2021-18344. Severe Area Submission Requirements for the 2008 Ozone NAAQS; California; Eastern Kern Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

Under the Clean Air Act, the Environmental Protection Agency (EPA) is establishing a schedule for the the California Air Resources Board (CARB) to submit revisions to the state implementation plan (SIP) addressing “Severe” area requirements for the 2008 8-hour ozone national ambient air quality standards (NAAQS) for the Eastern Kern nonattainment area (“Eastern Kern”). CARB will be required to submit SIP revisions addressing Severe area requirements for Eastern Kern, including revisions to new source review (NSR) rules, no later than January 7, 2023. Submittal of any necessary revisions to the title V rules that apply in Eastern Kern are due no later than January 7, 2022. Lastly, the EPA is establishing a deadline for implementation of new reasonably available control technology (RACT) rules as expeditiously as practicable but no later than July 7, 2024.

DATES:

This rule is effective September 27, 2021.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2021-0341. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through https://www.regulations.gov,, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information. 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:

Ben Leers, Air Planning Office (AIR-2), EPA Region IX, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

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

Table of Contents

I. Background

II. Public Comment Period

III. Final Action

IV. Statutory and Executive Order Reviews

I. Background

On June 7, 2021, the EPA issued a final rulemaking granting a request by CARB to reclassify Eastern Kern from “Serious” to Severe for the 2008 ozone NAAQS under section 181(b)(3) of the Clean Air Act (CAA).^[1] Our reclassification of Eastern Kern from Serious to Severe is in effect as of July 7, 2021. In a separate document published on June 7, 2021, the EPA proposed a schedule for CARB to submit revisions to the California SIP addressing Severe area requirements for the 2008 ozone NAAQS and to submit revisions to the title V operating permit rules for Eastern Kern.^[2]

Our June 7, 2021 proposed rule includes background information concerning the EPA's promulgation of the 2008 ozone NAAQS and history of the designation and classification of Eastern Kern for the 2008 ozone NAAQS. Our proposed rule also describes the Severe area SIP requirements that apply to Eastern Kern as a result of the reclassification and proposes a schedule for CARB to submit Severe area SIP requirements and title V rule revisions.

More specifically, in our proposed rule, we proposed to establish a deadline for CARB to submit SIP revisions addressing Severe area requirements for Eastern Kern, including revisions to NSR rules, no later than 18 months from the effective date of the EPA's final rule reclassifying Eastern Kern to Severe for the 2008 ozone NAAQS. We also proposed to establish a deadline of no later than six months from the effective date of the reclassification for CARB to submit any corresponding revisions to title V rules for Eastern Kern. Lastly, we proposed to establish a deadline for implementation of new RACT rules in Eastern Kern as expeditiously as practicable but no later than 18 months from the date when the Severe area RACT SIP is due. The effective date of the EPA's final rule reclassifying Eastern Kern to Severe for the 2008 ozone NAAQS is July 7, 2021. In this final rule, we are taking final action to establish the various deadlines based on the July 7, 2021 effective date for reclassification.

II. Public Comment Period

The public comment period on the proposed rule opened on June 7, 2021, the date of its publication in the Federal Register, and closed on July 7, 2021. During this period, the EPA did not receive any comments on our proposed action.

III. Final Action

For the reasons described in our June 7, 2021 proposed rule, the EPA is invoking its CAA section 301(a) authority to establish a deadline of no later than January 7, 2023 (i.e., 18 months from the effective date of our final rule reclassifying Eastern Kern as Severe) for CARB to submit SIP revisions addressing all Severe area SIP elements for the Eastern Kern ozone nonattainment area. We are also establishing a deadline of January 7, 2022 (i.e., six months from the effective date of reclassification to Severe) for CARB to submit any necessary revisions to title V rules for Eastern Kern. Lastly, the EPA is establishing a deadline for implementation of Severe area RACT controls in Eastern Kern as expeditiously as practicable but no later than July 7, 2024 (i.e., 18 months from the date when the Severe area RACT SIP is due, or 36 months from the effective date of reclassification to Severe).

IV. Statutory and Executive Order Reviews

Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Because the statutory requirements are clearly defined with respect to the differently classified areas, and because those requirements are automatically triggered by classification, the timing of the submittal of the Severe area requirements does not impose a materially adverse impact under Executive Order 12866. For these reasons, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

In addition, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), because the action addresses only the timing of submittals required by the Clean Air Act. For the same reason, this action does not have regulatory requirements that might significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175 (65 FR 67249, November 9, 2000) requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” There are no Indian reservation lands or other areas where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction within the Eastern Kern ozone nonattainment area, and thus, this action 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.

This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action does not alter the relationship, or the distribution of power and responsibilities established in the Clean Air Act.

This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997). The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action does not concern an environmental health risk or safety risk.

As this action establishes a deadline for the submittal of CAA required plans and information, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. This action addresses the timing for the submittal of Severe area ozone planning requirements, and we find that it does not have disproportionately high and adverse human health or environmental health effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898.

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. The 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 25, 2021. 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)).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Volatile organic compounds

Dated: August 19, 2021.

Deborah Jordan,

Acting Regional Administrator, Region IX.

Footnotes

1.  86 FR 30204.

2.  86 FR 30234.