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U.S. Environmental Protection Agency.
The Environmental Protection Agency (EPA) is approving the portions of a State implementation plan (SIP) revision submitted by the State of California on February 13, 2013 that relate to attainment of the 1-hour and 1997 8-hour ozone national ambient air quality standards in the Los Angeles-South Coast area. Specifically, the EPA is approving the portions of the South Coast Air Quality Management District's Final 2012 Air Quality Management Plan that update the approved control strategy for the 1997 8-hour ozone standard and that provide a demonstration of attainment of the 1-hour ozone standard by December 31, 2022. In approving this SIP revision, the EPA finds that an attainment date of December 31, 2022 is appropriate in light of the severity of the 1-hour ozone problem in the Los Angeles-South Coast area and the limited emissions remaining that can be regulated given the extent to which emissions sources in the South Coast have already been controlled. As part of this action, the EPA is approving new commitments adopted by the South Coast Air Quality Management District to develop, adopt, submit and implement certain near-term measures to achieve certain aggregate emission reduction targets, updated new technology provisions, and a new commitment by the California Air Resources Board to submit contingency measures in 2019 as necessary to meet the emission reduction targets for 2022 from implementation of new technology measures.
This rule is effective on October 3, 2014.
You may inspect the supporting information for this action, identified by docket number EPA-R09-OAR-2014-0185, by one of the following methods:
1. Federal eRulemaking portal, http://www.regulations.gov, please follow the online instructions; or,
2. Visit our regional office at, U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
Docket: The index to the docket for this action is available electronically on the www.regulations.gov Web site and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105. 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., voluminous records, large maps, copyrighted material), and some may not be publicly available at either location (e.g., Confidential Business Information). 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 below.
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FOR FURTHER INFORMATION CONTACT:
Wienke Tax, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 947-4192, email@example.com.
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Throughout this document, “we,” “us” and “our” refer to the EPA.
Table of Contents
II. Public Comments and the EPA's Responses
III. Final Action
IV. Statutory and Executive Order Reviews
On February 13, 2013, the California Air Resources Board (CARB) submitted the Final 2012 Air Quality Management Plan (“2012 AQMP”) to EPA as a revision to the Los Angeles-South Coast Air Basin (“South Coast”) portion of the California State Implementation Plan (SIP). The South Coast Air Quality Management District (SCAQMD or District) and CARB prepared the 2012 AQMP in response to EPA's “SIP call” under section 110(k)(5) of the Clean Air Act (CAA or “Act”) for a new attainment demonstration for the 1-hour ozone standard for South Coast and to meet other CAA requirements.
In addition to the 2012 AQMP, CARB's February 13, 2013 SIP revision submittal includes the relevant CARB and SCAQMD board resolutions and other supporting material. The 2012 AQMP updates the approved 1997 8-hour ozone control strategy,
includes attainment demonstrations for the 1-hour ozone standard and the 2006 PM2.5 standard, and includes demonstrations intended to address the vehicle-miles-traveled emissions offset requirements of CAA section 182(d)(1)(A) for the 1-hour ozone and 1997 8-hour ozone standards. With respect to the 1997 8-hour ozone standard, in adopting the 2012 AQMP, the SCAQMD indicated that, while the 2012 AQMP updates the approved 1997 8-hour ozone control strategy with new measures designed to reduce reliance on CAA section 182(e)(5) long-term (i.e., advanced technologies) measures for VOC and NOX reductions, it is not intended as an update to other elements of the approved 8-hour ozone control plan.
The 2012 AQMP contains a number of SIP elements for a number of pollutants, but we are taking action today only on the portions of the 2012 AQMP that update the approved 1997 8-hour ozone control strategy from the 2007 AQMP and that provide an attainment demonstration for the 1-hour ozone standard. Specifically, the relevant elements of the 2012 AQMP covered by our action include:
- CARB's resolution of adoption (Resolution 13-3);
- SCAQMD's resolution of adoption (Resolution 12-19);
- The ozone-related portions of chapter 4 of the 2012 AQMP (“Control Strategy and Implementation”);
- Appendices IV-A (“District's Stationary Source Control Measures”), Start Printed Page 52527IV-B (“Proposed Section 182(e)(5) Implementation Measures”), and IV-C (“Regional Transportation Strategy and Control Measures”); and
- Appendix VII (“South Coast 2012 1-hour ozone attainment demonstration”), which includes 4 attachments, one of which includes a demonstration of reasonably available control measures (RACM).
In addition, EPA requested clarification of the commitments made by SCAQMD and CARB in connection with the 1-hour ozone attainment demonstration in the 2012 AQMP, and the two agencies responded with the following letters clarifying their respective commitments:
- Letter from Barry R. Wallerstein, D.Env, SCAQMD Executive Officer, to Jared Blumenfeld, Regional Administrator, EPA Region IX, May 1, 2014 (“Wallerstein Letter”); and
- Letter from Richard W. Corey, Executive Officer, CARB, to Jared Blumenfeld, Regional Administrator, EPA Region IX, May 2, 2014 (“Corey Letter”).
For simplicity, in referring to the elements on which we are acting, we are using the term “2012 AQMP” even though we recognize that the 2012 AQMP includes other elements in addition to those covered in this final action.
On May 23, 2014 (79 FR 29712), the EPA proposed approval of the updated control strategy for the 1997 8-hour ozone standard and the 1-hour ozone attainment demonstration, including the related emissions inventories, control strategy, and photochemical modeling. In proposing approval of the 2012 AQMP, we agreed with the State that an attainment date of December 31, 2022 for the 1-hour ozone standard in the South Coast is appropriate in light of the severity of nonattainment and the extent to which emissions sources have already been controlled in the South Coast. References herein to “the proposed rule” or “our proposed rule” refer to our proposal published on May 23, 2014.
In connection with future baseline emissions in the South Coast as presented in the 2012 AQMP, we noted in our proposed rule that the baseline reflects regulations adopted by SCAQMD as of June 2012 and regulations adopted by CARB by August 2011.
As we noted in our proposed rule, as a general matter, EPA will approve a State plan that takes emissions reduction credit for a control measure only where EPA has approved the measure as part of the SIP, or in the case of certain on-road and nonroad (or “off-road”) measures, where EPA has issued the related waiver of preemption or authorization under CAA section 209(b) or section 209(e). We also noted that, with certain exceptions, the relevant SCAQMD and CARB rules had been approved into the SIP, and with respect to the exceptions (recent amendments to SCAQMD Rules 1146, 1146.1, and 1147 and CARB's Consumer Products Regulation), we anticipated taking final action prior to taking final action on the revised 1-hour ozone attainment demonstration.
As anticipated, EPA has taken action on CARB's amended Consumer Product Rule and SCAQMD's amended Rules 1146 and 1146.1.
As such, the future baseline in the 2012 AQMP reflects, CARB and SCAQMD rules for which EPA has issued approvals, waivers, or authorizations and that are therefore enforceable for the purposes of the CAA.
The control strategy for the 1-hour ozone standard includes adopted measures (i.e., baseline measures that are reflected in the future baseline emissions inventories), committal measures, and new technology measures.
The overall control strategy and emissions reductions from the various components are presented in table 4 of our proposed rule, which we reprint here for ease of reference.
Table 4 (From Proposed Rule)—Summary of South Coast's 1-Hour Ozone Attainment Demonstration Control Strategy (Summer Planning Inventory (tpd))
|Year 2008 Base Year a||593||754|
|Emission Reductions from Baseline Measures||153||419|
|Year 2022 Baseline||440||335|
|SCAQMD's New Aggregate Emissions Reduction Commitment||6||11|
|CARB's Existing Aggregate Emissions Reduction Commitment||7||24|
|New Technology Provisions||17||150|
|Year 2022 With Fulfillment of Commitments||410||150|
|a The modeling runs that were used to demonstrate attainment of the 1-hour ozone standard in the 2012 AQMP were based on the base year (2008) summer planning inventories (see table 1 from our proposed rule) with adjustments made for weekly and daily temperature variations. See 2012 AQMP, appendix VII, page VII-51.|
With respect to the ozone control strategy, we proposed that the 2012 AQMP provides for implementation of all RACM and that the committal measures and new technology measures relied upon to achieve necessary emissions reductions were approvable. Specifically, we proposed to approve the new commitments by the SCAQMD to develop, adopt, submit and implement 15 new measures as expeditiously as possible to achieve, in the aggregate, emissions reductions of 6 tons per day (tpd) of VOC and 11 tpd of NOX by January 1, 2022, and to substitute any other measures as necessary to make up any emission reduction shortfall.
The 15 new SCAQMD measures are summarized in table 5 of our proposed rule, which we reprint here for ease of reference. For a Start Printed Page 52528detailed description of the measures to which the SCAQMD has committed, please see appendix VI-A of the 2012 AQMP.
Table 5 (From Proposed Rule)—District Control Measures in 2012 AQMP 1-Hour Ozone Attainment Demonstration
|Number and title||Adoption||Implementation period||Reduction (tons per day (tpd))
|CTS-01—Further VOC Reductions from Architectural Coatings (Rule 1113)||2015-2016||2018-2020||2-4|
|CTS-02—Further Emission Reduction from Miscellaneous Coatings, Adhesives, Solvents and Lubricants||2013-2016||2015-2018||1-2|
|CTS-03—Further VOC Reductions from Mold Release Products||2014||2016||0.8-2|
|CMB-01—Further NOX Reductions from RECLAIM||2015||2020||3-5|
|CMB-02—NOX Reductions from Biogas Flares||2015||Beginning 2017||(1)|
|CMB-03—Reductions from Commercial Space Heating||Phase I—2014 (Tech Assessment), Phase II—2016||Beginning 2018||0.18|
|FUG-01—VOC Reductions from Vacuum Trucks||2014||2016||1|
|FUG-02—Emission Reduction from LPG Transfer and Dispensing—Phase II||2015||2017||1-2|
|FUG-03—Further Reductions from Fugitive VOC Emissions||2015-2016||2017-2018||1-2|
|MCS-01—Application of All Feasible Measures||Ongoing||Ongoing||(1)||(1)|
|MCS-02—Further Emission Reductions from Green waste Processing (Chipping and Grinding Operations not associated with composting)||2015||2016||1|
|MCS-03—Improved Start-up, Shutdown and Turnaround Procedures||Phase I—2012 (Tech Assessment), Phase II—TBD||Phase I—2013 (Tech Assessment), Phase II—TBD||(1)||(1)|
|INC-01—Economic Incentive Programs to Adopt Zero and Near-Zero Technologies||2014||Within 12 months after funding availability||(1)|
|INC-02—Expedited Permitting and CEQA Preparation Facilitating the Manufacturing of Zero and Near-Zero Technologies||2014-2015||Beginning 2015||(2)||(2)|
|EDU-01—Further Criteria Pollutant Reductions from Education, Outreach and Incentives||Ongoing||Ongoing||(2)||(2)|
|Source: 2012 AQMP, table 4-4. Note: TBD = to be determined once the specific inventory and control approach for the measure are identified. N/A = not applicable given nature of the measure.|
We noted in our proposed rule that CARB did not make a new aggregate emissions reduction commitment for the purposes of demonstrating attainment of the 1-hour ozone standard by December 31, 2022 in the South Coast, but instead relies on the EPA-approved aggregate emissions reduction commitment under the 2007 AQMP, which will provide 7 tpd of VOC and 24 tpd of NOX reductions by January 1, 2022. Considered together, the SCAQMD's new aggregate emissions reductions commitment and CARB's existing aggregate emissions reductions commitment under the 2007 AQMP amount to 13 tpd of VOC and 35 tpd of NOX for the purposes of 1-hour attainment in the South Coast by December 31, 2022.
We also proposed to approve, as authorized under section 182(e)(5) of the CAA, provisions that anticipate development of new control techniques or improvement of existing control technologies. The 2012 AQMP relies on such provisions to achieve emissions reductions of 17 tpd of VOC and 150 tpd of NOX by January 1, 2022 for 1-hour ozone attainment demonstration purposes. Consistent with the requirements for CAA section 182(e)(5), we proposed to approve a related commitment by CARB to develop, adopt, and submit contingency measures by January 1, 2019 to be implemented if the anticipated technologies do not achieve the planned reductions.
The 2012 AQMP frames the section 182(e)(5) provisions in terms of specific measures referred to herein as “new technology measures.” These measures are summarized in table 6 of our proposed rule, which we reprint here for ease of reference. See 2012 AQMP, appendix IV-B for a detailed description of the measures.
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Table 6 (From Proposed Rule)—SCAQMD and CARB New Technology Measures in 2012 AQMP
|2012 AQMP Measure
|ONRD-01||Accelerated Penetration of Partial Zero-Emission and Zero Emission Vehicles||This measure continues implementation of CARB's Clean Vehicle Rebate Project (CVRP) through 2023 with a minimum number of 1,000 vehicles per year to be incentivized through the CVRP, which provides individual vehicle incentives of up to certain amounts (e.g., $2,500 for full zero-emission vehicles) for clean vehicles.|
|ONRD-02||Accelerated Retirement of Older Light-Duty and Medium Duty Vehicles||This measure calls for retirement of, at a minimum, 2,000 light and medium-duty vehicles per year to 2023, and gives first priority to pre-1992 model year vehicles identified as high emitter and that are off-cycle to California's Smog Check Program. Incentives are up to $2,500 per vehicle which could include a replacement voucher under CARB's Enhanced Fleet Modernization Program.|
|ONRD-03||Accelerated Penetration of Partial Zero-Emission and Zero Emission Light-Heavy- and Medium-Heavy-Duty Vehicles||This measure seeks additional emissions reductions through the early introduction of electric hybrid vehicles and continues the state hybrid truck and bus voucher incentive project (HVIP). Incentives of up to $25,000 per vehicle are part of this measure. The measure's goal is to fund 1,000 hybrid and zero-emission vehicles each year to 2023.|
|ONRD-04||Accelerated Retirement of Older On-Road Heavy-Duty Vehicles||This measure seeks additional emissions reductions from older, pre-2010 heavy-duty vehicles beyond the emission reductions targeted in CARB's Truck and Bus Regulation. A significant number of heavy-duty trucks have been replaced through Proposition 1B Goods Movement Emission Reduction Program funding, the Carl Moyer Program, and other local incentives programs. This measure continues these programs through 2023.|
|ONRD-05||Further Emission Reductions from Heavy-Duty Vehicles Serving Near-Dock Railyards||This measure calls for CARB to adopt a regulation or other enforceable mechanism to further reduce emissions from near-dock railyard drayage trucks. The regulation or other enforcement mechanism would require, by 2020, all containers transported between the marine ports and the near-dock railyards to use zero-emission technologies.|
|OFFRD-01||Extension of the SOON Provision for Construction/Industrial Equipment||This measure seeks to reduce emissions from older, high-emitting off-road diesel engines. Under this measure, incentive programs, such as the Carl Moyer Program and the SOON Provision of CARB's Off-Road rule, would continue to be used to fund equipment replacement and engine repower projects. This measure would extend the current SOON program beyond 2014 to 2023.|
|OFFRD-02||Further Emission Reductions from Freight Locomotives||This measure carries forward the freight locomotive new technology measures from the 2007 AQMP and calls for replacing existing locomotive engines with Tier 4 engines beginning in 2015 such that by 2023, there will be at least 95% Tier 4 locomotives operating the South Coast.|
|OFFRD-03||Further Emission Reductions from Passenger Locomotives||Metrolink's Board has adopted a locomotive replacement plan which includes the procurement of Tier 4 locomotive engines to replace its 30 Tier 0 locomotives over a three-year period. In addition, the replacement plans call for repowering the existing Tier 2 locomotives to Tier 4 emission levels, resulting in 100% Tier 4 locomotives by 2023.|
|OFFRD-04||Further Emission Reductions from Ocean-Going Marine Vessels While at Berth||This measure focuses on ocean-going vessels not subject to CARB's shorepower regulation and seeks to deploy shorepower technologies for an additional 25 percent of the calls not subject to CARB's shorepower regulation.|
|OFFRD-05||Emission Reductions from Ocean-Going Marine Vessels||This measure calls for incentives to be used to maximize the early introduction and preferential deployment of vessels to the San Pedro Bay Ports with cleaner/new engines meeting the new Tier 2 and Tier 3 IMO NOX standards.|
|ADV-01||Actions for the Deployment of Zero and Near-Zero Emission On-Road Heavy-Duty Vehicles||This measure includes two sets of actions. The first set involves the establishment of an optional NOX exhaust emission standard that is at least 95 percent lower than the current 2010 on-road exhaust emissions standard. The second set is to develop zero-emission technologies for heavy-duty vehicles that can be deployed in the 2015 to 2035 timeframe.|
|ADV-02||Actions for the Deployment of Zero-Emission and Near-Zero Locomotives||This measure describes actions needed to commercialize advanced zero-emission and near-zero emission technologies for locomotives that could be deployed in the 2020 to 2030 timeframe.|
|ADV-03||Actions for the Deployment of Zero-Emission and Near-Zero Cargo Handling Equipment||This measure describes actions to demonstrate and commercialize advanced zero-emission and near-zero emission technologies for cargo handling equipment operated at marine ports, intermodal freight facilities, and warehouse distribution centers that could be deployed in the 2020 to 2030 timeframe.|
|ADV-04||Actions for the Deployment of Cleaner Commercial Harbor Craft||This measure describes actions needed to commercialize advanced engine control technologies and hybrid systems for commercial harbor craft that could be deployed in the 2020 to 2030 timeframe.|
|ADV-05||Actions for Deployment of Cleaner Ocean-Going Marine Vessels||This measure describes the actions needed to deploy retrofit technologies on existing Category 3 marine engines to achieve Tier 3 marine engine emissions standards.|
|ADV-06||Actions for the Deployment of Cleaner Off-Road Equipment||This measure describes the actions needed to commercialize advanced zero-emission and near-zero emission technologies of off-road equipment that could be deployed in the 2020 to 2030 timeframe.|
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|ADV-07||Actions for the Deployment of Cleaner Aircraft Engines||This measure describes the actions needed to develop, demonstrate, and commercialize advanced technologies, procedures, and sustainable alternative jet fuels that could be deployed in the 2020 to 2030 timeframe.|
A more detailed discussion of the ozone NAAQS, ozone SIP plans for the South Coast, EPA's SIP call for a new 1-hour ozone attainment demonstration as well as the 2012 AQMP and our evaluation of how it meets the requirements of the CAA can be found in our proposed rule. The EPA is approving the 2012 AQMP based on our determination that it complies with applicable CAA requirements and provides for expeditious attainment of the 1-hour ozone standard in the South Coast.
II. Public Comments and the EPA's Responses
Our proposed rule provided a 30-day comment period. During this period, we received a comment letter from Earthjustice on behalf of a number of community and environmental groups, including Communities for a Better Environment, Natural Resources Defense Council, Physicians for Social Responsibility—Los Angeles, and Sierra Club (herein, referred to collectively as “Earthjustice”); and a number of emails and attachments from a member of the public representing the Public Solar Power Coalition (“PSPC” herein). The attachments from PSPC included a copy of the clerk's transcript of case documents from the Superior Court, Los Angeles County, to the Second District Court of Appeal upon appeal of Eder v. South Coast Air Quality Management District (SC 119641).
We provide our responses to the comments in the paragraphs below. We have organized the comments and responses under the related major topics.
One-Hour Ozone Attainment Date
Comment 1: Earthjustice asserts that EPA erred in relying on CAA sections 110(k)(5) and 172(a)(2) to set the South Coast's attainment deadline for the 1-hour standard and was required instead to use section 179(d)(3). Earthjustice further asserts that, if EPA had acted correctly, the attainment date would be no later than 2021 rather than 2022.
Response 1: This comment is not timely and is not relevant to the current rulemaking. The EPA established the new attainment date for the 1-hour ozone standard in the South Coast in our final SIP call rule, which was issued on January 7, 2013. See 78 FR 889 (“The SIP must provide for attainment of the 1-hour ozone NAAQS in the South Coast nonattainment area as expeditiously as practicable, but no later than five years from the effective date of today's rule, unless the State can demonstrate that it needs up to an additional five years to attain in light of the severity of the nonattainment problem and the availability and feasibility of control measures.”)
The 2012 AQMP provides a demonstration of attainment by December 31, 2022 and our proposed rule finds that an attainment date of December 31, 2022 is appropriate in light of the severity of the 1-hour ozone problem in the South Coast and the extent to which emission sources in the South Coast have already been controlled. See 79 FR 29712, at 29724 (May 23, 2014).
CAA Section 182(e)(5)
Comment 2: Earthjustice asserts that the plain language of the CAA does not allow for reliance on section 182(e)(5) after the attainment date. The Act requires states that plan to rely on CAA section 182(e)(5) measures to implement contingency measures “adequate to produce emissions reductions sufficient, in conjunction with other approved plan provisions, to achieve . . . attainment by the applicable dates” and that the applicable attainment date for “extreme” areas is November 15, 2010 pursuant to section 181(a)(1). With respect to the South Coast, Earthjustice argues that the contingency measures are de facto insufficient to achieve attainment by the applicable dates because the attainment date of November 15, 2010 has expired, and because it has expired, it is no longer possible to satisfy the requirements of section 182(e)(5). Thus, Earthjustice concludes that the 1-hour ozone attainment demonstration in the 2012 AQMP cannot rely on section 182(e)(5) measures.
Response 2: We disagree with the contention that the plain language of the CAA does not allow for reliance on section 182(e)(5) when a state fails to meet its initial attainment date and a new attainment date must be established. Section 182(e) expressly provides EPA with the authority to approve an attainment demonstration for “extreme” ozone areas that anticipates “development of new control techniques or improvement of existing control technologies,” referred to herein as “new technology” measures, if certain conditions are met. Nothing in this provision limits its application only to the initial designations and classification that occurred immediately following enactment of the CAA Amendments of 1990. The commenter does not explain why it is “no longer possible” to meet the conditions of section 182(e)(5), and we explain in the proposed rule why the State has met those requirements. See 79 FR at 29722-29724 (May 23, 2014).
Comment 3: Earthjustice argues that an area that fails to attain by its applicable attainment date should not be allowed to include CAA section 182(e)(5) measures because it gives states no incentive to close the “black box” within the attainment time frames of the Act. Earthjustice believes that allowing areas to rely on section 182(e)(5) provisions after the attainment time frames of the Act creates an incentive to continually roll “black” box reductions past the attainment date.
Response 3: We disagree that approving a revised 1-hour ozone attainment demonstration that relies on new technology measures under CAA section 182(e)(5) (and referred to as the “black box” by Earthjustice) removes the incentive for states to follow through on the related emissions reductions within the timeframes of the Act. First, if the new technology measures in the 2012 AQMP do not achieve the emissions reductions upon which the 1-hour ozone attainment demonstration relies (i.e., 17 tpd of VOC and 150 tpd Start Printed Page 52531of NOX), then CARB must submit contingency measures to make up for the shortfall. CARB has made a commitment to develop and submit such contingency measures by January 1, 2019.
Given the extent to which emissions sources in the South Coast are already controlled, development of section 182(e)(5) contingency measures will present a significant regulatory challenge to CARB that can only be avoided or reduced if the new technology measures achieve a significant portion, if not all, of the emissions reductions expected from them in the 2012 AQMP. Further, upon the effective date of today's action, the commitment submitted by CARB to submit such contingency measures will be part of the California SIP and thus enforceable by EPA or private citizens.
Comment 4: Earthjustice asserts that allowing the 1-hour ozone attainment demonstration in the 2012 AQMP to rely on section 182(e)(5) measures conflicts with the purpose of section 182(e)(5) because section 182(e)(5)(A) specifically precludes reliance on new technology measures to comply with emissions reductions necessary in the first ten years after enactment of the 1990 Amendments to the Act and thereby indicates Congress's intention that a 10-year period is too short to allow reliance on “black box” measures to comply with CAA requirements; because, as a practical matter, the shortened planning horizon for attainment in the 2012 AQMP does not provide the time necessary to develop and implement new technology measures; and because section 182(e)(5)(B) requires contingency measures to be submitted at least three years in advance of implementation of the measures if the anticipated technologies do not achieve the anticipated emissions reductions.
Earthjustice contends that emissions reductions must be in place by January 1, 2020 to provide the three years of clean data prior to an attainment date of December 31, 2022, which means that the contingency measures under CAA section 182(e)(5)(B) must be submitted by January 1, 2017, less than three years from the present. Given the contrast between the planning horizon for the 1-hour ozone standard in the 2012 AQMP and the longer (20-year) planning horizon for the initial South Coast AQMP established under the CAA Amendments of 1990, Earthjustice concludes that section 182(e)(5) measures cannot be relied upon for the 1-hour ozone attainment demonstration in the 2012 AQMP.
Response 4: First, the language of section 182(e)(5)(A) does not preclude reliance on new technology provisions in the new 1-hour ozone attainment demonstration. Section 182(e)(5)(A) is the first condition necessary to support reliance on new technology provisions, and to meet this condition, the EPA must find that such provisions “are not necessary to achieve the incremental emission reductions required during the first ten years after November 15, 1990.” Since the 10-year attainment period for the area runs from 2013 until January 1, 2022, by definition the State has met this condition. Given the plain language of the Act in this regard, there is no ambiguity to resolve and for which Congressional intent might be taken into consideration.
Second, with respect to the practical consideration of whether sufficient time is available to develop new technology measures to provide emissions reductions by January 1, 2022 to provide for attainment of the 1-hour ozone standard by December 31, 2022, we note that the processes used by the relevant air agencies to develop and implement the new technology measures are not new to the 2012 AQMP, but represent a continuation of the effort initiated in the wake of development of the 2007 AQMP for attainment of the 1997 8-hour ozone NAAQS and that is unfolding over a longer planning period, similar to that for the 1-hour ozone plan developed pursuant to the CAA Amendments of 1990. Third, with respect to the timeline for emissions reductions and submittal of contingency measures under the 2012 AQMP, we note that the deadline for emissions reductions necessary for attainment of the 1-hour ozone standard by December 31, 2022 is January 1, 2022, not January 1, 2020 as asserted by Earthjustice. We explain the basis for this timeframe in our response to comment #13. Given that all emission reductions necessary for attainment of the standard must be achieved by January 1, 2022, the contingency measures under CAA section 182(e)(5)(B) are due to EPA no later than January 1, 2019, not January 1, 2017.
Thus, CARB had about six years from adoption of the 2012 AQMP, and has about four years remaining from the date of this final action, to determine whether it will be able to achieve 17 tpd of VOC and 150 tpd of NOX reductions in the South Coast for 1-hour ozone attainment demonstration purposes through the new technology measures or whether it will need to adopt alternative “contingency” measures to cover some or all of the necessary emissions reductions. This timeframe does not render application of section 182(e)(5) absurd; to the contrary, we believe that it is both practicable and reasonable.
Comment 5: Earthjustice asserts that CAA section 179 governs what happens when a region fails to meet an ozone standard, and that section 179 does not permit the use of section 182(e)(5) measures. Specifically, Earthjustice notes that section 179(d)(2) states that the new plan required under section 179 shall comply with sections 110 and 172 of the CAA and makes no reference to allowing for reliance on section 182(e)(5).
Response 5: This comment appears to take issue with EPA's previous final action determining that the South Coast had failed to attain the 1-hour ozone standard by the November 15, 2010 applicable attainment date. See 76 FR 82133, at 82145 (December 30, 2011). In that action, we were clear that the basis for our action was CAA sections 301(a) and 181(b)(2) and not section 179(c). Thus the new 1-hour ozone attainment demonstration is not governed by the requirements under section 179(d)(2). Regardless, we note that while section 179(d)(2) requires that the new SIP meet the requirements of CAA sections 110 and 172, it does not speak to nor preclude reliance on section 182(e)(5). We do not believe, and the commenter does not suggest, how a SIP for an ozone area classified as extreme would be inconsistent with the requirements of sections 110 and 172.
Comment 6: Even if reliance on CAA section 182(e)(5) were allowed, EPA's approval is arbitrary and capricious, contends Earthjustice, because EPA has not determined whether the section 182(e)(5) new technology measures will produce sufficient emission reductions to allow the South Coast to meet the attainment deadline. Earthjustice contends that over half of the proposed section 182(e)(5) measures in the 2012 AQMP have not been evaluated for their potential to reduce emissions. Additionally, Earthjustice asserts that, to rely on section 182(e)(5) measures to demonstrate attainment, the SIP must contain enforceable commitments from agencies responsible for developing and implementing the measures and that it is unclear from EPA's proposed rule whether such commitments have been made.
Response 6: We disagree that to approve the new technology provisions in the 2012 AQMP, we must determine that the identified new technology measures will in fact achieve the reductions necessary to attain the standard. Section 182(e)(5) contemplates that States will rely on measures not yet fully evolved and for that reason it is difficult to attribute a Start Printed Page 52532specific tonnage reduction to such measures. The new technology provisions in the 2012 AQMP reflect greater specificity than the corresponding provisions from the 2007 AQMP, but do not provide evidence that they will produce sufficient emissions reductions to allow the South Coast to meet the attainment deadline for the 1-hour ozone standard. For many of the individual new technology measures, emissions reductions were not estimated because they depend upon funding levels, which are uncertain at this time.
The fact that the specific emissions reduction estimates for the individual new technology measures in the 2012 AQMP are not available, however, is immaterial. Section 182(e)(5) requires, as relevant here, that the State submit “enforceable commitments to develop and adopt contingency measures” to be implemented if the new technologies do not achieve the planned reductions. In this case, the 2012 AQMP is relying on 17 tpd of VOC and 150 tpd of NOX reductions from the new technology provisions for 1-hour ozone attainment demonstration purposes. Such contingency measures must be “adequate to produce emissions reductions sufficient, in conjunction with other approved plan provisions, to achieve the periodic emission reductions . . . and attainment by the applicable dates.” CARB has submitted the necessary commitment to develop, adopt and submit such contingency measures by January 1, 2019. See CARB Resolution 13-3 and Corey Letter dated May 2, 2014.
Although section 182(e)(5) does not require an enforceable commitment with respect to the new technology measures, we note that the State has identified the specific agencies that will be responsible for developing and implementing the controls or techniques anticipated under the individual new technology measures, and for the 2012 AQMP, the SCAQMD has identified such agencies for each of the new technology measures. In addition, as noted in connection with the 2007 AQMP, EPA, CARB, the SCAQMD and the San Joaquin Valley Unified Air Pollution Control District (SJVUACPD) have signed a memorandum of agreement committing the agencies to coordinate efforts to develop and test new sustainable technologies to accelerate progress in meeting air quality goals. See 76 FR 57872, at 57882 (September 16, 2011).
Comment 7: Earthjustice asserts that EPA's interpretation of RACM does not comport with the Clean Air Act's mandate for nonattainment area plans to provide for attainment of the NAAQS as “expeditiously as practicable” but no later than the applicable attainment date. Earthjustice bases this assertion on what it perceives to be the inconsistency between the “expeditiously as practicable” mandate and EPA guidance, which provides that, to address the requirement to adopt all RACM, states should consider all potentially reasonable control measures in the nonattainment area to determine whether they are reasonably available for implementation in that area and whether they would, if implemented individually or collectively, advance the area's attainment date by one year or more. Earthjustice contends that the one-year condition is arbitrary and that it allows the states to avoid implementation of otherwise feasible and cost-effective control measures if implementation of those measures would not advance attainment by at least one year. Earthjustice also contends that it is arbitrary and capricious for EPA to rely on a guidance document that limits RACM to measures that advance attainment by one year as opposed to measure that may advance attainment by 9 months, 6 months, 3 months or even 1 month.
The one-year condition on the RACM requirement, Earthjustice asserts, is exacerbated by EPA taking this position for extreme ozone nonattainment areas that may rely on new technology measures under CAA section 182(e)(5), as well as areas that have missed their attainment dates “because the region has not even identified enough control measures to attain in the first place.” Earthjustice claims that the availability of CAA section 182(e)(5) in extreme areas means that measures can be rejected arbitrarily as not meeting RACM.
Lastly, Earthjustice suggests that EPA should instead change its interpretation of RACM in extreme nonattainment areas that rely on new technology measures to require a demonstration that all feasible control measures have been adopted, regardless of whether those control measures can be demonstrated to advance attainment by a year. It also requests clarification that RACM represents the minimum level of control states are required to demonstrate in nonattainment plans and that other measures are also required, as necessary or appropriate, to attain the NAAQS as expeditiously as practicable, regardless of whether the measures are considered RACM.
Response 7: EPA has consistently interpreted RACM as a collection of measures that would advance the attainment date by at least one year, and the courts have determined that the statutory RACM requirement is ambiguous and deferred to EPA's interpretation of the requirement. See Sierra Club v. EPA, 314 F.3d 735, 744-745 (5th Cir. 2002); see also Sierra Club v. EPA, 294 F.3d, 155, 162 (D.C. Cir. 2002). See also 57 FR 13498, 13560 (April 16, 1992); 44 FR 20372, 20374 (April 4, 1979).
In considering whether a collection of measures would advance the attainment date of an area, EPA has previously interpreted the phrase “advance the attainment date” as meaning that the attainment date would be advanced by at least one year. See e.g., 66 FR 57160, 57182 (November 14, 2001) (approval of Houston 1-hour ozone SIP); 66 FR 586 (January 3, 2001) (approval of DC area 1-hour ozone SIP); 76 FR 57872, 57877 (September 16, 2011)(proposed approval of South Coast 8-hour ozone SIP—finalized at 77 FR 12674 (March 1, 2012); and 77 FR 12652, 12659-12660 (March 1, 2012)(approval of San Joaquin Valley 8-hour ozone SIP). EPA's use of a one-year increment in determining whether a collection of measures would advance the attainment date is reasonable and consistent with the fact that determinations of attainment, or failure to attain, the 1-hour ozone standard are based on data compiled on a calendar-year basis (see 40 CFR 50.9 and appendix H to 40 CFR part 50). Furthermore, sections 172(a)(2)(C) and 181(a)(5) use one year as the increment by which attainment date extensions can be granted. Thus, requiring evaluation of whether control measures would advance attainment by an increment of one year is a reasonable approach.
Second, we disagree that the one-year condition for consideration of RACM in areas that rely on CAA section 182(e)(5) new technology measures to demonstrate attainment (and thus have not identified the specific measures needed to attain the standard) allows for arbitrary rejection of measures as not meeting RACM. So long as attainment plans developed for such areas identify base year emissions, an attainment date, and attainment-year emission targets, the emissions reductions associated with advancement of the attainment Start Printed Page 52533date by one year can be calculated. Such an estimate can be used to judge whether a collection of reasonably available measures would advance attainment by one year notwithstanding the reliance on new technology measures. Thus, EPA's long-standing interpretation of RACM in terms of a collection of measures that would advance the attainment date of an area is not arbitrary as applied to areas that rely on section 182(e)(5) new technology measures.
In the case of the 1-hour ozone standard and the 2012 AQMP, the emissions reductions associated with advancement of the attainment date by one year are roughly 14 tpd of VOC and 46 tpd of NOX based on 2008 base year emissions and the emissions targets for attainment by December 31, 2022. As described in appendix VI (“Reasonably Available Control Measures (RACM) Demonstration”) of the 2012 AQMP, the SCAQMD updated previous RACM demonstrations for purposes of evaluating all feasible control measure concepts for inclusion in the 2012 AQMP. Ultimately, SCAQMD adopted 15 new committal measures (see table 5 of our proposed rule) to ensure implementation of RACM. The collection of measures that were rejected as RACM were rejected because the hypothetical reductions were deemed non-quantifiable and thus they would not collectively advance the attainment date. See pages VI-18 and VI-19 of appendix VI of the 2012 AQMP.
Also, we disagree with the contention that EPA's one-year condition for consideration of RACM is absurd as applied to areas that have failed to attain the standard “because the region has not even identified enough control measures to attain in the first place.” RACM demonstrations and the attainment demonstrations upon which they rely are prepared, submitted and approved years before the applicable attainment date and are based on the best information available at the time. Notwithstanding approval of well-conceived and well-grounded RACM and attainment demonstrations that meet all CAA requirements, the area to which the demonstrations apply may still fail to attain the standard by the applicable attainment date for any number of reasons, such as assumptions regarding atmospheric chemistry or population forecasts that ultimately prove to be inaccurate when viewed in retrospect. Thus, the failure of an area to attain the standard by the applicable attainment date sheds no light on the appropriateness of the state's RACM demonstration or EPA approval of it years before but sets the stage for a new attainment date, and the type of RACM reevaluation and new attainment demonstration that is included in the 2012 AQMP.
Lastly, the EPA confirms that implementation of RACM as expeditiously as practicable represents the minimum level of control states are required to demonstrate in nonattainment plans. See CAA section 172(c)(1). We clarify that, in such plans, other measures are also required, as may be necessary or appropriate, to provide for attainment of the NAAQS “by the applicable attainment date specified in this part.” See CAA section 172(c)(6).
Comment 8: Even if EPA's interpretation of RACM is adequate, SCAQMD did not perform a proper RACM analysis because SCAQMD did not evaluate Indirect Source Rule Fees for RACM, which was a RACM commitment in the San Joaquin Valley.
Response 8: We disagree with the contention that SCAQMD's RACM demonstration for the 2012 AQMP was insufficient because it did not evaluate Indirect Source Rule (ISR) Fees. We recognize that the San Joaquin Valley air district has adopted, and EPA has approved, an ISR rule, Rule 9510 (“Indirect Source Review”), which includes an off-site fee element. However, in doing so, the air district and EPA acted under CAA section 110(a)(5). See 76 FR 26609 (May 9, 2011). Under that section of the CAA, EPA is prohibited from requiring states to include ISR programs in SIPs. Specifically, CAA section 110(a)(5)(A)(i) states in relevant part: “Any State may include in a State implementation plan, but the Administrator may not require as a condition of approval of such plan under this section, any indirect source review program. The Administrator may approve and enforce, as part of an applicable implementation plan, an indirect source review program which the State chooses to adopt and submit as part of its plan.” [Emphasis added.] An ISR Fee rule would constitute an ISR program, and thus, EPA may not require SCAQMD to consider such a rule as a RACM.
Comment 9: Earthjustice asserts that SCAQMD must evaluate the programs that SCAQMD is planning to use as “qualified” programs to fund the Rule 317 section 172(e) fee equivalency account, as RACMs. Earthjustice claims that, under Rule 317, “qualified” programs represent those that are “surplus” to the plan requirements to attain the 1-hour ozone standard and that reduce emissions from mobile sources by providing incentive funding that advances the state of mobile source emission reduction technology, improves fuel and engine infrastructure, and accelerates fleet turnover. The programs included in Rule 317, the commenter explains, include School Bus Replacement, Truck Retrofits, Clean Vehicle Rebate Programs, Hybrid Truck and Bus Voucher Incentives, Natural Gas Taxi Cabs and Shuttle Vans, a Lawnmower Exchange program, and others. Earthjustice asserts that SCAQMD must analyze all of the programs cited in Rule 317 under the RACM analysis to determine whether the programs will individually or collectively advance the date of attainment to meet the requirements of section 172(c)(1), and that, if any of the programs meet the definition of RACM, the programs must be adopted by SCAQMD in enforceable form in the nonattainment plans to meet the 1-hour and 8-hour ozone standards in the South Coast.
Response 9: SCAQMD Rule 317 (“Clean Air Act Non-attainment Fees”) is intended to satisfy the requirements of sections 182 and 185 of the Act under EPA's anti-backsliding rules governing the transition from the revoked 1-hour ozone standard to the 1997 8-hour ozone standard. The rule utilizes an equivalency approach consistent with the principles of section 172(e) of the Act. EPA approved Rule 317 as a revision to the California SIP at 77 FR 74372 (December 14, 2012).
RACM identifies a certain level of control of existing emissions sources that must be adopted in legally enforceable form. Incentive programs by their nature are voluntary, i.e., not enforceable, and thus are not the types of programs that a State must consider in its RACM evaluation. Moreover, the types of sources to which the incentive programs in Rule 317 apply are mobile sources, and as explained in our proposed rule, 79 FR at 29720 (May 23, 2014), we have found that CARB's mobile source program continues to meet the RACM requirement for such sources. CARB's mobile source program includes regulations for many types of existing (i.e, in-use) vehicles and equipment, including the types of vehicles and equipment to which the Rule 317 incentive programs apply.
Comment 10: The commenter asserts that, because the South Coast failed to attain the 1-hour ozone NAAQS, the revised 1-hour ozone attainment plan must include such additional measures as EPA may reasonably prescribe, including all measures that can be feasibly implemented in the area in light of technological achievability, costs, and any non-air quality and other air quality-related health and Start Printed Page 52534environmental impacts to comply with the requirements for such plans under CAA section 179(d)(2). The commenter states that pursuant to that provision, EPA should have prescribed potential feasible measures for achieving the standard, and suggests that the elimination of the exemption of methane from the definition of “volatile organic compounds” (VOCs) is one such potential measure that should have been prescribed and evaluated.
Response 10: In December 2011, we issued a final action determining pursuant to CAA sections 301(a) and 181(b)(2), that the South Coast had failed to attain the 1-hour standard by the applicable attainment date. We did not base that determination on section 179(c), and thus the plan requirements specified in CAA section 179(d) do not apply. Thus, this comment is not timely.
We note that EPA regulations exempt methane from the definition of VOC, 40 CFR 51.100(s), and the South Coast regulations are consistent with the EPA regulation. The EPA regulation exempting methane from the definition of “VOC” stems from the Agency's determination that methane is an organic compound that has negligible photochemical reactivity and thus need not be controlled for the purposes of reducing ground-level ozone concentrations. Independent of that, however, we recognize methane as a potent greenhouse gas and we note that many control measures that reduce VOC emissions have the co-benefit of reducing methane. Because EPA regulations exempt methane from the definition of VOC for the purpose of reduce ground-level ozone concentrations, it would not be appropriate for the State to rely on methane reductions as part of its plan to attain the 1-hour ozone NAAQS.
Comment 11: Earthjustice contends that EPA cannot approve California's reliance on section 172(c)(6) enforceable commitments because the state's proposed commitments are not enforceable and are insufficient to substitute for the credible emission reductions needed to demonstrate attainment. More specifically, Earthjustice notes that three of CARB's existing commitments in the 2012 AQMP do not have schedules for implementation, and without such schedules for implementation, CARB's measures are not “independently enforceable” under Ninth Circuit case law, citing El Comite Para El Bienestar de Earlimart v. Warmerdam, 539 F.3 1062, at 1071-1073 (9th Cir. 2008). The three CARB measures cited by Earthjustice include expanding passenger vehicle retirement, promoting cleaner ship engines and fuel, and adopting off-road recreational vehicle expanded emissions standards. In addition, Earthjustice contends that the SCAQMD's reservation of the right to substitute measures for the 15 specific measures adopted by SCAQMD to meet its emissions reduction commitment renders the measures unenforceable should the District choose to implement other, undisclosed measures.
Response 11: The 1-hour ozone attainment demonstration in the 2012 AQMP relies on existing CARB commitments approved by EPA in connection with the attainment demonstration for the 1997 8-hour ozone standard in the 2007 AQMP. More specifically, the 1-hour ozone attainment demonstration in the 2012 AQMP relies on the same commitments made by CARB, and approved by EPA, in connection with the 2007 AQMP to take certain defined measures to its Board for consideration and to achieve certain aggregate emissions reductions in certain years. In responses to comments in our final rule approving the commitments for the 8-hour ozone standard attainment demonstration, we addressed in detail the issue of enforceability of the commitments. See 77 FR 12674, at 12675-12677 (March 1, 2012). In short, however, we draw a sharp distinction between the commitments for the 2007 AQMP and the aspirational goals found to be unenforceable by certain courts. In contrast to an unenforceable aspirational goal, we found:
The language in CARB's and the District's commitments . . . is specific; the intent of the commitments is clear; and the strategy of adopting measures to achieve the required reductions is completely within CARB's and the District's control. Furthermore . . . CARB and the District identify specific emission reductions that they will achieve, how they could be achieved and the time by which these reductions will be achieved, i.e., by the 2023 attainment year. 77 FR 12674, at 12676-12677 (March 1, 2012).
Although the excerpt from our March 2012 final rule refers to the commitments for the attainment year for the 1997 8-hour ozone standard, CARB also made similar types of commitments for certain interim years, including year 2020, and a similar rationale applies. See 77 FR at pages 12689-12692 (March 1, 2012).
As to commitments related to expanding passenger vehicle retirement, promoting cleaner ship engines and fuel, and adopting off-road recreational vehicle expanded emissions standards, we disagree that the CARB has failed to include schedules for implementation and that, therefore, the commitments are unenforceable. We discuss the commitments related to these three control strategies and the current status of implementation in the following paragraphs.
First, with respect to expanding passenger vehicle retirement, CARB's 2007 State Strategy calls for expanding the existing vehicle retirement program to vehicles that are off-cycle from their Smog Check inspections over an implementation period of 2008-2014.
In 2007, the California enacted the California Alternative and Renewable Fuel, Vehicle Technology, Clean Air, and Carbon Reduction Act of 2007 (Assembly Bill (AB) 118), which creates the Air Quality Improvement Program (AQIP). The Enhanced Fleet Modernization Program (EFMP), one of the AQIP programs, is a voluntary vehicle retirement program that is funded through a $1 increase in vehicle registration fees (roughly $30 million annually) and that broadens eligibility criteria beyond vehicle failure under the Smog Check program. The California Legislature recently extended the program through 2023 (AB 8). In June 2014, CARB proposed amendments to the EFMP that would improve the program by focusing the program on low-income participants, expanding program flexibility to improve participation, and ensuring that retired vehicles are functional, which should improve emissions benefits from the program.
Second, as to promoting cleaner ship engines and fuel, CARB committed to adopting regulations to require use of cleaner, low-sulfur fuel by ocean-going vessels (OGV) in transit within 24 miles of the California coast with implementation expected from 2007-2010.
In 2008, CARB adopted the OGV clean fuel (i.e., low sulfur) regulations, and later amended the regulations in 2011. CARB's OGV clean fuel regulation is expected to be supplanted in 2015 by equivalent fuel standards applicable to a much wider area (200 nautical miles) along the California coast under the 2010 amendments, adopted by the International Maritime Organization (IMO), to the International Convention for the Prevention of Pollution from Ships (MARPOL) designating the North American Emission Control Area (ECA). Start Printed Page 52535MARPOL Tier III NOX standards 
will apply within the North American ECA to marine diesel engines that are installed on a ship constructed on or after January 1, 2016.
Third, as to adopting off-road recreational vehicle expanded emissions standards, CARB committed to bringing the emissions standards to its Board for consideration in 2013, with implementation schedules to be determined in the rulemaking process.
In July 2013, CARB adopted regulations establishing more extensive evaporative emissions standards for new off-highway recreational vehicles beginning with model year 2018.
As to the enforceability of SCAQMD's commitments in the 2012 AQMP, Earthjustice is correct that, in committing to develop, adopt, implement and submit the 15 measures listed in table 5 of the proposed rule, SCAQMD reserved the right to substitute measures where a listed measure is found to be infeasible and to otherwise substitute measures that can achieve equivalent reductions in the same adoption or implementation timeframes. See 2012 AQMP, pages 4-42 and 4-43. However, SCAQMD's commitment to the 15 defined measures is supported by the related, but independently enforceable, commitment to achieve aggregate emission reductions of 6 tpd of VOC and 11 tpd of NOX by January 1, 2022. The aggregate emissions reduction commitment sufficiently ensures that the District will achieve the 6 tpd of VOC and 11 tpd of NOX that is relied upon by the 1-hour ozone attainment demonstration, notwithstanding the potential for substitution of the individual measures by the SCAQMD.
Moreover, the SCAQMD has committed to be bound by a process with significant safeguards to ensure the integrity of the regulatory commitment. For instance, as described in more detail on pages 4-43 and 4-44 of the 2012 AQMP, the SCAQMD has defined “infeasibility” for the purposes of measure substitution, set cost-benefit thresholds triggering refined analysis, and established a public review and decision process. With such safeguards, we expect SCAQMD to make few substitutions, leaving most of the individual measures fully enforceable as part of the SIP.
Comment 12: Earthjustice challenges EPA's determination that CARB and SCAQMD are capable of fulfilling their aggregate emission reduction commitments, contending that such a determination conflicts with EPA's earlier finding that there are few opportunities to further reduce emissions and that six of SCAQMD's defined measures do not have estimated emission reductions. Without such reduction estimates, Earthjustice argues, EPA has no reason to believe that California will satisfy its emission reductions commitments.
Response 12: EPA's statement as to the few opportunities to further reduce emissions was made by way of explanation for why we believe that, with respect to the 2012 AQMP 1-hour ozone attainment demonstration, circumstances warrant the consideration of enforceable commitments as part of the attainment demonstration for the South Coast. We do not find this statement to be in conflict with our stated belief that CARB and SCAQMD are capable of fulfilling their aggregate emissions reductions “given the State's and SCAQMD's efforts to date to reduce emissions and the proposed stationary and mobile source strategies found in the 2012 AQMP.” The former simply acknowledges the unique challenges facing the air agencies in the South Coast relative to other parts of the country to identify source categories for additional controls beyond those already adopted and implemented, while the latter notes the long-term success of the air agencies in identifying sources to regulate emission sources to achieve the necessary reductions notwithstanding the challenges.
Earthjustice is correct that SCAQMD does not provide emissions reduction estimates for six of the 15 measures that the District has committed to develop, adopt, submit and implement. However, as further explained in the proposed rule, 79 FR 29712, at 29721 (May 23, 2014), SCAQMD is relying on emissions reductions from the SOON program as well as the emissions reductions from the 15 individual measures to meet its aggregate emissions reduction commitment. The emissions reductions estimated from the SOON program plus those from the measures for which SCAQMD has provided emissions reduction estimates is equal to the aggregate commitment. See table 5 from the proposed rule and pages IV-B-30 through IV-B-32 from appendix IV-B of the 2012 AQMP. Thus, we continue to believe that SCAQMD is capable of fulfilling its aggregate emission reduction commitment to achieve necessary emissions reductions by January 1, 2022.
Comment 13: Earthjustice contends that CARB's and SCAQMD's emissions reduction commitments are not for a “reasonable and appropriate period of time,” because the agencies anticipate fulfilling their commitments by January 1, 2022—less than a year before the 1-hour ozone attainment deadline of December 31, 2022, and that EPA provides no support for the notion that the agencies will meet the December 31, 2022 deadline simply by fulfilling their commitments by January 1, 2022. To the contrary, Earthjustice argues, these agencies have not demonstrated that the emissions reduction would occur within a 12-month time frame. In addition, Earthjustice claims that the agencies could not achieve three years of clean data if the agencies wait until January 1, 2022 to fulfill commitments.
Response 13: First, SCAQMD and CARB have committed to achieve aggregate emissions reductions by January 1, 2022 and are already at work meeting that commitment, and thus, these agencies have more than seven years to fulfill the commitments and achieve the reductions necessary for attainment, not 12 months as suggested by the commenter.
Second, SCAQMD and CARB commitments to achieve emissions reductions by January 1, 2022 is consistent with the requirement to ensure that necessary emissions reductions are in place by the beginning of the ozone season immediately preceding the attainment deadline. Since the attainment deadline is December 31, 2022, the ozone season immediately preceding that deadline begins on January 1, 2022 for the South Coast.
Reductions necessary to demonstrate attainment by December 31, 2022 need not be in place three years before the deadline. The three-year record of clean data applies to an attainment determination, not to an attainment demonstration, the latter of which we are approving today. The determination of attainment required by CAA section 181(b)(2), which is made by reviewing Start Printed Page 52536ambient air quality monitoring data after the attainment date, is distinctly different from the demonstration of attainment required by CAA section 182(c)(2), which is based on projections of future air quality levels and submitted before the attainment date.
For the 1-hour ozone standard, an attainment determination is based on monitored air quality levels in the three years preceding the attainment date. See 57 FR 13498, at 13506 (April 16, 1992). In contrast, an attainment demonstration is based on air quality modeling showing that projected emissions in the attainment year will be at or below the level needed to prevent violations of the relevant ambient air quality standard. For ozone, the attainment year is defined as the calendar year that includes the last full ozone season prior to the statutory attainment date. See 75 FR 10420, at 10431 (March 8, 2010) (Final approval of San Joaquin Valley 1-hour ozone attainment demonstration; later withdrawn at 77 FR 70376 (November 26, 2012) on other grounds). EPA has consistently interpreted the Act to require that the attainment demonstration show that air quality levels will be at or below the level of the standard in the attainment year and not for each of the three ozone seasons prior to the attainment date.
We believe this position is consistent with the ozone attainment provisions in subpart 2 of title 1, part D of the CAA. The program Congress crafted for ozone attainment does not require that all measures needed to attain the standard be implemented three years prior to the area's attainment date. For example, moderate areas were required by section 182(b)(1) to provide for VOC emissions reductions of 15 percent reduction by November 15, 1996 which was also the attainment date for these areas. For areas classified serious and above, CAA section 182(c)(2)(B) requires that ROP of 3 percent per year averaged over 3 years “until the attainment date” (a total of 9 percent reduction in emissions in the 3 years leading up to an area's attainment date). EPA does not believe that Congress intended these mandatory reductions to be in excess of what is needed to attain.
This position is also consistent with the attainment date extension provisions in CAA section 181(a)(5). Under this section, an area that does not have three years of data meeting the ozone standard by its attainment date, but has complied with all requirements and commitments pertaining to the area in the applicable implementation plan and has no more than one exceedance of the standard in the attainment year, may receive a one-year extension of its attainment date. Assuming these conditions are again met the following year, the area may receive an additional one-year extension. If the area has no more than one exceedance in this final extension year, then it will have three years of data indicating that it has attained the ozone standard.
EPA has consistently taken this position in guidance and in our approval of 1-hour ozone attainment demonstrations. Our ozone modeling guidance, which was issued less than a year after the 1990 CAA Amendments were enacted, requires States to model the ozone season before the attainment date and not the third ozone season before the attainment date.
The ozone attainment demonstrations that EPA has approved since the CAA Amendments of 1990 have been based on this modeling guidance and show that there will be no violations in the attainment year. See, for example, 61 FR 10921 (March 18, 1996) and 62 FR 1150 (January 8, 1997), proposed and final approval of California's attainment plans for 7 nonattainment areas; 66 FR 54143 (October 26, 2001), approval of Pennsylvania's 1-hour ozone attainment plan for the Philadelphia area; and 67 FR 30574 (May 7, 2002), approval of Georgia's 1-hour ozone attainment plan for Atlanta.
We took the same position on attainment demonstrations for the 8-hour ozone standard promulgated in 1997 when we promulgated regulations specifying the deadline for implementing emissions reductions for purposes of attainment of that standard. Specifically, 40 CFR 51.908(d) provides: “For each nonattainment area, the State must provide for implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season.” “Attainment year ozone season” is defined as “the ozone season immediately preceding a nonattainment area's attainment date.” 40 CFR 51.900(g).
Third, we do not find that CARB's and SCAQMD's commitments to be for a reasonable and appropriate period of time simply because the aggregate emissions reductions will be in place at the beginning of ozone season prior to the attainment date, but also because the agencies have committed to take certain near-term regulatory actions in support of those emissions reductions commitments. More specifically, SCAQMD has committed to develop, adopt, and submit, and implement specific control measures as expeditiously as possible. SCAQMD's commitment includes adoption dates for the specific measures (the latest of which calls for adoption in 2016) and implementation dates. Likewise, CARB has committed to bring certain regulatory measures to its Board for action on a certain schedule.
Therefore, we continue to find the reliance of the 2012 AQMP on these commitments to be acceptable because, among other reasons, we find the commitments to be for a reasonable and appropriate period of time.
Sustainable Communities Strategy (SCS)
Comment 14: Earthjustice claims that the emissions reductions from SCAG's Sustainable Communities Strategy (SCS) have been included in the baseline but that such inclusion is not appropriate because SCAG has not provided any information that the claimed emissions reductions will come from enforceable measures nor has EPA approved the SCS as a control measure. Earthjustice contends that the SCS should be submitted as a control measure towards attainment of the 1-hour and 8-hour ozone standards in the South Coast.
Response 14: The SCS is a new requirement for Regional Transportation Plans (RTPs) in California pursuant to state law (Senate Bill 375). As described in the 2012 South Coast AQMP, the primary goal of the SCS is to provide a vision for future growth in Southern California that will decrease per capita greenhouse gas emissions from automobiles and light trucks through integrated transportation, land use, housing and environmental planning. This leads to strategies that can help reduce per capita vehicle miles traveled over the next 25 years. While the SCS is intended to reduce GHG emissions, it will also produce reductions in ozone precursors.
SCAG's most recent adopted RTP, the 2012-2035 Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS), reflects SCS principles to achieve per capita emission reduction targets. Earthjustice is correct that the baseline inventory for the South Coast 2012 AQMP includes emissions reductions from the RTP/SCS to the extent that it reflects the same population, employment, economic activity, vehicle and transit activity forecasts and transportation control measures as the RTP/SCS and those forecasts and measures are projected to result in lower transportation-related emissions than would have occurred under the RTP baseline case. However, because SCS strategies are fully Start Printed Page 52537integrated into the RTP/SCS, separate emissions reduction estimates attributable to land use pattern changes cannot reliably be made apart from those associated with the various forecasts, transportation projects, and TCMs in the RTP/SCS. Distinguishing between emissions reductions associated with the types of changes in land use development patterns associated with SCS principles from those associated with transportation projects and TCMs is confounded by the fact that, as noted in the 2012 South Coast AQMP, the regional transportation system is appropriately viewed on a systems-level basis, and not by its components, since each of the individual transportation improvements and strategies affect each other and the system.
In addition, to the extent that the RTP/SCS reflects land use policies, we note that we have historically allowed States to take into account land use policies in their baseline (as opposed to being specifically approved into the SIP) if those policies are not being relied on as part of the control strategy. Specifically, we state: “EPA believes that it would be appropriate to include a specific land use policy in the land use assumptions made for the initial forecast [of future emissions] only if:
A. The policy meets one of the following conditions:
- It has already been adopted by an appropriate jurisdiction, or
- the policy is planned and there is an enforcing mechanism to ensure it will happen; and
B. The effects of the policy haven't already been accounted for in the land use assumptions—that is, you are not double counting.” 
In this instance, to the extent that the RTP/SCS embodies certain land use policies, those policies are not being relied upon as part of the control strategy to demonstrate attainment of the 1-hour ozone standard in the South Coast by the applicable attainment date and are enforceable through mechanisms provided in SB 375, and the effects of the policies have not already been accounted for in the land use assumptions.
Comment 15: Noting ongoing litigation between PSPC and SCAQMD over the 2012 AQMP, PSPC calls for adoption by SCAQMD of rules to implement an Immediate Total Solar Conversion Plan, with full implementation by 2020, or 2023 at the latest, contending that that the Immediate Total Solar Conversion Plan is cost effective and represents reasonably available control technology (RACT), Best Available Control Technology (BACT), and Best Available Retrofit Control Technology (BARCT). PSPC asserts that California Health and Safety Code (CH&SC) section 40404.5 mandates a solar conversion plan within the South Coast.
Response 15: For ozone nonattainment areas classified as moderate or above, CAA section 182(b)(2) requires the implementation of provisions that require the implementation of RACT on all major stationary sources of VOC and for each VOC source category for which EPA has issued Control Techniques Guideline (CTG) documents. CAA section 182(f) requires that RACT under section 182(b)(2) also apply to major stationary sources of NOX. In extreme ozone nonattainment areas such as the South Coast, a major source is a stationary source that emits or has the potential to emit at least 10 tons of VOC or NOX per year. CAA sections 182(e) and (f). The current rulemaking does not address the RACT SIP for the South Coast, thus the issue of whether a particular control is required for a specific source or source category is not pertinent to this rulemaking. With respect to the requirement to ensure implementation of emission limits representing BACT, we note that, for federal law purposes, BACT determinations are made in connection with preconstruction review and permitting of new major sources or major modifications of existing major sources under the provisions of the CAA and EPA regulations for the Prevention of Significant Deterioration (PSD). As such, BACT is relevant in the context of individual major source permit applications, but not in the context of EPA's action on the regional air quality plan.
Though not relevant to this rulemaking, we note that we are currently unaware of any sources that use solar power to control or limit VOC or NOX emissions. SJVUAPCD has researched solar-powered aeration for green waste composting, but recent discussions with SJVUAPCD staff indicated that while this work shows promise, it is still in the research phase.
Lastly, our role in reviewing SIP revisions is to ensure that they meet the applicable requirements of federal law, not state law, and thus, the issue of whether state law, in this case, CH&SC section 40404.5, mandates a solar conversion plan within the South Coast and whether the 2012 AQMP complies with the provisions of CH&SC section 40404.5 is not relevant for the purposes of our review of the 2012 AQMP under CAA section 110(k).
Similarly, the term “Best Available Retrofit Control Technology” is a term established under state law, and thus is also not relevant to our action on the 2012 AQMP.
III. Final Action
Under section 110(k) of the CAA, and for the reasons discussed above and in our May 23, 2014 proposal (see 79 FR 29712), the EPA is approving certain ozone-related portions of the 2012 South Coast AQMP as a revision to the California SIP. The relevant portions of the 2012 AQMP that are being approved include the updated control strategy for the 1997 8-hour ozone standard and the demonstration of attainment of the 1-hour ozone standard in the South Coast by December 31, 2022. In so doing, we are approving the following commitments and measures upon which the 1-hour ozone attainment demonstration relies as well as the State's reliance on the approved control strategy for the 1997 8-hour ozone standard:
- SCAQMD's commitments to develop, adopt, submit and implement the measures as summarized in table 5 of the proposed rule, subject to findings of infeasibility and measure substitution, and a commitment to meet aggregate emissions reductions targets of 6 tpd of VOC and 11 tpd of NOX by January 1, 2022;
- The new technology provisions (summarized in table 6 of the proposed rule) through which the 2012 AQMP expects to achieve emissions reductions of 17 tpd of VOC and 150 tpd of NOX in the South Coast by January 1, 2022; and
- CARB's commitment to submit contingency measures by January 1, 2019 as necessary to ensure that the emissions reductions from new technology measures are achieved.
In approving this SIP revision, EPA finds that an attainment date of Start Printed Page 52538December 31, 2022 is appropriate in light of the severity of the 1-hour ozone problem in the South Coast and given the extent to which emissions sources in the South Coast have already been controlled and the difficulty of developing regulations and controlling additional emissions. EPA also finds that the South Coast 1-hour ozone attainment demonstration is based on reasonable estimates and forecasts of ozone precursor emissions and appropriate photochemical modeling techniques and assumptions and an acceptable control strategy.
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, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves a state plan 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 Order 12866 (58 FR 51735, October 4, 1993);
- 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 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, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
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. 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 3, 2014. 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)).
Start List of Subjects
End List of Subjects
- Environmental protection
- Air pollution control
- Incorporation by reference
- Intergovernmental relations
- Nitrogen Oxides
- Reporting and recordkeeping requirements
- Volatile organic compounds
Dated: August 13, 2014.
Regional Administrator, EPA Region IX.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
Start Amendment Part
1. The authority citation for Part 52 continues to read as follows: End Amendment Part
Start Amendment Part
2. Section 52.220 is amended by adding paragraph (c)(439) to read as follows: End Amendment Part
End Supplemental Information
Identification of plan.
* * * * *
(c) * * *
(439) The following plan was submitted on February 13, 2013, by the Governor's designee.
(ii) Additional material.
(A) California Air Resources Board.
(1) Resolution 13-3, dated January 25, 2013, adopting the Final 2012 Air Quality Management Plan (December 2012) prepared by the South Coast Air Quality Management District.
(2) Letter from Richard W. Corey, Executive Officer, California Air Resources Board, dated May 2, 2014.
(B) South Coast Air Quality Management District.
(1) Governing Board Resolution No. 12-19, dated December 7, 2012, adopting the Final 2012 Air Quality Management Plan.
(2) The following portions of the Final 2012 Air Quality Management Plan (December 2012): Ozone-related portions of chapter 4 (“Control Strategy and Implementation”); Appendix IV-A (“District's Stationary Source Control Measures”); Appendix IV-B (“Proposed Section 182(e)(5) Implementation Measures”); Appendix IV-C (“Regional Transportation Strategy and Control Measures”); and Appendix VII (“1-Hour Ozone Attainment Demonstration”).
(3) Letter from Barry R. Wallerstein, D.Env, Executive Officer, South Coast Air Quality Management District, May 1, 2014.
[FR Doc. 2014-20790 Filed 9-2-14; 8:45 am]
BILLING CODE 6560-50-P