2021-10512. Air Plan Approval; California; Los Angeles-South Coast Air Basin

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to approve a revision to the South Coast Air Quality Management District (SCAQMD or “District”) portion of the California State Implementation Plan (SIP). We are also proposing to determine that the submitted SIP revision fulfills the District's and the State's commitment to adopt and submit a specific enforceable contingency measure to address Clean Air Act (CAA) requirements for the 2006 24-hour fine particulate matter (PM_2.5) national ambient air quality standards (NAAQS) and the 2012 annual PM_2.5 NAAQS. We are taking comments on this proposal and plan to follow with a final action.

DATES:

Comments must be received on or before June 21, 2021.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R09-OAR-2021-0296 at https://www.regulations.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. 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 (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/​dockets/​commenting-epa-dockets. If you need assistance in a language other than English or if you are a person with disabilities who needs a reasonable accommodation at no cost to you, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Ginger Vagenas, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: [phone] or by email at [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us,” and “our” refer to the EPA.

Table of Contents

I. The State's Submittal

A. What rule did the State submit?

B. Are there other versions of this rule?

C. What is the purpose of the submitted rule revisions?

II. The EPA's Evaluation and Proposed Action

A. How is the EPA evaluating the rule?

B. Does the rule meet the evaluation criteria?

C. Public Comment and Proposed Action

III. Incorporation by Reference

IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rule did the State submit?

Table 1 lists the rule addressed by this proposal with the date that it was amended by the local air agency and submitted by the California Air Resources Board (CARB, or “State”). Subsequent to the submittal of SCAQMD Rule 445, the District and CARB excluded subdivision (k), “Penalties,” from the SIP submission.^[1]

Table 1—Submitted Rule

Local agency	Rule No.	Rule	Amended	Submitted
SCAQMD	445	Wood-Burning Devices, (except paragraph (k), penalties)	October 27, 2020	October 29, 2020.

On April 29, 2021, the submittal for SCAQMD Rule 445 became complete by operation of law under CAA section 110(k)(1)(B).

B. Are there other versions of this rule?

We approved an earlier version of Rule 445 into the SIP on September 26, 2013.^[2] On June 5, 2020, the SCAQMD adopted revisions to the SIP-approved version of Rule 445 to add provisions addressing the contingency measure requirement in CAA section 172(c)(9) for PM_2.5. CARB submitted Rule 445, as amended June 5, 2020, to the EPA on October 21, 2020.^[3] The District subsequently adopted additional revisions to Rule 445 and CARB submitted the rule, as amended October 27, 2020, to the EPA on October 29, 2020.^[4] The October 27, 2020 version of Rule 445 contains additional ozone-related provisions in paragraph (g) and supersedes Rule 445, as amended June 5, 2020. We are proposing to approve Rule 445, as amended October 27, 2020, except for the ozone-related provision in paragraph (g), which we are not acting on at this time, and the penalty provision in paragraph (k) of the rule, which the District and CARB have excluded from the SIP submission. If we take final action to approve all other portions of Rule 445, as amended October 27, 2020, these portions of the rule will replace the previously approved version of Rule 445 in the SIP.

C. What is the purpose of the submitted rule revisions?

On November 9, 2020, the EPA approved portions of California's SIP submission to address the CAA's Moderate area requirements for the 2012 PM_2.5 NAAQS in the South Coast nonattainment area (“2016 PM_2.5 Plan”) and, as part of this action, conditionally approved the contingency measure element of the 2016 PM_2.5 Plan as meeting the requirements of CAA section 172(c)(9) and 40 CFR 51.1014 for the 2006 PM_2.5 NAAQS and the 2012 PM_2.5 NAAQS.^[5] Our conditional approval was based on commitments from SCAQMD and CARB to develop, adopt, and submit specific revisions to Rule 445 to meet the attainment contingency measure requirement for the 2006 PM_2.5 NAAQS and the reasonable further progress (RFP) contingency measure requirement for the 2012 PM_2.5 NAAQS in the South Coast by the earliest of certain specified dates. The District adopted the identified revisions to Rule 445 on June 5, 2020, and retained them unchanged in the October 27, 2020 version of the rule. CARB's submission of Rule 445, as amended October 27, 2020, for incorporation into the SIP fulfills the State's and District's commitments that had provided the basis for the EPA's conditional approval of the contingency measure element of the 2016 PM_2.5 Plan, thus enabling the EPA to convert the conditional approval into a full approval. Our proposed rulemaking on the 2016 PM_2.5 Plan contains a detailed discussion of our rationale for conditionally approving the contingency measure element of this plan.^[6]

The District's October 27, 2020 revisions to Rule 445 include a new contingency measure provision in paragraph (g) to be implemented upon a failure to meet an RFP requirement for an applicable ozone NAAQS or a failure to attain an applicable ozone NAAQS. We are not acting on paragraph (g) of Rule 445 at this time and will evaluate this provision for compliance with applicable CAA requirements in a subsequent rulemaking.

Finally, as part of our November 9, 2020 final action on the 2016 PM_2.5 Plan, the EPA also reclassified the South Coast to Serious nonattainment for the 2012 annual PM_2.5 NAAQS. This action triggered requirements for the State to submit, among other plan components, provisions to implement best available control measures (BACM), including best available control technology (BACT), to the EPA no later than June 9, 2022.^[7] We are not evaluating Rule 445 for compliance with BACM requirements at this time and will address the BACM requirements that apply to the South Coast area in subsequent rulemakings.

II. The EPA's Evaluation and Proposed Action

A. How is the EPA evaluating the rule?

Rules in the SIP must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and RFP or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).

Additionally, we are evaluating Rule 445 to determine whether it fulfills the commitments made by the District and the State to submit a revised rule meeting the requirements of CAA section 172(c)(9) and the regulatory provisions of 40 CFR 51.1014 for contingency measures. Specifically, the District committed (1) to modify Rule 445 to lower the wood burning curtailment threshold upon any of the four EPA determinations (i.e., “findings of failure”) listed in 40 CFR 51.1014(a), and (2) to submit the revised rule to the EPA within one year of the EPA's final action conditionally approving the contingency measure element of the 2016 PM_2.5 Plan or within 60 days of a determination by the EPA that the South Coast area failed to attain the 2006 PM_2.5 NAAQS by the applicable attainment date, which ever occurred sooner.^[8] Additionally, CARB committed to submit the revised District rule to the EPA as a SIP revision by the earlier of these two dates.^[9]

B. Does the rule meet the evaluation criteria?

Rule 445, as amended October 27, 2020, is enforceable and adds new, lower mandatory wood-burning curtailment provisions in section (f) to be implemented as contingency measures upon a determination by the EPA that any of the four “findings of failure” listed under 40 CFR 51.1014(a) has occurred. These new provisions and related revisions strengthen the SIP and do not interfere with applicable requirements concerning attainment and RFP or other CAA requirements.

In addition, the SIP submittal fulfills the District's and the State's commitment to adopt and submit a specific enforceable contingency measure to address the requirements of CAA section 172(c)(9) and 40 CFR 51.1014 for the 2006 24-hour PM_2.5 NAAQS and the 2012 annual PM_2.5 NAAQS. CARB submitted the revised rule to the EPA on October 29, 2020, within 60 days of the EPA's September 16, 2020 finding that the South Coast area had failed to attain the 2006 PM_2.5 NAAQS by the applicable attainment date.^[10]

C. Public Comment and Proposed Action

As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve all but paragraphs (g) and (k) of Rule 445, as amended October 27, 2020, based on our conclusion that the rule fulfills CAA requirements for enforceability and SIP revisions. The EPA also proposes to convert our conditional approval of the contingency measure element of the 2016 PM_2.5 Plan, as found in 40 CFR 52.248(k), to a full approval. We are not acting on paragraphs (g) and (k) of Rule 445 and are not evaluating the rule for compliance with BACM requirements at this time. We will accept comments from the public on this proposal until June 21, 2021. If we take final action to approve the submitted rule, our final action will incorporate this rule, except for paragraphs (g) and (k), into the federally enforceable SIP.

III. Incorporation by Reference

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference all but paragraphs (g) and (k) of the SCAQMD rule described in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available through https://www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

IV. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Particulate matter
• Reporting and recordkeeping requirements

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

Dated: May 11, 2021.

Deborah Jordan,

Acting Regional Administrator, Region IX.

Footnotes

1.  Letter dated April 9, 2021, from Sarah Rees, Ph.D., Deputy Executive Officer, SCAQMD, to Richard Corey, Executive Officer, CARB and Elizabeth Adams, Air and Radiation Division Director, EPA Region IX, Subject: “Request to Exclude Subdivision Rule 445(k) [Penalties] From the SIP Revision,” and letter dated April 26, 2021, from Michael T. Benjamin, Division Chief, Air Quality Planning and Science Division, CARB, to Elizabeth Adams, Air and Radiation Division Director, EPA Region IX.

2.  78 FR 59249.

3.  Rule 445, as amended June 5, 2020, is included in the docket for this rulemaking.

4.  Rule 445, as amended October 27, 2020, is included in the docket for this rulemaking.

5.  85 FR 71264.

6.  85 FR 40026 (July 2, 2020).

7.  Id. at 71268.

8.  85 FR 71264, 71265 (November 9, 2020). For a detailed discussion of the basis for our conditional approval, see 85 FR 40026, 40049-40050 (July 2, 2020).

9.  85 FR 71264, 71265.

10.  85 FR 57733 (September 16, 2020).