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Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Rules and Regulations
lotter on DSK11XQN23PROD with RULES1

Eastern Kern 9 1-hour ozone nonattainment area see 85 FR 68274
68276 from the proposed rule;
The RFP demonstration in the 2018
SIP Update, as corrected in the 2020
Conformity Budget Update, provides for emissions reductions of VOC or NOX of at least 3 percent per year on average for each three-year period from a 2011
baseline year through the attainment year and thereby meets the requirements of CAA sections 172c2 and 182c2B, and 40 CFR
51.1110a2ii for the 2008 ozone NAAQS see 85 FR 6827468276 from the proposed rule;
The motor vehicle emissions budgets in the 2020 Conformity Budget Update for the RFP milestone/
attainment year of 2020 are consistent with the RFP demonstration, are clearly identified and precisely quantified, and meet all other applicable statutory and regulatory requirements in 40 CFR
93.118e, including the adequacy criteria in 40 CFR 93.118e4 and 5
see 85 FR 6827968280 from the proposed rule; and Through previous EPA approvals of the 1993 Photochemical Assessment Monitoring Station SIP revision and the Annual Network Plan Covering Monitoring Operations in 25 California Air Districts, July 2019 with respect to the Eastern Kern element,10 we find that the enhanced monitoring requirements under CAA section 182c1 and 40
CFR 51.1102 for Eastern Kern have been met with respect to the 2008 ozone NAAQS see 85 FR 6828068282 from the proposed rule.11
In our proposed rule, in light of the Bahr decision,12 we determined that the contingency measures element of the 9 See Eastern Kern 2017 Ozone Plan, 33, and 62
FR 1150, 1172 January 8, 1997; clarified at 84 FR
45422 August 29, 2019.
10 Letter dated November 26, 2019, from Gwen Yoshimura, Manager, Air Quality Analysis Office, EPA Region IX, to Ravi Ramalingam, Chief, Consumer Products and Air Quality Assessment Branch, Air Quality Planning and Science Division, CARB.
11 In the proposed rule, we found that the clean fuels fleet program requirement in CAA sections 182c4 and 246 and 40 CFR 51.1102 had been met in Eastern Kern through previous EPA approval of the 1994 Opt-Out Program SIP revision. Upon reconsideration, we now recognize that the clean fuels fleet program requirement does not apply to Eastern Kern as a reclassified Serious nonattainment area for the 2008 ozone NAAQS
because the 1980 population of Eastern Kern was below 250,000, and as such, the area does not meet the population-based applicability threshold for the requirement under CAA section 246a3.
12 Bahr v. EPA, 836 F.3d 1218 9th Cir. 2016
Bahr rejecting early-implementation of contingency measures and concluding that a contingency measure under CAA section 172c9
must take effect at the time the area fails to make RFP or attain by the applicable attainment date, not before.

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2017 Eastern Kern Ozone SIP could not be fully approved without supplementation by the District and CARB. However, we also determined that the element could be conditionally approved as meeting the requirements of CAA sections 172c9 and 182c9
for the 2008 ozone NAAQS, based upon commitments by the District 13 and CARB 14 to supplement the element through submission, as a SIP revision within one year of our final conditional approval action, of a revised District rule or rules that would add new limits or other requirements if an RFP
milestone is not met or if Eastern Kern fails to attain the 2008 ozone NAAQS by the applicable attainment date. See 85
FR 6827668279 from the proposed rule.
Please see our proposed rule for more information concerning the background for this action and for a more detailed discussion of the rationale for approval or conditional approval of the abovelisted elements of the 2017 Eastern Kern Ozone SIP.
II. Public Comments and EPA
Responses The public comment period on the proposed rule opened on October 28, 2020, the date of its publication in the Federal Register, and closed on November 27, 2020. During this period, the EPA received one comment letter submitted by Air Law for All on behalf of the Center for Biological Diversity referred to herein as CBD or commenter. We address CBDs comments in the following paragraphs of this final rule.
Comment 1: Citing certain statutory provisions and selected excerpts from the EPAs implementation rules for the 1997 and 2008 ozone NAAQS, CBD
asserts that, for Serious areas, the RFP
demonstration must meet both the general RFP requirements in section 172c2 that are tied to attainment of the ozone standards and the specific RFP requirements in section 182c2B
for reductions in emissions of VOCs from baseline emissions. In short, CBD
contends that the RFP targets cannot be severed from the attainment demonstration and control strategy and independently approved, and because the EPA has not proposed to approve an attainment demonstration and control strategy for the Eastern Kern nonattainment area, there is no basis to conclude that the RFP demonstration in 13 Letter dated September 1, 2020, from Glen E.
Stephens, Air Pollution Control Officer, EKAPCD, to Richard Corey, Executive Officer, CARB.
14 Letter dated September 18, 2020, from Richard W. Corey, Executive Officer, CARB, to John Busterud, Regional Administrator, EPA Region IX.

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the 2017 Eastern Kern Ozone SIP meets the general RFP requirements in section 172c2.
Response to Comment 1: As CBD
notes, Serious ozone nonattainment areas are subject to both the general requirements for nonattainment plans in subpart 1, and the specific requirements for ozone areas in subpart 2, including the requirements related to RFP and attainment. This is consistent with the structure of the CAA as modified under the 1990 amendments, which introduced additional subparts to part D
of title I of the CAA to address requirements for specific NAAQS
pollutants, including ozone subpart 2, carbon monoxide CO subpart 3, particulate matter subpart 4, and sulfur oxides, nitrogen dioxide, and lead subpart 5.
These subparts apply tailored requirements for these pollutants, including those based on an areas designation and classification, in addition to and often in place of the generally applicable provisions retained in subpart 1. While CAA section 172c2 of subpart 1 states only that nonattainment plans shall require reasonable further progress, CAA
sections 182b1 and 182c2B of subpart 2 provide specific percent reduction targets for ozone nonattainment areas to meet the RFP
requirement. Put another way, subpart 2
further defines RFP for ozone nonattainment areas by specifying the incremental amount of emissions reduction required by set dates for those areas.15 For Moderate ozone nonattainment areas, CAA section 182b1 defines RFP by setting a specific 15% VOC reduction requirement over the first six years of the plan. For Serious and above ozone nonattainment areas, CAA section 182c2B defines RFP by setting specific annual percent reductions for the period following the first six-year period and allows averaging over a 3year period. With respect to the 1-hour ozone NAAQS, the EPA stated that, by meeting the specific percent reduction requirements in CAA sections 182b1
and 182c2B, the State will also 15 CAA section 1711 defines reasonable further progress as such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date. The words this part in the statutory definition of RFP refer to part D of title I of the CAA, which contains both the general requirements in subpart 1 and the pollutant-specific requirements in subparts 25
including the ozone-specific RFP requirements in CAA sections 182b1 and 182c2B for Serious areas.

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