Interim Final Determination To Stay or Defer Sanctions; California; San Joaquin Valley Unified Air Pollution Control District

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R09-OAR-2024-0338; FRL-12118-03-R9]</DEPDOC> <SUBJECT>Interim Final Determination To Stay or Defer Sanctions; California; San Joaquin Valley Unified Air Pollution Control District</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Interim final determination. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Environmental Protection Agency (EPA) is making an interim final determination that the State of California has submitted revisions to the California State Implementation Plan (SIP) that correct the deficiency prompting the partial disapproval of previous SIP submissions addressing the requirements under the Clean Air Act (CAA or “Act”) for contingency measures for the 2008 ozone national ambient air quality standards (NAAQS or “standards”) for the San Joaquin Valley ozone nonattainment area. This determination is based upon a proposed conditional approval, published elsewhere in this issue of the <E T="04">Federal Register</E> , of SIP revisions addressing the contingency measure requirements for the 2008 ozone NAAQS for the San Joaquin Valley. The effect of this interim final determination is to stay the application of the offset sanction and to defer the application of the highway sanction that were triggered by the EPA's previous partial disapproval of SIP revisions submitted to address the contingency measure requirements for the 2008 ozone NAAQS for this area. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This interim final determination is effective on October 25, 2024. However, comments will be accepted on or before November 25, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit your comments, identified by Docket ID No. EPA-R09-OAR-2024-0338 at <E T="03">https://www.regulations.gov.</E> For comments submitted at <E T="03">Regulations.gov</E> , follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from <E T="03">Regulations.gov</E> . The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( <E T="03">i.e.,</E> on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit <E T="03">https://www.epa.gov/dockets/commenting-epa-dockets.</E> If you need assistance in a language other than English or if you are a person with a disability who needs a reasonable accommodation at no cost to you, please contact the person identified in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> section. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Andrew Ledezma, Air Planning Office (ARD-2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105, (415) 972-3985, or by email at <E T="03">Ledezma.Andrew@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Throughout this document, “we,” “us,” and “our” refer to the EPA. <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Background</FP> <FP SOURCE="FP-2">II. EPA Evaluation and Action</FP> <FP SOURCE="FP-2">III. Statutory and Executive Order Reviews</FP> </EXTRACT> <HD SOURCE="HD1">I. Background</HD> In March 2019, the EPA took final action to approve, or conditionally approve, certain state implementation plan (SIP) revisions submitted by the State of California to meet CAA requirements for the 2008 ozone NAAQS in the San Joaquin Valley, California, ozone nonattainment area. <SU>1</SU> <FTREF/> Specifically, the EPA approved the base year emissions inventory, reasonable further progress (RFP) demonstration, and motor vehicle emissions budgets, and conditionally approved the contingency measure element for the 2008 ozone NAAQS. We justified a conditional approval of the contingency measure element, even though the contingency measure itself would only achieve a small fraction of the recommended amount for contingency measures, on the basis of a surplus in emissions reductions that could be anticipated from already-implemented measures in the milestone years and year after the attainment year and a commitment by the State to achieve additional emissions reductions by the attainment year in the San Joaquin Valley that would reduce the chances that additional contingency measures would be needed for failure to attain the 2008 ozone NAAQS by the applicable attainment date. <SU>2</SU> <FTREF/> <FTNT> <SU>1</SU>  84 FR 11198 (March 25, 2019). </FTNT> <FTNT> <SU>2</SU>  83 FR 61346, at 61357 (November 29, 2018) (proposed conditional approval), finalized at 84 FR 11198, at 11205-11206. </FTNT> Our final conditional approval of the contingency measure element was the subject of a legal challenge and, in a 2021 Ninth Circuit decision in the <E T="03">Association of Irritated Residents</E> v. <E T="03">EPA</E> case, the Court remanded the conditional approval action back to the Agency. <SU>3</SU> <FTREF/> In so doing, the Court found that, by taking into account the emissions reductions from already-implemented measures to find that the contingency measure would suffice to meet the applicable requirement, the EPA was circumventing the court's 2016 holding in <E T="03">Bahr</E> v. <E T="03">EPA.</E> <SU>4</SU> <FTREF/> The Court also held that the EPA could not avoid the need for robust contingency measures by assuming that they will not be needed. <SU>5</SU> <FTREF/> <FTNT> <SU>3</SU>   <E T="03">Association of Irritated Residents</E> v. <E T="03">EPA,</E> 10 F.4th 937 (9th Cir. 2021). </FTNT> <FTNT> <SU>4</SU>  Id., at 946. The reference to “ <E T="03">Bahr</E> v. <E T="03">EPA</E> ” is to <E T="03">Bahr</E> v. <E T="03">EPA,</E> 836 F.3d 1218, at 1235-1237 (9th Cir. 2016). Under the <E T="03">Bahr</E> holding, contingency measures under CAA sections 172(c)(9) and 182(c)(9) must be designed so as to be implemented prospectively; already-implemented control measures may not serve as contingency measures even if they provide emissions reductions beyond those needed for any other CAA purpose. </FTNT> <FTNT> <SU>5</SU>  Id. at 947. </FTNT> In October 2022, in light of the <E T="03">Association of Irritated Residents</E> v. <E T="03">EPA</E> decision, the EPA took final action to withdraw our previous conditional approval and to partially disapprove the contingency measure element submitted to address the contingency measure requirements for the San Joaquin Valley for the 2008 ozone NAAQS. <SU>6</SU> <FTREF/> We did so because we found that, if we did not take into account surplus emissions reductions or the State's commitment to achieve additional emissions reductions in San Joaquin Valley by the attainment year, then the one contingency measure that was included in the contingency measure element would have had to shoulder the entire burden of achieving the recommended amount for contingency measures (if triggered) but would have only achieved a small fraction of the recommended amount. <SU>7</SU> <FTREF/> The effective date of our final partial disapproval action was November 2, 2022. <FTNT> <SU>6</SU>  87 FR 59688 (October 3, 2022). </FTNT> <FTNT> <SU>7</SU>  Id, at 59690. </FTNT> Pursuant to section 179 of the CAA and 40 CFR 52.31, the EPA's partial disapproval of the contingency measure element triggered sanctions clocks. More specifically, and as explained in our final partial disapproval action, under 40 CFR 52.31, the offset sanction in CAA section 179(b)(2) would be imposed 18 months after November 2, 2022, and the highway funding sanction in CAA section 179(b)(1) would be imposed six months after the offset sanction was imposed, unless the EPA determines that a subsequent SIP submission corrects the identified deficiencies before the applicable deadlines. <SU>8</SU> <FTREF/> <FTNT> <SU>8</SU>  Id. </FTNT> In April 2024, in response to our final partial disapproval, the State of California adopted and submitted the “Ozone Contingency Measure State Implementation Plan Revision for the 2008 and 2015 8-Hour Ozone Standards” (April 25, 2024) (“2024 SJV Ozone Contingency Measure Plan”) to the EPA as a revision to the California SIP. <SU>9</SU> <FTREF/> In the Proposed Rules section of this issue of the <E T="04">Federal Register</E> , we have proposed to conditionally approve the 2024 SJV Ozone Contingency Measure Plan for the 2008 ozone NAAQS for the San Joaquin Valley ozone nonattainment area. Based on the proposed conditional approval action in this issue of the <E T="04">Federal Register</E> with respect to the contingency measure element, we are taking this final rulemaking action, effective upon publication, to stay application of the offset sanction and defer application of the highway sanction that were triggered by the EPA's October 3, 2022 partial disapproval of the contingency measure element for the San Joaquin Valley 2008 ozone nonattainment area. <SU>10</SU> <FTREF/> We are doing so because we find that it is more likely than not that the 2024 SJV Ozone Contingency Measure Plan corrects the deficiencies that triggered suc ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 21k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━