[Federal Register Volume 74, Number 190 (Friday, October 2, 2009)]
[Proposed Rules]
[Pages 50936-50939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23796]
[[Page 50936]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2008-0693; FRL-8965-2]
Approval and Promulgation of Implementation Plans: 1-Hour Ozone
Attainment Contingency Measures for the San Joaquin Valley, CA
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: On July 14, 2009, EPA proposed to disapprove the attainment
contingency measures in the extreme area plan for attainment of the 1-
hour ozone standard in California's San Joaquin Valley. EPA is now
proposing to approve these contingency measures and to withdraw its
proposed disapproval. This proposed approval is based on technical
information provided to EPA by the California Air Resources Board.
DATES: Comments must be submitted by November 2, 2009.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2008-0693, by one of the following methods:
1. Agency Web site: http://www.regulations.gov. EPA prefers
receiving comments through this electronic public docket and comment
system. Follow the online instructions to submit comments.
2. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the online instructions.
3. E-mail: [email protected].
4. Mail or deliver: Ms. Marty Robin, Office of Air Planning (AIR-
2), U.S. Environmental Protection Agency, Region 9, 75 Hawthorne
Street, San Francisco, CA 94105-3901.
Instructions: All comments will be included in the public docket
without change and may be made available online at http://www.regulations.gov, including any personal information provided,
unless the comment includes Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through the
agency Web site, eRulemaking portal, or e-mail. The agency Web site and
eRulemaking portal are anonymous access systems, and EPA will not know
your identity or contact information unless you provide it in the body
of your comment. If you send e-mail directly to EPA, your e-mail
address will be automatically captured and included as part of the
public comment. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment.
Docket: The index to the docket for this action is available
electronically at http://www.regulations.gov and in hard copy at EPA
Region 9, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed in the
FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Frances Wicher, U.S. EPA Region 9,
415-972-3957, Office of Air Planning (AIR-2), U.S. Environmental
Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, CA
94105-3901, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' and ``our'' mean U.S. EPA.
I. Summary of EPA's July 14, 2009 Proposed Action on the SJV 1-Hour
Ozone Plan
On July 14, 2009 at 74 FR 33933, EPA proposed to approve in part
and disapprove in part State implementation plan (SIP) revisions
submitted to EPA by the State of California. California made these
submittals to meet the Clean Air Act (CAA) requirements applicable to
the San Joaquin Valley, California ozone nonattainment area (SJV area).
The SJV area became subject to these requirements following its 2004
reclassification from severe to extreme for the 1-hour ozone national
ambient air quality standard (NAAQS). 69 FR 20550 (April 15, 2004). In
1997, we revised the ozone NAAQS by lowering the level to 0.08 ppm and
extending the averaging time to eight hours \1\ and subsequently
revoked the 1-hour ozone standard. The SJV area, however, remains
subject to most of these CAA requirements for the 1-hour ozone standard
through the anti-backsliding provisions in EPA's rule implementing the
8-hour ozone standard (Phase 1 Rule). See 40 CFR 51.905(a).
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\1\ See 62 FR 38856 (July 18, 1997). In 2008 we lowered the 8-
hour ozone standard to 0.075 ppm. See 73 FR 16436 (March 27, 2008).
The references in this proposed rule to the 8-hour standard are to
the 1997 standard as codified at 40 CFR 50.10.
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EPA proposed to approve California's 1-hour ozone SIP submissions
for the SJV area as meeting the applicable 1-hour requirements as
provided under the CAA and interpreted in the Phase 1 Rule for
attainment demonstrations, rate-of-progress (ROP) demonstrations and
related contingency measures, and other control requirements. EPA also
proposed to disapprove the contingency measures that would take effect
if the area failed to attain the 1-hour ozone standard by the
applicable attainment date. A complete discussion of EPA's proposed
actions is in the July 14, 2009 proposal.
The three SIP submissions that are the subject of our July 14, 2008
proposal are, first, the ``Extreme Ozone Attainment Demonstration
Plan'' adopted by the San Joaquin Valley Air Pollution Control District
(SJVAPCD) in 2004 and amended in 2005. We refer to the plan and its
amendment, collectively, as the ``2004 SIP'' in this proposed rule. The
2004 SIP addresses CAA requirements for extreme 1-hour ozone areas
including control measures, ROP and attainment demonstrations, and
contingency measures.
The second SIP submission addressed in the July 14 proposal, is
``Clarifications Regarding the 2004 Extreme Ozone Attainment
Demonstration Plan'' (2008 Clarifications) adopted by the SJVAPCD in
2008. The 2008 Clarifications provide updates to the 2004 SIP related
to reasonably available control technology (RACT) measures adopted by
the SJVAPCD, the ROP demonstrations, and contingency measures.
The third SIP submission addressed in the July 14 proposal is the
``2003 State and Federal Strategy for the California State
Implementation Plan,'' adopted by the California Air Resources Board
(ARB) in October, 2003 (2003 State Strategy). This strategy document,
as modified by the ARB resolution adopting it, identifies ARB's
regulatory agenda to reduce ozone and particulate matter in California,
including specific commitments to reduce emissions in the San Joaquin
Valley. The 2004 SIP relies in part on the 2003 State Strategy for the
reductions needed to demonstrate attainment and ROP for the 1-hour
ozone standard. A complete description of each of these SIP submittals
can be found in the July 14, 2009 proposal.
II. Contingency Measures
A. Requirements for Contingency Measures for the 1-Hour Ozone Standard
CAA sections 172(c)(9) and 182(c)(9) require that SIPs contain
contingency measures that will take effect without further action by
the State or EPA if an
[[Page 50937]]
area fails to attain the ozone standard by the applicable date (section
172(c)(9)) or fails to meet a ROP milestone (section 182(c)(9)).
In 1992, EPA issued a General Preamble describing our preliminary
views on how we intended to review 1-hour ozone plans submitted to meet
these and other CAA requirements. See ``General Preamble for
Implementation of Title I of the Clean Air Act Amendments of 1990.'' 57
FR 13498 (April 16, 1992). The General Preamble as well as other EPA
guidance documents related to 1-hour ozone plans continue to guide our
review of the 1-hour ozone requirements that remain applicable
following revocation of that standard.
The Act does not specify how many contingency measures are needed
or the magnitude of emission reductions that must be provided by these
measures. However, EPA provided initial guidance interpreting the
contingency measure requirements in the General Preamble at 13510. Our
interpretation is based upon the language in sections 172(c)(9) and
182(c)(9) in conjunction with the control measure requirements of
sections 172(c), 182(b) and 182(c)(2)(B), the reclassification and
failure to attain provisions of section 181(b) and other provisions. In
the General Preamble, EPA indicated that States with moderate and above
ozone nonattainment areas should include sufficient contingency
measures so that, upon implementation of such measures, additional
reductions of 3 percent of the emissions in the adjusted base year
inventory (or such lesser percentage that will cure the identified
failure) would be achieved in the year following the year in which the
failure is identified. States may use reductions in either of the two
precursors to ozone formation--volatile organic compounds (VOC) or
nitrogen oxides (NOX)--to meet the contingency measure
requirement. See General Preamble at 13520. States may also use a
combination of NOX and VOC reductions to meet the
requirement. See General Preamble at 13520, footnote 6. Finally, States
must show that their contingency measures can be implemented with
minimal further action on their part and with no additional rulemaking
actions.
In subsequent guidance, EPA stated that contingency measures could
be implemented early, i.e., prior to the milestone or attainment
date.\2\ Under this policy, States are allowed to use excess reductions
from already adopted measures to meet the CAA sections 172(c)(9) and
182(c)(9) contingency measures requirement. The key is that the CAA
requires extra reductions that are not relied on for ROP or attainment
and that will provide a cushion while the plan is being revised to
fully address the failure. Nothing in the CAA precludes a State from
implementing such measures before they are triggered. This approach has
been approved by EPA in numerous SIPs. See 62 FR 15844 (April 3, 1997);
62 FR 66279 (December 18, 1997); 66 FR 30811 (June 8, 2001); 66 FR 586
and 66 FR 634 (January 3, 2001). In the only adjudicated challenge to
this approach, the court upheld it. See LEAN v. EPA, 382 F.3d 575 (5th
Cir. 2004). 70 FR 71611, 71651.
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\2\ See Memorandum from G.T. Helms, EPA, to EPA Air Branch
Chiefs, Regions I-X, entitled ``Early Implementation of Contingency
Measures for Ozone and Carbon Monoxide (CO) Nonattainment Areas,''
August 13, 1993.
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In 2004, EPA designated and classified most areas of the country
under the 1997 8-hour ozone standard. 69 FR 23858 (April 30, 2004). At
the same time, we issued the Phase 1 rule. 69 FR 23951 (April 30,
2004). The Phase 1 rule provided that the 1-hour ozone standard would
be revoked in most areas of the country (including the SJV area),
effective June 15, 2005. See 40 CFR 50.9(b); 69 FR at 23996 and 70 FR
44470 (August 3, 2005).
The Phase 1 rule also set forth anti-backsliding principles to
ensure continued progress toward attainment of the 8-hour ozone
standard by identifying which 1-hour ozone standard requirements remain
applicable after revocation of that standard. 40 CFR 51.900(f). In the
Phase I rule, EPA initially determined that contingency measures for
the 1-hour ozone standard would not be required once the standard was
revoked. See 70 FR 30592 (May 26, 2005). However, the DC Circuit in
South Coast Air Quality Management District, et al., v. EPA, 472 F.3d
882 (DC Cir. 2006), rehearing denied 489 F.3d 1245 (2007), vacated the
provision of the Phase 1 rule that waived the 1-hour contingency
measure requirements. Consequently, areas subject to the anti-
backsliding requirements, such as the SJV area, must continue to meet
the CAA sections 172(c)(9) and 182(c)(9) requirements. We have proposed
to revise 40 CFR 51.900(f), the regulatory definition of ``applicable
requirement'' for purposes of the anti-backsliding provisions in 40 CFR
51. 905, in order to remove the vacated provision and to add language
consistent with the Court's holding that contingency measures for
failure to attain or to make reasonable further progress toward
attaining the 1-hour standard continue to apply in such areas. See 74
FR 2936 (January 16, 2009).
B. EPA's July 14, 2009 Proposal on the Attainment Contingency Measures
in the SJV 1-Hour Ozone Plan
One-hour ozone nonattainment areas classified as extreme under CAA
section 181(b)(3) must demonstrate attainment ``as expeditiously as
practicable'' but not later than the date specified in CAA section
181(a), November 15, 2010. The 2004 SIP contains a demonstration that
the SJV area will attain the 1-hour ozone standard by that date. In our
July 14, 2009 proposed action on the 2004 SIP, we proposed to approve
the attainment demonstration. 74 FR at 33942. The attainment
contingency measure requirement calls for a showing that there are
fully adopted contingency measures that will achieve emission
reductions in excess of the levels needed for attainment and sufficient
to provide continued ROP in the year after the attainment date, i.e., 3
percent reductions from the pre-1990 adjusted baseline in 2011 if
triggered by a failure to attain. Table 4 in our July 14, 2009 proposal
reproduces the ROP demonstrations in the 2004 SIP. 74 FR at 33941.
Based on the 2010 adjusted baseline in this ROP demonstration, an
additional 3 percent in the year after the attainment year equates to
approximately 15.3 tpd of VOC or 20.7 tpd of NOX with
NOX substitution.
Table 5 in the July 14, 2009 proposal shows that there are no
excess reductions from adopted measures in the 2004 SIP's attainment
demonstration and that, in addition to the adopted measures that make
significant reductions toward attainment, the plan relies on
commitments to adopt measures to achieve the additional reductions
needed to demonstrate attainment. However, Table 6 in the July 14
proposal shows that there are 10 tpd NOX and 5 tpd VOC in
reductions in 2011 from adopted and creditable on-road mobile source
measures that could serve to fulfill a portion of the attainment
contingency measure requirement. These amounts collectively provide
just a 2.4 percent rate of progress in 2011, short of the suggested 3
percent.
The SJV 1-hour ozone plan did not provide any information on post-
2010 emission reductions in any source category other than on-road
motor vehicles.
Based on the information available to EPA at the time of the July
14, 2009 proposal, the State had not demonstrated that there were
sufficient excess reductions to satisfy the attainment contingency
measure requirement. We therefore proposed to disapprove the attainment
contingency
[[Page 50938]]
measures provision in the SJV 1-hour ozone plan as not meeting the
requirements of CAA section 172(c)(9). See 74 FR at 33944. We stated in
that proposal that the State could remedy this failure by submitting
either new contingency measures or a demonstration that existing
creditable measures provide, consistent with the guidance cited above,
sufficient emission reductions in 2011. Id.
C. Additional Information Submitted by California
In an August 28, 2009 letter, ARB provided information on the
effect on emission levels in the SJV area of fleet turnover in the off-
road mobile source category. ARB also provided a demonstration that
these emission reductions, combined with the reductions in the on-road
mobile source sector, are more than the 3 percent of adjusted base
inventory emissions suggested by EPA guidance, and that these
reductions are not relied upon to satisfy rate of progress and
attainment demonstration requirements. See letter, James Goldstene,
ARB, to Marty Robins, EPA (Goldstene letter). We have reproduced ARB's
demonstration, contained in the attachment to the Goldstene letter, in
Table 1 below.
TABLE 1--Emission Reductions Available To Satisfy the Clean Air Act
Contingency Measure Requirement for ``Failure To Attain''
[San Joaquin Valley, Summer Season]
------------------------------------------------------------------------
Line NOX ROG \3\
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A. 1990 Adjusted Baseline Emissions 689 509
in 2010 (Note 1)...................
B. Emission Reductions from 10 5
California's Existing On-road Motor
Vehicle Emission Control Program
(2010 to 2011) (Note 2)............
C. Emission Reductions from 5.7 3.6
California's Existing Off-road
Equipment Emission Control Program
(2010 to 2011).....................
D. Total Mobile Source Emission 16 9
Reductions (2010-2011).............
E. Mobile Source Emission Reductions 2.3% 1.7%
as a Percent of the 1990 Adjusted
Baseline Emissions in 2010.........
-----------------------------------
F. Total Mobile Source Emission
Reductions as a Percent of the 1990
Adjusted Baseline Emissions in 2010 4.0%
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Note 1. From Table 2 ``San Joaquin Valley Rate of Progress'' in the 2008
Clarification.
Note 2. From Table 3 ``Baseline Motor Vehicle Emissions 2000-2010'' in
the 2008 Clarification.
The reductions in the off-road engine category were taken from
baseline emission inventories developed as inputs to the air quality
modeling supporting the attainment demonstration in the 2004 SIP. These
baseline emission inventories include reductions only from measures
adopted prior to September 2002; therefore, the estimate of emission
reductions from the off-road engines category reflect only these
measures. See e-mail, Jeff Lindberg, ARB, to Frances Wicher, EPA,
``2011 Off-Road Emission Estimates for the San Joaquin Valley's 1-hour
Ozone Plan,'' September 10, 2009.
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\3\ ARB uses the term ``reactive organic gases'' (ROG) in its
documents. For the purposes of this proposed rule, VOC and ROG are
interchangeable.
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By 2002, California already had in place a comprehensive off-road
mobile source control program that included both VOC and NOX
emissions standards for lawn and garden equipment, recreational boats,
off-road recreational vehicles, and many other off-road engine
categories. A list of ARB's adopted off-road measures can be found in
Table 15 of the technical support document (TSD) for our July 14, 2009
proposal.\4\ California has been granted a waiver or has applied for a
waiver under CAA section 209 for these measures \5\ and/or the
California emission limits are identical or very similar to EPA
regulations. EPA had also adopted by September 2002 measures that
reduce emissions from new construction and farm equipment and
locomotives that apply in California.6 7 As described in our
July 14, 2009 proposal, emission reductions from both section 209
waiver measures and Federal measures are fully creditable for
contingency measures. See 74 FR at 33936, 33938.
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\4\ Because this proposed action supplements our July 14, 2009
proposal, the docket number, EPA-R09-OAR-2008-0693, for both
proposed actions is the same.
\5\ Under CAA sections 209(a) and (e)(1), States are pre-empted
from adopting or enforcing emission standards for both on-road or
non-(off-) road new vehicles and new vehicle engines. Under CAA
section 209(b) and (e)(2), California must be granted a waiver of
this pre-emption upon certain findings by EPA although we may not
waive pre-emption for locomotives and for certain new construction
or agricultural engines. See CAA section 209(e)(1).
\6\ Tier 2 and 3 non-road engines standards, 63 FR 56968
(October, 23, 1998).
\7\ Locomotive standards, 63 FR 18978 (May 16, 1998).
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As shown in Table 1 above, creditable State and Federal on-road and
off-road measures provide a combined 4 percent rate of progress in 2011
which is more than the 3 percent ROP suggested in EPA guidance on
contingency measures. Therefore, we propose to approve the attainment
contingency measures provision in the SJV 1-hour ozone plan as meeting
the requirements of CAA section 172(c)(9) and the anti-backsliding
requirements of EPA's Phase 1 implementation rule and to withdraw our
July 14, 2009 proposed disapproval of this provision.
III. Summary of Proposed Action
Based on our review of the additional information provided by ARB,
we are proposing to approve the contingency measure provisions in the
SJV 1-hour ozone plan as meeting the requirements of CAA section
172(c)(9) for contingency measures that must be implemented if an area
fails to attain by its attainment date. We are also proposing to
withdraw our July 14, 2009 proposed disapproval of these contingency
measures.
These proposals to approve and withdraw address only the
contingency measures provision for failure to attain in the SJV 1-hour
ozone plan. The public comment period for the July 14, 2009 proposal
closed on August 31, 2009. 74 FR 40123 (August 11, 2009). EPA is not
reopening the comment period on any other aspects of its July 14, 2009
proposed action on the SJV 1-hour ozone plan. Therefore, comments in
response to the proposals herein must be limited to issues related to
the proposed approval of the attainment contingency measures in the SJV
1-hour ozone plan and the proposed withdrawal of the July 14, 2009
proposed disapproval of these measures.
[[Page 50939]]
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to either review by the Office of Management
and Budget or to Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001).
This action merely proposes to approve a portion of a State-adopted
attainment plan for the San Joaquin Valley Air Basin and withdraw a
previous proposal and does not impose any additional requirements.
Accordingly, the Administrator certifies that this proposed action will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Because this proposed action does not impose any additional enforceable
duties, it 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).
This proposed action does not have Tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
plan is not approved to apply in Indian country located in the State.
It will not impose substantial direct costs on Tribal governments or
preempt Tribal law.
This proposed action also does not have Federalism implications
because it does 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, as specified in Executive Order 13132 (64 FR 43255,
August 10, 1999). This proposed action merely proposes to approve a
portion of a State-adopted plan and does not alter the relationship or
the distribution of power and responsibilities established in the CAA.
Executive Order 12898 establishes a Federal policy for
incorporating environmental justice into Federal agency actions by
directing agencies to identify and address, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority and
low-income populations. Today's action involves a proposed approval of
a State-adopted plan. It will not have disproportionately high and
adverse effects on any communities in the area, including minority and
low-income communities.
This proposed action also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant. The requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply. This proposed action does not impose an information
collection burden under the provisions of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen oxides, Ozone, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 23, 2009.
Jane Diamond,
Acting Regional Administrator, Region IX.
[FR Doc. E9-23796 Filed 10-1-09; 8:45 am]
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