Daily Rules, Proposed Rules, and Notices of the Federal Government
Throughout this document, “we,” “us” and “our” refer to EPA.
The Clean Air Act (CAA or Act) requires EPA to establish national ambient air quality standards (NAAQS or “standards”) for certain widespread pollutants that cause or contribute to air pollution that is reasonably anticipated to endanger public health or welfare (see sections 108 and 109 of the CAA).
In 1979, under section 109 of the CAA, EPA established a primary health-based NAAQS for ozone
The control requirements and date by which attainment of the 1-hour ozone standard was to be achieved varied with an area's classification. Marginal areas were subject to the fewest mandated control requirements and had the earliest attainment date, November 15, 1993, while Extreme areas were subject to the most stringent planning requirements and were provided the most time to attain the standard, until November 15, 2010. The various ozone planning requirements to which Extreme ozone nonattainment areas are subject are set forth in section 172(c) and section 182(a)-(e) of the CAA.
In 1997, EPA replaced the 1-hour ozone standard with an 8-hour ozone standard of 0.08 ppm. See 62 FR 38856 (July 18, 1997).
The Phase 2 rule, which was issued on November 29, 2005 (70 FR 71612), addresses the SIP obligations for the 1997 8-hour ozone standard. Under the Phase 2 rule, an area that is designated as nonattainment for the 1997 8-hour ozone standard, and classified under subpart 2 (of part D of title I of the CAA), is subject to the requirements of subpart 2 that apply for that classification. See 40 CFR 51.902(a).
As noted above, the CAA, as amended in 1990, required EPA to designate as nonattainment any area that was violating the 1-hour ozone standard. The CAA also required EPA to classify nonattainment areas as Marginal, Moderate, Serious, Severe, or Extreme depending upon the design value of the area. On November 6, 1991, EPA designated the Los Angeles-South Coast Air Basin Area (“South Coast”)
The California Air Resources Board (CARB) has submitted a number of SIP revisions over the years for the South Coast to address 1-hour ozone SIP planning requirements. Specifically, in 1994, CARB submitted a 1-hour ozone SIP that, among other things, included for the South Coast an attainment demonstration, a “rate of progress” (ROP) demonstration, and transportation control measures (TCMs). In 1997, EPA approved the 1994 South Coast Ozone SIP as it applied to the South Coast for the 1-hour standard. See 62 FR 1150 (January 8, 1997).
In 1997 and 1999, CARB submitted revisions to the 1994 South Coast 1-Hour Ozone SIP, including a revised ROP demonstration and a revised attainment demonstration (“1997/1999 South Coast 1-Hour Ozone SIP”), which EPA approved in 2000. See 65 FR 18903 (April 10, 2000). In 2004, CARB submitted revisions to the 1997/1999 South Coast 1-Hour Ozone SIP (“2003 South Coast 1-Hour Ozone SIP”) intended to update and replace the State's control measure commitments in the 1997/1999 South Coast 1-Hour Ozone SIP. See 73 FR 63408, 63410 (October 24, 2008). The revised attainment demonstration submitted as part of the 2003 South Coast 1-Hour Ozone SIP included updated emissions inventories showing higher mobile source emissions than the State had previously projected and updated modeling that indicated a lower “carrying capacity” in the South Coast air basin, as well as additional commitments by CARB to achieve specified amounts of VOC and NO
In 2009, EPA approved certain elements of the 2003 South Coast 1-Hour Ozone SIP
With respect to the 1997 8-hour ozone standard, EPA initially designated the South Coast as nonattainment and classified it as “Severe-17,” but later approved a request by California to reclassify the area to “Extreme.” See 69 FR 23858 (April 30, 2004) and 75 FR 24409 (May 5, 2010). In 2007, CARB
On May 8, 2009, several environmental and community groups filed a petition for review in the U.S. Court of Appeals for the Ninth Circuit challenging EPA's March 2009 partial approval and partial disapproval of the 2003 South Coast 1-Hour Ozone SIP.
On February 2, 2011, the Ninth Circuit ruled in favor of the petitioners on all three issues and remanded EPA's 2009 final action on the 2003 South Coast 1-Hour Ozone SIP.
As to the 1994 Pesticide Element, the court held that EPA had an affirmative duty to review the substance of the element anew in light of subsequent litigation over the Pesticide Element that revealed approvability issues not accounted for in EPA's previous review and approval of the element.
Finally, the court disagreed with EPA's interpretation of the VMT emissions offset requirement and found that the plain language of the Act requires SIPs subject to CAA section 182(d)(1)(A) to include additional transportation control strategies and measures whenever vehicle emissions are projected to be higher, due to growth in VMT, than they would have been had VMT not increased, even when aggregate vehicle emissions are actually decreasing.
On May 5, 2011, EPA filed a petition for panel rehearing requesting the court to reconsider its decision on the issue of whether CAA section 179 sanctions are triggered by disapproval of a revision to an already-approved SIP element, and on the court's interpretation of CAA section 182(d)(1)(A).
On December 30, 2011, EPA determined that the South Coast extreme ozone nonattainment area had failed to attain the 1-hour ozone standard by its applicable attainment date of November 15, 2010. 76 FR 82133; (December 30, 2011). This determination was based on quality-assured and certified ambient air quality monitoring data from 2008-2010, the three-year period preceding the applicable attainment date.
The Ninth Circuit concluded in
Section 110(k)(5) of the CAA states, in relevant part, as follows:
Our proposed SIP call is based on the evidence submitted by California in the form of the 2003 South Coast 1-Hour Ozone Plan that the approved 1997/1999 South Coast 1-Hour Ozone SIP was substantially inadequate to provide for attainment of the 1-hour ozone standard by the applicable attainment date of November 15, 2010. Two major developments that occurred after EPA approval of the 1997/1999 South Coast 1-Hour Ozone SIP led the State of California to reconsider the adequacy of the control strategy for attaining the 1-hour ozone standard in the South Coast by the applicable attainment date (2010).
First, CARB released a significant update to California's mobile source emissions model (EMFAC2002) that resulted in significantly higher motor vehicle emissions estimates than previously calculated, and second, South Coast Air Quality Management District (SCAQMD) updated its ozone modeling and concluded that the carrying capacity of the South Coast Air Basin was significantly lower than previously calculated. See, generally, appendix III (“Base and Future Year Emission Inventories”) and appendix V (“Modeling and Attainment Demonstrations”) of the SCAQMD's 2003 South Coast Air Quality Management Plan (AQMP), August 2003.
Together, these technical considerations prompted CARB and SCAQMD to conclude that more control measures would be necessary than contained in the 1997/1999 South Coast 1-Hour Ozone SIP to attain the 1-hour ozone standard by 2010. In reference to the 1997/1999 South Coast 1-Hour Ozone SIP, the 2003 South Coast 1-Hour Ozone SIP states: “The Plan is consistent with and builds upon the approaches taken in the 1997 AQMP and the 1999 Amendments to the Ozone SIP for the South Coast Air Basin for the attainment of the federal ozone air quality standard. However, this revision points to the urgent need for additional emission reductions (beyond those incorporated in the 1997/99 Plan) to offset increased emission estimates from mobile sources and meet all federal criteria pollutant standards within the time frames allowed under the federal Clean Air Act.” See SCAQMD, 2003 Air Quality Management Plan,” August 2003, pages ES-1 and ES-2.
In 2003, EPA approved the use of EMFAC2002 for SIP development purposes, and in 2004, EPA found the 1-hour ozone motor vehicle emissions budgets (MVEBs) in the 2003 South Coast 1-Hour Ozone SIP to be adequate for transportation conformity purposes. See 68 FR 15720; (April 1, 2003) and 69 FR 15325; (March 25, 2004). Adequacy findings for transportation conformity purposes are generally based on cursory reviews of submitted plans, but EPA's approval of EMFAC2002 and finding of adequacy of the MVEBs in 2003 South Coast 1-Hour Ozone SIP show general agreement by EPA with the technical foundation for the 2003 South Coast 1-Hour Ozone SIP, which highlights the inadequacy of the attainment demonstration in the 1997/1999 South Coast 1-Hour Ozone Plan.
In addition, in 2011, EPA determined, based on quality-assured and certified ambient air quality monitoring data, that the South Coast area has failed to attain the 1-hour ozone NAAQS by the applicable attainment date of November 15, 2010. 76 FR 82133; (December 30, 2011). EPA's 2011 determination of failure to attain the standard by the applicable attainment date provides further support for our proposed action because it establishes, as a factual matter, that the 1997/1999 South Coast 1-Hour Ozone SIP failed to achieve its stated purpose of bringing the South Coast area into attainment of the 1-hour ozone NAAQS by the applicable attainment date.
In light of the evidence discussed above, we propose to find that the approved 1997/1999 South Coast 1-Hour Ozone SIP is substantially inadequate to provide for attainment of the 1-hour ozone standard and is therefore substantially inadequate to comply with EPA's “anti-backsliding” requirement at 40 CFR 51.905(a)(1)(i) to adopt and implement such a plan for the South Coast.
EPA is proposing to require the State of California to submit, within 12 months, a SIP revision meeting the requirements of CAA section 182(c)(2)(A)
The SIP call provisions of CAA section 110(k)(5) direct EPA, “to the extent [EPA] deems appropriate,” to “subject the State to the requirements of this chapter to which the State was subject when it developed and submitted the plan for which such finding was made, except that the Administrator may adjust any dates applicable under such requirements as appropriate (except that the Administrator may not adjust any attainment date prescribed under part D of this subchapter, unless such date has elapsed).” By relying on section 172(a)(2) as the basis for the applicable attainment date for the South Coast, we are subjecting the State to the same CAA requirement that applied at the time that the State developed and submitted the 1997/1999 South Coast 1-Hour Ozone SIP, because, at that time, the area was an extreme ozone area with an attainment date of 2010 and subject to the potential for a finding of failure to attain by the applicable attainment date under CAA section 179(c) that would trigger a requirement under CAA section 179(d) to submit a new plan meeting the requirements of section 172.
The 12-month deadline for submittal of a revised attainment demonstration plan is appropriate in light of the time that has elapsed since the
If EPA subsequently finds that California has failed to submit a complete SIP revision that responds to a final SIP call, CAA section 179(a) provides for EPA to issue a finding of State failure. Such a finding starts mandatory 18-month and 24-month sanctions clocks and a 24-month clock for promulgation of a FIP by EPA. The two sanctions that apply under CAA section 179(b) are the 2-to-1 emission offset requirement for all new and modified major sources subject to the nonattainment new source review program and restrictions on highway
Thus, if EPA issues a final SIP call and California fails to submit the required SIP revision, or submits a revision that EPA determines is incomplete or that EPA disapproves, EPA proposes that the 2-to-1 emission offset requirement will apply for all new sources subject to the nonattainment new source review program 18 months following such finding or disapproval unless the State corrects the deficiency before that date. EPA proposes that the highway funding restrictions sanction will also apply 24 months following such finding or disapproval unless the State corrects the deficiency before that date. EPA is also proposing that the provisions in 40 CFR 52.31 regarding staying the sanctions clock and deferring the imposition of sanctions would apply.
In addition, CAA section 110(c) obligates EPA to promulgate a FIP addressing the deficiency that is the basis for a finding of failure to submit or a disapproval within two years after the effective date of such finding or disapproval, unless EPA has approved a revised SIP correcting the deficiency before that date.
EPA is proposing to find, pursuant to section 110(k)(5) of the CAA, that the California SIP is substantially inadequate to comply with the obligation to adopt and implement a plan providing for attainment of the one-hour ozone NAAQS in the South Coast. If EPA finalizes this proposal, California will be required to submit a SIP revision correcting the deficiency within 12 months of the effective date of EPA's final rule.
We will accept comments on this proposal for 30 days following publication of this proposed rule in the
Under the Clean Air Act, a finding of substantial inadequacy and subsequent obligation for a State to revise its SIP arise out of section 110(a) and 110(k)(5). The finding and State obligation do not directly impose any new regulatory requirements. In addition, the State obligation is not legally enforceable by a court of law. EPA would review its intended action on any SIP submittal in response to the finding in light of applicable statutory and Executive Order requirements, in subsequent rulemaking acting on such SIP submittal. For those reasons, this proposed 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
• 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
• 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, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
Environmental protection, Air pollution control, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401 et seq.