[Federal Register Volume 88, Number 102 (Friday, May 26, 2023)]
[Rules and Regulations]
[Pages 34093-34096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11317]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0261; FRL-10932-01-R9]


Finding of Failure To Submit State Implementation Plan 
Submissions for the 2012 Fine Particulate Matter National Ambient Air 
Quality Standards; California; Los Angeles-South Coast Air Basin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to find that California has failed to submit state 
implementation plan (SIP) elements required under the Clean Air Act 
(CAA or ``Act'') to implement the 2012 national ambient air quality 
standards (NAAQS) for fine particulate matter (PM2.5) in the 
Los Angeles-South Coast Air Basin (``South Coast''). California was 
required to submit by June 9, 2022, a SIP submission that meets the 
Serious area plan requirements for a base year emissions inventory and 
best available control measures (BACM). The State submitted the 
required SIP elements, but subsequently withdrew its submission. If the 
EPA has not affirmatively found that the State has submitted a complete 
SIP to correct these deficiencies within 18 months of this finding, the 
offset sanction will apply in the area. If within six additional months 
the EPA has still not affirmatively determined that the State has 
submitted a complete SIP to correct the deficiencies, the highway 
funding sanction will apply in the area. No later than two years after 
the EPA makes this finding, if the State has not submitted and the EPA 
has not approved each of the required SIP elements, the EPA must 
promulgate a federal implementation plan (FIP) to address the remaining 
requirements.

DATES: The effective date of this action is June 26, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-0261. 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: Ginger Vagenas, EPA Region IX, 75 
Hawthorne St., San Francisco, CA

[[Page 34094]]

94105. By phone: (415) 972-3964 or by email at [email protected].

SUPPLEMENTARY INFORMATION: Section 553 of the Administrative Procedure 
Act (APA), U.S.C. 553(b)(B), provides that an agency may issue a rule 
without providing notice and an opportunity for public comment when 
that agency finds for good cause that notice and public procedure are 
impracticable, unnecessary, or contrary to public interest. The EPA has 
determined that there is a good cause for issuing this finding without 
prior proposal and opportunity for comment because there is little or 
no judgment involved for the EPA to make a finding of failure to submit 
SIPs or elements of SIPs required by the CAA, where states have not 
submitted a required SIP revision by the date specified by the statute, 
made incomplete submissions, or, as in this case, withdrawn an existing 
submission. In such circumstances, the EPA finds that notice and public 
procedures are unnecessary and that this constitutes good cause under 5 
U.S.C 553(b)(B).
    Throughout this document, ``we,'' ``us,'' and ``our'' refer to the 
EPA.

Table of Contents

I. Background
II. Consequences of Findings of Failure To Submit
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    Airborne particulate matter (PM) can be composed of a complex 
mixture of particles in both solid and liquid form. Particulate matter 
can be of different sizes, commonly referred to as ``coarse'' and 
``fine'' particles. Fine particles, in general terms, are PM with an 
aerodynamic diameter less than or equal to a nominal 2.5 micrometers. 
For this reason, particles of this size are referred to as 
PM2.5.
    The EPA first promulgated annual and 24-hour NAAQS for 
PM2.5 in July 1997 \1\ and then revised the 24-hour 
PM2.5 NAAQS in October 2006.\2\ Most recently, on December 
14, 2012, the EPA revised the primary annual PM2.5 standard 
by lowering the level from 15.0 to 12.0 micrograms per cubic meter of 
air ([mu]g/m\3\) to provide increased protection against health effects 
associated with long- and short-term PM2.5 exposures. The 
EPA did not revise the secondary annual PM2.5 standard, 
which remains at 15.0 [mu]g/m\3\.\3\ In addition, the EPA retained the 
level and form of the primary and secondary 24-hour PM2.5 
standards to continue to provide supplemental protection against health 
and welfare effects associated with short-term PM2.5 
exposures.
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    \1\ 62 FR 38652 (July 18, 1997).
    \2\ 71 FR 61143 (October 17, 2006).
    \3\ 78 FR 3086 (January 15, 2013).
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    Promulgation of a revised NAAQS triggers a requirement for the EPA 
to designate areas of the country as nonattainment, attainment, or 
unclassifiable for the standards. As prescribed by CAA section 188(a), 
areas designated as nonattainment for a PM2.5 NAAQS are 
initially classified as Moderate. The designation and initial 
classification for the South Coast as Moderate nonattainment for the 
2012 PM2.5 NAAQS became effective on April 15, 2015.\4\
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    \4\ 80 FR 2206 (January 15, 2015).
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    Nonattainment areas for PM2.5 are subject to the general 
nonattainment area planning requirements of CAA section 172 and to the 
PM-specific planning requirements of CAA sections 188-189. On August 
24, 2016, the EPA established a final implementation rule 
(``PM2.5 SIP Requirements Rule'') outlining the attainment 
planning and control requirements for current and future 
PM2.5 NAAQS.\5\ The PM2.5 SIP Requirements Rule 
also established the due date for Moderate area PM2.5 SIP 
submissions as no later than 18 months from the effective date of area 
designations.\6\ Accordingly, the areas designated as nonattainment for 
the 2012 PM2.5 NAAQS (with an effective date of April 15, 
2015) were required to submit Moderate area attainment plans to EPA no 
later than October 15, 2016.
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    \5\ Fine Particulate Matter National Ambient Air Quality 
Standards: State Implementation Plan Requirements; Final rule; 81 FR 
58009 (August 24, 2016).
    \6\ 40 CFR 51.1003(a)(1).
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    On April 27, 2017, California submitted the ``Final 2016 Air 
Quality Management Plan'' (``2016 Plan''), as adopted on March 3, 2017 
by the Governing Board for the South Coast Air Quality Management 
District (SCAQMD or ``District'') to the EPA to address CAA 
requirements associated with the 2012 PM2.5 NAAQS.\7\ The 
2016 Plan included a demonstration, consistent with the requirements of 
CAA section 189(a)(1)(B), that attainment of the 2012 PM2.5 
NAAQS by the December 31, 2021 Moderate area attainment date was 
impracticable, despite the implementation of required control 
measures.\8\ The 2016 Plan also included a request that the EPA 
reclassify the nonattainment area from Moderate to Serious, and 
included a Serious area attainment demonstration, an emission 
inventory, attainment related plan elements, and control measure 
provisions.\9\ Effective December 9, 2020, we approved or conditionally 
approved the portions of the 2016 Plan that addressed the CAA Moderate 
area requirements for the 2012 PM2.5 NAAQS in the South 
Coast nonattainment area and reclassified the South Coast as a Serious 
nonattainment area under CAA section 188(b)(1).\10\
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    \7\ 85 FR 71264 (November 9, 2020). For additional background, 
see the associated proposed rulemaking at 85 FR 40026 (July 2, 
2020).
    \8\ 85 FR 71264, 71266.
    \9\ 85 FR 71264, 71268.
    \10\ 85 FR 71264.
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    Our final action on the 2016 Plan's Moderate area requirements and 
reclassification of the nonattainment area to Serious also noted that 
the submitted 2016 Plan included Serious area planning elements for the 
2012 PM2.5 NAAQS and stated that we would evaluate and act 
on them through subsequent rulemakings as appropriate.\11\ At the same 
time, our final action explained that our reclassification of the South 
Coast nonattainment area from Moderate to Serious for the 2012 
PM2.5 NAAQS triggered statutory and regulatory timelines for 
submittal of Serious area planning elements. Specifically, we stated 
that section 189(b)(2) of the CAA requires a state to submit the 
required BACM provisions no later than 18 months after the effective 
date of final reclassification (i.e., June 9, 2022). Because an 
effective BACM evaluation requires in up-to-date emissions inventory 
and an evaluation of the precursor pollutants that must be controlled 
to provide for expeditious attainment, we also required the State to 
submit the emissions inventory required under CAA section 172(c)(3) and 
any optional precursor demonstrations by this same date. In addition, 
we established a deadline of December 31, 2023, for the submittal of 
the attainment demonstration and all other attainment-related plan 
elements.\12\
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    \11\ 85 FR 71264, 71268.
    \12\ 85 FR 71268. The Serious area SIP elements for the 2012 
PM2.5 NAAQS include provisions to assure that best 
available control measures (including best available control 
technology) shall be implemented no later than four years after the 
area is reclassified, a base year emissions inventory, an attainment 
projected emissions inventory, an attainment demonstration with air 
quality modeling, a reasonable further progress (RFP) demonstration, 
quantitative milestones, contingency measures, and a nonattainment 
new source review (NNSR) program with the major source threshold set 
at 70 tons per year. CAA section 189(b).
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    On March 29, 2023, the State of California and the District 
notified the EPA of their determination that the portions of the 2016 
Plan relating to Serious area planning elements for the 2012 
PM2.5 NAAQS were no longer appropriate for inclusion in the 
SIP and

[[Page 34095]]

requested that those portions of the submittal be considered 
withdrawn.13 14
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    \13\ Letter dated March 8, 2023, from Sarah Rees, Ph.D., Deputy 
Executive Officer, Planning, Rule Development & Implementation, 
South Coast Air Quality Management District to Michael Benjamin, D. 
Env., Chief, Air Quality Planning and Science Division, California 
Air Resources Board.
    \14\ Letter dated March 29, 2023, from Michael Benjamin, Chief, 
Air Quality Planning and Science Division, California Air Resources 
Board to Martha Guzman, Regional Administrator, EPA Region IX.
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II. Consequences of Findings of Failure To Submit

    For plan requirements under part D, title I of the CAA, such as 
those for PM2.5 nonattainment areas, if the EPA finds that a 
state has failed to make the required SIP submission, then CAA section 
179 establishes specific consequences, including the eventual 
imposition of mandatory sanctions for the affected area. Additionally, 
such a finding triggers an obligation under CAA section 110(c) for the 
EPA to promulgate a FIP no later than two years from the effective date 
of the finding, if the affected state has not submitted, and the EPA 
has not approved, the required SIP submissions.
    If the EPA has not affirmatively determined that a state has 
submitted a complete SIP addressing the deficiency that is the basis 
for these findings within 18 months of the effective date of this 
rulemaking, or the submission has not become complete by operation of 
law six months after submission, then, pursuant to CAA sections 179(a) 
and (b) and 40 CFR 52.31, the emissions offset sanction identified in 
CAA section 179(b)(2) will apply to the affected nonattainment area. If 
the EPA has not affirmatively determined that the state has submitted a 
SIP addressing the deficiencies that are a basis for these findings 
within six months after the offset sanction is imposed, or the 
submission has not become complete by operation of law six months after 
submission, then the highway funding sanction will apply in the 
affected nonattainment area, in accordance with CAA section 179(b)(1) 
and 40 CFR 52.31. The State must make the required SIP submission and 
the EPA must take final action to approve the submission within two 
years of the effective date of these finding; otherwise, the EPA is 
required to promulgate a FIP to address the relevant requirements. This 
is required pursuant to CAA section 110(c) for the affected 
nonattainment area.
    Based upon the withdrawal of the Serious area plan elements 
submitted with the 2016 Plan as described in Section I of this 
rulemaking, the EPA is finding that California has failed to make 
required base year emissions inventory and BACM submittals for the 2012 
PM2.5 NAAQS for the South Coast nonattainment area. The 
remaining required elements of the Serious area plan for the 2012 
p.m.2.5 NAAQS are not due until December 31, 2023; therefore, this 
finding applies only to the required base year emission inventory and 
BACM submittals that were due no later than June 9, 2022. With this 
finding, section 179 of the CAA starts sanctions clocks and a FIP 
clock. California may avoid these sanctions by taking timely action to 
remedy this finding. The 18-month clock governing the CAA's imposition 
of sanctions for these areas will stop and sanctions will not take 
effect if the EPA finds that the State has made a complete SIP 
submission addressing the BACM and emissions inventory requirements for 
this area within 18 months of the date of this finding. Similarly, the 
EPA is not required to promulgate a FIP if California makes the 
required SIP submissions and the EPA takes final action to approve the 
submissions within two years of this finding of failure to submit a 
required SIP. In sum, the CAA does not require sanctions or a FIP if 
the State and the EPA take timely action to remedy this finding.

III. Final Action

    In this action, the EPA is finding that California has failed to 
submit certain Serious area SIP elements for the 2012 PM2.5 
NAAQS required under subpart 4 of part D of title I of the CAA. 
Specifically, California has failed to submit the base year emissions 
inventory and BACM elements that were due no later than June 9, 2022. 
The consequences of this finding are discussed in Section II of this 
action.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders 
can be found at https://www2.epa.gov//laws-regulations/laws-and-executive-orders.gov.

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 provisions of the PRA because it does not impose additional 
requirements beyond those imposed by state law.

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 beyond those 
imposed by state law.

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 does not impose additional requirements 
beyond those imposed by state law. Accordingly, no additional costs to 
State, local, or Tribal Governments, or to the private sector, will 
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: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175, because this action does 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 compliance 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 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 the definition of ``covered regulatory action'' in 
section 2-202 of the Executive order. This action is not subject to 
Executive Order 13045 because it does impose additional requirements 
beyond those imposed by state law.

[[Page 34096]]

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 Advancement Act (NTTAA)

    This rule does not involve technical standards.

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, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
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.'' 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.''
    The EPA did not perform an EJ analysis and did not consider EJ in 
this action. Consideration of EJ is not required as part of this action 
because the EPA is performing a non-discretionary duty to find that a 
required State submission was not timely submitted, and there is no 
information in the record inconsistent with the stated goals 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 July 25, 2023. 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, Administrative practice and procedures, 
Air pollution control, Approval and promulgation of implementation 
plans, Incorporation by reference, Intergovernmental relations, 
Particulate matter, and Reporting and recordkeeping requirements.

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

    Dated: May 19, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-11317 Filed 5-25-23; 8:45 am]
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