Rule2024-22681
Clean Air Plans; Contingency Measures for the Fine Particulate Matter Standards; San Joaquin Valley, California
Primary source
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Published
October 4, 2024
Effective
November 4, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is taking final action to approve two state implementation plan (SIP) submissions under the Clean Air Act (CAA) that address the contingency measure requirements for the 1997 annual, 2006 24-hour, and 2012 annual 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 in California. The two SIP submissions include the area's contingency measure plan element and two specific contingency measures that would apply to residential wood burning heaters and fireplaces and to non-agricultural, rural open areas. A third contingency measure, applicable to light-duty on-road motor vehicles, has been approved into the California SIP in a separate action by the EPA, and the related emission reductions from the third measure are accounted for in this final rule. The EPA is finalizing approval of the SIP submissions because the Agency has determined that they are in accordance with the applicable requirements for such SIP submissions under the CAA and the EPA's implementing regulations for the PM<INF>2.5</INF> NAAQS.
Full Text
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<title>Federal Register, Volume 89 Issue 193 (Friday, October 4, 2024)</title>
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[Federal Register Volume 89, Number 193 (Friday, October 4, 2024)]
[Rules and Regulations]
[Pages 80749-80766]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-22681]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2023-0477; FRL-11532-03-R9]
Clean Air Plans; Contingency Measures for the Fine Particulate
Matter Standards; San Joaquin Valley, California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve two state implementation plan (SIP) submissions under
the Clean Air Act (CAA) that address the contingency measure
requirements for the 1997 annual, 2006 24-hour, and 2012 annual 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 in California. The two SIP
submissions include the area's contingency measure plan element and two
specific contingency measures that would apply to residential wood
burning heaters and fireplaces and to non-agricultural, rural open
areas. A third contingency measure, applicable to light-duty on-road
motor vehicles, has been approved into the California SIP in a separate
action by the EPA, and the related emission reductions from the third
measure are accounted for in this final rule. The EPA is finalizing
approval of the SIP submissions because the Agency has determined that
they are in accordance with the applicable requirements for such SIP
submissions under the CAA and the EPA's implementing regulations for
the PM<INF>2.5</INF> NAAQS.
DATES: This rule is effective November 4, 2024.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2023-0477. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are
[[Page 80750]]
available through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section for
additional availability information. If you need assistance in a
language other than English or if you are a person with a disability
who needs a reasonable accommodation at no cost to you, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Rory Mays, Planning and Analysis
Branch (AIR-2), Air and Radiation Division, EPA Region IX, 75 Hawthorne
St., San Francisco, CA 94105; phone: (415) 972-3227; email:
<a href="/cdn-cgi/l/email-protection#e489859d97ca968b969da4819485ca838b92"><span class="__cf_email__" data-cfemail="c0ada1b9b3eeb2afb2b980a5b0a1eea7afb6">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.
Table of Contents
I. Background
A. Proposed Action
B. Changes to Proposed Action
II. Public Comments and EPA Responses
III. Environmental Justice Considerations
IV. EPA Action
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. Background
A. Proposed Action
On December 20, 2023 (88 Federal Register (FR) 87988), the EPA
proposed to approve California's contingency measure SIP submissions
for the 1997 annual, 2006 24-hour, and 2012 annual PM<INF>2.5</INF>
NAAQS submitted by the California Air Resources Board (CARB) for the
San Joaquin Valley nonattainment area in California. Specifically, the
SIP submissions include the ``PM<INF>2.5</INF> Contingency Measure
State Implementation Plan Revision (May 18, 2023)'' (herein referred to
as the ``SJV PM<INF>2.5</INF> Contingency Measure SIP''), revisions to
San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD or
``District'') Rule 4901 (amended May 18, 2023) \1\ that add
PM<INF>2.5</INF> NAAQS contingency provisions that we refer to herein
as the ``Residential Wood Burning Contingency Measure,'' and revisions
to Rule 8051 (amended September 21, 2023) \2\ that add PM<INF>2.5</INF>
NAAQS contingency provisions that we refer to herein as the ``Rural
Open Areas Contingency Measure.'' CARB submitted the SJV
PM<INF>2.5</INF> Contingency Measure SIP and the Residential Wood
Burning Contingency Measure on June 8, 2023,\3\ and the Rural Open
Areas Contingency Measure on October 16, 2023,\4\ as revisions to the
California SIP.
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\1\ SJVUAPCD Rule 4901 is titled ``Wood Burning Fireplaces and
Wood Burning Heaters.''
\2\ SJVUAPCD Rule 8051 is titled ``Open Areas.''
\3\ CARB adopted the SJV PM<INF>2.5</INF> Contingency Measure
SIP and Residential Wood Burning Contingency Measure as SIP
revisions on June 7, 2023, through Executive Order S-23-010 and
submitted the SIP revisions to the EPA electronically on June 8,
2023, as attachments to a letter dated June 7, 2023, from Steven S.
Cliff, Ph.D., Executive Officer, CARB to Martha Guzman, Regional
Administrator, EPA Region IX.
\4\ CARB adopted the Rural Open Areas Contingency Measure as a
SIP revision on October 13, 2023, through Executive Order S-23-014
and submitted the SIP revision to the EPA electronically on October
16, 2023, as an attachment to a letter dated October 13, 2023, from
Steven S. Cliff, Ph.D., Executive Officer, CARB to Martha Guzman,
Regional Administrator, EPA Region IX.
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In addition, in a separate proposed rule also published on December
20, 2023, the EPA proposed approval of a third contingency measure,
applicable to light-duty on-road motor vehicles, and the related
emission reductions from the third measure are accounted for in this
final rule.\5\ We refer to the third contingency measure as the ``Smog
Check Contingency Measure.''
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\5\ 88 FR 87981 (December 20, 2023). We note that the EPA
finalized approval of the Smog Check Contingency Measure. 89 FR
56222 (July 9, 2024).
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We proposed to approve the SJV PM<INF>2.5</INF> Contingency Measure
SIP, the Residential Wood Burning Contingency Measure, and the Rural
Open Areas Contingency Measure because we determined that they, along
with emission reductions from the Smog Check Contingency Measure,
comply with the contingency measure SIP requirements of CAA section
172(c)(9) and EPA's implementing regulations at 40 CFR 51.1014. We
collectively refer herein to CARB's contingency measure SIP submissions
for the 1997 annual, 2006 24-hour, and 2012 annual PM<INF>2.5</INF>
NAAQS for the San Joaquin Valley as the State's ``2023 SIP
Submissions.''
In sections I and II of the proposed rule, we presented background
information on the 1997 annual and 24-hour, the 2006 24-hour and 2012
annual PM<INF>2.5</INF> NAAQS, the nonattainment designations and
classifications of the San Joaquin Valley for these PM<INF>2.5</INF>
NAAQS, and the resultant contingency measure SIP obligations;
summarized our prior PM<INF>2.5</INF> contingency measure findings of
failure to submit \6\ and disapprovals for the San Joaquin Valley; \7\
described the SIP submissions at issue in this action; and provided the
basis for our preliminary conclusion that the SIP submissions met
applicable procedural requirements.\8\ In section III of the proposed
rule, we summarized the contingency measure SIP requirements under the
CAA and the EPA's implementing regulations, relevant EPA guidance, and
legal precedent, including a brief discussion of relevant decisions by
the Ninth Circuit Court of Appeals \9\ and the D.C. Circuit Court of
Appeals.\10\ \11\
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\6\ 83 FR 62720 (December 6, 2018). In response to our finding
of failure to submit, the EPA proposed a Federal Implementation Plan
(FIP) to address the contingency measure requirements for the 1997
annual, 2006 24-hour and 2012 annual PM<INF>2.5</INF> NAAQS at 88 FR
53431 (August 8, 2023).
\7\ 86 FR 67343 (November 26, 2021) and 86 FR 67329 (November
26, 2021).
\8\ 88 FR 87988, 87989-87993 (December 20, 2023).
\9\ Bahr v. EPA, 836 F.3d 1218, 1235-1237 (9th Cir. 2016) and
Assoc. of Irritated Residents v. EPA, 10 F.4th 937, 946-47 (9th Cir.
2021) (``AIR v. EPA'' or ``AIR'').
\10\ Sierra Club v. EPA, 21 F.4th 815, 827-828 (D.C. Cir. 2021).
\11\ 88 FR 87988, 87993-87994.
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In addition, we described the EPA's long-standing approach to
contingency measures and the EPA's revised approach for addressing the
contingency measure SIP requirements, as presented in the EPA's draft
guidance, 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.'' \12\ Two 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 \13\ and the timing for when the
emission reductions from the contingency measures should occur. The
Draft Revised Contingency Measure Guidance also provides recommended
procedures for developing a demonstration, if applicable, that the area
lacks sufficient feasible measures to achieve one year's worth (OYW) of
reductions, building on existing guidance that the state should provide
a reasoned justification for why the smaller amount of emission
reductions is appropriate.
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\12\ 88 FR 87988, 87994. See also, 88 FR 17571 (March 23, 2023)
(notice of availability of the EPA's Draft Revised Contingency
Measure Guidance).
\13\ The EPA's long-standing recommendation was that states
should adopt contingency measures sufficient to provide emission
reductions equivalent to one year's worth (OYW) of reasonable
further progress (RFP). In the Draft Revised Contingency Measure
Guidance, the EPA recommends a different amount that contingency
measures should achieve--one that is defined in terms of OYW of
``progress'' rather than OYW of RFP.
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In section IV of the proposed rule, we described the two specific
District PM<INF>2.5</INF> contingency measures proposed for approval in
this action (i.e., the District's Residential Wood Burning
[[Page 80751]]
Contingency Measure and Rural Open Areas Contingency Measure) and
provided our evaluation of the measures relative to the requirements of
CAA section 172(c)(9) and 40 CFR 51.1014. In short, we preliminarily
concluded that the contingency measures met the requirements for such
measures because both measures are designed to be both prospective and
conditional, include appropriate triggering mechanisms for
requirements, and are structured to be implemented in a timely manner
without significant further action by the District, CARB, or the EPA
and to achieve the estimated emission reductions within roughly a year
or two of the triggering event.\14\ Furthermore, both requirements that
would be triggered are not required for any other CAA purpose, and the
emission reductions from the measures are not included in any
reasonable further progress (RFP) or attainment demonstration for the
PM<INF>2.5</INF> NAAQS in the San Joaquin Valley. For these reasons, we
proposed to approve District's Residential Wood Burning Contingency
Measure and Rural Open Areas Contingency Measure.\15\
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\14\ 88 FR 87988, 87995-87998.
\15\ Id.
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In section V of the proposed rule, we summarized how the District
and CARB had applied the revised approach to fulfilling the contingency
measure SIP requirement in the context of the PM<INF>2.5</INF> NAAQS in
the San Joaquin Valley, and we presented our evaluation thereof.\16\
Specifically, we discussed our evaluation of the District's and CARB's
identification and evaluation of potential control measures, adoption
of certain contingency measures, comparison of those contingency
measures against OYW of emission reductions, and reasoned justification
for not adopting further contingency measures, which we recap in the
following paragraphs.
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\16\ 88 FR 87988, 87999-88009.
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In the SJV PM<INF>2.5</INF> Contingency Measure SIP, the District
described its ongoing stationary source regulatory efforts, identified
potential control measures as candidate contingency measures, and
analyzed the technological and/or economic feasibility of each
candidate measure, including the feasibility of implementing such
measures within 60 days and achieving the resulting emission reductions
within one to two years of the triggering event.\17\ The District also
provided more in-depth analysis of potential control measures for five
source categories, ultimately adopting measures for two source
categories (wood burning fireplaces/heaters and rural open areas) and
providing a justification in the form of an infeasibility demonstration
for not adopting contingency measures for the other three source
categories (commercial charbroiling, almond harvesting, and oil and gas
production combustion equipment).
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\17\ SJV PM<INF>2.5</INF> Contingency Measure SIP, pp. 9-11.
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Similarly, CARB identified potential mobile source control
measures, assessed whether each candidate measure could be implemented
within 60 days of a triggering event and achieve emission reductions
within one to two years, and then analyzed their technological and/or
economic feasibility.\18\ Regarding timing of emission reductions from
mobile sources, CARB concluded that new engine standards and fleet
regulations are not appropriate for contingency measures given the time
needed for manufacturers to design, develop, and deploy cleaner engines
or equipment at scale, especially for zero-emission equipment.
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\18\ SJV PM<INF>2.5</INF> Contingency Measure SIP, section 5.3
(``Measure Analysis''); and Smog Check Contingency Measure, Appendix
A (``Infeasibility Analysis'').
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The District and CARB ultimately adopted three contingency measures
identified through their respective evaluation processes: the
Residential Wood Burning Contingency Measure, the Rural Open Areas
Contingency Measure, and the Smog Check Contingency Measure. Each of
these measures can be implemented without further action by the
District, CARB, or the EPA and achieve emission reductions within one
to two years of the triggering event, consistent with the contingency
measure requirements under CAA section 172(c)(9) and the EPA's
recommendations regarding timing in the Draft Revised Contingency
Measures Guidance.\19\ In addition, the revisions to SJVUAPCD Rule 4901
establishing the Residential Wood Burning Contingency Measure resolved
deficiencies identified in the EPA's disapproval of prior contingency
provisions in Rule 4901, thereby ensuring that the direct
PM<INF>2.5</INF> and NO<INF>X</INF> emission reductions will be
achieved, irrespective of which county may exceed the applicable
PM<INF>2.5</INF> NAAQS at the time of any finding of failure to attain
or other applicable determination.\20\
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\19\ Draft Revised Contingency Measures Guidance, pp. 40-42.
\20\ 88 FR 87988, 87996.
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The District then assessed how the emission reductions from the
Residential Wood Burning Contingency Measure would compare against OYW
of progress as defined in the Draft Revised Contingency Measure
Guidance. As part of our evaluation and for the proposed rule, we
prepared an independent assessment of the emission reductions to
include the two additional contingency measures that were adopted and
submitted after the submission of the SJV PM<INF>2.5</INF> Contingency
Measure SIP and to provide a comparison of the emission reductions
relative to OYW of progress to the long-standing recommendation of OYW
of RFP. In our proposed rule, we found that the combined 0.5873 tons
per day (tpd) of direct PM<INF>2.5</INF> emission reductions from the
District contingency measures (for residential wood burning and for
rural open areas) would exceed both OYW of RFP (0.44-0.58 tpd,
depending on the applicable PM<INF>2.5</INF> NAAQS) and OYW of progress
(0.41-0.52 tpd, depending on the applicable PM<INF>2.5</INF>
NAAQS).\21\
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\21\ 88 FR 87988, 88004-88005, Table 2 and Table 3. Note that
CARB did not estimate any direct PM<INF>2.5</INF> emission
reductions from implementation of the Smog Check Contingency
Measure.
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With respect to NO<INF>X</INF> emissions, the combined 0.1647-
0.1977 tpd emission reductions from all three contingency measures
would provide a portion of the reductions toward OYW of emission
reductions and, after consideration of interpollutant trading of excess
direct PM<INF>2.5</INF> emission reductions from the two District
contingency measures for equivalent NO<INF>X</INF> emission reductions,
would amount to 1.3 percent (%) to 6.3% of OYW of RFP or 8.8% to 15.7%
of OYW of progress for NO<INF>X</INF>.\22\
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\22\ 88 FR 87988, 88005.
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[[Page 80752]]
As the NO<INF>X</INF> emission reductions fall short of OYW of
progress, CARB and the District documented their control measure
analyses across the wide range of source categories under each agency's
respective jurisdiction (e.g., on-road sources, off-road sources,
stationary point sources, and area sources) for NO<INF>X</INF>
emissions. We described the District's and CARB's infeasibility
demonstrations, and our evaluation thereof, in detail and proposed that
they adequately justify the contingency measures selected by CARB and
the District for the 1997 annual, 2006 24-hour, and 2012 annual
PM<INF>2.5</INF> NAAQS in the San Joaquin Valley. In light of the three
adopted contingency measures and reasoned justifications for not
adopting additional contingency measures, we proposed to approve the
SJV PM<INF>2.5</INF> Contingency Measure SIP, the Residential Wood
Burning Contingency Measure, and the Rural Open Areas Contingency
Measure, taking into account the emission reductions from the Smog
Check Contingency Measure (as applied to the San Joaquin Valley), as
meeting the contingency measure requirements of CAA section 172(c)(9)
and 40 CFR 51.1014 for these PM<INF>2.5</INF> NAAQS in the San Joaquin
Valley.
See our December 20, 2023 proposed rule (88 FR 87988) for more
information on the SIP submissions and our evaluation thereof.
B. Changes to Proposed Action
In our proposed rule, we evaluated the SIP submissions for
compliance with contingency measure SIP requirements, in part, by
comparing the emission reductions from the contingency measures with
OYW of progress and OYW of RFP. In so doing, we relied on emissions
estimates for the three individual contingency measures--two (the
Residential Wood Burning Contingency Measure and the Rural Open Areas
Contingency Measure) that we proposed to approve in the proposed rule
(and that we are finalizing in this action) and one (the Smog Check
Contingency Measure) that we proposed to approve in a separate
action.\23\ In Table 2 of the proposed rule, we summarized the
estimated emission reductions from the contingency measures, and in
Table 3 of the proposed rule, we presented the estimated emission
reductions as percentages of OYW of RFP and OYW of progress both with
and without trading emission reductions between direct PM<INF>2.5</INF>
and NO<INF>X</INF>.
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\23\ We proposed to approve the Smog Check Contingency Measure
SIP at 88 FR 87981.
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In both of these tables in the proposed rule, we discounted the
emission reductions from implementation of the Smog Check Contingency
Measure by an amount calculated by CARB to reflect the effect of a
decrease in Moyer Program funding in the San Joaquin Valley if the Smog
Check Contingency Measure were triggered.\24\ However, in our final
rule approving the Smog Check Contingency Measure SIP, we indicated
that we agreed with comments challenging the discount that we had
applied and concluded that the discount was inappropriate due to timing
considerations.\25\ By no longer discounting the emission reductions
attributed to the Smog Check Contingency Measure, the estimates for
total emission reductions for implementation of all three contingency
measures are slightly greater than had been presented in the proposed
rule. The change in emissions estimates and percentages is minor and
does not change any of the preliminary conclusions that we made in
connection with our proposed action on the SJV PM<INF>2.5</INF>
Contingency Measure SIP. Nonetheless, in the interest of presenting the
most accurate information available, we are republishing Tables 2 and 3
to reflect the updated estimates of emission reductions from the Smog
Check Contingency Measure.
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\24\ The Carl Moyer Program distributes incentive grants to fund
the incremental cost of cleaner-than-required engines, equipment,
and other technology and is funded, in part, by abatement fees that
are assessed on vehicles exempted from Smog Check testing.
\25\ 89 FR 56222, 56225.
Table 2--Revised Annual Average Emission Reductions From District and CARB Contingency Measures
[tpd]
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1997 Annual PM2.5 NAAQS 2006 24-Hour PM2.5 NAAQS 2012 Annual PM2.5 NAAQS
Contingency measure -----------------------------------------------------------------------------
Direct Direct Direct
PM2.5 NOX PM2.5 NOX PM2.5 NOX
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District: Residential Wood Burning 0.5793 0.0817 0.5793 0.0817 0.5793 0.0817
(first triggering event).........
District: Non-agricultural Rural 0.008 ........... 0.008 ........... 0.008 ...........
Open Areas.......................
CARB: Smog Check (first triggering ........... 0.117 ........... 0.120 ........... 0.086
event)...........................
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Total......................... 0.5873 0.1987 0.5873 0.2017 0.5873 0.1677
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Table 3--Revised EPA Evaluation of District and CARB Contingency Measures as Percentage of One Year's Worth of RFP and One Year's Worth of Progress
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One year's worth of RFP One year's worth of progress
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PM2.5 NAAQS Pollutant Reductions % OYW (no % OYW (with Reductions % OYW (no % OYW (with
target trading) trading) \a\ target trading) trading) \a\
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1997 Annual.......................... Direct PM2.5........... 0.44 132 100 0.41 142 100
NOX.................... 16.7 1.2 6.3 7.9 2.5 \b\ 15.8
2006 24-hour......................... Direct PM2.5........... 0.58 101 100 0.52 112 100
NOX.................... 18.4 1.1 1.3 6.7 3.0 \b\ 8.9
2012 Annual.......................... Direct PM2.5........... 0.46 129 100 0.43 138 100
NOX.................... 15.3 1.1 6.3 8.7 1.9 13.1
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\a\ The EPA has calculated % OYW (With Trading) for NOX based on the 6:1 ratio presented in the SJV PM2.5 Contingency Measure SIP.
[[Page 80753]]
\b\ The percentage of OYW of Progress (With Trading) is 0.1% higher in this table for NOX for the 1997 annual and 2006 24-hour PM2.5 NAAQS relative to
Table 3 of our proposed rule.
II. Public Comments and EPA Responses
The EPA's proposed action provided a 30-day public comment period.
During this period, we received comment letters from three
organizations or groups. CARB submitted a letter supporting the EPA's
proposed approval.\26\ A group of four environmental, public health,
and community organizations (collectively referred to herein as
``Valley EJ Organizations'') submitted adverse comments,\27\ and a
separate group of five environmental, public health, and community
organizations (collectively referred to herein as ``CVAQ'') submitted
adverse comments.\28\ To the extent that certain comments by the Valley
EJ Organizations solely pertain to the Smog Check Contingency Measure
and the State's commitments to submit attainment contingency measures
for the 1997 ozone NAAQS, we have addressed those comments in a
separate final rule on the Smog Check Contingency Measure.\29\
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\26\ Letter dated January 17, 2024, from Steven S. Cliff,
Executive Officer, CARB, to Martha Guzman, Regional Administrator,
EPA Region IX.
\27\ Letter dated January 19, 2024, from Brent Newell, Attorney
for Central California Environmental Justice Network, Committee for
a Better Arvin, Medical Advocates for Healthy Air, and Healthy
Environment for All Lives, to Jeffrey Buss and Rory Mays, Air and
Radiation Division, EPA Region IX, including 16 exhibits (``Valley
EJ Organizations Comment Letter'').
\28\ Letter dated January 19, 2024, from Central Valley Air
Quality Coalition, National Parks Conservation Association, Little
Manila Rising, Valley Improvement Projects, and Leadership Counsel
for Justice and Accountability, to Rory Mays, Air and Radiation
Division, EPA Region IX (``CVAQ Comment Letter'').
\29\ 89 FR 56222, 56224-56229.
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Comment 1: The Valley EJ Organizations assert that the EPA's
proposed approval of the PM<INF>2.5</INF> contingency measures departs
from the EPA's long-standing interpretation requiring OYW of RFP. They
further state that the proposed approvals based on the Draft Revised
Contingency Measure Guidance violate CAA section 172(c)(9) by severing
the amount of required emission reductions from the parallel and
related RFP requirement when the EPA shifts from its OYW of RFP to its
new OYW of progress interpretation. The Valley EJ Organizations further
assert that the plain meaning does not allow, and the EPA cannot
provide a reasoned justification for, an interpretation that requires
less than that which the Act requires for RFP and that, here, the
PM<INF>2.5</INF> contingency measures plainly provide reductions far
less than OYW of RFP. The CVAQ Comment Letter echoes these points,
stating that the emission reductions from the Residential Wood Burning
Contingency Measure and the Rural Open Areas Contingency Measure would
``fall well short of the emission reductions needed to comply with the
weakened average annual reduction requirement in EPA's draft guidance
even when allowing for the interpollutant substitution of excess direct
PM<INF>2.5</INF> emissions for NO<INF>X</INF> emissions.'' \30\
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\30\ CVAQ Comment Letter, p. 2.
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Response to Comment 1: Regarding emission reduction metrics (i.e.,
the recommended amount of emission reductions that contingency measures
should achieve), we disagree with commenters as to what is required
under the CAA and with the commenters' broader framing of contingency
measures within the overall planning requirements for nonattainment
areas. While there is a statutory link between RFP and the contingency
measure requirements of CAA section 172(c)(9), it does not function as
the commenter suggests (i.e., to establish an amount of emission
reductions that contingency measures should achieve). The statutory
text of this provision is as follows:
CAA section 172(c)(9) (``Contingency measures'')--``Such plan
shall provide for the implementation of specific measures to be
undertaken if the area fails to make reasonable further progress, or
to attain the national primary ambient air quality standard by the
attainment date applicable under this part. Such measures shall be
included in the plan revision as contingency measures to take effect
in any such case without further action by the State or the
Administrator.''
Thus, while section 172(c)(9) requires contingency measures where
an area fails to make RFP, the language does not specify what amount of
emission reductions such measures should achieve (i.e., does not
explicitly tie the amount of reductions to RFP). Moreover, the
statutory text also has a link to attainment, but it too does not
specify what amount of emission reductions contingency measures should
achieve.
While Congress did not specify an amount that contingency measures
must achieve to comply with CAA section 172(c)(9), Congress must have
intended the amount to be material because, without a specified amount,
a state would not know how to comply with the requirement. Thus
Congress must have at least implicitly delegated to the EPA the
authority to determine an amount of emissions reductions that
contingency measures should achieve and thereby give meaning to the
requirement and provide states with a basis to comply with CAA section
172(c)(9) for a given nonattainment area. The EPA has taken a policy
approach to this question, and in the past, the EPA has indicated that
the recommended amount is OYW of RFP but allowed states to provide a
reasoned justification for adopting contingency measures that would
provide less than the recommended amount. Under the Draft Revised
Contingency Measure Guidance, the EPA is continuing to take a policy
approach but is recommending OYW of progress and describing a specific
analytical framework that states may use to develop a reasoned
justification if the state is unable to identify and adopt contingency
measures that can achieve the recommended amount of emissions
reductions.\31\
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\31\ OYW of RFP is calculated differently for ozone and
particular matter (PM). For ozone, annual RFP is essentially defined
as three percent of the base year emissions inventory (EI). For PM,
annual RFP is the average annual reductions between the base year EI
and the projected attainment year EI (i.e., the projected attainment
inventory for the nonattainment area). In contrast, OYW of progress
is calculated the same way for ozone and PM: by determining the
average annual reductions between the base year EI and the projected
attainment year EI, determining what percentage of the base year EI
this amount represents, then applying that percentage to the
projected attainment year EI to determine the amount of reductions
needed to ensure ongoing progress if contingency measures are
triggered. See also 88 FR 87988, 87994 and the EPA's Draft Revised
Contingency Measure Guidance, pp. 21-23.
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In support of our revised approach, we first note that, for both
RFP and attainment purposes, contingency measures are intended to
provide for continued progress in the event that an area fails to meet
an RFP milestone or fails to attain the NAAQS by the applicable
attainment date. They are not themselves expected to provide for either
RFP or attainment. With respect to RFP, the CAA provides certain
remedies if the contingency measures do not make up the shortfall for a
given RFP milestone.\32\ With respect to a failure to attain by the
applicable attainment date, the CAA too provides a remedy by requiring
a new attainment plan.\33\
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\32\ See CAA sections 182(g)(3) and 189(c)(3).
\33\ See CAA section 179(d).
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[[Page 80754]]
In reviewing our long-standing approach to contingency measures,
the EPA observed that basing the amount of emission reductions on the
annual amount of reductions needed to meet the separate RFP
requirement--OYW of RFP--may in some cases lead to an amount that is
greater than what typically would be needed to make up for a shortfall
in RFP or for attainment purposes.\34\ The OYW of RFP approach was
unnecessarily conservative for estimating the amount of emission
reductions needed for contingency measure purposes because a given
percentage of the base year inventory tends to represent a much more
significant portion of the attainment projected inventory.
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\34\ EPA's Draft Revised Contingency Measures Guidance, pp. 21-
23.
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In shifting to the OYW of progress approach, the EPA recognizes
attainment of the NAAQS as the primary objective of the nonattainment
plan requirements, and thus the appropriate metric should be
attainment-focused. In the absence of a CAA-specified amount of
emission reductions required for contingency measures, the EPA's new
approach is a better reading of the contingency measure SIP requirement
given our understanding of the statutory purpose of contingency
measures following a failure to attain or to meet an RFP milestone,
which is to ensure uninterrupted progress toward attainment while the
next steps unfold in response to the failure. In addition, unlike the
previous approach, the EPA's new approach takes into account the
declining emissions inventories between the base year and attainment
year for a given nonattainment area and aligns the metric for
determining the amount of emission reductions that contingency measures
should achieve for ozone and particulate matter (PM). The alignment
between ozone and PM is a better reading of the statute considering
that the relevant statutory provision, CAA section 172(c)(9), applies
to all the NAAQS.
As to the specific SIP submission addressed in this document, we
acknowledge that CARB and the District used the newly-recommended
metric in preparing the SJV PM<INF>2.5</INF> Contingency Measure SIP
for which the EPA is now finalizing approval but, in this instance, the
SIP submission and the EPA's evaluation thereof would have been the
same in substance if the previous metric (i.e., OYW of RFP) had been
used instead. This is because, using either metric, the SIP submissions
include contingency measures that collectively provide for OYW of
progress or RFP for direct PM<INF>2.5</INF> and a portion of OYW of
progress or RFP for NO<INF>X</INF>.\35\ The only difference is the
extent to which the emission reductions from the contingency measures
fall short of each metric for NO<INF>X</INF> reductions. Using the OYW
of progress metric (with trading), the contingency measures are
estimated to achieve between 8.9% and 15.8% of OYW of progress for
NO<INF>X</INF> as compared to between 1.3% and 6.3% of OYW of RFP for
NO<INF>X</INF> using the previously-recommended metric (with
trading).\36\ Using either metric, the EPA would have expected the
State to provide a reasoned justification for not adopting contingency
measures sufficient to achieve greater NO<INF>X</INF> emission
reductions; consistent with the EPA's recommendations in the Draft
Revised Contingency Measure Guidance, CARB and the District provided
such reasoned justification in their infeasibility demonstrations.
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\35\ See Table 3 of this final rule.
\36\ See Table 3 of this final rule.
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Comment 2: The Valley EJ Organizations assert that the EPA's
proposed approval of the State's 2023 SIP Submissions circumvents three
recent court decisions \37\ and unlawfully and arbitrarily (a) lowers
the amount of emission reductions required for contingency measures
(``by severing the statutory link to [RFP],'' i.e., by shifting from
OYW of RFP under the EPA's prior interpretation to OYW of progress
under the EPA's revised interpretation), (b) extends implementation of
contingency measures from one year to two years, and (c) invents a new
feasibility exemption that does not appear in CAA section 172(c)(9).
The commenters state that the EPA's proposed approval relies on the
Draft Revised Contingency Measures Guidance ``to replicate the
arbitrary and capricious interpretation the [AIR] court invalidated.''
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\37\ The commenter cites Bahr v. EPA, 836 F.3d 1218 (9th Cir.
2016) (``Bahr''); Sierra Club v. EPA, 21 F.4th 815 (D.C. Cir. 2021)
(``Sierra Club''); AIR v. EPA, 10 F.4th 937 (9th Cir. 2021)
(``AIR'').
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Response to Comment 2: In relevant part, the Bahr and Sierra Club
decisions stand for the proposition that contingency measures under CAA
section 172(c)(9) must be conditional and prospective, and thus,
already-implemented control measures cannot serve as contingency
measures. The AIR decision stands for the proposition that surplus
emission reductions from already-implemented measures cannot be relied
upon as a justification for adoption of contingency measures that
provide for less than the recommended amount of emission reductions for
such measures. However, none of the cited court decisions bear on the
questions of the amount of emission reductions that contingency
measures should achieve, the timeline for achieving the emission
reductions from contingency measures, or the consideration of
feasibility of additional measures as justification for not adopting
contingency measures sufficient to achieve the recommended amount of
such measures.
Moreover, our proposed approval of the SJV PM<INF>2.5</INF>
Contingency Measure SIP is consistent with the three cited decisions in
that the SIP relies on contingency measures (Residential Wood Burning
Contingency Measure, the Rural Open Areas Contingency Measures, and the
Smog Check Contingency Measure) that are designed to be conditional and
prospective. In addition, as discussed further in the following
paragraph, the State has not relied on emission reductions from
already-implemented measures.
The rationale for our approval of the SJV PM<INF>2.5</INF>
Contingency Measure SIP is not the same as the rationale for our
approval, later withdrawn in response to the AIR decision, of the
contingency measure element for San Joaquin Valley for the 2008 ozone
NAAQS that was at issue in the AIR case. In the case of the contingency
measure element for the 2008 ozone NAAQS, the EPA took into account the
surplus emission reductions from already-implemented measures in the
milestone years and the years following the attainment date, not as
constituting contingency measures per se, but rather, as justification
for approving a contingency measure element that included a single
contingency measure that would provide for far less than the
recommended amount.
The Court found that, by doing so, the EPA had ``severed the
relationship between the requirement of contingency measures and the
benchmark of reasonable further progress, without an adequate
explanation of why the new--and far more modest--contingency measure is
reasonable.'' \38\ The Court did not indicate that the Agency could not
depart from previous guidance but cautioned that the EPA ``must give a
reasoned explanation for departing from agency practice or policy.''
\39\ The Court concluded that ``[I]f already-implemented measures
cannot themselves be contingency measures--and Bahr makes clear that
they cannot--then neither can they be a basis for declining to
establish contingency measures that would otherwise be
[[Page 80755]]
appropriate.'' \40\ The Court rejected the EPA's rationale for allowing
consideration of surplus emission reductions from already-implemented
measures, reasoning that the EPA could not approve a contingency
measure element ``lacking robust contingency measures by assuming that
they will not be needed. Because the agency did not provide a reasoned
explanation for approving the state plan, the rule is arbitrary and
capricious.'' \41\
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\38\ AIR v. EPA, 10 F.4th 937, 946 (9th Cir. 2021).
\39\ Id.
\40\ Id.
\41\ Id. at 947.
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In the wake of the AIR decision, and other case law interpreting
the contingency measure SIP requirement, the EPA undertook an internal
process to reconsider previous guidance provided by the Agency to
states for preparation of SIP submissions to meet the contingency
measure requirements--a process that led to the publication of the
Draft Revised Contingency Measure Guidance. Among other things, in the
Draft Revised Contingency Measure Guidance, the EPA explains why the
Agency believes that it is appropriate to update its prior guidance
with respect to the recommended amount of emission reductions that
contingency measures should achieve and the considerations that states
could use to justify adoption of contingency measures that do not
provide for the recommended amount of emission reductions.\42\ We found
that an update to our contingency measures guidance was justified in
light of changed factual circumstances \43\ and a current understanding
of what remaining controls may be available for states to adopt as
contingency measures. For a more detailed explanation of our rationale
for updating the metric, see Response to Comment 1, and for a more
detailed explanation for allowing for consideration of feasibility, see
Response to Comment 4.
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\42\ EPA's Draft Revised Contingency Measure Guidance, pp. 21-28
(revised metric) and pp. 29-40 (reasoned justification for adoption
of contingency measures that provide for less than the recommended
amount of emission reductions).
\43\ By ``changed circumstances,'' we are referring to recent
court decisions that have invalidated key aspects of EPA's
historical approach to implementing the contingency measure
requirement and the evolution toward more stringent control programs
in the 30 years since the EPA first articulated its contingency
measure guidance where, as described in Response to Comments 3, the
progressively stringent control measures adopted to meet prior
attainment and RFP planning requirements are already implemented
measures and therefore ineligible to serve as contingency measures
and result in a narrowing pool of candidate contingency measures.
---------------------------------------------------------------------------
With respect to this action, CARB and the District have adopted a
contingency measure element that includes three contingency measures
that would collectively achieve the recommended amount of emission
reductions for one of the two pollutants or precursors at issue, and
they have provided a reasoned justification in the form of
infeasibility demonstrations for adopting contingency measures that
provide for less than the recommended amount for the other relevant
pollutant or precursor. The EPA's approval of a contingency measure
element that relies, in part, on CARB and the District's infeasibility
demonstrations, rather than relying on surplus emission reductions from
already-implemented measures, stands in contrast to the EPA action on
the SIP submission at issue in AIR. The EPA does not assume that
contingency measures would not be needed for San Joaquin Valley but
rather that CARB and the District have adequately demonstrated that
there are no feasible contingency measures for that particular
pollutant or precursor that are left to adopt or that could be
implemented within one to two years of the triggering event.
Comment 3: For areas with more severe air pollution, such as
Serious PM<INF>2.5</INF> nonattainment areas, the commenters state that
the EPA has not articulated a reasoned justification for why OYW of
progress is consistent with the CAA remedial scheme that imposes more
stringent requirements on such areas. They suggest that a voluntary
reclassification of an area (e.g., from ``Moderate'' to ``Serious'' for
PM<INF>2.5</INF>) would lower the average annual reductions needed for
contingency measures (e.g., if the same attainment year inventory
applied for a Moderate or Serious areas, then the annual average
reduction would be lower due to averaging over more years).
In addition, the commenters illustrate a purported fatal flaw in
the EPA's interpretation of OYW of progress using a table that shows
OYW of progress for NO<INF>X</INF> in a hypothetical ozone
reclassification from Serious to Extreme (in tons per day of
NO<INF>X</INF>) and state that a lesser amount of emission reductions
for contingency measures for such hypothetical Extreme ozone
nonattainment area runs contrary to the structure of the Act.
Response to Comment 3: As explained in more detail in our Response
to Comment 1, with respect to this specific action, the use of the new
OYW of progress metric here does not materially impact our approval
where the SJV PM<INF>2.5</INF> Contingency Measure SIP falls short of
the emissions reductions recommended under either metric. However, we
note that, contrary to commenters' assertions, the EPA's interpretation
of the contingency measure requirement under CAA section 172(c)(9) is
consistent with the CAA's general scheme of subjecting areas with
higher classifications to more stringent requirements. More
specifically, the increased stringency relates to the types of measures
that qualify as contingency measures rather than the amount of emission
reductions that such measures must achieve.
Under the EPA's interpretation of the contingency measure
requirement, contingency measures must be designed to provide emission
reductions (if triggered) that are not otherwise required to meet other
attainment plan requirements and not relied upon to demonstrate RFP nor
attainment. Thus, for example, contingency measures in PM<INF>2.5</INF>
nonattainment areas classified as Moderate, which are thereby subject
to the reasonably available control measures (RACM) requirement, must
be measures that go beyond the RACM requirement, whereas contingency
measures in PM<INF>2.5</INF> nonattainment areas classified as Serious
(and thus subject to the best available control measures (BACM)
requirement) must be measures that go beyond the BACM requirement. In
other words, reclassification of an area to a higher classification
shrinks the pool of candidate contingency measures because some of the
candidate contingency measures will be required to be adopted and
implemented in the reclassified area to meet the specific control
requirements for that classification and, thus, will be unavailable for
adoption as contingency measures. The candidate contingency measures
that remain eligible to meet the contingency measure SIP requirement
under the higher classification are different, and potentially more
stringent, than those that had been available to meet the requirement
under the lower classification. While more stringent measures would
achieve further emission reductions, if triggered, they may achieve a
smaller scale of emission reductions than the prior iterations of
increasingly stringent control measures on a given emission source;
stringency (a relative measure) is not the same as tons per day of
emission reductions (an absolute measure).
Regarding the commenters' assertion that areas with more severe air
pollution should have contingency measures that achieve a larger amount
of emission reductions (i.e., OYW of RFP), we look once more to the
broader framing of contingency measures within the overall planning
requirements for nonattainment areas. The EPA finds that the statutory
and regulatory
[[Page 80756]]
requirements to demonstrate attainment as expeditiously as practicable,
and the absence of a specific statutory metric for how much emission
reductions contingency measures should achieve, give priority to
adopting control measures to attain in the first place, even if that
leaves fewer options for contingency measures in the event of a failure
to attain or to make RFP.
In the SJV PM<INF>2.5</INF> Contingency Measure SIP, the State
elaborates further on using an attainment-focused metric by
highlighting the scarcity of potential control measures that would
qualify as contingency measures given the facts and circumstances of
the San Joaquin Valley,\44\ where the progressively stringent set of
control measures adopted to meet prior attainment and RFP planning
requirements are already implemented measures and therefore ineligible
to serve as contingency measures.\45\ This scarcity concept echoes the
tension between the CAA requirements for attainment and contingency
measures, and the prioritization of adopting measures to attain in the
first place. Notwithstanding, the EPA does not endorse the scarcity
concept as a starting point, but rather recommends the detailed
analytical approach to identifying and evaluating potential control
measures that can serve as contingency measures, as described in the
Draft Revised Contingency Measures Guidance, and that the State
employed in developing the PM<INF>2.5</INF> Contingency Measure SIP.
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\44\ SJV PM<INF>2.5</INF> Contingency Measure SIP, section 4.1
(``Stringency of District's Regulatory Program'') and section 5.2
(``CARB's Opportunities for Contingency Measures'').
\45\ SJV PM<INF>2.5</INF> Contingency Measure SIP, pp. 53-54.
---------------------------------------------------------------------------
Regarding the commenters' suggestion that a state could reduce the
amount of emission reductions needed for contingency measures by
requesting a voluntary reclassification that would extend the amount of
time to attain while relying on the same level of emission reductions,
we disagree that such an action runs contrary to the general remedial
scheme of the CAA that imposes more stringent requirements on
reclassified areas. Under the statutory and regulatory requirements for
PM<INF>2.5</INF>, a State may request reclassification from Moderate to
Serious, but only where it can show that it is impracticable to attain
by the Moderate area attainment year.\46\ Thus, a combination of direct
PM<INF>2.5</INF> and plan precursor emission reductions that would
achieve attainment would constrain the ability of the State to seek
such reclassification--it would instead be practicable to attain by the
Moderate area attainment date. Similarly, if the Moderate area
attainment year were approaching and air quality for two of three
design value years indicated that the area would not achieve the
standard, then the air quality basis resulting from prior attainment
planning would be insufficient to attain. In either case, the State
would need to develop a Serious area plan that achieves additional
emission reductions and also addresses the additional control
requirements for Serious areas (e.g., tighter new source review
requirements, BACM and best available control technology (BACT), and,
if the State were to seek an attainment date extension under CAA
section 188(e), most stringent measures (MSM)).
---------------------------------------------------------------------------
\46\ CAA section 188(b)(1) and 40 CFR 51.1002(b)(1).
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For these reasons, as well as those described in Response to
Comment 1 of this document, we conclude that the EPA's revised metric
for contingency measure emission reductions (OYW of progress) does not
run contrary to the general remedial scheme of the CAA that imposes
more stringent requirements on areas reclassified to a higher
classification. Lastly, the EPA finds that the comment on a
hypothetical scenario for an ozone nonattainment area is outside the
scope of this rulemaking because we are not acting on ozone contingency
measure SIP submissions in this action.
Comment 4: Regarding feasibility assessments, the Valley EJ
Organizations state that the CAA does not subject the contingency
measure requirements to a feasibility standard and reject the State's
and the EPA's proposed reliance on infeasibility demonstrations. The
commenters argue that Congress made no exceptions to the contingency
measure requirements nor did it provide authority to relax those
requirements based on technological or economic challenges. They state
that the CAA requirements for RACM or reasonably available control
technology (RACT) include a ``reasonably available'' qualifier and that
those for MSM are expressly limited to ``feasible'' measures, while
such terms do not appear in the CAA requirements for contingency
measures. They contend that the EPA conflates the contingency measure
requirements with the primary requirements to attain the NAAQS in the
first place. They further state that Congress expressly provided
limited authority to relax the CAA requirements for RFP but did not do
so for contingency measures.
The commenters state that the RACM requirements (under CAA sections
172(c)(1), 181(a)(1), and 188(c)(1)) require that the primary
attainment strategy include ``all'' RACM and other available control
measures that would expedite attainment and that the MSM provision (for
Serious PM<INF>2.5</INF> nonattainment areas that cannot attain the
standards within 10 years, under CAA section 188(e)) requires
additional control measure implementation. They argue that contingency
measures should not comprise the same controls that the CAA already
requires for attainment and that failed to attain the NAAQS in the
first place and that the EPA unlawfully and arbitrarily excuses
contingency measures needed when the feasible measures the State has
already adopted result in a failure to attain the NAAQS (citing AIR, 10
F.4th at 946).
Given these alleged flaws in the EPA's interpretation, the
commenters state that the EPA's proposed approval violates the plain
meaning of the CAA contingency measure requirement, fails to reasonably
explain the Agency's relaxation of the emission reductions that
contingency measures must provide, and is therefore arbitrary and
capricious.
Response to Comment 4: As discussed in Response to Comment 1,
Congress must have at least implicitly delegated to the EPA the
authority to determine an amount of emissions reductions that
contingency measures should achieve and thereby give meaning to the
requirement and provide states with a basis to comply with CAA section
172(c)(9) for a given nonattainment area. The EPA is continuing to take
a policy approach to this question and is recommending OYW of progress
and describing a specific analytical framework that states may use to
develop a reasoned justification if the state is unable to identify and
adopt contingency measures that can achieve the recommended amount of
emissions reductions. More specifically, as stated in our proposed rule
and the EPA's Draft Revised Contingency Measures Guidance, where a
state is unable to identify contingency measures that would provide
approximately OYW of emission reductions, the state should provide a
reasoned justification (referred to herein as an ``infeasibility
demonstration'') that explains and documents how it has evaluated all
existing and potential control measures relevant to the appropriate
source categories and pollutants in the nonattainment area and has
reached reasonable conclusions regarding whether such measures are
feasible.\47\ Thus, while the EPA acknowledges that
[[Page 80757]]
CAA section 172(c)(9) does not explicitly provide for consideration of
whether specific measures are feasible, the EPA does not read the
statute to require air agencies to adopt and impose infeasible
measures.\48\
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\47\ 88 FR 87988, 87994 and EPA's Draft Revised Contingency
Measure Guidance, p. 29.
\48\ Id.
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As stated in the proposed rule, the statutory provisions applicable
to other nonattainment area plan control measure requirements,
including RACM/RACT, BACM/BACT, and MSM, allow air agencies to exclude
certain control measures that are deemed unreasonable or infeasible
(depending on the requirement).\49\ For example, the MSM 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.'' While the contingency measures provisions do not include
such caveats, the EPA does not conclude that the contingency measures
provisions should be read to require plans to include infeasible
measures. Thus, the EPA anticipates that a demonstrated lack of
feasible measures would be a reasoned justification for adopting
contingency measures that achieve less than the recommended amount of
emission reductions.\50\
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\49\ Id.
\50\ Moreover, we note that contingency measures under CAA
section 172(c)(9), once triggered, are generally permanent and
become one of the baseline control measures for the next milestone
demonstration or the new attainment plan that must be adopted and
submitted by the state for an area that has failed to attain the
NAAQS by the applicable attainment date. As noted in this document,
technological and economic feasibility is a hallmark of such control
measures. In contrast, CAA section 110(a)(2)(G) requires states to
adopt and submit contingency plans to address emergency episodes as
part of their SIPs, and the contingency plans for emergency episodes
identify emission control actions to be taken at different episode
levels, which are much higher than the NAAQS, without consideration
of economic or technological feasibility. See, generally, 40 CFR
51.150-51.152 and appendix L to 40 CFR part 51. One significant
difference, however, between the emission control actions for
emergency episode plans under CAA section 110(a)(2)(G) and the
control measures relied upon for RFP and attainment is that the
former are temporary and are implemented only while the emergency
episode persists whereas the latter are, as noted, permanent
controls for the area.
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The EPA does not, as the commenters suggest, simply conflate the
contingency measure requirements with other control requirements (e.g.,
RACM/RACT, BACM/BACT, and MSM) that are integral to demonstrating
attainment of the ozone and/or PM<INF>2.5</INF> NAAQS. Rather, while
the analytical approach to identifying and evaluating existing and
potential control measures may be similar to those used for RACM/RACT,
BACM/BACT, and MSM (e.g., identifying the universe of control devices
that can reduce NO<INF>X</INF> emissions from combustion equipment and
whether they are technologically and economically feasible as applied
to a specific type of emission source in the area), the EPA expects
that the state ``should not simply repeat the control strategy's
infeasibility showing.'' \51\ The contingency measure requirement is in
addition to the other control measure requirements.
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\51\ EPA's Draft Revised Contingency Measure Guidance, p. 31.
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A conclusion that a measure is not reasonable or feasible, for
example, for RACM does not automatically disqualify it as a potential
contingency measure. If the state identifies control measures that it
determines are not needed to attain nor to collectively advance
attainment, those measures would not be required to satisfy the RACM
requirement but would remain as candidates for contingency measures. To
the extent that the adopted contingency measures achieve a small amount
of emission reductions, the state should provide a more robust
infeasibility showing that there are no additional feasible contingency
measures that could achieve the recommended amount of reductions.\52\
Furthermore, to the extent that the state's analyses and development of
contingency measures occur after the state's analyses and development
of the SIP submissions to meet the attainment control strategy
requirements of the CAA (including associated control requirements and
RFP), the state should update their analyses to reflect the latest
potential control measures.
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\52\ EPA's Draft Revised Contingency Measure Guidance, p. 31.
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In the case of the SJV PM<INF>2.5</INF> Contingency Measure SIP,
submitted in 2023, CARB and the District documented their analyses to
identify and evaluate potential control measures that might serve as
contingency measures. These analyses are updated relative to their 2021
submission of the Serious area attainment plan for the 1997 annual
PM<INF>2.5</INF> NAAQS and to their 2019 submissions of the Serious
area attainment plan for the 1997 24-hour PM<INF>2.5</INF> NAAQS
(including BACM demonstration), Serious area plan for the 2006 24-hour
PM<INF>2.5</INF> NAAQS (including demonstrations for BACM and MSM), and
Moderate area plan for the 2012 annual PM<INF>2.5</INF> NAAQS
(including RACM demonstration). The EPA has approved these attainment
plan control strategies in successive actions \53\ and they represent
an overall stringent set of control requirements. The State did not set
aside measures for lack of their ability to collectively advance
attainment (as might be possible in theory, e.g., for RACM for an ozone
nonattainment area).
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\53\ 88 FR 86581 (December 14, 2023) (approving the State's
demonstrations for BACM and five percent annual emission reductions
under CAA section 189(d) for the 1997 annual PM<INF>2.5</INF>
NAAQS); 87 FR 4503 (January 28, 2022) (approving the State's BACM
demonstration for the 1997 24-hour PM<INF>2.5</INF> NAAQS); and 85
FR 44192 (July 22, 2020) (approving the State's demonstrations for
BACM and MSM for the 2006 24-hour PM<INF>2.5</INF> NAAQS).
---------------------------------------------------------------------------
In their updated analyses, CARB and the District considered the
wide range of emission sources under their primary jurisdiction,
identified potential control measures, analyzed their technological and
economic feasibility, and assessed whether they could achieve emission
reductions within one to two years of a triggering event, consistent
with the EPA's discussion of the timing objective inherent to the
contingency measure requirement.\54\ For the potential control measures
identified through this process, the District further analyzed possible
contingency measures for wood burning fireplaces and wood burning
heaters, rural open areas, commercial charbroiling, almond harvesting,
and oil and gas production combustion equipment, and ultimately adopted
the Residential Wood Burning Contingency Measure and the Rural Open
Areas Contingency Measure.
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\54\ 88 FR 87988, 88000-88001 (summary of State's feasibility
analyses), and 88005-88009 (the EPA's evaluation of the State's
feasibility analyses). See also Draft Revised Contingency Measures
Guidance, pp. 40-42.
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CARB, in turn, made a reasonable case that new engine standards and
new fleet requirements require more time to implement than would be
appropriate for contingency measures (i.e., would exceed one to two
years after a triggering event) and that the State's technology-forcing
and zero-emission-based nature of its mobile source regulations reduce
or eliminate opportunities for yet-further emission reductions that
could qualify as contingency measures.\55\ Nevertheless, through its
process CARB ultimately adopted the Smog Check Contingency Measure.
---------------------------------------------------------------------------
\55\ 88 FR 87988, 88008-88009.
---------------------------------------------------------------------------
The three contingency measures proposed for approval stand in
contrast to the commenters' argument that the feasibility assessment
process put forward in the EPA's Draft Revised Contingency Measure
Guidance, in the State's 2023 SIP Submissions, and the EPA's proposed
approval thereof would simply re-employ the control measures originally
employed to attain the PM<INF>2.5</INF> NAAQS in the San Joaquin
Valley. Furthermore, in many instances the
[[Page 80758]]
reason for which the EPA agreed with the State for not adopting a
potential control measure as a contingency measure was not based on any
affirmation that a measure was economically infeasible, but rather was
based on other reasons. In evaluating CARB and the District's
infeasibility demonstrations in the SJV PM<INF>2.5</INF> Contingency
Measure SIP, we relied heavily on the ``EPA Source Category and Control
Measure Assessment and Reasoned Justification Technical Support
Document, Proposed Contingency Measures Federal Implementation Plan for
the Fine Particulate Matter Standards for San Joaquin Valley,
California,'' July 2023 (``EPA's Reasoned Justification TSD'') given
its breadth and depth, as well as the expertise of EPA Region IX staff,
to review the State's demonstrations, understand where the State's
analyses and the EPA's analyses draw largely similar conclusions, and
identify those source categories where the control measure analyses
differ.
For example, for the potential control measure of requiring
electric water heaters and furnaces at point of sale, the EPA
determined that such a measure would not be feasible because we expect
that it would result in negligible emission reductions within two years
after trigger, consistent with the District's suggestion that the
attrition-based nature of implementation of this contingency measure
option deem the measure infeasible.\56\ For the potential control
measure of requiring low-dust almond harvesters, the EPA determined
that such a measure would be infeasible based only on the timing of
emission reductions.\57\
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\56\ 88 FR 87988, 88007, and EPA's Reasoned Justification TSD,
pp. 43-51.
\57\ 88 FR 87988, 88007, and EPA's Reasoned Justification TSD,
pp. 43-51.
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For the potential control measure of requiring the installation of
control devices on commercial under-fired charbroilers, the EPA
determined that such measure would be infeasible based on fire safety
certification concerns and lack of demonstrated implementation of
controls.\58\ For the potential control measure of lower NO<INF>X</INF>
emission limits on oil and gas production equipment with a total rated
heat input of greater than 5.0 million Btu per hour, the EPA determined
that it would be technologically infeasible to meet the lower limits
within the two-year timeframe for contingency measures due to the
likely requirement that affected units would need to install selective
catalytic reduction (SCR) devices to meet the lower limits (i.e., the
planning, engineering, and installation of SCR would take more than two
years).\59\ Similarly, for the potential control measure of lower
NO<INF>X</INF> emission limits for boilers, steam generators, and
process heaters with a total rated heat input of 5.0 million Btu per
hour or less, the EPA expects that units required to meet lower limits
than those already adopted in Rules 4307 and 4308 would require
installation of SCR, which cannot be feasibly achieved within the two-
year timeframe for contingency measures.\60\
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\58\ 88 FR 87988, 88008, and EPA's Reasoned Justification TSD,
chapter V.
\59\ 88 FR 87988, 88008, and EPA's Reasoned Justification TSD,
pp. 9-22.
\60\ 88 FR 87988, 88008, and EPA's Reasoned Justification TSD,
pp. 9-22.
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In sum, the EPA maintains that it does not read the statute to
require air agencies to adopt and impose infeasible measures.
Furthermore, as applied to the SIP submissions subject to this
rulemaking, we continue to find that the State's three contingency
measures for the San Joaquin Valley for the 1997 annual, 2006 24-hour,
and 2012 annual PM<INF>2.5</INF> NAAQS, in conjunction with the State's
infeasibility demonstrations that adequately justify the contingency
measures selected by the State, meet the contingency measure
requirement under CAA section 172(c)(9) and 40 CFR 51.1014.
Comment 5: The Valley EJ Organizations assert that the EPA
unlawfully and arbitrarily proposes approval of the PM<INF>2.5</INF>
contingency measures based on the Agency's new interpretation in the
Draft Revised Contingency Measures Guidance by extending the
implementation period from one year to two years.
Response to Comment 5: With respect to the issue of extending the
period in which the emission reductions from contingency measures can
be considered in meeting the contingency measure SIP requirement, we
note that the commenters raise this particular objection to the EPA's
proposed approval in a single sentence and fail to elaborate on how
extending the time period for achieving the emission reductions from
contingency measures from one to two years conflicts with the CAA or
the EPA's implementing regulations.
In this instance, we proposed, and are now taking final action, to
approve two specific contingency measures (the Residential Wood Burning
Contingency Measures and the Rural Open Areas Contingency Measures),
both of which, if triggered, will achieve emission reductions within a
year of the triggering event. Our approval of the 2023 SIP Submissions
as meeting the contingency measure SIP requirement for San Joaquin
Valley for the relevant PM<INF>2.5</INF> NAAQS also relies on emission
reductions from a third contingency measure (the Smog Check Contingency
Measure) that we have approved in a separate action.
As explained in the EPA's final rule on CARB's Smog Check
Contingency Measure, the emission reductions from the Smog Check
Contingency Measure may not be fully achieved until the second year
after the triggering event.\61\ However, as further explained in that
final rule, and consistent with the 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 of the triggering event, contingency
measures that provide reductions within two years of the triggering
event could be appropriate to consider toward achieving the recommended
amount of emission reductions.\62\ Contingency measures that result in
additional emission reductions during the second year following the
triggering event, as contemplated by the Draft Revised Contingency
Measure Guidance, can still serve the important purpose of contingency
measures to continue progress toward attainment, as the State develops
and submits, and the EPA acts on, a SIP submission to address the
underlying condition (e.g., failure to make RFP or to attain by the
applicable attainment date) that triggered the contingency measures in
the first place.
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\61\ 89 FR 56222, 56224-56225.
\62\ Id.
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Comment 6: The Valley EJ Organizations state that, after a first
triggering event, the EPA unlawfully and arbitrarily allows California
discretion in adopting further contingency measures, fails to evaluate
whether the emission reductions to follow a second triggering event
would meet either OYW of RFP or OYW of progress, and allows California
to `` `double dip' for contingency measure purposes'' without
enforceable provisions that would require adoption and submission of
additional contingency measures.
Response to Comment 6: Our approval relates to the SIP requirements
for contingency measures under CAA section 172(c)(9) and 40 CFR 51.1014
for the 1997 annual, 2006 24-hour and 2012 annual PM<INF>2.5</INF>
NAAQS. Under the applicable requirements, states with PM<INF>2.5</INF>
nonattainment areas must provide contingency measures that can be
[[Page 80759]]
triggered in the event of a failure to meet any RFP requirement in an
attainment plan, to meet any quantitative milestone in an attainment
plan, to submit a quantitative milestone report, or to attain the
applicable PM<INF>2.5</INF> NAAQS by the applicable attainment date.
Neither the CAA nor the EPA's regulations specify a minimum number
of contingency measures or prescribe separate contingency measures for
different contingency measure triggers. The CAA and the EPA's
regulations also do not preclude the reliance on the same contingency
measures for separate NAAQS, and the commenter does not identify any
specific statutory or regulatory requirement that does so. Moreover, it
is not uncommon for a state or district to rely on a core set of
control measures for multiple NAAQS. For example, the State and
District rely on a core set of NO<INF>X</INF> control measures as part
of the control strategies for demonstrating RFP and attainment for both
ozone and PM<INF>2.5</INF> in the San Joaquin Valley. Regardless, we
acknowledge that neither the State nor District has submitted an
enforceable commitment to submit additional contingency measures in
response to the triggering of the contingency measures. The EPA does
not believe that such commitment is required.
In this instance, the 2023 SIP Submissions rely on three
contingency measures, all of which provide for an initial triggering
event and two of which provide for a second triggering event. In other
words, all three contingency measures provide for implementation of
more stringent requirements upon a first triggering event, and two of
the contingency measures also provide for implementation of yet more
stringent requirements upon a second triggering event (i.e., further
tightening of the requirements beyond that triggered by the first
event).
While the EPA is not requiring CARB or the District to provide
separate contingency measures for each of the triggering events or
separate contingency measures for different PM<INF>2.5</INF> NAAQS in
San Joaquin Valley, we find that a SIP deficiency would arise upon the
first triggering event notwithstanding the existence of the built-in
provisions for further reductions upon a second triggering event. This
is because the adequacy of the contingency measure SIP depended on
measures that are now being implemented as a result of the first
triggering event, meaning they can no longer be used to satisfy the
contingency measure requirements for subsequent triggering events. In
response, we expect that CARB and the District would adopt and submit a
SIP revision within one year of the triggering event to demonstrate
that the SIP continues to meet contingency measure requirements. We
would also expect the SIP revision to take into account the emission
reductions from the two remaining contingency measures and to include
additional contingency measures as needed to ensure that the San
Joaquin Valley continues to meet the contingency measure requirements
of CAA section 172(c)(9) and 40 CFR 51.1014.
Comment 7: CVAQ asserts that the ``hot spot'' approach under
District Rule 4901, ``Wood Burning Fireplaces and Wood Burning
Heaters,'' ``cannot meet the basic control measure requirements of the
[CAA]'' and that the emission reductions from expanding applicability
to previously exempt areas would not be surplus to the controls that
should be required in the San Joaquin Valley. If, however, residential
wood burning is to be used as a contingency measure, CVAQ contends that
the contingency measure in Rule 4901 should ban all non-essential wood
burning. CVAQ further contends that the District must adopt contingency
measures that would achieve OYW of RFP emission reductions in each
county of the San Joaquin Valley to protect its most vulnerable
communities. In addition, citing comments made by residents during 2023
District workshops that report incidents of poor enforcement of the
rule, CVAQ asserts that Rule 4901 has no assurance of actual emission
reductions and no concrete commitments for enforcement. CVAQ advocates
for accountability measures to ensure actual emission reductions and
enforcement of residential wood burning regulations.
Response to Comment 7: The EPA maintains that the Residential Wood
Burning Contingency Measure in SJVUAPCD Rule 4901 meets the contingency
measure requirements and provides reasonable assurance of emission
reductions. As explained in our proposed rule,\63\ 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 vs. unregistered devices) and different counties
(i.e., ``hot spot'' vs. non-hot spot), notwithstanding narrow
exemptions (e.g., for households where a wood burning fireplace or
heater is the sole source of heat, per section 5.7.4.2 of Rule 4901).
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. During a ``Level Two Episodic Wood Burning
Curtailment,'' operation of any wood-burning device is prohibited.
---------------------------------------------------------------------------
\63\ 88 FR 87988, 87995.
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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.'' \64\ Table 4 presents
the wood burning curtailment thresholds in Rule 4901, as revised in
2019.
---------------------------------------------------------------------------
\64\ 2018 PM<INF>2.5</INF> Plan, Appendix J, 60.
Table 4--Residential Wood Burning Curtailment Thresholds in Rule 4901
[as amended in 2019]
------------------------------------------------------------------------
Non-hot spot
Hot spot counties counties (San
Episodic wood burning (Madera, Fresno, and Joaquin, Stanislaus,
curtailment levels 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 35 [mu]g/m\3\....... 65 [mu]g/m\3\.
All).
------------------------------------------------------------------------
Contrary to the commenters' assertion that the hot spot approach
cannot meet the basic control measure requirements of the CAA, the EPA
approved the State's demonstration for Rule 4901 (2019 amendments) as
BACM and MSM for the 2006 24-hour PM<INF>2.5</INF> NAAQS,\65\ as RACM
for the 2012 annual PM<INF>2.5</INF> NAAQS,\66\ and as BACM for the
1997
[[Page 80760]]
annual PM<INF>2.5</INF> NAAQS.\67\ In 2022, the Ninth Circuit upheld
the EPA's approval of the State's BACM and MSM demonstration for the
2006 24-hour PM<INF>2.5</INF> NAAQS, including those relating to
residential wood burning.\68\ Therefore, the hot spot approach in Rule
4901 (2019 amendments), as applied to the particular facts and
circumstances of the San Joaquin Valley for the 1997 annual, 2006 24-
hour, and 2012 annual PM<INF>2.5</INF> NAAQS, meets the applicable
control requirements for controlling direct PM<INF>2.5</INF> emissions
from residential wood burning.
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\65\ 85 FR 44192.
\66\ 86 FR 67343.
\67\ 88 FR 86581.
\68\ Medical Advocates for Healthy Air v. EPA, Case No. 20-
72780, Dkt. #58-1 (9th Cir., April 13, 2022), pp. 8-9.
---------------------------------------------------------------------------
The Residential Wood Burning Contingency Measure (i.e., the 2023
amendments to Rule 4901) would, upon a first triggering event, lower
the thresholds for the five non-hot spot counties to match those of the
hot spot counties (i.e., 12 [mu]g/m\3\ for Level One Curtailment and 35
[mu]g/m\3\ for a Level Two Curtailment) and the emission reductions in
those five counties would be surplus because lowering the thresholds
for the five non-hot spot counties would go beyond the requirements of
Rule 4901, as amended in 2019, that the EPA has approved as meeting
RACM, BACM, and MSM. Furthermore, upon a second triggering event, the
Level One Curtailment threshold would be further lowered to 11 [mu]g/
m\3\ for all eight counties in the San Joaquin Valley, resulting in
further emission reductions that would be surplus to the already
implemented measure and surplus to the reductions from the first
triggering event.
We note that the Residential Wood Burning Contingency Measure would
alone, if triggered, achieve 0.5793 tpd direct PM<INF>2.5</INF>
emission reductions, which would exceed OYW of RFP (per EPA's long-
standing approach) and OYW of progress (per EPA's draft revised
approach) for direct PM<INF>2.5</INF> emissions in the San Joaquin
Valley. Given that the Residential Wood Burning Contingency Measure is
primarily a control for direct PM<INF>2.5</INF>,\69\ and that it would
achieve the recommended amount of reductions for that pollutant (in
terms of OYW of RFP or OYW of progress), the District was not required
to restrict residential wood burning further than what the District has
chosen to do for the purposes of meeting the contingency measure SIP
requirements for the relevant PM<INF>2.5</INF> NAAQS. Thus, the
District was not required to include a ban on all non-essential wood
burning to meet the contingency measure SIP requirements. Furthermore,
in reviewing the District's evaluation of potential control measures
for residential wood burning,\70\ we relied heavily on the EPA's
detailed evaluation of source categories and measures that we
considered as potential additional contingency measures as part of our
federal implementation plan (FIP) proposal but determined to be
infeasible or otherwise unsuitable for contingency measures.\71\
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\69\ Based on the estimates included in Table 2 (revised) in
this final rule, NO<INF>X</INF> reductions from the Residential Wood
Burning Contingency Measure would be approximately 14% of the
reductions of direct PM<INF>2.5</INF>.
\70\ SJV PM<INF>2.5</INF> Contingency Measure SIP, section 4.2
(``District Feasibility Analysis''), pp. 26-31.
\71\ 88 FR 87988, 88005-88006, and the EPA's Reasoned
Justification TSD. For our discussion of the EPA's evaluation of a
potential wood burning ban, see p. 82 of the EPA's Reasoned
Justification TSD.
---------------------------------------------------------------------------
Regarding the commenters' contention that the District must adopt
contingency measures that would achieve OYW of RFP emission reductions
in each county of the San Joaquin Valley, we reiterate that CAA section
172(c)(9) does not specify what amount of emission reductions
contingency measures should achieve, much less whether contingency
measures should achieve particular amounts of emission reductions
within geographical regions within a nonattainment area (e.g., in each
county). In both our long-standing interpretation and draft revised
interpretation of the contingency measure requirement, the amount of
emission reductions (e.g., OYW of progress) should be estimated for the
nonattainment area as a whole, consistent with the emissions
inventories for the base year, RFP years, and attainment year that are
based on the whole area.\72\
---------------------------------------------------------------------------
\72\ EPA's Draft Revised Contingency Measures Guidance, pp. 23-
24. Notwithstanding, for informational purposes we note that the EPA
considered the geographic scope of each of the three contingency
measures proposed for approval, including the Residential Wood
Burning Contingency Measure. 88 FR 87988, 88010-88011.
---------------------------------------------------------------------------
Regarding comments on the enforceability of Rule 4901 and assurance
of actual emission reductions, we note that the District included
responses to similar comments received during the District's public
comment process on the public draft SJV PM<INF>2.5</INF> Contingency
Measure SIP.\73\ We maintain that Rule 4901 is adequately enforceable
and that the emission reductions are reasonably estimated, for the
following reasons. The District explains the method it used to estimate
the emission reductions from the Residential Wood Burning Contingency
Measure, including its use of an 80% compliance rate.\74\ In
calculating these estimates, the District incorporates data by county,
device type (wood stoves and fireplaces), registration (unregistered
vs. registered, which incorporates certification of cleaner-burning
devices), fuel type (e.g., natural gas, wood, pellets), and average
curtailment days with and without the contingency provisions.
---------------------------------------------------------------------------
\73\ SJV PM<INF>2.5</INF> Contingency Measure SIP, Appendix J
(``Comments and Response'').
\74\ SJV PM<INF>2.5</INF> Contingency Measure SIP, Appendix C
(``Emission Reduction Analysis for Rule 4901''), C-7.
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In evaluating the emission reductions estimates from the District,
and as part of the EPA's FIP proposal for PM<INF>2.5</INF> contingency
measures in the San Joaquin Valley,\75\ we found that an 80% control
efficiency rate is reasonable in this case given the District's
extensive public outreach and enforcement of its curtailment
program.\76\ The EPA concludes that the District's method is a detailed
and reasonable means to estimate the emission reductions from the
Residential Wood Burning Contingency Measure.
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\75\ EPA's Reasoned Justification TSD, section II (``Combustion:
Residential Wood Burning''), pp. 5-6.
\76\ See, e.g. SJVUAPCD, ``Report On 2021-2022 Winter
Residential Woodsmoke Reduction,'' April 21, 2022 (``District's 2022
Report''), pp. 19-28.
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Regarding enforcement, the District states that it dedicates staff
to both compliance assistance and enforcement and describes several
aspects of its enforcement efforts.\77\ On curtailment days, District
staff surveil neighborhoods, focus on areas where non-compliance is
historically high or the subject of common complaints, and respond to
complaints from the public. The District responds to complaints during
business hours, weekends, holidays, and night-time hours and uses
technology such as global positioning system (GPS) and low-light
imaging cameras (for night-time enforcement) to assist their response.
During the most recent wood burning season (November 2023-February
2024), District staff spent approximately 3,500 hours on proactive
monitoring and enforcement and issued 470 notices of violation of Rule
4901.\78\ The EPA concludes that the District implements a reasonably
robust enforcement program to ensure compliance with the wood burning
[[Page 80761]]
prohibitions required when a Level One or Level Two Curtailment is
called by the District.
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\77\ District's 2022 Report, pp. 26-28.
\78\ SJVUAPCD, ``Report on 2023-2024 Winter Residential
Woodsmoke Reduction Strategy,'' PowerPoint presentation prepared for
SJVUAPCD Citizens Advisory Committee, June 4, 2024, slide 16. For
summary information concerning enforcement of Rule 4901 in previous
seasons, see SJVUAPCD, ``Report On 2022-2023 Winter Residential
Woodsmoke Reduction,'' April 20, 2023, p. 28.
---------------------------------------------------------------------------
In sum, neither the District nor the EPA has assumed perfect
compliance with the provisions of the Residential Wood Burning
Contingency Measure (i.e., 100% control efficiency when a ``No Burn''
day is called for a given geographic region within San Joaquin Valley);
the District has provided reasonable assurance of 80% control
efficiency based on its outreach, enforcement, and performance
analyses; and the District reasonably estimates the amount of emission
reductions to follow either a first triggering event (0.5793 tpd direct
PM<INF>2.5</INF> and 0.0817 tpd NO<INF>X</INF>) or a second triggering
event (0.1078 tpd direct PM<INF>2.5</INF> and 0.0148 tpd
NO<INF>X</INF>). Therefore, we continue to find that the Residential
Wood Burning Contingency Measure is adequately enforceable and its
associated emission reductions are reasonably estimated.
Comment 8: CVAQ states that the Rural Open Areas Contingency
Measure is ``essentially meaningless given that agricultural operations
are exempt.'' They note that agricultural operations can implement a
Fugitive PM<INF>10</INF> Management Plan (FPMP) as an alternative to
compliance requirements and that a more meaningful contingency measure
would enforce these FPMPs for all agricultural operations.
Response to Comment 8: While the estimated emission reductions of
0.008 tpd direct PM<INF>2.5</INF> from the Rural Open Areas Contingency
Measure are small, we disagree with the commenters' characterization of
the measure's value. Specifically, section 7.0 (``Contingency
Provision'') of Rule 8051, ``Open Areas'' (2023 amendments) would, if
triggered, lower the applicability threshold for rural open areas from
3.0 acres to 1.0 acre, and owners and operators of those 1.0 to 3.0-
acre parcels would be newly subject to the fugitive dust control
requirements of Rule 8051.\79\ This measure, if triggered, would affect
entities such as construction, oilfield, truck stop, and equipment and
vehicle storage 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. When such entities
disturb 1,000 or more square feet of surface area within a 1.0 to 3.0-
acre parcel, they would be required to apply fugitive dust control
measures, consistent with the control requirements of section 5.0 of
Rule 8051. Moreover, while the emission reductions from the Rural Open
Areas Contingency Measure are small on a regional basis, they will be
more meaningful for residents and workers in the immediate vicinities
of the open areas to which Rule 8051 would apply if and when the
contingency measure is triggered.
---------------------------------------------------------------------------
\79\ The definition of open areas is provided in Rule 8011,
``General Requirements,'' section 3.36 (``. . . vacant portions of
residential or commercial lots and contiguous parcels that are
immediately adjacent to and owned and/or operated by the same
individual or entity are considered one open area. . .'').
---------------------------------------------------------------------------
With respect to agricultural operations in the San Joaquin Valley
and FPMPs, fugitive dust control requirements are governed by Rule
8081, ``Agricultural Sources,'' which covers off-field sources like
unpaved roads, unpaved vehicle and equipment traffic areas, and bulk
materials.\80\ Under section 7.0 of Rule 8081, an agricultural operator
may implement an FPMP for unpaved roads and unpaved vehicle/equipment
traffic areas as a compliance alternative to the control requirements
in sections 5.2.2, 5.3.1, and 5.3.2 of the rule. An FPMP must achieve
50% control efficiency for fugitive dust (PM<INF>10</INF>) and go
through a review and approval process prior to being implemented. It
must be implemented on all days that vehicle traffic exceeds the
applicable vehicle trip thresholds in sections 5.2.2, 5.3.1, and 5.3.2.
Under section 7.4 of Rule 8081, failure to comply with an approved FPMP
is deemed a violation of the rule.
---------------------------------------------------------------------------
\80\ We note that Rule 4550, ``Conservation Management
Practices'' includes fugitive dust control requirements for on-field
agricultural operations in the San Joaquin Valley, but does not
include provisions for FPMPs, unlike Rule 8081. Also, while there
are provisions for FPMPs in Rule 8061, ``Paved and Unpaved Roads''
and Rule 8071, ``Unpaved Vehicle/Equipment Traffic Areas,'' those
rules pertain to non-agricultural roads and vehicle/equipment
traffic areas, respectively, rather than the agricultural operations
referenced in the comments.
---------------------------------------------------------------------------
By comparison, sections 5.2.2, 5.3.1, and 5.3.2 require that
visible dust emissions (VDE) be limited to a 20% opacity standard and
comply with requirements for stabilization of unpaved roads \81\ by
application of at least one of a discrete set of control techniques
(e.g., watering, uniform layer of washed gravel, chemical/organic dust
stabilizers/suppressants). Section 5.2.2 applies to unpaved roads based
on vehicle daily trips; sections 5.3.1 and 5.3.2 apply to unpaved
vehicle/equipment traffic areas with thresholds based on annual and
daily vehicle trips, respectively.
---------------------------------------------------------------------------
\81\ By definition under section 3.59 of Rule 8011,
stabilization of unpaved roads and unpaved vehicle/equipment traffic
areas requires that VDE be limited to 20% opacity.
---------------------------------------------------------------------------
If, as the commenters suggest, all agricultural operations were
required, following a contingency measure triggering event, to
implement an FPMP, it is unclear whether such contingency measure would
achieve emission reductions that are surplus to those that are being
achieved under the existing rule. For agricultural operations already
implementing an FPMP, such contingency measure would result in no
change in emission reductions. For agricultural operations implementing
controls under section 5.2.2, 5.3.1, and 5.3.2 of Rule 8081 (i.e., not
implementing an FPMP), it is unclear whether an FPMP would achieve more
emission reductions than the standard control provisions (limit VDE to
20% opacity). Consistent with our final rule approving the 2003 San
Joaquin Valley attainment plan for the 1987 PM<INF>10</INF> NAAQS into
the California SIP,\82\ we believe that the FPMP's 50% control
efficiency requirement is equivalent to the minimum control efficiency
expected from compliance with surface stabilization requirements in the
rule that otherwise apply.
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\82\ 69 FR 30006 (May 26, 2004). We note that, at that time,
EarthJustice compared the 20% opacity and other aspects of the
control requirements in section 5.0 of Rule 8081 to the 50% control
efficiency requirement and lack of 20% opacity requirement in the
compliance alternative in section 7.0 of Rule 8081 and asserted that
the FPMP compliance alternative should not be included. 69 FR 30006,
30018. While we agreed that the FPMP alternative does not contain an
explicit requirement for sources to comply with 20% opacity, it is
unclear whether compliance with 20% opacity would necessarily
increase control efficiency for unpaved roads or unpaved vehicle/
equipment traffic areas above the minimum 50% control required under
the FPMP provisions of Rule 8081.
---------------------------------------------------------------------------
Furthermore, within the SJV PM<INF>2.5</INF> Contingency Measure
SIP, the District states that it evaluated potential additional
controls (including those implemented by other jurisdictions) within
the application of Regulation VIII, ``Fugitive PM<INF>10</INF>
Prohibitions,'' and that the existing fugitive dust controls (including
those under Rule 8081) meet or exceed the requirements for RACM, BACM,
and MSM, and did not identify any further potential contingency
measure, with the exception of the potential measure in Rule 8051
(i.e., the measure ultimately adopted as the Rural Open Areas
Contingency Measure).\83\ In the EPA's review of potential control
measures (including those implemented by other jurisdictions), we
similarly did not identify additional measures for unpaved roads that
would be suitable as contingency measures.\84\ Therefore, we
[[Page 80762]]
disagree with the commenters that enforcing FPMPs on all agricultural
operations would qualify as a contingency measure. Nonetheless, we
recommend that the District continue to explore potential contingency
measures for dust emissions from agricultural sources, whether within
the construct of the FPMP framework in Rule 8081 or more broadly, e.g.,
within the construct of other rules such as Rule 4550, ``Conservation
Management Practices.''
---------------------------------------------------------------------------
\83\ SJV PM<INF>2.5</INF> Contingency Measure SIP, p. 25.
\84\ EPA's Reasoned Justification TSD, pp. 109-114.
---------------------------------------------------------------------------
Comment 9: The Valley EJ Organizations state that the EPA's
proposed approval of the State's contingency measures ignores
Presidential orders that direct the EPA and other federal agencies to
prioritize environmental justice, including Executive Order 14008,
``Tackling the Climate Crisis at Home and Abroad'' (January 27, 2021)
and Executive Order 14096, ``Revitalizing our Nation's Commitment to
Environmental Justice for All'' (April 21, 2023).\85\ They further
argue that the EPA exacerbates the ``environmental justice crisis'' by
denying the residents of the San Joaquin Valley meaningful pollution
reductions. To convey the magnitude of this concern, the commenters
cite to American Lung Association rankings of counties for
PM<INF>2.5</INF> and ozone pollution (where many San Joaquin Valley
counties rank among the worst in the nation) and the EPA's review of
environmental justice indices (where many San Joaquin Valley counties
exceed the 90th percentile) and describe the sequence of failures to
attain the NAAQS by the applicable attainment dates in San Joaquin
Valley, as well as recent air quality design values for the 1997 8-hour
ozone NAAQS and the 1997 annual PM<INF>2.5</INF> NAAQS that portend the
same.
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\85\ Valley EJ Organizations Comment Letter, pp. 4-6. See also,
86 FR 7619 (February 1, 2021) (Executive Order 14008) and 88 FR
25251 (April 26, 2023) (Executive Order 14096).
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In addition, CVAQ argues that the EPA's proposed approval goes
against the Biden Administration's environmental justice priorities by
``refusing to hold the region's largest polluters accountable,
discounting community priorities and continuing racist polluting
practices.'' They state that EPA is only looking at technological
feasibility and costs to industry and is not analyzing social and
health impacts in determining the cost of not taking action.
Response to Comment 9: We agree that the San Joaquin Valley has
many communities with EJ concerns that are disproportionately impacted
by PM<INF>2.5</INF> and other kinds of air pollution. However, we
disagree that the EPA's proposed approval ignores Presidential orders
to prioritize environmental justice. First, the Residential Wood
Burning Contingency Measure and the Rural Open Area Contingency
Measure, as well as the Smog Check Contingency Measure, would,
following a triggering event, reduce emissions from residential wood
burning, rural open areas, and light-duty vehicles across the San
Joaquin Valley, including minority and low-income populations, as
described in section VI (``Environmental Justice Considerations'') of
our proposed rule.\86\
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\86\ 88 FR 87988, 88009-88011. In section VI of our proposed
rule, we discuss environmental justice considerations in the context
of Executive Order 12898 (``Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations'') rather
than by reference to Executive Orders 14008 or 14096. Executive
Order 12898 directs federal agencies ``to identify and address
disproportionately high and adverse human health or environmental
effects of their actions on minority and low-income populations, to
the greatest extent practicable and permitted by law.'' Executive
Order 14008 directs federal agencies to take certain actions
directed toward ``disadvantaged communities'' that are described as
``historically marginalized and overburdened.'' Executive Order
14096 builds upon and supplements Executive Orders 12898 and 14008.
All three Executive Orders direct federal agencies to identify and
address disproportionate environmental effects, even while the
particular directives and protected classes vary among the three
orders.
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While not a comprehensive solution to address the
disproportionately high PM<INF>2.5</INF> concentrations to which these
populations are exposed, the three contingency measures would achieve
more than OYW of emission reductions for direct PM<INF>2.5</INF> and a
portion of the OYW of emission reductions for NO<INF>X</INF>, as
described in our proposed rule \87\ and updated in section I.B of this
document. Therefore, our proposed approval of these measures is
directionally consistent with Executive Orders 14008 and 14096, as well
as Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority and Low-Income Populations'' (February 11,
1994).\88\
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\87\ 88 FR 87988, 88003-88005.
\88\ 59 FR 7629 (February 16, 1994).
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To the extent that the commenters disagree with the EPA's Draft
Revised Contingency Measure Guidance or our application thereof to the
facts and circumstances of the San Joaquin Valley, we maintain that the
CARB and the District's 2023 SIP Submissions meet the requirements of
CAA section 172(c)(9) and 40 CFR 51.1014 and are approving the
submissions on that basis. The EPA carefully reviewed the extensive
recommendations put forward by environmental, public health, and
community organizations regarding additional potential control measures
on stationary and area sources in the San Joaquin Valley \89\ and
documented our analyses thereof in the EPA's Reasoned Justification
TSD.\90\ We relied heavily on that TSD in our evaluation of the CARB
and the District's 2023 SIP Submissions and, where our conclusions
differed from CARB or the District's conclusions with respect to the
basis of a potential additional control measure not meeting the
contingency measure requirements, we explained those differences, as
noted in the latter part of Response to Comment 4 of this document.
Nevertheless, those control measure recommendations retain their value
for consideration as CARB and the District develop, and the EPA
reviews, further SIPs for the San Joaquin Valley, even while we
conclude that they are not required to meet the contingency measure
requirements for the PM<INF>2.5</INF> NAAQS in the San Joaquin Valley
at this time.
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\89\ See letter dated October 22, 2021, from environmental
organizations to Michael S. Regan, Administrator, EPA, Subject:
``Meeting Request to Discuss PM-2.5 Crisis in the San Joaquin
Valley,'' and letter dated May 18, 2022, from environmental
organizations to Michael S. Regan, Administrator, Environmental
Protection Agency, Subject: ``Meeting Request to Discuss PM-2.5
Crisis in the San Joaquin Valley'' (referred to in the EPA's
Reasoned Justification TSD as the ``EarthJustice Letters'').
\90\ EPA's Reasoned Justification TSD, p. 6 (within section II
(``Control Measure Identification and Evaluation Methodology'')),
pp. 13-17 (large boilers, steam generators, and process heaters), 29
(non-road, reciprocal internal combustion engines), pp. 58-59
(flares), pp. 73-76 (glass and related products), 80-84 (residential
fuel combustion), p. 85 (fugitive dust controls), pp. 129-131
(managed burning and disposal), pp. 134-136 (commercial cooking), p.
147 (new source review), pp. 149-151 (indirect source review), and
pp. 151-152 (soil NO<INF>X</INF>). We also noted that we did not
review the environmental organizations' recommendations for
primarily VOC-related controls, as the EPA has approved the State's
demonstrations that VOCs are not significant precursors for 1997
annual, 2006 24-hour, and 2012 annual PM<INF>2.5</INF> NAAQS in the
San Joaquin Valley. See, e.g., p. 53 (petroleum production and
marketing), and p. 88 (confined animal facilities).
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Regarding CVAQ's comments regarding technological feasibility and
costs to industry versus social and health impacts, we agree that the
State, in its 2023 SIP Submissions, and the EPA, in our review thereof,
considered the technological feasibility of potential control measures
and reviewed available information regarding the economic feasibility
of potential control measures (i.e., which captures costs to industry).
However, we did not assess the public health and social costs of not
requiring potential control measures during our review of the State's
2023 SIP Submissions because such an assessment is not required for the
contingency measure requirements of the CAA, nor the related control
[[Page 80763]]
measure requirements (e.g., RACM/RACT, BACM/BACT, or MSM) upon which
contingency measures build.\91\
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\91\ Nevertheless, beyond the scope of this rulemaking, the
public may be interested in the EPA's estimates of the monetized
benefit per ton of reducing PM<INF>2.5</INF> and ozone precursor
emissions for certain emission sectors; available at <a href="https://www.epa.gov/benmap/sector-based-pm25-benefit-ton-estimates">https://www.epa.gov/benmap/sector-based-pm25-benefit-ton-estimates</a>.
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In addition, while the EPA may in certain circumstances have
discretion to consider environmental justice in implementing the
requirements of the Act, Executive Orders 12898, 14008, and 14096 do
not provide any independent authority for action. The EPA has
determined that this action satisfies the requirements of CAA section
172(c)(9) for the 1997 annual, 2006 24-hour, and 2012 annual
PM<INF>2.5</INF> NAAQS in the San Joaquin Valley. Under the CAA, the
EPA is required to approve a SIP submission that meets the requirements
of the CAA and applicable federal regulations.
Although these Executive Orders do not provide us with an
independent basis to disapprove CARB and the District's SIP submission,
we conducted an environmental justice analysis to provide additional
context and information about this rulemaking to the public, as
described in section III of this document and section VI of our
proposed rule. Overall, we expect that this action and the codification
of the Residential Wood Burning Contingency Measure and the Rural Open
Areas Contingency Measure, as well as the codification of the Smog
Check Contingency Measure in our separate final action, will contribute
to reduced negative environmental and health impacts on all populations
in the San Joaquin Valley, including communities with EJ concerns. For
these reasons, this action is not expected to have a disproportionately
high or adverse human health or environmental effect on a particular
group of people. The EPA remains committed to working with CARB and the
District to ensure that the PM<INF>2.5</INF> attainment requirements
for this area satisfy applicable CAA requirements and thereby protect
all populations in the area, including communities with EJ concerns,
from disproportionately high or adverse air pollution impacts.
Comment 10: The Valley EJ Organizations allege that, following the
2021 Ninth Circuit Court decision in AIR v. EPA, the EPA began
colluding with CARB and California air districts to weaken the
contingency measure requirement. The Valley EJ Organizations further
state that, during meetings of a workgroup called the ``Padilla
Contingency Measures Subgroup,'' the EPA committed to revise its long-
standing interpretation of the contingency measure requirements,
including specific elements that would relax emission reduction
requirements and contend that the EPA's commitment yielded the Draft
Revised Contingency Measure Guidance.\92\ The commenters also contend
that the EPA now proposes, as it allegedly agreed to during the Padilla
Contingency Measures subgroup proceedings, to ``eviscerate the amount
of contingency measure emission reductions'' and that the ``EPA has
predetermined the outcome of these proposed rulemakings in an agreement
with CARB and the air districts during the Padilla Contingency Measures
Subgroup proceedings,'' thereby violating the procedural due process
clause of the Fifth Amendment to the U.S. Constitution, CAA section
307, the Administrative Procedure Act, and Executive Orders 14008 and
14096.\93\
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\92\ Valley EJ Organizations Comment Letter, p. 2.
\93\ Valley EJ Organizations Comment Letter, p. 11.
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The Valley EJ Organizations include several documents obtained from
the EPA via a Freedom of Information Act request to support their
allegation of collusion.\94\ These include, among other things,
documents relating to EPA engagement in 2021-2023 with the California
Air Pollution Control Officers Association (CAPCOA), the ``Padilla
Contingency Measures Subgroup,'' a letter from South Coast Air Quality
Management District, discussions with California air districts and CARB
senior staff, and an email from EPA Region IX to SJVUAPCD. The
commenters state that these documents indicate that the EPA worked
closely with California air agencies to fashion an agreement to weaken
the contingency measure requirement and that the EPA shared its revised
guidance with the California agencies several months before releasing
the revised guidance to the general public without regard for the
public health consequences from weakening the contingency measure
requirement.\95\
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\94\ Valley EJ Organizations Comment Letter, Exhibits 4 through
12.
\95\ Valley EJ Organizations Comment Letter, pp. 8-11.
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Response to Comment 10: We disagree that the EPA colluded with
California air agencies to weaken the contingency measure requirement
following the 2021 AIR v. EPA decision by the Ninth Circuit Court of
Appeals. In this context, collusion refers to a secret agreement for an
illegal purpose. The process we followed to reconsider and revise
preexisting contingency measure guidance was not secret, nor was our
agreement to reconsider and revise the guidance made for an illegal
purpose.
The Clean Air Act is referred to as a model of cooperative
federalism. Under the CAA, the EPA is responsible for establishing the
NAAQS, and the states are responsible for developing SIPs and SIP
revisions to provide for implementation, maintenance, and enforcement
of the NAAQS. In turn, the EPA is responsible for promulgating
regulations establishing SIP requirements and for providing guidance to
the states in developing SIPs and SIP revisions to meet the various
requirements under the CAA and our implementing regulations.
In that capacity, it is appropriate for the EPA to reconsider
previously-issued guidance in the wake of court decisions that bear on
EPA actions on SIPs that relied on that guidance.\96\ In this instance,
as discussed in the Draft Revised Contingency Measure Guidance, we
issued the draft revised guidance document because recent court
decisions had invalidated key aspects of EPA's historical approach to
implementing the contingency measure requirement, and these court
decisions had the effect of prohibiting an approach that many air
agencies have historically used to meet the contingency measure
requirement.\97\
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\96\ See, for example, EPA Office of Transportation and Air
Quality, ``Implementing Clean Air Act Section 182(d)(1)(A):
Transportation Control Measures and Transportation Control
Strategies to Offset Growth in Emissions Due to Growth in Vehicle
Miles Travelled,'' EPA-420-B-12-053, August 2012 (revised guidance
in light of the Ninth Circuit Court of Appeals decision in
Association of Irritated Residents v. EPA, 632 F.3d 584, at 596-597
(9th Cir. 2011), reprinted as amended on January 27, 2012).
\97\ Draft Revised Contingency Measure Guidance, p. 2.
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The EPA developed the Draft Revised Contingency Measure Guidance
based on the recommendations of an ad hoc internal working group,
referred to as the Contingency Measure Task Force, that the EPA
assembled soon after the D.C. Circuit Court of Appeals decision in
Sierra Club v. EPA.\98\ The Contingency Measure Task Force was
comprised of EPA program staff and attorneys from both the EPA regions
and headquarters. During the process of developing options for EPA
management consideration and preparing the Draft Revised Contingency
[[Page 80764]]
Measure Guidance, California air agencies made their views known to the
EPA, but those agencies played no part in the drafting or review of the
recommendations made by the Contingency Measure Task Force to EPA
management or the substance of the Draft Revised Contingency Measure
Guidance itself.
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\98\ The Sierra Club v. EPA decision adopted the rationale of an
earlier decision by the Ninth Circuit Court of Appeals in Bahr v.
EPA that invalidated already-implemented measures as contingency
measures for the purposes of CAA section 172(c)(9). Sierra Club v.
EPA, 21 F.4th 815, 827-28 (D.C. Cir. 2021) and Bahr v. EPA, 836 F.3d
1218 (9th Cir. 2016).
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Also in the spirit of cooperative federalism, the EPA routinely
communicates with state and local air agencies responsible for SIPs and
SIP revisions regarding compliance with SIP requirements. Again, the
states are responsible for adoption and submission of SIPs and SIP
revisions and there are consequences for failure to meet SIP submission
deadlines.
In this instance, the EPA engaged with state and local air agencies
to hear their concerns over meeting the contingency measure SIP
requirements and to provide a description of the types of revisions to
the contingency measure guidance that EPA staff were developing for
consideration by EPA management. The impetus for heightened interest on
the part of state and local air agencies was the need to meet near-term
deadlines for submission of SIP revisions addressing the contingency
measure SIP requirements for multiple ozone and PM<INF>2.5</INF> NAAQS.
Documents cited by the commenter as evidence of collusion simply reveal
that the EPA was responsive to state and local agency requests for
insight as to what the contingency measure guidance revisions might
entail if and when approved by EPA management. Thus the air agencies
that developed SIP revisions in reliance on the descriptions by EPA
staff of not-yet-approved revisions to the contingency measure guidance
were taking a risk that the guidance, once made publicly available,
would differ in material ways from what EPA staff had described.
With respect to the commitments that the EPA made in connection
with the Padilla Contingency Measures Subgroup,\99\ the EPA did not
commit to making any specific revisions to the contingency measure
guidance or to making any revisions to the guidance that are
inconsistent with the CAA or case law. Rather, the Agency committed
``to explore interpretations and approaches that are consistent with
the court decisions'' and, among other things, ``to revisit'' the
general bases for calculating the amount of emission reductions that
contingency measures should provide, but as noted previously, the EPA
did not commit to any particular outcome. The Contingency Measure Task
Force followed through on these commitments through meetings and review
of draft documents that were internal to the EPA and eventual
publication of notice in the Federal Register of the availability of
the Draft Revised Contingency Measure Guidance for public review and
comment. We believe the revised draft guidance provides an approach
that state and local air agencies may use to meet the contingency
measure SIP requirements under the CAA.
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\99\ The Padilla Contingency Measures Subgroup was one of
several such ad hoc groups assembled in response to an inquiry from
U.S. Senator Padilla. See the letter dated December 3, 2021, from
Joseph Goffman, Principal Deputy Assistant Administrator to U.S.
Senator Alex Padilla, responding to letter dated October 19, 2021,
from U.S. Senator Alex Padilla to Michael Regan, Administrator, EPA.
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The EPA issued the Draft Revised Contingency Measure Guidance on
March 17, 2023, and sought public comment on section 3 (``Showing that
the CMs Achieve Sufficient Reductions''), section 4 (``Reasoned
Justification for Less Than OYW of Progress''), and section 5
(``Guidance on Timing of Reductions from CMs'') of the draft guidance
over a 30-day period ending April 24, 2023.\100\ We applied the
underlying concepts of the draft guidance in our evaluation of the SJV
PM<INF>2.5</INF> Contingency Measure SIP, described as much in our
proposed rule, and provided a 30-day comment period ending January 9,
2024, consistent with the public notice requirements of the CAA and the
Administrative Procedure Act.\101\
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\100\ 88 FR 17571.
\101\ 88 FR 87988.
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For this action, we evaluated the two individual District
contingency measures, the Residential Wood Burning Contingency Measure
and the Rural Open Areas Contingency Measure, to determine whether they
met the requirements for such measures under the CAA and the EPA's
regulations. We also considered the sum of the emission reductions from
the two individual District contingency measures plus CARB's Smog Check
Contingency Measure relative to the recommended amount we have
indicated contingency measures should achieve. Because the measures,
considered together, would not achieve the recommended amount of
emission reductions for NO<INF>X</INF>, CARB and the District submitted
infeasibility demonstrations documenting the unavailability of
additional feasible contingency measures for that PM<INF>2.5</INF>
precursor.
We reviewed and evaluated the infeasibility demonstrations and in
our proposed rule provided the rationale for our conclusion that the
individual District contingency measures met the applicable
requirements for such measures and that CARB and the District had
provided a reasoned justification, through the infeasibility
demonstrations, for not adopting contingency measures sufficient to
achieve the recommended amount of emission reductions for
NO<INF>X</INF>. In this action, we are finalizing our approval of the
SJV PM<INF>2.5</INF> Contingency Measure SIP for the reasons given in
the proposed rule, as clarified and supplemented in responses to
comments. While the Valley EJ Organizations object to the consideration
of feasibility in connection with the contingency measure SIP
requirement, the commenters have raised no specific objection our
evaluation of the infeasibility demonstrations from CARB and the
District upon which our final approval rests.
In summary, in our proposed rule on the State's contingency measure
SIP submissions for the PM<INF>2.5</INF> NAAQS in the San Joaquin
Valley, as well as our Draft Revised Contingency Measures Guidance, we
articulated a reasoned justification for the change in EPA policy on
the contingency measure requirements and respond in this document to
comments opposing those policy changes, and we explained how we were
reviewing the 2023 SIP Submissions in light of the new guidance. The
EPA believes that such actions satisfy the applicable requirements for
public process under the CAA and Administrative Procedure Act, as well
as our responsibilities to engage state and local air agencies on CAA
requirements and the development of SIP revisions in the wake of
applicable court decisions.
III. Environmental Justice Considerations
As described in detail in our proposal, the EPA reviewed
environmental and demographic data for the San Joaquin Valley using the
EPA's EJ screening and mapping tool (``EJSCREEN'') and compared the
data to the corresponding data for the United States as a whole, and to
California as a whole.\102\ The results of the analysis are provided
for
[[Page 80765]]
informational and transparency purposes.
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\102\ 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. These indicators are included in EJSCREEN reports
that are available in the rulemaking docket for this action. EPA
Region IX, ``EJSCREEN Analysis for the Eight Counties of the San
Joaquin Valley Nonattainment Area,'' August 2022.
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This final action approves the State's contingency measure SIP
submissions for the 1997 annual, 2006 24-hour, and 2012 annual
PM<INF>2.5</INF> NAAQS in the San Joaquin Valley. Information on these
PM<INF>2.5</INF> NAAQS and their relationship to health impacts can be
found at 62 FR 38652 (July 18, 1997), 71 FR 61144 (October 17, 2006),
and 78 FR 3086 (January 15, 2013), respectively. We expect that this
action and resulting emission reductions will generally be neutral or
contribute to reduced environmental and health impacts on all
populations in the San Joaquin Valley, including communities with EJ
concerns. At a minimum, this action would not worsen existing air
quality and is expected to help ensure the area is meeting requirements
to attain and/or maintain air quality standards. Further, there is no
information in the record indicating that this action is expected to
have disproportionately high or adverse human health or environmental
effects on a particular group of people.
IV. EPA Action
For the reasons described in our proposed rule and in responses to
comments and under CAA section 110(k)(3), the EPA is taking final
action to approve SIP revisions submitted by CARB on June 8, 2023, and
October 16, 2023, for the San Joaquin Valley to address the contingency
measure SIP requirements for San Joaquin Valley for the 1997 annual,
2006 24-hour, and 2012 annual PM<INF>2.5</INF> NAAQS.
The SIP submissions include the contingency measure plan element
for San Joaquin Valley for the relevant PM<INF>2.5</INF> NAAQS
(referred to herein as the ``SJV PM<INF>2.5</INF> Contingency Measure
SIP'') and two specific contingency measures, referred to herein as the
Residential Wood Burning Contingency Measure and the Rural Open Areas
Contingency Measure. We are approving the SJV PM<INF>2.5</INF>
Contingency Measure SIP as meeting the applicable requirements of CAA
section 172(c)(9) and 40 CFR 51.1014 for San Joaquin Valley for the
applicable PM<INF>2.5</INF> NAAQS based on our approval of these two
contingency measures, the emission reductions from the two contingency
measures and the Smog Check Contingency Measure, and our review of the
State's infeasibility demonstrations provided in the SJV
PM<INF>2.5</INF> Contingency Measure SIP.
The Residential Wood Burning Contingency Measure and the Rural Open
Areas Contingency Measure are included in amendments to SJVUAPCD Rule
4901 (``Wood Burning Fireplaces and Wood Burning Heaters'') and Rule
8051 (``Open Areas''), respectively. We are taking final action to
approve the two specific contingency measures because they meet the
requirements under CAA section 172(c)(9) and 40 CFR 51.1014 for such
measures.
As discussed in Section I.B of the proposed rule, on November 26,
2021, the EPA disapproved the contingency measure SIP elements
submitted for the 2006 24-hour and 2012 annual PM<INF>2.5</INF> NAAQS
for San Joaquin Valley.\103\ These disapprovals were effective on
December 27, 2021. In a separate action published on November 26, 2021,
also effective December 27, 2021, the EPA disapproved the contingency
measure element for the 1997 annual PM<INF>2.5</INF> NAAQS for San
Joaquin Valley.\104\
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\103\ 86 FR 67343.
\104\ 86 FR 67329.
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In our November 26, 2021 final disapprovals, we noted that offset
and highway sanctions under CAA sections 179(b)(2) and 179(b)(1),
respectively, would not apply if California submits, and the EPA
approves, a SIP submission or submissions that correct the deficiencies
identified in our final actions prior to the imposition of
sanctions.\105\ Through this final approval action, we find that
California has corrected the deficiencies associated with the
contingency measure elements for the 1997 annual, 2006 24-hour and 2012
annual PM<INF>2.5</INF> NAAQS for San Joaquin Valley. Thus, upon the
effective date of this final rule, all sanctions and any sanctions
clocks associated with the disapprovals of the contingency measure
elements for the 1997 annual, 2006 24-hour and 2012 annual
PM<INF>2.5</INF> NAAQS for San Joaquin Valley will be permanently
terminated.\106\
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\105\ 86 FR 67329, 67341 and 86 FR 67343, 67346-67347. We note
that, concurrent with our proposed rules to approve the State's 2023
SIP submissions, the EPA issued an interim final determination that
stayed offset sanctions and deferred highway sanctions. 88 FR 87934
(December 20, 2023).
\106\ In addition, our CAA section 110(c) FIP obligations
arising from the disapprovals of the contingency measure elements
will be permanently terminated.
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Lastly, based on this final action, we find that our FIP obligation
arising from our December 6, 2018 finding of failure to submit is
terminated, and thus, we will not be taking final action on our August
8, 2023 proposed PM<INF>2.5</INF> contingency measure FIP for San
Joaquin Valley.\107\
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\107\ See our December 20, 2023 proposed rule at 88 FR 87991 for
a discussion of the finding of failure to submit and related FIP
obligation.
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V. Incorporation by Reference
In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference of SJVUAPCD
Rule 4901 (``Wood Burning Fireplaces and Wood Burning Heaters''),
amended May 18, 2023, which regulates emissions from wood burning
fireplaces, wood burning heaters, and outdoor wood burning devices, and
Rule 8051 (``Open Areas''), amended September 21, 2023, which regulates
fugitive dust from open areas. The May 18, 2023 version of Rule 4901
and the September 21, 2023 version of Rule 8051 will replace the
previously approved versions of these rules, respectively, in the
California SIP. The EPA has made, and will continue to make, these
documents available through <a href="http://www.regulations.gov">www.regulations.gov</a> and at the EPA Region
IX Office (please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section of this preamble for more information).
VI. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Clean Air Act
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves a state plan and related
measures as meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
<bullet> 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);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
[[Page 80766]]
<bullet> Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act.
In addition, the SIP is not approved to 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. In those areas of
Indian country, the final rule does not have tribal implications and
will not impose substantial direct costs on tribal governments or
preempt tribal law as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000).
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 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 communities with EJ concerns to the
greatest extent practicable and permitted by law. The EPA defines 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.''
CARB and the District did not evaluate EJ considerations as part of
the SIP submissions addressed in this action; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. The EPA performed an EJ analysis, as described in section
III of this document and section VI of the EPA's proposed rule,
entitled ``Environmental Justice Considerations.'' The EPA conducted
this analysis for the purpose of providing additional context and
information about this rulemaking to the public, and the EPA does not
rely on this analysis as a basis for this final action. In addition,
the EPA has addressed comments on Executive Orders relating to EJ in
Response to Comment 9 of this document. Due to the nature of the action
being taken here, this action is expected to have a neutral to positive
impact on the air quality of the affected area. In addition, there is
no information in the record upon which this decision is based
inconsistent with the stated goal of E.O. 12898 of achieving EJ for
communities with EJ concerns.
This action is subject to the Congressional Review Act, and the EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 3, 2024. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review, nor does it extend the time within which a petition
for judicial review may be filed, and it shall not postpone the
effectiveness of such rule or action. This action may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Ammonia,
Incorporation by reference, Intergovernmental relations, Nitrogen
oxides, Particulate matter, Reporting and recordkeeping requirements,
Sulfur oxides, Volatile organic compounds.
Dated: September 25, 2024.
Martha Guzman Aceves,
Regional Administrator, Region IX.
For the reasons discussed in the preamble, part 52, chapter I,
title 40 of the Code of Federal Regulations is 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 52.220 is amended by adding paragraphs (c)(334)(i)(B)(3),
(c)(535)(i)(A)(2), (c)(618) and (619) to read as follows:
Sec. 52.220 Identification of plan--in part.
* * * * *
(c) * * *
(334) * * *
(i) * * *
(B) * * *
(3) Previously approved on February 17, 2006, in paragraph
(c)(334)(i)(B)(2) of this section and now deleted with replacement in
paragraph (c)(619)(i)(A)(1) of this section: Rule 8051, ``Open Areas,''
amended on August 19, 2004.
* * * * *
(535) * * *
(i) * * *
(A) * * *
(2) Previously approved on July 22, 2020, in paragraph
(c)(535)(i)(A)(1) of this section and now deleted with replacement in
paragraph (c)(618)(i)(A)(1) of this section: Rule 4901, ``Wood Burning
Fireplaces and Wood Burning Heaters,'' amended on June 20, 2019.
* * * * *
(618) The following plan revisions were submitted electronically on
June 8, 2023, by the Governor's designee, as an attachment to a letter
dated June 7, 2023.
(i) Incorporation by reference. (A) San Joaquin Valley Unified Air
Pollution Control District.
(1) Rule 4901, ``Wood Burning Fireplaces and Wood Burning
Heaters,'' amended on May 18, 2023.
(2) [Reserved]
(B) [Reserved]
(ii) Additional materials. (A) San Joaquin Valley Unified Air
Pollution Control District.
(1) ``PM<INF>2.5</INF> Contingency Measure State Implementation
Plan Revision (May 18, 2023),'' adopted on May 18, 2023, excluding Rule
4901, ``Wood Burning Fireplaces and Wood Burning Heaters.''
(2) [Reserved]
(B) [Reserved]
(619) The following plan revision was submitted electronically on
October 16, 2023, by the Governor's designee, as an attachment to a
letter dated October 13, 2023.
(i) Incorporation by reference. (A) San Joaquin Valley Unified Air
Pollution Control District.
(1) Rule 8051, ``Open Areas,'' amended on September 21, 2023.
(2) [Reserved]
(B) [Reserved]
(ii) [Reserved]
* * * * *
Sec. 52.237 [Amended]
0
3. Section 52.237 is amended by removing and reserving paragraphs
(a)(9), (10) and (11).
[FR Doc. 2024-22681 Filed 10-3-24; 8:45 am]
BILLING CODE 6560-50-P
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