AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is taking final action to conditionally approve portions of two state implementation plan (SIP) submissions from the State of California to meet Clean Air Act (CAA or “the Act”) requirements for the 2008 8-hour ozone national ambient air quality standards (NAAQS or “standards”) in the Ventura County, California (“Ventura County”) ozone nonattainment area. The two SIP submissions include the “Final 2016 Ventura County Air Quality Management Plan,” and the Ventura County portion of the “2018 Updates to the California State Implementation Plan.” In this action, the EPA refers to these submittals collectively as the “2016 Ventura County Ozone SIP.” The 2016 Ventura County Ozone SIP addresses the nonattainment area requirements for the 2008 ozone NAAQS, including the requirements for an emissions inventory, attainment demonstration, reasonable further progress, reasonably available control measures, contingency measures, among others; and establishes motor vehicle emissions budgets. In a separate final rule, the EPA took final action to approve the 2016 Ventura County Ozone SIP as meeting all the applicable ozone nonattainment area requirements except for the contingency measures requirement. In this action, the EPA is taking final action to conditionally approve the contingency measures element of the 2016 Ventura County Ozone SIP.

DATES:

This rule will be effective on July 27, 2020.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2018-0146. 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.

FOR FURTHER INFORMATION CONTACT:

John Kelly, Air Planning Office (AIR-2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105, (415) 947-4151, or by email at kelly.johnj@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Summary of the Proposed Action

II. Public Comments and EPA Responses

III. Final Action

IV. Statutory and Executive Order Reviews

I. Summary of the Proposed Action

On December 20, 2019, the EPA proposed to approve, under CAA section 110(k)(3), or to conditionally approve, under CAA section 110(k)(4), all or portions of submittals from the California Air Resources Board (CARB) of revisions to the California SIP for the Ventura County ozone nonattainment area for the 2008 ozone NAAQS.^[1] The relevant SIP revisions include Ventura County Air Pollution Control District's (VCAPCD's or “District's”) Final 2016 Ventura County Air Quality Management Plan (“2016 Ventura County AQMP”), and the Ventura County portion of CARB's 2018 Updates to the California State Implementation Plan (“2018 SIP Update”). Collectively, we refer to these revisions as the 2016 Ventura County Ozone SIP, and we refer to our December 20, 2019 proposed rule as the “proposed rule.”

Our proposed conditional approval of the contingency measures element of the 2016 Ventura County AQMP relied on specific commitments: (1) From the District to modify an existing rule or rules that would provide for additional emissions reductions in the event that Ventura County fails to meet a reasonable further progress (RFP) milestone or fails to attain the 2008 ozone NAAQS by the applicable attainment date, and (2) from CARB to submit the revised District rule(s) to the EPA as a SIP revision within 12 months of our final action.^[2] For more information on the SIP revision submittals and related commitments, please see our proposed rule.

In our proposed rule, we provided background information on the ozone standards,^[3] area designations, related SIP revision requirements under the CAA, and the EPA's implementing regulations for the 2008 ozone NAAQS, referred to as the 2008 Ozone SIP Requirements Rule (“2008 Ozone SRR”). To summarize, the Ventura County ozone nonattainment area is classified as Serious for the 2008 ozone NAAQS, and the 2016 Ventura County Ozone SIP was developed to address all the SIP requirements that apply to a Serious nonattainment area for the 2008 ozone NAAQS other than the SIP requirements for new source review and reasonably available control technology previously addressed in separate submittals and EPA actions.

For our proposed rule, we reviewed the various SIP elements contained in the 2016 Ventura County Ozone SIP, evaluated them for compliance with statutory and regulatory requirements, and proposed to conclude that they meet all applicable requirements with the exception of the contingency measures element. On February 27, 2020, the EPA took final action to approve all the elements of the 2016 Ventura County Ozone SIP except for the contingency measures element.^[4] In our February 27, 2020 final rule, we indicated that we would be taking final action on the contingency measures element in a separate final rule. This action is our final action on the contingency measures element.

With respect to the contingency measures element of the 2016 Ventura County Ozone SIP, in our proposed rule, we evaluated the element for compliance with the CAA sections 172(c)(9) and 182(c)(9). We explained that the key is that the statute requires that contingency measures provide for additional emissions reductions that are not relied on for RFP or attainment and that the purpose of contingency measures is to provide continued emissions reductions while the plan is being revised to meet the missed milestone or attainment date. We further explained that neither the CAA nor the EPA's implementing regulations for the 2008 Ozone NAAQS require that contingency measures achieve a specific amount of emissions reductions, but that the EPA will evaluate that on a case-by-case basis depending on the facts and circumstances.

In our proposed rule, in light of the Bahr decision,^[5] we determined that the contingency measures element of the 2016 Ventura County Ozone SIP could not be fully approved without supplementation by the District and CARB. However, we also determined that the element could be conditionally approved as meeting the requirements of CAA sections 172(c)(9) and 182(c)(9) for the 2008 ozone NAAQS, based upon commitments from the District and CARB to adopt and submit a revised rule or rules with provisions designed to take effect if the area fails to meet an RFP milestone or fails to attain by the applicable attainment date.^[6]

Please see our proposed rule for more information concerning the background for this action and for a more detailed discussion of the rationale for conditional approval of the contingency measures element of the 2016 Ventura County Ozone SIP.

II. Public Comments and EPA Responses

The public comment period on the proposed rule opened on December 20, 2019, the date of its publication in the Federal Register, and closed on January 21, 2020. During this period, the EPA received five anonymous comments and one comment letter submitted by Air Law for All on behalf of the Center for Biological Diversity, the Center for Environmental Health, and Citizens for Responsible Oil and Gas (collectively referred to herein as “CBD”).

In our February 27, 2020 final action on the 2016 Ventura County Ozone SIP other than the contingency measures element, we explained that the EPA was not responding to the five anonymous commenters because their comments are either not adverse or not pertinent to the proposed action. We also indicated that the comment letter from CBD relates solely to our proposed conditional approval of the contingency measures element, and that we would be addressing CBD's comments in a separate final rule on the contingency measures element. We address CBD's comments in the following paragraphs of this final rule.

Comment #1: CBD recounts the background leading to the Bahr decision and provides a discussion of policy implications of that decision. CBD also provides its negative critique of the LEAN decision ^[7] and asserts that EPA must interpret the contingency measures requirement consistent with the Bahr decision on a nationwide basis and not just within the Ninth Circuit's jurisdiction.

Response #1: In our proposed rule, we explain that we have reviewed the contingency measures element of the 2016 Ventura County Ozone SIP in light of the Bahr decision. In other words, for the purposes of our review and action on the 2016 Ventura County Ozone SIP, we accept the Bahr decision as governing our review of the contingency measures element. The issue of extending the Bahr decision with respect to the contingency measures requirement outside of the jurisdiction of the Ninth Circuit is beyond the scope of this rulemaking.

Comment #2: Because the District did not quantify the potential additional emissions reductions from any of the three prospective contingency measures, CBD asserts that the reductions must be assumed to be de minimis.

Response #2: In our proposed rule, we acknowledged that the potential contingency measures that were identified by the District would not achieve one year's worth of RFP, given the types of measures under consideration and the magnitude of emissions reductions constituting one year's worth of RFP in this nonattainment area. We disagree that it is necessary to have an estimate of the emissions reductions for purposes of proposing a conditional approval. However, in response to this comment, the District and CARB developed preliminary estimates of the reductions that would likely be achieved by the contingency measures under consideration, if triggered by a failure to achieve an RFP milestone or failure to attain the 2008 ozone NAAQS by the applicable attainment date.^[8] In developing the preliminary estimates, the District narrowed the list of prospective contingency measures to a single one, i.e., amendments to Rule 74.2 (“Architectural Coatings”).^[9] We have reviewed the preliminary estimates for the amendments to Rule 74.2, and find that they are based on reasonable assumptions and factors. Based on the preliminary estimates, emissions reductions from amendments to Rule 74.2 would likely be in the range of 0.02 to 0.06 tons per day (tpd) of volatile organic compounds (VOC), which amount to approximately 2 to 5 percent of one year's worth of RFP.^[10] As we anticipated in our proposed rule, the reductions would not amount to one year's worth of RFP.

CBD asserts that, if the EPA or the District develop preliminary emissions estimates for the prospective contingency measures, then the EPA must necessarily re-propose action on the contingency measures element. We disagree and find that the development of the estimates and presentation herein is a logical outgrowth of the proposed rule and CBD's comments. The quantification of emissions reductions does not affect our rationale for our proposed conditional approval of the contingency measures element because we assumed that the reductions, whatever they would ultimately be, would not be equivalent to one year's worth of RFP.

Comment #3: CBD asserts that consideration of surplus emissions reductions from already-implemented measures in evaluating the adequacy of contingency measures is functionally no different than simply approving the already-implemented measures as contingency measures, which is inconsistent with the Bahr decision. CBD also asserts that the EPA's approach in this action would allow states to meet the contingency measures requirement through submittal of token de minimis contingency measures so long as already-implemented measures provide for surplus emissions reductions equivalent to one year's worth of RFP. CBD views the EPA's consideration of surplus reductions from already-implemented measures as relying on a factor Congress has not intended the Agency to consider in evaluating the adequacy of contingency measures under CAA section 172(c)(9).

Response #3: First, the EPA does not interpret CAA section 172(c)(9) or 182(c)(9) as allowing states to meet the requirements through submittal merely of token or de minimis contingency measures. States must include contingency measures in nonattainment plans that will be triggered in the event of a failure to meet RFP or failure to attain. However, the number of such contingency measures, or the amount of emissions reductions that such measures need to achieve, may vary. As explained in the proposal, the EPA considers it appropriate to take into account the full facts and circumstances at issue in a given nonattainment area when evaluating the adequacy of contingency measures, and this may include approving contingency measures that achieve less than the one year's worth of RFP in that area. The EPA emphasizes that it does not interpret the CAA to require states to adopt only token or de minimis contingency measures; it interprets the CAA to require contingency measures appropriate for the area.

Second, we disagree that, if the EPA takes into account the total facts and circumstances in a given nonattainment area when assessing the adequacy of contingency measures, and in particular the amount of emissions reductions that such measures will achieve, that this contradicts Congressional intent. The specific explicit factors Congress intended the Agency to use in evaluating contingency measures are set forth in CAA sections 172(c)(9) and 182(c)(9) and include specificity (“implementation of specific measures”), timing (“measures to be undertaken” and “to take effect”), triggers (if the area fails to attain the NAAQS by the applicable [NAAQS] or if the area fails to meet any applicable milestone), federal enforceability (“included in the [SIP]”), and readiness (measures must be designed to take effect without further action by the state or the EPA). We will review the contingency measure that is the subject of the conditional approval with those factors in mind when we receive the submittal of the revised District rule as a SIP revision from CARB.

Neither CAA section 172(c)(9) nor 182(c)(9) contain language implying that the factors discussed above are the only factors for the Agency to consider. Neither section specifies the magnitude of emissions reductions that contingency measures must achieve as an explicit factor for the EPA to consider, although consideration of the magnitude is appropriate in determining whether the contingency measure or measures submitted by the state meet the requirements of CAA sections 172(c)(9) and 182(c)(9). Consideration of the magnitude of emissions reductions is appropriate because contingency measures serve a remedial function where an area fails to achieve an RFP milestone or fails to attain the NAAQS by the applicable attainment date, and RFP and attainment are achieved through emissions reductions.^[11]

Just as the CAA does not include the magnitude of emissions reductions as a specific explicit consideration, the CAA also does not prescribe how the EPA is to evaluate that question. As such, the EPA is not relying on a factor that Congress did not intend the EPA to consider when the Agency considers the emissions reductions from already-implemented measures that are surplus to those needed for RFP or attainment within a given nonattainment area when evaluating whether the state's contingency measure submittal meets CAA sections 172(c)(9) and 182(c)(9).

Comment #4: CBD asserts that contingency measures should at a minimum equal one year's worth of RFP and asserts that CAA section 182(g) provides statutory support for the interpretation that contingency measures should provide for one year's worth of RFP.

Response #4: Neither the CAA nor the EPA's implementing regulations for the ozone NAAQS establish a specific amount of emissions reductions that implementation of contingency measures must achieve. However, consistent with our long-standing guidance, we agree that contingency measures should generally provide for emissions reductions approximately equivalent to one year's worth of progress, which, for Serious ozone nonattainment areas such as Ventura County, amounts to reductions of 3 percent of the RFP baseline emissions inventory for the nonattainment area.

CBD finds statutory support in CAA section 182(g) for the EPA's recommendation that contingency measures should generally provide for one year's worth of progress. We do not disagree that our recommendation concerning emissions reductions from contingency measures comports generally with the statutory scheme for attainment planning. However, like sections 172(c)(9) and 182(c)(9), section 182(g) does not explicitly identify the magnitude of reductions that contingency measures must achieve nor does not it address how to evaluate the reductions from contingency measures in light of the facts and circumstances of a given nonattainment area.

In making the recommendation that contingency measures typically achieve one year's worth of RFP, the EPA has considered the overarching purpose of such measures in the context of attainment planning. The purpose of emissions reductions from implementation of contingency measures is to ensure that, in the event of a failure to meet an RFP milestone or a failure to attain the NAAQS by the applicable attainment date, the state will continue to make progress toward attainment though additional emissions reductions at a rate similar to that specified under the RFP requirements. The intent is that the state will achieve the emissions reductions from the contingency measures while conducting additional control measure development and implementation as necessary to correct the RFP shortfall or as part of a new attainment demonstration plan.^[12] The facts and circumstances of a given nonattainment area may justify larger or smaller amounts of emissions reductions for contingency measure purposes.

In reviewing a SIP revision for compliance with CAA sections 172(c)(9) and 182(c)(9), the EPA evaluates whether the contingency measure or measures would provide emissions reductions that, when considered with surplus emissions reductions from other measures, ensure sufficient continued progress in the event of a failure to achieve an RFP milestone or to attain the ozone NAAQS by the applicable attainment date. We continue to evaluate the sufficiency of continued progress that will result from contingency measures in light of our guidance, but in appropriate circumstances do not believe that the contingency measures themselves must provide for one year's worth of RFP. Such appropriate circumstances include situations in which sufficient progress would be maintained by the contingency measures and surplus emissions reductions from other sources while the state proceeds to develop and implement additional control measures as necessary to correct the RFP shortfall or as part of a new attainment demonstration plan. In other words, if there are additional emissions reductions projected to occur after the RFP milestone years or the attainment year that a state has not relied upon for purposes of RFP or attainment or to meet other nonattainment plan requirements, and that result from measures the state has not adopted as contingency measures, then those reductions may support EPA approval of contingency measures identified by the state even if the contingency measures would result in less than one year's worth of RFP in appropriate circumstances.

As to whether the contingency measure, once adopted, would provide for sufficient continued progress in the event of a failure to achieve an RFP milestone or a failure to attain the NAAQS, we reviewed the documentation provided in the 2018 SIP Update of “surplus” reductions, as clarified by CARB in August 2019 from CARB's already-adopted mobile source control program in the two RFP milestone years and in the year following the attainment year. For the Ventura County nonattainment area, CARB's estimates of “surplus” reductions in the RFP milestone years (5.1 tpd of oxides of nitrogen (NO_X) in 2020 and 7.1 tpd of NO_X in 2017) are 6 to 9 times greater than one year's worth of progress (0.8 tpd of NO_X).^[13] With respect to the year after the attainment year, CARB estimates that NO_X emissions in Ventura County will be approximately 0.9 tpd lower in 2021 than in the 2020 attainment year due to mobile source controls and vehicle turnover, and thus continued emissions reductions are assured in the year after the attainment year even before accounting for the emissions reductions from the to-be-adopted local contingency measure.^[14] As such, we conclude that the to-be-adopted District contingency measure need not in itself achieve one year's worth of RFP.

In conclusion, we anticipate that the emissions reductions from the contingency measure ultimately adopted by the District will be sufficient, although we expect that it will achieve less than 1.1 tpd of VOC or 0.8 tpd of NO_X reductions (i.e., one year's worth of RFP), because other surplus emission reductions measures (not relied upon directly to meet the statutory contingency measure requirement or any other nonattainment plan requirement including RFP or attainment) will ensure sufficient continued progress in the event of a failure to achieve an RFP milestone or a failure to attain the NAAQS by the applicable attainment date. Therefore, we expect the contingency measure, once adopted and submitted, to be sufficient to remedy the deficiency in the contingency measures element of the 2016 Ventura County Ozone SIP, and the commitment to submit such a contingency measure as an appropriate basis for a conditional approval.

III. Final Action

For the reasons discussed above, under CAA section 110(k)(4), the EPA is taking final action to conditionally approve as a revision to the California SIP the contingency measures element of the 2016 Ventura County Ozone SIP, submitted by CARB on April 11, 2017 and December 5, 2018, as meeting the requirements of CAA sections 172(c)(9) and 182(c)(9) for RFP and attainment contingency measures.^[15] Our conditional approval is based on commitments by the District and CARB to supplement the contingency measures element of the 2016 Ventura County Ozone SIP through submission, as a SIP revision (within one year of the effective date of our final conditional approval action), of a revised District rule that would add new limits or other requirements if an RFP milestone is not met or if Ventura County fails to attain the 2008 ozone NAAQS by the applicable attainment date.^[16]

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 conditionally approves state plans 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);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, 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 August 24, 2020. 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

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

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

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

Subpart F—California

2. Section 52.220 is amended by adding paragraphs (c)(514)(ii)(A)( 6) and (c)(532)(ii)(A)(2) to read as follows:

3. Section 52.248 is amended by adding paragraph (j) to read as follows:

Footnotes