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Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Rules and Regulations year 2020 emissions inventory.
However, year 2020 is both an RFP
milestone year and the attainment year for the Eastern Kern Serious ozone nonattainment area. Therefore, the projected 2020 emissions inventory is the basis for both the RFP
demonstration for that milestone year and for the attainment demonstration.
As explained in Response to Comment 1, the RFP demonstration and attainment demonstration requirements are independent requirements under the SRR and, thus, can be approved separately. In this final action, we are approving the MVEBs only for RFP
purposes and not for attainment purposes.
Second, we note that CAA section 176c4B obligates the EPA to promulgate, and periodically update, criteria and procedures for demonstrating and assuring conformity in the case of transportation plans, programs, and projects, and we have done so at 40 CFR part 93, subpart A
Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. or the Federal Transit Laws herein, transportation conformity rule.
Our transportation conformity rule defines motor vehicle emissions budget as that portion of the total allowable emissions defined in the submitted or approved control strategy implementation plan revision or maintenance plan for a certain date for the purpose of meeting reasonable further progress milestones or demonstrating attainment or maintenance of the NAAQS. . . . 61
Further, among the criteria we must use when evaluating a MVEB for adequacy or approval is the criterion at 40 CFR
93.118e4iv which requires MVEBs, when considered together with all other emissions sources, to be consistent with applicable requirements for reasonable further progress, attainment, or maintenance whichever is relevant to the given implementation plan submission.62
Thus, under our transportation conformity rule, the EPA can approve MVEBs if we find them consistent, when considered together with all other emissions sources, with the applicable requirements for RFP or attainment; it is not required that the MVEBs be consistent with RFP and attainment but only that they are consistent with the requirement that is relevant for purposes of the SIP. In this instance, 61 40
62 40

CFR 93.101 emphasis added.
CFR 93.118e4iv emphases added.

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while the MVEBs for year 2020 are numerically the same for both RFP and attainment, the relevant requirements are those for RFP, not attainment, and we are approving the MVEBs as consistent with those requirements, not the attainment requirements, consistent with the transportation conformity rule.63 This interpretation has been upheld by the Ninth Circuit in Natural Resources Defense Council v. EPA, 638
F.3d 1183 9th Cir. 2011. In Natural Resources Defense Council, the petitioners similarly argued that the Clean Air Act and the EPAs implementing regulations require the EPA to consider attainment data when determining the adequacy of budgets for milestone years,64 but the Ninth Circuit agreed with the EPA that the EPAs transportation conformity rule provides otherwise. More specifically, the court agreed with the EPA that, for a milestone year, a budget need only demonstrate reasonable further progress toward the ultimate goal of attainment.65
In light of our responses to the comments and for the reasons given in the proposed rule, we are taking final action to approve the RFP
demonstration and the related MVEBs and are taking final action to find the MVEBs adequate for transportation conformity purposes.

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Plan as meeting the requirements of CAA sections 172c3 and 182a1
and 40 CFR 51.1115 for the 2008 ozone NAAQS;
Emissions statement element in the Eastern Kern 2017 Ozone Plan as meeting the requirements of CAA
section 182a3B and 40 CFR 51.1102
for the 2008 ozone NAAQS;
ROP demonstration element in the Eastern Kern 2017 Ozone Plan as meeting the requirements of CAA
182b1 and 40 CFR 51.1110a2 for the 2008 ozone NAAQS;
RFP demonstration element in the 2018 SIP Update as meeting the requirements of CAA sections 172c2
and 182c2B, and 40 CFR
51.1110a2ii for the 2008 ozone NAAQS;
Motor vehicle emissions budgets in the 2020 Conformity Budget Update for the 2020 RFP milestone year, as shown below, because they are consistent with the RFP demonstration for the 2008
ozone NAAQS finalized for approval herein and meet the other criteria in 40
CFR 93.118e;

TRANSPORTATION CONFORMITY BUDGETS FOR THE 2008 OZONE NAAQS
IN EASTERN KERN
Summer planning inventory, tpd Budget year
VOC

NOX

2020

1.3

3.6

III. Final Action For the reasons discussed in detail in the proposed rule and summarized herein, under CAA section 110k3, the EPA is taking final action to approve as a revision to the California SIP the following portions of the Eastern Kern 2017 Ozone Plan submitted by CARB on October 25, 2017, the 2018 SIP Update submitted on December 5, 2018, and the 2020 Conformity Budget Update submitted on August 31, 2020, that together comprise the 2017 Eastern Kern Ozone SIP: 66
Base year emissions inventory element in the Eastern Kern 2017 Ozone
We are also taking final action to find that:
The enhanced monitoring requirements of CAA section 182c1
and 40 CFR 51.1102 are being met in Eastern Kern for the 2008 ozone NAAQS; 67 and The submitted 2020 budgets included in the 2020 Conformity Budget Update are adequate for transportation conformity purposes.68
Lastly, we are approving conditionally, under CAA section 110k4, the contingency measure
63 The commenter claims that the EPAs adequacy determination is irrelevant for purposes of whether the EPA can approve the MVEBs, because the EPA
has stated that its adequacy review should not be used to prejudge EPAs ultimate approval or disapproval of the SIP. The EPA agrees that the adequacy determination is based on a cursory review of the SIP submittal when it is made prior to action on the SIP submittal itself. However, todays adequacy determination is based on the EPAs complete review, and approval, of the RFP
demonstration in the 2017 Eastern Kern Ozone SIP.
64 Natural Resources Defense Council v. EPA, 638
F.3d 1183, 1191 9th Cir. 2011.
65 Id.
66 As noted previously, we are deferring action on the attainment demonstration and reasonably available control measures demonstration elements of the 2017 Eastern Kern Ozone SIP at this time.

67 Regarding the Serious nonattainment area requirements for new source review NSR and for implementation of reasonably available control technology RACT for the 2008 ozone NAAQS in Eastern Kern, we will be taking action as necessary on district rules addressing the NSR and RACT
requirements in separate rulemakings and will evaluate compliance with the applicable Serious area nonattainment requirements at that time.
68 Pursuant to 40 CFR 93.118f2iii, the EPAs adequacy determination is effective upon publication of this final rule in the Federal Register. Upon the effective date of the adequacy determination, the 2020 budgets from the in the 2020 Conformity Budget Update will replace the budgets that were previously found adequate for use in transportation conformity determinations i.e., the 2008 budgets from the Eastern Kern County 2008 8-hour Ozone Early Progress Plan.

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