Proposed Rule2023-16748
Federal Implementation Plan for Contingency Measures for the Fine Particulate Matter Standards; San Joaquin Valley, California
Primary source
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Published
August 8, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to promulgate a Federal Implementation Plan (FIP) under the Clean Air Act (CAA) that consists of contingency measures for the 1997, 2006, and 2012 fine particulate matter (PM<INF>2.5</INF>) national ambient air quality standards (NAAQS or "standards") for the San Joaquin Valley PM<INF>2.5</INF> nonattainment area. The contingency measures would apply to residential wood burning heaters and fireplaces and rural open areas. The proposed FIP, if finalized, would be implemented by the EPA, unless and until replaced through the EPA's approval of a contingency measure state implementation plan (SIP) submission.
Full Text
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<title>Federal Register, Volume 88 Issue 151 (Tuesday, August 8, 2023)</title>
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[Federal Register Volume 88, Number 151 (Tuesday, August 8, 2023)]
[Proposed Rules]
[Pages 53431-53450]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16748]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2023-0352; FRL-10399-01-R9]
RIN 2009-AA05
Federal Implementation Plan for Contingency Measures for the Fine
Particulate Matter Standards; San Joaquin Valley, California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
promulgate a Federal Implementation Plan (FIP) under the Clean Air Act
(CAA) that consists of contingency measures for the 1997, 2006, and
2012 fine particulate matter (PM<INF>2.5</INF>) national ambient air
quality standards (NAAQS or ``standards'') for the San Joaquin Valley
PM<INF>2.5</INF> nonattainment area. The contingency measures would
apply to residential wood burning heaters and fireplaces and rural open
areas. The proposed FIP, if finalized, would be implemented by the EPA,
unless and until replaced through the EPA's approval of a contingency
measure state implementation plan (SIP) submission.
DATES:
Comments: Comments must be received on or before September 22,
2023. Under the Paperwork Reduction Act (PRA), comments on the
information collection provisions are best assured of consideration if
the Office of Management and Budget (OMB) receives a copy of your
comments on or before September 7, 2023.
Public Hearing: The EPA will hold a virtual public hearing on
August 23, 2023. Please refer to the SUPPLEMENTARY INFORMATION section
for additional information on the public hearing.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-R09-
OAR-2023-0352; via the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a> (our preferred method). Follow the online
instructions for submitting comments.
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document. Hand
deliveries and couriers may be received by scheduled appointment only.
For further information on EPA Docket Center services and the current
status, please visit us online at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
FOR FURTHER INFORMATION CONTACT: For questions regarding this proposed
rule, please contact Rory Mays, Planning and Analysis Branch (AIR-2),
Air and Radiation Division, EPA Region IX, (415) 972-3227. For
questions regarding the virtual public hearing, please contact Kobi
Cook, Communities and Partnerships Branch (AIR-4), Air and Radiation
Division, EPA Region IX, (415) 972-3989. Both can be reached by
emailing <a href="/cdn-cgi/l/email-protection#085b425e587d6a64616b456d6d7c61666f7b486d7869266f677e"><span class="__cf_email__" data-cfemail="37647d616742555b5e547a5252435e5950447752475619505841">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2023-
0352 at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. The EPA may
publish any comment received to its public docket. Do not submit to the
EPA's docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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, 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>.
B. Participation in Virtual Public Hearing
The EPA will begin pre-registering speakers for the hearing no
later than 1 business day after publication of this document in the
Federal Register. To register to speak at the virtual hearing, please
visit <a href="https://www.epa.gov/sanjoaquinvalley">https://www.epa.gov/sanjoaquinvalley</a> for online registration. The
last day to pre-register to speak at the hearing will be August 21,
2023. The EPA will post a general agenda for the hearing that will list
pre-registered speakers in approximate order at: <a href="https://www.epa.gov/sanjoaquinvalley">https://www.epa.gov/sanjoaquinvalley</a>.
The virtual public hearing will be held via teleconference on
August 23, 2023. The virtual public hearing will convene at 4 p.m.
Pacific Time (PT) and will conclude at 7 p.m. PT. The EPA may close the
session 15 minutes after the last pre-registered speaker has testified
if there are no additional speakers. For information or questions about
the public hearing, please contact Kobi Cook, per the FOR FURTHER
INFORMATION CONTACT section of this document. The EPA will announce
further details at <a href="https://www.epa.gov/sanjoaquinvalley">https://www.epa.gov/sanjoaquinvalley</a>.
The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule. Each
commenter will have 5 minutes to provide oral testimony. The EPA
encourages commenters to provide the EPA with a copy of their oral
testimony electronically (via email) by emailing it to
<a href="/cdn-cgi/l/email-protection#722138242207101e1b113f1717061b1c1501321702135c151d04"><span class="__cf_email__" data-cfemail="fba8b1adab8e99979298b69e9e8f92959c88bb9e8b9ad59c948d">[email protected]</span></a>. The EPA also recommends submitting the text
of your oral comments as written comments to the rulemaking docket.
The EPA may ask clarifying questions during the oral presentations,
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral comments and
supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will
be posted online at <a href="https://www.epa.gov/sanjoaquinvalley">https://www.epa.gov/sanjoaquinvalley</a>. While the EPA
expects the hearing to go forward as set forth above, please monitor
our website or contact Kobi Cook, per the FOR FURTHER INFORMATION
CONTACT section of this document, to determine if there are any
updates. The EPA does not intend
[[Page 53432]]
to publish a document in the Federal Register announcing updates.
If you require the services of a translator or special
accommodations such as audio description, please pre-register for the
hearing and describe your needs by August 21, 2023. The EPA may not be
able to arrange accommodations without advanced notice.
The information presented in this preamble is organized as follows:
Table of Contents
I. Background for Proposed Action
A. Standards, Designations, Classifications, and Plans
B. Findings and Contingency Measure Disapprovals
II. Contingency Measure Requirements, Guidance, and Legal Precedent
A. Statutory and Regulatory Requirements
B. Draft Revised Contingency Measure Guidance
III. Proposed FIP Contingency Measures
A. General Considerations
1. Legal Authority
2. Implementation and Enforcement
3. FIP Obligation for 2012 Annual PM<INF>2.5</INF> NAAQS
Contingency Measures
4. Applicable PM<INF>2.5</INF> Precursors
5. Magnitude of Emissions Reductions From Contingency Measures
6. Substitution Between Direct PM<INF>2.5</INF> and
NO<INF>X</INF> Emissions
7. Using Same Contingency Measures for More Than One Triggering
Event, NAAQS
B. Candidate Measure Identification Process
1. Emissions Inventory (Direct PM<INF>2.5</INF> and
NO<INF>X</INF>)
2. Identification of Current and Future Planned Controls for
Source Categories
3. Past EPA Recommendations
4. Environmental and Community Group Recommendations
C. Residential Wood Burning
1. Background
2. Regulatory History
3. Proposed Measure
D. Rural Open Areas Dust
1. Background
2. Regulatory History
3. Proposed Measure
E. Summary of EPA Analysis and Conclusion
IV. Environmental Justice Considerations
V. Proposed Action and Request for Public Comment
VI. Statutory and Executive Order Reviews
I. Background for Proposed Action
In the following sections, we describe the PM<INF>2.5</INF>
standards that this proposed rule addresses, a brief history of the
designation and classification of the San Joaquin Valley as
nonattainment, the State's air quality planning and EPA rulemaking, and
the basis for the current contingency measure FIP proposal for the
PM<INF>2.5</INF> NAAQS in the San Joaquin Valley.
A. Standards, Designations, Classifications, and Plans
Under section 109 of the Clean Air Act (CAA or ``Act''), the EPA
has established National Ambient Air Quality Standards (NAAQS or
``standards'') for certain pervasive air pollutants (referred to as
``criteria pollutants'') and conducts periodic reviews of the NAAQS to
determine whether they should be revised or whether new NAAQS should be
established. To date, the EPA has established NAAQS for particulate
matter, ozone, carbon monoxide, nitrogen dioxide, sulfur dioxide and
lead. Under CAA section 110, states have primary responsibility for
meeting the NAAQS within the state, and must submit an implementation
plan that specifies the manner in which the state will attain and
maintain the NAAQS. These implementation plans are referred to as
``state implementation plans'' or ``SIPs.'' Periodically, states must
make SIP submissions of different types to meet additional CAA
requirements. For example, after the EPA promulgates a new or revised
NAAQS, under CAA section 110(a)(1) and (2), states are required to
adopt and submit to the EPA a state implementation plan that provides
for implementation, maintenance, and enforcement of the NAAQS. Such
plans are referred to as ``infrastructure SIPs.'' Similarly, after the
EPA promulgates designations for a new or revised NAAQS, states with
designated nonattainment areas must make SIP submissions that meet
additional requirements for such nonattainment areas, under CAA section
172(c) and, in the case of the PM<INF>2.5</INF> NAAQS, CAA sections 188
and 189. This type of SIP submission is referred to as an ``attainment
plan.'' Under CAA section 110(k), the EPA is charged with evaluation of
each SIP submission submitted by states for compliance with applicable
CAA requirements, and for approval or disapproval (in whole or in part)
of the submission. The EPA evaluates SIP submissions and takes action
to approve, disapprove, or conditionally approve them through notice-
and-comment rulemaking published in the Federal Register. Where
appropriate, the EPA may act on specific parts of a SIP submission in
separate rulemaking actions.
In 1997, the EPA promulgated new NAAQS for fine particulate matter,
using particles with an aerodynamic diameter less than or equal to a
nominal 2.5 micrometers (``PM<INF>2.5</INF>'') as the indicator.\1\ The
EPA established primary and secondary annual and 24-hour standards for
PM<INF>2.5</INF>. The EPA set the 1997 annual PM<INF>2.5</INF> NAAQS,
both primary and secondary standards, at 15.0 micrograms per cubic
meter ([mu]g/m\3\), based on a 3-year average of annual mean
PM<INF>2.5</INF> concentrations. The EPA set the 1997 24-hour
PM<INF>2.5</INF> NAAQS, both primary and secondary standards, at 65
[mu]g/m\3\, based on the 3-year average of the 98th percentile of 24-
hour PM<INF>2.5</INF> concentrations. Collectively, we refer herein to
the 1997 24-hour and annual PM<INF>2.5</INF> NAAQS as the ``1997
PM<INF>2.5</INF> NAAQS'' or ``1997 PM<INF>2.5</INF> standards.'' In
2006, the EPA promulgated a new, more stringent 24-hour NAAQS for
PM<INF>2.5</INF> by lowering the primary and secondary standards level
from 65 [mu]g/m\3\ to 35 [mu]g/m\3\ (referred to herein as the ``2006
24-hour PM<INF>2.5</INF> NAAQS'').\2\ In 2012, the EPA promulgated a
new, more stringent annual NAAQS for PM<INF>2.5</INF> by lowering the
primary standards level from 15.0 [mu]g/m\3\ to 12.0 [mu]g/m\3\ (herein
referred to as the ``2012 annual PM<INF>2.5</INF> NAAQS'').\3\ Each
iteration of the PM<INF>2.5</INF> NAAQS remains in effect, and states
with designated nonattainment areas for each of them are obligated to
meet applicable attainment plan requirements for them.
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\1\ 62 FR 38652 (July 18, 1997) and 40 CFR 50.7.
\2\ 71 FR 61144 (October 17, 2006) and 40 CFR 50.13.
\3\ 78 FR 3086 (January 15, 2013) and 40 CFR 50.18.
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The EPA established each of these NAAQS after considering
substantial evidence from numerous health studies demonstrating that
serious health effects are associated with exposures to
PM<INF>2.5</INF> concentrations above these levels. Epidemiological
studies have shown statistically significant correlations between
elevated PM<INF>2.5</INF> levels and premature mortality. Other
important health effects associated with PM<INF>2.5</INF> exposure
include aggravation of respiratory and cardiovascular disease (as
indicated by increased hospital admissions, emergency room visits,
absences from school or work, and restricted activity days), changes in
lung function, and increased respiratory symptoms. Individuals
particularly sensitive to PM<INF>2.5</INF> exposure include older
adults, people with heart and lung disease, and children.\4\
PM<INF>2.5</INF> can be particles emitted by sources directly into the
atmosphere as a solid or liquid particle (``primary PM<INF>2.5</INF>''
or ``direct PM<INF>2.5</INF>''), or can be particles that form in the
atmosphere as a result of various chemical reactions involving
PM<INF>2.5</INF> precursor emissions emitted by sources (``secondary
PM<INF>2.5</INF>''). The EPA has identified the precursors of
PM<INF>2.5</INF> to be oxides of nitrogen (``NO<INF>X</INF>''), sulfur
[[Page 53433]]
oxides, volatile organic compounds, and ammonia.\5\
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\4\ 78 FR 3086, 3088.
\5\ EPA, Air Quality Criteria for Particulate Matter, No. EPA/
600/P-99/002aF and EPA/600/P-99/002bF, October 2004.
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Following promulgation of a new or revised NAAQS, the EPA is
required under CAA section 107(d) to designate areas throughout the
nation as attaining or not attaining the NAAQS. As noted previously,
for areas the EPA has designated nonattainment, states are required
under the CAA to submit attainment plan SIP submissions. These SIP
submissions must provide for, among other elements, reasonable further
progress (RFP) towards attainment of the NAAQS, attainment of the NAAQS
no later than the applicable attainment date, and implementation of
contingency measures to take effect if the state fails to meet RFP or
to attain the NAAQS by the applicable attainment date.
The San Joaquin Valley is located in the southern half of
California's Central Valley and includes all of San Joaquin,
Stanislaus, Merced, Madera, Fresno, Tulare, and Kings counties, and the
valley portion of Kern County.\6\ The area is home to four million
people and is the nation's leading agricultural region. Stretching over
250 miles from north to south and averaging 80 miles wide, it is
partially enclosed by the Coast Mountain range to the west, the
Tehachapi Mountains to the south, and the Sierra Nevada range to the
east. In 2005, the EPA designated the San Joaquin Valley as
nonattainment for the 1997 annual PM<INF>2.5</INF> NAAQS, and
nonattainment for the 1997 24-hour PM<INF>2.5</INF> NAAQS.\7\
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\6\ For a precise description of the geographic boundaries of
the San Joaquin Valley nonattainment area, see 40 CFR 81.305.
\7\ 70 FR 944 (January 5, 2005), codified at 40 CFR 81.305.
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The local air district with primary responsibility for developing
attainment plan SIP submissions for the PM<INF>2.5</INF> NAAQS in this
area is the San Joaquin Valley Unified Air Pollution Control District
(SJVUAPCD or ``District''). Once the District adopts the regional plan,
the District submits the plan to the California Air Resources Board
(CARB) for adoption as part of the California SIP. CARB is the State
agency responsible for adopting and revising the California SIP and for
submitting the SIP and SIP revisions to the EPA. Under California law,
generally speaking, CARB is responsible for regulation of mobile
sources while the local air districts are responsible for regulation of
stationary sources.
Originally, the EPA designated areas for the 1997 annual and 24-
hour PM<INF>2.5</INF> NAAQS under subpart 1 (of part D of title I of
the CAA), i.e., without specifying the classifications of nonattainment
required by subpart 4. Later, in response to a court decision,\8\ the
EPA classified nonattainment areas for the 1997 annual and 24-hour
PM<INF>2.5</INF> NAAQS, consistent with the classifications set forth
in subpart 4. With respect to San Joaquin Valley, the EPA classified
the San Joaquin Valley as a ``Moderate'' nonattainment area,\9\ and
then later reclassified the area as a ``Serious'' nonattainment area
for the 1997 annual and 24-hour PM<INF>2.5</INF> NAAQS.\10\
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\8\ In Natural Resources Defense Council v. EPA, 706 F.3d 428
(D.C. Cir. 2013), the U.S. Court of Appeals for D.C. Circuit
concluded that the EPA erred in implementing the 1997
PM<INF>2.5</INF> standards solely pursuant to the general
implementation requirements of subpart 1, without also considering
the requirements specific to PM<INF>10</INF> nonattainment areas in
subpart 4, part D of title I of the CAA.
\9\ 79 FR 31566 (June 2, 2014).
\10\ 80 FR 18528 (April 7, 2015).
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In 2016, the EPA determined that the San Joaquin Valley had failed
to attain the 1997 annual and 24-hour PM<INF>2.5</INF> NAAQS by the
applicable ``Serious'' area attainment date.\11\ As a result, the State
of California was required, under CAA section 189(d), to submit a new
SIP submission that, among other elements, provides for expeditious
attainment of the 1997 annual and 24-hour PM<INF>2.5</INF> NAAQS and
for a minimum five percent annual reduction in the emissions of direct
PM<INF>2.5</INF> or a PM<INF>2.5</INF> plan precursor pollutant in the
San Joaquin Valley (herein, referred to as a ``Five Percent Plan'').
The Five Percent Plan for the 1997 annual and 24-hour PM<INF>2.5</INF>
NAAQS was due no later than December 31, 2016.\12\
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\11\ 81 FR 84481 (November 23, 2016).
\12\ Id. at 84482.
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With respect to the 2006 24-hour PM<INF>2.5</INF> NAAQS, the EPA
initially designated San Joaquin Valley as nonattainment under subpart
1 (i.e., without classification) \13\ but, in 2014, in response to the
court decision referred to previously, the EPA classified the area as
Moderate.\14\ In 2016, the EPA reclassified San Joaquin Valley as a
Serious nonattainment area for the 2006 24-hour PM<INF>2.5</INF> NAAQS
based on the EPA's determination that the area could not practicably
attain these NAAQS by the applicable attainment date of December 31,
2015.\15\ The EPA established an August 21, 2017 deadline for
California to adopt and submit a SIP submission addressing the Serious
nonattainment area requirements for the 2006 24-hour PM<INF>2.5</INF>
NAAQS.\16\
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\13\ 74 FR 58688 (November 13, 2009).
\14\ 79 FR 31566.
\15\ 81 FR 2993 (January 20, 2016).
\16\ Id. at 3000.
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With respect to the 2012 annual PM<INF>2.5</INF> NAAQS, the EPA
designated San Joaquin Valley as a Moderate nonattainment area in
2015.\17\ Under CAA section 189 and the EPA's PM<INF>2.5</INF> SIP
Requirements Rule,\18\ the deadline for the state to submit an
attainment plan SIP submission addressing the Moderate nonattainment
area requirements for the 2012 annual PM<INF>2.5</INF> NAAQS is 18
months from the effective date of the designation of the area.\19\ The
effective date of the designation of the San Joaquin Valley as a
Moderate nonattainment area for the 2012 annual PM<INF>2.5</INF> NAAQS
was April 15, 2015, and thus, the deadline for a SIP submission
addressing the Moderate area requirements was October 15, 2016.
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\17\ 80 FR 2206 (January 15, 2015).
\18\ 81 FR 58010 (August 24, 2016); codified at 40 CFR part 51,
subpart Z.
\19\ 40 CFR 51.1003(a).
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B. Findings and Contingency Measure Disapprovals
In the wake of these EPA actions, CARB and the District worked
together to prepare a comprehensive SIP submission to address the
nonattainment area requirements for the 1997, 2006, and 2012
PM<INF>2.5</INF> NAAQS for San Joaquin Valley, but did not meet the
various SIP submission deadlines. In late 2018, the EPA issued a
finding of failure to submit to the State for the required attainment
plan SIP submissions for the 1997 annual and 24-hour PM<INF>2.5</INF>
NAAQS, the 2006 24-hour PM<INF>2.5</INF> NAAQS, and the 2012 annual
PM<INF>2.5</INF> NAAQS for the San Joaquin Valley.\20\ The EPA's
finding of failure to submit was effective January 7, 2019. Under CAA
section 110(c), the EPA is obligated to promulgate a Federal
Implementation Plan (FIP) within two years of a finding that a state
has failed to make a required SIP submission, unless the state submits
a SIP submission that corrects the deficiency, and the EPA approves
that SIP submission, before the EPA promulgates such FIP.\21\ In this
case, the finding of failure to submit established a deadline of
January 7, 2021, for the EPA to promulgate a FIP to address all
applicable attainment plan requirements for the 1997 annual and 24-hour
PM<INF>2.5</INF> NAAQS, the 2006 24-hour PM<INF>2.5</INF> NAAQS, and
2012 annual PM<INF>2.5</INF>
[[Page 53434]]
NAAQS for San Joaquin Valley, for which the EPA had not received and
approved an adequate SIP submission from the State.
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\20\ 83 FR 62720 (December 6, 2018).
\21\ The finding of failure to submit also started an 18-month
New Source Review (NSR) offset sanction clock and a 24-month highway
sanction clock for the State of California. CAA section 179(a) and
40 CFR 52.31.
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On May 10, 2019, CARB submitted two SIP submissions to address the
nonattainment area requirements for all four of the relevant
PM<INF>2.5</INF> NAAQS for the San Joaquin Valley, including the
contingency measure requirement.\22\ As discussed in the following
paragraph, the EPA has previously taken a series of actions on these
SIP submissions to address different nonattainment area requirements
for each of the NAAQS. In this proposed action, we are focused only on
the contingency measure requirements.
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\22\ The SIP revisions submitted on May 10, 2019 include the
``2016 Moderate Area Plan for the 2012 PM<INF>2.5</INF> Standard''
(``2016 PM<INF>2.5</INF> Plan'') and the ``2018 Plan for the 1997,
2006, and 2012 PM<INF>2.5</INF> Standards'' (``2018 PM<INF>2.5</INF>
Plan''), which incorporates by reference the ``San Joaquin Valley
Supplement to the 2016 State Strategy for the State Implementation
Plan'' (``Valley State SIP Strategy''). On February 11, 2020, CARB
submitted a revised version of App. H (``RFP, Quantitative
Milestones, and Contingency'') that replaces the version submitted
with the 2018 PM<INF>2.5</INF> Plan on May 10, 2019. The EPA found
the SIP submissions complete in a letter dated June 24, 2020, from
Elizabeth J. Adams, Director, EPA Region IX, to Richard W. Corey,
Executive Officer, CARB. The EPA's completeness determination
terminated the NSR offsets and highway sanctions started by the
December 6, 2018 finding of failure to submit but did not affect the
FIP obligation.
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In 2020, the EPA approved the portion of the SIP submissions
related to the 2006 24-hour PM<INF>2.5</INF> NAAQS, but deferred action
on the contingency measure element.\23\ In 2021, the EPA approved the
portion of the SIP submissions related to the Moderate area
requirements for the 2012 annual PM<INF>2.5</INF> NAAQS except for the
contingency measure element, which the EPA disapproved.\24\ The EPA
also disapproved the previously-deferred contingency measure element
for the 2006 24-hour PM<INF>2.5</INF> NAAQS.\25\ In another 2021
action, the EPA disapproved the portion of the SIP submissions related
to the 1997 annual PM<INF>2.5</INF> NAAQS except for the emissions
inventory, which the Agency approved.\26\ In 2022, the EPA approved the
portion of the SIP submission related to the 1997 24-hour
PM<INF>2.5</INF> NAAQS, with the exception of the contingency measure
element.\27\ In our action on the SIP submission related to the 1997
24-hour PM<INF>2.5</INF> NAAQS, we disapproved the contingency measure
element, but also found that the contingency measure requirement was
moot for that particular PM<INF>2.5</INF> NAAQS because of the EPA's
concurrent determination of attainment by the applicable attainment
date for San Joaquin Valley for the 1997 24-hour PM<INF>2.5</INF>
NAAQS.\28\
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\23\ 85 FR 44192 (July 22, 2020).
\24\ 86 FR 67343 (November 26, 2021).
\25\ Id.
\26\ 86 FR 67329 (November 26, 2021).
\27\ 87 FR 4503 (January 28, 2022).
\28\ Id.
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The EPA's various actions in 2020 and 2021 on the SIP submissions
for San Joaquin Valley for the 1997, 2006, and 2012 PM<INF>2.5</INF>
NAAQS have served to narrow the scope of the EPA's FIP duty arising
from the December 6, 2018 finding of failure to submit (effective
January 7, 2019) to: (1) the contingency measure requirement for the
2006 24-hour PM<INF>2.5</INF> NAAQS and the 2012 annual
PM<INF>2.5</INF> NAAQS, and (2) certain nonattainment area requirements
(including the contingency measure requirement) for the 1997 annual
PM<INF>2.5</INF> NAAQS other than the base year emissions inventory
requirement.\29\ This proposed rule addresses only the Serious Area
contingency measure requirements for the 1997 annual PM<INF>2.5</INF>
NAAQS and the 2006 24-hour PM<INF>2.5</INF> NAAQS, and the Moderate
Area contingency measure requirement for the 2012 annual
PM<INF>2.5</INF> NAAQS for San Joaquin Valley. We are proposing this
contingency measure FIP at this time to fulfill the EPA's statutory
duties by deadlines established under a consent decree in a lawsuit
brought against the EPA to compel promulgation of a FIP arising from
the finding of failure to submit.\30\ The EPA has proposed action on
the various other nonattainment area requirements for the 1997 annual
PM<INF>2.5</INF> NAAQS in a separate rulemaking.\31\
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\29\ The disapprovals published by the EPA on November 26, 2021,
for certain elements of the SIP submissions for the 1997 annual
PM<INF>2.5</INF> NAAQS and the contingency measures elements for the
2006 24-hour PM<INF>2.5</INF> NAAQS and 2012 annual PM<INF>2.5</INF>
NAAQS started new 18-month NSR offset sanction clocks and 24-month
highway sanctions clocks, that began on the effective date of the
disapprovals (December 27, 2021).
\30\ Comit[eacute] Progreso de Lamont v. EPA, N.D. Cal., 21-cv-
08733.
\31\ 88 FR 45276 (July 14, 2023). Specifically, these
nonattainment requirements include a section 189(d) plan that
demonstrates expeditious attainment of the 1997 annual
PM<INF>2.5</INF> NAAQS within the time period provided under CAA
section 179(d) and provides for annual reductions in emissions of
direct PM<INF>2.5</INF> or a PM<INF>2.5</INF> plan precursor
pollutant within the area of not less than five percent per year
from the most recent emissions inventory for the area until
attainment; provisions for the implementation of BACM, including
best available control technology (BACT), for sources of direct
PM<INF>2.5</INF> and all PM<INF>2.5</INF> plan precursors no later
than four years after the area is reclassified; provisions that
require reasonable further progress (RFP); quantitative milestones
which are to be achieved every three years until the area is
redesignated attainment and which demonstrate RFP toward attainment
by the applicable date.
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II. Contingency Measure Requirements, Guidance, and Legal Precedent
The EPA first provided its 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''); \32\ (2) ``State
Implementation Plans; General Preamble for the Implementation of Title
I of the Clean Air Act Amendments of 1990; Supplemental''; \33\ 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'').\34\ More recently, in the 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.\35\
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\32\ 57 FR 13498 (April 16, 1992).
\33\ 57 FR 18070 (April 28, 1992).
\34\ 59 FR 41998 (August 16, 1994).
\35\ 81 FR 58010.
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A. Statutory and Regulatory Requirements
Under CAA section 172(c)(9), states required to make an attainment
plan SIP submission must include contingency measures to be implemented
if the area fails to meet RFP (``RFP contingency measures'') or fails
to attain the NAAQS by the applicable attainment date (``attainment
contingency measures''). Under the PM<INF>2.5</INF> SIP Requirements
Rule, states must include contingency measures that provide that the
state will implement them following a determination by the EPA that the
state has failed: (1) to meet any RFP requirement in the approved SIP;
(2) to meet any quantitative milestone (QM) in the approved SIP; (3) to
submit a required quantitative milestone report; or (4) to attain the
applicable PM<INF>2.5</INF> NAAQS by the applicable attainment
date.\36\ Contingency measures must be fully adopted rules or control
measures that are ready to be implemented quickly upon failure to meet
RFP or failure of the area to meet the relevant NAAQS by the applicable
attainment date.\37\ In general, we expect all actions needed to effect
full implementation of
[[Page 53435]]
the measures to occur within 60 days after the EPA notifies the state
of a failure to meet RFP or to attain.\38\ Moreover, we expect the
additional emissions reductions from the contingency measures to be
achieved within a year of the triggering event.\39\
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\36\ 40 CFR 51.1014(a).
\37\ 81 FR 58010, 58066 and General Preamble Addendum, 42015.
\38\ 81 FR 58010, 58066. See also General Preamble 13512, 13543-
13544, and General Preamble Addendum, 42014-42015.
\39\ General Preamble, 13511.
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The purpose of contingency measures is to continue progress in
reducing emissions while a state revises its SIP to meet the missed RFP
requirement or to correct ongoing nonattainment. Neither the CAA nor
the EPA's implementing regulations establish a specific level of
emission reductions that implementation of contingency measures must
achieve, but the EPA recommends that contingency measures should
provide for emission reductions equivalent to approximately one year of
reductions needed for RFP in the nonattainment area. For
PM<INF>2.5</INF> NAAQS SIP planning purposes, the EPA recommends that
RFP should be calculated as the overall level of reductions needed to
demonstrate attainment divided by the number of years from the base
year to the attainment year. As part of the attainment plan SIP
submission, the EPA expects states to explain the amount of anticipated
emissions reductions that the contingency measures will achieve. In the
event that a state is unable to identify and adopt contingency measures
that will provide for approximately one year's worth of emissions
reductions, then EPA recommends that the state provide a reasoned
justification why the smaller amount of emissions reductions is
appropriate.\40\
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\40\ 81 FR 58010, 58067.
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To satisfy the requirements of 40 CFR 51.1014, the contingency
measures adopted as part of a PM<INF>2.5</INF> NAAQS attainment plan
must consist of control measures for the area that are not otherwise
required to meet other attainment plan requirements (e.g., to meet
RACM/RACT requirements). By definition, contingency measures are
measures that are over and above what a state must adopt and impose to
meet RFP and to provide for attainment by the applicable attainment
date.
Contingency measures serve the purpose of providing additional
emission reductions during the period after a failure to meet RFP or
failure to attain as the state prepares a new SIP submission to rectify
the problem. Accordingly, contingency measures must provide such
additional emission reductions during an appropriate period of time and
must specify the timeframe within which their requirements would become
effective following any of the EPA determinations specified in 40 CFR
51.1014(a).
In addition, to comply with CAA section 172(c)(9), contingency
measures must be both conditional and prospective, so that they will go
into effect and achieve emission reductions only in the event of a
future triggering event such as a failure to meet RFP or a failure to
attain. In a 2016 decision called Bahr v. EPA (``Bahr''),\41\ the Ninth
Circuit Court of Appeals held that CAA section 172(c)(9) does not allow
EPA approval of already-implemented control measures as contingency
measures. Thus, already-implemented measures cannot serve as
contingency measures under CAA section 172(c)(9). For purposes of the
PM<INF>2.5</INF> NAAQS, a state must develop, adopt, and submit one or
more contingency measures to be triggered upon a failure to meet any
RFP requirement, failure to meet a quantitative milestone requirement,
or failure to attain the NAAQS by the applicable attainment date,
regardless of the extent to which already-implemented measures would
achieve surplus emission reductions beyond those necessary to meet RFP
or quantitative milestone requirements and beyond those predicted to
achieve attainment of the NAAQS.
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\41\ Bahr v. EPA, 836 F.3d 1218, 1235-1237 (9th Cir. 2016). See
also, Sierra Club v. EPA, 21 F.4th 815, 827-828 (D.C. Cir. 2021).
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In a recent decision on the EPA's approval of a SIP contingency
measure element for the ozone NAAQS, the Ninth Circuit Court of Appeals
held that, under the EPA's current guidance, the surplus emissions
reductions from already-implemented measures cannot be relied upon to
justify the approval of a contingency measure that would achieve far
less than one year's worth of RFP as sufficient by itself to meet the
contingency measure requirements of CAA sections 172(c)(9) and
182(c)(9) for the nonattainment area.\42\
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\42\ Assoc. of Irritated Residents v. EPA, 10 F.4th 937 (9th
Cir. 2021) (``AIR v. EPA'' or ``AIR'').
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B. Draft Revised Contingency Measure Guidance
In March 2023, the EPA published notice of availability announcing
a new draft guidance addressing the contingency measures requirement of
section 172(c)(9), entitled: ``DRAFT: Guidance on the Preparation of
State Implementation Plan Provisions that Address the Nonattainment
Area Contingency Measure Requirements for Ozone and Particulate Matter
(DRAFT-3/17/23--Public Review Version)'' (herein referred to as the
``Draft Revised Contingency Measure Guidance'') and opportunity for
public comment.\43\ The principal differences between the draft revised
guidance and existing guidance on contingency measures relate to the
EPA's recommendations concerning the specific amount of emission
reductions that implementation of contingency measures should achieve,
and the timing for when the emissions reductions from the contingency
measures should occur.
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\43\ 88 FR 17571 (March 23, 2023). The Draft Revised Contingency
Measure Guidance is available at: <a href="https://www.epa.gov/air-quality-implementation-plans/draft-contingency-measures-guidance">https://www.epa.gov/air-quality-implementation-plans/draft-contingency-measures-guidance</a>.
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Under the draft revised guidance, the recommended level of
emissions reductions that contingency measures should achieve would
represent one year's worth of ``progress'' as opposed to one year's
worth of RFP. One year's worth of ``progress'' is calculated by
determining the average annual reductions between the base year
emissions inventory and the projected attainment year emissions
inventory, determining what percentage of the base year emissions
inventory this amount represents, then applying that percentage to the
projected attainment year emissions inventory to determine the amount
of reductions needed to ensure ongoing progress if contingency measures
are triggered.
With respect to the time period within which reductions from
contingency measures should occur, the EPA previously recommended that
contingency measures take effect within 60 days of being triggered, and
that the resulting emission reductions generally occur within one year
of the triggering event. Under the draft revised guidance, in instances
where there are insufficient contingency measures available to achieve
the recommended amount of emissions reductions within one year of the
triggering event, the EPA believes that contingency measures that
provide reductions within up to two years of the triggering event would
be appropriate to consider towards achieving the recommended amount of
emissions reductions. The draft revised guidance does not alter the 60-
day recommendation for the contingency measures to take initial effect.
III. Proposed FIP Contingency Measures
A. General Considerations
1. Legal Authority
CAA section 110(c)(1) authorizes and obligates the EPA to
promulgate a FIP
[[Page 53436]]
when the EPA finds that a state has failed to make a required
submission or finds that the plan or plan revision submitted by the
state does not satisfy the minimum completeness criteria set forth in
40 CFR part 51, Appendix V, or when the EPA disapproves a SIP
submission in whole or in part, unless the state first makes a complete
SIP submission that corrects the deficiency, and the EPA approves that
submission, before the EPA promulgates such FIP. In this instance, on
December 6, 2018, we published our finding that California had failed
to submit attainment plan SIP submissions addressing various
nonattainment area SIP requirements for the 1997 annual and 24-hour
PM<INF>2.5</INF> NAAQS, the 2006 24-hour PM<INF>2.5</INF> NAAQS, and
2012 annual PM<INF>2.5</INF> NAAQS in the San Joaquin Valley. As a
result of that finding of failure to submit, the EPA was authorized and
obligated to promulgate a FIP for all of those SIP requirements covered
by the finding, except those for which the EPA has subsequently
approved SIP submissions or that the EPA has subsequently found to be
no longer applicable. CAA section 302(y) defines the term ``Federal
Implementation Plan'' to mean ``a plan (or portion thereof) promulgated
by the [EPA] to fill all or a portion of a gap or otherwise correct all
or a portion of an inadequacy in a [SIP], and which includes
enforceable emission limitations or other control measures, means, or
techniques (including economic incentives, such as marketable permits
or auctions of emissions allowances), and provides for attainment of
the relevant [NAAQS].''
In promulgating regulations in a FIP, the EPA may rely on its
authority under section 110(c) or under authority it has under other
provisions of the CAA. Under CAA section 110(c), the EPA ``stands in
the shoes'' of the state and may exercise all authority that the state
may exercise under the CAA.\44\ For this particular proposed FIP, the
measures that the EPA is proposing are measures that the state has the
authority to adopt.
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\44\ Under CAA section 110(c), the EPA ``stands in the shoes of
the defaulting state, and all of the rights and duties that would
otherwise fall to the state accrue instead to EPA.'' Central Ariz.
Water Conservation Dist. v. EPA, 990 F.2d 1531, 1541 (9th Cir.
1993).
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2. Implementation and Enforcement
Congress has determined that the primary responsibility for air
pollution prevention and control at its source rests with state and
local governments. CAA section 101(a)(3). Accordingly, the EPA has
attempted to design the FIP contingency measures to ensure that,
wherever possible, state and local implementation is encouraged and
facilitated by the proposed FIP's regulatory approach. Thus, for
example, the FIP generally employs local California rule organization
and terminology in the proposed measures.
With respect to enforcement of the FIP, we note that the EPA has a
comprehensive enforcement program as specified in section 113(a) of the
CAA. Under this program, the EPA is authorized to take enforcement
actions to ensure compliance with the CAA and the rules and regulations
promulgated under the CAA. Such actions include the issuance of an
administrative order requiring compliance with the applicable
implementation plan; the issuance of an administrative order requiring
the payment of a civil penalty for past violations; and the
commencement of a civil judicial action. Orders issued under CAA
section 113(a) require subject entities to comply with the requirements
set forth in the order as expeditiously as practicable, but in no event
longer than one year after the date the order was issued. Issuance of
any such order does not prohibit the EPA from assessing any penalties.
Under CAA section 113(b), civil judicial enforcement may require
assessment of penalties of up to $117,468 per day for each
violation.\45\ Additionally, under CAA section 113(c), any person who
knowingly violates any requirement or prohibition of an implementation
plan may be subject to criminal enforcement, with penalties including
fines and imprisonment.
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\45\ Pursuant to the EPA's Civil Monetary Penalty Inflation
Adjustment final rule, 88 FR 986 (January 6, 2023), codified at 40
CFR 19.4.
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3. FIP Obligation for 2012 Annual PM<INF>2.5</INF> NAAQS Contingency
Measures
The EPA's December 6, 2018 finding of failure to submit relates, in
relevant part, to an overdue Moderate area attainment plan SIP
submission for San Joaquin Valley for the 2012 annual PM<INF>2.5</INF>
NAAQS. In 2021, we approved the portion of the SIP submissions that
demonstrate that attainment of that NAAQS by the Moderate area
attainment date of December 31, 2021, was impracticable, and thus we
reclassified San Joaquin Valley as a Serious area for the 2012 annual
PM<INF>2.5</INF> NAAQS.\46\ \47\ Unlike statutory provisions applicable
to other NAAQS, section 189(a)(1)(B) authorizes a state to make a
nonattainment plan SIP submission for an area classified as Moderate
demonstrating that it is impractical to attain the NAAQS in an area by
the outermost statutory attainment date.
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\46\ 86 FR 67343.
\47\ The reclassification action 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.
While we anticipate that the State's SIP submission for the latter
will address contingency measures, we note that the requirement for
Serious area contingency measures for the 2012 annual
PM<INF>2.5</INF> NAAQS is outside the scope of this proposed rule;
there is no requirement for the EPA to promulgate a Serious area
contingency measures FIP for the 2012 annual PM<INF>2.5</INF> NAAQS.
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The EPA does not interpret the requirement for contingency measures
for failing to attain the NAAQS by the applicable attainment date to
apply to a Moderate area that a state adequately demonstrates cannot
practicably attain the NAAQS by the statutory attainment date. Because
it is a given that the area at issue could not attain by the attainment
date, it would be illogical to require contingency measures (i.e.,
conditional and prospective measures) that would be triggered
specifically in the event of such a failure to attain. Rather, the EPA
believes it is appropriate for the state to identify and adopt these
contingency measures in a timely way as part of the Serious area
attainment plan that it will develop once the EPA reclassifies such an
area. However, if a state with a Moderate area that the EPA has found
cannot practicably attain the NAAQS by the attainment date fails to
meet RFP, when reviewed as part of the quantitative milestone either
4.5 or 7.5 years after designation, then the requirement to implement
contingency measures would be triggered as required by CAA section
172(c)(9).\48\ Thus, contingency measures for failure to meet RFP,
failure to submit a quantitative milestone report, or failure to meet
the quantitative milestones, are necessary for the San Joaquin Valley,
even if they are not required for purposes of a failure to attain under
these specific circumstances.
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\48\ 81 FR 58010, 58067.
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We note that the EPA will separately review SIP submission(s) for
the Serious area contingency measure requirements for the 2012 annual
PM<INF>2.5</INF> NAAQS, which are outside the scope of the EPA's FIP
obligation for the San Joaquin Valley. This action addresses the
Moderate area plan contingency measures requirement for the 2012 annual
PM<INF>2.5</INF> NAAQS.
4. Applicable PM<INF>2.5</INF> Precursors
Under the CAA, states are required to regulate not only direct
emissions of PM<INF>2.5</INF> in an attainment plan, but also all
[[Page 53437]]
PM<INF>2.5</INF> precursors. Section 189(e) explicitly requires that
states do so for major stationary sources, unless such sources do not
significantly contribute to violations of the NAAQS in the
nonattainment area at issue. The EPA has interpreted this provision to
authorize states to establish that it is not necessary to regulate
precursor emissions from other source categories under the same
conditions. Courts have upheld this approach.\49\
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\49\ See, e.g., Assoc. of Irritated Residents v. EPA, et al.,
423 F.3d 989 (9th Cir. 2005).
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Under the EPA's PM<INF>2.5</INF> SIP Requirements Rule, states must
identify, adopt, and implement control measures, including control
technologies, on sources of direct PM<INF>2.5</INF> emissions and
sources of emissions of PM<INF>2.5</INF> plan precursors located in
PM<INF>2.5</INF> nonattainment areas.\50\ PM<INF>2.5</INF> plan
precursors are those PM<INF>2.5</INF> precursors (which are
SO<INF>2</INF>, NO<INF>X</INF>, volatile organic compounds (VOCs), and
ammonia) that the state must regulate in the applicable attainment
plan.\51\ A state may elect to submit to the EPA precursor
demonstrations for a specific nonattainment area in order to establish
that regulation of one or more precursors is not necessary for
attainment in the nonattainment area at issue.\52\ A precursor
demonstration refers to an optional set of analyses provided by a state
that are designed to show that emissions of a particular
PM<INF>2.5</INF> precursor do not contribute significantly to
PM<INF>2.5</INF> levels that exceed the relevant PM<INF>2.5</INF>
standards in a particular nonattainment area.\53\ If a comprehensive
precursor demonstration is approved by the EPA, then the state is not
required to control emissions of the relevant precursor from existing
sources in the current attainment plan.\54\ Accordingly, the state
would not need to address the precursor in order to meet attainment
plan requirements, including RFP, in QMs and associated QM reports, or
be required to adopt contingency measures to reduce the precursor at
issue.\55\
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\50\ See generally 40 CFR 51.1009(a) and 40 CFR 51.1010(a).
\51\ 40 CFR 51.1000.
\52\ 40 CFR 51.1006(a).
\53\ 40 CFR 51.1000.
\54\ 40 CFR 51.1006(a)(1)(iii).
\55\ 40 CFR 51.1009(a)(4)(i).
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For San Joaquin Valley, we have considered the State's precursor
demonstrations with respect to the 1997 annual PM<INF>2.5</INF> NAAQS,
the 2006 24-hour PM<INF>2.5</INF> NAAQS, and the 2012 annual
PM<INF>2.5</INF> NAAQS in taking action on the portions of the SIP
submissions applicable to those NAAQS. For the 1997 annual
PM<INF>2.5</INF> NAAQS, we disapproved the comprehensive precursor
demonstration from the 2019 SIP submissions.\56\ More recently,
however, the EPA proposed to approve the comprehensive precursor
demonstration in connection with the State's 2021 submission of a
revised attainment plan for the 1997 annual PM<INF>2.5</INF> NAAQS.\57\
\58\ The State's comprehensive precursor demonstration documents
indicate that SO<INF>2</INF>, VOC, and ammonia emissions do not
contribute significantly to PM<INF>2.5</INF> levels that exceed the
1997 annual PM<INF>2.5</INF> NAAQS in the San Joaquin Valley. On the
basis of our proposed approval of the comprehensive precursor
demonstration for the 1997 annual PM<INF>2.5</INF> NAAQS, we are not
proposing FIP contingency measures for SO<INF>2</INF>, VOC, or ammonia
but do identify such measures for direct PM<INF>2.5</INF> and
NO<INF>X</INF>. If we do not finalize our proposed approval of the
comprehensive precursor demonstration for the 1997 annual
PM<INF>2.5</INF> NAAQS, we will reconsider the potential need for FIP
contingency measures for emissions sources of those PM<INF>2.5</INF>
precursors for purposes of this NAAQS.
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\56\ 86 FR 67329.
\57\ CARB submitted the ``Attainment Plan Revision for the 1997
Annual PM<INF>2.5</INF> Standard (August 19, 2021)'' (``15 [mu]g/
m\3\ SIP Revision'') to the EPA as a SIP revision on November 8,
2021.
\58\ 88 FR 45276.
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For the 2006 24-hour PM<INF>2.5</INF> NAAQS, the EPA approved the
comprehensive precursor demonstration that established that
SO<INF>2</INF>, VOC, and ammonia emissions do not contribute
significantly to PM<INF>2.5</INF> levels that exceed the 2006 24-hour
PM<INF>2.5</INF> NAAQS in the San Joaquin Valley.\59\ A petition for
review challenged the EPA's approval of the portions of the 2019 SIP
submissions related to the 2006 24-hour PM<INF>2.5</INF> NAAQS, and in
2021, the Ninth Circuit Court of Appeals vacated the approval of
aggregate commitments to the extent such commitments relied on
inadequately-funded incentive-based control measures and remanded to
the EPA for further consideration of the aggregate commitments, and for
further proceedings consistent with the decision, but denied the
petition in all other respects.\60\ The EPA's approval of the
comprehensive precursor demonstration was not the subject of the court
challenge, and thus, based on our approval of the comprehensive
precursor demonstration for the 2006 24-hour PM<INF>2.5</INF> NAAQS, we
are not proposing FIP contingency measures for SO<INF>2</INF>, VOC, or
ammonia for the 2006 24-hour PM<INF>2.5</INF> NAAQS but do identify
such measures for direct PM<INF>2.5</INF> and NO<INF>X</INF>. If, in
response to the court's remand, we withdraw our approval of the
comprehensive precursor demonstration for the 2006 24-hour
PM<INF>2.5</INF> NAAQS in whole or in part, we will reconsider the
potential need for FIP contingency measures for emissions sources of
the relevant PM<INF>2.5</INF> precursors for purposes of this NAAQS.
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\59\ 85 FR 17382, 17390-17396 (March 27, 2020), finalized at 85
FR 44192.
\60\ Medical Advocates for Healthy Air v. EPA, Case No. 20-
72780, Dkt. #58-1 (9th Cir., April 13, 2022).
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With respect to the San Joaquin Valley as a Moderate nonattainment
area for the 2012 annual PM<INF>2.5</INF> NAAQS, the EPA approved the
comprehensive precursor demonstration that established that
SO<INF>2</INF>, VOC, and ammonia emissions do not contribute
significantly to PM<INF>2.5</INF> levels that exceed the 2012 annual
PM<INF>2.5</INF> NAAQS in the San Joaquin Valley.\61\ Based on that
approval, we are not proposing FIP contingency measures for
SO<INF>2</INF>, VOC, or ammonia for the 2012 annual PM<INF>2.5</INF>
NAAQS (as a Moderate area) but do identify such measures for direct
PM<INF>2.5</INF> and NO<INF>X</INF>. Our decision not to propose FIP
contingency measures for SO<INF>2</INF>, VOC, or ammonia for the 2012
annual PM<INF>2.5</INF> NAAQS relates to San Joaquin Valley as a
Moderate nonattainment area for that NAAQS, which is the relevant
classification for the purposes of the proposed FIP. We will consider
the issue of PM<INF>2.5</INF> precursors for San Joaquin Valley for the
2012 annual PM<INF>2.5</INF> NAAQS once again as part of our evaluation
of the to-be-submitted Serious area plan for the San Joaquin Valley for
that NAAQS.
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\61\ 86 FR 49100, 49107-49112 (September 1, 2021), finalized at
86 FR 67343.
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5. Magnitude of Emissions Reductions From Contingency Measures
As noted previously, neither the CAA nor the EPA's implementing
regulations establish a specific level of emission reductions that
implementation of contingency measures must achieve, but the EPA has
recommended in existing guidance that contingency measures should
provide for emission reductions equivalent to approximately one year of
reductions needed for RFP in the nonattainment area. For
PM<INF>2.5</INF>, one year of reduction needed for RFP is calculated as
the overall level of reductions needed to demonstrate attainment by the
applicable attainment year, divided by the number of years from the
base year to the attainment year. For example, if the attainment plan
provides for attainment in five years, then each year RFP would
generally be one-fifth of the required overall emission reductions
needed for attainment. Thus, contingency measures
[[Page 53438]]
should achieve approximately that amount of emission reductions to be
triggered in the event of a failure to meet RFP, or a failure to
attain.
Using the longstanding approach, contingency measures should
provide for emissions reductions of approximately one year's worth of
RFP for each of the relevant PM<INF>2.5</INF> NAAQS. For the 1997
annual PM<INF>2.5</INF> NAAQS and the 2006 24-hour PM<INF>2.5</INF>
NAAQS, one year's worth of RFP is calculated by dividing the emission
reductions from the base year emissions inventory to the attainment
year emissions inventory by the number of years between those years.
For the 2012 annual PM<INF>2.5</INF> NAAQS, one year's worth of RFP is
calculated by dividing the emission reductions from the base year
emissions inventory to the outermost Moderate area RFP milestone year
emissions inventory by the number of years between those years. For the
2012 annual PM<INF>2.5</INF> NAAQS in this case, RFP is based on the
outermost Moderate area RFP milestone year rather than the attainment
year because, as an area for which we approved an impracticability
demonstration, the attainment year and emissions level providing for
attainment have not yet been determined and approved.
As shown in Table 1, for the San Joaquin Valley, one year's worth
of RFP and the amount of emissions reductions that contingency measures
should provide for is approximately 0.44 tons per day (tpd) for direct
PM<INF>2.5</INF> and 16.7 tpd for NO<INF>X</INF> for the 1997 annual
PM<INF>2.5</INF> NAAQS, approximately 0.58 tpd for direct
PM<INF>2.5</INF> and 18.4 tpd for NO<INF>X</INF> for the 2006 24-hour
PM<INF>2.5</INF> NAAQS, and approximately 0.46 tpd for direct
PM<INF>2.5</INF> and 15.3 tpd for NO<INF>X</INF> for the 2012 annual
PM<INF>2.5</INF> NAAQS.
Table 1--One Year's Worth of RFP for the PM2.5 NAAQS in San Joaquin Valley
--------------------------------------------------------------------------------------------------------------------------------------------------------
Emissions (annual average, tpd) a b c Number of
years between One year's
Applicable PM2.5 NAAQS Pollutant --------------------------------------- Difference base year and worth of RFP
Base year Projected attainment/RFP (tpd) attainment/RFP (tpd)
inventory inventory year
--------------------------------------------------------------------------------------------------------------------------------------------------------
1997 Annual PM2.5 NAAQS............... Direct PM2.5............. 62.5 58.1..................... 4.4 10 0.44
NOX...................... 317.2 150.6.................... 166.6 10 16.7
2006 24-hour PM2.5 NAAQS.............. Direct PM2.5............. 62.5 56.1..................... 6.4 11 0.58
NOX...................... 317.2 115.0.................... 202.2 11 18.4
2012 Annual PM2.5 NAAQS............... Direct PM2.5............. 62.5 58.4 (RFP in 2022)....... 4.1 9 0.46
NOX...................... 317.2 179.8 (RFP in 2022)...... 137.4 9 15.3
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\a\ Base year and 2023 attainment year emissions for the 1997 annual PM2.5 NAAQS are from Table H-6 (page H-12) of the revisions to the 2018 PM2.5 Plan
adopted for the 1997 annual PM2.5 NAAQS on August 19, 2021 (``15 [mu]g/m\3\ SIP Revision'').
\b\ Base year and 2024 attainment year emissions for the 2006 24-hour PM2.5 NAAQS are from 85 FR 17382, 17421, Table 10, citing 2018 PM2.5 Plan,
Appendix H (rev. February 11, 2020), Table H-5.
\c\ Base year and 2022 RFP year emissions for the 2012 annual PM2.5 NAAQS are from 86 FR 49100, 49121, Table 5, citing 2018 PM2.5 Plan, Appendix H (rev.
February 11, 2020), Table H-11.
Using the new approach described in the EPA's Draft Revised
Contingency Measure Guidance, the EPA recommended that contingency
measures should provide for emissions reductions of approximately one
year's worth of progress for each of the relevant PM<INF>2.5</INF>
NAAQS. For the 1997 annual PM<INF>2.5</INF> NAAQS and the 2006 24-hour
PM<INF>2.5</INF> NAAQS, one year's worth of progress is calculated by
determining the average annual reductions between the base year
emissions inventory and the projected attainment year emissions
inventory, determining what percentage of the base year emissions
inventory this amount represents, then applying that percentage to the
projected attainment year emissions inventory. For the 2012 annual
PM<INF>2.5</INF> NAAQS, one year's worth of progress is calculated by
determining the average annual reductions between the base year
emissions inventory and the projected outermost Moderate area RFP
milestone year emissions inventory, determining what percentage of the
base year emissions inventory this amount represents, then applying
that percentage to the projected outermost Moderate area RFP milestone
year emissions inventory. For the 2012 annual PM<INF>2.5</INF> NAAQS in
this case, the calculation of one year's worth of progress is based on
the outermost Moderate area RFP milestone year rather than the
attainment year because, as an area for which we approved an
impracticability demonstration, the attainment year and emissions level
providing for attainment have not yet been determined and approved.
As shown in Table 2, for the San Joaquin Valley, one year's worth
of progress and the amount of emissions reductions that contingency
measures should provide for is approximately 0.41 tpd for direct
PM<INF>2.5</INF> and 7.9 tpd for NO<INF>X</INF> for the 1997 annual
PM<INF>2.5</INF> NAAQS, approximately 0.52 tpd for direct
PM<INF>2.5</INF> and 6.7 tpd for NO<INF>X</INF> for the 2006 24-hour
PM<INF>2.5</INF> NAAQS, and approximately 0.43 tpd for direct
PM<INF>2.5</INF> and 8.7 tpd for NO<INF>X</INF> for the 2012 annual
PM<INF>2.5</INF> NAAQS.
Table 2--One Year's Worth of Progress for the PM2.5 NAAQS in San Joaquin Valley
--------------------------------------------------------------------------------------------------------------------------------------------------------
Emissions (annual average, tpd) a b c
One year's RFP as a One year's
Applicable PM2.5 NAAQS Pollutant --------------------------------------- worth of RFP percentage of worth of
Base year Projected attainment/RFP (tpd) \d\ the base year progress (tpd)
inventory inventory inventory (%)
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1997 Annual PM2.5 NAAQS............... Direct PM2.5............. 62.5 58.1..................... 0.44 0.7 0.41
NOX...................... 317.2 150.6.................... 16.7 5.3 7.9
2006 24-hour PM2.5 NAAQS.............. Direct PM2.5............. 62.5 56.1..................... 0.58 0.9 0.52
NOX...................... 317.2 115.0.................... 18.4 5.8 6.7
2012 Annual PM2.5 NAAQS............... Direct PM2.5............. 62.5 58.4 (RFP in 2022)....... 0.46 0.7 0.43
[[Page 53439]]
NOX...................... 317.2 179.8 (RFP in 2022)...... 15.3 4.8 8.7
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\a\ Base year and 2023 attainment year emissions for the 1997 annual PM2.5 NAAQS are from Table H-6 (page H-12) of the 15 [mu]g/m\3\ SIP Revision.
\b\ Base year and 2024 attainment year emissions for the 2006 24-hour PM2.5 NAAQS are from 85 FR 17382, 17421, Table 10, citing 2018 PM2.5 Plan,
Appendix H (rev. February 11, 2020), Table H-5.
\c\ Base year and 2022 RFP year emissions for the 2012 annual PM2.5 NAAQS are from 86 FR 49100, 49121, Table 5, citing 2018 PM2.5 Plan, Appendix H (rev.
February 11, 2020), Table H-11.
\d\ From Table 1 of this proposed rule.
6. Substitution Between Direct PM<INF>2.5</INF> and NO<INF>X</INF>
Emissions
To determine whether a set of contingency measures would be capable
of achieving one year's worth of RFP or one year's worth of progress,
excess emissions reductions of one precursor may be substituted for a
shortfall in emissions reductions from another precursor or direct
PM<INF>2.5</INF> if supported by the attainment modeling results. The
PM<INF>2.5</INF> SIP Requirements Rule supports the concept of states
using reductions in one pollutant to meet the RFP requirement for
another pollutant.\62\ It envisages an air quality-based RFP analysis
with an ``equivalency determination,'' in which ``a state . . . could
rely upon attainment demonstration modeling results that link emissions
reductions with air quality improvements.'' The EPA considers it
reasonable also to apply the interpollutant trading (IPT) concept to
contingency measures, which should provide one year's worth of RFP
reductions. The EPA previously approved IPT for contingency measures in
the 2008 San Joaquin Valley plan for the 1997 annual PM<INF>2.5</INF>
NAAQS, as well as for other plan actions.\63\
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\62\ 81 FR 58010, 58057 and 40 CFR 51.1012. See also proposed
rule, 80 FR 15340, 15387 (March 23, 2015).
\63\ 79 FR 29327 (May 22, 2014); see discussion in proposed
approval, 78 FR 53113, 53122 (August 28, 2013). The EPA later
withdrew the approval of the contingency measure SIP at 81 FR 29498
(May 12, 2016) for reasons unrelated to IPT. At 82 FR 58747
(December 14, 2017), the EPA found that the deficiency that had been
the basis for the May 12, 2016 disapproval had been resolved. The
EPA has approved IPT for showing that aggregate commitments for
emissions reductions have been met for example in approving the 2018
PM<INF>2.5</INF> Plan for the 2006 24-hour PM<INF>2.5</INF> NAAQS.
85 FR 44192. See also, discussion in the preamble of the affiliated
proposed rule. 85 FR 17382, 17407 and 17429. See also, South Coast
Air Quality Management District (SCAQMD), ``2016 Air Quality
Management Plan,'' App. VI, VI-D-5 and VI-D-6; SCAQMD, ``Technical
clarification regarding emission reductions associated with
contingency measures for the 2006 24-hour PM<INF>2.5</INF> standard
attainment and 2012 annual PM<INF>2.5</INF> standard Reasonable
Further Progress,'' February 2020, 4; and 85 FR 71264 (November 9,
2020).
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Our longstanding guidance on contingency measures did not directly
address this particular issue, but in our Draft Revised Contingency
Measure Guidance, citing the PM<INF>2.5</INF> SIP Requirements Rule, we
noted that the attainment demonstration modeling in an attainment plan
SIP submission may provide a reasonable basis to identify ratios for
the effectiveness of reductions of one precursor to reduce ambient
concentrations relative to other precursors. If that is the case, it
may be appropriate for a state to use the ratio to substitute
contingency measure reductions of one precursor for a shortfall in
contingency measure reductions of another precursor.\64\ While, with
respect to the PM<INF>2.5</INF> NAAQS, the Draft Revised Contingency
Measure Guidance refers to substitution of emissions reductions among
PM<INF>2.5</INF> plan precursors, the same holds true for substitution
of emissions reductions between direct PM<INF>2.5</INF> and
PM<INF>2.5</INF> plan precursors.
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\64\ Draft Revised Contingency Measure Guidance, 25.
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For San Joaquin Valley, modeling conducted by the State for the SIP
submissions for the 1997 annual PM<INF>2.5</INF> NAAQS and the 2012
annual PM<INF>2.5</INF> NAAQS supports the use of a 10.3 to 1 ratio for
the relative effectiveness of NO<INF>X</INF> and direct
PM<INF>2.5</INF> emissions reduction to reduce ambient PM<INF>2.5</INF>
concentrations. For the 2006 24-hour PM<INF>2.5</INF> NAAQS, the
corresponding ratio is 2.6 to 1. Thus, for example, one tpd of excess
direct PM<INF>2.5</INF> emissions reductions (i.e., beyond one year's
worth of RFP or progress) could substitute for a shortfall of 10.3 tpd
of NO<INF>X</INF> reductions for the purposes of the 1997 annual
PM<INF>2.5</INF> NAAQS or the 2012 annual PM<INF>2.5</INF> NAAQS, or
for a shortfall of 2.6 tpd for the purposes of the 2006 24-hour
PM<INF>2.5</INF> NAAQS. For further detail on our interpollutant
trading analysis, please see the EPA's Interpollutant Trading Technical
Support Document (TSD) in the docket for this action.
7. Using Same Contingency Measures for More Than One Triggering Event,
NAAQS
Under CAA section 172(c)(9), SIPs must provide for the
implementation of specific contingency measures if the area fails to
meet RFP or to attain the NAAQS by the applicable attainment date. For
PM<INF>2.5</INF>, there are four potential triggering events: failure
to meet any RFP requirement, failure to submit a QM report, failure to
meet a QM, and failure to attain the NAAQS by the applicable attainment
date.\65\
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\65\ 40 CFR 51.1014(a).
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To meet the contingency measure requirement, states may adopt
different measures for different triggering events but are not required
to do so. If the state adopts the same set of contingency measures for
all of the triggering events, however, then the contingency measures
may all be implemented by earlier-occurring triggering events leaving
no contingency measures for potential later-occuring events. In that
case, if a state has no remaining approved contingency measures, then
the EPA believes that states must adopt and submit additional
contingency measures to be available for potential later-occuring
triggering events.
The potential for states to have used all approved contingency
measures, and thus to lack contingency measures for potential later-
triggering events is compounded by the reliance on the same set of
contingency measures for more than one iteration of the
PM<INF>2.5</INF> NAAQS. For this proposed rule, we have identified a
single set of contingency measures that could be triggered by any of
the regulatory triggers in 40 CFR 51.1014(a) and that would apply to
the 1997 annual PM<INF>2.5</INF> NAAQS, the 2006 24-hour
PM<INF>2.5</INF> NAAQS, and the 2012 annual PM<INF>2.5</INF> NAAQS (for
purposes of the Moderate
[[Page 53440]]
area attainment plan). However, in light of the potential for
triggering the contingency measures for one PM<INF>2.5</INF> NAAQS and
the resultant absence of contingency measure for the other
PM<INF>2.5</INF> NAAQS, we are proposing regulatory text that would
commit the Agency to promulgate additional contingency measures if all
the contingency measures are implemented for one of the
PM<INF>2.5</INF> NAAQS with the result that no FIP contingency measures
would be left to be implemented for the other PM<INF>2.5</INF> NAAQS.
B. Candidate Measure Identification Process
The EPA has used several guiding principles in identifying
candidate contingency measures for this FIP proposal. These include
consideration of:
<bullet> Larger emission sources of direct PM<INF>2.5</INF> and
NO<INF>X</INF>, based on our review of the State's emissions
inventories (i.e., where the potential magnitude of reductions may be
greater),
<bullet> Past recommendations of new control measures or
improvements to existing control measures by the EPA and community and
environmental groups (to leverage the considerable past efforts to
identify potential additional emission reduction opportunities),
<bullet> Awareness of recent and ongoing emission reduction
strategies by CARB and the District (whose adoption and submission to
meet another SIP requirement, or whose status as an already implemented
measure, would render the measure ineligible as a potential contingency
measure),
<bullet> Timing limitations that prevent the measure from being
implemented without significant further action by the state or the EPA
as required for contingency measures, or that prevent the potential
resulting emissions reductions from being achieved within one year of a
triggering event for the contingency measure (such as the statutory
four-year lead time for mobile source vehicle and engine
standards),\66\ and
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\66\ In our Draft Revised Contingency Measure Guidance, in
instances where there are insufficient contingency measures
available to achieve the recommended amount of emission reductions
within one year, we are considering a change to our guidance to
allow for up to two years of being triggered for achieving emissions
reductions from contingency measures.
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<bullet> The potential for changing the EPA's FIP contingency
measures into SIP contingency measures (i.e., measures that the State
could adopt, in whole or in part, or adapt in combination with other
measures), that would achieve comparable emission reductions, as part
of a contingency measure SIP submission to replace the FIP in
future).\67\
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\67\ The facility of translating proposed FIP contingency
measures into SIP contingency measures has two potential benefits:
first, implementation and enforcement build on existing structures
with which the regulated communities are familiar, resulting in
swift implementation consistent the statutory requirements for
contingency measures; and second, drafting the FIP measures within
the context of existing rules may be more readily adapted by the
state in its contingency measure SIP submission.
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Furthermore, as necessary parts of the process for selecting
measures for inclusion in the proposed contingency measure FIP, the EPA
evaluated the measures for their emission reduction potential;
technological and economic feasibility; and suitability as contingency
measures (i.e., they can be implemented within 60 days of triggering,
reductions can occur within two years of triggering, etc.).
1. Emissions Inventory (Direct PM<INF>2.5</INF> and NO<INF>X</INF>)
We reviewed emissions inventories in the 2018 PM<INF>2.5</INF> Plan
and CARB's CEPAM standard emissions tool (2019v1.03) for San Joaquin
Valley to identify the principal source categories that contribute to
regional emissions totals and thereby to identify the source categories
for which meaningful emissions reductions from contingency measures
might be most achievable. As shown in Table 3, based on the 2018
PM<INF>2.5</INF> Plan emissions inventory,\68\ the top ten source
categories for direct PM<INF>2.5</INF> emissions in the San Joaquin
Valley in 2023 will contribute approximately 78% of the regional total
direct PM<INF>2.5</INF> emissions. Most of the top ten direct
PM<INF>2.5</INF> sources are stationary and area sources, including
direct PM<INF>2.5</INF> combustion sources such as Cooking and
Residential Fuel Combustion and direct PM<INF>2.5</INF> dust sources
such as Farming Operations and Fugitive Windblown Dust. With respect to
NO<INF>X</INF> emissions, the top ten source categories will contribute
approximately 77% of the regional total in 2023. Most of the top ten
NO<INF>X</INF> sources are mobile sources, including on-road sources
such as Heavy Heavy-Duty Diesel Trucks and Light-Duty Vehicles and non-
road sources such as Farm Equipment and Trains.
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\68\ 2018 PM<INF>2.5</INF> Plan, App. B, Table B-1 (direct
PM<INF>2.5</INF>) and Table B-2 (NO<INF>X</INF>).
Table 3--Top Ten Source Categories for Direct PM2.5 and NOX Emissions, San Joaquin Valley, 2023
[Annual average]
----------------------------------------------------------------------------------------------------------------
Emissions as
Emissions percentage of
Pollutant or precursor Source category (tpd) \a\ total
inventory
----------------------------------------------------------------------------------------------------------------
Direct PM2.5............................... Farming Operations................. 13.0 22.3
Fugitive Windblown Dust............ 7.2 12.3
Paved Road Dust.................... 5.5 9.4
Cooking............................ 4.2 7.2
Unpaved Road Dust.................. 3.7 6.3
Residential Fuel Combustion........ 3.3 5.7
Managed Burning and Disposal....... 3.0 5.1
Farm Equipment..................... 1.8 3.1
Light-Duty Vehicles (LDA, LDT1, 1.8 3.1
LDT2).
Mineral Processes.................. 1.7 2.9
-------------------------------
Total of Top Ten Source 45.2 77.5
Categories
----------------------------------------------------------------------------------------------------------------
NOX........................................ Heavy Heavy-Duty Diesel Trucks 33.1 21.5
(HHDV).
Farm Equipment..................... 30.1 19.6
Off-Road Equipment................. 14.7 9.6
Trains............................. 8.8 5.7
Light-Duty Vehicles (LDA, LDT1, 6.4 4.2
LDT2).
[[Page 53441]]
Residential Fuel Combustion........ 5.8 3.8
Manufacturing and Industrial....... 5.3 3.5
Medium Heavy-Duty Diesel Trucks 5.0 3.3
(MHDV).
Service and Commercial............. 4.6 3.0
Aircraft........................... 4.6 3.0
-------------------------------
Total of Top Ten Source 118.4 77.1
Categories
----------------------------------------------------------------------------------------------------------------
\a\ Source: 2018 PM2.5 Plan, Appendix B, tables B-1 and B-2.
2. Identification of Current and Future Planned Controls for Source
Categories
Using the emission inventory information, we identified the
existing controls for these sources in the EPA approved SIP for the San
Joaquin Valley, and the planned future controls that apply (or will
apply) to the source categories or subcategories present in the
nonattainment area. Existing controls refer to the limits and
requirements for different source categories set forth in the District,
CARB, and EPA rules and regulations. Planned future controls refer to
the commitments to develop and propose control measures found in
District plans \69\ and in CARB's Valley State SIP Strategy and the
2022 State SIP Strategy.\70\
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\69\ See, e.g., 2018 PM<INF>2.5</INF> Plan, Ch. 4, Table 4-4;
and SJVUAPCD, ``2022 Plan for the 2015 8-Hour Ozone Standard,''
adopted December 15, 2022, section 3.3.3, 3-9.
\70\ Valley State SIP Strategy, Table 7; and CARB, ``2022 State
Strategy for the State Implementation Plan (adopted September 22,
2022),'' submitted electronically to the EPA on February 23, 2023,
as an enclosure to a letter dated February 22, 2023.
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For example, the District and CARB have adopted many measures from
2018 to the present that address top ten sources of direct
PM<INF>2.5</INF> and/or NO<INF>X</INF> in the San Joaquin Valley,
including but not limited to the following by adoption year:
<bullet> Residential Fuel Combustion (2019 amendments to Rule 4901
(``Wood Burning Fireplaces and Wood Burning Heaters '') and 2021
residential wood burning incentive measure),
<bullet> Managed Burning and Disposal (2021 agricultural burning
phase-out measure),
<bullet> Farming Equipment (2019 agricultural equipment incentive
measure),
<bullet> Heavy-Duty Diesel Trucks (2020 Advanced Clean Trucks
Regulation and 2021 Heavy-Duty Inspection and Maintenance Regulation)
The District and CARB continue to workshop and evaluate control
measures for other top ten source categories, including Farming
Operations (e.g., potential amendments to Rule 4550 (``Conservation
Management Practices'')) \71\ and Cooking (e.g., commercial under-fired
charbroiling).\72\ The exact form and timing of such control measures
remain uncertain and subject to the State's further evaluation of
technological and economic feasibility and interaction with other
governmental entities.
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\71\ SJVUAPCD, ``PM<INF>2.5</INF> Contingency Measure State
Implementation Plan Revision,'' May 18, 2023, 23-24. See also,
SJVUAPCD, ``Public Workshop for Potential Amendments to District
Rule 4550 (Conservation Management Practices),'' November 7, 2022.
\72\ SJVUAPCD, ``PM<INF>2.5</INF> Contingency Measure State
Implementation Plan Revision,'' May 18, 2023, 32-41.
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In addition, as examples of federal action, the EPA has finalized
Heavy-Duty vehicle and engine standards for model year 2027 and
beyond,\73\ proposed more stringent emission standards for criteria
pollutants, including NO<INF>X</INF>, for both Light-Duty and Medium-
Duty vehicles for model years 2027-2032,\74\ and proposed new
greenhouse gas standards for Heavy-Duty vehicles starting in model year
2028 that would also reduce Heavy-Duty vehicle emissions of
NO<INF>X</INF> and other criteria pollutant precursors.\75\
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\73\ 88 FR 4296 (January 24, 2023).
\74\ 88 FR 29184 (May 5, 2023).
\75\ 88 FR 25926 (April 27, 2023).
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Regarding the fourth largest source of NO<INF>X</INF> in the San
Joaquin Valley (trains), in November 2022 the EPA responded to a
petition from the District that sought action by the EPA to address
harmful emissions from locomotives.\76\ The EPA committed in the
response to undertake a notice and comment rulemaking process to
reconsider existing locomotive preemption regulations to ensure that
they don't inappropriately limit California's and other states'
authorities under the CAA to address their air quality issues. In April
2023, the EPA proposed changes to the locomotive preemption regulations
delivering on the Agency's commitment.\77\
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\76\ Letter dated November 9, 2022, from Joe Goffman, Principal
Deputy Assistant Administrator, EPA, to Liane M. Randolph, Chair,
CARB, and letter dated November 9, 2022, from Joe Goffman, Principal
Deputy Assistant Administrator, EPA, to Samir Sheikh, Executive
Director, SJVUAPCD.
\77\ 88 FR 25926, 26092-26096 (April 27, 2023).
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The EPA also committed to engage with stakeholders including
locomotive and locomotive engine manufacturers, technology suppliers,
environmental justice communities, environmental and public health non-
governmental organizations, other federal partners, state and local air
quality agencies, railroad companies, and labor unions as the Agency
develops options for how new locomotives can achieve the greatest
degree of emission reduction achievable through the application of
technology. That engagement, which is ongoing, has already highlighted
that potential opportunities may exist to reduce emissions from
locomotives through possible changes to the EPA's regulations to
control unnecessary idling by new and remanufactured locomotives.
Technologies that reduce the time that large high-emitting locomotive
engines operate at idle have the potential to directly reduce PM and
NO<INF>X</INF> emissions from locomotives. The EPA is actively
considering how best to address the emissions from idling locomotives
among the suite of regulatory options being considered for new and
remanufactured locomotives.
With respect to the State's current and planned controls
specifically for contingency measures in the San Joaquin Valley, on
June 8, 2023, the State submitted the ``PM<INF>2.5</INF> Contingency
Measure State Implementation Plan Revision'' to the EPA as a revision
to the California SIP (``June 2023 Contingency
[[Page 53442]]
Measure SIP Submission'').\78\ In that SIP submission, the District and
CARB present their evaluation of potential contingency measures,
amendments to the contingency provisions of Rule 4901 (``Wood Burning
Fireplaces and Wood Burning Heaters''), a commitment to evaluate
potential contingency provisions for Rule 8051 (``Open Areas''),
analysis of one year's worth of emission reductions, and infeasibility
justification for rejecting other potential contingency measures. The
residential wood burning contingency measure would, upon a first
triggering event, lower the episodic wood burning curtailment
thresholds for registered and unregistered devices in five non-hot spot
counties to match the thresholds that currently apply in the three hot-
spot counties and, upon a second triggering event, would further lower
the curtailment threshold for unregistered devices in all eight
counties of the San Joaquin Valley. The District estimates that the
residential wood burning contingency measures for the first and second
triggering events would achieve annual average emission reductions of
0.69 tpd direct PM<INF>2.5</INF> and 0.10 tpd NO<INF>X</INF> in the San
Joaquin Valley.\79\
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\78\ Letter dated June 7, 2023, from Steven S. Cliff, Executive
Officer, CARB, to Martha Guzman, Regional Administrator, EPA Region
IX.
\79\ June 2023 Contingency Measure SIP Submission, 31.
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In addition, by letter dated June 23, 2023, CARB committed to bring
to the CARB Board for consideration no later than February 28, 2024,
and submit to the EPA no later than March 31, 2024, a contingency
measure to implement a change to the exemptions for light-duty motor
vehicles in the California vehicle emissions inspection and maintenance
(I/M) program--the Smog Check Program--if triggered by an EPA
determination under 40 CFR 51.1014(a).\80\ CARB indicates that the
contingency measure for San Joaquin Valley for the PM<INF>2.5</INF>
NAAQS will, within 30 days of the effective date of the EPA determining
that an applicable triggering event occurred, obligate CARB to transmit
a letter to the California Bureau of Automotive Repair and Department
of Motor Vehicles finding that providing an exception from Smog Check
for certain vehicles will prohibit the State from meeting the State's
commitments with respect to the SIP required by the CAA, effectuating a
change to the Smog Check exemption for motor vehicles from eight or
less model-years old to seven or less model-years old throughout the
San Joaquin Valley.\81\
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\80\ Letter dated June 23, 2023, from Steven S. Cliff, Executive
Officer, CARB, to Martha Guzman, Regional Administrator, EPA Region
IX.
\81\ Id.
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The EPA is evaluating the June 2023 Contingency Measure SIP
Submission and June 23, 2023 commitment and will propose action on the
submission and commitment in a separate rulemaking.
3. Past EPA Recommendations
When the EPA reviews individual District rules in SIP submissions
for approval, the EPA routinely includes recommendations for changes to
the rules to strengthen or clarify them, even if the particular change
is not required for approval as meeting applicable stringency
requirements. These recommendations are generally found in the EPA's
technical support documents prepared for individual rulemakings. We
have reviewed past recommendations in numerous technical support
documents prepared in connection with past SIP actions to identify
potential rule changes that might be suitable as contingency measures.
4. Environmental and Community Group Recommendations
In 2021, a group of 18 environmental justice, environmental and
community groups in the San Joaquin Valley sent the EPA a letter in
which they attached a list of specific control measures that the group
believes should be adopted or strengthened in the San Joaquin Valley
area.\82\ These groups later supplemented the 2021 letter with
additional information concerning the list of control measures.\83\ We
have taken into account the information contained in the two letters
and attachments in developing this proposed contingency measure FIP.
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\82\ Letter dated October 22, 2021, from Tom Frantz, Association
of Irritated Residents, et al., to Michael S. Regan, EPA
Administrator, including Attachment.
\83\ Letter dated May 18, 2022, from Tom Frantz, Association of
Irritated Residents, et al., to Michael S. Regan, EPA Administrator,
including Attachments A, B, and C.
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C. Residential Wood Burning
1. Background
Residential wood burning includes wood-burning heaters (i.e.,
woodstoves, pellet stoves, and wood-burning fireplace inserts), which
are used primarily for heat generation, and wood-burning fireplaces,
which are used primarily for aesthetic purposes. All of these devices
emit direct PM<INF>2.5</INF> and NO<INF>X</INF>. However, wood-burning
heaters, that are certified under the EPA's New Source Performance
Standards (NSPS) emit lower levels of PM<INF>2.5</INF> compared to
wood-burning fireplaces and non-certified heaters when properly
installed, operated, and maintained.
Residential wood-burning is included within the ``Residential Fuel
Combustion'' emissions inventory category within the 2018
PM<INF>2.5</INF> Plan's emissions inventories. In the 2018
PM<INF>2.5</INF> Plan, the District estimates emissions of 2.82 tpd of
PM<INF>2.5</INF> and 0.42 tpd NO<INF>X</INF> (annual average)
specifically from residential wood burning for each year from 2017
onward. However, these estimates do not account for the effect of the
2019 amendments to Rule 4901, discussed in the following section of
this document.
2. Regulatory History
District Rule 4901 establishes requirements for the sale/transfer,
operation, and installation of wood-burning devices and on the
advertising of wood for sale intended for burning in a wood-burning
fireplace, wood-burning heater, or outdoor wood-burning device within
the San Joaquin Valley.
One of the most effective ways to reduce wintertime smoke is a
curtailment program that restricts use of wood-burning heaters and
fireplaces on days that are conducive to buildup of PM concentrations
(i.e., days where ambient PM<INF>2.5</INF> and/or PM<INF>10</INF>
concentrations are forecast to be above a particular level, known as a
``curtailment threshold'').
Rule 4901 includes a tiered mandatory curtailment program that
establishes different curtailment thresholds based on the type of
devices (i.e., registered clean-burning devices \84\ vs. unregistered
devices) and different counties (i.e., hot spot vs. non-hot spot).
During a Level One Episodic Wood Burning Curtailment, operation of
wood-burning fireplaces and other unregistered wood-burning heaters or
devices is prohibited, but properly operated, registered wood-burning
heaters may be used.\85\ During a Level Two Episodic Wood Burning
Curtailment, operation of any wood-
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\84\ In order to be registered, a device must either be
certified under the NSPS at time of purchase or installation and at
least as stringent as Phase II requirements or be a pellet-fueled
wood burning heater exempt from EPA certification requirements at
the time of purchase or installation (section 5.9.1). The rule
includes requirements for documentation and inspection to verify
compliance with these standards (sections 5.9.2 and 5.10).
\85\ Rule 4901, section 5.7.1.
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[[Page 53443]]
burning device is prohibited.\86\ However, the rule includes an
exemption from the curtailment provisions for (1) locations where piped
natural gas service is not available and (2) residences for which a
wood-burning fireplace or wood-burning heater is the sole available
source of heat.\87\
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\86\ Rule 4901, section 5.7.2.
\87\ Rule 4901, section 5.7.4.
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In order to implement the curtailment program under Rule 4901, the
District develops daily air quality forecasts, based on EPA and CARB
guidance, which include a projection of the maximum PM<INF>2.5</INF>
concentration in each county for the following day.\88\ District staff
then compare this maximum county PM<INF>2.5</INF> concentration
forecast with the curtailment thresholds in Rule 4901. If a county's
PM<INF>2.5</INF> forecast exceeds the applicable threshold, then the
District's Air Pollution Control Officer declares a curtailment for the
county for the following day.
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\88\ Email dated October 9, 2019, from Jon Klassen, SJVUAPCD to
Meredith Kurpius, EPA Region IX, Subject: ``RE: Info to support Rule
4901.''
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In 2019, the District lowered the curtailment thresholds in Madera,
Fresno, and Kern counties, which the District identified as ``hot
spot'' counties, because they were ``either new areas of gas utility or
areas deemed to have persistently poor air quality.'' \89\ Table 4
presents the residential curtailment thresholds in District Rule 4901,
as revised in 2019.
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\89\ 2018 PM<INF>2.5</INF> Plan, App. J, 60.
Table 4--Residential Wood Burning Curtailment Thresholds in Rule 4901
------------------------------------------------------------------------
Non-hot spot
counties (San
Hot spot counties Joaquin,
(Madera, Fresno, Stanislaus,
and Kern) Merced, Kings, and
Tulare)
------------------------------------------------------------------------
Level One (No Burning Unless 12 [mu]g/m\3\..... 20 [mu]g/m\3\.
Registered).
Level Two (No Burning for All).. 35 [mu]g/m\3\..... 65 [mu]g/m\3\.
------------------------------------------------------------------------
The 2019 revision by the District also added a provision to the
rule to operate as a contingency measure, which would lower the
curtailment levels for any county that failed to attain the applicable
standards to levels consistent with current thresholds for hot spot
counties. However, the EPA disapproved this provision because it did
not meet all of the CAA requirements for contingency measures.\90\
Specifically, it did not address three of the four required triggers
for contingency measures in 40 CFR 51.1014(a) and was not structured to
achieve any additional emissions reductions if the EPA found that the
monitoring locations in the ``hot spot'' counties (i.e., Fresno, Kern,
or Madera) were the only counties in the San Joaquin Valley that are
violating the applicable PM<INF>2.5</INF> NAAQS as of the attainment
date.\91\ Accordingly, the SIP-approved version of Rule 4901 does not
include any contingency provision.
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\90\ 86 FR 67329, 67338 (for the 1997 annual PM<INF>2.5</INF>
NAAQS) and 86 FR 67343, 67345 (for the 2006 24-hour PM<INF>2.5</INF>
NAAQS and 2012 annual PM<INF>2.5</INF> NAAQS).
\91\ Id. See also, 86 FR 38652, 38669 (July 22, 2021) (proposed
rule on contingency measure element for the 1997 annual
PM<INF>2.5</INF> NAAQS) and 86 FR 49100, 49125 and 49133-49134
(proposed rule on contingency measure element for the 2012 annual
PM<INF>2.5</INF> NAAQS and 2006 24-hour PM<INF>2.5</INF> NAAQS,
respectively).
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On May 18, 2023, the District adopted a new contingency measure in
section 5.7.3 of Rule 4901, and CARB submitted this contingency measure
as part of the June 2023 Contingency Measure SIP Submission. The
contingency measure would be triggered by a final determination by the
EPA that the District failed to meet one or more of the following
triggering events of the applicable PM<INF>2.5</INF> NAAQS:
(1) Any Reasonable Further Progress requirement;
(2) Any quantitative milestone;
(3) Submission of a quantitative milestone report; or
(4) Attainment of the applicable PM<INF>2.5</INF> NAAQS by the
applicable attainment date.
Following the first such triggering event, the measure would lower
the thresholds for the non-hot spot counties to the current thresholds
for hot spot counties (i.e., 12 [mu]g/m\3\ for unregistered devices; 35
[mu]g/m\3\ for registered devices). Following the second such event,
the measure would further lower the threshold for unregistered devices
to 11 [mu]g/m\3\.
3. Proposed Measure
As described further in the EPA's Proposed Contingency Measures
TSD, we considered various possible contingency measures that could
apply to the wood-burning source category and concluded that
strengthening the curtailment program would be the most effective means
of providing meaningful emissions reductions from this source category
within one to two years of the triggering event.
Specifically, the proposed contingency measure for this source
category would strengthen the curtailment program in Rule 4901 by
lowering the curtailment levels for the five non-hot-spot counties to
the current thresholds for hot spot counties (i.e., 12 [mu]g/m\3\ for
unregistered devices; 35 [mu]g/m\3\ for registered devices).
Curtailments would continue to be determined on a county-by-county
basis, so restrictions would continue to be tailored based on the air
quality for the particular county.
We estimate the annual average emissions reductions associated with
this contingency measure would be 0.579 tpd of direct PM<INF>2.5</INF>
and 0.082 tpd of NO<INF>X</INF>. Please refer to the EPA's Proposed
Contingency Measures TSD for more detail on the proposed measure and
associated reductions.
D. Rural Open Areas Dust
1. Background
In areas where there is open, uncovered land, a natural crust will
form and minimize dust emissions. However, activities such as
earthmoving activities, material dumping, weed abatement, and vehicle
traffic will disturb otherwise naturally stable land and allow
windblown fugitive dust emissions to occur. As a contingency measure,
the EPA is proposing to add to an existing District measure to further
reduce emissions from this category. The contingency measure would
lower the applicability threshold of the District's Rule 8051 from 3.0
acres to 1.0 acres for rural open areas, thereby reducing windblown
fugitive dust, including the direct PM<INF>2.5</INF> portion of such
dust emissions.
2. Regulatory History
SJVUAPCD adopted Regulation VIII (containing the 8000 series rules)
on November 15, 2001, to address RACM/RACT and BACM/BACT attainment
plan requirements for the 1987 PM<INF>10</INF>
[[Page 53444]]
NAAQS.\92\ The EPA found that new provisions in Regulation VIII
``significantly strengthened'' the prior existing rules by tightening
standards, covering more activities, and adding more requirements to
control dust-producing activities.\93\ Subsequently, the District
adopted amendments to Regulation VIII on August 19, 2004, and September
16, 2004, that the EPA approved into the San Joaquin Valley portion of
the California SIP in 2006.\94\ More recently the EPA has reviewed
Regulation VIII for RACM/RACT, BACM/BACT, and most stringent measures
requirements in acting on San Joaquin Valley plans for the 2006 24-hour
PM<INF>2.5</INF> NAAQS.\95\ Among the rules of Regulation VIII, Rule
8051 applies to open areas and the 2004 amendments added applicability
thresholds for rural and urban areas required to meet both the
conditions for a stabilized surface (defined in Rule 8011) and a 20%
opacity standard. In addition, under Rule 8051, upon evidence of
vehicle trespass, owners/operators must apply a measure(s) that
effectively prevents access to the lot.
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\92\ Regulation VIII includes eight rules. Rule 8011 (``General
Requirements'') provides definitions and the general requirements on
which the seven other rules rely. In turn, those seven rules apply
to different sources of fugitive windblown dust based on activity
type. They include Rule 8021 (``Construction, Demolition,
Excavation, Extraction, and Other Earthmoving Activities''), Rule
8031 (``Bulk Materials''), Rule 8041 (``Carryout and Trackout''),
Rule 8051 (``Open Areas''), Rule 8061 (``Paved and Unpaved Roads''),
Rule 8071 (Unpaved Vehicle/Equipment Traffic Area''), and Rule 8081
(``Agricultural Sources''). In this proposed rule, the EPA proposes
a contingency measure for rural open areas by adding to Rule 8051.
\93\ 67 FR 15345, 15346-15447 (April 1, 2002) (proposed rule on
2001 version of Regulation VIII).
\94\ 71 FR 8461 (February 17, 2006).
\95\ See, e.g., 85 FR 17382, 17431 (proposal on BACM/BACT and
MSM for the 2006 24-hour PM<INF>2.5</INF> NAAQS); and EPA Region IX,
``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.
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3. Proposed Measure
The proposed contingency measure for this source category would
lower the applicability threshold from 3.0 acres to 1.0 acres in rural
areas. As a result, if triggered by a failure to meet RFP requirements
or a failure to attain, Rule 8051 would then apply to any rural open
area having 1.0 acre or more and containing at least 1,000 square feet
of disturbed surface area.
This measure will require these additional areas to meet the
existing requirements in Rule 8051. Specifically, Section 5
(Requirements) of Rule 8051 requires that:
Whenever open areas are disturbed or vehicles are used in open
areas, an owner/operator shall implement one or a combination of
control measures indicated in Table 8051-1 to comply with the
conditions of a stabilized surface at all times and to limit VDE to
20% opacity. In addition to the requirements of this rule, a person
shall comply with all other applicable requirements of Regulation
VIII.\96\
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\96\ VDE is Visible Dust Emissions.
Table 8051-1 contains the following control measures for open
---------------------------------------------------------------------------
areas:
A. Open Areas:
Implement, apply, maintain, and reapply if necessary, at least
one or a combination of the following control measures to comply at
all times with the conditions for a stabilized surface and limit VDE
to 20% opacity as defined in Rule 8011:
A1. Apply and maintain water or dust suppressant(s) to all
unvegetated areas; and/or
A2. Establish vegetation on all previously disturbed areas; and/
or
A3. Pave, apply and maintain gravel, or apply and maintain
chemical/organic stabilizers/suppressant(s).
B. Vehicle Use in Open Areas:
Upon evidence of trespass, prevent unauthorized vehicle access
by:
Posting `No Trespassing' signs or installing physical barriers
such as fences, gates, posts, and/or other appropriate barriers to
effectively prevent access to the area.
The District makes available certain forms through the District's
website that owners or operators may use to document compliance with
the requirements of the rules under Regulation VIII.\97\ For open
areas, these include ``Form A--Area Water Application'' and/or ``Form
C--For Permanent/Long Term Dust Controls,'' consistent with the measure
an owner or operator would select from Table 8051-1. The EPA would
require owners and operators of rural open areas newly subject to the
requirements of Rule 8051 (i.e., those with open areas 1.0 to 3.0 acres
in size) to use the two forms, which the EPA intends to adapt for use
in connection with this proposed FIP contingency measure. The EPA would
apply the same recordkeeping requirements found in the District rule to
newly subject owners and operators--i.e., generally one year following
project completion except for owners/operators subject to Rule 2520 who
must retain records for five years. The EPA, however, would add a
requirement that owners and operators of rural open areas newly subject
to the requirements of Rule 8051 pursuant to this FIP submit copies of
records prepared during a calendar year to the EPA by March 31st of the
following year.
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\97\ <a href="https://www.valleyair.org/busind/comply/PM10/forms/Regulation_VIII_RecordKeeping_Forms.pdf">https://www.valleyair.org/busind/comply/PM10/forms/Regulation_VIII_RecordKeeping_Forms.pdf</a>.
---------------------------------------------------------------------------
Given the availability and variability of county-based parcel data,
which inform the location, number, and size of open areas in the 1.0
acre to 3.0 acres size range, and the differences in emission factors
for fugitive windblown dust by county, it is difficult to precisely
quantify the emission reductions associated with lowering the
applicability threshold for rural open area in Rule 8051 from 3.0 acres
to 1.0 acre. Nonetheless, based on the information available, we
estimate that lowering the applicability threshold in rural areas from
3.0 acres to 1.0 acre would result in direct PM<INF>2.5</INF> emission
reductions of 0.01 tpd (after applying a compliance rate of 75%).
However, given uncertainties in our methodology for this estimate, we
are seeking comment on our estimated emissions reductions. This
contingency measure requires the same kinds of dust control options as
currently apply to rural areas larger than 3.0 acres. We estimate that
the annual cost of controlling the dust emission would range from $160/
acre/year to $360/acre/year, depending on the control option selected
from Table 8051-1 of Rule 8051. Please refer to the EPA's Proposed
Contingency Measures TSD for more detail on the proposed measure and
associated reductions and annual cost estimates.
E. Summary of EPA Analysis and Conclusion
Table 5 summarizes the estimated emissions reductions from the
proposed contingency measures.
[[Page 53445]]
Table 5--Annual Average Emissions Reductions From Proposed FIP
Contingency Measures
------------------------------------------------------------------------
Direct PM2.5 emissions
Proposed FIP contingency reductions (tpd) NOX emissions
measure reductions (tpd)
------------------------------------------------------------------------
Residential Wood Burning.... 0.579 0.082
Rural Open Areas............ 0.010 .................
-------------------------------------------
Total................... 0.589 0.082
------------------------------------------------------------------------
Table 6 presents the estimated emissions reductions as percentages
of one year's worth of RFP and one year's worth of progress both with
and without trading between direct PM<INF>2.5</INF> and NO<INF>X</INF>
emissions. As noted previously in this proposed rule, one year's worth
of RFP is the longstanding recommendation by the EPA to states
regarding the magnitude of emissions reductions that contingency
measures should be capable of achieving. One year's worth of progress
is the new recommendation described in the EPA's Draft Revised
Contingency Measure Guidance. In addition, as discussed in section
III.A.6 of this proposed rule, we are proposing to trade excess direct
PM<INF>2.5</INF> emission reductions to substitute for a portion of the
shortfall in NO<INF>X</INF> emission reductions compared to one year's
worth of RFP and one year's worth of progress.\98\
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\98\ While this trading would not make up the entire shortfall
in NO<INF>X</INF> emission reductions, it gives a sense for the
magnitude of the relative ambient effect of the excess direct
PM<INF>2.5</INF> emission reductions towards meeting one year's
worth of RFP or one year's worth of progress.
---------------------------------------------------------------------------
Specifically, based on modeling conducted for the SIP submissions,
we are proposing a ratio of 10.3 to 1 for the 1997 annual
PM<INF>2.5</INF> NAAQS and 2012 annual PM<INF>2.5</INF> NAAQS and a
ratio of 2.6 to 1 for the 2006 24-hour PM<INF>2.5</INF> NAAQS, where an
excess of one tpd of direct PM<INF>2.5</INF> emission reductions would
substitute for 10.3 tpd of NO<INF>X</INF> for the 1997 or 2012 annual
PM<INF>2.5</INF> NAAQS or 2.6 tpd of NO<INF>X</INF> for the 2006 24-
hour PM<INF>2.5</INF> NAAQS. For further detail on our interpollutant
trading analysis, please see the EPA's Interpollutant Trading TSD.
Table 6--Proposed FIP Contingency Measures as Percentage of One Year's Worth of RFP and One Year's Worth of Progress a
--------------------------------------------------------------------------------------------------------------------------------------------------------
One year's worth of RFP One year's worth of progress
-----------------------------------------------------------------------------------------------------
PM2.5 NAAQS Pollutant Reductions % OYW (no % OYW (with Reductions % OYW (no % OYW (with
target trading) trading) target trading) trading)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1997 Annual.................... Direct PM2.5..... 0.44 134 100 0.41 144 100
NOX.............. 16.7 0.5 9.7 7.9 1.0 24.5
2006 24-hour................... Direct PM2.5..... 0.58 101 100 0.52 113 100
NOX.............. 18.4 0.4 0.6 6.7 1.2 3.9
2012 Annual.................... Direct PM2.5..... 0.46 129 100 0.43 138 100
NOX.............. 15.3 0.5 9.6 8.7 0.9 20.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ See tables 1 and 2 of this proposed rule for the derivation of one year's worth of RFP and one year's worth of progress for the 1997 annual PM2.5
NAAQS, the 2006 24-hour PM2.5 NAAQS, and the 2012 annual PM2.5 NAAQS.
As shown in Table 5, the sum of the emissions reductions from the
two proposed FIP contingency measures is approximately 0.589 tpd direct
PM<INF>2.5</INF> and 0.082 tpd NO<INF>X</INF>. Without taking into
account the substitution principle, these reductions would exceed one
year's worth of RFP for direct PM<INF>2.5</INF> and provide a portion
of one year's worth of RFP for NO<INF>X</INF> for the 1997 annual
PM<INF>2.5</INF> NAAQS, 2006 24-hour PM<INF>2.5</INF> NAAQS, and the
2012 annual PM<INF>2.5</INF> NAAQS, as shown in Table 6. With respect
to one year's worth of progress, these reductions would exceed one
year's worth of progress for direct PM<INF>2.5</INF> and provide a
portion of one year's worth of progress for NO<INF>X</INF> for all
three PM<INF>2.5</INF> NAAQS, as shown in Table 6.
Taking into account the substitution principle, under which, in
this case, excess direct PM<INF>2.5</INF> emissions are substituted for
a shortfall in NO<INF>X</INF> emissions, the reductions would amount to
100% of one year's worth of RFP for direct PM<INF>2.5</INF> and the
following amounts of one year's worth of RFP for NO<INF>X</INF> by
NAAQS: 1997 annual PM<INF>2.5</INF> NAAQS (9.7%), 2006 24-hour
PM<INF>2.5</INF> NAAQS (0.6%), and 2012 annual PM<INF>2.5</INF> NAAQS
(9.6%). Similarly, the reductions would amount to 100% of one year's
worth of progress for direct PM<INF>2.5</INF> and the following amounts
of one year's worth of progress for by NAAQS: 1997 annual
PM<INF>2.5</INF> NAAQS (24.5%), 2006 24-hour PM<INF>2.5</INF> NAAQS
(3.9%), and 2012 annual PM<INF>2.5</INF> NAAQS (20.4%).
In the preamble to the PM<INF>2.5</INF> SIP Requirements Rule and
the EPA's Draft Revised Contingency Measures Guidance, we have stated
that, in those instances where a state is unable to identify
contingency measures for a given nonattainment area that would provide
approximately one year's worth of emissions reductions, the state
should provide a reasoned justification why the smaller amount of
emissions reductions is appropriate. For this proposed contingency
measure FIP, we have evaluated a broad range of source categories and a
broad range of potential emission controls in order to identify
possible contingency measures. As a result of that analysis, we are
proposing the two specific contingency measures described in sections
III.C and III.D of this proposed rule. The proposed contingency
measures in this FIP would not provide for one year's worth of
emissions reductions measured by the longstanding RFP method or the new
progress method, and we are therefore providing a reasoned
justification for proposing contingency measures that will achieve less
than the amount of emission reductions that the EPA normally
recommends.
The justification is based on the EPA's determination that we are
unable to identify and adopt feasible contingency
[[Page 53446]]
measures that provide the recommended one year's worth of emission
reductions. While the EPA notes that CAA section 172(c)(9) and section
182(c)(9) do not explicitly provide for consideration of whether
specific measures are feasible, the Agency believes that it is
reasonable to infer that the statute does not require control measures
regardless of any technological or cost constraints whatsoever. It is
more reasonable to interpret the contingency measure requirement not to
require air agencies to adopt and impose infeasible measures. The
statutory provisions applicable to other nonattainment area plan
control measure requirements, including RACM/RACT (for ozone and PM),
BACM/BACT (for PM), and most stringent measures (for PM), allow air
agencies to exclude certain control measures that are deemed
unreasonable or infeasible (depending on the requirement). For example,
the most stringent measures provision in CAA section 188(e) requires
plans to include ``the most stringent measures that are included in the
implementation plan of any state or are achieved in practice in any
state, and can feasibly be implemented in the area.'' The EPA considers
it reasonable to conclude that Congress similarly did not expect air
agencies to satisfy the contingency measure requirement with infeasible
measures. Thus, the EPA anticipates that a demonstrated lack of
feasible measures would be a reasoned justification for adopting
contingency measures that only achieve a lesser amount of emission
reductions.
When promulgating a FIP, the EPA is ``standing in the shoes'' of
the state to meet a SIP requirement that the state has thus far not
fulfilled. Accordingly, the EPA considers it appropriate to interpret
the requirements of section 172(c)(9) in the same fashion in the
context of a FIP. Thus, when the EPA evaluates control measures for
adoption as potential contingency measures, it is reasonable for the
Agency to consider such factors as technological and economic
feasibility. Even a control measure that may theoretically be available
as a contingency measure, and otherwise meet other legal parameters for
a contingency measure, may nonetheless be so technologically or
economically infeasible as to render it unviable as a contingency
measure. Thus, with a reasoned justification establishing that there
are no additional feasible measures, it is appropriate for the Agency
to promulgate a FIP for contingency measures that might result in less
than the recommended amount of emission reductions.
To further explain the basis for the EPA's determination that it is
unable to identify and adopt additional feasible contingency measures
that would achieve one years' worth of RFP or progress reductions, we
have prepared a detailed evaluation of source categories and measures
that we considered as potential additional contingency measures but
determined to be infeasible or otherwise unsuitable for contingency
measures and therefore did not include in the proposed FIP. This
evaluation is presented in the Reasoned Justification TSD (for measures
not included in this proposed contingency measures FIP). See, for
example, our evaluation for commercial charbroiling, almond harvesting,
light-duty vehicles, and large boilers, steam generators, and process
heaters.
IV. Environmental Justice Considerations
Executive Order 12898 (59 FR 7629, February 16, 1994) requires that
federal agencies, to the greatest extent practicable and permitted by
law, identify and address disproportionately high and adverse human
health or environmental effects of their actions on minority and low-
income populations. Additionally, Executive Order 13985 (86 FR 7009,
January 25, 2021) directs federal government agencies to assess
whether, and to what extent, their programs and policies perpetuate
systemic barriers to opportunities and benefits for people of color and
other underserved groups, and Executive Order 14008 (86 FR 7619,
February 1, 2021) directs federal agencies to develop programs,
policies, and activities to address the disproportionate health,
environmental, economic, and climate impacts on disadvantaged
communities.
To identify environmental burdens and susceptible populations in
underserved communities in the San Joaquin Valley nonattainment area
and to better understand the context of our proposed FIP on these
communities, we conducted a screening-level analysis for
PM<INF>2.5</INF> in the San Joaquin Valley using the EPA's
environmental justice (EJ) screening and mapping tool
(``EJSCREEN'').\99\ The results of this analysis are being provided for
informational and transparency purposes.
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\99\ EJSCREEN provides a nationally consistent dataset and
approach for combining environmental and demographic indicators.
EJSCREEN is available at: <a href="https://www.epa.gov/ejscreen/what-ejscreen">https://www.epa.gov/ejscreen/what-ejscreen</a>. The EPA used EJSCREEN to obtain environmental and
demographic indicators representing each of the eight counties in
the San Joaquin Valley. We note that the indicators for Kern County
are for the entire county. While the indicators might have slightly
different numbers for the San Joaquin Valley portion of the county,
most of the county's population is in the San Joaquin Valley
portion, and thus the differences would be small. These indicators
are included in EJSCREEN reports that are available in the
rulemaking docket for this action.
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Our screening-level analysis indicates that all eight counties in
the San Joaquin Valley score above the national average for the
EJSCREEN ``Demographic Index'' (i.e., ranging from 48% in Stanislaus
County to 61% in Tulare County, compared to 36%
nationally).<SUP>100 101</SUP> The Demographic Index is the average of
an area's percent minority and percent low income populations, i.e.,
the two populations explicitly named in Executive Order 12898.\102\ All
eight counties also score above the national average for demographic
indices of ``linguistically isolated population'' and ``population with
less than high school education.''
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\100\ EPA Region IX, ``EJSCREEN Analysis for the Eight Counties
of the San Joaquin Valley Nonattainment Area,'' August 2022.
\101\ By comparison, the eight counties score above the State
average for the EJSCREEN ``Demographic Index'' (i.e., ranging from
52% in Stanislaus County to 71% in Tulare County, compared to 47% in
California).
\102\ EJSCREEN reports environmental indicators (e.g., air
toxics cancer risk, Pb paint exposure, and traffic proximity and
volume) and demographic indicators (e.g., people of color, low
income, and linguistically isolated populations). The score for a
particular indicator measures how the community of interest compares
with the state, the EPA region, or the national average. For
example, if a given location is at the 95th percentile nationwide,
this means that only five percent of the U.S. population has a
higher value than the average person in the location being analyzed.
EJSCREEN also reports EJ indexes, which are combinations of a single
environmental indicator with the EJSCREEN Demographic Index. For
additional information about environmental and demographic
indicators and EJ indexes reported by EJSCREEN, see EPA, ``EJSCREEN
Environmental Justice Mapping and Screening Tool--EJSCREEN Technical
Documentation,'' section 2 (September 2019).
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With respect to pollution, all eight counties score at or above the
97th percentile nationally for the PM<INF>2.5</INF> index and seven of
the eight counties in the San Joaquin Valley score at or above the 90th
percentile nationally for the PM<INF>2.5</INF> EJ index, which is a
combination of the Demographic Index and the PM<INF>2.5</INF>
index.\103\ Most counties also scored above the 80th percentile for
each of 11 additional EJ indices included in the EPA's EJSCREEN
analysis. In addition, several counties scored above the 90th
percentile for certain EJ indices, including, for example, the Ozone EJ
Index (Fresno, Kern, Madera, Merced,
[[Page 53447]]
and Tulare counties), the National Air Toxics Assessment (NATA)
Respiratory Hazard EJ Index (Madera and Tulare counties), and the
Wastewater Discharge Indicator EJ Index (Merced, San Joaquin,
Stanislaus, and Tulare counties).\104\
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\103\ By comparison, two counties score at or above the 97th
percentile in California for the PM<INF>2.5</INF> index and five
counties score at or above the 80th percentile in California for the
PM<INF>2.5</INF> EJ index (rather than seven of eight counties that
score at or above the 90th percentile nationally).
\104\ Notably, Tulare County scores above the 90th percentile on
six of the 12 EJ indices in the EPA's EJSCREEN analysis, including
the PM<INF>2.5</INF> EJ Index, which is the highest count among all
San Joaquin Valley counties.
---------------------------------------------------------------------------
As discussed in the EPA's EJ technical guidance, people of color
and low-income populations, such as those in the San Joaquin Valley,
often experience greater exposure and disease burdens than the general
population, which can increase their susceptibility to adverse health
effects from environmental stressors.\105\ Underserved communities may
have a compromised ability to cope with or recover from such exposures
due to a range of physical, chemical, biological, social, and cultural
factors.\106\ The EPA is committed to environmental justice for all
people, and we acknowledge that the San Joaquin Valley nonattainment
area includes minority and low income populations that are subject to
higher levels of PM<INF>2.5</INF> and other pollution relative to State
and national averages, and that such concerns could be affected by this
action.
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\105\ EPA, ``Technical Guidance for Assessing Environmental
Justice in Regulatory Analysis,'' June 2016, section 4.
\106\ Id. at section 4.1.
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Regarding the specific contingency measures proposed herein, we
have considered the geographic scope of each proposed contingency
measure on PM<INF>2.5</INF> concentrations in each county of the San
Joaquin Valley, as well as other environmental considerations that
pertain to applicable pollutant (i.e., combustion PM<INF>2.5</INF>,
dust PM<INF>2.5</INF>, or NO<INF>X</INF>) and the applicable source
category or categories.
For residential wood burning, our proposed contingency measure
would lower the No Burn (i.e., curtailment) thresholds for the five
non-hot spot counties (Kings, Merced, San Joaquin, Stanislaus, and
Tulare counties) to match the tighter No Burn thresholds for the three
hot spot counties (Fresno, Madera, and Kern counties). A prominent
effect of this change would be to provide similar protections to people
in the two southern-most non-hot spot counties that record among the
highest year-to-year PM<INF>2.5</INF> design values in the San Joaquin
Valley (i.e., Kings County, including Corcoran and Hanford monitoring
sites, and Tulare County, including Visalia monitoring site).\107\ Were
No Burn days to be called in Kings or Tulare County according to the
more stringent thresholds, we also anticipate there would be smaller
but still beneficial effect in the adjacent Fresno or Kern counties,
depending on the meteorology of the day.
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\107\ For example, the certified 2020-2022 PM<INF>2.5</INF>
design value for Visalia (AQS Site ID 061072003) is 18.4 [micro]g/
m\3\ for the 2012 annual PM<INF>2.5</INF> NAAQS and 65 [micro]g/m\3\
for the 2006 24-hour PM<INF>2.5</INF> NAAQS. EPA design value
workbook dated May 23, 2023,
``PM25_DesignValues_2020_2022_FINAL_05_23_23.xlsx,'' worksheets
``Table5a. Site Status Ann'' and ``Table5b.Site Status 24hr.'' The
certified design value includes all available data; no data flagged
for exceptional events have been excluded. The EPA's Air Quality
System (AQS) contains ambient air pollution data collected by
federal, state, local, and tribal air pollution control agencies
from thousands of monitors. More information is available at:
<a href="https://www.epa.gov/aqs">https://www.epa.gov/aqs</a>.
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Where these direct PM<INF>2.5</INF> emission reductions from
combustion occur, we also note that they do not require further
chemical transformation in the atmosphere to form PM<INF>2.5</INF>
(i.e., the benefit is immediate) and, as they include fine particulate
matter under one micron and toxic air chemicals, the reduction of such
sub-micron particles would similarly reduce exposure of all residents
in these areas, including minority and low-income populations to these
environmental stressors. These reductions would also specifically
reduce emissions on the winter days with the highest ambient
PM<INF>2.5</INF> levels. We also note that environmental and community
groups have recommended several measures to reduce direct
PM<INF>2.5</INF> emissions from residential wood burning, including a
recommendation that requirements apply District-wide, rather than
distinguishing between hot spot and non-hot spot counties.\108\ The
proposed measure, if triggered, would align all counties to the tighter
No Burn thresholds of the hot spot counties.
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\108\ Letter dated May 18, 2022, from Tom Frantz, Association of
Irritated Residents, et al., to Michael S. Regan, EPA Administrator,
May 18, 2022, Attachment A, Attachment, 2; Attachment B, 2, 7; and
Attachment C, 2, 16-17, 38-48, and 69.
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For open areas, the proposed contingency measure, if triggered,
would lower the applicability threshold for the rural open area
requirements of Rule 8051 (i.e., for parcels having at least 1,000
square feet of disturbed soil) from 3.0 acres to 1.0 acre. Based on our
analysis of land use to date, such rural open areas are found in all
counties of the San Joaquin Valley, though with some variation from
county to county consistent with overall land use types (e.g., San
Joaquin County has the smallest proportion of rural open areas, while
Madera County has the highest proportion of rural open areas).
Furthermore, there is variation in the number of rural open areas that
would be newly subject to the rule, i.e., those between 1.0 to 3.0
acres in size (e.g., Kern County has the most total rural open area
acreage from parcels between 1.0 to 3.0 acres in size, while Tulare
County has the least). Given the overall land use and emission factors,
as discussed further in the EPA's Proposed Contingency Measures TSD,
and assuming roughly equal levels of activity in each county (i.e.,
soil disturbances over 1,000 square feet), we anticipate that the
proposed contingency measure would provide air quality benefits in all
counties of the San Joaquin Valley, with most air quality benefits
occuring in Fresno, Kern, Kings and Madera counties.
Given that Rule 8051 for open areas was originally introduced as a
PM<INF>10</INF> control measure, we anticipate that the proposed
measure would provide co-benefits to limiting PM<INF>10</INF> levels in
the San Joaquin Valley, with the same geographical distribution as
discussed herein for direct PM<INF>2.5</INF> emission reductions.\109\
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\109\ We also note that environmental and community groups have
recommended that fugitive dust sources in the San Joaquin Valley be
subject to specific requirements rather than having the option to
select from a menu of control requirements in Rule 8011 (where the
definition for open areas is found). Letter dated May 18, 2022, from
Tom Frantz, Association of Irritated Residents, et al., to Michael
S. Regan, EPA Administrator, Attachment B, 7. The proposed measure
would not alter the existing structure but rather tighten the
applicability threshold for rural open areas.
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V. Proposed Action and Request for Public Comment
The EPA is proposing to promulgate a FIP under CAA section 110(c)
intended to meet the CAA section 172(c)(9) requirements for contingency
measures for purposes of the 1997 annual PM<INF>2.5</INF> NAAQS, the
2006 24-hour PM<INF>2.5</INF> NAAQS, and the 2012 annual
PM<INF>2.5</INF> NAAQS (Moderate area requirements only) for the San
Joaquin Valley PM<INF>2.5</INF> nonattainment area. The contingency
measures would apply to residential wood burning heaters and fireplaces
and rural open areas. Unless and until replaced through the EPA's
approval of a contingency measure SIP submission, the proposed FIP, if
finalized, would be implemented by the EPA, or by the State or District
if the EPA delegates that authority to the State or District.
We will accept comments from the public on these proposals for the
next 45 days. The deadline and instructions for submission of comments
are provided in the DATES and ADDRESSES sections at the beginning of
this proposed rule.
[[Page 53448]]
VI. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
This is not a significant regulatory action subject to review by
the Office of Management and Budget under Executive Orders 12866 (58 FR
51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023).
B. Paperwork Reduction Act
The information collection activities in this proposed rule have
been submitted to the Office of Management and Budget (OMB) for
approval under the PRA. The Information Collection Request (ICR)
document that the EPA has prepared has been assigned EPA ICR number
2782.01. You can find a copy of the ICR in the docket for this rule,
and it is briefly summarized here.
This ICR covers information collection requirements in a CAA FIP
for contingency measures for the 1997 annual, 2006 24-hour, and 2012
annual fine particulate matter (PM<INF>2.5</INF>) national ambient air
quality standards (NAAQS) in the San Joaquin Valley PM<INF>2.5</INF>
nonattainment area in California (40 CFR part 52, subpart F, Sec.
52.249), herein referred to as the SJV FIP.
The EPA's proposed FIP will include provisions to lower the
existing applicability threshold of District Rule 8051 for rural areas
from 3.0 acres or larger with at least 1,000 square feet of disturbed
surface area to 1.0 acres or larger with the same square footage of
disturbed surface area. If this FIP contingency measure is enacted and
triggered, dust minimization control measures and recordkeeping and
annual reporting would be required for the newly regulated parcels when
owners or operators disturb the surface of the applicable rural open
areas. In general, such owners or operators will be required to
maintain records of rule compliance consistent with the requirements
applicable to those owners or operators already subject to the rule,
with two additional requirements. First, the EPA would add a
requirement that owners and operators of rural open areas newly subject
to the requirements of Rule 8051 pursuant to this FIP use two existing
District forms for such recordkeeping, which the EPA intends to adapt
for use in connection with this proposed FIP contingency measure.
Second, while the EPA generally would apply the same record retention
requirements found in the District rule to newly subject owners and
operators--i.e., the requirement to maintain records for one year
following project completion, except for owners/operators subject to
Rule 2520, who must retain records for five years--the EPA would also
add a requirement that the owners and operators of rural open areas who
perform such recordkeeping pursuant to the FIP contingency measure
submit copies of the records prepared during a calendar year to the EPA
by March 31st of the following year. These records and reports are
essential in determining compliance and are required of all sources
subject to this proposed FIP that disturb the surface of applicable
rural open areas.
Respondents/affected entities: Potential respondents are owners or
operators of open area parcels that range in size of at least 1.0 acre
but less than 3.0 acres and which contain at least 1,000 square feet of
disturbed surface area in the San Joaquin Valley PM<INF>2.5</INF>
nonattainment area.
Respondents' obligation to respond: Mandatory (CAA sections 110 and
114(a)).
Estimated number of respondents: 3,546.
Frequency of response: An annual report is required for any year in
which an owner or operator's rural open area parcel triggers the FIP's
open area dust control requirements. Records showing adherence to such
requirements must be maintained for one year, or for five years for
certain sources, when the control requirements are triggered.
Total estimated burden: 3,546 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
Total estimated cost: $360,923 (per year), includes $0 in
annualized capital or operation & maintenance costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden using the docket identified at the
beginning of this rule. The EPA will respond to any ICR-related
comments in the final rule. You may also send your ICR-related comments
to OMB's Office of Information and Regulatory Affairs using the
interface at <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>. Find this
particular information collection by selecting ``Currently under
Review--Open for Public Comments'' or by using the search function. OMB
must receive comments no later than September 7, 2023.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
proposed rule includes two separate contingency measures: one
applicable to residential wood burning heaters and fireplaces and one
applicable to rural open areas. The proposed residential wood burning
measure primarily applies to private residents, which do not qualify as
small entities, but also applies to businesses, such as restaurants and
hotels, some of which constitute ``small entities.'' However, the
proposed measure is not expected to impose any additional costs because
any increase in heating costs during additional curtailment days would
be offset by savings on purchases of seasoned wood or pellets, which
these entities would otherwise be allowed to burn.\110\
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\110\ June 2023 Contingency Measure SIP Submission, App. D
(``Economic Analysis for Rule 4901''), D-3.
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The ``small entities'' subject to the requirements of the rural
open areas measure are those that are owners/operators of residential
and commercial lots in rural areas with open areas (i.e., vacant
portions of residential or commercial lots and contiguous parcels) of
1.0 acre or more and less than 3.0 acres in the San Joaquin Valley, and
which contain at least 1,000 square feet of disturbed surface area, as
defined in District Rule 8011, section 3.36. These ``small entities''
may include industrial entities such as construction, oilfield,
equipment and vehicle storage, and truck stop owners/operators, as
identified in the District's ``Regulation VIII Recordkeeping Reporting
Forms'' (revised June 1, 2009), as well as other residential,
industrial, institutional, governmental, or commercial lot owners/
operators. To identify the small entities for these industries, the EPA
identified North American Industry Classification System (NAICS) codes,
the applicable small entity thresholds (based on the U.S. Small
Business Administration's table of small business size standards), and
then compared the cost of the proposed rural open areas measure against
average annual receipts data available from the Census Bureau's
Statistics of U.S. Businesses for 2017 (the latest year for which
annual receipts are listed by NAICS). The
[[Page 53449]]
Agency has determined that, while most potentially affected entities in
these industries are small, such entities in the San Joaquin Valley may
experience an impact of 0% to 0.58% of annual revenues (i.e., not a
significant impact). Details of this analysis are presented in section
III.F of the EPA's Proposed Contingency Measures TSD.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local, or tribal governments. To the extent that the contingency
measures of this proposed rule, if triggered, would impose costs on the
private sector, they would collectively be less than the $100 million
expenditure threshold identified in 2 U.S.C. 1532(a).
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, because this proposed rule would not apply on
any Indian reservation land or in any other area where the EPA or an
Indian tribe has demonstrated that a tribe has jurisdiction, and will
not impose substantial direct costs on tribal governments or preempt
tribal law. Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to
any rule that: (1) is determined to be economically significant as
defined under Executive Order 12866; and (2) concerns an environmental
health or safety risk that we have reason to believe may have a
disproportionate effect on children. The EPA interprets Executive Order
13045 as applying only to those regulatory actions that concern health
or safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it is not
economically significant under Executive Order 12866 and because it
implements specific standards established by Congress in statutes.
However, to the extent this proposed rule will reduce emissions of
direct PM<INF>2.5</INF> or NO<INF>X</INF> (as a PM<INF>2.5</INF>
precursor), the rule will have a beneficial effect on children's health
by reducing air pollution.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001), because it is not a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
Executive Order 12898 (59 FR 7629 (February 16, 1994)) directs
Federal agencies to identify and address ``disproportionately high and
adverse human health or environmental effects'' of their actions on
minority populations and low-income populations to the greatest extent
practicable and permitted by law. The EPA defines environmental justice
(EJ) as ``the fair treatment and meaningful involvement of all people
regardless of race, color, national origin, or income with respect to
the development, implementation, and enforcement of environmental laws,
regulations, and policies.'' The EPA further defines the term fair
treatment to mean that ``no group of people should bear a
disproportionate burden of environmental harms and risks, including
those resulting from the negative environmental consequences of
industrial, governmental, and commercial operations or programs and
policies.'' Consistent with the EPA's discretion under the CAA, the EPA
has evaluated the environmental justice considerations of this action,
as is described in section IV (``Environmental Justice
Considerations'') of this proposed rule. The analysis was done for the
purpose of providing additional context and information about this
rulemaking to the public, not as a basis of the action. Due to the
nature of the action being proposed, this proposed action is expected
to have a neutral to positive impact on the air quality of the San
Joaquin Valley. In addition, the information in the record is
sufficient to support the stated goal of Executive Order 12898 of
achieving environmental justice for people of color, low-income
populations, and Indigenous peoples.
List of Subjects 40 CFR Part 52
Environmental protection, Air pollution control, Ammonia,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Particulate matter, Reporting and recordkeeping requirements,
Sulfur dioxide, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, part 52 of title 40 of the
Code of Federal Regulations is proposed to be amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
0
2. Section 52.249 is added to read as follows:
Sec. 52.249 Contingency measures--San Joaquin Valley Air Basin.
(a) The requirements of section 172(c)(9) of the Clean Air Act and
40 CFR 51.1014 are not met in the San Joaquin Valley Air Basin for the
1997 Annual PM<INF>2.5</INF> NAAQS, the 2006 24-hour PM<INF>2.5</INF>
NAAQS, and the 2012 annual PM<INF>2.5</INF> NAAQS.
(1) Triggers for implementation of contingency measures. The
provisions in paragraphs (a)(2) and (3) of this section shall apply 60
days after the effective date of a final EPA determination under 40 CFR
51.1014(a) for the 1997 Annual PM<INF>2.5</INF> NAAQS, the 2006 24-hour
PM<INF>2.5</INF> NAAQS, or the 2012 annual PM<INF>2.5</INF> NAAQS.
(2) Wood burning fireplaces and wood burning heaters. The
requirements of Sec. 52.220(c)(535)(i)(A)(1) shall apply except as
provided in paragraphs (a)(2)(i), (ii) and (iii) of this section.
(i) The episodic wood burning curtailment provisions of Paragraphs
5.7.1.2 and 5.7.2.2 shall apply throughout the entire jurisdiction of
the San Joaquin Valley Unified Air Pollution Control District.
[[Page 53450]]
(ii) The episodic wood burning curtailment provisions in Paragraphs
5.7.1.1 and 5.7.2.1 are deleted.
(iii) The EPA shall notify the public of each episodic wood burning
curtailment required pursuant to this paragraph (a)(2) of this section
by any of the following methods:
(A) Provide notice to newspapers of general circulation within the
San Joaquin Valley.
(B) Broadcast of messages presented by radio or television stations
operating in the San Joaquin Valley.
(C) A recorded telephone message for which the telephone number is
published.
(D) Messages posted on the EPA's website.
(E) Any other method as the EPA determines is appropriate.
(3) Rural open areas dust. The requirements of Sec.
52.220(c)(334)(i)(B)(2) shall apply except as provided in paragraphs
(a)(3)(i) and (ii) of this section.
(i) The Applicability provision in Paragraph 2.0 is revised to the
following:
This rule applies to any open area having 0.5 acres or more within
urban areas, or 1.0 acres or more within rural areas; and contains at
least 1,000 square feet of disturbed surface area.
(ii) The Recordkeeping provision in Paragraph 6.2 is revised to the
following:
An owner/operator shall comply with the recordkeeping requirements
of Sec. 52.220(c)(334)(i)(B)(2), except that owners/operators of open
areas of 1.0 acres or more to less than 3.0 acres within rural areas
shall use forms made available by the EPA and shall submit copies of
the forms prepared during a calendar year to the EPA by March 31st of
the following year.
(iii) Records that are required to be submitted under this rule
must be sent to: U.S. EPA Region IX, Rules Section Manager, Air and
Radiation Division (Air-3-2), 75 Hawthorne Street, San Francisco, CA
94105.
(b) In the event that paragraphs (a)(2) and (3) of this section are
triggered, and within one year of the triggering of paragraphs (a)(2)
and (3) of this section, the Administrator shall undertake rulemaking
to promulgate any contingency measures that are determined to be
appropriate for the EPA and needed to meet the contingency measure
requirement for the 1997 annual PM<INF>2.5</INF> NAAQS, the 2006 24-
hour PM<INF>2.5</INF> NAAQS, or the 2012 annual PM<INF>2.5</INF> NAAQS
in the San Joaquin Valley.
(c) This section shall not apply on any Indian reservation land or
in any other area where the EPA or an Indian tribe has demonstrated
that a tribe has jurisdiction.
(d) The Administrator may delegate the authority to implement the
measures in paragraph (a)(2) or (3) of this section to the San Joaquin
Valley Unified Air Pollution Control District or to the California Air
Resources Board. Nothing in this paragraph shall prevent the
Administrator from implementing or enforcing the measures in paragraphs
(a)(2) and (3) of this section.
[FR Doc. 2023-16748 Filed 8-7-23; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.