Proposed Rule2022-21492
Clean Air Plans; 2012 Fine Particulate Matter Serious Nonattainment Area Requirements; San Joaquin Valley, California
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Published
October 5, 2022
Issuing agencies
Environmental Protection Agency
Abstract
On December 29, 2021, the Environmental Protection Agency (EPA or "Agency") published a proposed rule to approve the State of California's Serious area plan for the San Joaquin Valley (SJV) for the 2012 annual fine particulate matter (PM<INF>2.5</INF>) national ambient air quality standards (NAAQS) for all Serious PM<INF>2.5</INF> area planning requirements, except for contingency measures, which the EPA proposed to disapprove. Based on adverse comments submitted on that proposed rule and as a result of a Ninth Circuit Court of Appeals decision on a related SJV PM<INF>2.5</INF> rulemaking for the 2006 24- hour PM<INF>2.5</INF> NAAQS, the EPA has reconsidered its prior proposal and now proposes to disapprove the State's plan for certain Serious area planning requirements for the 2012 annual PM<INF>2.5</INF> NAAQS. The nonattainment plan elements that the EPA proposes to disapprove include the plan's best available control measures (BACM) demonstration for ammonia and building heating, demonstrations of attainment and reasonable further progress, quantitative milestones, and motor vehicle emission budgets. The EPA is also proposing to disapprove the State's optional precursor demonstration for ammonia. We are not re-proposing any action on the Serious area requirements for emissions inventories nor contingency measures; our prior proposal to approve the emissions inventory element and to disapprove the contingency measure element of the nonattainment plan requirements for the 2012 annual PM<INF>2.5</INF> NAAQS remains unchanged. The EPA will accept comments on this new proposed rule during a 45-day public comment period and public hearing, as described in this notice.
Full Text
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<title>Federal Register, Volume 87 Issue 192 (Wednesday, October 5, 2022)</title>
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[Federal Register Volume 87, Number 192 (Wednesday, October 5, 2022)]
[Proposed Rules]
[Pages 60494-60531]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-21492]
[[Page 60493]]
Vol. 87
Wednesday,
No. 192
October 5, 2022
Part III
Environmental Protection Agency
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40 CFR Part 52
Clean Air Plans; 2012 Fine Particulate Matter Serious Nonattainment
Area Requirements; San Joaquin Valley, California; Proposed Rule
Federal Register / Vol. 87 , No. 192 / Wednesday, October 5, 2022 /
Proposed Rules
[[Page 60494]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2021-0884; FRL-9292-03-R9]
Clean Air Plans; 2012 Fine Particulate Matter Serious
Nonattainment Area Requirements; San Joaquin Valley, California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: On December 29, 2021, the Environmental Protection Agency (EPA
or ``Agency'') published a proposed rule to approve the State of
California's Serious area plan for the San Joaquin Valley (SJV) for the
2012 annual fine particulate matter (PM<INF>2.5</INF>) national ambient
air quality standards (NAAQS) for all Serious PM<INF>2.5</INF> area
planning requirements, except for contingency measures, which the EPA
proposed to disapprove. Based on adverse comments submitted on that
proposed rule and as a result of a Ninth Circuit Court of Appeals
decision on a related SJV PM<INF>2.5</INF> rulemaking for the 2006 24-
hour PM<INF>2.5</INF> NAAQS, the EPA has reconsidered its prior
proposal and now proposes to disapprove the State's plan for certain
Serious area planning requirements for the 2012 annual PM<INF>2.5</INF>
NAAQS. The nonattainment plan elements that the EPA proposes to
disapprove include the plan's best available control measures (BACM)
demonstration for ammonia and building heating, demonstrations of
attainment and reasonable further progress, quantitative milestones,
and motor vehicle emission budgets. The EPA is also proposing to
disapprove the State's optional precursor demonstration for ammonia. We
are not re-proposing any action on the Serious area requirements for
emissions inventories nor contingency measures; our prior proposal to
approve the emissions inventory element and to disapprove the
contingency measure element of the nonattainment plan requirements for
the 2012 annual PM<INF>2.5</INF> NAAQS remains unchanged. The EPA will
accept comments on this new proposed rule during a 45-day public
comment period and public hearing, as described in this notice.
DATES: Any comments must arrive by November 21, 2022.
Public hearings: The EPA will host two public hearings on this
proposed rule. The first will take place November 2, 2022, 7:30 p.m. to
8:30 p.m. The second will take place November 3, 2022, 7:00 p.m. to
8:00 p.m. The hearings will be held to accept oral comments on this
proposed rule. Immediately prior to each public hearing, and on October
28, 2022, the EPA will host public meetings on this proposed rule. For
further information on the public hearings and public meetings, please
see the ADDRESSES and SUPPLEMENTAL INFORMATION sections.
ADDRESSES: The November 2, 2022 public hearing will take place at
Fresno City College, Old Administration Building, Room 251, 1101 E
University Ave., Fresno, CA 93741. The November 3, 2022 public hearing
will take place at Bakersfield College, Norman Levan Center, 1801
Panorama Drive, Bakersfield, CA 93305.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2021-
0884, at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. For comments submitted at
<a href="http://Regulations.gov">Regulations.gov</a>, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://Regulations.gov">Regulations.gov</a>. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: For questions regarding this proposed
rule, please contact Rory Mays, Air Planning Office (AIR-2), EPA Region
IX, (415) 972-3227. For questions regarding the public hearings and
related public meetings, please contact Kelley Xuereb, Immediate Office
(AIR-1), EPA Region IX, (415) 947-4171. Both can be reached by emailing
<a href="/cdn-cgi/l/email-protection#0d5e475b5d786f61646e4068687964636a7e4d687d6c236a627b"><span class="__cf_email__" data-cfemail="beedf4e8eecbdcd2d7ddf3dbdbcad7d0d9cdfedbcedf90d9d1c8">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: In addition to the two in-person public
hearings, the EPA will host three public meetings. The public meetings
are an informal opportunity to speak with EPA staff about the action.
We will not accept public comments during the public meetings. The
first meeting will be held virtually on October 28, 2022, 12:00 p.m. to
2:00 p.m. Participants can register to attend the meeting at: <a href="https://usepa.zoomgov.com/meeting/register/vJItc-qppzooGCZI10LqoTXf6OpNZIVbWco">https://usepa.zoomgov.com/meeting/register/vJItc-qppzooGCZI10LqoTXf6OpNZIVbWco</a>.
The second will take place on November 2, 2022, 5:30 p.m. to 7:00
p.m. prior to the public hearing at Fresno City College, Old
Administration Building, Room 251, 1101 E University Ave., Fresno, CA
93741. The third will take place on November 3, 2022, 5:00 p.m. to 6:30
p.m. prior to the public hearing at Bakersfield College, Norman Levan
Center, 1801 Panorama Drive, Bakersfield, CA 93305. Spanish translation
will be available during all three events. If you would like to submit
a request for reasonable accommodation, please email
<a href="/cdn-cgi/l/email-protection#520118040227303e3b311f3737263b3c3521123722337c353d24"><span class="__cf_email__" data-cfemail="07544d515772656b6e644a6262736e6960744762776629606871">[email protected]</span></a>. For additional information and updates,
please visit: <a href="https://www.epa.gov/sanjoaquinvalley">https://www.epa.gov/sanjoaquinvalley</a>.
Throughout this document, ``we,'' ``us,'' and ``our'' refer to the
EPA.
Table of Contents
I. Background for Proposed Action
A. Applicable SIP Submissions, Completeness Review, and Clean
Air Act Requirements
B. December 29, 2021 Proposed Rule
C. Adverse Comments Submitted January 28, 2022
D. Ninth Circuit Decision on Related SJV PM<INF>2.5</INF> Plan
II. Reconsideration of the San Joaquin Valley Serious
PM<INF>2.5</INF> Plan
A. Ammonia Precursor Demonstration
B. Best Available Control Measures
C. Attainment Demonstration
D. Reasonable Further Progress Demonstration and Quantitative
Milestones
E. Motor Vehicle Emission Budgets
III. Environmental Justice Considerations
IV. Title VI of the Civil Rights Act
A. Background on CAA Section 110(a)(2)(E)
B. Background on Title VI of the Civil Rights Act of 1964
C. Comments Received on 2021 Proposed Rule
V. Summary of Proposed Actions and Request for Public Comment
VI. Statutory and Executive Order Reviews
I. Background for Proposed Action
The EPA discussed background, applicable State implementation plan
(SIP) submissions, completeness review, and Clean Air Act (CAA or
``Act'') requirements for the SJV Serious PM<INF>2.5</INF>
[[Page 60495]]
nonattainment area \1\ in sections I, II, and III of our December 29,
2021 proposed rule on California's Serious area plan for the 2012
annual PM<INF>2.5</INF> NAAQS.\2\ We refer to that proposed rule herein
as the ``2021 Proposed Rule,'' briefly summarize the relevant CAA
requirements and our previous proposed action with respect to those
requirements here, and rely on the more detailed expositions in that
proposed rule.
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\1\ For a precise description of the geographic boundaries of
the SJV PM<INF>2.5</INF> nonattainment area, see 40 CFR 81.305.
\2\ 86 FR 74310 (December 29, 2021).
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The EPA promulgated the primary annual PM<INF>2.5</INF> NAAQS of
12.0 micrograms per cubic meter ([micro]g/m\3\) in 2012 (``2012 annual
PM<INF>2.5</INF> NAAQS''),\3\ designated and classified the SJV as
Moderate nonattainment for this NAAQS in 2015,\4\ and reclassified the
SJV from Moderate to Serious nonattainment for this NAAQS in our final
rule published November 26, 2021.\5\ That reclassification action
required California to submit a ``Serious area'' attainment plan. Such
an attainment plan must include, among other things, provisions to
assure that, under CAA section 189(b)(1)(B), the BACM for the control
of direct PM<INF>2.5</INF> and PM<INF>2.5</INF> precursors are
implemented no later than four years after reclassification of the area
and a demonstration (including air quality modeling) that the plan
provides for attainment of this NAAQS as expeditiously as practicable
but no later than December 31, 2025. That reclassification action also
triggered statutory deadlines for California to submit SIP submissions
addressing the Serious area attainment plan requirements for the 2012
annual PM<INF>2.5</INF> NAAQS: June 27, 2023, for emissions
inventories, BACM, and nonattainment new source review (NSR), and
December 31, 2023, for the attainment demonstration and related
planning requirements.
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\3\ 78 FR 3086 (January 15, 2013) and 40 CFR 50.18. Unless
otherwise noted, all references to the PM<INF>2.5</INF> standards in
this notice, including all instances of ``2012 annual
PM<INF>2.5</INF> NAAQS,'' are to the 2012 primary annual NAAQS of
12.0 [micro]g/m\3\ codified at 40 CFR 50.18.
\4\ 80 FR 2206 (January 15, 2015) (codified at 40 CFR 81.305).
\5\ 86 FR 67343 (November 26, 2021).
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A. Applicable SIP Submissions, Completeness Review, and Clean Air Act
Requirements
In this proposed rule, the EPA is proposing action on portions of
two SIP submissions submitted by the California Air Resources Board
(CARB) to address combined nonattainment plan requirements for the
1997, 2006, and 2012 PM<INF>2.5</INF> NAAQS in the SJV.\6\
Specifically, the EPA is proposing to act only on those portions of the
following two plan submissions that pertain to the Serious area
requirements for the 2012 annual PM<INF>2.5</INF> NAAQS: (1) the ``2018
Plan for the 1997, 2006, and 2012 PM<INF>2.5</INF> Standards,'' adopted
by the San Joaquin Valley Unified Air Pollution Control District
(SJVUAPCD or District) on November 15, 2018, and by CARB on January 24,
2019 (``2018 PM<INF>2.5</INF> Plan''); \7\ and (2) the ``San Joaquin
Valley Supplement to the 2016 State Strategy for the State
Implementation Plan,'' adopted by CARB on October 25, 2018 (``Valley
State SIP Strategy'').
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\6\ In our 2021 Proposed Rule, we also proposed action on a
third SIP submission dated July 19, 2019. 86 FR 74310, 74311.
However, the relevant component of that submission pertained only to
contingency measures, and we are not modifying our proposed action
on contingency measures in this proposed rule.
\7\ The 2018 PM<INF>2.5</INF> Plan was developed jointly by CARB
and the District.
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We refer to the relevant portions of these SIP submissions
collectively in this proposal as the ``SJV PM<INF>2.5</INF> Plan'' or
``Plan.'' The SJV PM<INF>2.5</INF> Plan addresses attainment plan
requirements for multiple PM<INF>2.5</INF> NAAQS in the SJV. CARB
submitted the SJV PM<INF>2.5</INF> Plan to the EPA as a revision to the
California SIP on May 10, 2019.\8\ These SIP submissions became
complete by operation of law on November 10, 2019.\9\ In the 2021
Proposed Rule, we proposed to find that the 2018 PM<INF>2.5</INF> Plan
and Valley State SIP Strategy each met the procedural requirements for
public notice and hearing in CAA sections 110(a)(1) and (2) and 110(l)
and 40 CFR 51.102.
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\8\ Letter dated May 9, 2019, from Richard W. Corey, Executive
Officer, CARB, to Mike Stoker, Regional Administrator, EPA Region
IX. Previously, in separate rulemakings, the EPA has finalized
action on the portions of the SJV PM<INF>2.5</INF> Plan that pertain
to the 1997 annual PM<INF>2.5</INF> NAAQS, the 1997 24-hour
PM<INF>2.5</INF> NAAQS, the 2006 24-hour PM<INF>2.5</INF> NAAQS, and
the Moderate area plan for the 2012 annual PM<INF>2.5</INF> NAAQS.
See 86 FR 67329 (November 26, 2021) (final rule regarding the 1997
annual PM<INF>2.5</INF> NAAQS); 87 FR 4503 (January 28, 2022) (final
rule regarding the 1997 24-hour PM<INF>2.5</INF> NAAQS); 85 FR 44192
(July 22, 2020) (final rule regarding the 2006 24-hour
PM<INF>2.5</INF> NAAQS, except contingency measures); and 86 FR
67343 (November 26, 2021) (final rule regarding the Moderate area
plan for the 2012 annual PM<INF>2.5</INF> NAAQS and contingency
measures for the 2006 24-hour PM<INF>2.5</INF> NAAQS).
\9\ 87 FR 74310, 74311-74312. We note that, with respect to
plans previously required for the 1997, 2006, and 2012
PM<INF>2.5</INF> NAAQS, including the Moderate area plan only for
the 2012 annual PM<INF>2.5</INF> NAAQS, the EPA had made findings of
failure to submit effective January 7, 2019, that triggered
sanctions clocks. 83 FR 62720 (December 6, 2018). Following the May
10, 2019 submission of the 2018 PM<INF>2.5</INF> Plan and Valley
State SIP Strategy, the EPA affirmatively determined that the SIP
submissions addressed the deficiency that was the basis for such
findings, resulting in the termination of the associated sanctions
clocks. Letter dated June 24, 2020, from Elizabeth Adams, Director,
Air and Radiation Division, EPA Region IX, to Richard W. Corey,
Executive Officer, CARB. However, the findings of failure to submit
did not apply to the Serious area plan for the 2012 annual
PM<INF>2.5</INF> NAAQS because it was not yet required, and the June
24, 2020 completeness letter did not address the Serious area plan
for the 2012 annual PM<INF>2.5</INF> NAAQS.
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In our 2021 Proposed Rule, we also summarized the CAA requirements
applicable to Serious PM<INF>2.5</INF> nonattainment areas.\10\ In the
current proposed rule, we are proposing action with respect to the
following requirements:
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\10\ 87 FR 74310, 74313.
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(1) Provisions to assure that BACM, including best available
control technology (BACT), for the control of direct PM<INF>2.5</INF>
and all PM<INF>2.5</INF> precursors shall be implemented no later than
four years after the area is reclassified (CAA section 189(b)(1)(B)),
unless the State elects to make an optional precursor demonstration
that the EPA approves authorizing the State not to regulate one or more
of these pollutants;
(2) A demonstration (including air quality modeling) that the plan
provides for attainment as expeditiously as practicable but no later
than the end of the tenth calendar year after designation as a
nonattainment area (i.e., December 31, 2025, for the SJV for the 2012
annual PM<INF>2.5</INF> NAAQS) (CAA sections 188(c)(2) and
189(b)(1)(A)(i));
(3) Plan provisions that require reasonable further progress (RFP)
(CAA section 172(c)(2));
(4) Quantitative milestones that the State must meet every three
years until the EPA redesignates the area to attainment and which
demonstrate RFP toward attainment by the applicable date (CAA section
189(c)); and
(5) Motor vehicle emissions budgets (budgets) for 2025 (CAA section
176(c)).
We are also proposing to disapprove the State's optional precursor
demonstration for ammonia.\11\
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\11\ We are not re-proposing any action on the Serious area
requirements for emissions inventories nor contingency measures; our
prior proposal to approve the emissions inventory element and to
disapprove the contingency measure element of the nonattainment plan
requirements for the 2012 annual PM<INF>2.5</INF> NAAQS remains
unchanged.
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In addition, the State's Serious area plan must meet the general
requirements applicable to all SIP submissions under section 110 of the
CAA, including the requirement to provide necessary assurances that the
implementing agencies have adequate personnel, funding, and authority
under section 110(a)(2)(E); and the requirements concerning enforcement
provisions in section 110(a)(2)(C).
[[Page 60496]]
The EPA provided its preliminary views on the CAA's requirements
for particulate matter plans under part D, title I of the Act in the
following guidance documents: (1) ``State Implementation Plans; General
Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990'' (``General Preamble''); \12\ (2) ``State
Implementation Plans; General Preamble for the Implementation of Title
I of the Clean Air Act Amendments of 1990; Supplemental'' (``General
Preamble Supplement''); \13\ and (3) ``State Implementation Plans for
Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-
10 Nonattainment Areas Generally; Addendum to the General Preamble for
the Implementation of Title I of the Clean Air Act Amendments of 1990''
(``General Preamble Addendum'').\14\ More recently, in an August 24,
2016 final rule entitled, ``Fine Particulate Matter National Ambient
Air Quality Standards: State Implementation Plan Requirements''
(``PM<INF>2.5</INF> SIP Requirements Rule''), the EPA established
regulatory requirements and provided further interpretive guidance on
the statutory SIP requirements that apply to areas designated
nonattainment for all PM<INF>2.5</INF> NAAQS.\15\ We discuss these
regulatory requirements and interpretations of the Act as appropriate
in our evaluation of the State's submissions below.
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\12\ 57 FR 13498 (April 16, 1992).
\13\ 57 FR 18070 (April 28, 1992).
\14\ 59 FR 41998 (August 16, 1994).
\15\ 81 FR 58010 (August 24, 2016).
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B. December 29, 2021 Proposed Rule
In our 2021 Proposed Rule, the EPA proposed to approve the SJV
PM<INF>2.5</INF> Plan's: (1) emissions inventory for the 2013 base
year; (2) precursor demonstrations that emissions of ammonia, sulfur
oxides (SO<INF>X</INF>), and volatile organic compounds (VOC) do not
significantly contribute to exceedances of the 2012 annual
PM<INF>2.5</INF> NAAQS in the SJV; (3) BACM demonstration for emission
sources of direct PM<INF>2.5</INF> and nitrogen oxides
(NO<INF>X</INF>); (4) attainment demonstration based on air quality
modeling \16\ and emissions reductions related to aggregate
commitments; (5) RFP demonstration; (6) quantitative milestones; and
(7) motor vehicle emission budgets. We briefly summarize several
aspects of those proposed approvals in the applicable sub-sections of
section II of this proposed rule.
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\16\ We described 2018 PM<INF>2.5</INF> Plan's air quality
modeling and our evaluation thereof in section IV.C of the 2021
Proposed Rule.
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We also proposed to disapprove the Plan's contingency measures and
noted the requirements for nonattainment NSR and the State's separate
submission for the nonattainment NSR requirements. However, as we are
not re-proposing any action on contingency measures nor nonattainment
NSR in this proposed rule, we do not summarize those proposals
herein.\17\ In addition, we are not re-proposing any action on the
Plan's precursor demonstrations for SO<INF>X</INF> and VOC in this
proposed rule; our 2021 Proposed Rule to approve the 2018
PM<INF>2.5</INF> Plan's demonstrations that emissions of SO<INF>X</INF>
and VOC do not significantly contribute to exceedances of the 2012
annual PM<INF>2.5</INF> NAAQS in the SJV remains unchanged.
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\17\ Regarding nonattainment NSR, please see the EPA's separate
rulemaking on the State's November 20, 2019 SIP submission of
amendments to SJVUAPCD Rule 2201 (``New and Modified Stationary
Source Review''). 87 FR 45730 (July 29, 2022) (proposed limited
approval and limited disapproval of the Rule 2201 amendments).
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Finally, we are not re-proposing any action in this proposed rule
on the Plan's base year emissions inventory; our 2021 Proposed Rule to
approve the 2018 PM<INF>2.5</INF> Plan's base year emissions inventory
remains unchanged. Nevertheless, we briefly summarize our prior
proposal \18\ given the role that base year emissions inventories play
in developing a plan's control strategy and attainment and RFP
demonstrations.
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\18\ See section IV.A of the EPA's 2021 Proposed Rule.
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The 2018 PM<INF>2.5</INF> Plan includes summaries of the planning
emissions inventories for direct PM<INF>2.5</INF> and all
PM<INF>2.5</INF> precursors (NO<INF>X</INF>, SO<INF>X</INF>,\19\
VOC,\20\ and ammonia) and related documentation. The Plan contains
annual average daily emission inventories for 2013 through 2028
projected from the 2012 actual emissions inventory,\21\ including the
2013 base year, the 2019 and 2022 RFP milestone years, the 2025 Serious
area attainment year, and a 2028 post-attainment RFP year. The EPA
proposed to approve the 2013 base year emissions inventory in the 2018
PM<INF>2.5</INF> Plan as meeting the requirements of CAA section
172(c)(3) and 40 CFR 51.1008. We also proposed to find that the future
year baseline inventories in the 2018 PM<INF>2.5</INF> Plan satisfy the
requirements of 40 CFR 51.1008(b)(2) and 51.1012(a)(2) and provide an
adequate basis for the control measure, attainment, and RFP
demonstrations for the 2012 annual PM<INF>2.5</INF> NAAQS in the 2018
PM<INF>2.5</INF> Plan.
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\19\ The SJV PM<INF>2.5</INF> Plan generally uses ``sulfur
oxides'' or ``SO<INF>X</INF>'' in reference to SO<INF>2</INF> as a
precursor to the formation of PM<INF>2.5</INF>. We use
SO<INF>X</INF> and SO<INF>2</INF> interchangeably throughout this
notice.
\20\ The SJV PM<INF>2.5</INF> Plan generally uses ``reactive
organic gasses'' or ``ROG'' in reference to VOC as a precursor to
the formation of PM<INF>2.5</INF>. We use ROG and VOC
interchangeably throughout this notice.
\21\ 2018 PM<INF>2.5</INF> Plan, App. B, B-18.
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C. Adverse Comments Submitted January 28, 2022
The EPA received adverse comments on our 2021 Proposed Rule from a
coalition of 13 environmental, public health, and community
organizations (collectively referred to herein as ``Public
Justice'').\22\ We are not responding to these comments (in the sense
of a final rulemaking action) in this proposed rule, but the Agency has
taken them into account with respect to the Serious area plan elements
discussed in this proposed rule.
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\22\ Comment letter dated and received January 28, 2022, from
Brent Newell, Public Justice, et al., to Rory Mays, EPA, including
Exhibits 1 through 47. We note, however, that there is no Exhibit
23; so, there are 46 exhibits in total. Email dated February 1,
2022, from Brent Newell, Public Justice, to Rory Mays, EPA Region
IX. The 13 environmental, public health, and community organizations
are Public Justice, Central Valley Environmental Justice Network,
Association of Irritated Residents, Central Valley Air Quality
Coalition, Leadership Counsel for Justice and Accountability, Valley
Improvement Projects, The LEAP Institute, Little Manila Rising,
Center for Race, Poverty, and the Environment, Central California
Asthma Collaborative, Animal Legal Defense Fund, National Parks
Conservation Association, and Food and Water Watch (collectively
``Public Justice'').
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Overall, the commenters argue that the EPA must disapprove the 2012
annual PM<INF>2.5</INF> NAAQS portion of the SJV PM<INF>2.5</INF> Plan
based on alleged nonattainment plan requirement deficiencies in the
submissions. We introduce these comments in this section of this
proposed rule and present more detailed summaries and discussion of the
comments in sections II.A (ammonia precursor demonstration), II.B.2
(BACM for ammonia emission sources), II.B.3 (BACM for building heating
emission sources), II.C (attainment demonstration), and IV (Title VI of
the Civil Rights Act).
Regarding CAA requirements for PM<INF>2.5</INF>, Public Justice
points to a history of failures to timely attain the 1997 annual
PM<INF>2.5</INF> NAAQS in the SJV and states that ``[r]egulators point
to a host of excuses from weather, to international sources, to Federal
inaction, but repeatedly the State and Air District have refused to
adopt feasible controls or regulate politically powerful entities''
such as agricultural sources of air pollution.\23\ The commenters take
issue with the EPA's proposal to approve the plan for the stricter 2012
standard ``without performing its duty to hold [CARB] and the
[District] accountable to meet the
[[Page 60497]]
minimum requirements Congress imposed to protect human health.'' \24\
The commenters assert that the EPA relies on flawed, outdated
information, ignores feasible controls, refuses to require regulation
of ammonia, accepts aggregate commitments in lieu of other control
strategies, and fails to address pollution sources in disadvantaged
communities in the SJV.\25\ With respect to specific CAA requirements,
the commenters argue that the EPA must disapprove the Plan's emissions
inventory, ammonia precursor demonstration, BACM demonstration, and
aggregate commitments.
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\23\ Public Justice Comment Letter, 2.
\24\ Id.
\25\ Id. at 3.
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Regarding Title VI of the Civil Rights Act, the commenters argue
that California must provide necessary assurances that the SIP complies
with Title VI of the Civil Rights Act, pursuant to CAA section
110(a)(2)(E), and failed to do so.\26\ The commenters state that
``PM<INF>2.5</INF> pollution has a disparate impact on the basis of
race in the San Joaquin Valley'' and assert that the Plan fails to meet
CAA requirements and ``deliberately ignores obvious sources and control
options and inflicts disparate impacts on Black, Latino, Indigenous,
and people of color'' in the SJV. Therefore, the commenters advocate
that the EPA must disapprove the 2012 annual PM<INF>2.5</INF> portion
of the SJV PM<INF>2.5</INF> Plan.\27\ We address the commenters' Title
VI comments in section IV of this proposed rule.
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\26\ Id. at 10-14.
\27\ Id. at 1 and 21.
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The EPA is now proposing to disapprove the Plan with respect to
certain CAA requirements (BACM/BACT for ammonia emission sources, BACM/
BACT for building heating emission sources, aggregate commitments,
attainment demonstration, RFP demonstration, quantitative milestones,
and motor vehicle emission budgets). However, we are not in this
proposal comprehensively addressing all issues raised in the Public
Justice comment letter.\28\
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\28\ Additional source categories named by Public Justice
include, for example, residential wood burning, open burning,
conservation management practices at farming operations, soil
NO<INF>X</INF> emissions, stationary agricultural internal
combustion engines, and cleaner mobile agricultural equipment
engines. Public Justice Comment Letter, 18-20.
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D. Ninth Circuit Decision on Related SJV PM2.5 Plan
In a final rule published July 22, 2020, the EPA finalized approval
of the portions of the SJV PM<INF>2.5</INF> Plan \29\ that addressed
the 2006 24-hour PM<INF>2.5</INF> NAAQS (except for contingency
measures, which the EPA acted on in a subsequent action).\30\ On
September 17, 2020, a group of five environmental, public health, and
community groups (collectively referred to herein as ``Medical
Advocates'') petitioned the Ninth Circuit Court of Appeals (``Ninth
Circuit'' or ``Court'') for review of the EPA's July 22, 2020 final
rule.\31\ On April 13, 2022, the Ninth Circuit issued a Memorandum
opinion that granted in part and denied in part the petition
(``Memorandum Opinion'').\32\
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\29\ 85 FR 44192.
\30\ 86 FR 67343 (disapproving contingency measures for the 2006
24-hour PM<INF>2.5</INF> NAAQS).
\31\ Medical Advocates for Healthy Air v. EPA, Case No. 20-
72780, Dkt. #1 (9th Cir., September 17, 2020). The five
environmental, public health, and community organizations, in order
of appearance in the petition, are Medical Advocates for Healthy
Air, National Parks Conservation Association, Association of
Irritated Residents, and Sierra Club (collectively ``Medical
Advocates'').
\32\ Medical Advocates for Healthy Air v. EPA, Case No. 20-
72780, Dkt. #58-1 (9th Cir., April 13, 2022).
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The Ninth Circuit denied the petitioners' challenge with respect to
the EPA's approval of enforceable commitments in general and the EPA's
approval of the Plan's demonstration of BACM, BACT, and most stringent
measures (MSM) for emission sources of direct PM<INF>2.5</INF> and
NO<INF>X</INF> for purposes of the 2006 24-hour PM<INF>2.5</INF> NAAQS.
Significantly, however, the Ninth Circuit also denied in part and
granted in part the petitioners' challenge with respect to the EPA's
approval of the specific enforceable commitments employed as part of
the SJV PM<INF>2.5</INF> Plan's control strategy to attain the 2006 24-
hour PM<INF>2.5</INF> NAAQS in the SJV by December 31, 2024. The EPA
evaluates enforceable commitments based on three factors: (1) the
commitment represents a limited portion of the required emission
reductions, (2) the State is capable of fulfilling its commitment, and
(3) the commitment is for a reasonable and appropriate timeframe. The
Ninth Circuit denied the petitioners' challenge with respect to the
first and third factors but granted the petitioners' challenge with
respect to the second factor.
The Ninth Circuit found that the EPA had misapplied the second
factor concerning the State's ability to fulfill the aggregate
commitments. The Court reasoned that EPA ``fail[ed] to provide evidence
or a reasoned explanation for its conclusion that California will be
able to fulfill its commitment'' in the face of a potential multi-
billion dollar funding shortfall for incentive-based control measure
commitments, ``which could result in emission reduction shortfalls of
approximately 7% of the total NO<INF>X</INF> reductions and 8% of the
total PM<INF>2.5</INF> reductions necessary for attainment.'' \33\ The
Court also rejected the EPA's arguments that: (1) the funding shortfall
may be smaller than projected, (2) emission reductions may be less
expensive than the strategy predicts, (3) certain yet-to-be-quantified
sources of reductions in the Plan may make up for shortfalls, and (4)
California and the District may identify other measures to fulfill
their commitments. Instead, the Court decided that, ``[b]ecause these
speculative assertions are unsupported by the evidence, they fail to
ensure that California and the District have a plausible strategy for
achieving this portion of the attainment strategy, and therefore do not
collectively satisfy the second factor of the EPA's three-factor
test.'' \34\ The Court concluded that the EPA's analysis with respect
to the second factor for evaluating enforceable commitments was
arbitrary and capricious, vacated the final rule with respect to this
factor, and remanded the matter to the EPA for further consideration of
the second factor.\35\
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\33\ Id. at 6.
\34\ Id. at 7.
\35\ Id. at 10.
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The EPA is currently considering how to address the Court's vacatur
and remand with respect to the 2006 24-hour PM<INF>2.5</INF> NAAQS
portion of the SJV PM<INF>2.5</INF> Plan and is not proposing any
action with respect to those standards in this proposed rule. However,
the Ninth Circuit's decision is very relevant to this proposed rule
because the State relied on a common control strategy, including the
same enforceable commitments (i.e., the same set of control measure
commitments and aggregate tonnage commitments) for purposes of both the
2006 24-hour PM<INF>2.5</INF> NAAQS Serious area plan and the 2012
annual PM<INF>2.5</INF> NAAQS Serious area plan. The EPA acknowledges
the deficiency in the factual support for the aggregate commitments
identified by the Ninth Circuit and that this remains the case. If the
EPA cannot approve the aggregate commitments, then this has a direct
bearing on other elements of the State's Serious area SIP submissions
for the 2012 annual PM<INF>2.5</INF> NAAQS. As discussed in section
II.C of this proposed rule, based on our reconsideration of the facts
concerning the enforceable commitments in the SJV PM<INF>2.5</INF> Plan
with respect to the 2012 annual PM<INF>2.5</INF> NAAQS in light of the
Ninth Circuit's decision, the EPA now proposes to disapprove the
State's enforceable commitments and attainment demonstration.
[[Page 60498]]
II. Reconsideration of the San Joaquin Valley Serious PM2.5 Plan
The EPA has reconsidered its 2021 Proposed Rule, based on adverse
comments on that prior proposal and based on a Ninth Circuit Court of
Appeals decision on a related SJV PM<INF>2.5</INF> rulemaking. After
careful consideration of the issues raised by commenters and the court,
the EPA now proposes to disapprove the State's plan for the 2012 annual
PM<INF>2.5</INF> NAAQS in the SJV for certain Serious area planning
requirements, including: (1) the Plan's precursor demonstration for
ammonia; (2) BACM for ammonia emission sources and BACM for building
heating emission sources; (3) the modeled attainment demonstration; (4)
the RFP demonstration; (5) quantitative milestones; and (6) motor
vehicle emission budgets.
In sections II.A through II.C of this proposed rule, pertaining to
the Plan's precursor demonstration for ammonia as a PM<INF>2.5</INF>
precursor; BACM/BACT analysis, and modeled attainment demonstration
(including reliance on enforceable commitments), we present a brief
summary of the 2021 Proposed Rule, a summary of the adverse comments
and Ninth Circuit order, as appropriate, and our reconsidered proposal.
In sections II.D and II.E, pertaining to the Plan's RFP demonstration,
quantitative milestones, and motor vehicle emission budgets, we present
a brief summary of the 2021 Proposed Rule and our reconsidered
proposal.\36\ We also note that sections II.A (ammonia precursor
demonstration) and II.B.1 (BACM for ammonia emission sources) are
inter-related in that potential control measures for ammonia emission
sources play a role in both: (1) selecting a reasonable percent
emission reduction to evaluate modeled ambient PM<INF>2.5</INF>
responses to ammonia emission reductions; and (2) assessing the
availability and application of BACM to such sources in the SJV.
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\36\ The Plan's RFP demonstration, quantitative milestones, and
motor vehicle emission budgets were not the direct subject of
adverse comments nor the Ninth Circuit decision. However, they are
based on the Plan's control strategy to attain the 2012 annual
PM<INF>2.5</INF> NAAQS and, thus, the flaws in the Plan's control
strategy affect these additional required elements.
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A. Ammonia Precursor Demonstration
1. Summary of 2021 Proposed Rule
In our 2021 Proposed Rule, the EPA described the requirements for
PM<INF>2.5</INF> precursor pollutants, summarized the State's
submissions in the SJV PM<INF>2.5</INF> Plan, and presented our
evaluation thereof.\37\ We briefly summarize those here with respect to
the Plan's demonstration for ammonia as a precursor to PM<INF>2.5</INF>
for purposes of the 2012 annual PM<INF>2.5</INF> NAAQS in the SJV. For
a comprehensive discussion of Federal requirements for PM<INF>2.5</INF>
precursors and a summary of California's submission, please refer to
the following headings in Section IV.B of the 2021 Proposed Rule: (1)
Requirements for Control of PM<INF>2.5</INF> Precursors; and (2)
Summary of State's Submission.
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\37\ 86 FR 74310, 74317-74321.
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Regarding CAA requirements applicable to PM<INF>2.5</INF>
precursors, we explained that the attainment plan requirements of Title
I, subpart 4 apply to emissions of direct PM<INF>2.5</INF> and
emissions of NO<INF>X</INF>, ammonia, SO<INF>2</INF>, and VOC as
PM<INF>2.5</INF> precursors from all types of stationary, area, and
mobile sources, except as otherwise provided in the Act. We further
described how the EPA interprets section 189(e) concerning regulation
of precursors from major stationary sources to authorize it to
determine, under appropriate circumstances, that regulation of specific
PM<INF>2.5</INF> precursors from other sources in a given nonattainment
area is not necessary.
As explained in the PM<INF>2.5</INF> SIP Requirements Rule, a State
may elect to submit to the EPA a ``comprehensive precursor
demonstration'' for a specific nonattainment area to show that
emissions of a particular precursor from existing sources located in
the nonattainment area do not contribute significantly to
PM<INF>2.5</INF> levels that exceed the standard in the area.\38\ The
contribution analysis may consider the sensitivity of PM<INF>2.5</INF>
to decreases in emissions of the precursor, in addition to the
contribution to ambient concentrations of PM<INF>2.5</INF>.\39\ If the
EPA determines that the contribution of the precursor to
PM<INF>2.5</INF> levels in the area is not significant and approves the
demonstration, then the State is not required to control emissions of
the relevant precursor in the attainment plan.\40\
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\38\ 40 CFR 51.1006(a)(1).
\39\ 40 CFR 51.1006(a)(1)(ii).
\40\ 40 CFR 51.1006(a)(1)(iii).
---------------------------------------------------------------------------
The EPA issued the ``PM<INF>2.5</INF> Precursor Demonstration
Guidance'' (``PM<INF>2.5</INF> Precursor Guidance''),\41\ to provide
recommendations to states for analyzing nonattainment area
PM<INF>2.5</INF> and PM<INF>2.5</INF> precursor emissions and
developing such optional precursor demonstrations, consistent with the
PM<INF>2.5</INF> SIP Requirements Rule. The guidance also describes how
the State may use a sensitivity-based test, in which the modeled
sensitivity or response of ambient PM<INF>2.5</INF> concentrations to
changes in emissions of the precursor is estimated and then compared to
a contribution threshold. In addition to comparing the concentration or
modeled response to the threshold, the State can consider other
information in assessing whether the precursor significantly
contributes. The EPA's recommended annual average contribution
threshold for the 2012 annual PM<INF>2.5</INF> NAAQS is 0.2 [micro]g/
m\3\.\42\ In other words, if the estimated contribution of a precursor
at monitors is below this threshold, the EPA considers this evidence
that the precursor does not contribute significantly to levels above
the PM<INF>2.5</INF> NAAQS in the area in question; above this
threshold, the EPA considers this evidence that the precursor does
contribute significantly. The EPA considers this evidence in
conjunction with additional information that the State may provide, and
determines whether or not the precursor contributes significantly, and
so whether the State must evaluate and implement controls of the
precursor emissions to the appropriate level (e.g., BACM).
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\41\ ``PM<INF>2.5</INF> Precursor Demonstration Guidance,'' EPA-
454/R-19-004, May 2019, including Memo dated May 30, 2019, from
Scott Mathias, Acting Director, Air Quality Policy Division and
Richard Wayland, Director, Air Quality Assessment Division, Office
of Air Quality Planning and Standards (OAQPS), EPA to Regional Air
Division Directors, Regions 1-10, EPA.
\42\ PM<INF>2.5</INF> Precursor Guidance, 17.
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The State presents its precursor demonstration primarily in
Appendix G of the 2018 PM<INF>2.5</INF> Plan, with additional
clarifying information in a series of emails available in the docket
for this proposed rule. The State estimates that anthropogenic
emissions of NO<INF>X</INF>, ammonia, SO<INF>X</INF>, and VOC will
decrease by 64 percent (%), 1%, 6%, and 9%, respectively, between 2013
and 2025 based on its projected emissions accounting for existing and
additional control measures in the Serious area plan.\43\ Through a
concentration-based analysis, CARB found that ammonium nitrate
constituted 5.2 [micro]g/m\3\ of the annual average PM<INF>2.5</INF>
concentrations measured at the Bakersfield California Avenue monitor in
2015, exceeding the recommended threshold,\44\ and proceeded to conduct
a sensitivity-based analysis.
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\43\ 2018 PM<INF>2.5</INF> Plan, Ch. 7, 7-5 and Table 7-2.
\44\ 2018 PM<INF>2.5</INF> Plan, App. G, 3.
---------------------------------------------------------------------------
For analytical purposes in accordance with the EPA's guidance, the
State then modeled the sensitivity of ambient PM<INF>2.5</INF> to
hypothetical 30% and 70% reductions in anthropogenic emissions of
ammonia in SJV for modeled years
[[Page 60499]]
2013, 2020, and 2024. The results for 2024 are a proxy for the Plan's
modeled attainment year of 2025 for the 2012 annual PM<INF>2.5</INF>
NAAQS. For the 30% reduction results for 2024, upon which the State
primarily relied, 2 out of 15 monitoring sites in SJV (Madera and
Hanford) had modeled responses to ammonia reductions that were above
the threshold. The ambient PM<INF>2.5</INF> response declines
substantially from 2020 to 2024, with the decline being generally
larger for the sites with the highest projected PM<INF>2.5</INF>
levels. The State supplements the sensitivity analysis for ammonia with
consideration of additional information such as emission trends, the
appropriateness of future year versus base year sensitivity, available
emission controls, and the severity of nonattainment.\45\
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\45\ Id. at App. G, 5.
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The State's precursor demonstration for ammonia also presents a
review of District agricultural rules that control VOC emissions, but
also provide ammonia reduction co-benefits. The State concludes that a
30% reduction is a reasonable upper bound on the potential ammonia
reductions to model. Finally, the State's precursor demonstration
presents extensive support for the State's conclusion that there is an
ambient excess of ammonia relative to nitrate, i.e., that particulate
ammonium nitrate formation in SJV is NO<INF>X</INF>-limited, and will
become increasingly NO<INF>X</INF>-limited as NO<INF>X</INF> reductions
increase into the future from the State's motor vehicle control program
and other measures the State intends to undertake in the Serious area
plan. Based on the forgoing considerations, the State concludes that
ammonia emissions do not contribute significantly to ambient
PM<INF>2.5</INF> levels that exceed the 2012 annual PM<INF>2.5</INF>
NAAQS in the SJV.
The EPA presented its initial evaluation of the State's ammonia
precursor demonstration in section IV.B.3.a of the 2021 Proposed Rule,
with more detailed summaries and evaluation in two EPA technical
support documents (TSDs): ``Technical Support Document, EPA Evaluation
of PM<INF>2.5</INF> Precursor Demonstration, San Joaquin Valley
PM<INF>2.5</INF> Plan for the 2006 PM<INF>2.5</INF> NAAQS,'' February
2020 (``EPA's PM<INF>2.5</INF> Precursor TSD''), and ``Technical
Support Document, EPA Evaluation of Ammonia Precursor Demonstration,
San Joaquin Valley Moderate Area PM<INF>2.5</INF> Plan for the 2012
PM<INF>2.5</INF> NAAQS,'' August 2021 (``EPA's Ammonia Precursor
TSD'').
We noted that the EPA's PM<INF>2.5</INF> Precursor Guidance
provides for consideration of future year sensitivity and that
consideration of additional information beyond the concentration-based
and sensitivity-based analyses may be appropriate in assessing a
precursor's significance. We summarized the State's assertions that 30%
is a reasonable upper bound for potential ammonia emission reductions
based on research cited in Appendix C of the 2018 PM<INF>2.5</INF> Plan
concerning ammonia emissions and potential control options for
agricultural sources.\46\ However, we did not elaborate in the 2021
Proposed Rule as to why we proposed to agree that 30% was a reasonable
upper bound.
---------------------------------------------------------------------------
\46\ EPA's PM<INF>2.5</INF> Precursor TSD, 13.
---------------------------------------------------------------------------
We stated that ambient PM<INF>2.5</INF> responses to ammonia
emission reductions decline over time, and in concert with the large
projected NO<INF>X</INF> emission reductions, with the largest declines
occurring at sites with highest projected PM<INF>2.5</INF> levels. For
the two sites (Madera and Hanford) where the State's modeled response
in 2024 to a 30% ammonia emission reduction exceeded the recommended
0.2 [micro]g/m\3\ threshold, we evaluated additional information and,
based on that information, gave the modeled projected responses above
the threshold at these sites less weight.
We also considered studies cited by CARB on the 2013 DISCOVER-AQ
aircraft measurements and 2017 satellite measurements, both of which
suggest that ammonia concentrations are underestimated in the SJV. We
noted that if modeled ammonia concentrations were closer to
observations, then the modeled response to ammonia precursor reductions
would be lower than shown in the 2018 PM<INF>2.5</INF> Plan's precursor
demonstration. Similarly, an increase in modeled ambient ammonia
concentrations would also make the model response more consistent with
the evidence from the multiple ambient measurement studies that suggest
a very low ambient sensitivity to ammonia, based on measured excess
ammonia relative to NO<INF>X</INF>, the abundance of particulate
nitrate relative to gaseous NO<INF>X</INF>, and the large abundance of
ammonia relative to nitric acid. These ambient measurement studies all
conclude that there is a large amount of ammonia left over after
reacting with NO<INF>X</INF>, so that ammonia emission reductions would
be expected mainly to reduce the amount of ammonia excess, rather than
to reduce the particulate ammonium nitrate, and thus provided strong
evidence independent of the modeling that ambient PM<INF>2.5</INF>
levels would respond comparatively weakly to ammonia emissions
reductions.
Regarding changes in the effect of ammonia emission reductions over
time as other pollutant levels change, we stated it was appropriate to
consider changes in atmospheric chemistry that may occur between the
base or current year and the attainment year because the changes may
ultimately affect the nonattainment area's progress toward expeditious
attainment. We stated that the 2024 model results would in this case
better represent the point in time at which it is appropriate to
evaluate what potential ammonia controls could achieve, because of the
steep decline in NO<INF>X</INF> emissions the State projects will occur
by 2024 and 2025 as a result of existing or intended control measures.
We also noted that the projected annual average PM<INF>2.5</INF>
concentration of 12.0 [micro]g/m\3\, occurring at the Bakersfield-Planz
monitoring site in 2025, would be reduced by 0.12 [micro]g/m\3\, which
would not be considered significant (it is below the EPA's recommended
threshold of 0.2 [micro]g/m\3\).
In sum, we concluded that the State had evaluated the sensitivity
of ambient PM<INF>2.5</INF> levels to potential reductions in ammonia
emissions using appropriate modeling techniques; the modeled response
to ammonia reductions is likely lower than reported; and the State's
choice of 2024 and 2025 as the reference points for purposes of
evaluating the sensitivity of ambient PM<INF>2.5</INF> levels to
ammonia emission reductions was well-supported. Based on all of these
considerations, the EPA previously proposed to approve the State's
demonstration that ammonia emissions do not contribute significantly to
ambient PM<INF>2.5</INF> levels that exceed the 2012 annual
PM<INF>2.5</INF> NAAQS in the SJV.
2. Summary of Adverse Comments
Public Justice states that the ``EPA must disapprove the ammonia
precursor demonstration'' and that ``CARB's tortured analysis (and
EPA's proposed acceptance of it)'' is arbitrary and capricious. The
commenter makes several assertions in support of this comment.\47\
---------------------------------------------------------------------------
\47\ Public Justice Comment Letter, 16-18.
---------------------------------------------------------------------------
First, Public Justice notes that CARB's analysis concluded that
ammonia contributes 5.2 [micro]g/m\3\ to annual average
PM<INF>2.5</INF> concentrations, and that this is well above the EPA's
recommended annual average contribution threshold of 0.2 [micro]g/
m\3\.\48\ The commenters also
[[Page 60500]]
took issue with CARB and the EPA's arguments that such results
overstate the role of ammonia because NO<INF>X</INF> emissions decline
over time, and the EPA's decision to look at the results of sensitivity
modeling for the response of ambient PM<INF>2.5</INF> levels to
potential ammonia emission reductions in the future year 2024. The
commenters assert that this analytical approach of considering the
projected sensitivity to ammonia reductions in the future year
``ignores the statutory imperative to demonstrate attainment as
expeditiously as practicable,'' per CAA section 172(a)(2)(A), and that,
even after evaluating the impact ``for the most favorable date''
(2024), CARB still found significant contribution for ammonia above the
EPA's recommended threshold.
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\48\ The commenters note that 38% of the annual average ambient
PM<INF>2.5</INF> in Bakersfield is ammonium nitrate. Public Justice
Comment Letter, 6. See also, 2018 PM<INF>2.5</INF> Plan, Ch. 3,
Figure 3-2 (``Bakersfield PM<INF>2.5</INF> Speciation (Average 2011
to 2013)'').
---------------------------------------------------------------------------
Second, Public Justice questioned CARB's reliance and the EPA's
proposed acceptance of a sensitivity analysis that assumed only a 30%
modeled reduction of ammonia emissions. Public Justice points out that
the EPA's guidance for precursor demonstrations suggests that states
should evaluate the effect of reducing emissions between 30% and 70%,
and states that ``CARB argues, and EPA agrees, that only the minimal 30
percent control level is reasonable'' despite large ammonia sources
(e.g., ``industrial dairy and poultry operations'') never having been
regulated in the SJV and the prospect for relatively easier and cheaper
emission reductions than those for NO<INF>X</INF>.\49\ The commenters
argue that ``[t]he analysis of potential controls is particular[ly]
weak and ignores the wealth of literature demonstrating that strategies
for reducing ammonia emissions from agriculture . . . are among the
most effective for reducing PM concentrations,'' and cite several
studies in support of this argument. The commenters further state that
reducing ammonia emissions may be achieved through ``strategies such as
improving livestock feed to reduce excreted nutrients, altering manure
storage and handling practices to prevent [ammonia] emissions, and
improving synthetic fertilizer use efficiency,'' again citing numerous
studies.\50\ The commenters state that agriculture is responsible for
over 80% of ammonia emissions, and that confined animal facilities
(CAFs) and fertilizer application account for 57% and 36%,
respectively.\51\ Moreover, the commenters assert that ``[n]o real
analysis of control potential is offered'' in the State's precursor
demonstration.
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\49\ Public Justice Comment Letter, 2, 5, and 16-17, and
Exhibits 31 through 34.
\50\ Public Justice Comment Letter, 16-17, Exhibits 35 through
40 and three additional studies: N. Cole, et al., ``Influence of
dietary crude protein concentration and source on potential ammonia
emissions from beef cattle manure,'' J. Anim. Sci. 83, 722, 2005; N.
Cole, P. Defoor, M. Galyean, G. Duff, J. Gleghorn, ``Effects of
phase-feeding of crude protein on performance, carcass
characteristics, serum urea nitrogen concentrations, and manure
nitrogen of finishing beef steers,'' J. Anim. Sci. 12, 3421-3432,
2006; and R. Todd, N. Cole, R. Clark, ``Reducing crude protein in
beef cattle diet reduces ammonia emissions from artificial feedyard
surfaces,'' J. Environ. Qual. 35, 404-411, 2006.
\51\ Public Justice Comment Letter, 5-6, 16, citing See EPA
Region IX, ``Technical Support Document, EPA Evaluation of
PM<INF>2.5</INF> Precursor Demonstration, San Joaquin Valley
PM<INF>2.5</INF> Plan for the 2006 PM<INF>2.5</INF> NAAQS.'' We note
that our TSD in turn cited to State data sources, including the 2018
PM<INF>2.5</INF> Plan, App. G, Figure 3.
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Third, with respect to the State and the EPA's evaluation of
modeled ambient PM<INF>2.5</INF> responses to ammonia emission
reductions in 2024, Public Justice states that, in the low (30%)
emission scenario, 2 of 15 monitoring sites have responses over the 0.2
[micro]g/m\3\ recommended threshold and that the EPA argues ``with
extremely biased evidence, that the results at one of the two monitors
could be ignored and that ammonia emissions area likely
underestimated.'' The commenters assert that ``EPA points to evidence
that `the State did not discuss' to discount the results'' for the
Madera monitor, and that the EPA ``offers no excuse for discrediting
the results at the other monitor.''
Fourth, the commenters claim that the EPA's evaluation of the
precursor demonstration looked at supplemental ammonia emission studies
but ignored supplemental studies showing that NO<INF>X</INF> emissions
from soil (``soil NO<INF>X</INF>'') may be significantly
underestimated. Public Justice states that the State and the EPA
``assert that NO<INF>X</INF> emissions will be significantly reduced by
2024 even though the Plan currently does not explain how those
NO<INF>X</INF> reductions will occur.'' The commenters state that such
approach is ``a one-sided attempt to explain away modeled results that
ammonia contributes significantly to PM<INF>2.5</INF>'' in the SJV and
cannot overcome the Act's presumption that precursors must be
controlled.
Finally, beyond the assertion that the State's precursor
demonstration with respect to ammonia, and the EPA's proposed approval
of it are incorrect, the commenters also argue that the State's failure
to address ammonia as a precursor to PM<INF>2.5</INF> has disparate
impacts on certain communities within SJV and ``avoids difficult
political fights by sacrificing communities of color.'' Finally, the
commenters refer to a 2021 research study that estimates that 1,690
people in California die annually due to agricultural ammonia
emissions.\52\
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\52\ Public Justice Comment Letter, 18. See Domingo, N.G.G.,
Balasubramanian, S., Thakrar, S.K., Clark, M.A., Adams, P.J.,
Marshall, J.D., Muller, N.Z., Pandis, S.N., Polasky, S., Robinson,
A.L., Tessum, C.W., Tilman, D., Tschofen, P., & Hill, J.D., ``Air
quality-related health damages of food,'' Proceedings of the
National Academy of Sciences (Vol. 118, Issue 20, p. e2013637118),
2021, available at <a href="https://doi.org/10.1073/pnas.2013637118">https://doi.org/10.1073/pnas.2013637118</a>, attached
as Exhibit 35. See Supplementary Information for ``Air quality-
related health damages of food,'' Table S2 (``Annual emissions and
mortality caused by agricultural production in the 10 states where
emissions of (A) primary PM<INF>2.5</INF>, (B) NH<INF>3</INF>, (C)
NO<INF>X</INF>, (D) SO<INF>2</INF>, and (E) NMVOCs lead to the
highest total mortality'').
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3. The EPA's Reconsidered Proposal
The EPA agrees with certain points made by the commenters with
respect to ammonia and disagrees with others. Overall, based on the
adverse comments from Public Justice and a re-evaluation of the
information provided by the State, we now conclude that the weight of
evidence is insufficient to establish that ammonia does not contribute
significantly to PM<INF>2.5</INF> levels above the NAAQS in the SJV.
The EPA's further evaluation indicates that it is appropriate to retain
the statutory presumption that ammonia must be regulated as a precursor
for the 2012 annual PM<INF>2.5</INF> NAAQS in the SJV. Accordingly, if
the EPA finalizes disapproval of the State's ammonia precursor
demonstration, ammonia would remain a plan precursor, and the SJV would
remain subject to the requirements to identify and implement BACM,
BACT, and additional feasible measures on sources of ammonia emissions.
We first address the portion of the comment related to the
sensitivity of the modeled PM<INF>2.5</INF> response to reductions in
ammonia emissions and then turn to the portion of the comment
addressing the amount of ammonia reductions that may be available.
a. Comments Related to Sensitivity Modeling Results
The measured ammonium nitrate portion of the annual average
PM<INF>2.5</INF> concentration in Bakersfield in 2015 was 5.2 [micro]g/
m\3\.\53\ This is well above the EPA's recommended threshold in the
PM<INF>2.5</INF> Precursor Guidance. However, the PM<INF>2.5</INF> SIP
Requirements Rule, as interpreted by that guidance, provides the option
for a State to conduct an analysis of the sensitivity of ambient
PM<INF>2.5</INF> concentrations to emission reductions of a precursor
pollutant to evaluate the significance of that precursor,\54\ as the
State did for the 2012
[[Page 60501]]
annual PM<INF>2.5</INF> NAAQS in the SJV. Thus, the concentration-based
contribution analysis alone (i.e., the 5.2 [micro]g/m\3\) is not
necessarily determinative of a precursor's significance.
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\53\ 86 FR 74310, 74318 and 2018 PM<INF>2.5</INF> Plan, App. G,
3.
\54\ 40 CFR 51.1006(a)(1)(ii).
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The commenters stated that reliance on a sensitivity-based test for
2024 ignores the statutory imperative for expeditious attainment. But,
as noted in the preamble for the PM<INF>2.5</INF> SIP Requirements Rule
in explaining the rationale for a sensitivity-based test, ``if
conditions in a particular area are such that control of sources of one
or more precursors does not reduce PM<INF>2.5</INF> concentrations in
the area, then those controls will not help the area attain
(expeditiously or otherwise).'' \55\ Thus, if a precursor demonstration
were to show that control of a particular precursor is not effective
for reaching attainment, then the absence of such control would not
violate the requirement for expeditious attainment.
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\55\ 81 FR 58010, 58025.
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As commenters noted, the State relied on its sensitivity-based
contribution analysis for a future year (2024) to evaluate the
significance of ammonia as a precursor to ambient PM<INF>2.5</INF>
concentrations in the San Joaquin Valley. In our 2021 Proposed Rule, we
discussed the State's selection of 2024 as an acceptable analysis year,
given the projected steep decline in ambient PM<INF>2.5</INF>
sensitivity to ammonia reductions over time as a result of projected
changes in emissions (i.e., large NO<INF>X</INF> emission reductions as
contemplated in the Plan, through existing measures and aggregate
commitments), consistent with the facts and circumstances recommended
for consideration in the EPA's PM<INF>2.5</INF> Precursor Guidance.\56\
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\56\ 86 FR 74310, 74320-74321 and PM<INF>2.5</INF> Precursor
Guidance, 35.
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The PM<INF>2.5</INF> Precursor Guidance provides for consideration
of sensitivity in an appropriate future year.\57\ Based on the State's
control strategy, including baseline emission reduction measures and
its control measure and aggregate tonnage commitments, the State
estimated it would achieve over 200 tpd NO<INF>X</INF> reductions by
2024, representing over 60% of the 2013 base year emissions inventory
for NO<INF>X</INF>.\58\ Existing baseline measures already in the SIP
are projected by the State to reduce annual average NO<INF>X</INF>
emissions in the SJV by 173.5 tpd, which is 83.7% of the 207.38 tpd of
NO<INF>X</INF> reductions modeled to attain the 2012 annual
PM<INF>2.5</INF> NAAQS. Over 90% of the baseline NO<INF>X</INF>
reductions between 2013 and 2025 are due to the existing mobile source
control program.\59\ These reductions will occur regardless of any EPA
action on the precursor demonstration or the 2018 PM<INF>2.5</INF> Plan
as a whole. Similarly, additional measures adopted by the State through
the end of 2021 further reduce NO<INF>X</INF> emissions. Given the
large NO<INF>X</INF> emission reductions projected to occur by 2024 and
2025, the EPA has concluded that that the 2024 sensitivity model
results better represent the atmospheric chemistry around the
attainment date and in subsequent years than sensitivity modeling
results from 2013 and even 2020.\60\ Due to continued existing and
anticipated NO<INF>X</INF> reductions, the apparent PM<INF>2.5</INF>
benefit of ammonia reductions in earlier years declines with time and
does not reflect the ultimate, lower, benefit of such controls near the
attainment year and later.
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\57\ PM<INF>2.5</INF> Precursor Guidance, 35.
\58\ 86 FR 74310, 74327, Table 4.
\59\ 2018 PM<INF>2.5</INF> Plan, App. B, Table B-2.
\60\ We address the potential impact of ammonia emissions on the
requirement for expeditious attainment in our re-evaluation of the
attainment demonstration in section II.C.3, below.
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Thus, the EPA reasons that the Plan's baseline and additional
control measures will change (and have already changed) the atmospheric
chemistry conditions in the SJV, leading to ambient PM<INF>2.5</INF>
formation that is much less sensitive to ammonia emission reductions in
the attainment year. We maintain that the State's reliance on its
sensitivity-based contribution analysis for 2024 to evaluate the
significance of ammonia as a precursor is reasonable, well supported,
and consistent with the PM<INF>2.5</INF> SIP Requirements Rule and EPA
guidance.
The commenter correctly states that 2 of 15 sites in the 2024 model
scenario based on a 30% reduction in ammonia emission were modeled to
have an ambient PM<INF>2.5</INF> response greater than the EPA's
recommended contribution threshold of 0.2 [micro]g/m\3\. However, we
disagree with the commenter's characterization that our further review
of the sensitivity of the Madera and Hanford sites to ammonia emission
reductions was argued ``with extremely biased evidence.'' \61\
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\61\ Public Justice Comment Letter, 18.
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For the Madera monitor (estimated sensitivity of 0.21 [micro]g/m\3\
in 2024 to a 30% ammonia emission reduction), the commenter refers to
the EPA's statement that the 2018 PM<INF>2.5</INF> Plan did not discuss
the evidence for the 2013 monitored concentrations at this site being
biased high (as a matter of the physical recordings of the monitor).
However, the EPA did reference the State's prior analysis of such
evidence, which we considered in our evaluation.\62\ Aside from
pointing out that this analysis was not included in the Plan itself,
the comment does not offer analysis to the contrary, and the EPA
continues to think that we reasonably weighed the technical information
before us and, given the role of the 2013 monitored data in the
sensitivity modeling conducted by the State, correctly concluded that
``if more typical Madera concentrations were used, it is likely that
the 2024 Madera response to ammonia reductions would be below the
contribution threshold'' and that the extra year of NO<INF>X</INF>
reductions from 2024 to 2025 would likely decrease the sensitivity
below the recommended 0.2 [micro]g/m\3\ threshold.
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\62\ 86 FR 74310, 74320, fn. 91, and fn. 92. This analysis
concluded that 2011-2013 Madera data did not fit the geographic
pattern historically seen in relation to other monitors but returned
to the historic pattern after corrections were made to the
monitoring instrument operating procedures. Concentrations were
estimated to be about 10% high during the period in question.
---------------------------------------------------------------------------
We further disagree with the commenter's assertion that we offered
no reason for giving less weight to modeled sensitivity results for the
Hanford monitor (estimated sensitivity of 0.26 [micro]g/m\3\ in 2024 to
a 30% ammonia emission reduction). We stated that we gave both Madera
and Hanford modeled sensitivity lower weight in our overall assessment
of ammonia as a precursor. Specifically for Hanford, we described
evidence that the modeled sensitivity there was likely overestimated.
That evidence included an independent study using data from the 2013
DISCOVER-AQ campaign that ``found that the [CMAQ] model underestimated
ammonia at Hanford by a roughly a factor of four or five.'' \63\ In our
assessment, if the model's ammonia concentrations better matched the
observations then there would be more of an ammonia excess in the
model, and the modeled response to ammonia reductions would be lower.
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\63\ 86 FR 74310, 74320.
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More broadly, prior to publishing the 2021 Proposed Rule, the EPA
reviewed available research including from supplemental materials from
CARB, and found a consistent theme based on modeling analyses and
ambient measurement studies--that ``there is a large amount of ammonia
left over after reacting with NO<INF>X</INF>, so that ammonia emission
reductions would be expected mainly to reduce the amount of ammonia
excess, rather than to reduce the particulate ammonium nitrate.'' \64\
It is important to note that this ammonia excess is measured, and is
independent
[[Page 60502]]
of any assumptions about the size of the ammonia or NO<INF>X</INF>
emissions inventories, and also independent of any uncertainties in the
modeling exercise. The concerns raised by Public Justice about relative
levels of ammonia and NO<INF>X</INF> estimation are not sufficient to
cause the EPA to revise the conclusion that PM<INF>2.5</INF> is likely
to have low sensitivity to ammonia reductions, which is supported by
the actual observed conditions. The ambient measurement evidence is
strong and leads the EPA to believe that the modeled response to
ammonia in the State's precursor demonstration may be overestimated.
Therefore, we maintain that the EPA may give lower weight to the
modeled sensitivities of ambient PM<INF>2.5</INF> concentrations to
ammonia emission reductions at the Madera and Hanford sites.
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\64\ Id. See also, EPA's Ammonia Precursor TSD.
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The commenter states that the EPA's argument on the relative levels
of ammonia and NO<INF>X</INF> emissions looks at such ammonia studies
but ``ignores supplemental studies showing that . . . soil
NO<INF>X</INF> emissions [may be significantly underestimated].'' \65\
Unlike the general consensus in the ammonia studies described above,
with respect to the amount of NO<INF>X</INF> emitted by soil in the SJV
the EPA believes that there is conflicting research. A conclusion of
Almaraz et al. (2018) and Sha et al. (2021) cited by the commenters is
that soil NO<INF>X</INF> emissions are underestimated, and that they
comprise 30-40% of total NO<INF>X</INF> emission in California. While
higher levels of soil NO<INF>X</INF> (or NO<INF>X</INF> more generally)
would tend to increase the modeled sensitivity of ambient
PM<INF>2.5</INF> to ammonia, we maintain that there is not a sufficient
basis to conclude that higher soil NO<INF>X</INF> emissions should be
used in the air quality modeling for the SJV.\66\
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\65\ Public Justice Comment Letter, 18. Public Justice cited
Almaraz et al. (2018), ``Agriculture is a major source of
NO<INF>X</INF> pollution in California,'' Science Advances, 4(1),
doi:10.1126/sciadv.aao3477, 2018, available at <a href="https://advances.sciencemag.org/content/4/1/eaao3477">https://advances.sciencemag.org/content/4/1/eaao3477</a>; and Sha et al. (2021),
``Impacts of soil NO<INF>X</INF> emission on O<INF>3</INF> air
quality in rural California,'' Environmental Science & Technology,
55(10), 7113-7122, available at: doi:10.1021/acs.est.0c06834;
available at <a href="https://pubs.acs.org/doi/10.1021/acs.est.0c06834">https://pubs.acs.org/doi/10.1021/acs.est.0c06834</a>.
\66\ See also, EPA Region IX, ``Response to Comments Document
for the EPA's Final Action on the San Joaquin Valley Serious Area
Plan for the 2006 PM<INF>2.5</INF> NAAQS,'' June 2020, 148 and 158.
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In contrast to the studies just cited, Guo et al. (2020) \67\ did
not find such a discrepancy in emissions estimates, concluding that
soil NO<INF>X</INF> is about 1% of anthropogenic NO<INF>X</INF>
emissions. The fraction of nitrogen applied as fertilizer released as
NO<INF>X</INF> to the atmosphere was estimated by Almaraz et al. to be
15%, while seven other studies reviewed by Guo et al. estimated it to
be 2% or less. Yet Almaraz et al., Sha et al., and Guo et al. all
reported high agreement between their modeled and observed soil
NO<INF>X</INF> emissions. The Almaraz et al. study acknowledged the
limited number of surface measurements that were available for purposes
of comparing the model results and the difficulty in comparing the
model results to the observations and noted the need for more field
measurements. Guo et al. stated that obtaining an emission factor
correlating NO<INF>X</INF> emissions to fertilizer application from the
data available in various studies (including Almaraz et al.) would be
``difficult or impossible'' due to the sparsity of data collected in
terms of sampling length, sampling frequency, and the episodic nature
of nitrogen gas emissions from soil.
---------------------------------------------------------------------------
\67\ Guo et al. (2020), ``Assessment of Nitrogen Oxide Emissions
and San Joaquin Valley PM<INF>2.5</INF> Impacts From Soils in
California,'' Journal of Geophysical Research: Atmospheres, 125(24),
doi: 10.1029/2020JD033304; available at <a href="https://doi.org/10.1029/2020JD033304">https://doi.org/10.1029/2020JD033304</a>.
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In light of the uncertainties and disagreements among studies, the
EPA does not believe that available research provides sufficient
certainty about the magnitude and proportion of soil NO<INF>X</INF>
emissions attributable to agricultural fertilizer application to
require substantial revisions in the NO<INF>X</INF> emissions inventory
nor the PM<INF>2.5</INF> modeling at this time.
In addition, as just described, multiple studies of ambient
measurements show excess ammonia in the atmosphere, which is strong
evidence of low sensitivity to ammonia reduction that is independent of
the accuracy of estimates of precursor emissions from any source,
including soil NO<INF>X</INF>, and independent of any modeling. Thus,
we disagree that the EPA ``ignored'' the supplemental soil
NO<INF>X</INF> studies; we were aware of and considered them, but they
did not change our conclusion.
b. Comments Related to Scale of Potential Ammonia Emission Reductions
The 2018 PM<INF>2.5</INF> Plan includes modeling of 30% and 70%
reductions in ammonia emissions and focuses on the results of the 30%
reduction based on the assertion that the area could not achieve more
than a 30% decrease in ammonia emissions. Public Justice questions the
basis for the assertion that no more than 30% reductions are available.
In this section, we examine, based on the submission, the
PM<INF>2.5</INF> Precursor Guidance, and the Public Justice comment,
the ammonia reductions that may be available in the SJV. Specifically,
we explore the uncertainty with respect to both the current state of
ammonia emissions and controls in the SJV and available research
examining additional control options that may be available. We conclude
that, based on the information before us, the 2018 PM<INF>2.5</INF>
Plan does not provide sufficient support for the assertion that 30% is
a reasonable upper bound on available ammonia reductions in the SJV.
The District presented its analysis of ammonia control for the
primary ammonia source categories in the SJV in Appendix C, section
C.25 (``Ammonia in the San Joaquin Valley'') of the 2018
PM<INF>2.5</INF> Plan. The EPA had reviewed this analysis for our
assessment in the 2021 Proposed Rule that 30% was, for analytical
purposes, a reasonable upper bound for ammonia emission reductions in
the SJV, and referred to prior EPA analysis for our action on the 2006
24-hour PM<INF>2.5</INF> NAAQS portion of the 2018 PM<INF>2.5</INF>
Plan.\68\ In evaluating the Public Justice comments on the potential
control of ammonia, however, we have re-evaluated other portions of the
2018 PM<INF>2.5</INF> Plan, including Appendix C, section C.25 and
Appendix G,\69\ and reviewed the studies cited by the commenters, as
well as others from the EPA's own literature search.
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\68\ 86 FR 74310, 74319. See also, 85 FR 17382, 17395 (March 27,
2020), and EPA's PM<INF>2.5</INF> Precursor TSD, 13.
\69\ See, e.g., 2018 PM<INF>2.5</INF> Plan, App. G, 13, where
CARB states that ``CARB staff, District staff, and the public
process have not identified specific controls that are
technologically and economically feasible to achieve reductions at
the low end of the recommended sensitivity range (i.e., 30 percent),
much less at the upper end of the range.''
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As noted in the EPA's PM<INF>2.5</INF> Precursor Guidance,\70\ and
consistent with the PM<INF>2.5</INF> SIP Requirements Rule (40 CFR
51.1010(a)(2)(ii), 51.1006(a)(1)(ii)), the EPA may require the State to
identify and evaluate potential control measures for a precursor to
determine the potential emissions reductions achievable, as a part of
the precursor analysis. The guidance states that this evaluation is
particularly important when the PM<INF>2.5</INF> response to a 30%
reduction in precursor emissions is close to the contribution
threshold. In the case of a nonattainment area classified as Serious,
this analysis would include identification and evaluation of measures
that would constitute BACM/BACT level controls for such pollutant.\71\
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\70\ PM<INF>2.5</INF> Precursor Guidance, 31.
\71\ The PM<INF>2.5</INF> Precursor Guidance provides:
``[c]onsistent with the PM<INF>2.5</INF> SIP Requirements Rule, the
EPA may in some cases require air agencies to evaluate available
emissions controls in support of a precursor demonstration that
relies on a sensitivity analysis. [See 40 CFR 51.1009(a)(2) and
51.1010(a)(2).] It is particularly important for states to evaluate
available controls where the recommended contribution threshold--
that is, the threshold used for identifying an impact that is
`insignificant'--is close to being exceeded at the low end of the
recommended sensitivity range (e.g., 30 percent). In these cases,
the EPA may determine that to sufficiently evaluate whether the area
is sensitive to reductions, the State must determine the potential
precursor emission reductions achievable through the implementation
of available and reasonable controls for a Moderate area (or best
controls for a Serious area).'' PM<INF>2.5</INF> Precursor Guidance
at 31.
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[[Page 60503]]
Even when the modeled responses are below the recommended 0.2
[micro]g/m\3\ contribution threshold, or when particular responses are
given less weight as we have discussed above for Madera and Hanford,
the outcome of a sufficiently thorough controls evaluation and its
conclusions on achievable emissions reductions may be important
information for the EPA to consider in deciding whether to approve the
precursor demonstration. Here, the State's ammonia precursor
demonstration strongly relies on the assertion that no more than 30%
ammonia reductions below current levels is achievable, but there is not
a sufficiently thorough controls evaluation to support that assertion.
Because the 30% value has not been adequately supported, the EPA cannot
evaluate whether the modeled PM<INF>2.5</INF> reductions associated
with a 30% reduction in ammonia represent the reductions that may be
possible in the SJV.
The EPA also emphasizes that the 30% control threshold is part of
an analytical test to help evaluate whether the State must regulate
ammonia as a precursor for the 2012 annual PM<INF>2.5</INF> NAAQS in
the area; it does not mean that if the State cannot control 30% of
ammonia with BACM/BACT-level controls that there is per se no need to
regulate ammonia. For example, if control of 25% of ammonia is
necessary for attainment of the PM<INF>2.5</INF> NAAQS, then the fact
that this is below 30% is irrelevant. Our attention to the 30%
threshold in this notice is to help interpret the PM<INF>2.5</INF>
responses to modeled ammonia emissions reductions in the State's
precursor demonstration, which modeled a 30% reduction. This point is
important analytically because, insofar as potential ammonia reductions
could be larger than 30%, the modeled responses could be larger than
those relied upon in the State's precursor analysis to support its
determination that ammonia is not a significant precursor.
With respect to the State's assertion that 30% is a reasonable
upper bound for potential ammonia emission reductions, we agree with
the commenters that the analysis of potential ammonia controls provided
by the State and the evaluation of that information by the EPA lacked
detailed support and is not a sufficient basis for the EPA to affirm
that 30% is a reasonable upper bound for potential ammonia emission
reduction in the SJV. This, in turn, affects the EPA's interpretation
of the results of modeled responses to ammonia reductions. There are
two general deficiencies in the submitted analysis that create
uncertainty as to the potential for ammonia emission reductions, as
discussed below: (1) incomplete quantification of existing ammonia
emission reductions from the largest sources of ammonia; and 2)
incomplete consideration and evaluation of potential additional
controls of ammonia emissions for sources in the SJV. We walk through
these uncertainties for each of the largest sources of ammonia in the
SJV (i.e., CAFs and fertilizer application).
As an initial matter, the commenters state that ``[the State]
argues, and EPA agrees, that only the minimal 30 percent control level
is reasonable'' despite major ammonia sources never having been
regulated in the SJV and the relatively easier and cheaper sources of
emission reductions relative to NO<INF>X</INF>. We understand this
reference to ``major ammonia sources'' to mean the main source
categories of ammonia emissions in the SJV, including CAFs and
fertilizer application, which the State estimated to emit 57% and 36%,
respectively, of the annual average ammonia emissions in the SJV in
2013.\72\
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\72\ See Public Justice Comment Letter, 6, citing EPA Region IX,
``Technical Support Document, EPA Evaluation of PM<INF>2.5</INF>
Precursor Demonstration, San Joaquin Valley PM<INF>2.5</INF> Plan
for the 2006 PM<INF>2.5</INF> NAAQS.''
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We agree with the commenters that neither CARB nor the District
have imposed controls specifically to regulate ammonia. We note,
however, that ammonia-specific controls are not required for approval
of an ammonia precursor demonstration. Moreover, although there are not
ammonia-specific controls in place for the largest source categories in
the SJV, many sources of ammonia are in fact regulated by District
rules, such as Rule 4570 (``Confined Animal Facilities''), Rule 4565
(``Biosolids, Animal Manure, and Poultry Litter Operations''), and Rule
4566 (``Organic Material Composting Operations''), which include
enforceable requirements for VOC emissions that would, in general,
achieve some degree of ammonia emission reductions. We agree with the
general assertion, presented by the District in section C-25 (``Ammonia
in the San Joaquin Valley'') of Appendix C of the 2018 PM<INF>2.5</INF>
Plan, that some management practices to reduce VOCs in those rules also
collaterally reduce ammonia emissions by limiting ammonia formation and
volatilization, even though ammonia reductions are not legally required
by these measures.\73\
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\73\ See, e.g., 2018 PM<INF>2.5</INF> Plan, App. C, C-313 (for
CAFs). The lack of controls specifically regulating ammonia
emissions from the largest source categories through enforceable SIP
requirements in the SJV is not an inherent deficiency of the
precursor demonstration, but it does result in challenges for
determining the potential for ammonia emission controls (i.e., in
determining the reductions that have already been achieved, and what
additional reductions are available).
---------------------------------------------------------------------------
Although we expect that existing VOC regulations are achieving a
degree of ammonia control, there are multiple reasons why it is not
clear, based on the record before us, how much reduction is being
achieved, and thus how much additional reduction may be available. For
example, regarding CAFs, as the EPA has previously noted,\74\ the State
has not sufficiently substantiated its calculation of 100 tpd of
ammonia emission reductions attributed to Rule 4570. In the 2018
PM<INF>2.5</INF> Plan, the State referenced an outdated analysis from
2006 that relied on a different baseline emissions inventory, but has
not supplemented this analysis, or reconciled it with more recent
emissions inventory data.\75\ We note that CARB has provided the EPA
with significantly lower estimates of ammonia emission reductions
achieved by SJVUAPCD Rule 4570 based on more recent calculations of
reductions from a 2012 baseline emissions inventory.\76\ The 2018
PM<INF>2.5</INF> Plan does not reconcile these differences, nor update
the emission reduction estimate from the 2006-era analysis to the
emissions inventory basis of the 2018 PM<INF>2.5</INF> Plan.
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\74\ 81 FR 69396, 69397-69398 (October 6, 2016).
\75\ 2018 PM<INF>2.5</INF> Plan, App. C, C-311 to C-339 and
SJVUAPCD, ``Final Draft Staff Report, Proposed Re-Adoption of Rule
4570 (Confined Animal Facilities),'' June 18, 2009, at Appendix F,
``Ammonia Reductions Analysis for Proposed Rule 4570 (Confined
Animal Facilities),'' June 15, 2006 (discussing various assumptions
underlying the District's calculation of ammonia emission factors
without identifying relevant emissions inventories).
\76\ Email dated September 3, 2015, from Gabe Ruiz, CARB, to
Larry Biland and Andrew Steckel, EPA Region IX, regarding ``SJV
Livestock Ammonia Emissions with and without Rule 4570.'' This email
notes that 2011 ammonia emissions (pre-rule) were 316.8 tpd, 2012
emissions (without rule) were 323.8 tpd, and 2012 emissions (with
rule) were 250.9 tpd. Thus, application of Rule 4570 would have
achieved either 72.9 tpd of ammonia reductions, measured within 2012
with and without the rule, or 65.9 tpd, measured from the 2011 level
(without rule) to the 2012 level (with rule).
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[[Page 60504]]
In short, although we agree that some existing VOC controls will
also result in ammonia reductions, a more detailed analysis it required
to determine both the effectiveness of existing controls, and the
additional controls that may be available. In the following, the EPA
notes various uncertainties concerning ammonia emissions and in the
amount of reductions achieved by specific rules as a byproduct of the
existing VOC control measures. For a number of key source categories,
ammonia measures require additional analysis to evaluate their
potential to achieve additional emissions reductions, in part based on
research studies included as exhibits to the Public Justice Comment
Letter.
For CAFs, the District discusses in detail how Rule 4570 is
structured (e.g., to address varying types of CAFs); the five main CAF
operations/emission sources: feeding, housing (including distinctions
for housing configurations), solid waste, liquid waste, and land
application of manure; the control menu requirements for each of those
five operations; and research papers that estimate ammonia emission
reductions from some of the measures.\77\ However, the 2018
PM<INF>2.5</INF> Plan does not specify, even in an aggregated form,
which control measures were selected by CAFs in their permits-to-
operate with the District for each of the five operations and the scale
of those selections by CAF size, nor does it quantify the emission
reductions from those selections and scales. Thus it is unclear what
level of ammonia control is being achieved, and, importantly for the
precursor demonstration, unclear what level of further ammonia control
may be possible. This uncertainty is increased by several provisions in
Rule 4570 that allow CAF owners/operators to implement ``alternative
mitigation measures'' \78\ in lieu of the mitigation measures listed in
the rule, without any requirement to ensure that such alternative
mitigation measures achieve any particular level of ammonia emission
reductions, or any ammonia reductions at all.\79\
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\77\ 2018 PM<INF>2.5</INF> Plan, App. C, C-312 to C-323.
\78\ ``Alternative Mitigation Measure'' is defined in SJVUAPCD
Rule 4570 as ``a mitigation measure that is determined by the APCO,
[CARB], and EPA to achieve reductions that are equal to or exceed
the reductions that would be achieved by other mitigation measures
listed in this rule that owners/operators could choose to comply
with rule requirements.'' SJVUAPCD Rule 4570 (amended October 21,
2010), section 3.4. Because SJVUAPCD Rule 4570 explicitly applies
only to VOC emissions, the requirement for equivalent ``reductions''
in section 3.4 applies only to VOC emission reductions and does not
apply to ammonia emission reductions.
\79\ See, e.g., SJVUAPCD Rule 4570 (amended October 21, 2010) at
section 5.6, Table 4.1.F.
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Furthermore, for certain requirements, the 2018 PM<INF>2.5</INF>
Plan assumes that a less effective control measure may be implemented
given that the more effective control measure may be more costly. For
instance, the District describes some research studies that relate to
one or more of the options, but it is not clear whether and how the
requirements of each option align with the practices evaluated in each
study. The District cites a 2005 University of California study that
manure from lagoons, diluted with irrigation water, and applied via
surface gravity irrigation systems (e.g., not applied with a drag hose
or similar apparatus) commonly minimized ammonia losses from
volatilization to the air to 10% or less.\80\ However, it is not clear
how the requirements of option H.2.a (liquid manure treated in an
aerobic or anaerobic lagoon) or option H.2.b (24-hour limit for liquid
manure standing on fields) may correspond to the study, whether any
particular level of lagoon treatment or dilution prior to application
would be needed, nor whether a combination of the two would be required
to minimize ammonia losses to air to that degree.
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\80\ University of California, Division of Agricultural and
Natural Resources, Committee of Experts on Dairy Manure Management,
``Managing Dairy Manure in the Central Valley of California,'' June
2005.
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For option H.2.c, the District states that use of a drag hose or
similar apparatus could significantly reduce ammonia emissions, but
without specifying how much or pointing to any supporting document, and
only qualitatively asserting a relatively higher cost for using such
equipment, and its limitations when a crop is growing.\81\ The District
states that ``[a]pplication of liquid or slurry manure with a drag hose
or similar apparatus could result in significant [ammonia] reductions,
but has higher costs compared to flood or furrow irrigation of liquid
manure.'' \82\ However, higher cost does not necessarily translate to
the measure being economically infeasible, and thus the option to use
flood or furrow irrigation alone may not represent the most appropriate
method or level of control of ammonia for the land application of
liquid manure. As a result, the District has not demonstrated that
additional reductions are not feasible.
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\81\ 2018 PM<INF>2.5</INF> Plan, App. C, C-323, referring to a
2008 report by Alberta Agriculture and Food (Canada). Albert
Agriculture and Food, ``Ammonia Volatilization from Manure
Application,'' February 2008 (``2008 Alberta Report''). That report
estimates that injection into soil would reduce the average
ammonium-nitrogen fraction loss (i.e., to air) to 0% compared to
incorporation within one day from surface application (25%) or
compared to surface application with no incorporation (66%). 2008
Alberta Report, Table 2.
\82\ 2018 PM<INF>2.5</INF> Plan, App. C, C-322 to C-323.
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The District assumes that all dairies and other cattle facilities
would select option H.2.b (24-hour limit for liquid manure standing on
fields) and cites two studies that suggest substantial ammonia emission
reductions from this limitation, assuming no ammonia emissions into the
air after soil incorporation.\83\ Based on one study, dairy CAF
operations in the SJV would have hypothetically already reduced ammonia
emissions to the air from land application of liquid manure from 66%
ammonium nitrogen to 25% ammonium nitrogen by implementing option H.2.b
(a 41% absolute reduction, or 62% relative reduction). Uncertainty
about the options that are being chosen and implemented by regulated
entities gives rise to uncertainty in the ammonia emission reductions
that are being achieved. The permits-to-operate submitted by each dairy
CAF are required to indicate which option has been selected.\84\
Accordingly these permits, and associated compliance records, should
contain information that would help to address this uncertainty.
Furthermore, if injection via drag hose or similar apparatus (option
H.2.c) is economically feasible, even if more expensive, implementation
of such a measure could further reduce ammonia by 25% based on the same
study, at least for a portion of the operating cycle (e.g., when crops
are not growing). Lastly, a combination of measures (e.g., requiring
that liquid manure be both treated in an anaerobic lagoon, aerobic
lagoon, or digester, and that it be incorporated into the soil within
24 hours) or adjustment to existing options (e.g., requiring
incorporation of liquid manure within 6 hours, rather than 24 hours,
and during cooler hours when ammonia volatilization is less) could
hypothetically reduce ammonia emissions at these sources by more than
30%.\85\
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\83\ 2018 PM<INF>2.5</INF> Plan, App. C, C-323, referring to two
studies: the 2008 Alberta Report, and Chadwick et al. ``Emissions of
Ammonia, Nitrous Oxide and Methane from Cattle Manure Heaps: Effect
of Compaction and Covering,'' Atmosphere Environment, 39: 787-799
(2005); available at: <a href="http://www.sciencedirect.com/science/article/pii/S135223100400994X">http://www.sciencedirect.com/science/article/pii/S135223100400994X</a>.
\84\ Under District Rule 4570, section 5.1, owners/operators of
CAFs subject to the rule must obtain a permit-to-operate for the
facility, and that permit must include a facility emission
mitigation plan, a facility emission inventory, and identify the
mitigation measures selected for the facility.
\85\ 2008 Alberta Report.
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In general, with respect to dairy CAFs, on a qualitative basis CAF
operators have likely reduced ammonia emissions
[[Page 60505]]
to a degree consistent with the options selected. However, there is not
a quantitative basis to specify the degree and potential for further
reduction. For some of the options within the menu of mitigation
measures for each type of CAF in Rule 4570, there are research studies
to support the basis of existing ammonia emission reductions. The
generalized assumptions used by the State could be evaluated by an
analysis of the options selected by CAFs in permits-to-operate with the
District. Further assessment of available compliance records and
examination of combinations of measures or adjustments to existing
measures could help quantify additional potential ammonia emission
reductions.
In addition, Public Justice cites several studies to support its
assertion that reductions in agricultural ammonia emissions may be
achieved through ``strategies such as improving livestock feed to
reduce excreted nutrients, altering manure storage and handling
practices to prevent [ammonia] emissions, and improving synthetic
fertilizer use efficiency,'' and cites several studies to support this
assertion.\86\ The EPA considers these approaches to warrant
examination as potential means to reduce ammonia and believes that more
information regarding their efficacy as control measures and their
economic and technical feasibility is needed to determine the amount of
the potential additional ammonia control in the SJV.
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\86\ Public Justice Comment Letter, 16-18.
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For livestock feed, studies in 2005 and 2006 cited by the commenter
found that ``decreasing the crude protein concentration of beef cattle
finishing diets based upon steam-flaked corn from 13 to 11.5 percent
decreased ammonia emissions by 30 to 44 percent.'' \87\ A 2009 study
cited by the commenter found that ``one feedyard feeding distillers
grains averaged 149 grams of ammonia-N per head per day (NH3-N/head/
day) over nine months, compared with 82 g NH3-N/head/day at another
feedyard feeding lower protein steam-flaked, corn-based diets.'' \88\
Nominally this would represent a 45% reduction in ammonia emissions
from manure by going to a lower protein diet. However, the net ammonia
emission reduction either from reducing crude protein levels in feed,
or by providing a lower protein steam-flaked, corn-based diet rather
than a distiller grain diet is unclear given the role of protein intake
on the time for beef cattle to reach market weight or on milk
production for dairy cattle.
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\87\ Public Justice Comment Letter, Exhibit 36, 9. Exhibit 36
is: Preece, Sharon L.M. et al., ``Ammonia Emissions from Cattle
Feeding Operations,'' Texas A&M AgriLife Extension Service,
referring to Cole, N.A., R.N. Clark, R.W. Todd, C.R. Richardson, A.
Gueye, L.W. Greene, and K. McBride, ``Influence of Dietary Crude
Protein Concentration and Source on Potential Ammonia Emissions from
Beef Cattle Manure,'' Journal of Animal Science 83:(3), 722 (2005);
and Todd, R.W., N.A. Cole, and R.N. Clark, ``Reducing Crude Protein
in Beef Cattle Diet Reduces Ammonia Emissions from Artificial
Feedyard Surfaces.'' Journal of Environmental Quality. 35:(2), 404-
411 (2006).
\88\ Public Justice Exhibit 36, 10, referring to a study by
Todd, R.W., N.A. Cole, D.B. Parker, M. Rhoades, and K. Casey. 2009.
``Effect of Feeding Distillers Grains on Dietary Crude Protein and
Ammonia Emissions from Beef Cattle Feedyards.'' In Proceedings of
the Texas Animal Manure Management Issues Conference, 83-90.
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For manure handling and storage practices, a 2011 inventory of
mitigation methods by Price et al. identifies many mitigation methods
for various kinds of CAFs, some of which may reduce ammonia emissions
by 50-90%.\89\ For example, Method 44 (``Washing down dairy cow
collecting yards'') involves areas where dairy cows are collected on a
concrete yard prior to milking and, after each milking event, the urine
and manure in the area are removed by pressure washing or by hosing and
brushing, resulting in up to 90% ammonia emission reductions. Method 62
(``Cover solid manure stores with sheeting'') involves covering solid
manure heaps with plastic sheeting, resulting in ammonia emission
reductions up to 90%.\90\ However, the authors note that, for both
Method 44 and Method 62, reducing ammonia emission from the milking
areas would increase the ammonium content of the slurry, potentially
leading to higher ammonia emissions during storage and spreading, but
by a lower amount than the initial reduction amount. Method 71 (``Use
slurry injection application techniques'') involves shallow (5-10 cm
depth) or deep (25 cm depth) injection of slurry into the soil,
resulting in ammonia emission reductions of 70% to 90%, respectively.
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\89\ Public Justice Comment Letter, Exhibit 39. Exhibit 39 is:
Price et al., ``An Inventory of Mitigation Methods and Guide to
their Effects on Diffuse Water Pollution, Greenhouse Gas Emissions
and Ammonia Emissions from Agriculture, User Guide,'' December 2011.
For mitigation measures that may reduce ammonia emissions by 50-90%,
for example, methods 43, 44, 47-51, 54-55, 62, 64, 70-71, and 73-74
on pages 70-71, 74-78, 81-84, 93-94, 105-108, and 110-112
respectively, achievable control efficiencies from these measures in
the SJV would depend on an applicability and feasibility review.
\90\ We note that District Rule 4570, Table 3.1, section F and
Table 4.1, section F provide mitigation measure options for the
storage of solid manure and separated solids from large dairy CAFs,
including measures that involve covering dry manure piles and
separated solids, respectively, outside of pens with a weatherproof
covering from May through October. Thus, such mitigation measures,
if selected, would not be required for the remaining four months of
the year (June through September). Similar mitigation measure
options in Rule 4570 for covering dry manure piles apply for beef
feedlots, other cattle, swine, poultry, and other CAF types.
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Mitigation methods are also described for other kinds of CAFs, such
as pig farms and chicken farms. For example, Method 48 (``Install air-
scrubbers or biotrickling filters to mechanically ventilated pig
housing'') involves pig housing where specific technologies are used to
capture up to 90% of the ammonia emissions into recirculation water
that can then be used as a nitrogen-based fertilizer. Method 51 (``In-
house poultry manure drying'') involves installation of ventilation/
drying systems that reduce the moisture content of poultry litter,
resulting in up to 50% ammonia emission reductions, though, as with the
cattle examples, this could result in some increased emissions at
subsequent steps (e.g., storing poultry litter).
In addition to the 2011 inventory of mitigation methods, in
September 2017, the EPA and the U.S. Department of Agriculture, Natural
Resource Conservation Service released the ``Agricultural Air Quality
Conservation Measures, Reference Guide for Poultry and Livestock
Production Systems'' (2017 EPA-USDA Reference Guide). This reference
guide discusses air quality conservation measures relating to nutrition
and feed management, animal confinement, manure management, land
application, and other supplemental practices. Among other things it
includes Appendix A.1 (``Table of Mitigation Effectiveness for Selected
Measures''), which lists 12 measures that may reduce ammonia emissions
by more than 30%, Appendix A.2 (``List of State Programs and
Regulations for AFO Air Emissions''), and Appendix A.3 (``List of AFO
Air Quality Programs & Land-Grant Universities'').
In sum, various research studies on mitigating ammonia emissions
from CAFs suggest that there may be potential for additional ammonia
reductions from activities such as animal feeding and housing to manure
storage, handling, and land application. While the Plan refers to and
describes some of the research studies described herein (e.g., the 2008
Alberta Report and the 2005 Chadwick paper), it is unclear the extent
to which the higher emission reduction measures have been or could be
implemented in the SJV and, when aggregated across all CAF operations,
it remains unclear whether the total reduction from additional measures
would be greater than the State's estimate of maximum available
[[Page 60506]]
reductions.\91\ Accordingly, the EPA concludes that the available
information in the Plan is insufficient to conclude that the State has
sufficiently examined and justified its estimate for the ammonia
emission reductions that may be available from CAFs, which emit a
majority of the ammonia in the SJV.
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\91\ In evaluating the aggregate reductions available across all
sub-activities, it may be important to evaluate the extent to which
reductions at one sub-activity may affect emissions at other stages
of the process.
---------------------------------------------------------------------------
Regarding fertilizer application, Rule 4570 and Rule 4565 have
provisions addressing the land application of manure from CAFs and of
biosolids, animal manure, and poultry litter from composting operations
(though these lack specific enforceable requirements for ammonia).
However, more broadly, the District states that fertilizer application
is the second largest ammonia source in the SJV and that the District
does not have statutory authority to regulate such activities.\92\
Notwithstanding this statement, the District describes key research
assessing nitrogen in California, as well as regulations adopted by the
California Water Resources Control Board, including orders adopted by
the Central Valley Regional Water Quality Control Board (e.g., a
Nutrient Management Plan), the Irrigated Lands Regulatory Program
(e.g., a Nitrogen Management Plan), or other individual mechanisms.\93\
These orders subject agricultural operators, including dairies, bovine
feedlots, poultry operations, and crop farmers to ``waste discharge
requirements that protect both surface water and groundwater.'' \94\
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\92\ 2018 PM<INF>2.5</INF> Plan, App. C, C-311.
\93\ 2018 PM<INF>2.5</INF> Plan, App. C, C-339 to C-343.
\94\ Id. at C-341.
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The EPA anticipates that such regulations are, in practice, likely
to enhance the retention of nitrogen (whether from manure or nitrogen-
based chemical fertilizers) for productive purposes in the SJV (e.g.,
growing crops and enhancing soil health) and limit the loss of nitrogen
as pollution to water and air (e.g., potentially reduce ammonia
emissions). However, to our knowledge, these regulations do not impose
any enforceable requirement for ammonia emissions to the air, and thus
render quantification difficult, as with Rule 4570.\95\
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\95\ Unlike Rule 4570, which has been approved into the
California SIP to limit VOC emissions, the State's water-related
regulations on fertilizer application have not been submitted for
approval into the California SIP.
---------------------------------------------------------------------------
In addition, the District states that ``the overall efficiency of
nitrogen usage at California farms is expected to increase and
emissions of reactive nitrogen, including [ammonia], are expected to
decrease significantly.'' We agree that managing the amount of nitrogen
applied to the environment should reduce the potential for pollution to
air, water, and land. However, the District does not attempt to
quantify or otherwise substantiate the scale and timing of such
potential ammonia emission reduction benefits, nor their
enforceability, nor does it attempt to analyze how much additional
reductions may be available. Overall, the EPA finds that the available
evidence is insufficient to conclude that the State has sufficiently
examined and justified its estimate for the ammonia emission reductions
that may be available from fertilizer application, the second largest
ammonia emission source in the SJV.
c. The EPA's Conclusion for Ammonia Precursor Demonstration
The EPA does not believe that the State has presented sufficient
evidence that ammonia does not contribute significantly to
PM<INF>2.5</INF> levels above the NAAQS. In the absence of an approved
precursor demonstration, ammonia remains a plan precursor subject to
the requirements of BACM, BACT, and additional feasible measures.
As discussed in our 2021 Proposed Rule,\96\ the modeled response to
30% ammonia emissions reductions is above the EPA's recommended
contribution threshold of 0.20 [micro]g/m\3\ at two monitoring sites,
Madera and Hanford, providing evidence that ammonia significantly
contributes to PM<INF>2.5</INF> in SJV. In the previous proposal, we
gave those responses less weight, because of specific evidence
available for these sites that the responses were overestimated. For
Madera, the monitoring data used in estimating the model response are
biased high, and therefore the modeled response of 0.21 [micro]g/m\3\,
just above contribution threshold, is likely overestimated. For
Hanford, several analyses showed ambient ammonia concentrations are
underestimated, and so we believe that the modeled response of 0.26
[micro]g/m\3\ is likely overestimated. Supporting that conclusion is
the evidence from ambient concentrations of excess ammonia relative to
nitrate, which suggest that PM<INF>2.5</INF> responses to reductions of
ammonia emissions would be dampened by the NO<INF>X</INF>-limited
nature of ammonium nitrate formation in the SJV.
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\96\ 86 FR 74310, 74320.
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All of those considerations remain for the current proposal. But in
light of comments received and re-evaluation of the available evidence,
the EPA believes we should give the Hanford response more weight,
because that response would be larger if the ammonia reductions modeled
were larger than the 30% assumed in the State's precursor
demonstration. The previous subsection gave several examples of the
uncertainty and possible underestimation of the ammonia benefit of
available control measures to the SJV. The EPA does not believe there
is sufficient quantitative evidence to rely on 30% as the amount of
achievable reductions, and as the amount to use an upper bound on the
ammonia emission reductions modeled in the State's precursor
demonstration. A robust controls evaluation could show that a larger
amount of reductions is achievable. If it is, then not only would the
Hanford modeled response be larger, but additional monitoring sites
could have a modeled response above the contribution threshold.
For example, with respect to the modeled 2024 ambient
PM<INF>2.5</INF> responses to a 70% emission reduction, we note that
the modeled high site of Bakersfield-Planz would have a response of
0.36 [micro]g/m\3\, the site with the largest modeled response would be
0.75 [micro]g/m\3\ at Hanford, and six sites (including Hanford) would
have modeled responses greater than 0.5 [micro]g/m\3\. As a more modest
example, interpolating between the available 30% and 70% modeled
results, if 32% reductions are achievable, then three additional
monitoring sites (Turlock, Merced-S. Coffee St., and Modesto) would
reach the 0.2 [micro]g/m\3\ contribution threshold. The uncertainty
over the ammonia response means that we cannot rely on 30% as an upper
bound for ammonia emission reductions, and so the weight of evidence
shifts relative to that in the 2021 Proposed Rule.
The discussion in this proposed rule, and the heavy reliance in the
2021 Proposed Rule, on the State's use of a 30% upper bound for
potential reduction from controls should not be interpreted as
establishing a 30% ``bright line'' for deciding whether a precursor
should be regulated. The PM<INF>2.5</INF> Precursor Guidance recommends
that 30% to 70% emissions reductions be modeled as a way of
implementing the PM<INF>2.5</INF> SIP Requirements Rule's option in 40
CFR 51.1006(a)(1)(ii) for a State to assess the sensitivity of the
atmospheric PM<INF>2.5</INF> to precursor emission reductions. The
sensitivity of the atmosphere to reductions is a separate question from
what reductions are achievable from controls; the latter is properly
part of the control evaluation for BACM, BACT, and additional feasible
measures. However, it is important to note that under 40 CFR
[[Page 60507]]
51.1010(a)(2)(ii), the EPA may require a control evaluation to help the
EPA evaluate the precursor demonstration. The PM<INF>2.5</INF>
Precursor Guidance explains that the additional information from a
control evaluation is particularly important when modeled precursor
contributions are close to the threshold for a 30% reduction.\97\ But
the regulations and guidance do not establish an automatic ``off ramp''
for a State to be discharged from the requirements for BACM, BACT, and
additional feasible measures via a showing that achievable reductions
are below a particular percentage.
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\97\ PM<INF>2.5</INF> Precursor Guidance, 31.
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We have no evidence that emission reductions below current
emissions levels from BACM on all ammonia sources in the SJV would be
as large as 70%, but the lack of a developed record showing what
ammonia control measures are feasible and what they could achieve makes
it harder for the EPA to assess this point. We also lack sufficient
evidence to conclude that reasonable ammonia control measures could
achieve no more than 30% reductions, and so cannot rely on that
supposition in weighing the modeled responses to reductions and other
evidence. Better quantification of the possible ammonia reductions from
current levels that could result from additional controls would help
resolve this issue. Reconciliation of modeled sensitivity with that
expected from ambient studies would also be appropriate.
The EPA has re-examined the 2024 sensitivity analyses to both 30%
and 70% ammonia emission reductions in light of the uncertainty that
30% represents a reasonable upper bound for potential ammonia emission
reductions. We note that the State modeled 30% reduction scenarios and
predicted ambient PM<INF>2.5</INF> responses above 0.2 [micro]g/m\3\ at
2 of 15 sites in 2024; and modeled the 70% reduction scenarios and
predicted responses above 0.2 [micro]g/m\3\ at all monitors in
2024.\98\ The EPA maintains that the State's reliance on its
sensitivity-based contribution analysis for a future year (2024) to
evaluate the significance of ammonia as a precursor is reasonable, well
supported, and consistent with the EPA's guidance. There are also good
reasons for giving less weight to the modeled responses at the Madera
and Hanford sites, although those are tempered by the consideration
that there is not good support for limiting the modeled ammonia
reductions to 30%, leading to the possibility of larger responses at
Hanford and of additional sites with responses above the contribution
threshold.
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\98\ 2018 PM<INF>2.5</INF> Plan, App. G, tables 4 through 7.
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The weight of the evidence, including at least one site above the
EPA's recommended contribution threshold and the possibility of
additional ones depending on the unknown amount of reductions
achievable, favor retaining the presumption that ammonia must be
regulated as a PM<INF>2.5</INF> precursor for the 2012 annual
PM<INF>2.5</INF> NAAQS in the SJV. For the reasons explained above, the
Plan both indicates that there are levels of ammonia control that could
have a significant impact on PM<INF>2.5</INF> levels at multiple
monitors in the SJV and does not dispose the potential availability of
ammonia emission reductions at a level that would have such impacts.
Therefore, the EPA proposes to disapprove the State's ammonia precursor
demonstration for the Serious area requirements for purposes of the
2012 annual PM<INF>2.5</INF> NAAQS in the SJV.
B. Best Available Control Measures
1. Statutory and Regulatory Requirements
Section 189(b)(1)(B) of the Act requires for any Serious
PM<INF>2.5</INF> nonattainment area that the State submit provisions to
assure that the best available control measures (BACM), including
controls that reflect best available control technology (BACT), for the
control of PM<INF>2.5</INF> and PM<INF>2.5</INF> precursors shall be
implemented no later than four years after the date the area is
reclassified as a Serious area. The EPA has defined BACM in the
PM<INF>2.5</INF> SIP Requirements Rule to mean ``any technologically
and economically feasible control measure that can be implemented in
whole or in part within 4 years after the date of reclassification of a
Moderate PM<INF>2.5</INF> nonattainment area to Serious and that
generally can achieve greater permanent and enforceable emissions
reductions in direct PM<INF>2.5</INF> emissions and/or emissions of
PM<INF>2.5</INF> plan precursors from sources in the area than can be
achieved through the implementation of reasonably available control
measures (RACM) on the same source(s).'' \99\
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\99\ 40 CFR 51.1000 (definitions). In longstanding guidance, the
EPA has similarly defined BACM to mean, ``among other things, the
maximum degree of emissions reduction achievable for a source or
source category, which is determined on a case-by-case basis
considering energy, environmental, and economic impacts.'' General
Preamble Addendum, 42010, 42013.
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The EPA generally considers BACM a control level that goes beyond
existing RACM-level controls, for example by expanding the use of RACM
controls or by requiring preventative measures instead of
remediation.\100\ Indeed, because states are required to implement BACM
and BACT when a Moderate nonattainment area is reclassified as Serious
due to its inability to attain the NAAQS through implementation of
``reasonable'' measures, it is logical that ``best'' control measures
should represent a more stringent and potentially more technologically
advanced or more costly level of control.\101\ If RACM and RACT level
controls of emissions have been insufficient to reach attainment, then
the CAA Title I, Part D, subpart 4 provisions for PM<INF>2.5</INF>
nonattainment plans contemplate the implementation of more stringent
controls, controls on more sources, or other adjustments to the control
strategy necessary to attain the NAAQS in the area. Thus, BACM/BACT
determinations are to be ``generally independent'' of attainment for
purposes of implementing the PM<INF>2.5</INF> NAAQS.\102\
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\100\ 81 FR 58010, 58081 and General Preamble Addendum, 42011,
42013.
\101\ 81 FR 58010, 58081 and General Preamble Addendum, 42009-
42010.
\102\ PM<INF>2.5</INF> SIP Requirements Rule, 58081-58082. See
also, General Preamble Addendum, 42011.
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Consistent with longstanding guidance provided in the General
Preamble Addendum, the preamble to the PM<INF>2.5</INF> SIP
Requirements Rule discusses the following steps for states to use in
identifying and selecting the emission controls needed to meet the
BACM/BACT requirements of 40 CFR 51.1010:
1. Develop a comprehensive emission inventory of all sources of
PM<INF>2.5</INF> and PM<INF>2.5</INF> precursors from major and non-
major stationary point sources, area sources, and mobile sources;
2. Identify potential control measures for all sources or source
categories of emissions of PM<INF>2.5</INF> and relevant
PM<INF>2.5</INF> plan precursors;
3. Determine whether an available control measure or technology is
technologically feasible;
4. Determine whether an available control measure or technology is
economically feasible; and
5. Determine the earliest date by which a control measure or
technology can be implemented in whole or in part.\103\
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\103\ 81 FR 58010, 58083-58085.
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The EPA allows states to consider factors such as a source's
processes and operating procedures, raw materials, physical plant
layout, and potential environmental impacts such as increased water
pollution, waste disposal, and energy requirements when
[[Page 60508]]
considering technological feasibility.\104\ For purposes of evaluating
economic feasibility, the EPA allows states to consider factors such as
the capital costs, operating and maintenance costs, and cost
effectiveness (i.e., cost per ton of pollutant reduced by a measure or
technology) associated with the measure or control.\105\ For any
potential control measure identified through the process described
above that is eliminated from consideration, states are required to
provide detailed written justification for doing so on the basis of
technological or economic feasibility, including how its criteria for
determining such feasibility are more stringent than those used for
determining RACM/RACT.\106\
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\104\ 40 CFR 51.1010(a)(3)(i).
\105\ 40 CFR 51.1010(a)(3)(ii).
\106\ 40 CFR 51.1010(a)(3)(iii).
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Once these analyses are complete, the State must use this
information to develop enforceable control measures for all relevant
source categories in the nonattainment area and submit them to the EPA
for evaluation as SIP provisions to meet the basic requirements of CAA
section 110 and any other applicable substantive provisions of the Act.
2. BACM for Ammonia Sources
As previously noted, as part of the EPA's 2021 Proposed Rule, we
reviewed the State's analysis of ammonia control for the primary source
categories of ammonia in the context of our evaluation of the State's
precursor demonstration.\107\ Because our prior proposal to approve the
State's ammonia precursor demonstration would have relieved the State
of its obligation to implement BACM for ammonia sources, we did not
present a summary of the 2018 PM<INF>2.5</INF> Plan with respect to the
BACM requirements for ammonia for the 2012 annual PM<INF>2.5</INF>
NAAQS, nor our evaluation thereof. Given our reconsidered proposal to
disapprove the State's ammonia precursor demonstration, in the
following sections of this proposed rule we evaluate the District's
control analysis for the two most substantial source categories of
ammonia, which together sum to more than 90% of the emissions in the
SJV: CAFs and fertilizer application.
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\107\ 86 FR 74310, 74319. See also, 85 FR 17382, 17395 (March
27, 2020), and the EPA's PM<INF>2.5</INF> Precursor TSD, 13.
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a. Summary of State's Submission
The District presents its analysis of ammonia controls for the
primary ammonia source categories in the SJV in Appendix C, section
C.25 (``Ammonia in the San Joaquin Valley'') of the 2018
PM<INF>2.5</INF> Plan. The District evaluated its emission control
measures for compliance with BACM for CAFs and described water-related
measures applicable to fertilizer application that have co-benefits to
air quality. The District presents its reasoning that measures that
control VOC emissions, such as Rule 4570 for CAFs, also reduce ammonia
emissions due to the physical processes occurring in decomposing manure
and subsequent volatilization of decomposition products (like VOC and
ammonia). As part of its process for identifying candidate BACM,
considering the technical and economic feasibility of additional
control measures, the District reviewed the EPA's guidance documents on
BACM, and control measures implemented in other nonattainment areas in
California and other states.\108\
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\108\ 2018 PM<INF>2.5</INF> Plan, Chapter 4, section 4.3.1.
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For CAFs, the District discusses in detail how Rule 4570
(``Confined Animal Facilities'') is structured (e.g., to address
varying types of CAFs, including applicability thresholds); the five
main CAF operations/emission sources: feeding, housing (including
distinctions for housing configurations), solid waste, liquid waste,
and land application of manure; and the control menu requirements for
each of those five operations.\109\ The District summarizes the
specific requirements applicable to each type of cattle-based CAF,
including dairies, beef feedlots, and ``other cattle'' and describes
its basis for ammonia emission reductions estimates, including cited
research papers.
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\109\ 2018 PM<INF>2.5</INF> Plan, App. C, C-312 to C-323.
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The District also compares Rule 4570 to other CAF rules imposed by
the South Coast Air Quality Management District (AQMD), Bay Area AQMD,
Sacramento Metropolitan AQMD, Imperial County Air Pollution Control
District (APCD), and the State of Idaho.\110\ The District evaluates a
potential additional control measure--application of sodium bisulfate
to reduce pH and bacterial levels in bedding for dairy cattle--and
concludes that such measure is not feasible based on a number of
factors, including health and safety of dairy workers and animals,
impacts on water quality, and overall cost and effectiveness.\111\
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\110\ 2018 PM<INF>2.5</INF> Plan, App. C, C-323 to C-337.
\111\ 2018 PM<INF>2.5</INF> Plan, App. C, C-338 to C-339.
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For fertilizer application, as described in section II.A.3 of this
proposed rule, the District states that fertilizer application is the
second largest ammonia source in the SJV and that the District does not
have statutory authority to regulate such activities.\112\
Notwithstanding, the District describes how regulations adopted by the
California Water Resources Control Board, including orders adopted by
the Central Valley Regional Water Quality Control Board (e.g., a
Nutrient Management Plan), the Irrigated Lands Regulatory Program
(e.g., a Nitrogen Management Plan), or other individual mechanisms
\113\ subject agricultural operators, including dairies, bovine
feedlots, poultry operations, and crop farmers to ``waste discharge
requirements that protect both surface water and groundwater.'' \114\
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\112\ 2018 PM<INF>2.5</INF> Plan, App. C, C-311.
\113\ 2018 PM<INF>2.5</INF> Plan, App. C, C-339 to C-343.
\114\ 2018 PM<INF>2.5</INF> Plan, App. C, C-341.
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Overall, the District concludes that ``the Valley's ammonia
emissions have been significantly reduced through stringent
regulations, that additional ammonia control measures are infeasible,
and that Valley sources are already implementing BACM.'' \115\
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\115\ 2018 PM<INF>2.5</INF> Plan, App C., C-312.
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b. Summary of Adverse Comments
Public Justice states that ``[w]eaker controls are consistently
allowed for agricultural sources,'' including an ``expansive menu of
control options'' in Rule 4570, that they assert provide little to no
emission reduction benefit.\116\ More broadly, as described in section
II.A.2 of this proposed rule, the commenters assert that ``[t]he
analysis of potential controls is particular[ly] weak and ignores the
wealth of literature demonstrating that strategies for reducing ammonia
emissions from agriculture . . . are among the most effective for also
reducing PM concentrations,'' and cite several studies in support of
this argument.\117\ The commenters further state that reducing ammonia
emissions may be achieved through ``strategies such as improving
livestock feed to reduce excreted nutrients, altering manure storage
and handling practices to prevent [ammonia] emissions, and improving
synthetic fertilizer use efficiency,'' again citing numerous
studies.\118\ The commenters
[[Page 60509]]
argue that the EPA ``should reject the plan's BACM analysis for failing
to justify these weaker controls, and for being inconsistent with the
Title VI prohibition against policies and practices that inflict
disparate impacts.''
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\116\ Public Justice Comment Letter, 20.
\117\ Public Justice Comment Letter, 16, Exhibits 31 through 34.
\118\ Public Justice Comment Letter, 17, Exhibits 35 through 40
and three additional studies: N. Cole, et al., ``Influence of
dietary crude protein concentration and source on potential ammonia
emissions from beef cattle manure,'' J. Anim. Sci. 83, 722, 2005; N.
Cole, P. Defoor, M. Galyean, G. Duff, J. Gleghorn, ``Effects of
phase-feeding of crude protein on performance, carcass
characteristics, serum urea nitrogen concentrations, and manure
nitrogen of finishing beef steers,'' J. Anim. Sci. 12, 3421-3432,
2006; and R. Todd, N. Cole, R. Clark, ``Reducing crude protein in
beef cattle diet reduces ammonia emissions from artificial feedyard
surfaces,'' J. Environ. Qual. 35, 404-411, 2006.
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c. The EPA's Reconsidered Proposal
As a result of our proposed conclusion that ammonia remains a
regulated precursor for the 2012 annual PM<INF>2.5</INF> NAAQS in the
SJV, the EPA has evaluated potential ammonia emissions control measures
for the two most substantial source categories in the SJV and evaluated
whether the State has implemented ammonia controls with a BACM/BACT
level of stringency. Thus, the EPA has also evaluated the existing
control measures that the State claims are BACM for two of the main
sources of ammonia in the area, including confined animal facilities
(CAFs) and fertilizer application.\119\ As discussed below, we conclude
that the SJV has not established that it has enforceable requirements
in the SIP that meet a BACM level of stringency to reduce ammonia
emissions from these two categories. Therefore, we propose to
disapprove BACM for ammonia sources in the SJV.
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\119\ By focusing on these two source categories, the EPA is not
indicating that this is an exhaustive list of ammonia source
categories that must be evaluated for BACM. However, because these
two categories amount to more than 90% of the ammonia emissions in
the SJV, we focus our analysis on these two categories.
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Our basis for proposing to disapprove BACM for ammonia sources
flows from the controls analysis we have reviewed and discuss in
section II.A.3 of this proposed rule. We agree with the commenters that
the analysis of potential controls in the 2018 PM<INF>2.5</INF> Plan
was weak in two general areas: (1) incomplete quantification of
existing ammonia emission reductions, and (2) lack of consideration of
potential ammonia control measures identified in research studies. In
that section we describe the Plan's weaknesses with respect to
quantifying emission reductions and rely on that description for
purposes of evaluating BACM.
Similarly, in section II.A.3, we discuss additional options for
ammonia control that we will not reiterate here. Based on our review of
the additional research studies cited by the commenters with respect to
CAFs, measures such as those for adjusting the protein content of
livestock feed (e.g., reducing the portion of beef cattle finishing
diets by 1.5% steam-flaked corn), manure handling and storage (e.g.,
washing dairy cow collecting yards after each milking event, covering
solid manure stores with sheeting), and land application of slurry
(e.g., injection application techniques), it appears that additional
measures may be available to evaluate. Absent a thorough and more
current evaluation of technological and economic feasibility of
potential measures as applied in the SJV, we propose to find that the
State has not demonstrated whether or how additional measures (e.g., in
the form of existing options that could also be feasibly implemented,
or new options that may lead to increased reductions) may have been
evaluated, implemented (even partially) by the existing rules, or set
aside for reasons of technological feasibility or economic feasibility,
consistent with the BACM requirements.
For fertilizer application, as discussed in section II.A.3 of this
proposed rule, the District indicates that it does not have authority
to regulate ammonia emissions from fertilizer application. Regardless
of which State entity, as a matter of State law, has authority over
this class of activities, CAA section 189(b)(1) requires that the State
include provisions to ensure implementation of BACM for direct
PM<INF>2.5</INF> and plan precursor emissions, and CAA section
110(a)(2)(E)(i) requires the State to provide necessary assurances that
it has adequate authority to carry out the implementation plan for the
area. While the Plan describes certain water-related measures (e.g.,
Nutrient Management Plans and Nitrogen Management Plan) that subject
agricultural operators, including dairies, bovine feedlots, poultry
operations, and crop farmers to waste discharge requirements, and
likely limit ammonia emissions to the air, to our knowledge, these
regulations do not impose any enforceable requirement for ammonia
emissions to the air, and thus suffer a similar problem as Rule
4570.\120\
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\120\ Unlike Rule 4570, which has been approved into the
California SIP to limit VOC emissions, the State's water-related
regulations on fertilizer application have not been submitted for
approval into the California SIP.
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We agree that as a general matter, managing the amount of nitrogen
applied to the environment should reduce the potential for pollution to
air, water, and land. However, the 2018 PM<INF>2.5</INF> Plan does not
quantify or otherwise substantiate the scale and timing of such
potential ammonia emission reduction benefits, nor their
enforceability. We propose that the State has not adequately identified
potential control measures, evaluated for BACM/BACT, nor demonstrated
the implementation of BACM/BACT for controlling ammonia emissions from
fertilizer application, the second largest source of such emissions in
the SJV.
As a result of our proposal that the State has not demonstrated
that BACM/BACT controls are in place for CAFs and fertilizer
application, two source categories that make up more than 90% of the
ammonia emissions in the SJV, we propose to disapprove the State's BACM
demonstration for ammonia sources.
3. BACM for Building Heating Emission Sources
a. Summary of 2021 Proposed Rule
In our 2021 Proposed Rule, the EPA summarized the State's
submission in the 2018 PM<INF>2.5</INF> Plan for the SJV and presented
our BACM evaluation for emission sources of direct PM<INF>2.5</INF> and
NO<INF>X</INF>.\121\ We briefly summarize those components here with
respect to the State's BACM demonstration for building heating emission
sources, such as water heaters and space heaters (e.g., furnaces), in
the SJV.
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\121\ 86 FR 74310, 74324-74325.
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In Appendix C of the 2018 PM<INF>2.5</INF> Plan, the District
identifies the stationary and area sources of direct PM<INF>2.5</INF>
and NO<INF>X</INF> in the SJV that are subject to District emission
control measures and provides its evaluation of these regulations for
compliance with BACM requirements. As part of its process for
identifying candidate BACM, the District reviewed the EPA's guidance
documents on BACM, additional guidance documents on control measures
for direct PM<INF>2.5</INF> and NO<INF>X</INF> emission sources, and
control measures implemented in other ozone and PM<INF>2.5</INF>
nonattainment areas in California and other states.\122\ Based on these
analyses, the District concludes that all best available control
measures for stationary and area sources are in place in the SJV for
NO<INF>X</INF> and directly emitted PM<INF>2.5</INF> for purposes of
meeting the BACM/BACT requirement for the 2012 annual PM<INF>2.5</INF>
NAAQS.
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\122\ 2018 PM<INF>2.5</INF> Plan, Ch. 4, section 4.3.1.
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With respect to building heating emission sources, the District
presents its evaluations of Rule 4902 (``Residential Water Heaters'')
and Rule 4905 (``Natural Gas-Fired, Fan-Type Central Furnaces'') in
sections C.20 and C.21, respectively, of Appendix C of the 2018
PM<INF>2.5</INF> Plan. Both rules are point of sale rules that limit
what kinds of residential water heaters and furnaces may be sold in the
SJV. The District describes the types of equipment covered by each
rule, compares the specific provisions of each rule that
[[Page 60510]]
limit NO<INF>X</INF> emissions \123\ to comparable rules in other
California air districts, and concludes that each rule represents BACM
for their respective source category.
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\123\ The District notes that equipment subject to Rule 4902 are
fired on natural gas that meets California Public Utility Commission
standards and, therefore, emit only low amounts of SO<INF>X</INF>
and direct PM<INF>2.5</INF>. 2018 PM<INF>2.5</INF> Plan, App. C, C-
288.
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Rule 4902 applies to natural gas-fired, residential water heaters
with heat input rates less than or equal to 75,000 British thermal
units per hour (Btu/hr). The District tightened the rule's
NO<INF>X</INF> limits in 2009; and the EPA approved the rule into the
SIP in 2010.\124\ The District estimates that, due to Rule 4902, annual
average emissions of NO<INF>X</INF> would decrease from 2.15 tpd in
2013 to 1.91 tpd in 2025 (0.24 tpd decrease) and annual average
emissions of direct PM<INF>2.5</INF> would increase from 0.21 tpd in
2013 to 0.23 tpd in 2025 (0.02 tpd increase).\125\
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\124\ 75 FR 24408 (May 5, 2010).
\125\ 2018 PM<INF>2.5</INF> Plan, App. C, C-283.
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In addition to comparing the NO<INF>X</INF> limits in its Rule 4902
to rules in other California air districts, the District also presents
a multi-factor comparison of natural gas-fired and propane-fired, water
heaters to electric water heaters.\126\ The District discussed the
likely impacts of requiring electric water heaters, including the
advantages such as no NO<INF>X</INF> emissions,\127\ less expensive
purchase price, and smaller size, and the disadvantages such as higher
cost of electricity, and the costs of residence modifications to
convert to electric. Based on 2017-2018 data, which is consistent with
the timing of Plan adoption in 2018, the District calculated emission
reductions and cost effectiveness of the three kinds of water heaters
by fuel type and concluded that ``[w]hile the lifetime cost of an
electric water heater is higher than that of propane and natural gas,
the emissions benefits may make converting to electric water heating a
viable control strategy.'' \128\ The analysis does not explore the cost
effectiveness of such controls and Rule 4902 does not include any
requirements regarding electrification.
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\126\ 2018 PM<INF>2.5</INF> Plan, App. C, C-288 to C-289.
\127\ The EPA notes that while the NO<INF>X</INF> emissions of
electric water heaters and furnaces are zero, there could be an
increase in NO<INF>X</INF> emissions from electric power plants.
\128\ 2018 PM<INF>2.5</INF> Plan, App. C, C-289.
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Rule 4905 applies to natural gas-fired, fan-type central furnaces
with heat input rates less than 175,000 Btu/hr and combination heating
and cooling units with a rated cooling capacity of less than 65,000
Btu/hr. In 2015, the District tightened the rule's NO<INF>X</INF>
limits for residential units and expanded the rule to include
commercial units and manufactured homes according to a phase-in
schedule. The EPA approved the rule into the SIP in 2016.\129\ The
District estimates that, due to Rule 4905, annual average emissions for
NO<INF>X</INF> will decrease from 2.44 tpd in 2013 to 2.13 tpd in 2025
(0.31 tpd decrease) and annual average emissions for direct
PM<INF>2.5</INF> will increase from 0.20 tpd in 2013 to 0.22 tpd in
2025 (0.02 tpd increase).\130\ Given the need to extend certain
compliance deadlines in subsequent amendments to Rule 4905 due to
limited supply of certified compliant units,\131\ the District states
that it had identified no additional emission reduction measures for
this source category as of that point in time.\132\
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\129\ 81 FR 17390 (March 29, 2016).
\130\ 2018 PM<INF>2.5</INF> Plan, App. C, C-290.
\131\ The District further amended Rule 4902 in 2018, 2020, and
2021 to extend the compliance deadline for specific units due to
limited supply of certified compliant units, with each amendment
applying to a smaller subset of those specific units. See, e.g., San
Joaquin Valley UAPCD, ``Item Number 10: Adopt Proposed Amendments to
Rule 4905 (Natural Gas-Fired, Fan-Type Central Furnaces),'' December
16, 2021, 2-3.
\132\ 2018 PM<INF>2.5</INF> Plan, App. C, C-293. Unlike the
District's consideration of electric water heaters, the District did
not present an evaluation of electric furnaces in its analysis of
Rule 4905.
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As noted in the EPA's 2021 Proposed Rule, we provided our
evaluation of the District's BACM demonstration for stationary and area
sources in general, and several source categories in more detail, in
three documents: (1) section III of the EPA's ``Technical Support
Document, EPA Evaluation, San Joaquin Valley Serious Area Plan for the
2012 Annual PM<INF>2.5</INF> NAAQS,'' December 2021 (``EPA's 2012
Annual PM<INF>2.5</INF> TSD''); (2) the EPA's ``Technical Support
Document, EPA Evaluation of BACM/MSM, San Joaquin Valley
PM<INF>2.5</INF> Plan for the 2006 PM<INF>2.5</INF> NAAQS,'' February
2020 (``EPA's BACM/MSM TSD''); and (3) the EPA's ``Response to Comments
Document for the EPA's Final Action on the San Joaquin Valley Serious
Area Plan for the 2006 PM<INF>2.5</INF> NAAQS,'' June 2020 (``EPA's
2020 Response to Comments''). In particular, the EPA's 2020 Response to
Comments presented our evaluation of the District's BACM demonstration
for residential water heaters and residential and commercial, natural
gas-fired, fan-type central furnaces.\133\ At that time we found that
the requirements for residential fuel combustion covered by Rule 4902
and Rule 4905 represented BACM.\134\ In addition, the EPA concluded
that setting a zero-NO<INF>X</INF> standard for heating appliances in
new buildings reasonably requires additional consideration and analysis
of technological and economic feasibility by the District because, per
the 2018 PM<INF>2.5</INF> Plan, the most common types of residential
water heaters and furnaces are those that use natural gas as fuel.
---------------------------------------------------------------------------
\133\ EPA's 2020 Response to Comments, Comment 6.O and Response
6.O, 142-148.
\134\ EPA's 2020 Response to Comments, 146-147.
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We also noted that the building codes referenced by commenters at
that time appear to be green building code ordinances that restrict or
prohibit installation of natural gas or propane appliances in new
construction.\135\ Such ordinances, most of which appeared to have been
adopted in late 2019 and early 2020, fell within a category known as
``reach codes,'' which are city and county building code standards for
energy efficiency that exceed California's State-wide standards. We
stated that California law requires local governments to submit
proposed ordinances to the California Energy Commission (CEC) for a
determination that they will be both cost effective and more energy
efficient than statewide standards; compliance with this procedure is
necessary for such measures to be enforceable.\136\ We also noted that
ordinances adopted by city councils and county officials are legally
distinct from measures adopted by the governing boards of the
respective air districts and that it did not appear at the time that
California air districts had adopted similar restrictions.
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\135\ EPA's 2020 Response to Comments, 147-148.
\136\ California 2019 Building Energy Standards, at California
Code of Regulations (CCR), Title 24, Part 1, Article 1, Sec. 10-106
(``Locally Adopted Energy Standards''); see also <a href="https://ww2.energy.ca.gov/title24/2016standards/ordinances">https://ww2.energy.ca.gov/title24/2016standards/ordinances</a>.
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b. Summary of Adverse Comments
Public Justice states that further emission controls are available
for building heating via the electrification of furnaces, water
heaters, and other gas-fired appliances.\137\ The commenters refer to
comments submitted by a group of environmental, public health, and
community organizations (collectively referred to herein as ``NPCA'')
on the EPA's proposed rule on the 2006 24-hour PM<INF>2.5</INF> NAAQS
portion of the SJV PM<INF>2.5</INF> Plan,\138\ noting that building
electrification requirements to reduce emissions from such sources
already
[[Page 60511]]
exist in over 30 jurisdictions in California and other states. The
commenters state that, since that time, additional jurisdictions have
moved forward with gas bans, appliance standards, and other strategies
for building heating.\139\
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\137\ Public Justice Comment Letter, 19.
\138\ Comment letter dated and received April 27, 2020, from
Mark Rose, NPCA, et al., to Rory Mays, EPA, including Appendices A
through G. The seven environmental and community organizations, in
order of appearance in the letter, are the National Parks
Conservation Association (NPCA), Earthjustice, Central Valley Air
Quality Coalition, Coalition for Clean Air, Central Valley
Environmental Justice Network, The Climate Center, and Central
Valley Asthma Collaborative (collectively ``NPCA'').
\139\ Public Justice Comment Letter, 19, and Exhibits 41 through
44. Commenters also state that studies suggest these measures may
provide particularly notable benefits to winter PM<INF>2.5</INF>
peaks in the SJV. Id. at 19.
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With respect to the EPA's response to the NPCA comments in
2020,\140\ Public Justice argues that the ``EPA merely asserted that
the District had found increased building electrification infeasible,''
despite the record showing that other jurisdictions required such
measures, and assert that the District noted the potential of such
measures but rejected them without explanation. The commenters further
argue that the EPA did not rebut evidence on the benefits and
feasibility of such measures, instead noting the need for further
consideration, and that two years later, the Plan does not provide
further consideration.
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\140\ EPA, ``Response to Comments Document for the EPA's Final
Action on the San Joaquin Valley Serious Area Plan for the 2006
PM<INF>2.5</INF> NAAQS,'' June 2020. See Comment 6.O and Response
6.O on pages 142-147.
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c. The EPA's Reconsidered Proposal
Based on the adverse comments from Public Justice, the EPA has
reconsidered our proposed approval of the State's demonstration of BACM
for NO<INF>X</INF> and direct PM<INF>2.5</INF> emissions from building
heating appliances, such as residential water heating and residential
and commercial space heating. As discussed below, we now propose to
disapprove the State's BACM demonstration for such building heating
emission sources.
Although the EPA has previously approved the State's BACM
demonstration for building heating emission sources in 2020 with
respect to the 2006 24-hour PM<INF>2.5</INF> NAAQS portion of the 2018
PM<INF>2.5</INF> Plan, and such approval was upheld by the Ninth
Circuit Court of Appeals,\141\ several factors have reshaped the facts
and circumstances of controlling emissions from such sources as of 2022
and beyond. First, while building ordinances that restrict or prohibit
installation of natural gas or propane appliances in new construction
were starting to appear in 2019 and 2020, as Public Justice correctly
asserts, two additional years have passed and additional jurisdictions
have adopted gas bans, appliance standards, and other strategies for
building heating.\142\ A recent policy brief published by the UCLA
School of Law states that 52 cities and counties in California have
adopted building codes to reduce their reliance on gas for building
heating appliances, and discusses several examples.\143\ The growth in
the number and types of local control measures to reduce pollution from
building heating by restricting or limiting the use of natural gas-
fired heaters support their general availability as technologically
feasible measures.
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\141\ Ninth Circuit Memorandum Order, 9. Regarding increased
building electrification requirements, the Court stated that ``the
EPA considered such an approach and reasonably accepted the State's
determination that it was not feasible at this time.''
\142\ See Public Justice Comment Letter, Exhibits 41 through 44.
\143\ Heather Dadashi, Cara Horowitz, and Julia Stein,
``Pritzker Environmental Law and Policy Briefs, How Air Districts
Can End NO<INF>X</INF> Pollution From Household Appliances,'' Emmett
Institute on Climate Change and the Environment, UCLA School of Law,
March 2022, 8.
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Second, the time horizon of the 2012 annual PM<INF>2.5</INF> NAAQS
portion of the SJV PM<INF>2.5</INF> Plan is one year later (2025
attainment date) than that of the 2006 24-hour PM<INF>2.5</INF> NAAQS
portion of the Plan (2024 attainment date), affording additional time
for potential control measures to achieve emission reductions that may
assist attainment of the 2012 annual PM<INF>2.5</INF> NAAQS. Even if
full implementation of such new measures is not possible by the
applicable attainment date, the State should evaluate whether they
could be implemented in part, consistent with the fifth step for BACM/
BACT evaluation discussed in the PM<INF>2.5</INF> SIP Requirements Rule
and the General Preamble (i.e., to determine the earliest date by which
a control measure or technology can be implemented in whole or in
part).\144\
---------------------------------------------------------------------------
\144\ 81 FR 58010, 58083-58085.
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Third, some of the underlying bases for the District's cost
comparison for residential water heating may have changed since the
District's 2018 adoption of the Plan. For example, in comparing
emission reductions and cost effectiveness of low-NO<INF>X</INF>
natural gas, propane, and electric water heaters, the District used
data on energy factors and purchase price from Grainger Industrial
Supply as of June 14, 2018, and lifetime energy cost data from the U.S.
Energy Information Administration as of 2017. Furthermore, as claimed
by Public Justice, the District did not explain its rejection of
additional control measures of this type, other than to assert that
they were generally more costly. Regarding residential and commercial
space heating, CARB and the District did not provide a detailed
economic feasibility analysis in the Plan. CARB and the District simply
stated that, due to limited supply of certified compliant natural gas-
fired units to comply with Rule 4905, they could identify no additional
emission reduction measures. The incomplete cost analyses presented by
the District, changes in costs over time, and lack of justification for
rejecting measures to reduce pollution from building heating by
restricting or limiting the use of natural gas-fired heaters indicate
an insufficient economic feasibility analysis.
Fourth, CARB and at least one other air district (Bay Area AQMD)
are moving forward in developing measures to set zero-emission
standards for space heaters and water heaters. In developing its 2022
State SIP Strategy (for the 2015 ozone NAAQS), CARB has stated that the
``fuels we use and burn in buildings, primarily natural gas, for space
and water heating contribute significantly to building-related criteria
pollutant and GHG emissions and provide an opportunity for substantial
emissions reductions where zero-emission technology is available.''
\145\ Accordingly, CARB is developing zero-emission standard concepts
and, given the intersection of air quality needs and other areas of
building and energy regulation, and identifying other regulatory
entities that they plan to engage, including the U.S. Department of
Energy, CEC, and the California Building Standards Commission,
Department of Housing and Community Development. We note, however, that
the proposed 2022 State SIP Strategy released August 12, 2022,
anticipates implementation starting in 2030, pending rule development
and CARB Board hearing in 2025.\146\
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\145\ CARB, ``Draft 2022 State Strategy for the State
Implementation Plan,'' January 31, 2022, 86-88.
\146\ CARB, ``Proposed 2022 State Strategy for the State
Implementation Plan,'' August 12, 2022, 101-103.
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The Bay Area AQMD hosted public meetings in 2021 and developed
draft amendments to certain rules that would reduce NO<INF>X</INF>
emissions from residential and commercial furnaces and water
heaters.\147\ Specifically, Bay Area AQMD has developed draft
amendments to two rules: (1) Regulation 9, Rule 4 (``Nitrogen Oxides
from Fan Type Residential Central Furnaces''), which applies to
furnaces with a heat input rate of less than 175,000 Btu/hr and
combination heating and cooling units with a rated cooling capacity of
less than 65,000 Btu/hr (like SJVUAPCD Rule 4905); and (2) Regulation
9, Rule 6 (``Nitrogen Oxides Emissions from
[[Page 60512]]
Natural Gas-Fired Boilers and Water Heaters''), which applies to water
heaters with a rated heat input capacity of 75,000 Btu/hr or less (like
SJVUAPCD Rule 4902), as well as additional source types and sizes.\148\
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\147\ A summary of the Bay Area AQMD's rule development is
available at: <a href="https://www.baaqmd.gov/rules-and-compliance/rule-development/building-appliances">https://www.baaqmd.gov/rules-and-compliance/rule-development/building-appliances</a>.
\148\ As in the San Joaquin Valley, larger boilers and similar
equipment used in industrial, institutional, and large commercial
settings are subject to other rules of the Bay Area AQMD, and
therefore not subject to Rule 4 or Rule 6.
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For Rule 4, Bay Area AQMD staff have developed draft amendments to
lower the current NO<INF>X</INF> emission limit for applicable furnaces
from 40 nanograms of NO<INF>X</INF> per joule of useful heat (ng/j) to
14 ng/j (which would match the limit in SJVUAPCD Rule 4905) in the
short term (with a compliance date of January 1, 2023); followed by a
zero-NO<INF>X</INF> emission requirement (with a compliance date of
January 1, 2029); and expand the applicability beyond fan-type central
furnaces to other types of equipment (e.g., wall furnaces and direct
vent units).\149\ For Rule 6, which contains NO<INF>X</INF> limits for
small boilers and water heaters, Bay Area AQMD staff proposes a zero-
NO<INF>X</INF> emission requirement. However, staff also note that
while technologies achieving zero-NO<INF>X</INF> emissions exist,
``they are limited in availability and can be expensive,'' that such
standards would be ``technology and market-forcing,'' and, therefore,
staff proposes compliance dates of January 1, 2027, and January 1,
2031, depending on equipment heat rate (i.e., the size of the boiler or
water heater).\150\
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\149\ Bay Area AQMD, ``Workshop Report, Draft Amendments to
Building Appliance Rules--Regulation 9, Rule 4: Nitrogen Oxides from
Fan Type Residential Central Furnaces and Rule 6: Nitrogen Oxide
Emissions from Natural Gas-Fired Boilers and Water Heaters,''
September 2021, 1.
\150\ Id.
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CARB and Bay Area AQMD efforts in this area underscore the
importance of building heating emission sources, such as water heaters
and space heaters (e.g., furnaces), throughout California and the
continued effort to implement available control measures for these
sources for criteria pollutant attainment planning requirements. At the
same time, while SJVUAPCD, CARB, and Bay Area AQMD each acknowledge
that zero-NO<INF>X</INF> emission technology for small residential and
commercial space and water heating is available, it is unclear what a
feasible implementation horizon might be in light of CARB's strategy
and the Bay Area AQMD's draft amendments. The plan as submitted did not
address how such implementation considerations may or may not affect
the feasibility of setting such zero-NO<INF>X</INF> emission standards
for space and water heating in small residential and commercial
buildings in the SJV.
Given the factors discussed above, we now propose that the State
has not adequately identified potential control measures, evaluated for
BACM/BACT, nor demonstrated the implementation of BACM/BACT for
controlling NO<INF>X</INF> and direct PM<INF>2.5</INF> emissions from
building emission heating sources in the SJV.
C. Attainment Demonstration
1. Summary of 2021 Proposed Rule
In sections IV.C (air quality modeling) and IV.F (attainment
demonstration) of our 2021 Proposed Rule, the EPA summarized the CAA
and regulatory requirements for air quality modeling and attainment
demonstrations, the State's submission in the SJV PM<INF>2.5</INF>
Plan, and our evaluation thereof.\151\ We briefly summarize those
components herein.
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\151\ 86 FR 74310, 74322-74324 (air quality modeling) and 74325-
74338 (attainment demonstration).
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Sections 188(c)(2) and 189(b)(1)(A) of the CAA require that Serious
area plans must include a demonstration (including air quality
modeling) that provides for attainment of the PM<INF>2.5</INF> NAAQS as
expeditiously as practicable, but no later than the end of the tenth
calendar year after the area's designation as nonattainment. The
PM<INF>2.5</INF> SIP Requirements Rule also specifies that the control
strategy in a Serious area attainment plan must provide for attainment
as expeditiously as practicable.\152\ The outermost statutory Serious
area attainment date for the 2012 annual PM<INF>2.5</INF> NAAQS in the
SJV is December 31, 2025 (absent an EPA-approved attainment date
extension request under CAA section 188(e)). For purposes of
determining the attainment date that is as expeditious as practicable,
the State must conduct future year modeling that takes into account
emissions growth, known emissions controls (including any controls that
were previously determined to be RACM/RACT or BACM/BACT), any other
emissions controls required to meet BACM/BACT, and additional measures
as needed for expeditious attainment of the NAAQS. The regulatory
requirements for Serious area plans are codified at 40 CFR 51.1010
(control strategy requirements) and 40 CFR 51.1011(b) (attainment
demonstration and modeling requirements). We also described the EPA's
PM<INF>2.5</INF> modeling guidance (``Modeling Guidance''),\153\
including our recommendations therein for photochemical modeling,
inputs, procedures, performance evaluation, emissions simulation, and
calculating relative response factors (RRFs).
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\152\ 40 CFR 51.1011(b)(1); 81 FR 58010, 58087.
\153\ Memorandum dated November 29, 2018, from Richard Wayland,
Air Quality Assessment Division, OAQPS, EPA, to Regional Air
Division Directors, EPA, Subject: ``Modeling Guidance for
Demonstrating Air Quality Goals for Ozone, PM<INF>2.5</INF>, and
Regional Haze,'' (``Modeling Guidance'').
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With respect to air quality modeling, the 2018 PM<INF>2.5</INF>
Plan included the State's modeled attainment demonstration projecting
that the SJV will attain the 2012 annual PM<INF>2.5</INF> NAAQS by
December 31, 2025; the State's primary discussion of the photochemical
modeling appears in Appendix K (``Modeling Attainment Demonstration'').
The State provides a conceptual model of PM<INF>2.5</INF> formation in
the SJV as part of the modeling protocol in Appendix L (``Modeling
Protocol'') and describes emission input preparation procedures. The
State presents additional relevant information in Appendix C (``Weight
of Evidence Analysis'') of CARB's staff report for the 2018
PM<INF>2.5</INF> Plan,\154\ which includes ambient trends and other
data in support of the demonstration of attainment by 2025.
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\154\ 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'').
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In the 2021 Proposed Rule, the EPA presented its review of the
State's modeling approach and its many interconnected facets, including
model input preparation, model performance evaluation, use of the model
output for the numerical NAAQS attainment test, and modeling
documentation, and found it to be generally consistent with the EPA's
recommendations in the Modeling Guidance. We incorporated our
evaluation of the Plan's modeling for the 2006 24-hour PM<INF>2.5</INF>
NAAQS portion of the SJV PM<INF>2.5</INF> Plan \155\ and extended that
evaluation with information specific to the 2012 annual
PM<INF>2.5</INF> NAAQS. Overall, in the 2021 Proposed Rule, we
considered the State's analyses consistent with the EPA's guidance on
modeling for PM<INF>2.5</INF> attainment planning purposes and proposed
to find that the modeling in the 2018 PM<INF>2.5</INF> Plan was
adequate for the purposes of supporting the State's RFP demonstration
and the attainment demonstration.
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\155\ EPA Region IX, ``Technical Support Document, EPA
Evaluation of Air Quality Modeling, San Joaquin Valley
PM<INF>2.5</INF> Plan for the 2006 PM<INF>2.5</INF> NAAQS,''
February 2020 (``EPA's 2006 NAAQS Modeling TSD'').
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With respect to the attainment demonstration, the SJV
PM<INF>2.5</INF> Plan includes a modeled demonstration projecting
attainment of the 2012 annual PM<INF>2.5</INF> NAAQS in the SJV by
December 31, 2025, based on emission reductions
[[Page 60513]]
from implementation of baseline control measures and the development,
adoption, and implementation of additional control measures to meet
specific enforceable commitments. In the EPA's 2021 Proposed Rule, we
described how the Plan's control strategy was to reduce emissions from
sources of NO<INF>X</INF> and direct PM<INF>2.5</INF> and that most of
the projected emission reductions are achieved by baseline measures--
i.e., the combination of State and District measures adopted prior to
the State's and District's adoption of the Plan--that will achieve
ongoing emission reductions from the 2013 base year to the 2025
projected attainment year.
The remainder of the Plan's emission reductions are to be achieved
by additional measures to meet enforceable commitments, including
potential regulatory and incentive-based measures and, as necessary,
substitute measures.\156\ In the Valley State SIP Strategy and the 2018
PM<INF>2.5</INF> Plan, CARB and the District, respectively, included
commitments to take action on specific measures by specific years or to
develop substitute measures (referred to as ``control measure
commitments'') and to achieve specified amounts of NO<INF>X</INF> and
direct PM<INF>2.5</INF> emission reductions by certain dates (referred
to as ``aggregate tonnage commitments'').\157\ We refer to these
complementary commitments herein as ``aggregate commitments.''
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\156\ In this proposed rule, the term ``substitute measures''
means additional control measures that were not identified in CARB
and the District's original control measure commitments in adopting
the Valley State SIP Strategy and the 2018 PM<INF>2.5</INF> Plan,
respectively. The ``substitute'' aspect primarily relates to
emission reductions (i.e., providing emission reductions where any
adopted measure achieves less emission reductions than originally
estimated, and/or providing emission reductions in lieu of any
originally planned measure that is not adopted). They are also
sometimes referred to as ``alternative measures'' in the SJV
PM<INF>2.5</INF> Plan and adopting resolutions.
\157\ CARB Resolution 18-49 and SJVUAPCD Governing Board
Resolution 18-11-16, paragraph 6.
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In the 2021 Proposed Rule, the EPA described several findings
relating to our evaluation of the SJV PM<INF>2.5</INF> Plan's
attainment demonstration. First, we proposed to approve the Plan's
emissions inventories and to find the Plan's air quality modeling
adequate.\158\ Second, we proposed to find that the Plan provides for
expeditious attainment through the timely implementation of the control
strategy to reduce emissions from sources of NO<INF>X</INF> and direct
PM<INF>2.5</INF>, including RACM, BACM, and any other emission controls
necessary for expeditious attainment.
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\158\ Sections IV.A (emissions inventory) and IV.C (air quality
modeling) of the 2021 Proposed Rule.
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Third, the EPA proposed to find that the emissions reductions that
are relied on for attainment in the SIP submission are creditable. We
noted that the SJV PM<INF>2.5</INF> Plan relies principally on already
adopted and approved rules to achieve the emissions reductions needed
to attain the 2012 annual PM<INF>2.5</INF> NAAQS in the SJV by December
31, 2025, and that the balance of the reductions that the State has
modeled to achieve attainment by this date is currently represented by
enforceable commitments that account for 13.8% of the NO<INF>X</INF>
and 8.0% of the direct PM<INF>2.5</INF> emissions reductions needed for
attainment. In terms of our evaluation of CARB and the District's
enforceable commitments, we proposed to find that circumstances in the
SJV for the 2012 annual PM<INF>2.5</INF> NAAQS warrant the
consideration of enforceable commitments and that the EPA's three
criteria for such commitments had been met: (1) the commitments
constitute a limited portion of the required emissions reductions; (2)
both CARB and the District have demonstrated their capability to meet
their commitments; and (3) the commitments are for an appropriate
timeframe. We therefore proposed to approve the State's reliance on
these enforceable commitments in its attainment demonstration.
Overall, in the 2021 Proposed Rule, we proposed to approve the SJV
PM<INF>2.5</INF> Plan's demonstration of attainment of the 2012 annual
PM<INF>2.5</INF> NAAQS by December 31, 2025, consistent with the
requirements of CAA section 189(b)(1)(A). We presented the basis for
our proposed determination in sections IV.F.3.a through IV.F.3.e of the
2021 Proposed Rule and provided further detail of our evaluation of
baseline measures and the additional measures and aggregate commitments
in sections II and IV, respectively, of the EPA's 2012 Annual
PM<INF>2.5</INF> TSD.
2. Summary of Ninth Circuit Order and Adverse Comments
As introduced in section I.D of this proposed rule, in response to
a petition for review of the EPA's approval of the 2006 24-hour
PM<INF>2.5</INF> NAAQS portion of the SJV PM<INF>2.5</INF> Plan, the
Ninth Circuit Court of Appeals issued a Memorandum Opinion that, in
part, vacated the final action with respect the EPA's second factor for
evaluating the validity of the State's enforceable commitments (i.e.,
whether the State is capable of fulfilling its commitment). The Ninth
Circuit's order is very relevant to this proposed rule because the
State relied on the same common control strategy, including the same
set of enforceable commitments (i.e., the same set of control measure
commitments and aggregate tonnage commitments) for both the 2006 24-
hour PM<INF>2.5</INF> NAAQS Serious area plan and the 2012 annual
PM<INF>2.5</INF> NAAQS Serious area plan.
The Ninth Circuit found that the EPA ``fail[ed] to provide evidence
or a reasoned explanation for its conclusion that California will be
able to fulfill its commitment'' in the face of a potential multi-
billion dollar funding shortfall for incentive-based control measure
commitments, ``which could result in emission reduction shortfalls of
approximately 7% of the total NO<INF>X</INF> reductions and 8% of the
total PM<INF>2.5</INF> reductions necessary for attainment.'' \159\ In
response to the EPA's arguments that: (1) the funding shortfall may be
smaller than projected; (2) emission reductions may be less expensive
than the strategy predicts; (3) certain yet-to-be-quantified sources of
reductions in the Plan may make up for shortfalls; and (4) California
and the District may identify other measures to fulfill their
commitments, the Court wrote that, ``[b]ecause these speculative
assertions are unsupported by the evidence, they fail to ensure that
California and the District have a plausible strategy for achieving
this portion of the attainment strategy, and therefore do not
collectively satisfy the second factor of the EPA's three-factor
test.'' \160\ It is important to emphasize that the State relied
heavily on the projected emission reductions that it hopes to achieve
through new control measures and emissions reductions reflected in the
aggregate commitments. These reductions are crucial to the State
meeting the modeled attainment demonstration and RFP requirements. If
it is not credible that the State can meet the commitments, then the
EPA cannot approve other nonattainment plan elements that rely upon
them.
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\159\ Medical Advocates for Healthy Air v. EPA, Case No. 20-
72780, Dkt. #58-1 (9th Cir., April 13, 2022), 6.
\160\ Id. at 7.
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Separately, in comments on the EPA's 2021 Proposed Rule, Public
Justice states that CARB and the District's aggregate tonnage
commitments are to ``achieve a specific amount of reductions at the
last possible moment prior to the attainment deadline with no concrete
strategies for how that will be achieved.'' \161\ They assert that
prior plans with aggregate tonnage commitments for the 1997 annual
PM<INF>2.5</INF> NAAQS by 2015 (i.e., the 2008 PM<INF>2.5</INF> Plan)
and then by 2020 (i.e., the SJV PM<INF>2.5</INF> Plan) failed to attain
those standards and that such past failures implies that the
commitments failed to
[[Page 60514]]
deliver the promised clean air.\162\ The commenters further state that
``deferred, unspecified, and last-minute promises to achieve reductions
(i.e., aggregate commitments), inflicts disparate impacts in violation
of Title VI,'' irrespective of whether the commitments comply with the
CAA.
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\161\ Public Justice Comment Letter, 20.
\162\ Public Justice refers specifically to the EPA's November
2016 finding of failure to attain and the EPA's November 2021 final
disapproval of the 1997 annual PM<INF>2.5</INF> NAAQS portion of the
SJV PM<INF>2.5</INF> Plan. 81 FR 84481 (November 23, 2016) and 86 FR
67329 (November 26, 2021), respectively.
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3. The EPA's Reconsidered Proposal
As a result of the Ninth Circuit Memorandum Opinion with respect to
the SJV PM<INF>2.5</INF> Plan's enforceable commitments, the EPA has
reconsidered its proposed approval of the Plan's demonstration of
attainment for the 2012 annual PM<INF>2.5</INF> NAAQS in the SJV by
December 31, 2025, and now proposes to disapprove the Plan's attainment
demonstration. The Ninth Circuit Memorandum Opinion raised concerns
about the ability of CARB and the District to fulfill the commitments.
We present our reconsideration in the following sections of this
proposed rule: (1) our reconsideration of CARB and the District's
enforceable commitments and proposal that the commitments do not meet
the second factor of the EPA's three-factor test (in section II.C.3.a);
and (2) the effect of our proposed disapproval of the State's
enforceable commitments and specific portions of the State's BACM
demonstration on the modeled attainment demonstration (in section
II.C.3.b).
a. Additional Measures and Enforceable Commitments
In this subsection we re-examine CARB and the District's
enforceable commitments. We describe CARB and the District's progress
in adopting specific measures that they committed to present for
governing board adoption, and evaluate whether CARB and the District
have demonstrated the capability to achieve specific tonnages of
reductions that they committed to achieve by the 2025 attainment year.
We first enumerate the measures that have already been approved into
the SIP and quantify the amount of the tonnage commitment that these
account for. We then calculate CARB and the District's remaining
commitments as of the time of this notice, describe the strategy that
CARB and the District have provided for achieving the remaining
reductions (consisting of submitted measures that have not yet been
approved into the SIP, adopted measures that have not yet been
submitted to the EPA, measures under development, and other potential
future measures), and calculate the reductions that may be associated
with these measures. We conclude that although CARB and the District
have made substantial progress toward achieving the committed-to
reductions, CARB and the District have not presented a plausible
strategy demonstrating that they are capable of achieving the entirety
of the aggregate commitment.
In our 2021 Proposed Rule, the EPA described the SJV
PM<INF>2.5</INF> Plan's series of CARB and District commitments to
achieve emission reductions through additional control measures, beyond
baseline measures, that are intended to contribute to expeditious
attainment of the 2012 annual PM<INF>2.5</INF> NAAQS. For mobile
sources, CARB identified a list of 12 State regulatory measures and 3
incentive-based measures that CARB has committed to propose to its
Board for consideration by specific years.\163\ For stationary sources,
the District identified a list of nine regulatory measures and three
incentive-based measures that the District has committed to propose to
its Board for consideration by specific years.\164\
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\163\ CARB Resolution 18-49, Attachment A and Valley State SIP
Strategy, Table 7 (``State Measures and Schedule for the San Joaquin
Valley''). The schedule of proposed SIP measures in Table 7 includes
two additional CARB measures: the second phase of the Advanced Clean
Cars Program (``ACC 2'') and the ``Cleaner In-Use Agricultural
Equipment'' measures. However, these measures are not scheduled for
implementation until 2026 and 2030, respectively, which is after the
January 1, 2025 implementation deadline under 40 CFR 51.1011(b)(5)
for control measures necessary for attainment by December 31, 2025.
Therefore, we are not reviewing these measures as part of the
control strategy to attain the 2012 annual PM<INF>2.5</INF> NAAQS in
the SJV.
\164\ SJVUAPCD Governing Board Resolution 18-11-16 and 2018
PM<INF>2.5</INF> Plan, Table 4-4 (``Proposed Regulatory Measures'')
and Table 4-5 (``Proposed Incentive-Based Measures'').
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The Plan contains CARB's and the District's estimates of the
emission reductions that could be achieved by each of these additional
measures, if adopted as planned.\165\ As we described in our 2021
Proposed Rule, CARB's commitments are contained in CARB Resolution 18-
49 (October 25, 2018) and the Valley State SIP Strategy and consist of
two parts: a control measure commitment and a tonnage commitment.
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\165\ 2018 PM<INF>2.5</INF> Plan, Ch. 4, Table 4-3 (''Emission
Reductions from District Measures'') and Table 4-9 (''San Joaquin
Valley Expected Emission Reductions from State Measures'') and
Valley State SIP Strategy, Table 8 (``San Joaquin Valley Expected
Emission Reductions from State Measures'').
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First, CARB has committed to ``begin the measure's public process
and bring to the Board for consideration the list of proposed SIP
measures outlined in the Valley State SIP Strategy and included in
Attachment A, according to the schedule set forth.'' \166\ By email
dated November 12, 2019, CARB confirmed that it intended to begin the
public process on each measure by discussing the proposed regulation or
program at a public meeting (workshop, working group, or Board hearing)
or in a publicly-released document, and to then propose the regulation
or program to its Board.\167\ Second, CARB has committed ``to achieve
the aggregate emissions reductions outlined in the Valley State SIP
Strategy of 32 tpd of NO<INF>X</INF> and 0.9 tpd of PM<INF>2.5</INF>
emissions reductions in the San Joaquin Valley by 2024 and 2025.''
\168\ The Valley State SIP Strategy explains that CARB's overall
commitment is to ``achieve the total emission reductions necessary to
attain the Federal air quality standards, reflecting the combined
reductions from the existing control strategy and new measures'' and
that ``if a particular measure does not get its expected emissions
reductions, the State is still committed to achieving the total
aggregate emission reductions.'' \169\
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\166\ CARB Resolution 18-49, 5.
\167\ Email dated November 12, 2019, from Sylvia Vanderspek,
CARB, to Anita Lee, EPA Region IX, ``RE: SJV PM<INF>2.5</INF>
information'' (attaching ``Valley State SIP Strategy Progress'') and
CARB Staff Report, 14.
\168\ CARB Resolution 18-49, 5.
\169\ Valley State SIP Strategy, 7.
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Similarly, in our 2021 Proposed Rule, we explained that the
District's commitments are contained in SJVUAPCD Governing Board
Resolution 18-11-16 (November 15, 2018) and Chapter 4 of the 2018
PM<INF>2.5</INF> Plan and also consist of two parts: a control measure
commitment and a tonnage commitment. First, the District has committed
to ``take action on the rules and measures committed to in Chapter 4 of
the Plan by the dates specified therein, and to submit these rules and
measures, as appropriate, to CARB within 30 days of adoption for
transmittal to EPA as a revision to the [SIP].'' \170\ By email dated
November 12, 2019, the District confirmed that it intended to take
action on the listed rules and measures by beginning the public process
on each measure, i.e., discussing the proposed regulation or program at
a public meeting, including a workshop, working group, or Board
hearing, or in a publicly-released document, and then proposing the
rule or measure to the SJVUAPCD Governing Board.\171\ Second, the
District has
[[Page 60515]]
committed to ``achieve the aggregate emissions reductions of 1.88 tpd
of NO<INF>X</INF> and 1.3 tpd of PM<INF>2.5</INF> by 2024/2025''
through adoption and implementation of these measures or, if the total
emission reductions from these rules or measures are less than these
amounts, ``to adopt, submit, and implement substitute rules and
measures that achieve equivalent reductions in emissions of direct
PM<INF>2.5</INF> or PM<INF>2.5</INF> precursors'' in the same
implementation timeframes.\172\
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\170\ SJVUAPCD Governing Board Resolution 18-11-16, 10-11.
\171\ Email dated November 12, 2019, from Jon Klassen, SJVUAPCD,
to Wienke Tax, EPA Region IX, ``RE: follow up on aggregate
commitments in SJV PM<INF>2.5</INF> Plan'' (attaching ``District
Progress in Implementing Commitments with 2018 PM<INF>2.5</INF>
Plan'').
\172\ SJVUAPCD Governing Board Resolution 18-11-16, 10-11.
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In sections IV.F.3.c and IV.F.3.d of our 2021 Proposed Rule, the
EPA described CARB's and the District's progress as of that point in
time on their control measure commitments and progress towards
fulfilling their respective aggregate commitments, respectively. Based
on our reconsideration of the State's enforceable commitments in light
of the Ninth Circuit Memorandum Opinion, while we propose to retain
certain findings with respect to the State's progress, we now propose
that the State has not adequately demonstrated that it can fulfill the
remaining portions of its enforceable commitments (i.e., the second
factor of the EPA's three-factor test). We present our reconsidered
evaluation of the status of CARB's and the District's control strategy
and our three-factor test for enforceable commitments, as follows.
With respect to progress on the control measure commitments, CARB
and the District together have adopted 18 measures of the 27 control
measure commitments in the SJV PM<INF>2.5</INF> Plan and have begun the
public process on 5 of the remaining control measure commitments, which
is unchanged since the time of our 2021 Proposed Rule. This progress is
described in further detail in CARB and the District's ``Progress
Report and Technical Submittal for the 2012 PM<INF>2.5</INF> Standard
San Joaquin Valley'' (2021 Progress Report).\173\ For CARB's portion,
CARB has adopted 10 of the 15 measures identified in its commitment
(including one incentive-based measure) and begun the public process on
3 of the remaining 5 measures. For the District's portion of the
control measure commitments, the District has adopted 8 of the 12
measures identified in its commitment (including one incentive-based
measure) and begun the public process on 2 of the remaining 4 measures.
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\173\ ``Progress Report and Technical Submittal for the 2012
PM<INF>2.5</INF> Standard San Joaquin Valley,'' October 19, 2021.
Transmitted to the EPA by letter dated October 20, 2021, from
Richard W. Corey, Executive Officer, CARB, to Deborah Jordan, Acting
Regional Administrator, EPA Region IX. See sections of 2021 Progress
Report entitled ``Progress in Implementing District Measures'' and
``Progress in Implementing CARB Measures.''
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Although CARB and the District have made substantial progress in
developing and adopting the regulatory measures listed in their
respective control measure commitments, they have not yet fulfilled the
commitments for several measures in accordance with the timeframes
established in the SJV PM<INF>2.5</INF> Plan. We provide further detail
on CARB and the District's control measure commitments in section IV.A
of the EPA's 2012 Annual PM<INF>2.5</INF> TSD (including tables IV-A
and IV-B regarding CARB and the District's control measure commitments,
respectively).\174\
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\174\ We note that Table IV-A of the EPA's 2012 Annual
PM<INF>2.5</INF> TSD contained an error with respect to the adoption
date of CARB's measure for Transportation Refrigeration Units Used
for Cold Storage. While CARB had heard proposed amendments to the
measure on September 23, 2021, the measure was not actually adopted
until February 24, 2022, following further process and rule
adjustments required by the Board. CARB Resolution 22-5, February
24, 2022.
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Regarding the remaining nine measures not yet proposed for board
consideration, we continue to note that one measure, Rule 4550
(``Conservation Management Practices''), has an action year of 2022 in
the 2018 PM<INF>2.5</INF> Plan (i.e., the District has the remainder of
2022 to present a proposed measure for board consideration) and that
four regulatory measures and four incentive-based measures are overdue.
For the four regulatory measures, while CARB and the District have not
proposed these measures to their respective boards, they began the
public process on each of the four measures on time with respect to the
schedule of their respective public process commitments. To our
knowledge, CARB anticipates board consideration of the diesel fuel
measures in 2022 and the forklift measure in 2022 or 2023 \175\ and
continues to develop the airport ground support equipment measure; the
District continues to evaluate potential amendments to Rule 4692 in the
near future.\176\
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\175\ In the 2021 Progress Report (dated October 19, 2021), page
20, CARB indicates that the Zero-Emission Off-Road Forklift
Regulation Phase 1 would be presented for Board consideration ``as
early as 2022,'' while CARB's updated ``SJV PM<INF>2.5</INF> SIP
Measure Tracking'' (dated December 2021) anticipates presenting the
measure to the Board in Summer 2023.
\176\ 2021 Progress Report, 8-9, 20-22, and tables 2 and 3.
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For the four incentive-based measures, CARB and the District
continue to invest in reducing emissions from heavy-duty trucks and
buses, off-road equipment, agricultural operation internal combustion
engines, and commercial under-fired charbroiling.\177\ However, while
CARB and the District have discussed the proposed programs at board
hearings,\178\ to our knowledge, CARB and the District have not started
the public process for the four incentive-based control measure
commitments as enforceable measures to be submitted to the EPA for
approval and inclusion as control measures in the California SIP.
Furthermore, as discussed in section IV.F.3.c of our 2021 Proposed
Rule, for heavy-duty trucks and off-road equipment, CARB acknowledges
that many of the project lives do not span the attainment year \179\
and, thus, while these projects may accelerate emission reductions and
benefit communities in the SJV, the projects that qualify for SIP
credit may be limited for the purposes of the 2012 annual
PM<INF>2.5</INF> NAAQS Serious area attainment demonstration.
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\177\ CARB, ``Long-Term Heavy-Duty Investment Strategy,
Including Fiscal Year 2020-21 Three-Year Recommendations for Low
Carbon Transportation Investments,'' (App. D to CARB's ``Proposed
Fiscal Year 2021-22 Funding Plan for Clean Transportation
Incentives''), release date October 8, 2021; and SJVUAPCD,
``Comprehensive Annual Financial Report, Fiscal Year Ended June 30,
2020,'' release date December 23, 2020. See also, 2021 Progress
Report, 3 and 15.
\178\ For example, CARB staff discussed the Accelerated Turnover
of Trucks and Buses Incentive Measure at its annual 2020 update to
the CARB Board. CARB presentation, ``Update on the 2018
PM<INF>2.5</INF> SIP for the San Joaquin Valley,'' October 22, 2020.
District staff discussed and adopted an emission reductions strategy
for commercial under-fired charbroiling, including incentives, in
December 2020. SJVUAPCD, ``Item Number 11: Adopt Proposed Commercial
Under-Fired Charbroiling Emission Reduction Strategy,'' December 17,
2020.
\179\ Id. at 24 and 32. Generally, mobile source incentive
projects implemented under the Carl Moyer program are under contract
only during the ``project life'' and may not be credited with SIP
emission reductions after the project life ends. 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, 12-13.
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Overall, while CARB and the District have made substantial progress
in developing and adopting the regulatory measures listed in their
respective control measure commitments that were submitted in the SJV
PM<INF>2.5</INF> Plan, in light of the Ninth Circuit Memorandum
Opinion, we have reconsidered the effect of the eight overdue measures
of the original commitments and in particular the overdue incentive-
based measures, on our evaluation of CARB and the District's aggregate
tonnage commitments and our three-factor test. Under the second factor
of the EPA's test for enforceable commitments, the
[[Page 60516]]
Agency must evaluate whether a State is capable of fulfilling such
commitments. The tardiness of presenting these control measures for
board consideration renders the reductions from these measures more
speculative under the second factor.
With respect to the aggregate tonnage commitments to attain the
2012 annual PM<INF>2.5</INF> NAAQS in the SJV, we reiterate that CARB
committed to achieve 32 tpd of NO<INF>X</INF> and 0.9 tpd of
PM<INF>2.5</INF> emissions reductions, and the District committed to
achieve 1.88 tpd of NO<INF>X</INF> and 1.3 tpd of PM<INF>2.5</INF>
emissions reductions by 2025. These aggregate tonnage commitments sum
to 33.88 tpd NO<INF>X</INF> and 2.2 tpd direct PM<INF>2.5</INF>. CARB
and the District have committed to achieve these reductions via the 27
control measure commitments, or such other substitute measures as may
be necessary, to achieve the aggregate tonnage commitments for
NO<INF>X</INF> and direct PM<INF>2.5</INF>.
For the purpose of our analysis of the State's progress toward
achieving its aggregate tonnage commitments, of the 18 measures adopted
by December 2021, as well as the adoption of an important substitute
measure (the Agricultural Burning Phase-out Measure \180\), the State
has submitted 12 measures as revisions to the California SIP (i.e.,
more than the 9 measures submitted to EPA as of the time of the 2021
Proposed Rule). Since December 2021, the EPA finalized or proposed
approval of three control measure SIP submissions that were control
measure commitments in the SJV PM<INF>2.5</INF> Plan.
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\180\ See 87 FR 36222 (June 16, 2022).
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First, the EPA finalized approval of the Heavy-Duty Vehicle
Inspection Program (HDVIP) and Periodic Smoke Inspection Program
(PSIP).\181\ However, as in our 2021 Proposed Rule, CARB has not yet
provided its analysis of the basis for this emission reduction estimate
(of
[…truncated; see source link]Indexed from Federal Register on October 5, 2022.
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