Rule2021-27798
Air Plan Approval; California; San Joaquin Valley Unified Air Pollution Control District
Primary source
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Published
December 27, 2021
Effective
January 26, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is taking final action to partially approve a revision to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). This revision concerns emissions of oxides of nitrogen (NO<INF>X</INF>) and fine particulate matter (PM<INF>2.5</INF>) from off-road diesel agricultural vehicles and equipment. We are approving portions of a local measure to reduce emissions from these sources under the Clean Air Act (CAA or the Act) and deferring action on the remaining portions of this measure.
Full Text
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<title>Federal Register, Volume 86 Issue 245 (Monday, December 27, 2021)</title>
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[Federal Register Volume 86, Number 245 (Monday, December 27, 2021)]
[Rules and Regulations]
[Pages 73106-73129]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27798]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2020-0079; FRL-9291-01-R9]
Air Plan Approval; California; San Joaquin Valley Unified Air
Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to partially approve a revision to the San Joaquin Valley
Unified Air Pollution Control District (SJVUAPCD) portion of the
California State Implementation Plan (SIP). This revision concerns
emissions of oxides of nitrogen (NO<INF>X</INF>) and fine particulate
matter (PM<INF>2.5</INF>) from off-road diesel agricultural vehicles
and equipment. We are approving portions of a local measure to reduce
emissions from these sources under the Clean Air Act (CAA or the Act)
and deferring action on the remaining portions of this measure.
DATES: This rule is effective January 26, 2022.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2020-0079. All documents in the docket are
listed on the <a href="http://www.regulations.gov">http://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information 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 <a href="http://www.regulations.gov">http://www.regulations.gov</a>, 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: Rebecca Newhouse, EPA Region IX, 75
Hawthorne Street, San Francisco, CA 94105, (415) 972-3004,
<a href="/cdn-cgi/l/email-protection#e8868d9f80879d9b8dc69a8d8a8d8b8b89a88d9889c68f879e"><span class="__cf_email__" data-cfemail="553b30223d3a2026307b27303730363634153025347b323a23">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.
Table of Contents
I. Background
II. Summary of Final Action and Rationale
III. Public Comments and EPA Responses
IV. Final Action
V. Statutory and Executive Order Reviews
I. Background
On March 24, 2020 (85 FR 16588), the EPA proposed to approve the
following measure, submitted by the California Air Resources Board
(CARB), into the California SIP.
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Local agency Resolution No. Measure title Adopted Submitted
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CARB............................... 19-26 ``San Joaquin Valley 12/12/19 02/11/20
Agricultural Equipment
Incentive Measure,'' as
amended by ``Additional
Clarifying Information for
the San Joaquin Valley
Agricultural Equipment
Incentive Measure.''
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We proposed to approve the San Joaquin Valley Agricultural
Equipment Incentive Measure, as amended (hereafter ``Valley Incentive
Measure''), based on a determination that it satisfies the applicable
CAA requirements for approval of voluntary measures for SIP emission
reduction credit. Our proposal was based on our evaluation of the
documents provided in the SIP submission, including the measure itself
(i.e., the State commitments set forth on
[[Page 73107]]
pages 7-12 of CARB Resolution 19-26, as amended by the ``Additional
Clarifying Information for the San Joaquin Valley Agricultural
Equipment Incentive Measure'') and CARB's analysis of the measure in a
document entitled ``San Joaquin Valley Agricultural Equipment Incentive
Measure--Quantifying the Funded Emission Reductions from Moyer, NRCS,
and FARMER Programs to Achieve SIP Credit,'' Release Date: November 8,
2019 (hereafter ``Demonstration''). Our proposed rule and associated
technical support document (TSD) \1\ contain more information about the
SIP submission and our evaluation thereof.
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\1\ EPA Region IX, ``Technical Support Document for EPA's
Rulemaking for the California State Implementation Plan, California
Air Resources Board Resolution 19-26, San Joaquin Valley
Agricultural Equipment Incentive Measure,'' February 2020 (hereafter
``TSD'').
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On March 27, 2020 (85 FR 17382), as part of the EPA's proposal to
approve most elements of California's attainment plan for the 2006
PM<INF>2.5</INF> NAAQS in the San Joaquin Valley (``2006 NAAQS Plan''),
the EPA proposed to credit the Valley Incentive Measure with specific
amounts of NO<INF>X</INF> and PM<INF>2.5</INF> emission reductions
toward the State's aggregate emission reduction commitments for 2024 in
this plan. Specifically, the EPA proposed to find that the Valley
Incentive Measure would achieve 5.9 tons per day (tpd) of
NO<INF>X</INF> reductions and 0.3 tpd of direct PM<INF>2.5</INF>
reductions by 2024, as part of the State's control strategy for
attaining the 2006 PM<INF>2.5</INF> NAAQS in the San Joaquin Valley by
December 31, 2024.\2\ We did not, however, finalize this element of our
March 27, 2020 proposal because, as of the date of our final action on
the 2006 NAAQS Plan, we had not yet approved the Valley Incentive
Measure into the SIP.\3\
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\2\ 85 FR 17382, 17412.
\3\ 85 FR 44192, 44204 (July 22, 2020).
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On November 24, 2020, CARB submitted technical clarifications and
corrections to the Valley Incentive Measure that clarify, among other
things, CARB's commitment to make certain documents concerning the
incentive projects implemented to achieve emission reductions available
to the public upon request. CARB adopted these technical clarifications
and corrections to the measure by Executive Order S-20-031 (November
23, 2020).\4\ These technical clarifications and corrections to the
Valley Incentive Measure incorporate all amendments contained in the
``Additional Clarifying Information for the San Joaquin Valley
Agricultural Equipment Incentive Measure.'' We refer to the executive
order adopting these technical clarifications and corrections as the
``Technical Corrections Document.''
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\4\ Letter dated November 23, 2020, from Richard W. Corey,
Executive Officer, CARB, to John W. Busterud, Regional
Administrator, EPA Region IX (transmitting, inter alia, CARB
Executive Order S-20-031, ``Adoption and Submittal of Technical
Clarifications and Typographical Error Corrections to the San
Joaquin Valley Agricultural Equipment Incentive Measure,'' November
23, 2020 (hereafter ``Technical Corrections Document'')).
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On October 6, 2021, CARB submitted an additional clarification to
the Valley Incentive Measure stating that CARB's commitments for
``aggregated emissions reductions and pieces of agricultural
equipment'' in the measure may be achieved through any combination of
the referenced incentive programs. CARB adopted this clarification to
the measure by Executive Order S-21-018 (October 6, 2021).\5\ CARB's
submittal letter explains that this clarification to the Valley
Incentive Measure makes the commitment ``severable'' so that the EPA
``may address the associated emissions reductions and pieces of
agricultural equipment from the incentive programs individually as
needed.'' \6\ We refer to the executive order adopting this
clarification as the ``2021 Clarification Document.''
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\5\ Letter dated October 6, 2021, from Richard W. Corey,
Executive Officer, CARB, to Deborah Jordan, Acting Regional
Administrator, EPA Region IX (transmitting CARB Executive Order S-
21-018, ``Adoption and Submittal of Commitment Clarifications to the
San Joaquin Valley Agricultural Equipment Incentive Measure,''
October 6, 2021 (hereafter ``2021 Clarification Document'')).
\6\ CARB submitted the 2021 Clarification Document in response
to the EPA's email dated June 2, 2021, which contained two PDF
attachments identifying, in redline and strikeouts, suggested edits
to the Valley Incentive Measure to remove all references to NRCS
projects and associated commitments. Email dated June 2, 2021, from
Rebecca Newhouse (EPA) to Sylvia Vanderspek (CARB), RE: ``SJV ag
tractor incentive measure'' (including attachments).
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The 2006 NAAQS Plan is contained within an integrated
PM<INF>2.5</INF> attainment plan submitted by CARB on May 10, 2019,
that also contains, inter alia, California's Serious area attainment
plan for the 2012 annual PM<INF>2.5</INF> NAAQS in the San Joaquin
Valley (the ``2012 NAAQS Plan'').\7\ For purposes of this action we
refer to the 2006 NAAQS Plan and 2012 NAAQS Plan together as the ``SJV
PM<INF>2.5</INF> Plan,'' and to the portion of the SJV PM<INF>2.5</INF>
Plan that the SJVUAPCD developed and adopted as the ``2018
PM<INF>2.5</INF> Plan.'' The SJV PM<INF>2.5</INF> Plan lists the Valley
Incentive Measure as one of several defined measures that CARB intended
to adopt in order to fulfill, in part, its aggregate tonnage
commitments in the SJV PM<INF>2.5</INF> Plan. Specifically, the 2006
NAAQS Plan relies on the 2024 tonnage commitment in the Valley
Incentive Measure to achieve a portion of the emission reductions
necessary for attainment of the 2006 PM<INF>2.5</INF> NAAQS by the end
of 2024,\8\ and the 2012 NAAQS Plan relies on the 2025 tonnage
commitment in the Valley Incentive Measure to achieve a portion of the
emission reductions necessary for attainment of the 2012
PM<INF>2.5</INF> NAAQS by the end of 2025.\9\
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\7\ Letter dated May 9, 2019, from Richard Corey, Executive
Officer, CARB, to Mike Stoker, Regional Administrator, EPA Region 9
(transmitting the ``2018 Plan for the 1997, 2006, and 2012
PM<INF>2.5</INF> Standards'' (``2018 PM<INF>2.5</INF> Plan'') and
the ``San Joaquin Valley Supplement to the 2016 State Strategy for
the State Implementation Plan'' (``Valley State SIP Strategy'')).
The SJVUAPCD developed and adopted the 2018 PM<INF>2.5</INF> Plan,
and CARB developed and adopted the Valley State SIP Strategy. 85 FR
44192, 44193.
\8\ 2018 PM<INF>2.5</INF> Plan, Chapter 4, Section 4.4 (``CARB
Emission Reduction Commitment for the San Joaquin Valley'') and
Valley State SIP Strategy, Chapter 3 (``Supplemental State
Commitment from the Proposed State Measures for the Valley''). See
also 85 FR 17415-17416 (March 27, 2020) (proposed rule to approve
relevant portions of SJV PM<INF>2.5</INF> Plan for 2006
PM<INF>2.5</INF> NAAQS purposes, discussing plan's reliance on San
Joaquin Valley Agricultural Incentive Measure) and 85 FR 44192 (July
22, 2020) (final rule approving relevant portions of SJV
PM<INF>2.5</INF> Plan for 2006 PM<INF>2.5</INF> NAAQS purposes).
\9\ 2018 PM<INF>2.5</INF> Plan, Chapter 4, Section 4.4 (``CARB
Emission Reduction Commitment for the San Joaquin Valley'') and
Valley State SIP Strategy, Chapter 3 (``Supplemental State
Commitment from the Proposed State Measures for the Valley'').
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II. Summary of Final Action and Rationale
We are taking final action to approve into the California SIP
specific portions of the Valley Incentive Measure, as amended and
clarified by the Technical Corrections Document and the 2021
Clarification Document, based on our conclusion that these portions of
the measure satisfy CAA requirements for approval. Our March 24, 2020
proposed rule (85 FR 16588), the associated TSD, and our responses to
comments in this final rule provide our rationale for finding that
these portions of the measure are enforceable and satisfy CAA
requirements for SIP approval, as interpreted in the EPA's guidance.
Upon our approval of these portions of the Valley Incentive Measure
into the SIP, they become enforceable under the CAA and creditable for
SIP purposes. Accordingly, we are also taking final action to credit
these portions of the Valley Incentive Measure with specific amounts of
NO<INF>X</INF> and direct PM<INF>2.5</INF> emission reductions toward
the 2024 aggregate tonnage commitments in the 2006 NAAQS Plan, which we
[[Page 73108]]
previously approved into the SIP.\10\ We are deferring action on the
remaining portions of the Valley Incentive Measure.
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\10\ 85 FR 44192, 44205-44206 (July 22, 2020) (codifying CARB's
aggregate tonnage commitments at 40 CFR 52.220(c)(536)((ii)(A)(2).
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As noted in section I above, the EPA previously proposed to fully
approve the Valley Incentive Measure and to credit the measure with 5.9
tpd of NO<INF>X</INF> reductions and 0.3 tpd of direct PM<INF>2.5</INF>
reductions toward the 2024 aggregate tonnage commitments in the 2006
NAAQS Plan but did not finalize this proposal because, as of the date
of our final action on the 2006 NAAQS Plan, we had not yet approved the
Valley Incentive Measure into the SIP.\11\ In this rule we are
finalizing our proposal only with respect to those portions of the
Valley Incentive Measure, as amended, that pertain to incentive
projects implemented under California's Carl Moyer Memorial Air Quality
Standards Attainment Program (Carl Moyer Program) and Funding
Agricultural Replacement Measures for Emission Reductions Program
(FARMER Program). We are deferring action on those portions of the
Valley Incentive Measure that pertain to incentive projects implemented
under the United States Department of Agriculture's Natural Resources
Conservation Service (NRCS) Environmental Quality Incentives Program
(EQIP). The docket for this rulemaking contains a copy of those
portions of the Valley Incentive Measure, as amended and clarified by
the Technical Corrections Document and the 2021 Clarification Document,
that we are approving into the SIP.\12\ For convenience, we refer to
those portions of the Valley Incentive Measure as the ``Amended Valley
Incentive Measure.''
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\11\ Id. at 44204.
\12\ The portions of the Valley Incentive Measure that we are
approving into the SIP are identified in two documents: (1) ``CARB
Resolution 19-26, approved portions'' and (2) ``Technical
Corrections Document, approved portions.'' These two documents are
attached to the email dated June 2, 2021, from Rebecca Newhouse
(EPA) to Sylvia Vanderspek (CARB), RE: ``SJV ag tractor incentive
measure,'' and are available in the docket for this rulemaking.
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As we explained in the TSD supporting our proposed rule, the Carl
Moyer projects that CARB may implement to fulfill its commitments in
the Valley Incentive Measure are those projects subject to either ``The
Carl Moyer Program Guidelines, Approved Revisions 2011,'' revised
December 18, 2015 (the ``2011 Carl Moyer Guidelines''), or ``The Carl
Moyer Program Guidelines, 2017 Revisions,'' approved April 27, 2017
(the ``2017 Carl Moyer Guidelines'').\13\ The FARMER projects that CARB
may implement to fulfill its commitments in the Valley Incentive
Measure are those projects subject to the ``Final: Funding Agricultural
Replacement Measures for Emission Reductions (FARMER) Program
Guidelines,'' release date: February 16, 2018 (``2018 FARMER
Guidelines''), which generally must comply with the 2017 Carl Moyer
Guidelines.\14\
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\13\ TSD, 10-11.
\14\ TSD, 16-17 (noting that all FARMER projects that CARB
relies on to comply with the Valley Incentive Measure are subject to
the 2017 Carl Moyer Guidelines, future approved guidelines, and
current and future program advisories and mail-outs, except as
modified by CARB). See also Demonstration, 43-45 and 2018 FARMER
Guidelines, 17-18. All FARMER projects identified in the project
list included in CARB's SIP submission are subject to the 2017 Carl
Moyer Guidelines. Demonstration, Appendix J (``San Joaquin Valley
Agricultural Equipment Incentive Measure, FARMER Project List'').
Therefore, references herein to the 2017 Carl Moyer Guidelines apply
to both Carl Moyer projects and FARMER projects. Should CARB revise
the 2018 FARMER Guidelines at any point before May 15, 2025, it will
be obligated under paragraph D.2 of CARB Resolution 19-26 to
provide, in the annual demonstration report for the relevant year, a
``description of any changes to the 2018 FARMER Guidelines and their
related impacts on program integrity.'' TSD, 17 (referencing Valley
Incentive Measure, 11 (CARB Resolution 19-26, para. D.2)).
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CARB's SIP submission and related support documents indicate that
the portions of the Valley Incentive Measure, as amended, that pertain
to incentive projects implemented under the Carl Moyer Program and
FARMER Program will achieve 4.83 tpd of NO<INF>X</INF> reductions and
0.24 tpd of PM<INF>2.5</INF> reductions by 2024.\15\ We are, therefore,
approving CARB's commitments to achieve 4.83 tpd of NO<INF>X</INF>
reductions and 0.24 tpd of PM<INF>2.5</INF> reductions by the beginning
of 2024 through implementation of the Amended Valley Incentive Measure,
and crediting the measure with these amounts of NO<INF>X</INF> and
PM<INF>2.5</INF> emission reductions toward CARB's aggregate tonnage
commitments for 2024 in the 2006 NAAQS Plan.\16\ The 2006 NAAQS Plan
shows that the San Joaquin Valley needs to achieve an additional 33.9
tpd of NO<INF>X</INF> reductions and 2.2 tpd of PM<INF>2.5</INF>
reductions beyond baseline measures to attain the 2006 PM<INF>2.5</INF>
NAAQS by December 31, 2024.\17\ Thus, the SIP-creditable emission
reductions attributed to the Amended Valley Incentive Measure
constitute 14.2 percent of the additional NO<INF>X</INF> reductions
(4.83/33.9 tpd) and 10.9 percent of the additional PM<INF>2.5</INF>
reductions (0.24/2.2 tpd) necessary for attainment of the 2006
PM<INF>2.5</INF> NAAQS in the San Joaquin Valley by December 31,
2024.\18\
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\15\ CARB, ``Appendix I, San Joaquin Valley Agricultural
Equipment Incentive Measure, NRCS Project List,'' available as
``Appendix I--Detailed'' at <a href="https://ww2.arb.ca.gov/resources/documents/implementation-state-sip-strategy">https://ww2.arb.ca.gov/resources/documents/implementation-state-sip-strategy</a> (last visited November
16, 2021) and also available as ``ag_appx_i_detailed_021120.xlsx''
in the docket for this rulemaking. The ``NRCS Summary'' tab of
Appendix I identifies 1.07 tpd of NO<INF>X</INF> emission reductions
and 0.06 tpd of PM<INF>2.5</INF> emission reductions achieved in
2024 through EQIP projects implemented by the NRCS. Subtraction of
these amounts from CARB's 2024 tonnage commitments in the Valley
Incentive Measure (5.9 tpd NO<INF>X</INF> reductions and 0.3 tpd
PM<INF>2.5</INF> reductions) results in 4.83 tpd of NO<INF>X</INF>
reductions (5.9--1.07 tpd) and 0.24 tpd of PM<INF>2.5</INF>
reductions (0.3--0.06 tpd), which CARB anticipates achieving through
implementation of Carl Moyer and FARMER projects.
\16\ 85 FR 44192, 44205-44206 (July 22, 2020) (codifying CARB's
aggregate tonnage commitments at 40 CFR 52.220(c)(536)((ii)(A)(2).
In this rule we are codifying, in the appropriate paragraph under 40
CFR 52.220(c), CARB's commitments to achieve 4.83 tpd of
NO<INF>X</INF> reductions and 0.24 tpd of PM<INF>2.5</INF>
reductions by the beginning of 2024 through implementation of the
Amended Valley Incentive Measure thereby enabling the EPA and
citizens to enforce these commitments under the CAA. Our
codification of these commitments constitutes a finding that CARB
has achieved 4.83 tpd of the NO<INF>X</INF> reductions and 0.24 tpd
of the PM<INF>2.5</INF> reductions that CARB must achieve by 2024
under its aggregate tonnage commitment at 40 CFR
52.220(c)(536)((ii)(A)(2).
\17\ 85 FR 44192, 44204 (Table 1) (July 22, 2020).
\18\ These calculations are consistent with the EPA's
recommended method for calculating the percentage of emission
reductions attributed to voluntary mobile source measures for
purposes of comparison to the EPA's presumptive limits on SIP credit
for such measures. See EPA, ``Guidance on Incorporating Voluntary
Mobile Source Emission Reduction Programs in State Implementation
Plans (SIPs),'' October 24, 1997 (``1997 VMEP''), 5, fn. 3. In our
March 27, 2020 proposal (85 FR 17382, 17412), we erroneously
calculated the percentage of emission reductions attributed to the
Valley Incentive Measure as a percentage of the total emission
reductions needed for attainment from the base year to the
attainment year, rather than as a percentage of the incremental
reductions needed beyond baseline measures in the attainment year.
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Under longstanding guidance, the EPA has recommended presumptive
limits on the amounts of emission reductions from certain voluntary and
other nontraditional measures that may be credited in a SIP.
Specifically, for voluntary mobile source emission reduction programs,
the EPA has identified a presumptive limit of three percent of the
total projected future year emission reductions required to attain the
appropriate NAAQS, and for any particular SIP submittal to demonstrate
attainment or maintenance of the NAAQS or progress toward attainment
(RFP), three percent of the specific statutory requirement.\19\ The EPA
may, however, approve measures for SIP credit in amounts exceeding the
presumptive limits under certain
[[Page 73109]]
circumstances, and where a clear and convincing justification is made
by the State as to why a higher limit should apply in its case.\20\
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\19\ EPA, ``Guidance on Incorporating Voluntary Mobile Source
Emission Reduction Programs in State Implementation Plans (SIPs),''
October 24, 1997, 5.
\20\ EPA, ``Improving Air Quality with Economic Incentive
Programs'' January 2001 (``2001 EIP Guidance''), 158 (recommending
use of 2001 EIP Guidance to implement programs achieving more than
the 3 percent limit where the State can directly implement and
enforce the program against identifiable sources); EPA, ``Diesel
Retrofit and Replacement Projects: Quantifying and Using Their
Emission Benefits in SIPs and Conformity: Guidance for State and
Local Air and Transportation Agencies,'' March 2018 (``2018 Diesel
Retrofits Guidance''), 12, 28 (noting that EPA will allow the 3
percent cap to be exceeded if the cap hinders the implementation of
effective voluntary control measures, subject to notice and comment
rulemaking); and EPA, ``Guidance on Incorporating Bundled Measures
in a State Implementation Plan,'' August 16, 2005, 8, n. 6 (noting
that EPA may approve measures into a SIP exceeding the presumptive 6
percent limit for stationary source measures ``where a clear and
convincing justification is made by the State as to why a higher
limit should apply in its case''). See also EPA, ``Incorporating
Emerging and Voluntary Measures in a State Implementation Plan
(SIP),'' September 2004, 9 (``2004 Emerging and Voluntary Measures
Guidance'').
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The San Joaquin Valley's topography and meteorology present
significant challenges for air quality. As stated in the 2018
PM<INF>2.5</INF> Plan, ``the surrounding mountains trap pollution and
block airflow'' and ``[t]emperature inversions, while present to some
degree throughout the year, can last for days during the winter,
holding in nighttime accumulations of pollutants.'' \21\ In addition,
the population of the area continues to grow at a rate higher than the
statewide growth rate, leading to increased vehicular traffic along
major highways that run through the San Joaquin Valley.\22\ Given these
unique challenges, both the State and District continue to implement
both traditional and non-traditional emission reduction strategies to
attain the PM<INF>2.5</INF> standards in the San Joaquin Valley,
including regulatory programs, incentive programs, and rigorous
outreach and education efforts.\23\ Over the past several decades, the
State and District have developed and implemented several comprehensive
plans to address attainment of the NAAQS for ozone and particulate
matter.\24\ These attainment plans have resulted in the State's and
District's adoption of numerous regulations for stationary, area, and
mobile sources, including some of the most stringent control measures
in the nation.\25\ Given the air quality needs of the area, the
numerous control measures that both the State and District have adopted
and implemented in the San Joaquin Valley to date, the State's and
District's successful implementation of the Carl Moyer program over the
last two decades, and our experience to date quantifying emission
reductions achieved through this program,\26\ we believe it is
appropriate to allow the State to rely on the Amended Valley Incentive
Measure to achieve 14.2 percent (4.83 tpd) of the additional
NO<INF>X</INF> reductions and 10.9 percent (0.24 tpd) of the additional
direct PM<INF>2.5</INF> reductions necessary for the area to attain the
2006 PM<INF>2.5</INF> NAAQS by the end of 2024. Moreover, all Carl
Moyer and FARMER projects are subject to detailed contract provisions
that CARB may enforce against the grantee at any time during the
contract term, a program feature that further supports the State's
reliance on the Amended Valley Incentive Measure for emission
reductions exceeding the EPA's presumptive limits.\27\ See Response 2.
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\21\ 2018 PM<INF>2.5</INF> Plan, Chapter 2, 2-1.
\22\ Id. at 2-4.
\23\ Id. at 2-2.
\24\ See, e.g., 69 FR 30005 (May 26, 2004) (approving plan to
attain the 1987 PM<INF>10</INF> NAAQS), 76 FR 69896 (November 9,
2011) (partially approving and partially disapproving plan to attain
the 1997 PM<INF>2.5</INF> NAAQS), 77 FR 12652 (March 1, 2012)
(approving plan to attain the 1997 8-hour ozone NAAQS), 81 FR 19492
(April 5, 2016) (approving plan to attain the 1979 1-hour ozone
NAAQS), and 85 FR 44192 (July 22, 2020) (approving plan to attain
the 2006 PM<INF>2.5</INF> NAAQS).
\25\ 85 FR 44192 (July 22, 2020) (finding, inter alia, that
California's attainment plan for the 2006 PM<INF>2.5</INF> NAAQS in
the SJV includes the best available control measures and most
stringent measures as required by CAA section 188(e)). See also 85
FR 17382, 17412-17413 (March 27, 2020) (providing rationale for
State's reliance on incentive measures for emission reductions
exceeding 3 percent presumptive limit).
\26\ The EPA has approved two incentive-based SIP submissions
from CARB that rely on Carl Moyer projects for SIP emission
reduction credit. See 86 FR 3820 (January 15, 2021) (full approval
of South Coast incentive measure) and 81 FR 53300 (August 12, 2016)
(limited approval/disapproval of ``Emission Reduction Report'' for
San Joaquin Valley).
\27\ 2011 Carl Moyer Guidelines, Part I, Chapter 3, Section Y
(``Minimum Contract Requirements'') and 2017 Carl Moyer Guidelines,
Volume I, Part 1, Chapter 3, Section V (``Minimum Contract
Requirements''), para. 11 (``Repercussions for Nonperformance'').
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CARB's SIP submission and related support documents also indicate
that the Amended Valley Incentive Measure will achieve 4.46 tpd of
NO<INF>X</INF> reductions and 0.26 tpd of PM<INF>2.5</INF> reductions
by 2025.\28\ We are, therefore, approving CARB's commitments to achieve
4.46 tpd of NO<INF>X</INF> reductions and 0.26 tpd of PM<INF>2.5</INF>
reductions by the beginning of 2025, thereby making these portions of
the Amended Valley Incentive Measure enforceable under the CAA and
creditable toward the attainment control strategy in the 2012 NAAQS
Plan.\29\ In a separate rulemaking on the 2012 NAAQS Plan, the EPA will
identify the specific amounts of NO<INF>X</INF> and PM<INF>2.5</INF>
emission reductions that may be attributed to the Amended Valley
Incentive Measure as part of the State's control strategy for attaining
the 2012 PM<INF>2.5</INF> NAAQS. If those amounts of NO<INF>X</INF> and
PM<INF>2.5</INF> emission reductions exceed the EPA's presumptive
limits on the use of emission reductions from voluntary measures for
SIP purposes, the EPA will, as part of that rulemaking, evaluate the
SIP submission for the Amended Valley Incentive Measure to determine
whether such use is justified.
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\28\ CARB, ``Appendix I, San Joaquin Valley Agricultural
Equipment Incentive Measure, NRCS Project List,'' available as
``Appendix I--Detailed'' at <a href="https://ww2.arb.ca.gov/resources/documents/implementation-state-sip-strategy">https://ww2.arb.ca.gov/resources/documents/implementation-state-sip-strategy</a> (last visited November
16, 2021) and also available as ``ag_appx_i_detailed_021120.xlsx''
in the docket for this rulemaking. The ``NRCS Summary'' tab of
Appendix I identifies 0.64 tpd of NO<INF>X</INF> emission reductions
and 0.04 tpd of PM<INF>2.5</INF> emission reductions achieved in
2025 through EQIP projects implemented by the U.S. Department of
Agriculture's Natural Resources Conservation Service. Subtraction of
these amounts from CARB's 2025 tonnage commitments in the Valley
Incentive Measure (5.1 tpd NO<INF>X</INF> reductions and 0.3 tpd
PM<INF>2.5</INF> reductions) results in 4.46 tpd of NO<INF>X</INF>
reductions (5.1-0.64 tpd) and 0.26 tpd of PM<INF>2.5</INF>
reductions (0.3-0.04 tpd), which CARB anticipates achieving through
implementation of Carl Moyer and FARMER projects. Note that the
EPA's estimate of the PM<INF>2.5</INF> emission reductions achieved
through Carl Moyer and FARMER projects in 2025 (0.26 tpd) is
slightly higher than its estimate of the PM<INF>2.5</INF> emission
reductions achieved through Carl Moyer and FARMER projects in 2024
(0.24 tpd, see n. 15 supra) due to small differences in the
projected emission reductions for 2024 and 2025 that CARB identified
in Appendix I--Detailed and ``Carl Moyer/FARMER Emissions Reductions
Calculator,'' available as ``Appendices H and J--Detailed'' at
<a href="https://ww2.arb.ca.gov/resources/documents/implementation-state-sip-strategy">https://ww2.arb.ca.gov/resources/documents/implementation-state-sip-strategy</a>. See TSD, 28, n. 111.
\29\ We are codifying, in the appropriate paragraph under 40 CFR
52.220(c), CARB's commitments to achieve 4.46 tpd of NO<INF>X</INF>
reductions and 0.26 tpd of PM<INF>2.5</INF> reductions by the
beginning of 2025 through implementation of the relevant portions of
the Valley Incentive Measure, as amended.
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III. Public Comments and EPA Responses
The EPA's proposed action provided a 30-day public comment period.
During this period, we received comments from Earthjustice objecting to
our proposal.\30\ We also received comments from 27 entities that
express only support for our proposal and do not require a
response.\31\ We summarize and respond to all comments from
Earthjustice that pertain to the Amended Valley Incentive Measure--
i.e., those portions of the measure, as amended and
[[Page 73110]]
clarified, that pertain to implementation of Carl Moyer and FARMER
projects.\32\
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\30\ Letter dated April 23, 2020, from Paul Cort, Earthjustice,
to Rynda Kay, EPA, Region IX, Subject: ``Docket ID No. EPA-R09-OAR-
2020-0079.''
\31\ The entities that expressed support for our proposal
include 17 agriculture-related trade organizations and 10 individual
farmers. All of these letters are available in the docket for this
rulemaking.
\32\ CARB Resolution 19-26 (December 12, 2019), Technical
Corrections Document, and 2021 Clarification Document. All
references to the Amended Valley Incentive Measure herein are to the
portions of CARB Resolution 19-26 and the Technical Corrections
Document that the EPA is approving (i.e., excluding those portions
that pertain to EQIP projects implemented by the NRCS), as indicated
in the documents in the rulemaking docket entitled ``CARB Resolution
19-26, approved portions'' and ``Technical Corrections Document,
approved portions.''
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Because we are deferring action on those portions of the Valley
Incentive Measure that pertain to EQIP projects, we are not responding
to comments pertaining to these portions of the measure at this time.
We will respond to these comments in a subsequent rulemaking or, if we
substantially revise our proposal with respect to the portions of the
Valley Incentive Measure that pertain to EQIP projects, we will provide
another opportunity for public comment on that revised proposal.
Comment 1: Earthjustice states that CARB and the SJVUAPCD have used
promises of voluntary emission reductions supported by incentive funds
to cure all number of planning and regulatory failures, and that
without a detailed accounting, there is no reasonable basis for
concluding that the reductions achieved in this program are surplus to
reductions that have been credited or assumed elsewhere. Citing the
definition of ``surplus'' provided in the EPA's technical support
document (TSD), Earthjustice claims that the EPA has not explained how
these particular emission reductions are surplus to the various other
voluntary emission reductions relied upon in the SIP. For example,
Earthjustice cites the emission reductions relied upon to satisfy the
CAA section 185 requirements for this area (SJVUAPCD Rule 3170); the
District's assumption that mitigation funds will offset the growth in
oil and gas emissions as a result to the Kern County Program
environmental impact report (EIR); the District's claim that its
boiler, winery, and other rules meet minimum control requirements by
requiring mitigation funds to achieve reductions in lieu of installing
advanced controls (e.g., SJVUAPCD Rule 4320 and Rule 4694); and the
District's retirement of surplus emission reductions to demonstrate the
equivalency of its new source review program (SJVUAPCD Rule 2201).
According to Earthjustice, these voluntary incentive programs have
become ``an accounting shell game'' and the EPA cannot deem the
associated emission reductions surplus until all of the ``overlapping''
incentive program reductions are analyzed.
Response 1: We disagree with these claims. As a general matter, an
incentive-based measure may be credited toward the control strategy in
an attainment plan if the State demonstrates that the emission
reductions achieved by the measure will not be ``double-counted'' in
the same attainment plan. The EPA's March 2018 guidance document
entitled ``Diesel Retrofit and Replacement Projects: Quantifying and
Using Their Emission Benefits in SIPs and Conformity: Guidance for
State and Local Air and Transportation Agencies,'' March 2018 (``2018
Diesel Retrofits Guidance'') states that ``[e]mission reductions are
considered `surplus' if they are not otherwise relied on to meet other
applicable air quality attainment or maintenance requirements for that
particular NAAQS pollutant (i.e., there can be no double-counting of
emission reductions).'' \33\ Similarly, the EPA's October 1997 guidance
document entitled ``Guidance on Incorporating Voluntary Mobile Source
Emission Reduction Programs in State Implementation Plans (SIPs),''
October 24, 1997 (``1997 VMEP''), states that ``VMEP emission
reductions may not be substituted for mandatory, required emission
reductions,'' and that ``States may submit to EPA for approval any
program that will result in emission reductions in addition to those
already credited in a relevant attainment or maintenance plan, or used
for purposes of SIP demonstrations such as conformity, rate of
progress, or emission credit trading programs.\34\
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\33\ 2018 Diesel Retrofits Guidance, 27.
\34\ 1997 VMEP, 6.
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The EPA's intent in these guidance documents was to ensure that
emission reductions achieved through implementation of voluntary
programs, including incentive-based vehicle replacement programs, are
not double-counted in the attainment or maintenance plan for a
particular NAAQS.\35\ Although two other EPA guidance documents cited
in the EPA's TSD state that emission reductions achieved by voluntary
programs should also be surplus to other adopted state air quality
programs (even those not in the relevant SIP),\36\ these guidance
documents provide only interpretive guidance and are not binding on the
EPA. In the context of a control strategy to provide for attainment of
a particular NAAQS, we find that an incentive-based measure need not
achieve emission reductions that are surplus to all adopted state air
quality programs and may, instead, be credited toward the control
strategy if the State demonstrates that the measure achieves emission
reductions that are not already accounted for in the particular
attainment plan at issue.
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\35\ That is, if the emission reductions achieved by the
voluntary program have already been credited in the attainment or
maintenance plan for the particular NAAQS at issue, then those
emission reductions cannot be treated as ``surplus'' and, therefore,
cannot be credited in the same attainment plan.
\36\ 2001 EIP Guidance, section 4.1 and 2004 Emerging and
Voluntary Measures Guidance, 3.
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Thus, to satisfy the surplus (i.e., additionality) criterion in the
EPA's longstanding guidance, the Amended Valley Incentive Measure need
only be surplus to the control measures and programs that are accounted
for in the attainment plan(s) in which CARB relies upon this measure.
On May 10, 2019, California submitted an integrated PM<INF>2.5</INF>
attainment plan for the San Joaquin Valley that includes, among other
things, a Serious area plan to provide for attainment of the 2006 24-
hour PM<INF>2.5</INF> NAAQS by 2024 (``2006 NAAQS Plan'') and a Serious
area plan to provide for attainment of the 2012 annual PM<INF>2.5</INF>
NAAQS by 2025 (the ``2012 NAAQS Plan'') (collectively the ``SJV
PM<INF>2.5</INF> Plan'').\37\ The 2006 NAAQS Plan relies on the 2024
tonnage commitment in the Amended Valley Incentive Measure to achieve a
portion of the emission reductions necessary for attainment of these
NAAQS by the end of 2024,\38\ and the 2012 NAAQS Plan relies on the
2025 tonnage commitment in the Amended Valley Incentive Measure to
achieve a portion of the emission reductions necessary for attainment
of this NAAQS by the end of 2025.\39\ Accordingly, we have reviewed
both the baseline emissions projections for off-road mobile, diesel
agricultural equipment and the attainment control strategy in the SJV
PM<INF>2.5</INF> Plan to
[[Page 73111]]
determine whether the emission reductions to be achieved through
implementation of the Amended Valley Incentive Measure have already
been credited in this attainment plan.
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\37\ Letter dated May 9, 2019, from Richard Corey, Executive
Officer, CARB, to Mike Stoker, Regional Administrator, EPA Region 9
(transmitting 2018 PM<INF>2.5</INF> Plan and Valley State SIP
Strategy). The SJVUAPCD developed and adopted the 2018
PM<INF>2.5</INF> Plan, and CARB developed and adopted the Valley
State SIP Strategy. 85 FR 44192, 44193.
\38\ 2018 PM<INF>2.5</INF> Plan, Chapter 4, Section 4.4 (``CARB
Emission Reduction Commitment for the San Joaquin Valley'') and
Valley State SIP Strategy, Chapter 3 (``Supplemental State
Commitment from the Proposed State Measures for the Valley''). See
also 85 FR 17415-17416 (March 27, 2020) (proposed rule to approve
relevant portions of SJV PM<INF>2.5</INF> Plan for 2006
PM<INF>2.5</INF> NAAQS purposes, discussing plan's reliance on San
Joaquin Valley Agricultural Incentive Measure) and 85 FR 44192 (July
22, 2020) (final rule approving relevant portions of SJV
PM<INF>2.5</INF> Plan for 2006 PM<INF>2.5</INF> NAAQS purposes).
\39\ 2018 PM<INF>2.5</INF> Plan, Chapter 4, Section 4.4 (``CARB
Emission Reduction Commitment for the San Joaquin Valley'') and
Valley State SIP Strategy, Chapter 3 (``Supplemental State
Commitment from the Proposed State Measures for the Valley'').
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With respect to mobile source emissions projections, air quality
plans, including the SJV PM<INF>2.5</INF> Plan, rely on emissions
estimates that have been derived from the use of emissions models or
other emissions projection methodologies that assume certain rates of
replacement of older equipment with newer equipment manufactured to
meet more stringent emissions standards (i.e., fleet turnover). Use of
such models and methodologies is the standard emission estimation
technique, and the emissions projections made using them are generally
considered sufficiently accurate for plan development purposes. The
assumptions regarding fleet turnover are similar to other planning
assumptions used to develop air quality plans, such as assumptions
regarding population and employment growth and changes in vehicle
activity. Such assumptions are not enforceable in the way that
emissions limitations are enforceable. Rather, the obligation on the
state for plan development is to use the latest planning assumptions
and most recently developed emissions models and inventories.\40\
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\40\ EPA, ``Emissions Inventory Guidance for Implementation of
Ozone and Particulate Matter National Ambient Air Quality Standards
(NAAQS) and Regional Haze Regulations,'' EPA-454/B-17-002, May 2017,
28 (noting that California's prior emissions model for estimating
nonroad source emissions for SIP purposes, called OFFROAD2007, has
been replaced with category-specific methods for many categories).
CARB uses a category-specific methodology for estimating emissions
from off-road mobile, diesel agricultural equipment. See CARB's
mobile source emissions inventory website at <a href="https://ww2.arb.ca.gov/our-work/programs/mobile-source-emissions-inventory/road-documentation/msei-documentation-road">https://ww2.arb.ca.gov/our-work/programs/mobile-source-emissions-inventory/road-documentation/msei-documentation-road</a>.
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In the case of the SJV PM<INF>2.5</INF> Plan, the emissions
projections reflect the latest planning assumptions and emissions
inventories available at the time of plan development. The
Demonstration states that the projected baseline inventory for off-road
mobile, diesel agricultural equipment in the 2018 PM<INF>2.5</INF> Plan
is based on a 2011 emissions inventory described in a CARB report
entitled, ``Emission Inventory for Agricultural Diesel Vehicles,''
August 2018 (``Agricultural EI Report'').\41\ This 2011 emission
inventory is based on a 2008 survey of agricultural producers, custom
operators, and first processors for self-propelled diesel agricultural
equipment over 25 horsepower in size, as well as data on farms and
acreage from a 2007 census conducted by the U.S. Department of
Agriculture (USDA).\42\ According to CARB, the 2011 emissions inventory
for agricultural equipment in the 2018 PM<INF>2.5</INF> Plan was
derived only from base year inputs that do not account for incentive
programs and does not reflect the future-year population forecast that
accounts for incentive programs.\43\ In response to the EPA's request
for clarification, CARB provided this further explanation by email
dated November 13, 2020:
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\41\ Demonstration, 59-60 and Appendix G. CARB and the EPA refer
to the portion of the SJV PM<INF>2.5</INF> Plan that the SJVUAPCD
developed and adopted as the ``2018 PM<INF>2.5</INF> Plan.''
\42\ Id.
\43\ Demonstration, 60 (referencing sections 3-5 of Agricultural
EI Report for base year inputs, and sections 2 and 6-8 of
Agricultural EI Report for population forecasts that include
incentive programs).
The baseline emissions in the SJV PM<INF>2.5</INF> Plan
inventory were developed from the 2008 survey and 2007 USDA data on
acres harvested, and include no incentives projects. All years after
2008 are projected populations and emissions reflect natural not
incentivized turnover. The downward slope and reduction in emissions
over time in the baseline is solely due to natural turnover, the
replacement of older engines due to mechanical deterioration and the
business-as-usual replacement practices.\44\
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\44\ Email dated November 13, 2020, from Austin Hicks, CARB, to
Rebecca Newhouse, EPA Region IX, Subject: ``RE: 9/10 meeting:
suggested agenda and request for Carl Moyer drayage project
documentation.'' See also email dated September 9, 2020 from Austin
Hicks, CARB, to Rebecca Newhouse, EPA Region IX, Subject: ``RE:
Follow-up on SJV PM<INF>2.5</INF> Plan ag equipment inventory
question'' (noting that, ``[i]n the forecast, equipment populations
are subject to a survival curve, developed by equipment type,
equipment horsepower, and the size of the farm where it is used.
Retirement trends vary from very aggressive on the largest farms
(useful life of 10 years), to very slow on the smallest farms
(useful life up to 40 to 50 years). Retired vehicles are modeled as
being replaced by new and used equipment, again depending on
equipment type, size and farm size parameters. The largest farms
purchase almost exclusively new equipment, while the smallest farms
purchase 10-30 year old equipment in most cases.'')
To illustrate, CARB provided a figure showing baseline projected
NO<INF>X</INF> emissions from 2015-2049 for three different scenarios:
a projection reflecting only natural turnover, a projection including
existing incentive projects, and a projection including both existing
and anticipated future incentive projects.\45\ The downward slopes of
the two curves that include incentive projects are initially steeper
than the projection reflecting only natural turnover, indicating that
incentive projects result in accelerated turn-over of vehicles compared
to business as usual. We find the documentation in the SJV
PM<INF>2.5</INF> Plan and additional information provided by CARB
sufficient to confirm that the baseline emissions projections for off-
road diesel agricultural equipment sources in the SJV PM<INF>2.5</INF>
Plan do not account for emission reductions to be achieved through
implementation of the Amended Valley Incentive Measure.
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\45\ Email dated November 13, 2020 from Austin Hicks, CARB, to
Rebecca Newhouse, EPA Region IX, Subject: ``RE: 9/10 meeting:
suggested agenda and request for Carl Moyer drayage project
documentation.''
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The attainment control strategy in the SJV PM<INF>2.5</INF> Plan
also does not specifically rely on implementation of Carl Moyer or
FARMER projects for SIP emission reduction credit. As explained in the
EPA's proposed rule to approve relevant portions of the SJV
PM<INF>2.5</INF> Plan for 2006 PM<INF>2.5</INF> NAAQS purposes, the
majority of the NO<INF>X</INF> emission reductions needed for
attainment of the 2006 PM<INF>2.5</INF> NAAQS in the SJV by 2024 come
from baseline measures, none of which rely on implementation of Carl
Moyer or FARMER projects.\46\ For the remainder of the NO<INF>X</INF>
reductions necessary for attainment of the 2006 PM<INF>2.5</INF> NAAQS
by 2024, the SJV PM<INF>2.5</INF> Plan relies primarily on CARB's and
the District's enforceable commitments to achieve additional emission
reductions, in the aggregate, through implementation of new or revised
measures by the beginning of 2024.\47\ The SJV PM<INF>2.5</INF> Plan
also relies on these same enforceable commitments by CARB and the
District to achieve the additional emission reductions needed for
attainment of the 2012 PM<INF>2.5</INF> NAAQS by 2025.\48\ The SJV
PM<INF>2.5</INF> Plan indicates that CARB anticipates fulfilling a
portion of these emission reduction commitments through implementation
of incentive funds for off-road diesel agricultural equipment,\49\ but
the plan does not specifically credit any incentive program with
emission reductions, as the EPA has not previously approved any
incentive-
[[Page 73112]]
based control measure for SIP credit in this plan.\50\ Thus, the
Amended Valley Incentive Measure is the first incentive-based control
measure to be approved into the SJV PM<INF>2.5</INF> Plan and will
achieve emission reductions beyond those already credited in this plan.
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\46\ 85 FR 17382, 17410-17415 (March 27, 2020) and EPA Region
IX, Technical Support Document, ``EPA General Evaluation, San
Joaquin Valley PM<INF>2.5</INF> Plan for the 2006 PM<INF>2.5</INF>
NAAQS,'' February 2020, section V (identifying SIP-approved District
rules credited in the SJV PM<INF>2.5</INF> Plan's future baseline
emissions estimates and attainment control strategy).
\47\ 85 FR 17382, 17410-17415 and 85 FR 44192, 44198 and 44204
(July 22, 2020) (Response 3.A and Table 1). CARB's and the
SJVUAPCD's aggregate tonnage commitments are codified in 40 CFR
52.220(c)(536)(ii)(A)(2) and 52.220(c)(537)(ii)(B)(3).
\48\ 2018 PM<INF>2.5</INF> Plan, Chapter 4, Section 4.4 (``CARB
Emission Reduction Commitment for the San Joaquin Valley'') and
Valley State SIP Strategy, Chapter 3 (``Supplemental State
Commitment from the Proposed State Measures for the Valley'').
\49\ 2018 PM<INF>2.5</INF> Plan, Chapter 4, Table 4-8 and Table
4-9 (identifying CARB measures scheduled for action and
implementation in the San Joaquin Valley) and 85 FR 17382, 17414
(Table 7, ``Status of CARB Compliance with Control Measure
Commitments for the San Joaquin Valley--Continued'').
\50\ 85 FR 44192, 44198-44199.
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Although the EPA did not previously credit the Amended Valley
Incentive Measure toward the control strategy in the SJV
PM<INF>2.5</INF> Plan, our approval of this measure represents progress
in CARB's implementation of the SIP-approved control strategy in this
plan. In addition to specific emission reduction commitments for 2024
and 2025, the SJV PM<INF>2.5</INF> Plan contains commitments by CARB to
bring certain defined measures, including a proposed incentive-based
measure for agricultural equipment, to the Board for consideration
according to the schedule set forth in the plan.\51\ CARB's adoption,
implementation, and submission of the Valley Incentive Measure achieves
a portion of CARB's aggregate NO<INF>X</INF> and PM<INF>2.5</INF>
emission reduction commitments in the SIP (specifically, 4.83 and 4.46
tpd of CARB's NO<INF>X</INF> reduction commitments and 0.24 and 0.26
tpd of CARB's PM<INF>2.5</INF> reduction commitments for 2024 and 2025,
respectively),\52\ and satisfies the State's commitment to bring a
proposed incentive-based measure for agricultural equipment to the
Board for consideration.
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\51\ 40 CFR 52.220(c)(536)(ii)(A)(2) (referencing CARB
Resolution 18-49 (October 25, 2018) and attachments) and Valley
State SIP Strategy, 35-38 (identifying CARB measures scheduled for
action and implementation in the San Joaquin Valley); see also 85 FR
17382, 17413-17414 (Table 7, ``Status of CARB Compliance with
Control Measure Commitments for the San Joaquin Valley).
\52\ See footnotes 16 and 28, supra.
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Earthjustice contends that the EPA must explain how the emission
reductions achieved through implementation of the Valley Incentive
Measure are ``surplus to the various other voluntary emission
reductions relied upon in the SIP.'' As stated above, however, to
satisfy the surplus criterion in the EPA's longstanding guidance, the
Amended Valley Incentive Measure need only be surplus to the control
measures and programs that are credited toward the attainment control
strategies in the 2006 NAAQS Plan and 2012 NAAQS Plan. The SJV
PM<INF>2.5</INF> Plan identifies 33 District measures achieving direct
PM<INF>2.5</INF> and/or NO<INF>X</INF> emissions reductions that
support attainment of the PM<INF>2.5</INF> NAAQS in the San Joaquin
Valley.\53\ With the exception of SJVUAPCD Rule 4320, none of the
programs or regulations cited by Earthjustice (i.e., SJVUAPCD Rule
3170, mitigation funds related to the Kern County Program EIR, SJVUAPCD
Rule 4694, or SJVUAPCD Rule 2201) is included among these 33 baseline
measures.\54\ Because these programs and regulations are not part of
the attainment control strategy in either the 2006 NAAQS Plan or the
2012 NAAQS Plan, they are not relevant to our evaluation of the Amended
Valley Incentive Measure.\55\
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\53\ 2018 PM<INF>2.5</INF> Plan, Ch. 4, Table 4-1, Table 4-2,
Table 4-3, and App. C.
\54\ Id. See also EPA, ``Technical Support Document, General
Evaluation, San Joaquin Valley Plan for the 2006 PM<INF>2.5</INF>
NAAQS,'' February 2020 (``General Evaluation TSD''), section V
(listing baseline measures contributing to attainment of 2006
PM<INF>2.5</INF> NAAQS but not including SJVUAPCD Rule 3170,
mitigation funds related to Kern County Program EIR, SJVUAPCD Rule
4694, or SJVUAPCD Rule 2201). We note also that the stated purpose
of SJVUAPCD Rule 3170 is to address CAA requirements for the ozone
NAAQS, not the PM<INF>2.5</INF> NAAQS. See Rule 3170, section 1.0
(``The purpose of this rule is to satisfy requirements specified in
Section 185 and Section 182(f) of the 1990 amendments to the federal
Clean Air Act . . .'').
\55\ Even if these programs and regulations rely to some extent
on Carl Moyer projects, our approval of the Valley Incentive Measure
does not constitute ``double-counting'' of SIP emission reductions
because these programs and regulations are not part of the
attainment control strategy in the SJV PM<INF>2.5</INF> Plan.
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SJVUAPCD Rule 4320 is identified as a baseline control measure in
the SJV PM<INF>2.5</INF> Plan.\56\ The EPA approved Rule 4320, adopted
October 16, 2008, into the California SIP on March 25, 2011, but noted
that the rule did not qualify for SIP credit for attainment planning
purposes until the District submitted adequate supporting
documentation.\57\ Although the SJV PM<INF>2.5</INF> Plan relies on
NO<INF>X</INF> and PM<INF>2.5</INF> emission reductions from Rule 4320,
which is not eligible for SIP credit at this time, the District's
inclusion of this rule in the attainment control strategy for the 2006
NAAQS Plan has no material effect on our evaluation of that attainment
demonstration or the Amended Valley Incentive Measure because the
emission reductions attributed to Rule 4320 are de minimis. According
to the District's control strategy analysis in Appendix C of the 2018
PM<INF>2.5</INF> Plan, the District has attributed 0.60 and 0.21 tpd of
NO<INF>X</INF> and PM<INF>2.5</INF> emission reductions, respectively,
to Rule 4320 in 2024,\58\ amounting to 0.3 percent of the total
NO<INF>X</INF> reductions and 3.3 percent of the total PM<INF>2.5</INF>
reductions necessary for attainment of the 2006 PM<INF>2.5</INF> NAAQS
by 2024.\59\ Similarly, the District has attributed 0.64 and 0.23 tpd
of NO<INF>X</INF> and PM<INF>2.5</INF> emission reductions,
respectively, to Rule 4320 in 2025,\60\ amounting to 0.3 percent of the
total NO<INF>X</INF> reductions and 3.6 percent of the total
PM<INF>2.5</INF> reductions necessary for attainment of the 2012
PM<INF>2.5</INF> NAAQS by 2025.\61\ These amounts of emission
reductions have a de minimis impact on our evaluation of the relevant
attainment demonstrations and of the Amended Valley Incentive Measure.
Moreover, the commenter has provided no support for a conclusion that
Rule 4320 relies on implementation of Carl Moyer or FARMER projects,
nor any support for a conclusion that the NO<INF>X</INF> or
PM<INF>2.5</INF> emission reductions attributed to this rule in the SJV
PM<INF>2.5</INF> Plan include emission reductions from such incentive
projects.\62\ We have no information before us indicating that
[[Page 73113]]
either Rule 4320 or the attainment demonstration in the SJV
PM<INF>2.5</INF> Plan relies on any Carl Moyer or FARMER project that
may also be used to satisfy the tonnage commitments in the Amended
Valley Incentive Measure--i.e., that there is any double-counting of
emission reductions from the same incentive projects in this plan.
Accordingly, we disagree with Earthjustice's suggestion that the
Amended Valley Incentive Measure fails to meet the surplus
(additionality) criterion because of the SJV PM<INF>2.5</INF> Plan's
reliance on Rule 4320 as a baseline control measure.
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\56\ 2018 PM<INF>2.5</INF> Plan, Chapter 4, Table 4-1 and Table
4-2 (identifying baseline District regulations that reduce
particulate matter and NO<INF>X</INF> emissions in the San Joaquin
Valley).
\57\ 76 FR 16696 (March 25, 2011) and EPA, Region IX Air
Division, ``Technical Support Document for EPA's Notice of Proposed
Rulemaking for the California State Implementation Plan, San Joaquin
Valley Unified Air Pollution Control District's Rule 4320, Advanced
Emission Reduction Options for Boilers, Steam Generators and Process
Heaters Greater than 5.0 MMbtu/hr,'' August 19, 2010.
\58\ 2018 PM<INF>2.5</INF> Plan, Appendix C, C-69 (showing 0.60
tpd NO<INF>X</INF> reductions and 0.21 tpd PM<INF>2.5</INF>
reductions (winter average tpd) between 2013 base year and 2024
attainment year).
\59\ The 2018 PM<INF>2.5</INF> Plan shows that 202.2 tpd of
NO<INF>X</INF> reductions and 6.4 tpd of PM<INF>2.5</INF> reductions
from base year (2013) levels are necessary for the San Joaquin
Valley to attain the 2006 PM<INF>2.5</INF> NAAQS by December 31,
2024. 2018 PM<INF>2.5</INF> Plan, revised App. H, Table H-6. Thus,
rounding to the nearest tenth of a decimal, 0.6 tpd of
NO<INF>X</INF> reductions constitutes 0.3 percent of the necessary
NO<INF>X</INF> reductions (0.6/202.2), and 0.21 tpd of
PM<INF>2.5</INF> reductions constitutes 3.3 percent of the necessary
PM<INF>2.5</INF> reductions (0.21/6.4).
\60\ 2018 PM<INF>2.5</INF> Plan, Appendix C, C-69 (showing 0.64
tpd NO<INF>X</INF> reductions and 0.23 tpd PM<INF>2.5</INF>
reductions (winter average tpd) between 2013 base year and 2024
attainment year).
\61\ The 2018 PM<INF>2.5</INF> Plan shows that 207.4 tpd of
NO<INF>X</INF> reductions and 6.4 tpd of PM<INF>2.5</INF> reductions
from base year (2013) levels are necessary for the San Joaquin
Valley to attain the 2012 PM<INF>2.5</INF> NAAQS by December 31,
2025. 2018 PM<INF>2.5</INF> Plan, revised App. H, Table H-6. Thus,
rounding to the nearest tenth of a decimal, 0.64 tpd of
NO<INF>X</INF> reductions constitutes 0.3 percent of the necessary
NO<INF>X</INF> reductions (0.64/202.2), and 0.23 tpd of
PM<INF>2.5</INF> reductions constitutes 3.6 percent of the necessary
PM<INF>2.5</INF> reductions (0.23/6.4).
\62\ Rule 4320 requires that all emission units subject to the
rule comply with one of three sets of requirements: (1) Emission
limits and other control requirements for NO<INF>X</INF>, carbon
monoxide (CO), and particulate matter (PM) specified in sections 5.2
and 5.4 of the rule, (2) PM control requirements in section 5.4 of
the rule and a requirement to pay an annual emissions fee to the
District as specified in section 5.3 of the rule, or (3) applicable
``Low-use Unit'' requirements in section 5.5 of the rule. SJVUAPCD
Rule 4320 (adopted October 16, 2008), section 5.1. To the extent the
commenter intended to argue that section 5.3.2 of Rule 4320, the
provision that allows sources to pay fees in lieu of installing
advanced NO<INF>X</INF> controls, relies on implementation of Carl
Moyer or FARMER projects, this comment is unsubstantiated. See id.
at section 5.3.2 (requiring continued payment of annual fees in
accordance with section 5.3.1 ``until the unit either is permanently
removed from use in the San Joaquin Valley Air Basin . . . or the
operator demonstrates compliance with the applicable NO<INF>X</INF>
emission limits shown in Table 2'').
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Finally, under California State law, Carl Moyer funding is
generally prohibited for any project that is required by any local,
state, or federal statute, rule, regulation, memoranda of agreement or
understanding, or other legally binding document in effect as of the
date the grant is awarded.\63\ CARB states in the Demonstration that
all emission reductions associated with turning over older and dirtier
agricultural equipment to cleaner equipment are ``surplus to District
and State regulations because agricultural equipment is not subject to
any District or State regulation.'' \64\ CARB also identifies in the
Demonstration those portions of the 2011 and 2017 Carl Moyer Guidelines
that ensure that funding will be provided only to those projects that
achieve emission reductions beyond those required by local, state, or
federal requirements or other legally binding documents.\65\ Because
the FARMER projects relied on in the Amended Valley Incentive Measure
\66\ are subject to the 2017 Carl Moyer Guidelines, CARB's rationale
for finding that the identified Carl Moyer projects achieve surplus
emission reductions also applies to the identified FARMER projects.\67\
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\63\ Ca. HSC, Division 26, Part 5, Chapter 9, Article 3, section
44281(b) (prohibiting Carl Moyer funding for an otherwise qualified
project if it is ``required by any local, state, or federal statute,
rule, regulation, memoranda of agreement or understanding, or other
legally binding document, except that an otherwise qualified project
may be funded even if the [SIP] assumes that the change in
equipment, vehicles, or operations will occur, if the change is not
required by a statute, regulation, or other legally binding document
in effect as of the date the grant is awarded'').
\64\ Demonstration, 19.
\65\ Demonstration, 19-21.
\66\ The Valley Incentive Measure relies on FARMER projects for
off-road diesel agricultural equipment post-inspected from September
1, 2018 to December 31, 2023. TSD, 16.
\67\ Demonstration, 43-45. See also TSD, 16-17 (noting that the
EPA's evaluation of the 2017 Carl Moyer Guidelines applies equally
to the FARMER projects identified in the Valley Incentive Measure).
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For all of these reasons, we find that the Amended Valley Incentive
Measure achieves ``surplus'' emission reductions--i.e., emission
reductions beyond those already credited in the SJV PM<INF>2.5</INF>
Plan.
Comment 2: Earthjustice states that the Valley Incentive Measure
does not satisfy the enforceability requirements in section
110(a)(2)(A) of the CAA. Citing the EPA's Memo to Docket for a
rulemaking entitled ``State Implementation Plans: Response to Petition
for Rulemaking; Finding of Substantial Inadequacy; and SIP Calls to
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction,'' Earthjustice states that to be
``enforceable,'' a measure must be enforceable by the state, the EPA,
and citizens. Earthjustice also states that the mere approval of a
measure into the SIP does not convert an unenforceable provision into
an enforceable one, and that the EPA's SIP rulemaking must explain how
the proposed measure can be enforced. According to Earthjustice, the
EPA's proposed rule to approve the Valley Incentive Measure has not
provided a legally defensible analysis of how this rule is enforceable.
Response 2: We agree with Earthjustice's statement that the mere
approval of a measure into the SIP does not convert an unenforceable
provision into an enforceable one, but we disagree with Earthjustice's
claim that CARB's commitments in the Valley Incentive Measure are not
enforceable. We explain below how the EPA and citizens may enforce the
provisions of CARB's SIP commitments in the Amended Valley Incentive
Measure. We respond to Earthjustice's more specific comments concerning
enforceability in our responses to comments 3 through 12. We note that
our evaluation here is limited to CARB's commitments in the Amended
Valley Incentive Measure and that the EPA will review each incentive-
based control measure submitted by a state on a case-by-case basis,
following notice-and-comment rulemaking, to determine whether the
applicable requirements of the Act are met.
Under CAA section 110(a)(2)(A), SIPs must include enforceable
emission limitations and other control measures, means or techniques
necessary to meet the requirements of the Act, as well as timetables
for compliance. Similarly, section 172(c)(6) provides that
nonattainment area SIPs must include enforceable emission limitations
and such other control measures, means or techniques as may be
necessary or appropriate to provide for attainment of the NAAQS by the
applicable attainment date.
Control measures, including commitments in SIPs, are enforced
through CAA section 304(a), which provides for citizen suits to be
brought against any ``person,'' including a state,\68\ who is alleged
``to be in violation of . . . an emission standard or limitation. . .
.'' ``Emission standard or limitation'' is defined in subsection (f) of
section 304.\69\ As observed in Conservation Law Foundation, Inc. v.
James Busey et al., 79 F.3d 1250, 1258 (1st Cir. 1996):
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\68\ CAA section 302(e) (defining ``person'' to include a State
or political subdivision thereof).
\69\ Section 304(f) of the CAA defines ``emission standard or
limitation,'' in relevant part, to mean ``a schedule or timetable of
compliance'' which is in effect under the Act ``or under an
applicable implementation plan.'' Section 302(p) of the Act defines
``schedule and timetable of compliance'' to mean ``a schedule of
required measures including an enforceable sequence of actions or
operations leading to compliance with an emission limitation, other
limitation, prohibition, or standard.'' Section 302(q) of the Act
defines ``[a]pplicable implementation plan,'' in relevant part, as
``the portion (or portions) of the implementation plan, or most
recent revision thereof, which has been approved under section 110
of [title I of the Act] . . . and which implements the relevant
requirements of [the Act].''
Courts interpreting citizen suit jurisdiction have largely
focused on whether the particular standard or requirement plaintiffs
sought to enforce was sufficiently specific. Thus, interpreting
citizen suit jurisdiction as limited to claims ``for violations of
specific provisions of the act or specific provisions of an
applicable implementation plan,'' the Second Circuit held that suits
can be brought to enforce specific measures, strategies, or
commitments designed to ensure compliance with the NAAQS, but not to
enforce the NAAQS directly. See, e.g., Wilder, 854 F.2d at 613-14.
Courts have repeatedly applied this test as the linchpin of citizen
suit jurisdiction. See, e.g., Coalition Against Columbus Ctr. v.
City of New York, 967 F.2d 764, 769-71 (2d Cir. 1992); Cate v.
Transcontinental Gas Pipe Line Corp., 904 F. Supp. 526, 530-32 (W.D.
Va. 1995); Citizens for a Better Env't v. Deukmejian, 731 F. Supp.
---------------------------------------------------------------------------
1448, 1454-59 (N.D. Cal.), modified, 746 F. Supp. 976 (1990).
Thus, courts have found that the citizen suit provision cannot be
used to enforce the aspirational goal of attaining the NAAQS but can be
used to enforce specific strategies to achieve that goal.\70\
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\70\ See also Committee for a Better Arvin, et al. v. EPA, 786
F.3d 1169, 1181 (9th Cir. 2015) (finding that California's
commitments to propose and adopt emission control measures and to
achieve aggregate emission reductions are enforceable ``emission
standards or limitations'' under the CAA).
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SIP control measures and commitments may also be enforced by the
EPA under section 113(a)(1) of the Act, which authorizes the EPA to
issue notices and compliance orders, assess administrative penalties,
and bring civil actions against any ``person,'' including a state, who
``has violated or is in
[[Page 73114]]
violation of any requirement or prohibition of an applicable
implementation plan. . . .'' \71\
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\71\ CAA section 113(a)(1)-(2) (establishing EPA's SIP
enforcement authorities), section 302(e) (defining ``person'' to
include a state or political subdivision thereof), and section
302(q) (defining ``applicable implementation plan'' to include the
portion(s) of the implementation plan approved under CAA section 110
that implement relevant CAA requirements).
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CARB's commitments in the Amended Valley Incentive Measure are set
forth on pages 7-12 of CARB Resolution 19-26 (December 12, 2019), as
amended and clarified by the Technical Corrections Document and the
2021 Clarification Document.\72\ We refer to these submissions
collectively as the ``Amended Valley Incentive Measure.'' The portions
of CARB's commitments in the Amended Valley Incentive Measure that we
are approving in this rule include seven key components, as summarized
below:
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\72\ CARB Resolution 19-26, ``San Joaquin Valley Agricultural
Incentive Measure'' (December 12, 2019), 7-12, and Executive Order
S-20-031, ``Adoption and Submittal of Technical Clarifications and
Typographical Error Corrections to the San Joaquin Valley
Agricultural Equipment Incentive Measure'' (November 23, 2020)
(hereafter ``Technical Corrections Document'').
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(1) Commitments to monitor the District's implementation of
estimated numbers of Carl Moyer and FARMER projects in accordance with
specified portions of the relevant program guidelines;
(2) commitments to achieve specific amounts of NO<INF>X</INF> and
PM<INF>2.5</INF> emissions reductions in the San Joaquin Valley by 2024
and 2025 through implementation of the identified types of incentive
projects or through adoption and submission of substitute control
measures (hereafter ``tonnage commitments'');
(3) commitments to submit reports to the EPA by May 15 each year
from 2021 through 2025, each of which must include specific information
about the incentive projects funded through the previous year and state
CARB's determination of whether the identified projects are expected to
fulfill the NO<INF>X</INF> and PM<INF>2.5</INF> tonnage commitments
(hereafter ``annual demonstration reports'');
(4) commitments to make the annual demonstration reports available
on CARB's website and to the public upon request, by May 15 of each
year from 2021 to 2030, and to maintain all annual demonstration
reports through December 31, 2030;
(5) commitments to provide to the public, upon request, certain
project-specific documents relied upon in the preparation of CARB's
annual demonstration reports, including project applications, grant
contracts, and inspection-related documents;
(6) if CARB is relying on any substitute incentive projects to
fulfill the tonnage commitments, commitments to confirm that all such
substitute incentive projects are subject to the program criteria
identified in the Amended Valley Incentive Measure and to provide
specific information about each substitute project in the relevant
annual demonstration report(s); and
(7) commitments to adopt and submit substitute measures or rules to
the EPA by a date certain, if the EPA determines that information
submitted by CARB is insufficient to demonstrate that the emission
reductions necessary to fulfill the tonnage commitments for a given
year will occur on schedule.\73\
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\73\ Id. We use the shorthand term ``insufficiency finding'' to
refer to a determination by the EPA that information submitted by
CARB is insufficient to demonstrate that CARB will fulfill the
tonnage commitment on schedule. An insufficiency finding by the EPA
triggers CARB's obligation, under the terms of paragraphs A.5 and
A.6 of CARB Resolution 19-26, to adopt and submit substitute
measures or rules that address any shortfall in required emission
reductions.
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CARB states in the Demonstration that ``CARB is the responsible
party for enforcement of this measure and is responsible for achieving
the emission reductions from this measure,'' thus expressing CARB's
decision to voluntarily commit itself to fulfilling the tonnage
commitment and to being held accountable for failure to fulfill this
commitment.\74\
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\74\ Demonstration, 29 and 52.
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Upon the EPA's approval of these commitments into the SIP under CAA
section 110, the commitments will become federally enforceable
requirements of an ``applicable implementation plan'' as defined in CAA
section 302(q). Therefore, as discussed below, both citizens and the
EPA may enforce these commitments under CAA sections 304(a)(1) and
113(a)(1), respectively. We describe each enforceable component of the
Amended Valley Incentive Measure below.
First, the Amended Valley Incentive Measure obligates CARB to
monitor the District's implementation of estimated numbers of Carl
Moyer and FARMER projects in accordance with specified portions of the
relevant program guidelines.\75\ The Carl Moyer and FARMER program
guidelines \76\ enable CARB to carry out these oversight
responsibilities by requiring, among other things, that air districts
(1) maintain, for specified periods of time, all project-related
documentation obtained from participating sources and through the air
district's on-site project inspections; \77\ (2) make such documents
available to CARB staff during CARB's periodic ``incentive program
reviews'' and upon request; \78\ (3) submit a certified ``yearly
report'' to CARB containing specific information about funded projects,
including information sufficient to calculate emission reductions and
cost-effectiveness for source categories where required; \79\ and
[[Page 73115]]
(4) allow CARB and its designees to conduct fiscal audits and to
inspect project engines, vehicles, and/or equipment and associated
records during the contract term.\80\ The Carl Moyer Guidelines also
specifically identify types of actions on the part of the implementing
air district that CARB may treat as violations of program
requirements--e.g., misuse of Carl Moyer program funds to fund
ineligible projects and insufficient, incomplete, or inaccurate project
documentation \81\--and authorize CARB to enforce the terms of a
project contract at any time during the contract term to ensure that
emission reductions are achieved.\82\ If CARB fails to document in each
annual demonstration report the steps it has taken to exercise these
monitoring responsibilities, that failure would constitute a violation
of the SIP commitment. See Response 4.
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\75\ CARB Resolution 19-26, sections B and D. CARB is required
under California law to monitor air district implementation of Carl
Moyer projects to ensure compliance with the applicable guidelines.
California Health & Safety Code (Ca. HSC) section 44291(d)
(requiring CARB to ``monitor district programs to ensure that
participating districts conduct their programs consistent with the
criteria and guidelines established by the state board and the
commission pursuant to this chapter'').
\76\ All FARMER projects that CARB relies on to comply with the
Valley Incentive Measure are subject to the 2017 Carl Moyer
Guidelines, future approved guidelines, and current and future
program advisories and mail-outs, except as modified by CARB. TSD,
16-17. See also Demonstration, 43-45 and 2018 FARMER Guidelines, 17-
18. Therefore, references herein to the 2017 Carl Moyer Guidelines
apply to both Carl Moyer projects and FARMER projects. Should CARB
revise the 2018 FARMER Guidelines at any point before May 15, 2025,
it will be obligated under paragraph D.2 of CARB Resolution 19-26 to
provide, in the annual demonstration report for the relevant year, a
``description of any changes to the 2018 FARMER Guidelines and their
related impacts on program integrity.'' TSD, 17 (referencing Valley
Incentive Measure, 11 (CARB Resolution 19-26, para. D.2)).
\77\ The Carl Moyer Guidelines require that each implementing
air district maintain a file for each funded project (a ``project
file'') that includes, among other things, a copy of the
application, a copy of the executed project contract and any related
amendments, photographic and other documentation of the baseline
(replaced) engine, vehicle, or equipment, and photographic and other
documentation of the new engine, vehicle, or equipment. See, e.g.,
2011 Carl Moyer Guidelines, Part I, Chapter 3, Section W
(``Application Evaluation and Project Selection''), para. 6; Section
V (``Minimum Project Application Requirements''); Section Y
(``Minimum Contract Requirements''); Section Z (``Project Pre-
Inspection''); and Section AA (``Project Post-Inspection''). Air
districts must generally maintain each project file for at least
three years after the end of the contract term. Id. at Section U
(``ARB Program Oversight''), para. 5.A. See also similar provisions
in 2017 Carl Moyer Guidelines, Volume I, Part 1, Chapter 3, Section
S (``Requirements for Project Applications''), para. 2; Section T
(``Application Evaluation and Project Selection''), paras. 1 and 8;
Section V (``Minimum Contract Requirements''); Section W (``Project
Pre-Inspection''); and Section X (``Project Post-Inspection'').
\78\ See, e.g., 2011 Carl Moyer Guidelines, Part I, Chapter 3,
Section R (``Yearly Report''), para. 3.C (requiring that air
districts make project-specific documents available to CARB upon
request) and Section U (``ARB Program Oversight''), para. 5.A
(requiring that air districts make project files readily available
to CARB staff during program reviews) and 2017 Carl Moyer
Guidelines, Volume I, Part 1, Chapter 3, Section M (``Yearly
Report''), para. 4 and Section R (``Incentive Program Review''),
para. 5.
\79\ See, e.g., 2011 Carl Moyer Guidelines, Part I, Chapter 3,
Section R (``Yearly Report'') and 2017 Carl Moyer Guidelines, Volume
I, Part 1, Chapter 3, Section M (``Yearly Report'').
\80\ See, e.g., 2011 Carl Moyer Guidelines, Part I, Chapter 3,
Section Y (``Minimum Contract Requirements''), para. 10 and 2017
Carl Moyer Guidelines, Volume I, Part 1, Chapter 3, Section V
(``Minimum Contract Requirements''), para. 10.
\81\ 2011 Carl Moyer Guidelines, Part I, Chapter 3, Section U
(``Program Non-Performance'') and 2017 Carl Moyer Guidelines, Volume
I, Part 1, Chapter 3, Section Q (``Program Nonperformance'').
\82\ 2011 Carl Moyer Guidelines, Part I, Chapter 3, Section Y
(``Minimum Contract Requirements'') and 2017 Carl Moyer Guidelines,
Volume I, Part 1, Chapter 3, Section V (``Minimum Contract
Requirements''), para. 11 (``Repercussions for Nonperformance'').
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Second, the Amended Valley Incentive Measure obligates CARB to
achieve, by December 31, 2023, a total of 4.83 tpd of reductions in
NO<INF>X</INF> emissions and 0.24 tpd of reductions in PM<INF>2.5</INF>
emissions from the 2024 baseline inventory in the 2018 PM<INF>2.5</INF>
Plan through implementation of (a) the Carl Moyer and FARMER projects
identified in sections B and D of the commitment, (b) substitute
incentive projects consistent with paragraph A.4 of the commitment, or
(c) other substitute control measures adopted and submitted to the EPA
in accordance with paragraph A.5 of the commitment.\83\ If CARB fails
to achieve these amounts of NO<INF>X</INF> and PM<INF>2.5</INF>
emission reductions by December 31, 2023, through implementation of
incentive projects or substitute control measures that meet the
identified criteria, that failure would constitute a violation of the
SIP commitment.
---------------------------------------------------------------------------
\83\ CARB Resolution 19-26, para. A.1.
---------------------------------------------------------------------------
Similarly, the Amended Valley Incentive Measure obligates CARB to
achieve, by December 31, 2024, a total of 4.46 tpd of reductions in
NO<INF>X</INF> emissions and 0.26 tpd of reductions in PM<INF>2.5</INF>
emissions from the 2025 baseline inventory in the 2018 PM<INF>2.5</INF>
Plan, through implementation of (a) the Carl Moyer and FARMER projects
identified in sections B and D of the commitment, (b) substitute
incentive projects consistent with paragraph A.4 of the commitment, or
(c) other substitute control measures adopted and submitted in
accordance with paragraph A.6 of the commitment.\84\ If CARB fails to
achieve these amounts of NO<INF>X</INF> and PM<INF>2.5</INF> emission
reductions by December 31, 2024, through implementation of incentive
projects or substitute control measures that meet the identified
criteria, that failure would constitute a violation of the SIP
commitment.
---------------------------------------------------------------------------
\84\ Id. at para. A.2.
---------------------------------------------------------------------------
Third, the Amended Valley Incentive Measure obligates CARB to
submit annual demonstration reports to the EPA by May 15 each year from
2021 through 2025, each of which must contain specific information
about the incentive projects funded through the previous year and state
CARB's determination of whether the identified projects are projected
to fulfill the NO<INF>X</INF> and PM<INF>2.5</INF> tonnage commitments
for 2024 and 2025.\85\ If CARB fails to timely submit an annual
demonstration report containing all of the information listed in
paragraphs A.3, B.2 and D.2 of the Amended Valley Incentive Measure,
that failure would constitute a violation of the SIP commitment.
---------------------------------------------------------------------------
\85\ Id. at paras. A.3., B.2., and D.2.
---------------------------------------------------------------------------
Fourth, the Amended Valley Incentive Measure obligates CARB to make
the annual demonstration reports available on CARB's website and to the
public upon request, by May 15 of each year from 2021 to 2030, and to
maintain all annual demonstration reports through December 31,
2030.\86\ If CARB fails to make any of these reports available on its
website or available upon request by May 15 of the relevant year, that
failure would constitute a violation of the SIP commitment.
---------------------------------------------------------------------------
\86\ Id. at paras. B.3. and D.3. CARB's commitment is to submit
annual demonstration reports by May 15 of each year from 2021 to
2025, and thereafter to maintain all such reports through December
31, 2030 so that they are available to the public upon request.
---------------------------------------------------------------------------
Fifth, the Amended Valley Incentive Measure obligates CARB to
provide to any requestor, beginning May 15, 2021, and through 2029,
certain project-specific documents relied upon in the preparation of
CARB's annual demonstration reports, including project applications,
grant contracts, and inspection-related documents.\87\ If CARB fails to
provide any of these project records within a reasonable period after
receiving a request, that failure would constitute a violation of the
SIP commitment.
---------------------------------------------------------------------------
\87\ CARB Resolution 19-26, paras. B.5 and D.5 (added by
Technical Corrections Document, paras. 7 and 11).
---------------------------------------------------------------------------
Sixth, the Amended Valley Incentive Measure obligates CARB to
provide, in each annual demonstration report, confirmation that any
substitute incentive projects that it relies on to fulfill the tonnage
commitments are subject to the program criteria identified in paragraph
B.1 or D.1 of the commitment and to provide specific information about
each substitute project.\88\ If CARB fails to submit such information
in any annual demonstration report that documents CARB's reliance on
substitute incentive projects, that failure would constitute a
violation of the SIP commitment.
---------------------------------------------------------------------------
\88\ CARB Resolution 19-26, para. A.4. For example, if CARB
chooses to monitor implementation of 2,500 Carl Moyer projects by
2024 (109 more than its estimate of 2,391 such projects, see para.
B.1 of CARB Resolution 19-26) and to monitor 1,900 FARMER projects
by 2024 (112 less than its estimate of 2,012 such projects, see
para. D.1 of CARB Resolution 19-26), CARB must identify the
additional 109 Carl Moyer projects as ``substitute projects'' in the
relevant annual demonstration report(s) and provide all of the
information required by para. A.4 of CARB Resolution 19-26
pertaining to these projects.
---------------------------------------------------------------------------
Finally, if the EPA determines by August 1, 2022, that information
submitted by CARB is insufficient to demonstrate that the emission
reductions necessary to fulfill the 2024 tonnage commitments will occur
on schedule, the Amended Valley Incentive Measure obligates CARB to
adopt and submit to the EPA, no later than September 1, 2023,
substitute measures or rules that will achieve emission reductions
addressing the shortfall as expeditiously as practicable and no later
than January 1, 2024.\89\ If CARB fails to adopt and submit timely
substitute measures or rules sufficient to address a shortfall in
required emission reductions, that failure would constitute a violation
of the SIP commitment.
---------------------------------------------------------------------------
\89\ Id. at para. A.5.
---------------------------------------------------------------------------
Similarly, if the EPA determines by August 1, 2023, that
information submitted by CARB is insufficient to demonstrate that the
emission reductions necessary to fulfill the 2025 tonnage commitments
will occur on schedule, the Amended Valley Incentive Measure obligates
CARB to adopt and submit to the EPA, no later than September 1, 2024,
substitute measures or rules that will achieve emission reductions
addressing the shortfall as expeditiously as practicable and no later
than January 1, 2025.\90\ If CARB fails to adopt and submit timely
substitute measures or rules sufficient to address a shortfall in
required emission
[[Page 73116]]
reductions, that failure would constitute a violation of the SIP
commitment.
---------------------------------------------------------------------------
\90\ Id. at para. A.6.
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This series of actions mandated by the Amended Valley Incentive
Measure constitutes a specific enforceable strategy for achieving
specific amounts of NO<INF>X</INF> and PM<INF>2.5</INF> reductions by
the beginning of 2024 and 2025. The fact that CARB may meet its SIP
commitments by adopting measures that are not specifically identified
in the SIP, or through one of several available techniques, does not
render the requirement to achieve the emissions reductions
unenforceable.\91\
---------------------------------------------------------------------------
\91\ Citizens for a Better Environment v. Deukmejian, 731 F.
Supp. 1448, 1454-59 (N.D. Cal.) (``the basic commitment to adopt and
implement additional measures, should the identified conditions
occur, constitutes a specific strategy, fully enforceable in a
citizens action, although the exact contours of those measures are
not spelled out''), modified, 746 F. Supp. 976 (1990) (holding state
and district liable for failing to satisfy SIP commitment).
---------------------------------------------------------------------------
For all of these reasons, we conclude that CARB's commitments in
the Amended Valley Incentive Measure to monitor and report annually on
the implementation of specific types of incentive projects, to achieve
specified tonnages of NO<INF>X</INF> and PM<INF>2.5</INF> emission
reductions from these projects or substitute measures, to make the
annual demonstration reports and related documentation available to the
public, and to adopt and submit substitute control measures where
necessary to address an emission reduction shortfall identified by the
EPA, constitute appropriate means, techniques, or schedules for
compliance under sections 110(a)(2)(A) and 172(c)(6) of the Act.
Comment 3: Earthjustice states that citizens and the EPA can only
enforce ``violations,'' and that the EPA must describe what would
constitute a violation of the SIP provisions being approved here.
Citing section 304(a)(1) of the CAA, Earthjustice states that citizens
can commence civil actions for violations of emission standards or
limitations or orders issued by the EPA or a state with respect to such
standards or limitations. Additionally, citing section 113(a)(1) of the
Act, Earthjustice states that the EPA can enforce a violation of any
requirement or prohibition of an applicable implementation plan.
Earthjustice notes the EPA's statement in the TSD that to be
enforceable, program violations must be defined, and asserts that the
EPA must explain where in the Valley Incentive Measure such definitions
are provided. According to Earthjustice, the EPA ``suggests that EPA
and citizens can enforce the commitments to achieve and report on
emission reductions'' but does not define what exactly would constitute
a violation.
Response 3: We identify in Response 2 the types of violations of
the commitments that could provide the basis for an enforcement action
by the EPA or by citizens under section 113(a)(1) or 304(a)(1) of the
CAA, respectively. As explained in Response 2, CARB's commitments
constitute a specific enforceable strategy for achieving specific
amounts of NO<INF>X</INF> and PM<INF>2.5</INF> reductions on a fixed
schedule and, upon approval into the SIP, become requirements of an
``applicable implementation plan'' as defined in CAA section 302(q).
Although the Amended Valley Incentive Measure does not specifically
define potential violations of the commitments, we find that it
describes each of the actions that CARB has committed to undertake in
sufficient detail to enable the EPA and the public to determine whether
and when a violation has occurred. Accordingly, these commitments are
enforceable by citizens under CAA section 304(a)(1) and by the EPA
under CAA section 113(a)(1).
Comment 4: Earthjustice states that CARB's commitment to
``monitor'' District and NRCS implementation of projects in accordance
with the Carl Moyer program, FARMER and NRCS guidelines is a ``vague
and unenforceable commitment.'' Earthjustice asks what would constitute
a violation, and how one could prove that CARB is not monitoring
implementation in accordance with the guidelines. Earthjustice asserts
that there is no means of measuring or independently verifying
compliance because there is no reporting requirement and no deadline.
Additionally, Earthjustice claims that the reference to ``an estimated
5,446 . . . replacement projects'' in CARB's commitment ``undermines
the very notion that CARB even know[s] what or how many projects to
monitor.'' Earthjustice notes that CARB cannot receive detailed
compliance reports on projects under the NRCS program and can only
request ``representative samples of the compliance-related
documentation'' used by the NRCS to compile anonymized annual reports.
Earthjustice asserts that there is no way to enforce this monitoring
obligation, and even if one could, there is no way for CARB to actually
fulfill its obligations because it has no monitoring authority itself.
Response 4: We disagree with these comments. CARB's commitments to
monitor the District's implementation of projects in accordance with
the Carl Moyer Guidelines and FARMER Guidelines are enforceable through
specific provisions in the Amended Valley Incentive Measure that
require CARB to report annually on, among other things, the incentive
projects it is relying on to achieve emission reductions and the
actions that CARB or the District has taken to ensure that these
projects comply with the applicable guidelines and program criteria.
See Response 2.
Specifically, the Amended Valley Incentive Measure obligates CARB
to identify, in each annual demonstration report submitted to the EPA
by May 15 of each year from 2021 through 2025, those projects funded
through the previous year that CARB is relying on to achieve the
tonnage commitments for 2024 and 2025. CARB must identify each of these
projects ``by project identification number, project life and
implementation date, description of both baseline and new equipment
sufficient to independently calculate emission reductions, applicable
incentive program guideline, and quantified emission reductions.'' \92\
Additionally, each annual demonstration report must include supporting
documentation for the reported project information, describe any
changes to the applicable guidelines or program criteria, and describe
the implementing agency's actions to review selected projects for
compliance with these criteria.\93\
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\92\ CARB Resolution 19-26, para. A.3. For Carl Moyer and FARMER
projects, the ``project life'' begins on the purchase date of the
new equipment and is the period during which the project is under
contract. Email dated February 13, 2020, from Austin Hicks (CARB) to
Rynda Kay (EPA Region IX), Subject: ``RE: Follow-up questions on the
Valley Incentive Measure.'' We understand the ``implementation
date'' to mean the post-inspection date, which is the date on which
the District verifies that the old equipment has been destroyed and
that the new equipment has been purchased, is operational, and is
the same equipment that was used in the emission reduction
calculations. 2017 Carl Moyer Guidelines, Volume I, Part 1, Chapter
3, Section V (``Minimum Contract Requirements'') and Section X
(``Project Post-Inspection'').
\93\ CARB Resolution 19-26, paras. B.2, C.3, and D.2.
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For Carl Moyer projects, the Amended Valley Incentive Measure
obligates CARB to include in each annual demonstration report a
``description of any changes to the 2011 and 2017 Moyer Guidelines and
their related impacts on program integrity'' and ``a description of
CARB and the District's actions during the prior year to monitor
selected projects for compliance with Moyer Program requirements.''
\94\ Similarly, for FARMER projects, CARB must include in each annual
demonstration report a ``description of
[[Page 73117]]
any changes to the 2018 FARMER Guidelines and their related impacts on
program integrity'' and ``a description of CARB's and the District's
actions during the prior year to monitor selected projects for
compliance with FARMER Program requirements.'' \95\ Finally, for both
incentive programs, if the total number of implemented projects is less
than the estimated number of projects identified in paragraph B.1 or
D.1 of CARB Resolution 19-26 (as applicable), CARB's annual
demonstration report must confirm that any substitute projects relied
on to fulfill the tonnage commitments are subject to the program
criteria identified in paragraph B.1 or D.1 and provide, for each
substitute project, all of the information required in paragraph B.2.c
and D.2.c.\96\
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\94\ Id. at para. B.2.
\95\ Id. at para. D.2.
\96\ CARB Resolution 19-26, paras. B.2.d and D.2.d (requiring
that CARB provide ``information consistent with paragraph A.4
pertaining to the substitute incentive projects that will be
implemented to achieve the emission reductions specified in
[paragraphs] A.1 and A.2''). For example, if CARB chooses to monitor
implementation of 2,500 Carl Moyer projects by 2024 (109 more than
its estimate of 2,391 such projects, see para. B.1 of CARB
Resolution 19-26) and to monitor 1,900 FARMER projects by 2024 (112
fewer than its estimate of 2,012 such projects, see para. D.1 of
CARB Resolution 19-26), CARB must identify the additional 109 Carl
Moyer projects as ``substitute projects'' in the relevant annual
demonstration report(s) and provide all of the information required
by paragraph A.4 of CARB Resolution 19-26 pertaining to these
projects. Only incentive projects subject to the specific guidelines
and program criteria referenced in paragraphs B.1 or D.1 of the
Valley Incentive Measure qualify for use as ``substitute projects.''
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These provisions ensure that CARB's annual demonstration reports
will contain both the project-specific information needed to
independently calculate the emission reductions that CARB attributes to
each project and the programmatic information needed to determine
whether CARB and the District are taking appropriate steps to ensure
that the identified projects comply with the applicable guidelines and
program criteria.\97\ If CARB's annual demonstration report for a given
year fails to identify the project-specific information described in
paragraphs A.3, B.2, or D.2 of CARB Resolution 19-26, as amended by the
Technical Corrections Document, or to document the steps it has taken
to verify the District's compliance with the applicable guidelines and
program criteria, the EPA or citizens may bring an enforcement action
against CARB for violating its monitoring and reporting obligations in
the Amended Valley Incentive Measure.
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\97\ For Carl Moyer projects, the 2017 Carl Moyer Guidelines
specifically require that air districts audit at least five percent
of active projects or 20 active projects (whichever is less),
including any audits conducted following unsatisfactory annual
reporting. 2017 Carl Moyer Guidelines, Volume I, Part 1, Chapter 3,
Section AA (``Air District Audit of Projects''), para. 1.
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Both CARB and the District are directly responsible for ensuring
that the Carl Moyer program is implemented in accordance with State
law.\98\ As explained in Response 2, the Carl Moyer program guidelines
enable CARB to monitor the implementing air district's compliance with
the applicable program guidelines by requiring, among other things,
that air districts maintain compliance-related documentation, make such
documents available to CARB staff upon request, submit certified
``yearly reports'' to CARB containing specific information about funded
projects, and allow CARB and its designees to inspect project engines,
vehicles, and/or equipment and associated records during the contract
term.\99\ The Carl Moyer program guidelines also specifically identify
types of actions on the part of the implementing air district that CARB
may treat as program violations and authorize CARB to enforce the terms
of a project contract.\100\ If CARB fails to document in each annual
demonstration report the steps it has taken to exercise these
monitoring responsibilities, that failure would constitute a violation
of the SIP commitment.
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\98\ Ca. HSC section 44291(d) (requiring CARB to ``monitor
district programs to ensure that participating districts conduct
their programs consistent with the criteria and guidelines
established by the state board and the commission pursuant to this
chapter''). See also 2011 Carl Moyer Guidelines, Part I, Chapter 1
(``Program Overview'') and 2017 Carl Moyer Guidelines, Volume I,
Part 1, Chapter 1 (``Program Overview'').
\99\ See footnotes 76-79, supra.
\100\ See footnotes 80 and 81, supra.
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As Earthjustice correctly notes, we stated in our TSD that the
Valley Incentive Measure obligates CARB to monitor an ``estimated''
total of 5,446 off-road diesel agricultural equipment replacement
projects in accordance with the Carl Moyer, FARMER, and NRCS programs
and their respective guidelines.\101\ Earthjustice claims that this
reference to an ``estimated'' number of projects ``undermines the very
notion that CARB even know[s] what or how many projects to monitor.''
This comment, however, appears to be based on a misunderstanding of the
purpose of these provisions of the commitment. CARB's primary
obligations under the Amended Valley Incentive Measure are to (1)
monitor District implementation of estimated numbers of incentive
projects in accordance with specified portions of the relevant program
criteria, (2) fulfill specific NO<INF>X</INF> and PM<INF>2.5</INF>
tonnage commitments through implementation of the identified projects
or through adoption and submission of substitute control measures, (3)
submit to the EPA, each year from 2021 to 2025, a publicly available
annual demonstration report that includes specific information about
the projects funded through the previous year, (4) maintain and provide
to the public, upon request, the documentation that CARB has relied on
to develop the annual demonstration reports, and (5) adopt and submit
substitute measures or rules by specific dates, if the EPA determines
that information submitted by CARB is insufficient to demonstrate that
the identified projects will fulfill the tonnage commitments. See
Response 2.
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\101\ TSD, 4. Because we are approving only those portions of
the Valley Incentive Measure that pertain to Carl Moyer and FARMER
projects, the total estimated number of projects that CARB must
monitor under para. A.3.a of CARB Resolution 19-26 is 4,403 (5,446-
1,043), and the total estimated number of projects that CARB must
monitor under para. A.3.b of the resolution is 3,980 (4,723-743).
CARB Resolution 19-26, paras. A.3 and C.2.
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The Amended Valley Incentive Measure does not obligate CARB to
ensure implementation of any particular number of projects. The purpose
of the project number estimates in paragraphs B.1 and D.1 (and the
total project number estimates provided in paragraph A.3) of CARB
Resolution 19-26 is to establish reasonable limits on the extent to
which CARB may change the list of projects relied upon from year to
year, while allowing CARB some flexibility to substitute listed
projects with different project types,\102\ provided all projects
identified in the annual demonstration report satisfy the applicable
program criteria \103\ and achieve, in the aggregate, the tonnages of
emission reductions identified in paragraphs A.1 and A.2 of CARB
Resolution 19-26. In this way, the project number estimates enable the
EPA and the public to hold CARB responsible for overseeing substantial
numbers of projects under both the Carl Moyer and FARMER programs and
ensuring that its selected mix of projects ultimately fulfills the
tonnage commitments by 2024 and 2025.\104\ We
[[Page 73118]]
therefore disagree with Earthjustice's claim that the project number
estimates ``undermine'' CARB's ability to carry out its monitoring
obligation.
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\102\ See fn. 87, supra (explaining how CARB may substitute a
small number of Carl Moyer projects for FARMER projects).
\103\ CARB Resolution 19-26, para. A.4.
\104\ The project number estimates also enabled the EPA and the
public to evaluate the tonnage commitments in the Valley Incentive
Measure and to determine whether CARB could reasonably be expected
to achieve the necessary emission reductions through the identified
project types. TSD, 26-28 (explaining the EPA's conclusion that it
is ``reasonable to expect that the implementation of projects under
these three incentive programs will achieve the full amount of
NO<INF>X</INF> and PM<INF>2.5</INF> emission reductions that CARB
has committed to achieve in the Valley Incentive Measure'').
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Additionally, as explained in Response 2, CARB is obligated to
achieve 4.83 and 4.46 tpd of NO<INF>X</INF> emission reductions by
December 31, 2023 and December 31, 2024, respectively, and to achieve
0.24 and 0.26 tpd of PM<INF>2.5</INF> emission reductions by December
31, 2023 and December 31, 2024, respectively, either through
implementation of the identified agricultural equipment replacement
projects or through substitute measures adopted and submitted in
accordance with the deadlines specified in paragraphs A.5 and A.6 of
CARB Resolution 19-26.\105\ Thus, although CARB is not specifically
obligated to ensure that certain numbers of incentive projects are
implemented or to achieve the required NO<INF>X</INF> or
PM<INF>2.5</INF> emission reductions through incentive projects, CARB
is obligated to monitor substantial numbers of the specified types of
incentive projects for the purpose of determining whether those
projects will achieve the necessary amounts of NO<INF>X</INF> and
PM<INF>2.5</INF> emission reductions by December 31, 2023, and December
31, 2024, in the San Joaquin Valley. If CARB fails to adequately
document its bases for finding that the identified incentive projects
have fulfilled the tonnage commitments, CARB must adopt and submit
substitute measures sufficient to address the shortfall.\106\
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\105\ CARB Resolution 19-26, paras. A.1, A.2, A.5, and A.6.
\106\ Id.
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Comment 5: Earthjustice states that nothing in CARB's commitment to
achieve 5.9 tpd of NO<INF>X</INF> and 0.3 tpd of PM<INF>2.5</INF>
emission reductions by December 31, 2023, or its commitment to achieve
5.1 tpd of NO<INF>X</INF> and 0.3 tpd of PM<INF>2.5</INF> by December
31, 2024, specifies where these emission reductions must come from or
where they must occur. Earthjustice claims that nothing specifies
whether these reductions must be the result of some action by the
agencies or merely the result of favorable economic conditions, and
that CARB has relied on the latter in the past to claim compliance with
similar ``commitments.'' Earthjustice further claims that there is no
way for the EPA or citizens to look at the entire emissions inventory
for the San Joaquin Valley on December 31, 2024, and determine whether
CARB has achieved this emission reduction, and that even if overall
emissions increase between 2019 and 2022, CARB could still claim that
but for some unspecified reason, the total NOx emissions would have
been 5.9 tpd higher. Earthjustice argues that because there is no way
to prove that CARB has not achieved the NO<INF>X</INF> and
PM<INF>2.5</INF> reductions, the commitment fails to define any
possible violation and is not practicably enforceable.
Response 5: We identify in Response 2 the types of violations of
the commitments that may provide the basis for an enforcement action by
the EPA or by citizens under section 113(a)(1) or 304(a)(1) of the CAA,
respectively. As explained in Response 2, CARB's commitments constitute
a specific enforceable strategy for achieving specific amounts of
NO<INF>X</INF> and PM<INF>2.5</INF> reductions on a fixed schedule and,
upon approval into the SIP, become requirements of an ``applicable
implementation plan'' as defined in CAA section 302(q). Accordingly,
these commitments are enforceable by citizens under CAA section
304(a)(1) and by the EPA under CAA section 113(a)(1).
Earthjustice's characterization of CARB's commitments is incorrect
in several respects. First, with respect to CARB's commitments to
achieve specific amounts of NO<INF>X</INF> and PM<INF>2.5</INF>
reductions by December 31, 2023, and by December 31, 2024, Earthjustice
claims incorrectly that the commitments do not specify where these
emission reductions must come from or where they must occur. The
Amended Valley Incentive Measure specifies that CARB must achieve
emission reductions through implementation of one or both of the
following types of measures: (1) Incentive projects implemented in
accordance with specified program criteria, and/or (2) substitute
control measures adopted and submitted to the EPA by specified
deadlines.\107\ It also makes clear that these emission reductions must
occur in the San Joaquin Valley.\108\
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\107\ CARB Resolution 19-26, paras. A.1, A.2, A.5, and A.6.
\108\ Id. at A.1, A.2 (requiring CARB to achieve emission
reductions from specified baseline inventories ``in the 2018
PM<INF>2.5</INF> Plan, as detailed in the Valley State SIP Strategy
. . .''). The 2018 PM<INF>2.5</INF> Plan and Valley State SIP
Strategy together constitute California's Serious area plan for
attaining the 2006 PM<INF>2.5</INF> NAAQS in the San Joaquin Valley.
85 FR 44192 (July 22, 2020). See also CARB Resolution 19-26, 3
(``CARB staff prepared the [Valley Incentive Measure] to demonstrate
that it meets the U.S. EPA SIP measure requirements to achieve
emission reductions from the incentivized turnover of agricultural
equipment in the [San Joaquin] Valley''). The 2018 PM<INF>2.5</INF>
Plan and Valley State SIP Strategy also contain California's Serious
area plan for attaining the 2012 PM<INF>2.5</INF> NAAQS in the San
Joaquin Valley. CARB Resolution 19-1 (January 24, 2019) (adopting
2018 PM<INF>2.5</INF> Plan and 2016 Moderate Plan for San Joaquin
Valley), CARB Resolution 18-49 (October 25, 2018) (adopting Valley
State SIP Strategy), and CARB, ``Staff Report, Review of the San
Joaquin Valley 2018 Plan for the 1997, 2006, and 2012
PM<INF>2.5</INF> Standards,'' release date December 21, 2018 (``CARB
Staff Report''), 5-7.
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Second, Earthjustice claims incorrectly that nothing in the
commitment ``specifies whether [the emission reductions] must be the
result of some action by the agencies or merely the result of favorable
economic conditions, which is exactly how CARB has claimed compliance
with similar `commitments' in the past.'' By its terms, the Amended
Valley Incentive Measure obligates CARB to ``achieve'' the identified
emission reductions by December 31, 2023, and December 31, 2024, either
by confirming implementation of identified incentive projects in
accordance with specific guidelines and program criteria or by adopting
and submitting to the EPA substitute control measures that achieve
equivalent emission reductions by December 31, 2023, or December 31,
2024, as applicable. In the interpretative statements preceding these
commitments and in the Demonstration, CARB recognizes its obligation to
``provide a publicly-enforceable commitment to achieve the reductions''
\109\ and confirms that the Amended Valley Incentive Measure is
enforceable because it ``ensur[es] that actions required of project
grantees are independently verifiable, program violations are defined,
those liable can be identified, penalties or corrective action may
occur and citizens have access to all emissions-related information
obtained from participating sources.'' \110\ Nowhere in the Amended
Valley Incentive Measure or in CARB's interpretative statements does
CARB indicate that favorable economic conditions may suffice to achieve
the aggregate tonnage commitments.
---------------------------------------------------------------------------
\109\ CARB Resolution 19-26, 3 (``Whereas, for incentive-based
measures, U.S. EPA also requires the State to . . . provide a
publicly-enforceable commitment to achieve the reductions'').
\110\ Id. at 4-6 (whereas clauses concerning enforceability of
emission reductions achieved through Carl Moyer and FARMER
projects). Similarly, CARB states in the Demonstration that ``the
District and CARB will report and track to ensure that the Valley
Incentive Measure . . . delivers the reductions needed,'' that
``[t]he public will be able to calculate the emission reductions
using widely available methods and assumptions documented in this
report, and in a manner that can be replicated,'' and that ``U.S.
EPA and the public will be able to determine whether emission
reductions attributed to a project adequately covers the period for
which those reductions are credited in a SIP. . . .'' Demonstration,
4.
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We note that in prior EPA actions approving aggregate tonnage
commitments from CARB, the EPA has rejected claims that ``actual
emission decreases'' resulting from an economic recession or other
circumstances may
[[Page 73119]]
count towards meeting the commitments and made clear that the only
permissible means for achieving the required emission reductions is
through notice-and-comment rulemaking procedures leading to the
adoption and implementation of enforceable control measures.\111\
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\111\ See, e.g., 76 FR 69896, 69914-16 (November 9, 2011)
(partially approving and partially disapproving PM<INF>2.5</INF>
attainment demonstration for San Joaquin Valley).
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Third, Earthjustice suggests, incorrectly, that the EPA and
citizens would have to look at the entire emissions inventory for the
San Joaquin Valley on December 31, 2024 (or December 31, 2023), to
determine whether CARB has achieved the emission reductions required in
the Valley Incentive Measure. For the reasons stated in this response
and earlier in Response 2, it is not necessary to review an emissions
inventory to determine whether CARB has achieved the required
reductions. The Amended Valley Incentive Measure obligates CARB to
provide, in each annual demonstration report submitted to the EPA from
May 2021 through May 2025, detailed information about each incentive
project that CARB is relying on to achieve the necessary emission
reductions, including identification and descriptions of both the old
(replaced) and new equipment sufficient to independently calculate
emission reductions.\112\ Each of these annual demonstration reports
must be readily available to the public upon submission to the EPA and
remain available on CARB's website through December 31, 2030.\113\ If
CARB's 2024 annual demonstration report (which is due May 15, 2024)
fails to demonstrate that the identified projects have achieved 4.83
tpd of NO<INF>X</INF> emission reductions and 0.24 tpd of
PM<INF>2.5</INF> emission reductions from the 2024 baseline inventory
in the 2018 PM<INF>2.5</INF> Plan, citizens may sue CARB for violating
its SIP commitment. Likewise, if CARB's 2025 annual demonstration
report (due May 15, 2025) fails to demonstrate that the identified
projects have achieved 4.46 tpd of NO<INF>X</INF> emission reductions
and 0.26 tpd of PM<INF>2.5</INF> emission reductions from the 2025
baseline inventory in the 2018 PM<INF>2.5</INF> Plan, citizens may sue
CARB for violating its SIP commitment. The tonnage commitments remain
enforceable even if the EPA has not made an insufficiency determination
in accordance with paragraph A.5 or A.6 of CARB Resolution 19-26. See
Response 7 and Response 9.
---------------------------------------------------------------------------
\112\ CARB Resolution 19-26, paras. A3, B.2 and D.2.
\113\ Id. at paras. B.3 and D.3.
---------------------------------------------------------------------------
Additionally, if the EPA determines by August 1, 2022, that
information submitted by CARB is insufficient to demonstrate that the
emission reductions necessary to fulfill the 2024 tonnage commitments
will occur on schedule, CARB must adopt and submit to the EPA, no later
than September 1, 2023, substitute measures or rules that will achieve
emission reductions addressing the shortfall as expeditiously as
practicable and no later than January 1, 2024.\114\ Likewise, if the
EPA determines by August 1, 2023, that information submitted by CARB is
insufficient to demonstrate that the emission reductions necessary to
fulfill the 2025 tonnage commitments will occur on schedule, CARB must
adopt and submit to the EPA, no later than September 1, 2024,
substitute measures or rules that will achieve emission reductions
addressing the shortfall as expeditiously as practicable and no later
than January 1, 2025.\115\ Any such substitute control measure must be
adopted following state rulemaking procedures through which the EPA and
the public may track the State's progress in achieving the requisite
emissions reductions. We expect CARB to make clear during any such
rulemaking that it is proposing the identified measure or rule for
purposes of submission to the EPA consistent with its commitment in the
Amended Valley Incentive Measure.\116\ If, following an insufficiency
finding by the EPA, CARB fails to adopt and submit substitute control
measures that fully address the identified shortfall in required
emission reductions by the relevant deadline, citizens may sue CARB for
violating its SIP commitment.
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\114\ Id. at para. A.5.
\115\ Id. at para. A.6.
\116\ See EPA, Memorandum dated November 22, 2011, from Janet
McCabe, Deputy Assistant Administrator, EPA Office of Air and
Radiation, to Air Division Directors, EPA Regions 1-10, Attachment B
(``Guidelines to States Agencies for Preparing the Public Notices
for State Implementation Plan (SIP) Revisions'') (noting that state
public notices must state that the regulation or document at issue
will be submitted to the EPA for approval into the SIP).
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For all of these reasons, we disagree with Earthjustice's claim
that the Valley Incentive Measure fails to define any possible
violation and is not practicably enforceable.
Comment 6: Earthjustice states that the implication of the rule is
that the required emission reductions will come from the replacement of
agricultural equipment but that nothing in the measure commits CARB to
achieve any such replacements. Earthjustice claims that this rule is
``a transparent attempt to undermine the entire framework of SIP
enforceability'' and that the measure is nothing more than ``an open-
ended commitment to figure out how to reduce emissions, with no actual
enforceable commitment to action.'' Earthjustice states that the
purpose of the SIP program is to compel states to identify the
specific, enforceable actions they will take to reduce emissions, and
that it is not enough for the state to merely promise to reduce
emissions somehow and offer that citizens can sue the state if it
fails.
Response 6: We agree with Earthjustice's statement that the purpose
of the SIP program is to compel states to identify specific,
enforceable actions to reduce emissions, but we disagree with the claim
that the Valley Incentive Measure is an ``open-ended commitment'' with
no enforceable commitment to action.
As explained in Response 2 and Response 4, the Amended Valley
Incentive Measure obligates CARB to (1) monitor District implementation
of estimated numbers of incentive projects in accordance with specified
portions of the relevant program criteria, (2) fulfill specific
NO<INF>X</INF> and PM<INF>2.5</INF> tonnage commitments through
implementation of the identified projects or through adoption and
submission of substitute control measures, (3) submit to the EPA, each
year from 2021 to 2025, an annual demonstration report that includes
specific information about the projects funded through the previous
year, (4) make each annual demonstration report publicly available and
available upon request, (5) provide to the public, upon request,
certain project-specific documents relied upon in the preparation of
CARB's annual demonstration reports, including project applications,
grant contracts, and inspection-related documents, and (6) adopt and
submit substitute measures or rules by specific dates, if the EPA
determines that information submitted by CARB is insufficient to
demonstrate that the identified projects will fulfill the tonnage
commitments.\117\
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\117\ CARB Resolution 19-26 and Technical Corrections Document.
---------------------------------------------------------------------------
Numerous courts interpreting citizen suit jurisdiction under
section 304 of the CAA have held that suits can be brought to enforce
``specific measures, strategies, or commitments designed to ensure
compliance with the NAAQS,'' though not to enforce the NAAQS
directly.\118\ As explained in Response 2
[[Page 73120]]
and Response 4, CARB's commitments constitute a specific enforceable
strategy for achieving specific amounts of NO<INF>X</INF> and
PM<INF>2.5</INF> reductions on a fixed schedule and, upon approval into
the SIP, become requirements of an ``applicable implementation plan''
as defined in CAA section 302(q). Accordingly, these commitments are
enforceable by citizens under CAA section 304(a)(1) and by the EPA
under CAA section 113(a)(1).
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\118\ See, e.g., Conservation Law Foundation, Inc. v. James
Busey, et. al., 79 F. 3d 1250, 1258 and internal citations (1st Cir.
1996).
---------------------------------------------------------------------------
We also disagree with Earthjustice's suggestion that CARB's
commitments are unenforceable because CARB has not specifically
committed to ``achieve'' or implement any replacements of agricultural
equipment. As explained in Response 2 and Response 4, CARB's tonnage
commitments must be met through implementation of one or both of the
following types of measures: (1) Agricultural equipment replacement
projects implemented in accordance with specified program criteria,
and/or (2) substitute control measures adopted and submitted to the EPA
by specified deadlines.\119\ If CARB fails to achieve the specified
amounts of NO<INF>X</INF> and PM<INF>2.5</INF> emission reductions by
December 31, 2023, or December 31, 2024, through implementation of
agricultural equipment replacement projects or substitute control
measures, that failure would constitute a violation of the SIP
commitment. See Response 2. The fact that CARB may meet its SIP
commitments by adopting measures that are not specifically identified
in the SIP, or through one of several available techniques, does not
render the requirement to achieve the emissions reductions
unenforceable.\120\
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\119\ CARB Resolution 19-26, paras. A.1, A.2, A.5, and A.6.
\120\ Citizens for a Better Environment v. Deukmejian, 731 F.
Supp. 1448, 1454-59 (N.D. Cal.) (``the basic commitment to adopt and
implement additional measures, should the identified conditions
occur, constitutes a specific strategy, fully enforceable in a
citizens action, although the exact contours of those measures are
not spelled out''), modified, 746 F. Supp. 976 (1990) (holding state
and district liable for failing to satisfy SIP commitment).
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Comment 7: Earthjustice states that the central obligation of this
program is CARB's commitment to rectify shortfalls, but that this
obligation is triggered only if the EPA makes a determination.
Earthjustice asserts that, without some mechanism for forcing the EPA
to make such a determination, citizens cannot enforce CARB's
obligation. Furthermore, Earthjustice argues, even if the EPA were to
make such a determination, there is no way for the EPA and citizens to
prove that CARB had failed to rectify the shortfall because there is no
explanation of what action CARB must take. According to Earthjustice,
CARB need only point to ``substitute measures or rules'' but these do
not need to be new measures, and ``CARB can claim that other regulated
sectors reduced emissions more than anticipated for whatever reason.''
Response 7: We agree with Earthjustice's statement that CARB's
commitment to rectify shortfalls is dependent on an EPA determination
but disagree with the claim that this obligation cannot be enforced by
citizens. Additionally, to the extent Earthjustice intended to assert
that an insufficiency determination by EPA is necessary to enable
citizens to enforce the central obligation in CARB's commitment--i.e.,
the tonnage commitment--this assertion is incorrect.
As explained in Response 2 and Response 4, the Amended Valley
Incentive Measure obligates CARB to (1) monitor District implementation
of estimated numbers of incentive projects in accordance with specified
portions of the relevant program criteria, (2) fulfill specific
NO<INF>X</INF> and PM<INF>2.5</INF> tonnage commitments through
implementation of the identified projects or through adoption and
submission of substitute control measures, (3) submit to the EPA, each
year from 2021 to 2025, an annual demonstration report that includes
specific information about the projects funded through the previous
year, (4) make each annual demonstration report publicly available and
available upon request, (5) provide to the public, upon request,
certain project-specific documents relied upon in the preparation of
CARB's annual demonstration reports, including project applications,
grant contracts, and inspection-related documents, and (6) adopt and
submit substitute measures or rules by specific dates, if the EPA
determines that information submitted by CARB is insufficient to
demonstrate that the identified projects will fulfill the tonnage
commitments.\121\ The central obligation in these commitments is to
fulfill specific NO<INF>X</INF> and PM<INF>2.5</INF> tonnage
commitments on a fixed schedule, and the other components of the
commitments are designed to ensure that the EPA and citizens can hold
CARB responsible for achieving these emission reductions by the
specified dates.
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\121\ CARB Resolution 19-26 and Technical Corrections Document.
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Earthjustice correctly notes that the commitment to rectify
shortfalls (in paragraphs A.5 and A.6 of CARB Resolution 19-26) is
triggered only if the EPA determines that information submitted by CARB
is insufficient to demonstrate that the identified projects will
fulfill the tonnage commitments. Earthjustice incorrectly claims,
however, that there is no way for the EPA or citizens to prove that
CARB had failed to rectify a shortfall identified by the EPA because
there is no explanation of what action CARB must take. As explained in
Response 2 and Response 5, if the EPA determines by August 1, 2022,
that information submitted by CARB is insufficient to demonstrate that
the emission reductions necessary to fulfill the 2024 tonnage
commitments will occur on schedule, CARB must adopt and submit to the
EPA, no later than September 1, 2023, substitute measures or rules that
will achieve emission reductions addressing the shortfall as
expeditiously as practicable and no later than January 1, 2024.\122\
Likewise, if the EPA determines by August 1, 2023, that information
submitted by CARB is insufficient to demonstrate that the emission
reductions necessary to fulfill the 2025 tonnage commitments will occur
on schedule, CARB must adopt and submit to the EPA, no later than
September 1, 2024, substitute measures or rules that will achieve
emission reductions addressing the shortfall as expeditiously as
practicable and no later than January 1, 2024.\123\
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\122\ CARB Resolution 19-26 at para. A.5.
\123\ Id. at para. A.6.
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Contrary to Earthjustice's assertion, CARB cannot satisfy this
commitment by simply claiming ``that other regulated sectors reduced
emissions more than anticipated for whatever reason.'' By its terms,
the commitment is to ``adopt and submit to U.S. EPA . . . substitute
measures or rules''--i.e., new or revised prohibitory control
measures--that achieve the necessary emission reductions by the
specified deadline. Any such substitute control measure must be adopted
following state rulemaking procedures through which the EPA and the
public may track the State's progress in achieving the requisite
emissions reductions.\124\ We expect that CARB will make clear during
any such rulemaking that it is proposing the identified measure or rule
for purposes of submission to the EPA consistent with its commitment in
the Amended Valley Incentive Measure.\125\
[[Page 73121]]
If, following an insufficiency finding by the EPA, CARB fails to adopt
and submit prohibitory control measures that fully address the
identified shortfall in required emission reductions by the relevant
deadline, citizens may sue CARB for violating its SIP commitment.
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\124\ The substitute measures or rules would, therefore, be
enforceable by the EPA and citizens under the CAA upon approval into
the SIP.
\125\ See EPA, Memorandum dated November 22, 2011, from Janet
McCabe, Deputy Assistant Administrator, EPA Office of Air and
Radiation, to Air Division Directors, EPA Regions 1-10, Attachment B
(``Guidelines to States Agencies for Preparing the Public Notices
for State Implementation Plan (SIP) Revisions'') (noting that state
public notices must state that the regulation or document at issue
will be submitted to the EPA for approval into the SIP).
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Even if the EPA does not make an insufficiency finding, citizens
may independently enforce the tonnage commitments against CARB by
reviewing CARB's annual demonstration reports. As explained in Response
5, the Amended Valley Incentive Measure obligates CARB to provide, in
each annual demonstration report submitted to the EPA from May 2021
through May 2025, detailed information about each incentive project
that CARB is relying on to achieve the necessary emission reductions,
including descriptions of both the old (replaced) and new equipment
sufficient to independently calculate emission reductions.\126\ Each of
these annual demonstration reports must be readily available to the
public on CARB's website upon submission to the EPA and remain
available through December 31, 2030.\127\ If CARB's 2024 annual
demonstration report (which is due May 15, 2024) fails to demonstrate
that the identified projects have achieved 4.83 tpd of NO<INF>X</INF>
emission reductions and 0.24 tpd of PM<INF>2.5</INF> emission
reductions from the 2024 baseline inventory in the 2018
PM<INF>2.5</INF> Plan, and CARB has not submitted substitute control
measures to address the shortfall, citizens may sue CARB for violating
its SIP commitment. Likewise, if CARB's 2025 annual demonstration
report (due May 15, 2025) fails to demonstrate that the identified
projects have achieved 4.46 tpd of NO<INF>X</INF> emission reductions
and 0.26 tpd of PM<INF>2.5</INF> emission reductions from the 2025
baseline inventory in the 2018 PM<INF>2.5</INF> Plan, and CARB has not
submitted substitute control measures to address the shortfall,
citizens may sue CARB for violating its SIP commitment. Thus, the
tonnage commitments remain enforceable even if the EPA has not made an
insufficiency finding in accordance with paragraph A.5 or A.6 of CARB
Resolution 19-26. See Response 9.
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\126\ CARB Resolution 19-26, paras. A3, B.2, C.3, and D.2.
\127\ Id. at paras. B.3, C.4., and D.3.
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Comment 8: Earthjustice states that CARB's obligation to ``provide
publicly available annual demonstration reports'' is a ``throw away
requirement.'' According to Earthjustice, while it might be possible to
show that CARB did not provide a report, the contents of the report are
so vague that any document would likely pass muster. Earthjustice
asserts that although the State must monitor compliance and project
whether projects will achieve reductions on time, there are no
consequences, for example, if CARB finds noncompliance is rampant or
there is no possibility that projects will achieve emission reductions
on time.
Response 8: We disagree with Earthjustice's assertion that the
annual demonstration reports are ``throw away'' requirements and that
``the contents of the report are so vague that any document would
likely pass muster.'' As discussed in Response 4, the Amended Valley
Incentive Measure obligates CARB to include the following information
in each annual demonstration report that it submits to the EPA by May
15 of each year from 2021 through 2025: (1) Specific information about
the projects funded through the previous calendar year that CARB is
relying on to fulfill the tonnage commitment; \128\ (2) a description
of any changes to the applicable guidelines and related impacts on
program integrity; (3) a description of CARB's and the District's
actions to monitor selected Carl Moyer and FARMER projects for
compliance with contract requirements; and (4) a determination of
whether the identified projects are projected to fulfill the
NO<INF>X</INF> and PM<INF>2.5</INF> tonnage commitments in the San
Joaquin Valley by the relevant deadlines.\129\ CARB's supporting
analysis in the Demonstration further describes the project-specific
information for Carl Moyer and FARMER projects that CARB intends to
include in each annual demonstration report including, among other
things, the project life, post-inspection date,\130\ vehicle
identification number (VIN), equipment serial number, activity
information (i.e., annual hours of operation), percentage of operations
occurring in California and in the San Joaquin Valley area, equipment
and engine make and model, engine horsepower and tier, vehicle fuel
type, and engine emission level (i.e., emission factor).\131\
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\128\ CARB must identify each project that it is relying upon to
achieve emission reductions ``by project identification number,
project life and implementation date, description of both baseline
and new equipment sufficient to independently calculate emision
reductions, applicable incentive program guideline, and quantified
emission reductions.'' CARB Resolution 19-26, paras. A.3.a.i and
A.3.b.i.
\129\ Id. at paras. B.2 and D.2.
\130\ The ``post-inspection date'' is the date on which the
District verifies that the old equipment has been destroyed and that
the new equipment has been purchased, is operational, and is the
same equipment that was used in the emission reduction calculations.
2017 Carl Moyer Guidelines, Volume I, Part 1, Chapter 3, Section X
(``Project Post-Inspection'').
\131\ Demonstration, 24-29 (discussing Carl Moyer project
information) and 48-52 (discussing FARMER project information).
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These provisions ensure that CARB's annual demonstration reports
will contain both the project-specific information needed to
independently calculate the emission reductions that CARB attributes to
each project and the programmatic information needed to determine
whether CARB and the District are taking appropriate steps to ensure
that the identified projects comply with the applicable program
criteria. If CARB's annual demonstration report for a given year fails
to provide any of the information described in paragraphs A.3, B.2, or
D.2 of CARB Resolution 19-26, as amended by the Technical Corrections
Document, the EPA or citizens may bring an enforcement action against
CARB for violating its reporting obligations. See Response 4.
We also disagree with Earthjustice's comments about CARB's
monitoring obligations in the Valley Incentive Measure and its claim
that there are no consequences if CARB finds that noncompliance is
rampant or that the identified projects cannot achieve emission
reductions on time. As we explained in Response 4, CARB is obligated to
monitor the District's implementation of estimated numbers of incentive
projects in accordance with specified portions of the relevant program
criteria for purposes of determining whether those projects will
fulfill specific NO<INF>X</INF> and PM<INF>2.5</INF> tonnage
commitments by 2024 and 2025. Additionally, CARB must report annually
on the actions that both CARB and the District have taken to monitor
Carl Moyer and FARMER projects for compliance with contract
requirements. If the EPA determines that information submitted by CARB
is insufficient to demonstrate that it will fulfill a particular
tonnage commitment on schedule, CARB must adopt and submit substitute
measures to the EPA that address any shortfall in emission reductions
by specified dates. For example, if the EPA finds, during its review of
the annual demonstration reports for 2021 and 2022, that a substantial
number of identified projects have not complied with contract terms, or
that the total number of projects is insufficient to ensure that CARB
will meet its NO<INF>X</INF> and PM<INF>2.5</INF> tonnage commitments
by December 31, 2023, the EPA would make an insufficiency finding and
thus trigger CARB's
[[Page 73122]]
obligation to adopt and submit substitute control measures. If,
following such an insufficiency finding by the EPA, CARB fails to adopt
and submit substitute control measures that fully address the
identified shortfall in required emission reductions by the relevant
deadline, both the EPA and citizens may sue CARB for violating its SIP
commitment. See Response 2. Any insufficiency finding that the EPA
makes would be available to the public upon request and available on
the EPA's website at <a href="https://www.epa.gov/sips-ca">https://www.epa.gov/sips-ca</a>.
Even if the EPA does not make an insufficiency finding, citizens
may verify whether CARB has met the tonnage commitment by independently
reviewing CARB's annual demonstration reports, and thereby enforce the
tonnage commitment directly. As explained in Response 5, the Amended
Valley Incentive Measure obligates CARB to provide detailed information
in each annual demonstration report and to make each of these reports
readily available to the public on CARB's website or available upon
request. If CARB's 2024 annual demonstration report (which is due May
15, 2024) fails to demonstrate that the identified projects have
achieved 4.83 tpd of NO<INF>X</INF> emission reductions and 0.24 tpd of
PM<INF>2.5</INF> emission reductions from the 2024 baseline inventory
in the 2018 PM<INF>2.5</INF> Plan, and CARB has not submitted
substitute control measures to address the shortfall, citizens may sue
CARB for violating its SIP commitment. For example, if citizens find,
upon review of the 2024 annual demonstration report and related project
documents, that emission reductions have not occurred because a
substantial number of identified projects have not complied with
contract terms, or that the total number of projects is insufficient to
meet CARB's NO<INF>X</INF> and PM<INF>2.5</INF> tonnage commitments by
December 31, 2023, citizens may sue CARB for violating its SIP
commitment. See Response 5.
All Carl Moyer and FARMER projects are subject to detailed contract
provisions that must, among other things, specify the repercussions for
noncompliance with contract requirements.\132\ Under the 2011 and 2017
Carl Moyer Guidelines, each project contract must include: (1) The name
and contact information of the grantee; (2) specified timeframes for
``project completion'' (the date the project ``post-inspection''
confirms that the project has become operational) and ``project
implementation'' (the project life used in the project cost-
effectiveness calculation); (3) detailed information on both baseline
and new equipment, including documentation adequate to establish
historical annual usage; (4) requirements for the grantee to maintain
the equipment according to the manufacturer's specifications for the
life of the project; (5) annual reporting requirements; (6) a provision
authorizing the District, CARB, and their designees to conduct fiscal
audits and to inspect the equipment and associated records during the
contract term; (7) requirements to maintain and retain project records
for at least three years after contract expiration; (8) repercussions
for noncompliance; and (9) a statement that CARB is authorized to
enforce the terms of the contract at any time during the contract term
to ensure that emission reductions are obtained.\133\ These project
contracts, in addition to other project-specific records, will be
available to the public upon request beginning May 15, 2021, and
through 2029,\134\ thereby enabling the public to verify the project-
specific information provided in CARB's annual demonstration reports.
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\132\ Cal. Health & Safety Code section 44288(d) (``Funds shall
be awarded in conjunction with the execution of a contract that
obligates the state board or a participating district to make the
grant and obligates the grantee to take the actions described in the
grant application''), 2011 Carl Moyer Guidelines, Part 1, Chapter 3,
Section Y (``Minimum Contract Requirements''), para. 11 and 2017
Carl Moyer Guidelines, Volume I, Part 1, Chapter 3, Section V
(``Minimum Contract Requirements''), para. 11.
\133\ 2011 Carl Moyer Guidelines, Part 1, Chapter 3, Section Y
(``Minimum Contract Requirements'') and Chapter 9, Section C
(``Project Criteria''), para. 2.E (requiring documentation showing
ownership by the grantee for the previous 24 months), 2017 Carl
Moyer Guidelines, Volume I, Part 1, Chapter 3, Section V (``Minimum
Contract Requirements'') and Chapter 5, Section D (``Project
Criteria''), para. 4(E)(1) (requiring documentation showing
ownership by the grantee for the previous 24 months).
\134\ CARB Resolution 19-26, paras. B.5 and D.5 (added by
Technical Corrections Document, paras. 7 and 11) (requiring that
CARB provide to any requestor ``all documents relied upon in the
preparation of any annual demonstration report and available in the
relevant project file, including: project applications, grant
contracts, inspection-related documents (including photographic
documentation of baseline engine destruction), and any available
audit-related documentation and annual grantee reports'').
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Additionally, both CARB and the District are authorized to ``seek
any remedies available under the law for noncompliance with Carl Moyer
program requirements and nonperformance with the contract,'' including
cancelling the contract and recapturing program funds.\135\ Should CARB
determine that the District's oversight and enforcement of the program
is insufficient, CARB may also recapture funds granted to the District
that have not yet been awarded to approved projects.\136\
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\135\ 2011 Carl Moyer Guidelines, Part 1, Chapter 3, Section Y
(``Minimum Contract Requirements''), para. 11 and 2017 Carl Moyer
Guidelines, Volume I, Part 1, Chapter 3, Section V (``Minimum
Contract Requirements''), para. 11.
\136\ 2011 Carl Moyer Guidelines, Part 1, Chapter 3, Section T
(``Program Non-Performance''), para. 4. and 2017 Carl Moyer
Guidelines, Volume I, Part 1, Chapter 3, Section Q (``Program
Nonperformance''), para. 3.
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These provisions of the 2011 and 2017 Carl Moyer Guidelines,
together with CARB's commitments in the Amended Valley Incentive
Measure, enable the EPA and the public to independently verify the
emission reductions attributed to each incentive project that CARB has
identified in its annual demonstration reports to demonstrate
compliance with the tonnage commitment. For all of these reasons, we
disagree with Earthjustice's claim that CARB's reporting obligations in
the Valley Incentive Measure are insufficient to ensure that emission
reductions will occur in a timely manner.
Comment 9: Earthjustice asserts that the absence of defined
violations makes independent verification impossible, and that although
CARB says it is ``monitoring'' implementation, neither the EPA nor
citizens can independently verify or prove otherwise. Earthjustice
claims that an even more fundamental problem around verification is
that the emission reductions to be achieved, in theory, will come from
projects under the Carl Moyer and FARMER programs that neither the EPA
nor citizens can independently verify, and from the NRCS program that
no one other than NRCS can verify. Earthjustice states that measures
that preclude verification and enforcement by the EPA and citizens do
not meet the enforceability requirements of the Act.
Response 9: We disagree with Earthjustice's claim that neither the
EPA nor citizens can independently verify whether CARB is monitoring
implementation of the identified incentive projects. CARB's commitment
to monitor District implementation of projects in accordance with the
2011 and 2017 Carl Moyer Guidelines is enforceable through specific
reporting provisions in the Amended Valley Incentive Measure that
require CARB to report annually on, among other things, the incentive
projects it is relying on to achieve emission reductions and the
actions that CARB and the District have taken to ensure that these
projects comply with the contracts issued in accordance with the
applicable Carl Moyer Guidelines. See Response 2 and Response 4.
[[Page 73123]]
We also disagree with Earthjustice's assertion that projects relied
on in the Valley Incentive Measure cannot be independently verified by
the EPA or the public. As explained in Response 4 and Response 8, the
Amended Valley Incentive Measure obligates CARB to provide, in each
annual demonstration report, detailed information about each incentive
project funded through the previous year that CARB is relying on to
achieve the required NO<INF>X</INF> and PM<INF>2.5</INF> emission
reductions, including descriptions of both baseline and new equipment
sufficient to independently calculate emission reductions.\137\
Consistent with these obligations, CARB has submitted an Excel
spreadsheet populated with detailed project-specific information for
both baseline and new equipment sufficient to independently calculate
emission reductions for all Carl Moyer and FARMER projects completed as
of July 26, 2019, which we refer to as ``Detailed Spreadsheet HJ.''
\138\ We explain below how the emission reductions for each project may
be independently verified, based on the project data provided in
Detailed Spreadsheet HJ and the quantification methodologies provided
in the 2011 and 2017 Carl Moyer Guidelines.
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\137\ CARB Resolution 19-26, para. A.3.
\138\ CARB, ``Carl Moyer/FARMER Emissions Reductions
Calculator'' (``Detailed Spreadsheet HJ''), available as
``Appendices H and J--Detailed'' at <a href="https://ww2.arb.ca.gov/resources/documents/implementation-state-sip-strategy">https://ww2.arb.ca.gov/resources/documents/implementation-state-sip-strategy</a> (last visited
November 16, 2021). This spreadsheet is also available as
``ag_appx_h_j_detailed_021120.xlsx'' at <a href="http://www.regulations.gov">www.regulations.gov</a> under
docket number EPA-R09-OAR-2020-0079. We understand that CARB will
include, in each annual demonstration report submitted to the EPA
beginning May 15, 2021, similar spreadsheets providing detailed
information about each project that CARB relies on to fulfill its
tonnage commitments in the Amended Valley Incentive Measure. The EPA
is currently reviewing the first annual demonstration report that
CARB submitted to EPA on May 14, 2021, including the associated
project spreadsheets. This report is available at <a href="https://ww2.arb.ca.gov/resources/documents/implementation-state-sip-strategy">https://ww2.arb.ca.gov/resources/documents/implementation-state-sip-strategy</a>
and available as ``2021 Annual Demonstration Report'' at
<a href="http://www.regulations.gov">www.regulations.gov</a> under docket number EPA-R09-OAR-2020-0079.
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For Carl Moyer and FARMER projects, the accuracy of the project
data provided in each annual demonstration report may be verified
through independent review of specific documents that grantees and the
District must maintain in accordance with the Carl Moyer Guidelines,
all of which will be available for public review in accordance with
paragraphs B.5 and D.5 of CARB Resolution 19-26.\139\ First, actions
required of grantees under the 2011 and 2017 Carl Moyer Guidelines are
independently verifiable through (1) pre-project and post-project on-
site inspections (with photographic documentation) that the District
and/or CARB must carry out pursuant to the applicable guidelines, and
(2) documents that each grantee is required to maintain and/or submit
to the District in accordance with detailed contract provisions.
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\139\ Paragraphs B.5 and D.5 of CARB Resolution 19-26 (added by
paragraphs 7 and 11 of the Technical Corrections Document) obligate
CARB to provide to the public upon request, for Carl Moyer and
FARMER projects, beginning 15, 2021 and through 2029: ``all
documents relied upon in the preparation of any annual demonstration
report and available in the relevant project file, including:
project applications, grant contracts, inspection-related documents
(including photographic documentation of baseline engine
destruction), and any available audit-related documentation and
annual grantee reports.''
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For example, the 2017 Carl Moyer Guidelines require, among other
things, that (1) all project applications include documentation of
existing engine usage in previous years (e.g., miles traveled, hours
operated, or fuel consumed per year); (2) that the District conduct a
``pre-inspection'' of each application deemed eligible for funding, to
verify information regarding the baseline equipment; (3) that the
District conduct a ``post-inspection'' of each funded project to verify
destruction of the baseline engine through photographic or video
evidence, and record, among other things, information regarding the new
equipment as needed to provide a basis for emission calculations and to
ensure contract enforceability; and (4) that the District's project
files include all required ``pre-inspection'' and ``post-inspection''
documentation, including photographic documentation of the engine,
vehicle, or equipment information (e.g., a legible serial number and/or
other identifying markings) and photographic evidence of the scrapped
or destroyed engine.\140\
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\140\ 2017 Carl Moyer Program Guidelines, Volume I, Part 1,
Chapter 3, Section T (``Application Evaluation and Project
Selection''), para. 3, Section W (``Project Pre-Inspection''), and
Section X (``Project Post-Inspection''). See also 2011 Carl Moyer
Program Guidelines, Part 1, Chapter 3, Section W (``Application
Evaluation and Project Selection''), para. 3, Section Z (``Project
Pre-Inspection''), and Section AA (``Project Post-Inspection'').
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Second, the 2017 Carl Moyer Guidelines specifically define the
required elements of each contract and the types of actions that
constitute violations of such contracts. Specifically, each project
contract must include: (1) The name and contact information of the
grantee; (2) specified timeframes for ``project completion'' and
``project implementation''; (3) detailed information on baseline and
new equipment, including documentation adequate to establish historical
annual usage; (4) requirements for equipment maintenance; (5) annual
reporting requirements; (6) authorization for the District, CARB, and
their designees to conduct fiscal audits and equipment and associated
records inspection; (7) requirements to retain project records after
contract expiration; and (8) repercussions for contract noncompliance,
including cancellation of the contract and recapture of program
funds.\141\ See Response 8.
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\141\ 2017 Carl Moyer Guidelines, Volume I, Part 1, Chapter 3,
Section V (``Minimum Contract Requirements'') and Chapter 5, Section
D (``Project Criteria''), para. 4(E)(1) (requiring documentation
showing ownership by the applicant for the previous 24 months). See
also 2011 Carl Moyer Guidelines, Part 1, Chapter 3, Section Y
(``Minimum Contract Requirements'') and Chapter 9, Section C
(``Project Criteria''), para. 2(E) (requiring documentation showing
ownership by the grantee for the previous 24 months).
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Third, the 2017 Carl Moyer Guidelines require that all grantees
submit specific types of project records to the District and also
require the District to maintain such records for specified periods of
time. Specifically, each contract executed by the District must require
the grantee to maintain project records for at least three years after
contract expiration, and to submit annual or biennial reports to the
District. Additionally, the District must keep each ``project file''
for a minimum of three years after the end of the contract term. A
``project file'' generally includes a copy of the application, the
contract, a completed pre- and post-inspection form, photographs of the
destroyed engine, and the annual reports submitted by the grantee.\142\
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\142\ 2017 Carl Moyer Guidelines, Volume I, Part 1, Chapter 3,
Section T (``Application Evaluation and Project Selection), para. 1,
Section V (``Minimum Contract Requirements''), para. 1, Section W
(``Project Pre-Inspection''), para. 4, Section X (``Project Post-
Inspection''), para. 1, and Section Z (``Grantee Annual
Reporting''), para. 3. See also 2011 Carl Moyer Guidelines, Part 1,
Chapter 3, Section W (``Application Evaluation and Project
Selection''), para. 1, Section Y (``Minimum Contract
Requirements''), para. 1, Section Z (``Project Pre-Inspection''),
para. 4, Section AA (``Project Post-Inspection''), para. 1, and
Section CC (``Grantee Annual Reporting''), para. 3.
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These requirements of the 2017 Carl Moyer Guidelines, which are
substantively identical to similar provisions in the 2011 Carl Moyer
Guidelines, ensure that the District will maintain project-specific
documents sufficient for the EPA and the public to verify the accuracy
of CARB's emission reduction calculations for the Carl Moyer and FARMER
projects listed in each annual demonstration report. Specifically, the
EPA and the public may verify CARB's emission reduction calculations
not only by independently calculating project-specific emission
[[Page 73124]]
reductions using the quantification methodologies provided in the 2017
Carl Moyer Guidelines and the project data provided in the annual
demonstration report, but also by confirming the accuracy of the
project data provided in CARB's annual demonstration reports, through
independent review of the project-specific documents that the District
must maintain under the 2011 and 2017 Carl Moyer Guidelines (e.g., the
project contract and associated pre-inspection and post-inspection
documentation). All of these project-specific documents will be
available for public review in accordance with paragraphs B.5 and D.5
of CARB Resolution 19-26.\143\ Accordingly, the EPA and citizens can
obtain the information necessary to quantify and verify the emission
reductions that CARB attributes to Carl Moyer and FARMER projects to
fulfill the tonnage commitments in the Amended Valley Incentive
Measure.
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\143\ Technical Corrections Document, paras. 7 and 11.
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To demonstrate how the public can quantify and verify the emission
reductions identified in each annual demonstration report, we randomly
selected three of the projects listed in Appendix H and Appendix J of
the Demonstration \144\ and independently calculated the emission
reductions for these projects based on the data inputs provided in
Detailed Spreadsheet HJ and the relevant quantification methodologies
in the 2011 and 2017 Carl Moyer Guidelines. The projects that we
randomly selected from Appendix H and Appendix J of the Demonstration
are identified in Table 1.
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\144\ Demonstration, Appendix H (``San Joaquin Valley
Agricultural Equipment Incentive Measure, Carl Moyer Project
List''), Appendix J (``San Joaquin Valley Agricultural Equipment
Incentive Measure, FARMER Project List''), and Detailed Spreadsheet
HJ, available at <a href="https://ww2.arb.ca.gov/resources/documents/implementation-state-sip-strategy">https://ww2.arb.ca.gov/resources/documents/implementation-state-sip-strategy</a>, link entitled ``Appendices H and
J--Detailed'' (last visited November 16, 2021) (also available as
``ag_appx_h_j_detailed_021120.xlsx'' at <a href="http://www.regulations.gov">www.regulations.gov</a> under
docket number EPA-R09-OAR-2020-0079).
Table 1--Carl Moyer and FARMER Projects, and Selected Project Information, From Detailed Spreadsheet HJ (See Also Demonstration, Appendix H and Appendix
J)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Post- Baseline NOX reductions PM2.5
Equipment identifier Function vocation Applicable program Inspection engine model (tons per day) reductions
guideline date year (tons per day)
--------------------------------------------------------------------------------------------------------------------------------------------------------
C-60539-1-A1..................... Agricultural tractor 2018 FARMER (2017 Carl 7/15/2019 2005 0.000643 0.0000297
replacement. Moyer Guidelines).
C-49610-1A....................... Agricultural tractor 2017 Carl Moyer 1/23/19 1992 0.000747 0.0000625
replacement. Guidelines.
C-27026-1A....................... Agricultural tractor 2011 Carl Moyer 10/26/15 1996 0.00217 0.0000724
replacement. Guidelines.
--------------------------------------------------------------------------------------------------------------------------------------------------------
We independently calculated the emission reductions for the
selected projects using the data inputs included in Detailed
Spreadsheet HJ and provided our analysis in a memorandum to file dated
February 27, 2021, which we refer to as the ``EPA Calculation Memo.''
\145\ Our calculations replicated the emission reductions as reported
by CARB for all three projects.
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\145\ EPA, Memorandum dated February 27, 2021, from Rebecca
Newhouse, EPA Region IX, to File, Subject: ``Sample emission
reduction calculations for selected Carl Moyer and FARMER off-road,
heavy, mobile, diesel agricultural equipment replacement projects''
(hereafter ``EPA Calculation Memo'').
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Although we calculated emission reductions for only three randomly
selected projects from Appendix H and Appendix J, the availability of
the project information in Excel format allows for the verification of
emission reductions from all projects relied on in the Amended Valley
Incentive Measure in a fraction of the time it would take to perform
manual calculations. Use of Excel to perform these emission reduction
calculations becomes especially advantageous (in lieu of manual
calculation) as the number of implemented projects increases each year.
The EPA Calculation Memo provides more information on how to use Excel
to calculate emission reductions from these projects.\146\
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\146\ Id.
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Additionally, at our request, CARB submitted project-specific
documents, including the project application, baseline engine usage
records, grant contract, documentation of destruction, and pre- and
post-inspection photographs, for two of the projects listed in Table 1
(Carl Moyer project number C-27026-1A and FARMER project number C-
60539-1-A1).\147\ We reviewed the information contained in these
project records and confirmed that it is generally consistent with the
information provided in Detailed Spreadsheet HJ for these two
projects.\148\
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\147\ Email dated March 11, 2021, from Austin Hicks, CARB, to
Rynda Kay, EPA Region IX, Subject: RE: Requesting project
documentation for Valley Incentive Measure projects; 1 of 2 C-27026-
1-1A and email dated March 11, 2021, from Austin Hicks, CARB, to
Rynda Kay, EPA Region IX, Subject: RE: Requesting project
documentation for Valley Incentive Measure projects; 2 of 2 C-60539-
1-1A.
\148\ EPA, Memorandum dated April 26, 2021, from Rynda Kay, EPA
Region IX, to File, Subject: ``Review of CARB project
documentation.''
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In sum, the EPA and the public can verify the emission reductions
that CARB has attributed to each Carl Moyer and FARMER project it is
relying on to achieve the NO<INF>X</INF> and PM<INF>2.5</INF> tonnage
commitment in the Amended Valley Incentive Measure by doing the
following: (1) For each project identified in an annual demonstration
report (or for a random selection of such projects), reviewing the
project-specific documents that CARB must provide upon request, to
verify the accuracy of the project data provided in CARB's annual
demonstration report, and (2) independently calculating the emission
reductions for each project identified in the annual demonstration
report (or for a random selection of such projects), based on the
relevant project data (e.g., annual hours of operation, baseline and
new engine model year, engine tier, horsepower, and project life) and
the applicable quantification methodologies in the 2011 and 2017 Carl
Moyer Guidelines. Thus, CARB's commitments concerning the annual
demonstration reports and related project documents, together with
detailed inspection, recordkeeping and reporting requirements in the
2011 and 2017 Carl Moyer Guidelines, enable the EPA and the public to
verify the emission reductions achieved by each project that CARB is
relying on to fulfill its tonnage commitment in the Amended Valley
Incentive Measure.
Comment 10: Earthjustice asserts that the goal of the rule is to
remove the
[[Page 73125]]
requirement for enforceability against the actual sources by making
CARB responsible for the emission reductions. According to
Earthjustice, the EPA appears to admit that the actual emissions
reductions achieved through these various incentives do not satisfy the
Act's criteria for enforceability but claim that the defect can be
``cured by inventing an umbrella commitment for CARB to fill any
shortfall.'' Earthjustice claims that the ``commitment to make up the
difference, however, does not in fact cure the unenforceability of the
reductions credit[ed] toward that commitment,'' and that the emission
reductions that CARB commits to achieve are measured only by CARB and
the District (and NRCS), and cannot be verified by anyone else.
Earthjustice states that if CARB claims that it has satisfied its 5.9
tpd commitment because the incentive programs worked, there is no way
for the EPA or others to confirm that this is true. Earthjustice states
that the EPA and citizens cannot compel the grant recipients to support
the data submitted to CARB, the District, or NRCS, and that the EPA and
citizens must trust that these agencies have done their due diligence
in verifying the data themselves--a task that Earthjustice claims is
not really in the interest of these agencies because they do not want
to be on the hook for making up any shortfall. Likewise, according to
Earthjustice, if CARB claims that its substitute measures reduce
emissions by whatever the shortfall, there is nothing in the rule that
ensures anyone else could verify that claim.
Response 10: We disagree with the commenter's assertion that the
emission reductions committed to by CARB cannot be verified by anyone
other than CARB and the District. As explained in Response 2 and
Response 4, CARB has committed to submit annual demonstration reports
containing detailed project data that enables the public and the EPA to
independently calculate the emission reductions from each identified
project. Additionally, the 2011 and 2017 Carl Moyer Guidelines \149\
require that grantees submit, and that the District maintain, project
documents sufficient for the EPA and the public to verify the accuracy
of the project data provided in CARB's annual demonstration reports
(e.g., the project contract and associated pre-inspection and post-
inspection documentation). See Response 9.
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\149\ All FARMER projects that CARB relies on to comply with the
Amended Valley Incentive Measure are subject to the 2017 Carl Moyer
Guidelines, future approved guidelines, and current and future
program advisories and mail-outs, except as modified by CARB.
Demonstration, 43-45 and 2018 FARMER Guidelines, 17-18; see also
TSD, 16-17.
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Although we agree with the commenter that neither the EPA nor the
public can compel grantees to provide additional data or documentation,
the 2011 and 2017 Carl Moyer Guidelines include a number of
requirements to ensure that project-specific information is supported
by the grantee with additional documentation, and that equipment-
specific information supplied by the grantee is verified by the
implementing agency (in this case, the SJVUAPCD). For example, the 2017
Carl Moyer Guidelines require that old equipment be inspected by the
implementing agency with corresponding written and photographic
documentation, confirming (1) that the equipment is in usable
condition, and (2) that the equipment-specific information provided by
the grantee such as the make, model, horsepower, and usage meter
reading (referred to as a ``pre-inspection'') is correct.\150\ The 2017
Carl Moyer Guidelines also require that new equipment be inspected
after purchase and contract execution to confirm the equipment's make,
model, horsepower, and usage meter reading, with corresponding written
and photographic documentation (referred to as a ``post-
inspection'').\151\ District staff or an approved salvage yard must
take photographs of the destroyed engine and, if a salvage yard
verifies engine destruction, the salvage yard must provide that
documentation to the air district within ten business days of
dismantling the equipment.\152\ The implementing agency must include
these photographs in the project file.\153\ Additionally, the 2017 Carl
Moyer Guidelines require grantees to submit documentation that
establishes historical annual usage of the old equipment and confirms
ownership for the past two years.\154\ Contract provisions require
grantees to submit annual reports that include annual usage, and time
operated in California, for the new equipment until contract
expiration.\155\ As explained in Response 9, the public has access to
all underlying documentation for each Carl Moyer project in accordance
with paragraphs B.5 and D.5 of CARB Resolution 19-26.\156\ We therefore
disagree with Earthjustice's claim that the EPA and the public must
``trust that these agencies have done their due diligence in verifying
the data themselves.''
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\150\ 2017 Carl Moyer Guidelines, Volume I, Part 1, Chapter 3,
Section W (``Project Pre-Inspection'').
\151\ Id. at Section X (``Project Post-Inspection'').
\152\ 2017 Carl Moyer Guidelines, Volume I, Part 1, Chapter 5,
Section D (``Project Criteria'').
\153\ Id. at Chapter 3, Section X (``Project Post-Inspection''),
para. 1.
\154\ Id. at Section V (``Minimum Contract Requirements'') and
Chapter 5, Section D (``Project Criteria'').
\155\ Id. at Section Z (``Grantee Annual Reporting''), paras. 1
and 2.
\156\ Technical Corrections Document, paras. 7 and 11 (requiring
that CARB provide to any requestor ``all documents relied upon in
the preparation of any annual demonstration report and available in
the relevant project file, including: Project applications, grant
contracts, inspection-related documents (including photographic
documentation of baseline engine destruction), and any available
audit-related documentation and annual grantee reports'').
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We also disagree with the commenter's assertion that there is no
way to verify the emission reductions achieved by the substitute
measures that CARB must adopt if the EPA projects an emission reduction
shortfall. Specifically, as explained in Response 2 and Response 5, if
the EPA determines by August 1, 2022, that information submitted by
CARB is insufficient to demonstrate that the emission reductions
necessary to fulfill the 2024 tonnage commitments will occur on
schedule, CARB must adopt and submit to the EPA, no later than
September 1, 2023, substitute measures or rules that will achieve
emission reductions addressing the shortfall as expeditiously as
practicable and no later than January 1, 2024.\157\ Likewise, if the
EPA determines by August 1, 2023, that information submitted by CARB is
insufficient to demonstrate that the emission reductions necessary to
fulfill the 2025 tonnage commitments will occur on schedule, CARB must
adopt and submit to the EPA, no later than September 1, 2024,
substitute measures or rules that will achieve emission reductions
addressing the shortfall as expeditiously as practicable and no later
than January 1, 2025.\158\ Any such substitute control measure must be
adopted following state rulemaking procedures through which the EPA and
the public may track the State's progress in achieving the requisite
emissions reductions and comment on the State's emission reduction
analyses. We expect CARB to make clear during any such rulemaking that
it is proposing the identified measure or rule for purposes of
submission to the EPA consistent with its commitment in the Amended
Valley Incentive Measure.\159\ If,
[[Page 73126]]
following an insufficiency finding by the EPA, CARB fails to adopt and
submit prohibitory control measures that fully address the identified
shortfall in required emission reductions by the relevant deadline,
citizens may sue CARB for violating its SIP commitment.
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\157\ CARB Resolution 19-26, para. A.5.
\158\ Id. at para. A.6.
\159\ See EPA, Memorandum dated November 22, 2011, from Janet
McCabe, Deputy Assistant Administrator, EPA Office of Air and
Radiation, to Air Division Directors, EPA Regions 1-10, Attachment B
(``Guidelines to States Agencies for Preparing the Public Notices
for State Implementation Plan (SIP) Revisions'') (noting that state
public notices must state that the regulation or document at issue
will be submitted to the EPA for approval into the SIP).
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Comment 11: Earthjustice asserts that the EPA's approach
``separates the emission reduction obligation from the emitter and
makes the (theoretically) liable party in charge of determining
compliance.'' Earthjustice claims that neither the EPA nor citizens can
independently verify compliance with the emission reduction commitment
and that CARB is given the ability to deem itself in compliance with no
possibility for others to challenge that determination.
Response 11: For the reasons provided in Response 2 through
Response 10, we disagree with these claims.
Comment 12: Earthjustice states that the absence of defined
violations is most apparent when trying to describe what penalties
could be assessed or what corrective action could be compelled by a
court. For example, Earthjustice asks, if CARB were found in violation
of the 5.9 tpd commitment, would CARB be subject to daily penalties
under CAA section 113 until it achieved that reduction, or could it be
compelled to adopt some replacement measure by the court? Earthjustice
also asks how such a suit in equity would be handled under the Eleventh
Amendment to the Constitution; whether the commitment to rectify the
shortfalls upon an EPA determination negates any such court
intervention; and whether the EPA is the arbiter of whether the
substitute measures are adequate. If so, Earthjustice asserts, there is
effectively no penalty for violating the 5.9 tpd commitment, and the
only recourse is to repeatedly challenge the EPA for arbitrarily
letting CARB and the District fail to clean the air, which is not
subject to remedies under CAA section 113. Earthjustice further asks
what the penalty is for failing to monitor implementation or for
inadequate reporting, and how a court would determine days of
violations. According to Earthjustice, these are not practicably
enforceable commitments because the violations are not actually
defined. Earthjustice claims that the EPA cannot explain exactly how a
violation of these various commitments could be proven and enforced,
and what the judicial remedy would be for citizens bringing an
enforcement action. According to Earthjustice, this is why no one has
ever been able to enforce similar state emission reduction commitments
in the past.
Response 12: We disagree with Earthjustice's claim that ``there is
effectively no penalty for violating the 5.9 tpd commitment'' and that
the only recourse for such a violation is for the public to
``repeatedly challenge the EPA for arbitrarily letting CARB and the
District fail to clean the air, which is not subject to remedies under
CAA section 113.'' As explained in Response 2 and Response 5, CARB's
commitments constitute a specific enforceable strategy for achieving
specific amounts of NO<INF>X</INF> and PM<INF>2.5</INF> emission
reductions on a fixed schedule and, upon approval into the SIP, become
requirements of an ``applicable implementation plan'' as defined in CAA
section 302(q). Accordingly, these commitments are enforceable by
citizens under CAA section 304(a)(1) and by the EPA under CAA section
113(a)(1). CARB has also clearly expressed its decision to voluntarily
commit itself to fulfilling the tonnage commitment and to being held
accountable for failure to fulfill this commitment.\160\
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\160\ Demonstration, 29 and 52 (stating that ``CARB is the
responsible party for enforcement of this measure and is responsible
for achieving the emission reductions from this measure'').
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The EPA has approved enforceable SIP commitments in the past and
courts have enforced these commitments against states that failed to
comply with them.\161\ As the Second Circuit has stated, ``a plan, once
adopted by a state and approved by the EPA, becomes controlling and
must be carried out by the state,'' and the U.S. district courts are
``obligated, upon a showing that the state has violated the plan, to
issue appropriate orders for its enforcement.'' \162\
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\161\ See, e.g., American Lung Ass'n of N.J. v. Kean, 670 F.
Supp. 1285 (D.N.J. 1987), aff'd, 871 F.2d 319 (3rd Cir. 1989); NRDC,
Inc. v. N.Y. State Dept. of Env. Cons., 668 F. Supp. 848 (S.D.N.Y.
1987); Citizens for a Better Env't v. Deukmejian, 731 F. Supp. 1448,
recon. granted in par, 746 F. Supp. 976 (N.D. Cal. 1990); Coalition
for Clean Air v. South Coast Air Quality Mgt. Dist., No. CV 97-6916-
HLH (C.D. Cal. Aug. 27, 1999). Further, if a state fails to fulfill
its commitments, the EPA may make a finding of failure to implement
the SIP under CAA section 179(a), which starts an 18-month period
for the state to correct the non-implementation before mandatory
sanctions apply.
\162\ Friends of the Earth v. Carey, 535 F.2d 165, 169, 173 (2d
Cir. 1976). See also Natural Resources Defense Council v. N.Y.
Department of Environmental Conservation, 668 F. Supp. 848, 852
(S.D.N.Y.1987).
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Several district courts have, in response to citizen suits brought
under CAA section 304(a), issued orders to enforce SIP-approved
commitments by states to adopt and implement specific types of control
measures. In American Lung Ass'n of N.J. v. Kean, 670 F. Supp. 1285
(D.N.J. 1987), aff'd, 871 F.2d 319 (3rd Cir. 1989), the court found New
Jersey liable for failure to comply with SIP-approved commitments to
implement seven specific ozone-control strategies identified in the
submitted plan. Rejecting New Jersey's argument that its SIP compelled
it only to study the feasibility of the seven strategies and to
implement only those strategies that it found feasible, the court
concluded that the text of the SIP ``manifests an intention on the part
of New Jersey to commit itself to the schedule'' that plaintiffs
alleged New Jersey had violated--i.e., a schedule for proposing
regulations, promulgating final regulations, and implementing those
final regulations through proper enforcement.\163\ The court granted
plaintiff's motion for partial summary judgment on the issue of New
Jersey's liability under the CAA for failure to comply with its SIP and
ordered the parties to submit proposed timetables for New Jersey's
compliance with its SIP. In the second phase of trial, the court
adopted New Jersey's proposed schedule for promulgation and
implementation of regulations, which had been approved by the EPA and
plaintiffs.\164\ On appeal brought by petroleum industry trade
associations, the Court of Appeals for the Third Circuit affirmed the
district court's order.\165\
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\163\ 670 F. Supp. 1285, 1290.
\164\ 871 F. 2d 319.
\165\ Id. at 327 (noting that the ``scheduling order entered by
the district court is an equitable order, made within the ambit of
the district court's discretion to fashion appropriate remedies'').
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In Natural Resources Defense Council, Inc. v. N.Y. State Dept. of
Env. Cons., 668 F. Supp. 848 (S.D.N.Y. 1987), the court held that New
York had violated its SIP-approved commitments to study and implement
specific strategies for reducing volatile organic compound (VOC)
emissions from four major source categories. Rejecting New York's
arguments that summary judgment on liability would be inappropriate
because of its reasonable efforts to implement the SIP, unavoidable
technical difficulties, and the failure of other state and federal
environmental agencies that share implementation responsibilities to
take timely action, the court found that ``[t]he very fact that the New
York SIP has been violated mandates a finding of liability, regardless
of the reasons for the violation.'' \166\ The court granted plaintiff's
motion for partial summary
[[Page 73127]]
judgment on the issue of New York's liability under the CAA for failure
to comply with its SIP and, following the parties' submissions of
proposed implementation schedules, issued a detailed scheduling order
including specific deadlines for New York to complete studies, propose
and adopt regulations, and require full compliance with the adopted
regulations for each of the four VOC source categories.\167\
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\166\ 668 F. Supp. 848, 852.
\167\ Id. at 858 ff.
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In Coalition for Clean Air v. South Coast Air Quality Mgt. Dist.,
No. CV 97-6916-HLH (C.D. Cal. Aug. 27, 1999), the court held that the
South Coast Air Quality Management District (SCAQMD) had violated its
SIP-approved commitments by failing to adopt and implement 31 of 32
control measures identified in its ozone SIP. The SCAQMD provided
numerous reasons for its failure to adopt and implement these measures,
including its review of updated emission inventories showing that the
emission of some source categories were drastically lower than the SIP
had assumed, the unavailability of technologies that the SCAQMD had
previously assumed would be developed, and the excessive costs of
certain measures compared with the pollution to be reduced. The court
rejected these arguments, finding that ``[o]nce liability is
established, the District Court is required by the Act to issue an
injunction to compel compliance with the SIP'' and that ``[m]istakes or
failures in factual assumptions must be considered by the EPA, not by
the Court, whose duty it is to enforce the SIP as written.'' \168\ The
court issued an injunction establishing specific deadlines for the
SCAQMD to adopt and implement the 31 control measures.
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\168\ Case No. CV97-6916-HLH (C.D. Ca., August 27, 1999) at 3, 4
(citing CAA section 304(a) and Friends of the Earth, 535 F.2d 165
(2d Cir.1976)).
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Thus, if a district court found CARB in violation of the 4.83 tpd
NO<INF>X</INF> emission reduction commitment for 2024, the holdings in
the cases cited above suggest that a district court would be required
to issue appropriate orders for its enforcement, such as an order
compelling CARB to adopt one or more enforceable measures that achieve
4.83 tpd of NO<INF>X</INF> emission reductions by a date certain. Upon
CARB's adoption and submission of any such substitute measures, the EPA
would determine, through notice-and-comment rulemaking, whether the
measure is sufficient to achieve the necessary emission reductions.
Earthjustice asks the EPA to explain how a suit in equity would be
handled under the Eleventh Amendment to the Constitution but fails to
articulate a basis for finding the commitments in the Valley Incentive
Measure problematic or difficult to enforce on constitutional grounds.
Although the Eleventh Amendment generally grants immunity to states
from suit for money damages or equitable relief without their consent,
it does not grant states immunity from suit for injunctive relief
(i.e., to prevent future violations of federally-mandated SIP
requirements) where the state itself has submitted SIP commitments and
thereby consented to enforcement in federal court. As stated in NRDC,
the district courts have authority under the CAA to enforce SIP
provisions, and ``[i]t cannot be argued'' that ``an order implementing
[a SIP control strategy] as promptly as possible would impinge on an
area of state sovereignty.'' \169\ Similarly, in Friends of the Earth
v. Carey, the Second Circuit rejected New York City's claims of state
sovereign immunity from suit in federal court and found that the City's
decision ``voluntarily to commit itself to enforcement of the Plan''
constituted a waiver of such immunity.\170\ The court noted that, in
the context of a citizen suit to enforce the provisions of the SIP,
``the choices and procedures are the products of State choice, not of
federal policy, and may legitimately be enforced by the district
court.'' \171\
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\169\ 668 F.Supp. 848, 854 (citing Friends of the Earth v.
Carey, 552 F.2d 25, 39 (2d Cir. 1977)).
\170\ Friends of the Earth v. Carey, 552 F.2d 25, 35 (2d Cir.),
cert. denied sub nom. Beame v. Friends of the Earth, 434 U.S. 902,
98 S.Ct. 296, 54 L.Ed.2d 188 (1977).
\171\ 552 F.2d at 39.
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Comment 13: Earthjustice states that the EPA's proposed approach
creates a new type of ``black box'' for national ambient air quality
standards (NAAQS) other than ozone and without the conditions required
under CAA section 182(e)(5). Earthjustice asserts that, ``[l]ike the
black box, CARB and the District are now allowed to promise to reduce
emissions without actually making any enforceable commitment as to
how,'' but that ``unlike the black box, which at least requires actual
contingency measures to be adopted and in place years before the
compliance date, there are no actual backstops in place to make up for
a shortfall.'' Earthjustice asserts that the EPA must explain why
Congress would have allowed such an approach after clearly providing
only limited flexibility in section 182(e)(5), and only allowing such
flexibility for long-term plans related to ozone.
Response 13: We disagree with Earthjustice's suggestion that our
proposed approach to approving the Valley Incentive Measure (or
portions thereof) for SIP credit ``creates a new type of `black box' ''
that is inconsistent with congressional intent. Section 182(e)(5) of
the CAA allows the EPA to approve plan provisions that ``anticipate
development of new control techniques or improvement of existing
control technologies''--i.e., control measures yet to be defined--for
ozone nonattainment areas classified as ``extreme'' under subpart 2 of
part D, title I of the Act. This provision is often referred to as the
``black box'' or ``new technology'' provision of the Act.
Unlike the new technology provisions that the EPA has approved in
attainment plans for extreme ozone nonattainment areas,\172\ the
Amended Valley Incentive Measure is not a provision that anticipates
the development, adoption, and implementation of control measures yet
to be defined. As explained in Response 2 and Response 4, CARB's
commitments in the Amended Valley Incentive Measure constitute a
specific enforceable strategy for achieving specific amounts of
NO<INF>X</INF> and PM<INF>2.5</INF> emission reductions in the San
Joaquin Valley, either through implementation of agricultural equipment
replacement projects subject to specific portions of the 2011 or 2017
Carl Moyer Guidelines or through substitute measures adopted and
submitted in accordance with specified deadlines.\173\ The measure
obligates CARB to monitor and report annually on the implementation of
estimated numbers of such incentive projects and to adopt and submit
substitute control measures on a fixed schedule, if the EPA determines
that information submitted by CARB in the annual demonstration reports
is insufficient to demonstrate that the identified incentive projects
will fulfill the tonnage commitment.\174\
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\172\ See, e.g., 77 FR 12652 (March 1, 2012) (approving San
Joaquin Valley attainment plan for 1997 8-hour ozone NAAQS), 77 FR
12674 (March 1, 2012) (approving South Coast attainment plan for
1997 8-hour ozone NAAQS), and 84 FR 52005 (October 1, 2019)
(approving South Coast attainment plan for 2008 8-hour ozone NAAQS
and revised attainment plan for 1997 8-hour ozone NAAQS).
\173\ CARB Resolution 19-26, paras. A.1, A.2, A.5, and A.6.
\174\ Id.
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For these reasons, we also disagree with Earthjustice's claim that
the Valley Incentive Measure allows CARB and the District ``to promise
to reduce emissions without actually making any enforceable commitment
as to how'' and without providing for any ``backstops'' to make up for
a shortfall in required emission reductions. See Response 2 and
Response 4.
[[Page 73128]]
Comment 14: Earthjustice states that there is no reason that these
equipment replacements cannot be required by regulation, and that
cleaner equipment clearly exists. Earthjustice claims that the only
policy issue appears to be who should pay for these replacements, but
that nothing stops the agencies from mandating these replacements and
providing financial support for compliance. Earthjustice states that
the replacements would then become enforceable regulatory requirements
and the state and federal agencies could continue to subsidize the
agricultural industry as they always have. According to Earthjustice,
this would ensure that the emission reductions would occur regardless
of future funding and is consistent with the requirements of the Act.
Earthjustice urges the EPA to disapprove the Valley Incentive Measure
as failing to comply with the Act's basic SIP requirements and to
direct CARB and the District to explore enforceable replacement
mandates.
Response 14: Under the Clean Air Act, the EPA is required to
approve a SIP submission that complies with the provisions of the Act
and applicable federal regulations.\175\ 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. These comments are more
appropriately directed to CARB during its rulemaking processes on
incentive-based measures.
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\175\ 42 U.S.C. 7410(k); 40 CFR 52.02(a). See Bethlehem Steel
Corp. v. Gorsuch, 742 F.2d 1028, 1036 (7th Cir. 1984) (``The state
proposes, . . . the EPA disposes'').
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IV. Final Action
The EPA is partially approving the Valley Incentive Measure, as
amended and clarified by the Technical Corrections Document and the
2021 Clarification Document, into the California SIP in accordance with
section 110(k)(3) of the Act. Specifically, the EPA is approving those
portions of the Valley Incentive Measure, as amended and clarified,
that pertain to incentive projects implemented under California's Carl
Moyer Program and FARMER Program, based on our conclusion that these
portions of the measure satisfy CAA requirements for SIP approval. Upon
our approval of these portions of the Valley Incentive Measure into the
SIP, they become enforceable under the CAA and creditable for
[…truncated; see source link]Indexed from Federal Register on December 27, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.