the 
contingency measures requirements for the 2008 ozone NAAQS for the 
Sacramento Metro, California ozone nonattainment area.\1\ This proposed 
disapproval addressed the contingency measures portions of the 
following two SIP submissions: the ``Sacramento Regional 2008 NAAQS 8-
hour Ozone Attainment and Reasonable

[[Page 39180]]

Further Progress Plan,'' submitted in 2017 (``2017 Sacramento Regional 
Ozone Plan''), and the Sacramento Metro portion of the ``2018 Updates 
to the California State Implementation Plan,'' submitted in 2018 
(``2018 SIP Update''). In this same rulemaking, we also proposed to 
make a protective finding for the Sacramento Metro area under the 
transportation conformity rule.\2\ The Sacramento Metro ozone 
nonattainment area consists of Sacramento and Yolo counties, and 
portions of El Dorado, Placer, Solano, and Sutter counties, and is 
regulated by the California Air Resources Board (CARB or ``State'') and 
five local air districts (``Districts'').\3\ The area has a 
classification of ``Severe-15'' for the 2008 ozone NAAQS, with an 
attainment date of December 31, 2024. Accordingly, the area is subject 
to the requirements for Severe ozone nonattainment areas, including the 
requirement to submit contingency measures consistent with CAA 
172(c)(9) and 182(c)(9), as discussed further in Section I.C of this 
document.
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    \1\ 88 FR 18286.
    \2\ Id. at 18289. For an explanation of the consequences of a 
protective finding under the transportation conformity rule, see 
footnote 19 in Section III of this document.
    \3\ The five local air districts with jurisdiction in the area 
are the El Dorado County Air Quality Management District (EDCAQMD), 
the Feather River Air Quality Management District (FRAQMD), the 
Placer County Air Pollution Control District (PCAPCD), the 
Sacramento Metropolitan Air Quality Management District (SMAQMD), 
and the Yolo-Solano Air Quality Management District (YSAQMD).
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    Our proposed action includes additional information about ozone and 
its precursor emissions, the Sacramento Metro nonattainment area, and 
the CAA regulatory framework for ozone nonattainment areas, including 
submittal requirements established in the EPA's SIP Requirements Rule 
for the 2008 ozone NAAQS.\4\
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    \4\ 88 FR 18286, 18287-18289.
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B. State Submissions and Previous EPA Actions

    CARB submitted the 2017 Sacramento Regional Ozone Plan to the EPA 
as a revision to the California SIP on December 18, 2017,\5\ and 
submitted the 2018 SIP Update to the EPA as a revision to the 
California SIP on December 11, 2018.\6\ The 2018 SIP Update provides 
updates to prior SIP submittals for eight California nonattainment 
areas, including the Sacramento Metro area, in response to the decision 
by the U.S. Court of Appeals for the Ninth Circuit (``Ninth Circuit'') 
in Bahr v. EPA.\7\ Both submittals address nonattainment area 
requirements for the Sacramento Metro area concerning the 2008 ozone 
NAAQS, including the contingency measures requirements.\8\ In 2020, 
CARB \9\ and the Districts \10\ committed to supplement the contingency 
measures elements in the 2017 Sacramento Regional Ozone Plan and the 
2018 SIP Update by adopting and submitting, within 12 months of a final 
conditional approval of the contingency measures element, additional 
contingency measures that would be triggered upon the area's failure to 
attain or to meet RFP.
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    \5\ Letter dated December 18, 2017, from Richard Corey, 
Executive Officer, CARB, to Alexis Strauss, Acting Regional 
Administrator, EPA Region IX.
    \6\ Letter dated December 5, 2018, from Richard Corey, Executive 
Officer, CARB, to Mike Stoker, Regional Administrator, EPA Region IX 
(submitted electronically December 11, 2018).
    \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.
    \8\ For a more complete description of the 2017 Sacramento 
Regional Ozone Plan and 2018 SIP Update as they relate to the 
Sacramento Metro nonattainment area for the 2008 ozone NAAQS, see 85 
FR 68509, 68512 (October 29, 2020).
    \9\ Letter dated July 7, 2020, from Richard W. Corey, Executive 
Officer, CARB, to John Busterud, Regional Administrator, EPA Region 
IX.
    \10\ Letter dated May 26, 2020, from Alberto Ayala, Ph.D., 
M.S.E, Executive Officer/Air Pollution Control Officer, SMAQMD, Dave 
Johnston, Air Pollution Control Officer, EDCAQMD, Christopher Brown, 
AICP, Air Pollution Control Officer, FRAQMD, Erik White, Air 
Pollution Control Officer, PCAPCD, and Mat Erhardt, P.E., Executive 
Director/Air Pollution Control Officer, YSAQMD, to Richard Corey, 
Executive Officer, CARB, Subject: ``Commitments from the Sacremento 
Regional 2008 NAAOS 8-Hour Zone Attainment and Reasonable Further 
Progress Plan.''
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    The EPA previously approved the 2017 Sacramento Regional Ozone Plan 
and the 2018 SIP Update as meeting the emissions inventory, attainment 
demonstration, reasonable further progress, reasonable available 
control measures, and motor vehicle emissions budgets requirements for 
the 2008 ozone NAAQS for the Sacramento Metro nonattainment area.\11\
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    \11\ 86 FR 58581 (October 22, 2021).
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    Regarding the contingency measures requirements, on October 29, 
2020, we proposed to conditionally approve the contingency measures 
element of the 2017 Sacramento Regional Ozone Plan and the 2018 SIP 
Update, based on the commitments by the Districts and CARB to submit 
the new and amended District rules to the EPA within 12 months of a 
final conditional approval of the contingency measures element for the 
Sacramento Metro area.\12\ On August 26, 2021, the Ninth Circuit issued 
a decision in Association of Irritated Residents v. U.S. Environmental 
Protection Agency \13\ (``AIR v. EPA'') which remanded the EPA's 
conditional approval of contingency measures for the San Joaquin Valley 
nonattainment area, another nonattainment area in California. Our 
proposed conditional approval of the contingency measures requirements 
for the Sacramento Metro area had relied on a similar approach as the 
one remanded by the court in AIR v. EPA. Based on the Ninth Circuit's 
decision in AIR v. EPA, we did not finalize our proposed conditional 
approval of the contingency measures element for the Sacramento Metro 
area.\14\ Our March 28, 2023 proposed disapproval action \15\ replaced 
our October 29, 2020 proposed conditional approval of the contingency 
measures element.
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    \12\ 85 FR 68509.
    \13\ 10 F.4th 937 (9th Cir. 2021).
    \14\ 86 FR 58581, 58590 (responding to comments on proposed 
approval of contingency measures element submitted by Air Law for 
All, Ltd. on behalf of the Center for Biological Diversity and 
Center for Environmental Health).
    \15\ 88 FR 18266.
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    Our proposed disapproval action includes more information about 
CARB's submittals for the 2008 ozone NAAQS and the EPA's previous 
actions on these submittals.\16\
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    \16\ Id. at 18288.
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C. Contingency Measures Requirements

    Ozone nonattainment areas classified under subpart 2 of the CAA as 
``Serious'' or above must include in their SIPs contingency measures 
consistent with CAA sections 172(c)(9) and 182(c)(9). Contingency 
measures are additional controls or measures to be implemented in the 
event that an area fails to make RFP or to attain the NAAQS by the 
attainment date. CAA section 172(c)(9) requires states with 
nonattainment areas to provide for the implementation of specific 
measures to be undertaken if the area fails to make RFP or to attain 
the NAAQS by the applicable attainment date. Such measures must be 
included in the SIP as contingency measures to take effect in any such 
case without further action by the state or the EPA. Similarly, CAA 
section 182(c)(9) requires states with an ozone nonattainment area 
classified as Serious or above to provide contingency measures in the 
event that the area fails to meet any applicable RFP milestone.
    Contingency measures must be designed so as to be implemented 
prospectively; control measures that have already been implemented may 
not serve as contingency measures even if they provide emissions 
reductions

[[Page 39181]]

beyond those needed for any other CAA purpose.\17\ The SIP should 
contain trigger mechanisms for the contingency measures, specify a 
schedule for implementation, and indicate that the measure or measures 
will be implemented without significant further action by the state or 
the EPA.\18\
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    \17\ See Bahr v. EPA, 836 F.3d at 1235-1237 (9th Cir. 2016).
    \18\ For more information about the contingency measures 
requirements, see the 1997 Ozone Phase 2 Implementation Rule at 70 
FR 71612 (November 29, 2005) and the 2008 Ozone SRR at 80 FR 12264, 
12285.
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    As noted in Section I.B of this document and in our proposed 
action, the EPA previously proposed a conditional approval of the 
contingency measures requirements for the Sacramento Metro area, based 
upon commitments by the Districts and CARB to adopt and submit 
additional contingency measure provisions in District rules within 12 
months of the final conditional approval. Because the EPA did not 
finalize the conditional approval, the Districts and CARB did not 
submit the additional contingency measure provisions. Thus, the 
relevant submittals before us are limited to the portions of the 2017 
Sacramento Regional Ozone Plan and 2018 SIP Update that address the 
contingency measures requirements for the Sacramento Metro area.
    These submittals provide only an analysis of surplus emissions, and 
do not include specific measures to be triggered upon a failure to 
attain or to meet an RFP milestone. As described in detail in our 
proposed action, this approach is inconsistent with CAA sections 
172(c)(9) and 182(c)(9), in light of the Ninth Circuit's decisions in 
Bahr v. EPA and AIR v. EPA. For this reason, we are taking final action 
to disapprove these portions of the 2017 Sacramento Regional Ozone Plan 
and 2018 SIP Update as contingency measures for the Sacramento Metro 
area for the 2008 ozone NAAQS.

II. Public Comments

    Our proposed action provided for a 30-day comment period, during 
which we received no comments.

III. Final Action and Clean Air Act Consequences

    For the reasons summarized herein and presented in more detail in 
the proposed action, we are taking final action to disapprove the 2017 
Sacramento Regional Ozone Plan and 2018 SIP Update with respect to CAA 
contingency measures requirements under CAA sections 172(c)(9) and 
182(c)(9) for the Sacramento Metro area for the 2008 ozone NAAQS. We 
are also making a protective finding under the transportation 
conformity rule because, notwithstanding the disapproval of the 
contingency measures element, the 2017 Sacramento Regional Ozone Plan, 
as modified by the 2018 SIP Update, reflects adopted control measures 
and contains enforceable commitments that fully satisfy the emissions 
reductions requirements for RFP and attainment for the 2008 ozone 
NAAQS.\19\
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    \19\ 40 CFR 93.120(a)(3). Without a protective finding, this 
disapproval action would result in a conformity freeze, under which 
only projects in the first four years of the most recent conforming 
Regional Transportation Plan (RTP) and Transportation Improvement 
Programs (TIP) can proceed. Generally, during a freeze, no new RTPs, 
TIPs, or RTP/TIP amendments can be found to conform until another 
control strategy implementation plan revision fulfilling the same 
CAA requirements is submitted, the EPA finds the motor vehicle 
emissions budget(s) in the plan revision adequate pursuant to 40 CFR 
93.118 or approves the submission, and conformity to the 
implementation plan revision is determined. Under a protective 
finding, disapproval of the contingency measures element will not 
result in a transportation conformity freeze in the Sacramento Metro 
ozone nonattainment area and the local metropolitan planning 
organizations may continue to make transportation conformity 
determinations.
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    As a consequence of this final disapproval of the contingency 
measures element, the EPA must promulgate a federal implementation plan 
(FIP) under section 110(c) unless we approve subsequent SIP revisions 
that correct the rule deficiencies within 24 months of the effective 
date of this action. In addition, under 40 CFR 52.35, the offset 
sanction in CAA section 179(b)(2) will be imposed 18 months after the 
effective date of this action, and the highway funding sanction in CAA 
section 179(b)(1) six months after the offset sanction is imposed. A 
sanction will not be imposed if the EPA determines that a subsequent 
SIP submission corrects the identified deficiencies before the 
applicable deadline.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA, because this SIP disapproval does not in-and-of itself create 
any new information collection burdens, but simply disapproves certain 
state requirements for inclusion in the SIP.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. This SIP 
disapproval does not in-and-of itself create any new requirements but 
simply disapproves certain state requirements for inclusion in the SIP.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action disapproves pre-existing requirements 
under state or local law, and imposes no new requirements. Accordingly, 
no additional costs to state, local, or tribal governments, or to the 
private sector, result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because the SIP revision that the EPA is 
disapproving would not apply on any Indian reservation land or in any 
other area where the EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction, and will not impose substantial direct costs on 
tribal governments or preempt tribal law. Thus, Executive Order 13175 
does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per

[[Page 39182]]

the definition of ``covered regulatory action'' in section 2-202 of the 
Executive Order. This action is not subject to Executive Order 13045 
because this SIP disapproval does not in-and-of itself create any new 
regulations, but simply disapproves certain state requirements for 
inclusion in the SIP.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. The EPA 
believes that this action is not subject to the requirements of section 
12(d) of the NTTAA because application of those requirements would be 
inconsistent with the CAA.

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

    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 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. 
The EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    Under the CAA, 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 review state choices, 
and approve those choices if they meet the minimum criteria of the Act. 
Accordingly, this final action disapproves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law.
    Neither CARB nor the Districts evaluated environmental justice 
considerations as part of their SIP submittals; the CAA and applicable 
implementing regulations neither prohibit nor require such an 
evaluation. The EPA did not perform an environmental justice analysis 
and did not consider environmental justice in this action. 
Consideration of environmental justice is not required as part of this 
action, and there is no information in the record inconsistent with the 
stated goal of E.O. 12898 of achieving environmental justice for people 
of color, low-income populations, and Indigenous peoples.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, 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).

L. Petitions for Judicial Review

    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 [August 14, 2023. 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 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.

    Dated: June 7, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.

    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 52.237 is amended by adding paragraph (a)(14) to read as 
follows:


Sec.  52.237  Part D disapproval.

    (a) * * *
    (14) The contingency measures element of the ``Sacramento Regional 
2008 NAAQS 8-hour Ozone Attainment and Reasonable Further Progress 
Plan,'' adopted November 16, 2017, as modified by the ``2018 Updates to 
the California State Implementation Plan,'' adopted October 25, 2018, 
for the Sacramento Metro area with respect to the 2008 ozone NAAQS.
* * * * *
[FR Doc. 2023-12634 Filed 6-14-23; 8:45 am]
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