2022-15953. Clean Air Act Grant; Ventura County Air Pollution Control District; Opportunity for Public Hearing

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed action; determination with request for comments and notice of opportunity for public hearing.

SUMMARY:

The EPA is proposing to determine that the reduction in expenditures of recurrent non-Federal funds for the Ventura County Air Pollution Control District (“VCAPCD” or “District”) in support of its continuing air program under section 105 of the Clean Air Act (CAA) for the calendar year 2021 are a result of non-selective reductions in expenditures. This determination, when final, will permit the VCAPCD to receive grant funding for fiscal year (FY) 2022 from the EPA under section 105 of the CAA.

DATES:

Comments and/or requests for a public hearing must be received by the EPA at the address stated below on or before August 25, 2022.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R09-OAR-2022-0360 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 Proprietary Business Information (PBI) or 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.g., 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 PBI/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:

Roberto Gutierrez, EPA Region IX, Grants and Program Integration Office, Air and Radiation Division, 75 Hawthorne Street, San Francisco, CA 94105; phone at [phone] or email address at [e-mail].

SUPPLEMENTARY INFORMATION:

Section 105 of the CAA provides grant funding to air pollution control agencies for the prevention and control of air pollution or implementation of national primary and secondary ambient air quality standards. In accordance with 40 CFR 35.145(a), the Regional Administrator may provide air pollution control agencies up to three-fifths of the approved costs of implementing programs for the prevention and control of air pollution. CAA Section 105 grants require a cost share (also referred to as a match requirement) of 40%. Program activities relevant to the match consist of both recurring and non-recurring (unique, one-time only) expenses. In addition, air pollution control agencies must meet a maintenance of effort (MOE) requirement in accordance with section 105(c)(1) of the CAA, 42 U.S.C. 7405.

The MOE provision requires that an eligible agency spend at least the same dollar level of funds as it did in the previous grant year for the costs of recurring activities. Specifically, section 105(c)(1) of the CAA, 42 U.S.C. 7405(c)(1), provides that, “No agency shall receive any grant under this section during any fiscal year when its expenditures of non-Federal funds for recurrent expenditures for air pollution control programs will be less than its expenditures were for such programs during the preceding fiscal year.” However, pursuant to CAA section 105(c)(2), 42 U.S.C. 7405(c)(2), the EPA may still award a grant to an agency not meeting the requirements of section 42 U.S.C. 7405(c)(1), “. . . if the Administrator, after notice and opportunity for public hearing, determines that a reduction in expenditures is attributable to a non-selective reduction in the expenditures in the programs of all Executive branch agencies of the applicable unit of Government.” These statutory requirements are repeated in the EPA's implementing regulations at 40 CFR 35.140-35.148. The EPA issued a memorandum dated September 30, 2011, entitled “Updated Information for Determining a Non-Selective Reduction” with guidance to recipients on what constitutes a nonselective reduction. In consideration of the legislative history, the guidance clarified that a non-selective reduction does not necessarily mean that each executive branch agency needs to be reduced in equal proportion. However, it must be clear to the EPA, from the weight of evidence, that a recipient's CAA-related air program is not being disproportionately impacted or singled out for a reduction.

A section 105 grant recipient must submit a final federal financial report no later than 90 days from the close of its grant period that documents all of its federal and non-federal expenditures for the completed period. The recipient seeking an adjustment to its MOE for that period must provide the rationale and the documentation necessary to enable the EPA to determine that a nonselective reduction has occurred. In order to expedite that determination, the recipient must provide details of the budget action and the comparative fiscal impacts on all the jurisdiction's executive branch agencies, and the recipient's air program. The recipient needs to identify any executive branch agencies or programs that should be excepted from comparison and explain why. The recipient must provide evidence that the air program is not being singled out for a reduction or being disproportionately reduced. Documentation in key areas is needed including budget data specific to the recipient's air program, and comparative budget data between the recipient's air program, the agency containing the air program, and the other executive branch agencies. The EPA may also request information from the recipient about how impacts on its program operations will affect its ability to meet its CAA obligations and requirements, and documentation that explains the cause of the reduction, such as legislative changes or the issuance of a new executive order.

In FY 2021, the EPA awarded the VCAPCD $1,106,518, which represented approximately 10% of the VCAPCD budget. In FY2022, the EPA intends to award the VCAPCD $1,115,038, which represents approximately 12% of the VCAPCD budget.

VCAPCD's final federal financial report for FY2020 indicated that VCAPCD's MOE level was $6,055,144. VCAPCD's final federal financial report for FY2021 indicates that VCAPCD's expenditure on recurrent activities is $5,620,253. That level of expenditure is not sufficient to meet the MOE requirements for FY2021 under section 105 because it is not equal to or greater than the MOE for the previous fiscal year.

In order for the VCAPCD to be eligible to receive its FY2022 CAA section 105 grant, the EPA must make a determination (after notice and an opportunity for a public hearing) that the reduction in expenditures from 2020 to 2021 is attributable to a non-selective reduction in the expenditures in the programs of the VCAPCD.

The VCAPCD is a single-purpose air pollution control agency. It is the unit of government for CAA section 105(c)(2) purposes.

On February 7, 2022, the VCAPCD submitted a request to the EPA seeking a reduction for the required MOE for FY2021. The District provided supplemental information pertaining to its request on June 1, 2022. The VCAPCD explained that it was unable to meet its MOE requirement due to a decrease in reoccurring services and supplies expenses, particularly rent payments. VCAPCD was renting office space up until mid-2021 when they moved into a building they purchased to serve as their permanent office space. In FY2020 the District paid $626,800 in rent as a recurring cost. In FY2021, the District paid six months of rent, or $259,754, and categorized the cost as nonrecurring. Since moving into the new offices the District no longer pays rent and the decrease in expenditure significantly impacts VCAPCD's MOE from previous years. Additionally, the District experienced significant payroll changes impacting its overall budget. In FY2021 VCAPCD approved a general salary increase for all employees. Other changes included senior level employees retiring, with some positions filled by entry level staff at lower starting salaries, and other positions remaining vacant due to the conditions caused by the COVID-19 pandemic. Lastly, many services and supplies were postponed or reduced due to the COVID-19 pandemic. Travel for conferences, trainings, and seminars were cancelled, held virtually, or postponed.

The EPA proposes to find that the request for a reset of VCAPCD's MOE meets the requirements for a non-selective reduction under CAA section 105. The VCAPCD's reduction in rent as a recurrent expenditure, the inability to fill vacant positions created by retirements, and a significant cut back on expenditures caused by the COVID-19 pandemic contributed to the reduction in expenditures.

The EPA proposes that the MOE for VCAPCD's FY2021 CAA section 105 grant be reduced to $5,520,253 to address the non-selective reduction of recurrent expenditures discussed above.

This notice constitutes a request for public comment and an opportunity for public hearing as required by the CAA. All written substantive comments received by August 25, 2022 on this proposal will be considered. The EPA will conduct a public hearing on this proposal only if a written request for such is received by the EPA by August 25, 2022. If no written request for a hearing is received or if the EPA determines that the issues raised are insubstantial, the EPA will proceed to the final action to award the fiscal year 2022 grant to VCAPCD.

Dated: July 20, 2022.

Elizabeth Adams,

Director, Air and Radiation Division, Region IX.