Rule2026-05592
Approval of Clean Air Plans; San Joaquin Valley, California; Contingency Measures for 1997 Ozone Standards
Primary source
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Published
March 23, 2026
Effective
April 22, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is taking final action to approve under the Clean Air Act (CAA or "Act") a state implementation plan (SIP) submission from the State of California as meeting the attainment-related contingency measure requirements for the 1997 ozone national ambient air quality standards (NAAQS or "standards") in the San Joaquin Valley, California, Extreme ozone nonattainment area. The SIP revision is titled "California Smog Check Contingency Measure State Implementation Plan Revision" (September 15, 2023) ("Smog Check Contingency Measure SIP"). The EPA's approval relies on the previously approved contingency measure for the 1997 ozone NAAQS for the San Joaquin Valley and the justifications for not adopting additional contingency measures that provide for the recommended amount of emissions reductions for such measures. Based on our final approval, the EPA is also finalizing our determination that the State of California has fulfilled the commitment made by the State in connection with a previous approval action to develop, adopt, and submit attainment contingency measures for the San Joaquin Valley Extreme nonattainment area for the 1997 ozone NAAQS meeting the requirements of the CAA.
Full Text
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<title>Federal Register, Volume 91 Issue 55 (Monday, March 23, 2026)</title>
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[Federal Register Volume 91, Number 55 (Monday, March 23, 2026)]
[Rules and Regulations]
[Pages 13747-13762]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-05592]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2025-2466; FRL-13043-02-R9]
Approval of Clean Air Plans; San Joaquin Valley, California;
Contingency Measures for 1997 Ozone Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final action.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve under the Clean Air Act (CAA or ``Act'') a state
implementation plan (SIP) submission from the State of California as
meeting the attainment-related contingency measure requirements for the
1997 ozone national ambient air quality standards (NAAQS or
``standards'') in the San Joaquin Valley, California, Extreme ozone
nonattainment area. The SIP revision is titled ``California Smog Check
Contingency Measure State Implementation Plan Revision'' (September 15,
2023) (``Smog Check Contingency Measure SIP''). The EPA's approval
relies on the previously approved contingency measure for the 1997
ozone NAAQS for the San Joaquin Valley and the justifications for not
adopting additional contingency measures that provide for the
recommended amount of emissions reductions for such measures. Based on
our final approval, the EPA is also finalizing our determination that
the State of California has fulfilled the commitment made by the State
in connection with a previous approval action to develop, adopt, and
submit attainment contingency measures for the San Joaquin Valley
Extreme nonattainment area for the 1997 ozone NAAQS meeting the
requirements of the CAA.
DATES: This action is effective April 22, 2026.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2025-2466. 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 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: Laura Lawrence, Planning Section (AIR-
2-1), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105,
telephone number: (415) 972-3407, email address:
<a href="/cdn-cgi/l/email-protection#e488859396818a8781ca8885919685a4819485ca838b92"><span class="__cf_email__" data-cfemail="8ee2eff9fcebe0edeba0e2effbfcefceebfeefa0e9e1f8">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. Summary of Proposed Action
II. Public Comments and EPA Responses
A. Comments From Valley Air Advocates
B. Comments From Central Valley Air Quality Coalition (CVAQ)
C. Comments From California Environmental Voters (CEV)
D. Comments From Citizens Rulemaking Alliance (CRA)
E. Comments From Concerned Citizen
F. Comments From Anonymous Commenters
III. EPA Action
IV. Statutory and Executive Order Reviews
I. Summary of Proposed Action
On November 14, 2025, the EPA proposed to approve California's Smog
Check Contingency Measure State Implementation Plan Revision (``Smog
Check Contingency Measure SIP''), submitted by the California Air
Resources Board (CARB), as meeting the attainment-related requirements
for contingency measures under CAA section 172(c)(9) for the San
Joaquin Valley nonattainment area for the 1997
[[Page 13748]]
ozone standards.\1\ The EPA previously approved the Smog Check
Contingency Measure as a stand-alone contingency measure, and we
indicated at the time we approved the measure that we would be taking a
separate action on the Smog Check Contingency Measure SIP to evaluate
whether the Smog Check Contingency Measure SIP fulfills the attainment-
related contingency measure requirements under CAA section 172(c)(9)
for the San Joaquin Valley for the 1997 ozone NAAQS.\2\ Our November
24, 2025 proposed action and this final action constitute the separate,
later action referred to in our final action on the Smog Check
Contingency Measure.
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\1\ 90 FR 51029 (November 14, 2025).
\2\ 89 FR 56222, at 56227 (July 9, 2024).
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In section I. of our proposed action, we presented background
information on the ozone NAAQS,\3\ the nonattainment designation and
classification of the San Joaquin Valley for the 1997 ozone NAAQS, and
the resultant contingency measure SIP obligations, and we summarized
our previous actions on the contingency measure requirement for the San
Joaquin Valley for the 1997 ozone NAAQS.\4\ In section II. of the
proposed action, 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 \5\ and the D.C.
Circuit Court of Appeals.\6\
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\3\ Ground-level ozone pollution is formed from the reaction of
volatile organic compounds (VOC) and oxides of nitrogen
(NO<INF>X</INF>) in the presence of sunlight. These two pollutants,
referred to as ozone precursors, are emitted by many types of
sources, including on-and off-road motor vehicles and engines, power
plants and industrial facilities, and smaller area sources such as
lawn and garden equipment, architectural coatings, and other types
of consumer products.
\4\ 77 FR 12652 (March 1, 2012).
\5\ 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'').
\6\ Sierra Club v. EPA, 21 F.4th 815, 827-828 (D.C. Cir. 2021).
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In addition, in section II. of our proposed action, 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 ``Guidance on the Preparation
of State Implementation Plan Provisions that Address the Nonattainment
Area Contingency Measure Requirements for Ozone and Particulate Matter
(December 3, 2024) (``Revised Contingency Measure Guidance'').\7\ The
principal differences between the revised guidance and previous
guidance on contingency measures relate to the EPA's recommendations
concerning the specific amount of emissions reductions that
implementation of contingency measures should achieve and the timing
for when the emissions reductions from the contingency measures should
occur.
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\7\ The EPA announced the availability of the guidance document
at 89 FR 101602 (December 16, 2024).
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The previous EPA recommendation for the amount of emissions
reductions to achieve from implementation of contingency measures was
one year's worth of reasonable further progress (RFP), which, for
ozone, is three percent of baseline emissions of VOC. The previous
recommendation for time over which the reductions from contingency
measures may occur was one year. The Revised Contingency Measure
Guidance introduces ``one year's worth of progress'' (``OYW of
progress''), a metric intended to be more closely tied to the emissions
reductions required for attainment of the NAAQS, for determining the
amount of emissions reductions that contingency measures should
achieve.
The Revised Contingency Measure Guidance also provides recommended
procedures for developing a demonstration, if applicable, that the area
lacks sufficient feasible contingency measures to achieve the
recommended amount of reductions, which builds on existing guidance
that the state provide a reasoned justification (referred to herein as
an ``infeasibility demonstration'') for why the smaller amount of
emissions reductions from contingency measures is appropriate.
In section III. of the proposed rule, we described the Smog Check
Contingency Measure SIP and evaluated how the District and CARB
complied with the procedural requirements for adopting SIP revisions
and the contingency measure requirements under the CAA.
The Smog Check Contingency Measure SIP includes a contingency
measure (``Smog Check Contingency Measure'') that would narrow the
exemption for new vehicles from emissions testing under the Smog Check
program from eight model years old to seven model years old in a given
nonattainment area if triggered by an EPA finding of failure to meet an
RFP milestone or an EPA finding of failure to attain the NAAQS by the
applicable attainment date for such area. As noted in the proposed
rule, we approved the Smog Check Contingency Measure as a stand-alone
contingency measure in a separate rulemaking,\8\ and, within the San
Joaquin Valley, the Smog Check Contingency Measure has already been
triggered as a result of the EPA's determination that the San Joaquin
Valley failed to attain the applicable attainment date for the 1997
ozone NAAQS.\9\
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\8\ 89 FR 56222 (July 9, 2024).
\9\ 90 FR 46065 (September 25, 2025).
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The Smog Check Contingency Measure SIP also includes estimates of
emissions reductions from implementation of the Smog Check Contingency
Measure in the relevant years and nonattainment areas to which the
measure applies, CARB's evaluation of various mobile and area source
categories to identify other feasible contingency measures, and an
infeasibility demonstration that provides CARB's justification for not
adopting additional contingency measures for sources under CARB
jurisdiction (i.e., other than the Smog Check Contingency Measure).
In addition to the Smog Check Contingency Measure SIP, CARB and the
District recommended that the EPA take into consideration the
District's and CARB's ``Ozone Contingency Measure State Implementation
Plan Revision for the 2008 and 2015 8-hour Ozone Standards (April 25,
2024)'' (``2024 SJV Ozone Contingency Measure Plan''), which addresses
the contingency measure SIP requirements for the San Joaquin Valley for
the 2008 and 2015 ozone NAAQS.\10\ The 2024 SJV Ozone Contingency
Measure Plan relies on two adopted contingency measures and commitments
for five additional contingency measures for San Joaquin Valley for the
2008 and 2015 ozone NAAQS. It also includes the District's
infeasibility demonstration for stationary and area sources under
District jurisdiction,\11\ CARB's expanded infeasibility demonstration
for certain area sources under State jurisdiction,\12\ and the
District's
[[Page 13749]]
infeasibility demonstration for transportation control measures.\13\
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\10\ See letter from Ariel Fideldy, Chief, CARB Air Quality
Planning Branch to Michelle Angelich, Acting Director, EPA Region IX
Air and Radiation Division, dated October 16, 2025, and letter from
Sheraz Gill, Deputy Air Pollution Control Officer, SJVUPACD to Edie
Chang, Deputy Executive Officer, CARB, dated October 10, 2025. CARB
submitted the 2024 SJV Ozone Contingency Measure Plan to the EPA on
April 29, 2024. The EPA proposed conditional approval of the 2024
SJV Ozone Contingency Measure Plan with respect to the 2008 ozone
NAAQS at 89 FR 85119 (October 25, 2024).
\11\ 2024 SJV Ozone Contingency Measure Plan, sections 5.1-5.7
and 5.12.
\12\ 2024 SJV Ozone Contingency Measure Plan, section 5.10.
\13\ 2024 SJV Ozone Contingency Measure Plan, section 5.11.
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As noted in the proposed rule, we took into account the
infeasibility demonstrations included in the 2024 SJV Ozone Contingency
Measure Plan in our evaluation of the Smog Check Contingency Measure
SIP with respect to contingency measure SIP requirements for the San
Joaquin Valley for the 1997 ozone NAAQS. Our reliance on the
infeasibility demonstrations included in the 2024 SJV Ozone Contingency
Measure Plan is appropriate even though it was not developed or
submitted to address the contingency measure requirements for the 1997
ozone NAAQS because control strategies for all three ozone NAAQS (the
1997 ozone NAAQS, the 2008 ozone NAAQS, and the 2015 ozone NAAQS)
relate to the same averaging period (8-hour average), the same
precursor emissions (NO<INF>X</INF> and VOC) and the same emissions
sources, the same planning emissions inventories (summertime average
day), and the same types of control measures.
As explained in more detail in the proposed rule, we preliminarily
found that the infeasibility demonstrations provided in the Smog Check
Contingency Measure SIP and the 2024 SJV Ozone Contingency Measure Plan
support the conclusion that the contingency measures already adopted
and approved, plus the contingency measures to which the District and
CARB have committed currently, constitute the entire set of feasible
contingency measures for ozone precursor emissions in the San Joaquin
Valley. We noted that, because the identified feasible contingency
measures have been selected to address only the 2008 and 2015 ozone
NAAQS, they are not available for the 1997 ozone NAAQS, which means
that the only feasible contingency measure for the purposes of the 1997
ozone NAAQS is the Smog Check Contingency Measure.
Therefore, we preliminarily concluded that, based on achieving a
portion of OYW of progress for NO<INF>X</INF> and VOC reductions from a
contingency measure (the Smog Check Contingency Measure) that meets the
requirements of CAA section 172(c)(9) and the reasoned justifications
contained in the infeasibility demonstrations, the Smog Check
Contingency Measure SIP fulfills the attainment-related contingency
measure SIP requirements for the 1997 ozone NAAQS for the San Joaquin
Valley and thereby fulfills the commitment the State made in connection
with the EPA's approval of the attainment plan for the 1997 ozone
NAAQS. We are confirming that preliminary conclusion in this final
rule.
Please see our proposed rule for more information.\14\
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\14\ 90 FR 51029 (November 14, 2025).
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II. Public Comments and EPA Responses
The EPA's proposed action provided a 30-day public comment period.
During this period, we received comments from seven individuals and
groups.
In the following paragraphs, we summarize the substantive comments
objecting to our proposed action and provide our responses. All comment
letters in their entirety, including attachments where provided, are
available in the docket for this rulemaking.
The EPA's proposed action provided a 30-day public comment period.
During this period, we received comments from seven individuals and
groups.
In the following paragraphs, we summarize the substantive comments
objecting to our proposed action and provide our responses. All comment
letters in their entirely, including attachments where priovided, are
avaiable in the docket for this rulemaking.
A. Comments From Valley Air Advocates <SUP>15</SUP>
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\15\ Comments were submitted by the Central California
Environmental Justice Network, Committee for a Better Arvin, Medical
Advocates for Healthy Air and Sierra Club (collectively, referred to
herein as ``Valley Air Advocates.''
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Comment A-1: Valley Air Advocates note that, in the proposed
action, the EPA does not calculate OYW of RFP and should make the
effort to include this information in the final rule for a complete
record. Valley Air Advocates further assert that the EPA fails to
provide a reasoned explanation for why it may approve the Smog Check
Contingency Measure SIP with respect to the attainment-related
contingency measure requirements for the 1997 ozone NAAQS based on a
different standard from that which the Agency applied in 2012 to
approve the contingency measure element of the attainment plan for the
1997 ozone NAAQS.
Response to Comment A-1: Valley Air Advocates are correct that the
EPA applied the Agency's contingency measure guidance in effect at that
time in approving the contingency measure element of the attainment
plan for the San Joaquin Valley for the 1997 ozone NAAQS as meeting the
RFP-related contingency measure requirements of the CAA.\16\ The EPA's
previous contingency measure guidance cited OYW of RFP as the amount of
emissions reductions contingency measures should achieve to meet the
CAA contingency measure requirements and allowed states to rely on
emissions reductions that were in excess of the reductions needed for
RFP and attainment to meet contingency measure requirements.
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\16\ 76 FR 57846, at 57864 (September 16, 2011); finalized at 77
FR 12652 (March 1, 2012).
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However, the EPA did not approve the contingency measure element of
the attainment plan as meeting the attainment-related contingency
measure requirements of the CAA on that same basis. The EPA relied on
CAA section 182(e)(5) to approve the contingency measure element of the
attainment plan as meeting the attainment-related contingency measure
requirements of the CAA on the basis of a commitment by CARB to
develop, adopt and submit by 2020 attainment contingency measures
meeting the requirements of CAA section 172(c)(9), pursuant to CAA
section 182(e)(5).\17\
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\17\ 77 FR 12652, at 12670 (March 1, 2012). See also 40 CFR
52.220(c)(396)(ii)(A)(2)(i).
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In our previous action on the attainment plan for the San Joaquin
Valley for the 1997 ozone NAAQS, we indicated that, following the
State's submittal of the additional attainment-related contingency
measures, the EPA would approve or disapprove the submission for
compliance with the contingency measure requirements pursuant to CAA
section 110.\18\
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\18\ 76 FR 57846, at 57864 (September 16, 2011).
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In our proposed rule, we proposed to approve the Smog Check
Contingency Measure SIP (which represents the submission from the state
to fulfill the commitment approved in 2012) using the Agency's
contingency measure guidance in effect at the time of the action. The
Agency's current contingency measure guidance cites OYW of progress
(rather than RFP) as the amount of emissions reductions contingency
measures should achieve to meet the CAA contingency measure
requirements, but it does not allow states to rely on emissions
reductions that were in excess of the reductions needed for RFP and
attainment to meet contingency measure requirements. In both the
previous action in 2012 and the proposed action in 2025, the EPA
appropriately applied the Agency's contingency measure guidance in
effect at the time of the EPA action.
As to the previous recommendation of OYW of RFP, the Valley Air
Advocates
[[Page 13750]]
are correct in that the amount of emissions reductions calculated in
terms of OYW of RFP is greater than the amount calculated in terms of
OYW of progress, but the difference is not as great as described in the
comment. Under the previous EPA contingency measure guidance, the
recommended amount of reductions for contingency measures would have
been 17.0 tons per day (tpd) of NO<INF>X</INF>, 13.7 tpd of VOC, or
some combination of contingency measures that would reduce
NO<INF>X</INF> and VOC such that the total reduction is equivalent on a
percentage basis to a three percent reduction in base year VOC
emissions.\19\ In contrast, OYW of progress amounts to 5.0 tpd or 4.1
tpd for NO<INF>X</INF> and VOC, respectively. Under the EPA's revised
contingency measure guidance, the recommended amount (OYW of progress)
applies to both NO<INF>X</INF> and VOC where reductions of both
precursors are needed for attainment.
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\19\ For instance, if a state chose to meet the contingency
measure requirement equally (on a percentage basis) using both
NO<INF>X</INF> and VOC contingency measures, the OYW of RFP metric
would be 8.5 tpd of NO<INF>X</INF> and 6.9 tpd of VOC.
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More importantly, in the case of the EPA's review of the Smog Check
Contingency Measure SIP for compliance with the attainment-related
contingency measure requirements for the 1997 ozone NAAQS, the EPA
would have expected the State to provide a reasoned justification for
not providing contingency measures that would achieve the recommended
amount, whether that amount equals OYW of RFP or OYW of progress. The
State has provided a reasoned justification in the form of
infeasibility demonstrations that show that there are no additional
feasible contingency measures for ozone precursors in the San Joaquin
Valley other than the Smog Check Contingency Measure and the District's
contingency measures already adopted or committed to for the 2008 and
2015 ozone NAAQS.
Comment A-2: The Valley Air Advocates assert that EPA's approval of
the Smog Check Contingency Measure SIP violates the anti-backsliding
provisions in CAA section 172(e) and the specific anti-backsliding
provisions associated with the revocation of the 1997 ozone NAAQS in 40
CFR 51.1105(a)(1). The Valley Air Advocates indicate that the approval
violates the anti-backsliding provisions by effectively eliminating the
requirement by reducing the required emissions reductions to a de
minimis level.
Response to Comment A-2: The EPA promulgated anti-backsliding
provisions consistent with the principles in CAA section 172(e) to
govern the transition from the revoked 1997 ozone NAAQS to the more
stringent 2008 ozone NAAQS.\20\ The anti-backsliding provisions
identify those SIP requirements that continue to apply to an air
quality planning area for the 1997 ozone NAAQS if they applied to the
area at the time of revocation of the 1997 ozone NAAQS, and the
contingency measure requirement is included among the list of
``applicable requirements'' that continue to apply after
revocation.\21\
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\20\ CAA section 172(e) provides: ``If the [EPA] relaxes a
[NAAQS] after November 15, 1990, the [EPA] shall, within 12 months
after the relaxation, promulgate requirements applicable to all
areas which have not attained that standard as of the date of such
relaxation. Such requirements shall provide for controls which are
not less stringent than the controls applicable to areas designated
nonattainment before such relaxation.'' The EPA's anti-backsliding
regulation for the revoked 1997 ozone NAAQS is found at 40 CFR
51.1105.
\21\ 40 CFR 51.1105(a)(1) and 40 CFR 51.1100(o)(13).
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Neither CAA section 172(e) nor EPA's anti-backsliding provisions
bear on the question of whether the Smog Check Contingency Measure SIP
meets the attainment-related contingency measure requirements for the
San Joaquin Valley for the 1997 ozone NAAQS. Rather, CAA section 172(e)
and EPA's anti-backsliding provisions bear on the question of which
requirements continue to apply to a given area after revocation of the
NAAQS, not how a state complies with the requirement that has been
established as one that continues to apply.
In this case, the EPA finds that the Smog Check Contingency Measure
SIP meets the applicable contingency measure requirements under CAA
section 172(c)(9) for the revoked 1997 ozone NAAQS through the State's
adoption of a measure (the Smog Check Contingency Measure), the
contingency measure infeasibility demonstration included in the Smog
Check Contingency Measure SIP, and the contingency measure
infeasibility demonstrations included in the 2024 SJV Ozone Contingency
Measure Plan. In developing the infeasibility demonstrations in the
2024 SJV Ozone Contingency Measure Plan, the District identified five
additional contingency measures that the District has now committed to
adopt for the 2008 and 2015 ozone NAAQS. While these contingency
measures have been determined by the District to be feasible, the
District has already committed to adopt them for the current 2008 and
2015 ozone NAAQS and is not required to adopt them for the revoked 1997
ozone NAAQS.
Comment A-3: The Valley Air Advocates assert that the EPA
unlawfully and arbitrarily proposes approval of the Smog Check
Contingency SIP as meeting the requirements of CAA section 172(c)(9)
for the 1997 ozone NAAQS because the EPA's new interpretation weakens
the amount of reductions required by the EPA-approved SIP. Valley Air
Advocates also assert that the EPA has unlawfully and arbitrarily
failed to provide a reasoned explanation and make a finding on whether
the approval of the Smog Check Contingency Measure SIP with respect to
the 1997 ozone NAAQS constitutes illegal backsliding.
Response to Comment A-3: In relevant part, CAA section 110(l)
prohibits EPA approval of a SIP revision that would interfere with any
applicable requirement concerning attainment and reasonable further
progress (RFP) or any other applicable requirement of the CAA. The Smog
Check Contingency Measure SIP is a SIP revision, and thus, CAA section
110(l) governs the EPA's review of the submission.
The SIP revision that is the subject of this rulemaking (the Smog
Check Contingency Measure SIP) relates to the contingency measure
requirements for nonattainment areas under the CAA. Because, by design,
contingency measures are adopted to achieve emissions reductions beyond
those needed by an area to demonstrate RFP and attainment, contingency
measures by their nature do not interfere with attainment and RFP. In
this instance, the EPA approved the contingency measure (i.e., the Smog
Check Contingency Measure) that is included in the Smog Check
Contingency Measure SIP in a separate action. In that separate action,
the EPA found that the Smog Check Contingency Measure would provide
emissions reductions that are surplus to those that are needed for
other CAA purposes or that are relied upon for RFP or attainment.\22\
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\22\ 88 FR 87981, at 87985 (December 20, 2023); finalized at 89
FR 56222 (July 9, 2024).
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CAA section 110(l) also prohibits approval of SIP revisions that
interfere with ``any other applicable requirement'' of the CAA. The
only other ``applicable requirement'' of the CAA that applies in this
instance is the attainment-related contingency measure requirement
under CAA section 172(c)(9). For the reasons provided by the EPA in our
proposed rule and in the responses to comment provided herein, we
conclude that the Smog Check Contingency Measure SIP meets the
attainment-related contingency measure requirements under CAA section
172(c)(9) for the San Joaquin Valley for
[[Page 13751]]
the 1997 ozone NAAQS. Based on our conclusion that the Smog Check
Contingency Measure SIP meets the only other ``applicable requirement''
of the Act, we find that our approval would not interfere with any
other applicable requirement of the Act, consistent with the provisions
of CAA section 110(l).
Lastly, the EPA-approved SIP includes a commitment by CARB to
develop, adopt and submit by 2020 attainment contingency measures
meeting the requirements of CAA section 172(c)(9), pursuant to CAA
section 182(e)(5), for the San Joaquin Valley for the 1997 ozone NAAQS.
The EPA-approved commitment does not specify an amount of emissions
reductions that the attainment contingency measures must achieve but
only specifies that the attainment contingency measures must meet the
requirements of CAA section 172(c)(9). Thus, our approval of the Smog
Check Contingency Measure SIP does not weaken the amount of reductions
required for contingency measures under the SIP, as the commenter
suggests, because the SIP does not specify an amount.
Comment A-4: Valley Air Advocates assert that EPA's proposed
approval of the Smog Check Contingency Measure SIP based on OYW of
progress, as opposed to OYW of RFP, violates CAA section 172(c)(9).
Valley Air Advocates cite the language of the provision, the
legislative history, and the statutory scheme to support an
interpretation that the CAA section 172(c)(9) requires contingency
measures to achieve OYW of RFP. As for the language of CAA section
172(c)(9), Valley Air Advocates note that while the contingency measure
requirement applies to both failures to make RFP and failures to attain
the NAAQS by the applicable attainment date, only the reference to RFP
suggests a specific quantity of emissions to be reduced. Valley Air
Advocates also cite the Ninth Circuit's decision in Association of
Irritated Residents v. EPA \23\ as support for the interpretation that
CAA section 172(c)(9) requires contingency measures that provide for
OYW of RFP. Lastly, Valley Air Advocates state that the OYW of RFP
approach is more consistent with the CAA's scheme of imposing more
stringent requirements for ozone nonattainment areas based on
attainment status (i.e., an Extreme area has more stringent
requirements than a Serious area, which likewise has more stringent
requirements than a Moderate area) than the OYW of progress approach.
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\23\ Association of Irritated Residents v. EPA, 10 F.4th 937
(9th Cir., 2021) (``Association of Irritated Residents v. EPA'').
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Response to Comment A-4: Regarding emissions reduction metrics
(i.e., the recommended amount of emissions 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
emissions reductions that contingency measures should achieve).
CAA section 172(c)(9) (``Contingency measures'') requires the state
to adopt SIP revisions for nonattainment areas that 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. Section 172(c)(9)
also specifies that such measures must be included in the SIP revision
as contingency measures to take effect in any such case without further
action by the state or the EPA.
Thus, while section 172(c)(9) requires contingency measures where
an area fails to make RFP, the language does not specify what amount of
emissions 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 emissions 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 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 in the form of an infeasibility
demonstration if the state is unable to identify and adopt contingency
measures that can achieve the recommended amount of emissions
reductions.\24\
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\24\ 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 the EPA's Final Revised Contingency Measure
Guidance, pp. 23-27.
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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.\25\ With respect to a failure to attain by the
applicable attainment date, the CAA too provides a remedy by requiring
a new attainment plan.\26\
---------------------------------------------------------------------------
\25\ See CAA sections 182(g)(3) and 189(c)(3).
\26\ See CAA section 179(d).
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In reviewing our long-standing approach to contingency measures,
the EPA observed that basing the amount of emissions 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.\27\ The OYW of RFP approach was
unnecessarily conservative for estimating the amount of emissions
reductions needed for contingency measure purposes because a given
percentage of the base year inventory tends to represent a much more
[[Page 13752]]
significant portion of the attainment projected inventory.
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\27\ EPA's Final Revised Contingency Measure Guidance, pp. 23-
27.
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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
emissions 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 make RFP, which is to
ensure uninterrupted progress toward attainment while the next steps
unfold in response to the failure. In addition, for ozone, the
recommended percentage of reductions represents appropriate progress
toward attainment as opposed to a fixed amount. The annual rate of
reductions (i.e., the percentage) could be more or less than three
percent, depending on the amount of reductions necessary to demonstrate
attainment, and states should perform this calculation for both ozone
precursors, VOC and NO<INF>X</INF>.
Moreover, 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 emissions 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 used the newly-recommended metric in preparing
the Smog Check 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 submission relies on a
contingency measure that provides for less than OYW of progress or RFP
for both ozone precursors. The only difference is the extent to which
the emissions reductions from the contingency measure fall short of
each metric.
Using either metric, the EPA would have expected the State to
provide a reasoned justification for not adopting contingency measures
sufficient to achieve greater VOC and NO<INF>X</INF> emissions
reductions. Consistent with the EPA's recommendations in the Revised
Contingency Measure Guidance, California did so in this case in the
form of infeasibility demonstrations in the Smog Check Contingency
Measure SIP and the 2024 SJV Ozone Contingency Measure Plan.
Second, the commenters are incorrect by stating that only the
reference to RFP in CAA section 172(c)(9) suggests a specific amount of
emissions reductions. RFP and attainment both suggest a specific
quantity of emissions reductions. For ozone, the emissions reductions
required for RFP are generally three percent of baseline VOC emissions
each year (averaged over a three-year period). Emissions reductions
needed for attainment are the emissions from the attainment year
inventory subtracted from the base year emissions inventory and then
divided by the number of years between the attainment year and the base
year.
Third, Valley Air Advocates assert that the decision in the
Association of Irritated Residents v. EPA case highlights and connects
to the statutory link between contingency measures and RFP. The
Association of Irritated Residents v. EPA decision supports the
proposition that surplus emissions 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 emissions reductions for such measures. However, the decision does
not bear on the question of the amount of emissions reductions that
contingency measures should achieve or the consideration of feasibility
of additional measures as justification for not adopting contingency
measures sufficient to achieve the recommended amount of such measures.
The rationale for our approval of the Smog Check Contingency
Measure Plan SIP for the 1997 ozone NAAQS is not the same as the
rationale for our approval, later withdrawn in response to the
Association of Irritated Residents v. EPA decision, of the contingency
measure element for San Joaquin Valley for the 2008 ozone NAAQS that
was at issue in this case. In the case of the contingency measure
element for the 2008 ozone NAAQS, the EPA took into account the surplus
emissions 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.'' \28\ 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.''
\29\ 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 appropriate.''
\30\ The Court rejected the EPA's rationale for allowing consideration
of surplus emissions 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.'' \31\
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\28\ Association of Irritated Residents v. EPA, 10 F.4th 937,
946 (9th Cir. 2021).
\29\ Id.
\30\ Id.
\31\ Id. at 947.
---------------------------------------------------------------------------
In the wake of the Association of Irritated Residents v. EPA
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 Revised Contingency Measure
Guidance. Among other things, in the 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 emissions 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 emissions reductions.\32\ We found that
[[Page 13753]]
an update to our contingency measures guidance was justified in light
of changed factual circumstances and a current understanding of what
remaining controls may be available for states to adopt as contingency
measures.
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\32\ EPA's Revised Contingency Measure Guidance, pp. 23-33
(revised metric) and pp. 33-45 (reasoned justification for adoption
of contingency measures that provide for less than the recommended
amount of emissions reductions).
---------------------------------------------------------------------------
Lastly, we have reviewed the commenter's hypothetical scenario
purportedly illustrating a fatal flaw in the OYW of progress metric and
disagree that it shows that the OYW of progress metric runs contrary to
the structure of the CAA. The scenario compares three ozone areas: one
is a Serious nonattainment area, one is a Severe nonattainment area,
and one is an Extreme ozone nonattainment area. All three areas have
base year emissions of 200 tpd and require emissions reductions of 100
tpd to attain the ozone NAAQS. The Serious area has a maximum of 9
years to attain, the Severe area has a maximum of 15 years to attain,
and the Extreme area has a maximum of 20 years to attain. In this
scenario, the commenter estimates OYW of progress would be 5.7 tpd for
the Serious area, 3.3 tpd for the Severe area, and 2.5 tpd for the
Extreme area and asserts that the structure of the CAA would suggest
that the Extreme area should be subject to a greater burden to achieve
emissions reductions as compared to the Severe area, which in turn
should be subject to a greater burden that the Serious area, not lesser
burdens.
Under this scenario, we must assume that the nine years, 15 years,
and 20 years represents ``expeditious attainment'' for the Serious,
Severe and Extreme area, respectively. Therefore, the Serious area has
identified control measures sufficient to achieve approximately 11.1
tpd reduction on an annual basis over the nine-year period from the
base year to the attainment year. In contrast, the Severe and Extreme
areas have identified control measures sufficient to achieve
approximately 6.7 tpd and 5 tpd reduction, respectively, on an annual
basis over the 15-year period (for the Severe area) or 20-year period
(for the Extreme area).
This suggests that the Serious area has a greater number of
feasible control measures available to adopt and, in the event of a
failure to attain, that a higher burden to continue that rate of
progress after the attainment year is appropriate. Conversely, the
Severe and Extreme areas would appear to have fewer feasible options
available and, in the event of a failure to attain, that a lower burden
(compared to the Serious area) to maintain the lower rate of progress
after the attainment year is also appropriate. For these reasons, we do
not agree that the scenario provided by the commenter shows that our
revised interpretation, as set forth in the Revised Contingency Measure
Guidance, of the amount of emissions reductions that states should
achieve to meet the CAA's contingency measure SIP requirement runs
contrary to the general remedial scheme of the CAA that imposes more
stringent requirements on higher classified areas.
Comment A-5: Valley Air Advocates state that the EPA does not have
authority under the CAA to exempt California from adopting additional
contingency measures, other than the Smog Check Contingency Measure,
based on an infeasibility demonstration. Section 172(c)(9) does not
include an exemption for measures deemed infeasible. Valley Air
Advocates also state that the EPA's argument that the CAA includes
provisions in other sections to allow air agencies to exclude control
measures that are infeasible does not support its interpretation of the
use of an infeasibility justification for contingency measures; rather,
the inclusion of language related to feasibility in other CAA
provisions but not in section 172(c)(9) suggests the omission by
Congress of a feasibility standard with regard to contingency measures
was intentional.
Response to Comment A-5: As discussed in Response to Comment A-4,
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 Revised Contingency Measures Guidance, where a state is
unable to identify contingency measures that would provide emissions
reductions approximately equal to OYW of progress, the state should
provide a reasoned justification in the form of 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. Thus, while the EPA acknowledges that 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.
As stated in the proposed rule, the statutory provisions applicable
to other nonattainment area plan control measure requirements,
including reasonably available control measures/reasonably available
control technology (RACM/RACT), best available control measures/best
available control technology (BACM/BACT), and most stringent measures
(MSM), allow air agencies to exclude certain control measures that are
deemed unreasonable or infeasible (depending on the requirement). 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 emissions reductions.\33\
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\33\ 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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Comment A-6: Valley Air Advocates assert that, even if CAA section
172(c)(9) did allow the EPA to exempt states from contingency measures
it deems infeasible, there is not an objective standard or criteria for
such a
[[Page 13754]]
feasibility determination. The Revised Contingency Measure Guidance
does not provide such objective standards, meaning that any
determinations EPA makes as to feasibility or infeasibility are
inherently arbitrary.
Response to Comment A-6: The Revised Contingency Measure Guidance
provides states with a recommended approach for identifying potential
contingency measures and, if there are an insufficient number of
feasible contingency measures to achieve OYW of progress, for
documenting the basis for that conclusion via an infeasibility
demonstration. The criteria include economic and technological
feasibility as well as timing considerations. Contingency measures are
expected to achieve emissions reductions within a year or two of the
triggering event to qualify as contingency measures.
The EPA evaluates state SIP submissions for other CAA requirements,
including RACM/RACT, BACM/BACT, and MSM, on the same basis (economic
and technological feasibility) that we are employing to evaluate SIP
submissions for contingency measures. By their nature, judgements made
based on economic and technological feasibility are fact-specific, but
that does not make them arbitrary.
Comment A-7: Valley Air Advocates comment that the EPA has
contradicted itself by finding that the contingency measures that the
EPA has approved and the contingency measures to which CARB and the
District committed are ``the entire set of feasible contingency
measures for ozone precursor emissions in the San Joaquin Valley.''
\34\ The commenter states that this is inconsistent with the EPA's
action approving a contingency measure with just one trigger for three
PM<INF>2.5</INF> standards, because that approval relied upon a
rationale that the state would adopt and submit additional contingency
measures should a triggering event occur.\35\ The commenter states that
EPA has not provided an adequate explanation of why the state would be
able to develop and submit additional contingency measures for
PM<INF>2.5</INF> and not for the 1997 ozone NAAQS.
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\34\ 90 FR 51029 (November 14, 2025).
\35\ 89 FR 80749 (October 4, 2024).
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Response to Comment A-7: Ozone and PM<INF>2.5</INF> are different
criteria air pollutants for which the EPA has established NAAQS. Within
the San Joaquin Valley, the relevant pollutants and plan precursors are
direct PM<INF>2.5</INF> and NO<INF>X</INF> for the purpose of meeting
CAA SIP requirements for the PM<INF>2.5</INF> NAAQS. For ozone, the
precursors are NO<INF>X</INF> and VOC. NO<INF>X</INF> is a precursor to
both PM<INF>2.5</INF> and ozone for the purpose of meeting CAA
requirements in the San Joaquin Valley.
Direct PM<INF>2.5</INF> emissions are not relevant for ozone SIP
planning purposes. Thus, there is no contradiction by the EPA where the
Agency states that State and District have adopted (or committed to
adopt) the entire set of feasible contingency measures for ozone
precursors and that, upon triggering of the PM<INF>2.5</INF>
contingency measures, we expect that CARB and the District would adopt
and submit a SIP revision to demonstrate that the SIP continues to meet
PM<INF>2.5</INF> contingency measure requirements. In so doing, we
expect CARB and the District to update their previous evaluations of
direct PM<INF>2.5</INF> source categories to identify potential
contingency measures and to adopt such measures that are economically
and technologically feasible and that can achieve meaningful emissions
reductions within a year or two of a future PM<INF>2.5</INF>-related
triggering event.
With respect to NO<INF>X</INF>, the finding with respect to the
1997 ozone NAAQS that State and District have adopted (or committed to
adopt) the entire set of feasible contingency measures for ozone
precursors (VOC and NO<INF>X</INF>) is keyed to a moment in time. With
the passage of time, new information and analyses can be used to
identify potential contingency measures that have not been identified
to date and that warrant evaluation for economic and technological
feasibility as well as the potential to achieve meaningful
NO<INF>X</INF> emissions reductions within a year or two of a future
triggering event.
Comment A-8: Valley Air Advocates assert that the Smog Check
Contingency Measure provides only de minimis emissions reductions and
that compliance with CAA section 172(c)(9) requires more than a de
minimis amount of reductions from contingency measures. Citing the
decision in Committee for a Better Arvin,\36\ the commenter notes that
the Ninth Circuit upheld the EPA's assertion that certain California
rules for the 1997 PM<INF>2.5</INF> annual NAAQS did not need to be
approved into the SIP because the rules achieved only de minimis
reductions and that the reductions deemed by the EPA to be de minimis
for the 1997 PM<INF>2.5</INF> NAAQS are greater than those from the
Smog Check Contingency Measure. As such, the commenter asserts that the
EPA cannot dispute that the Smog Check Contingency Measure provides de
minimis emissions reductions and simply does not fulfill the
requirement under CAA section 172(c)(9) to adopt contingency measures.
---------------------------------------------------------------------------
\36\ Committee for a Better Arvin v. EPA, 786 F.3d 1169 (9th
Cir. 2015).
---------------------------------------------------------------------------
Response to Comment A-8: The EPA does not agree that the emissions
reductions from the Smog Check Contingency Measure are de minimis.
Characterizing an amount as de minimis cannot be severed from its
context. In the case of the emissions reductions (amounting to 0.62 tpd
of NO<INF>X</INF>) that the EPA characterized as de minimis in
connection with the Agency's approval of the San Joaquin Valley
attainment plan for the 1997 PM<INF>2.5</INF> NAAQS, and that are cited
in the Committee for a Better Arvin decision, the context was the
overall amount of emissions reductions from the base year needed to
demonstrate attainment of the 1997 PM<INF>2.5</INF> NAAQS by the
applicable attainment date. The relevant amount of NO<INF>X</INF>
emissions reductions needed for attainment was 284.2 tpd,\37\ and the
emissions reductions from the rules at issue (0.62 tpd) represented
only 0.2 percent of the overall reduction amount.
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\37\ 76 FR 41338, at 41354 (July 13, 2011) (proposed partial
approval and partial disapproval of the attainment plan and related
SIP elements for the 1997 PM<INF>2.5</INF> NAAQS in the San Joaquin
Valley).
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With respect to our evaluation of the Smog Check Contingency
Measure, the context is the EPA's recommended amount of emissions
reductions that contingency measures should achieve (i.e., OYW of
progress). The estimated reductions from the Smog Check Contingency
Measure (0.112 tpd of NO<INF>X</INF>) amount to 2.2 percent of OYW of
progress, an order of magnitude greater than the corresponding
percentage cited in the previous paragraph in relation to the
attainment needs of the area.
We do however find that the emissions reductions from the Smog
Check Contingency Measure, which CARB estimates to be 0.112 tpd and
0.056 tpd of NO<INF>X</INF> and VOC, respectively, represent only about
one or two percent of OYW of progress. Because the estimate reductions
are well below the recommended metric (i.e., OYW of progress), CARB and
the District are not relying solely on the Smog Check Contingency
Measure to demonstrate compliance with the contingency measure
requirements of CAA section 172(c)(9) for the San Joaquin Valley for
the 1997 ozone NAAQS. Rather, CARB and the District are relying on
their infeasibility demonstrations that document their evaluation for
potential additional contingency measures and the rationale for their
conclusions that there are no
[[Page 13755]]
additional feasible contingency measures for the area for the 1997
ozone NAAQS.
Likewise, in approving the Smog Check Contingency Measure SIP as
meeting the applicable requirements for the San Joaquin Valley for the
1997 ozone NAAQS, we are not solely relying on the Smog Check
Contingency Measure but also on our evaluation of the submitted
infeasibility demonstrations.
Comment A-9: Valley Air Advocates comment that, even if the EPA may
lawfully excuse a state from adopting contingency measures based on an
infeasibility demonstration, the state did not submit an infeasibility
demonstration for stationary and area sources for the 1997 ozone NAAQS.
Instead, the EPA accepted the state's request to rely upon the
infeasibility demonstration submitted for the 2008 and 2015 ozone
NAAQS, without any additional analysis. The commenter further points to
EPA's Revised Contingency Measure Guidance, which indicates that, for
infeasibility demonstrations, ``lower amounts of CM emissions
reductions will warrant more robust analyses demonstrating a thorough
effort to identify candidate measures and to document the infeasibility
of candidate measures,'' \38\ and that, in the case of the 1997 ozone
NAAQS, with fewer reductions from contingency measures compared to
those for the 2008 ozone contingency measures requirement, the EPA
accepted an infeasibility demonstration that was clearly not more
robust than that accepted for the 2008 ozone NAAQS.
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\38\ Revised Contingency Measure Guidance, at 37.
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Response to Comment A-9: In our proposed rule, we explained why we
found that reliance on the infeasibility demonstrations included in the
2024 SJV Ozone Contingency Measure Plan is appropriate even though it
was not developed or submitted to address the contingency measure
requirement for the 1997 ozone NAAQS for two reasons. First, the
control strategies for all three ozone NAAQS (the 1997 ozone NAAQS, the
2008 ozone NAAQS, and the 2015 ozone NAAQS) relate to the same
averaging period (8-hour average), the same precursor emissions
(NO<INF>X</INF> and VOC) and the same emissions sources, the same
planning emissions inventories (summertime average day), and the same
types of control measures. Second, CARB and the District recommended
that the EPA take into consideration the 2024 SJV Ozone Contingency
Measure Plan during its review of the Smog Check Contingency Measure
SIP for compliance with the attainment-related contingency measure
requirements for the 1997 ozone NAAQS.\39\
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\39\ See letter from Ariel Fideldy, Chief, CARB Air Quality
Planning Branch to Michelle Angelich, Acting Director, EPA Region IX
Air and Radiation Division, dated October 16, 2025, and letter from
Sheraz Gill, Deputy Air Pollution Control Officer, SJVUPACD to Edie
Chang, Deputy Executive Officer, CARB, dated October 10, 2025.
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The commenter is correct that, in the Revised Contingency Measure
Guidance, the EPA states that a lower amount of emissions reductions
from contingency measures relative to OYW of progress warrants more
robust analyses demonstrating a thorough effort to identify candidate
contingency measures and to document the infeasibility of such
measures. The commenter is also correct that the emissions reductions
for the 1997 ozone NAAQS are lower than those for the 2008 and 2015
ozone NAAQS and yet all three ozone NAAQS rely on the same set of
analyses to justify adoption of contingency measures that provide for
less than OYW of progress.
For these reasons, the EPA would normally have expected the State
to conduct updated analyses to identify candidate measures for, in this
case, the 1997 ozone NAAQS, but the Smog Check Contingency Measure SIP
(for the 1997 ozone NAAQS) and the 2024 SJV Ozone Contingency Measure
Plan (for the 2008 and 2015 ozone NAAQS) were submitted within a short
period of one another. CARB submitted the Smog Check Contingency
Measure SIP on November 13, 2023, and the 2024 SJV Ozone Contingency
Measure Plan on April 29, 2024.
The more recently-submitted SIP provides the missing pieces of the
earlier submission by including a comprehensive review of stationary
and area source categories for candidate contingency measures. Because
of the proximity in time of the two SIP submissions, the Smog Check
Contingency Measure SIP and the 2024 SJV Ozone Contingency Measure Plan
can be considered collectively, and together, they constitute a
comprehensive review of stationary, area, and mobile source categories
for candidate ozone contingency measures in the San Joaquin Valley for
all three ozone NAAQS.
The review of stationary and area source categories in the 2024 SJV
Ozone Contingency Measure Plan revealed certain additional feasible
ozone contingency measures that the District has committed to adopt.
The District has chosen to adopt these additional contingency measures
for the 2008 and 2015 ozone NAAQS and not to adopt them for the 1997
ozone NAAQS. The District is not required to extend the applicability
of these additional contingency measures to a third ozone NAAQS (i.e.,
the 1997 ozone NAAQS).
Comment A-10: Valley Air Advocates assert that, even if the EPA may
lawfully excuse a state from contingency measures based on an
infeasibility demonstration, the infeasibility demonstration for
confined animal facilities (CAFs) is inadequate. It relies on
statements from the District that Rule 4570, which covers CAFs in the
Valley, is the most stringent rule for this source category compared to
other air districts. Such a rationale is not a feasibility analysis, as
it does not answer the question of whether the current rule, which is
menu-based, allowing CAF operators to choose from among a menu of
control options, could feasibly be made more stringent as a contingency
measure by requiring operators to implement additional menu options.
Additionally, the commenter states that the 2010 amendments to Rule
4570 retired most of the Class Two Mitigation Measures on grounds that
they were infeasible. The infeasibility demonstration for contingency
measures submitted as part of the 2024 SJV Ozone Contingency Measure
Plan does not address whether this set of mitigation measures could be
feasible as contingency measures.
Response to Comment A-10: In response to comments received on our
proposed rule, we requested that CARB and the District clarify the
basis for the conclusion that there are no feasible contingency
measures for CAFs. CARB and the District responded with additional
analyses to clarify and supplement their feasibility analysis for the
CAF source category.\40\ We have reviewed the supplemental information
provided by CARB and the District and find that it affirms our
preliminary finding from the proposed rule that CARB and the District
have demonstrated that contingency measures for this source category
are infeasible at this time.
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\40\ Letter dated January 30, 2026, from Matthew Lakin, Chief,
Air Quality Planning and Science Division, CARB, to Anita Lee,
Acting Director, Air & Radiation Divison, EPA Region IX, with the
following attachment: ``Technical Clarification and Additional
Information for the 1997, 2008, and 2015 8-Hour Ozone NAAQS
Contingency Measures'' (herein, ``Confined Animal Facilities
Supplement'').
---------------------------------------------------------------------------
In the Confined Animal Facilities Supplement, the District first
discusses Rule 4570's menu-based approach, where CAF operators must
select from a limited menu of mitigation measures.
[[Page 13756]]
The District contends that the menu-based approach is necessary because
CAFs in the San Joaquin Valley vary significantly compared to
traditional industrial sources.\41\ As a result, it is not feasible for
all operators to implement identical mitigation measures given the
differences in infrastructure, climate, permitting requirements, water
availability and water board regulations, production contracts, and
other limitations. Furthermore, the District reasons that requiring all
measures from the menu would be duplicative and would not result in
additional emissions reductions, as the measures control emissions
through the same mechanisms. The EPA concurs with the District's menu-
based approach for this source category and agrees that requiring
implementation of additional mitigation measures from the menu in Rule
4570 as a contingency measure would be duplicative and would not result
in increased emissions reductions.
---------------------------------------------------------------------------
\41\ Confined Animal Facilities Supplement, p. 3.
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The District then discusses the feasibility of Class Two Mitigation
Measures from the pre-2010 version of Rule 4570 as contingency
measures. The District explains that Class Two mitigation measures
referred to practices that could potentially achieve emissions
reductions equal to or greater than those achieved by Class One
mitigation measures and were originally included in Rule 4570 to
encourage CAF operators to go beyond the basic rule requirements and
implement innovative practices to further reduce emissions.\42\
However, the District notes that many of the Class Two Mitigation
Measures were theoretical measures that had not been demonstrated in
practice at CAFs. The District points to its previous evaluation of
these Class Two Mitigation Measures in its ``2010 Final Staff Report
for the Revised Proposed Amendments to Rule 4570,'' \43\ where the
Class Two Mitigation Measures were found to be technologically or
economically infeasible and subsequently removed from Rule 4570. The
District highlights the specific example of venting silage to a control
device as a Class Two Mitigation Measure found to be infeasible and
explains that it is infeasible because active venting introduces air
into the silage, whereas silage preservation requires anaerobic
conditions.\44\
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\42\ Confined Animal Facilities Supplement, p. 4.
\43\ SJVAPCD. San Joaquin Valley Air Pollution Control District
Final Staff Report for the Revised Proposed Amendments to Rule 4570,
(October 21, 2010). Retrieved from: <a href="https://ww2.valleyair.org/media/ytbe5gaj/agenda_item_7_oct_21_2010.pdf">https://ww2.valleyair.org/media/ytbe5gaj/agenda_item_7_oct_21_2010.pdf</a> and included in the docket
for this rulemaking.
\44\ Confined Animal Facilities Supplement, p. 5.
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The next step in the District's analysis was to evaluate the
feasibility of adopting certain specific additional mitigation measures
as contingency measures in Rule 4570. The District evaluated mitigation
measure categories applicable to the San Joaquin Valley, including
litter amendments and additives, biofilters, wet scrubbers, anaerobic
digestion, injection of liquid and slurry manure, reducing crude
protein for beef cattle, reducing crude protein content for dairy
cattle, and increased grazing time for dairy cattle. For each
mitigation measure, the District evaluated the technological and
economic feasibility to determine whether the measure would be feasible
for adoption as a contingency measure.\45\
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\45\ Confined Animal Facilities Supplement, pp. 5-22.
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With respect to litter amendments and manure additives, the
District separately analyzed acidifying amendments and additives for
poultry litter, manure additives, and microbial additives.\46\ With
respect to acidifying amendments and additives for poultry litter, the
District notes that emissions reductions from acidifying amendments and
additives for poultry litter have not been quantified in regard to VOC.
Furthermore, the District contends that many additives to litter and
manure require approval from the CA Regional Water Quality Control
Board (RWQCB), may not be allowed, or may be toxic to handle.\47\ The
District then performed an economic analysis of using aluminum sulfate,
commonly referred to as ``alum,'' as an additive to reduce VOC from
poultry litter. Based on this analysis, the District concludes that it
is not viable to adopt the measure as a contingency requirement to
reduce VOC emissions. For manure additives for liquid and slurry
manure, the District states that the measure is infeasible due to pH,
hydrogen sulfide emissions, and salinity concerns. The District
contends that microbial additives are not feasible or practical for
operations in the Valley. Citing a study by the National Hog
Farmer,\48\ the District contends that the effectiveness of microbial
manure additives for VOC emissions reduction remains unproven.\49\
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\46\ Confined Animal Facilities Supplement, pp. 6-11.
\47\ Confined Animal Facilities Supplement, pp. 7-8.
\48\ National Hog Farmer. Evaluating Manure Additives for Odor
Mitigation. (February 2, 2021) Retrieved from: <a href="https://www.nationalhogfarmer.com/manure/evaluating-manure-additives-forodor-mitigation">https://www.nationalhogfarmer.com/manure/evaluating-manure-additives-forodor-mitigation</a> and included in the docket for this rulemaking.
\49\ Confined Animal Facilities Supplement, p. 10.
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When a biofilter is used, exhaust air containing pollutants passes
through media that contain an established, diverse population of
aerobic microorganisms that oxidize organic contaminants, ammonia, and
sulfur compounds. Biofilters have been successfully used to control
odors and emissions from industrial sources, and the ``Agricultural Air
Quality Conservation Measures, Reference Guide for Poultry and
Livestock Systems'' (``USDA Reference Guide'') identifies biofilters as
a potential method to control VOC emissions at CAFs.\50\ However, the
USDA Reference Guide also notes several considerations that must be
taken into account when using biofilters to control emissions from
CAFs, including the substantial costs involved. The District has
evaluated the potential for greater use of biofilters to reduce VOC
emissions from CAFs but finds that using biofilters to treat all the
exhaust air from CAFs in the San Joaquin Valley is impractical due to
the size of the biofilters that would be needed, the energy required to
overcome the airflow resistance they create, and the airflow required
to cool the enclosed spaces effectively.\51\ The District also notes
certain other practical difficulties, particularly in connection with
biofilter maintenance. In light of all of these considerations, the
District concludes that requiring the installation and use of
biofilters as a contingency measure to control VOC emissions at CAFs is
not feasible.
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\50\ USDA and EPA, Agricultural Air Quality Conservation
Measures Reference Guide for Poultry and Livestock Production
Systems. (September 2017).
\51\ Confined Animal Facilities Supplement, p. 12.
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Wet scrubbers are capable of reducing particulate matter and gas
emissions from animal production houses that are mechanically
ventilated by physically trapping the particulate matter on wet
surfaces and absorbing gases into a liquid. Many of the same technical
difficulties posed by installation and maintenance of biofilters at
CAFs also apply to installation and maintenance of wet scrubbers at
CAFs. Specifically, the District notes that, similar to biofilters, the
practicality of scrubbers is limited as a result of their potential to
compromise the ventilation airflow rated needed to control temperature
in production houses and ensure animal health.\52\ Citing the USDA
Reference Guide, the District finds that a high air flow rate in the
summer, animal housing differences, ongoing maintenance, and
[[Page 13757]]
water demand make this mitigation measure infeasible.\53\ Additionally,
the District notes that they previously demonstrated the economic
infeasibility of using wet scrubbers to control emissions from CAFs in
the District's ``Ammonia: Supplemental Information for EPA in Support
of 15 [micro]g/m\3\ annual PM<INF>2.5</INF> Standard, Appendix B''
(``Ammonia Technical Supplement'').\54\
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\52\ Confined Animal Facilities Supplement, p. 13.
\53\ Confined Animal Facilities Supplement, p. 14.
\54\ Ammonia: Supplemental Information for EPA in Support of 15
[micro]g/m3 annual PM<INF>2.5</INF> Standard, Appendix B. (March
2023). Retrieved from: <a href="https://www.regulations.gov/document/EPA-R09-OAR-2023-0263-0114">https://www.regulations.gov/document/EPA-R09-OAR-2023-0263-0114</a> and included in the docket for this rulemaking.
---------------------------------------------------------------------------
Anaerobic digesters are systems that break down manure in oxygen-
free tanks to produce biogas. In the process of anaerobic digestion,
most of the VOC compounds in the substrate are converted to methane,
carbon dioxide, and water. The District reports that the California
Department of Food and Agriculture (CDFA) has funded the installation
of anaerobic digesters at certain dairy CAFs in the Valley. The
District notes that a significant obstacle to wider installation and
use of anaerobic digesters at CAFs is the high initial and ongoing
maintenance costs. The District cites a CDFA reference for the figure
of $7.5 million as the average cost for dairy digester projects in
California.\55\ As such, the District concludes that installation of
additional anaerobic digesters in the San Joaquin Valley as a
contingency measure is economically infeasible without a stable funding
source.\56\
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\55\ Confined Animal Facilities Supplement, p. 15.
\56\ Id.
---------------------------------------------------------------------------
Injection of liquid or slurry manure is generally accepted as a
method to reduce emissions relative to traditional surface
broadcasting. However, the District notes that nearly all liquid manure
in the San Joaquin Valley is already diluted and applied via surface
gravity irrigation systems, such as flood and furrow irrigation. The
District further notes that this application method reduces emissions
because the diluted liquid manure has much lower concentration of VOCs,
and liquid manure in furrow and flood irrigation systems emits
significantly less VOCs compared to broadcasting.\57\ Furthermore, the
District contends that no research that has quantified VOC emissions
reductions from different methods of land application of manure.
Finally, the District notes that to avoid damaging growing crops and to
protect water quality, farmers must restrict the frequency, timing, and
amount of nitrogen that they can apply to cropland in certain portions
of the San Joaquin Valley.\58\ Such restrictions further reduce the
potential of injection of liquid or slurry manure for adoption as a
contingency measure in the San Joaquin Valley.
---------------------------------------------------------------------------
\57\ Confined Animal Facilities Supplement, p. 16.
\58\ Id.
---------------------------------------------------------------------------
Reducing the crude protein content for beef and dairy cattle feed
has been evaluated as potential measures to reduce ammonia emissions
during certain phases of beef and dairy production, and for that
reason, the District has evaluated them as potential contingency
measures for VOC. The District notes that the potential VOC reductions
from these measures have not been quantified, and achievable reductions
are uncertain.\59\ For beef cattle, the District notes that reducing
the crude protein content of the feed as a means of reducing ammonia
has only been tested for the finishing cycle of beef cattle lives, and
that there are limited opportunities to implement this measure as there
are very few finishing cycle feeder beef cattle in the San Joaquin
Valley.\60\ Furthermore, the District notes that there may be no net
reduction in VOC emissions over the life of the cattle because any VOC
reductions from reducing the crude protein content of beef cattle feed
may be offset due to the longer time necessary to reach market
weight.\61\
---------------------------------------------------------------------------
\59\ Confined Animal Facilities Supplement, pp. 18-19.
\60\ Confined Animal Facilities Supplement, p. 18.
\61\ Journal of Animal Science. Effects of phase-feeding of
crude protein on performance, carcass characteristics, serum urea
nitrogen concentrations, and manure nitrogen of finishing beef
steers (December 1, 2006).
---------------------------------------------------------------------------
For dairy cattle, the District notes significant gaps in knowledge
of what would occur if crude protein were reduced in dairy cattle,
specifically in the San Joaquin Valley. Higher levels of milk
production require higher levels of protein, so reducing the crude
protein content of feed will probably reduce milk yields.\62\ Citing
communications with Dr. Peter Robinson, UC Davis Extension Specialist,
Dairy Cattle Nutritional Management Department of Animal Science, the
District contends that lowering crude protein below required levels
results in an immediate negative impact on milk production.\63\ The
District reasoned, for both of these measures, it is not feasible to
adopt this measure as a contingency requirement, given the remaining
uncertainties about VOC emissions reductions, the impacts on milk
production and animal health, and overall costs.\64\
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\62\ Confined Animal Facilities Supplement, pp. 19-20.
\63\ University of California Agriculture and Natural Resources.
Ecology and Management of Annual Rangelands Series Part 8: Grazing
Management. (December 2020).
\64\ Confined Animal Facilities Supplement, p. 20.
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Increasing the amount of time dairy cows spend grazing is
considered a potential VOC mitigation measure because it could reduce
ammonia emissions due to less silage consumption and may thus also
reduce VOC emissions. Based on a number of assumptions for such
parameters as the number of acres of pasture required to allow a mature
dairy cow to graze per unit of time, the District estimates that 3.1
million acres of irrigated pasture would need to be available for dairy
cows in the San Joaquin Valley to graze for the entire year. The land
needed is significantly beyond that which is available. For this
reason, the District concludes that increased grazing time for daily
cattle is not viable to adopt as a contingency requirement to reduce
VOC emissions.\65\
---------------------------------------------------------------------------
\65\ Confined Animal Facilities Supplement, 22.
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In summary, for all mitigation measures evaluated, the District did
not identify any new measures capable of achieving VOC emissions
reductions that are technologically and economically feasible. Based on
our review of the supplemental analysis, we find that the District has
evaluated an appropriate set of potential contingency measures for CAFs
and presented a reasonable basis to conclude that the measures are not
feasible for adoption as contingency measures at this time. Therefore,
we continue to agree with the District's conclusion that there are no
feasible contingency measures for this source category.
Comment A-11: Valley Air Advocates assert that the EPA fails to
provide a reasoned explanation when it approves CARB's and the
District's infeasibility demonstrations when both overlook operational
restrictions on heavy duty diesel trucks as potential contingency
measures. For example, Valley Air Advocates suggest that CARB or the
District could adopt contingency measures that prohibit operation of
certain old and highly polluting diesel trucks in the Valley.
Response to Comment A-11: CARB has already adopted control measures
intended to reduce NO<INF>X</INF> emissions from in-use heavy-duty
diesel trucks. In 2008, CARB adopted the Truck and Bus Regulation \66\
and later submitted the regulation, as amended in 2011, to the
[[Page 13758]]
EPA for approval as part of the SIP.\67\ Under the Truck and Bus
Regulation, by January 1, 2023, nearly all trucks and buses were
required to have 2010 or newer model-year engines to reduce particulate
matter (PM) and NO<INF>X</INF> emissions. To help ensure that the
benefits of this regulation are achieved, starting in 2020, only
vehicles compliant with this regulation will be registered by the
California Department of Motor Vehicles (DMV).
---------------------------------------------------------------------------
\66\ 13 CCR 2025 (``Regulation to Reduce Emissions of Diesel
Particulate Matter, Oxides of Nitrogen and Other Criteria
Pollutants, from In-Use Heavy-Duty Diesel-Fueled Vehicles'')
(``Truck and Bus Regulation'').
\67\ The EPA approved the Truck and Bus Regulation as part of
the SIP at 77 FR 20308 (April 4, 2012).
---------------------------------------------------------------------------
More recently, CARB adopted the Heavy-Duty Inspection and
Maintenance Regulation \68\ that establishes a comprehensive inspection
and maintenance program for non-gasoline combustion vehicles above
14,000 gross vehicle weight rating (GVWR) that operate in California.
The regulation is intended to ensure that vehicle emissions control
systems on these vehicles are operating as designed and repaired
quickly.\69\
---------------------------------------------------------------------------
\68\ Amended section: 13 CCR 2193; New sections: 13 CCR 2195,
2195.1, 2196, 2196.1, 2196.2, 2196.3, 2196.4, 2196.5, 2196.6,
2196.7, 2196.8, 2197, 2197.1, 2197.2, 2197.3, 2198, 2198.1, 2198.2,
2199, and 2199.1
\69\ The EPA approved the Heavy-Duty Inspection and Maintenance
Regulation as it pertains to in-state registered vehicles at 91 FR
5325 (February 6, 2026).
---------------------------------------------------------------------------
The emissions reductions from both these regulations are necessary
for California to meet CAA requirements to demonstrate RFP and
attainment for the various nonattainment areas within the State.
Because they were adopted and are being implemented, they were not
available to adopt as contingency measures.
Comment A-12: Valley Air Advocates assert that the EPA fails to
provide a reasoned explanation when it approves CARB's and the
District's infeasibility demonstrations when both overlook amendments
to increase the stringency of the existing Indirect Source Review (ISR)
program as potential contingency measures. In this regard, Valley Air
Advocates state the EPA did not discuss or consider whether an ISR-
based contingency measure adopted by the District, including amendments
to Rule 9510, would be feasible.
Response to Comment A-12: Under CAA section 110(a)(5)(A), a state
may include in a SIP any ISR program, but the EPA may not require the
state to adopt an ISR program as a condition of approval of the SIP.
Thus, the District may choose to revise the ISR rule that the District
has adopted or adopt an additional ISR rule as a contingency measure,
but the EPA cannot require the District to do so even if adopting such
a contingency measure would be feasible and would achieve emissions
reductions within two years of the triggering event.
B. Comments From Central Valley Air Quality Coalition (CVAQ) \70\
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\70\ Comments were submitted by Central Valley Air Quality
Coalition; Center on Race, Poverty, and the Environment; Valley
Improvement Projects (VIP); California Environmental Voters; Central
California Asthma Collaborative; and the LEAP (Latino Equity,
Advocacy & Policy) Institute (collectively referred to herein as
``CVAQ'').
---------------------------------------------------------------------------
Comment B-1: CVAQ notes that the EPA recently found that the San
Joaquin Valley failed to attain the 1997 ozone NAAQS by the June 15,
2024 applicable attainment date and that, as a result, the Smog Check
Contingency Measure was triggered for the area. CVAQ also states that
the associated emissions reductions from the Smog Check Contingency
Measure would be ``extremely small'' and asserts that the CAA requires
much more to protect public health. CVAQ notes that the EPA's new
interpretation of CAA section 172(c)(9) allows state to claim
additional measure to be infeasible, even though the CAA does not
provide such an exemption, and urges the EPA to implement the CAA by
reinstating the EPA's long-standing interpretation of CAA section
172(c)(9) to require meaningful contingency measures.
Response to Comment B-1: We acknowledge that we now recommend a
different approach to determining the amount of emissions reductions
that contingency measures should provide to meet CAA section 172(c)(9).
Under current guidance, we recommend that states adopt contingency
measures that would provide OYW of progress rather than OYW of RFP. We
also acknowledge that, for San Joaquin Valley for the 1997 ozone NAAQS,
OYW of progress is less than OYW of RFP. Nonetheless, under either
metric, we would have expected California to submit a reasoned
justification to demonstrate compliance with CAA section 172(c)(9) for
the San Joaquin Valley for the 1997 ozone NAAQS because the adopted
contingency measure would provide less than OYW of progress or OYW of
RFP.
California did submit a reasoned justification in the form of
infeasibility documentations in the Smog Check Contingency Measure SIP
and in the 2024 SJV Ozone Contingency Measure Plan. We reviewed the
infeasibility documentations and concluded that California had
identified the contingency measures that are technically and
economically feasible and that can achieve emissions reductions within
two years of the triggering event. These measures include two adopted
measures and commitments for five additional contingency measures for
the 2008 ozone 2015 ozone NAAQS. California is not required to also
adopt those same measures for the 1997 ozone NAAQS, and California has
declined to do so, leaving the Smog Check Contingency Measure as the
only contingency measure for San Joaquin Valley for the 1997 ozone
NAAQS.\71\
---------------------------------------------------------------------------
\71\ As the commenter notes, the EPA's determination that the
San Joaquin Valley failed to attain the 1997 ozone NAAQS by the June
15, 2024 attainment date triggered the Smog Check Contingency
Measure in the San Joaquin Valley. The EPA's determination of
failure to attain for the 1997 ozone NAAQS also triggered the
requirements of SJVUAPCD Rule 3171 (``Federally Mandated Ozone
Nonattainment Fee--1997 8-Hour Standard'') that includes a fee
collection program. The fees are used to establish and implement
surplus incentive-based emissions-reduction programs. The EPA
approved SJVUAPCD Rule 3171 at 91 FR 336 (January 6, 2026).
---------------------------------------------------------------------------
With respect to the allowance for a state to provide a reasoned
justification for not adopting contingency measures that achieve OYW of
progress (or RFP), we acknowledge in our Revised Contingency Measure
Guidance and proposed rule that CAA section 172(c)(9) does not
explicitly provide for consideration of whether specific measures are
feasible. However, the Agency does not read these statutory provisions
to require states to adopt contingency measures that are not feasible.
The statutory provisions applicable to other nonattainment area plan
control measure requirements, including RACM)/RACT (for ozone and PM),
BACM/BACT (for PM), and MSM (for PM), allow air agencies to exclude
certain control measures that are deemed unreasonable or infeasible
(depending on the requirement). 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 emissions reductions.
Lastly, we note that CARB and the District continue to adopt and
implement new control measures that go beyond those that were relied
upon in the attainment demonstration for the 1997 ozone NAAQS, such as
those that target trucks, consumer products, and agricultural burning
for additional reductions, and that will continue to
[[Page 13759]]
provide for emissions reductions within the San Joaquin Valley into the
future.
C. Comments From California Environmental Voters (CEV)
Comment C-1: CEV suggests that there are additional opportunities
for reductions from large stationary sources in the Valley, especially
stronger leak detection requirements for oil and gas operations,
including active idle oil and gas wells, which the commenter states are
more likely to leak VOC and other pollutants. They suggest as a
contingency measure that there be more frequent inspections, use of
optical gas imaging cameras to detect leaks, and a requirement for
timely repairs.
Response to Comment C-1: The District undertook a review of the
source categories that include major stationary sources to identify
potential contingency measures for the 2008 and 2015 ozone NAAQS.\72\
The District concluded that no feasible contingency measures that could
achieve emissions reductions within two years of a triggering event
were available for these source categories. As described in section
III.B. of the proposed rule, we reviewed the District's evaluation in
their infeasibility demonstration and agreed with the District's
conclusions.
---------------------------------------------------------------------------
\72\ SJVUAPCD, Ozone Contingency Measure State Implementation
Plan Revision for the 2008 and 2015 8-hour Ozone Standards, April
25, 2024, sections 5.1 through 5.5.
---------------------------------------------------------------------------
With respect to oil and gas operations in particular, the District
reviewed the agency's rules regulating such operations to identify
feasible contingency measures for the 2008 and 2015 ozone NAAQS.\73\ As
described in the section 5.4 of the 2024 SJV Ozone Contingency Measure
Plan, six of the rules were amended in 2023 to tighten VOC
requirements. Five of the rules were amended specifically to lower the
leak detection and repair limit to 500 parts per million by volume
(ppmv) to implement best available retrofit control technology (BARCT)
as required under State law.\74\ The District evaluated lower leak
detection and repair thresholds as part of the rule amendment process
and found that the incremental cost effectiveness of lowering the leak
detection and repair threshold from 500 ppmv to 100 ppmv would be well
over $300,000 per ton of VOC reduced.\75\ On that basis, the District
concluded that lowering the leak detection and repair threshold would
not be economically feasible to adopt as a contingency measure. We
agree with the District's assessment and conclusion in this regard.
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\73\ Id., section 5.4.
\74\ The five rules include District Rule 4401 (``Steam-Enhanced
Crude Oil Production Wells''), Rule 4409 (``Components at Light
Crude Oil Production Facilities, Natural Gas Production Facilities,
and Natural Gas Processing Facilities''), Rule 4455 (``Components at
Petroleum Refineries, Gas Liquids Processing Facilities, and
Chemical Plants''), Rule 4623 (``Storage of Organic Liquids''), and
Rule 4624 (``Transfer of Organic Liquids'').
\75\ SJVUAPCD, Ozone Contingency Measure State Implementation
Plan Revision for the 2008 and 2015 8-hour Ozone Standards, April
25, 2024, section 5.4.
---------------------------------------------------------------------------
In addition, CARB's Oil and Gas Methane Rule applies to those oil
and gas sources in the San Joaquin Valley that are not subject to
District requirements. CARB undertook a review of the petroleum
production and marketing source categories to identify potential
contingency measures for the 2008 and 2015 ozone NAAQS.\76\ With
respect to leak detection and repair (LDAR), CARB notes that, under the
Oil and Gas Methane Rule, LDAR is already mandated on a quarterly basis
using a very sensitive methodology (U.S. EPA's Method 21) and that the
only exemption that results in a significant number of sources not
being subject to LDAR is for equipment handling exclusively heavy oil,
which is not economically feasible to control based on analysis using
currently available data.\77\ For these reasons, CARB concluded that
there are no new technologically feasible control measures that CARB
can implement as a contingency measure in the Oil and Gas Methane Rule.
The EPA agrees with CARB's evaluation and conclusion in this regard.
---------------------------------------------------------------------------
\76\ Id., pages 60-66.
\77\ Id., page 62.
---------------------------------------------------------------------------
Comment C-2: CEV suggests that there are opportunities for
additional reductions by strengthening and modernizing SJVUAPCD's ISR
rule, to account for the growth of distribution centers and related
truck traffic in the Valley. They suggest the rule be updated to
include tracking of truck activities and suggest that updating the ISR
rule could be a contingency measure for ozone.
Response to Comment C-2: Under CAA section 110(a)(5)(A), a state
may include in a SIP any ISR program, but the EPA may not require the
state to adopt an ISR program as a condition of approval of the SIP.
Thus, the District may choose to revise the ISR rule that the District
has adopted or adopt an additional ISR rule as a contingency measure,
but the EPA cannot require the District to do so, even if adopting such
a contingency measure would be feasible and would achieve emissions
reductions within two years of the triggering event.
Comment C-3: CEV suggests that the Valley's contingency measure
strategy include a pesticide-related contingency measure to reduce VOC
emissions. They state that the pesticide category has been under-
regulated in the Valley and that residents have expressed concerns
about pesticide emissions.
Response to Comment C-3: CARB evaluated the potential for further
reduction of VOCs from pesticide use as part of the development of
their 2022 State Strategy for the State Implementation Plan (``2022
State SIP Strategy''). As adopted, the 2022 State SIP Strategy includes
a pesticides-related committal measure.\78\ Specifically, under the
2022 State SIP Strategy, the California Department of Pesticide
Regulation (DPR) is committed to the development and implementation of
a statewide regulation to address both cancer and acute risks to non-
occupational bystanders from the use of 1,3-Dichloropropene (1,3-D),
which is a VOC and is a fumigant used to control nematodes, insects,
and disease organisms in soil.\79\ This regulation is under development
by DPR and will address cancer and acute risk from the use of 1,3-D by
shifting to application methods with lower 1,3-D emissions or use of
other measures to reduce exposure.\80\ DPR estimates that the
regulation would reduce VOC emissions in the San Joaquin Valley by 0.4
tpd by 2037.\81\
---------------------------------------------------------------------------
\78\ CARB, 2022 State Strategy for the State Implementation
Plan, adopted September 22, 2022, pp. 104 and 105.
\79\ Id.
\80\ CARB, CARB Review of the San Joaquin Valley 2022 Plan for
the 70 ppb 8-Hour Ozone Standard, Staff Report, Release Date:
December 16, 2022. Pp. 17-18.
\81\ Id., at 18.
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Contingency measures are measures that are held in reserve until
triggered by, for example, a determination by the EPA that an area has
failed to attain the NAAQS by the applicable attainment date. Because
this pesticides-related measure is intended to be implemented upon
adoption and not to be held in reserve, it is unavailable for adoption
as a contingency measure.
D. Comments From Citizens Rulemaking Alliance (CRA)
Comment D-1: The CRA alleges that the EPA's proposed action suffers
from procedural deficiencies under the Paperwork Reduction Act, the
Regulatory Flexibility Act/Small Business Regulatory Enforcement
Fairness Act (SBREFA), and the Unfunded Mandates Reform Act. The CRA
asserts that the action, if finalized, would approve ``contingency
measures''
[[Page 13760]]
for the San Joaquin Valley for the 1997 ozone NAAQS under CAA sections
110(k) and 172(c)(9). By doing so, the CRA contends the EPA would
federalize the contingency measures and impose obligations that carry
concrete, foreseeable impacts on small entities in the San Joaquin
Valley and incorporate information collection and fee/reporting
requirements that require proper review under the Paperwork Reduction
Act, the Regulatory Flexibility Act/SBREFA, and the Unfunded Mandates
Reform Act.
In addition, even if the EPA ultimately concludes that the action
is not economically significant for the purposes of Executive Order
(E.O.) 12866, the CRA contends that the EPA should either submit the
action for review under the E.O. or explain why it does not meet the
criteria of section 3(f)(4) of the E.O.. The CRA asks the EPA to
supplement the record, conduct the required analyses (or narrow the
approval accordingly), and to extend the comment period by at least 60
days to allow members of the public to review any additional analyses
that EPA may provide.
Response to Comment D-1: We disagree that further analysis is
required or appropriate under the Paperwork Reduction Act, Regulatory
Flexibility Act/SBREFA, or the Unfunded Mandates Reform Act, and thus,
there is no need to extend the comment period.
In the action that the EPA is finalizing in this document, the EPA
is approving the Smog Check Contingency Measure SIP as meeting the
attainment-related contingency measure requirements of CAA section
172(c)(9) and as fulfilling the State's commitment made in connection
with the EPA's approval of the 1997 ozone NAAQS plan for San Joaquin
Valley. The EPA is not approving any contingency measure into the SIP.
The Smog Check Contingency Measure SIP relies on the Smog Check
Contingency Measure, which the EPA approved in a separate action
published at 89 FR 56222 (July 9, 2024). Thus, even if we agreed that
approval of control measures or contingency measures as part of a SIP
imposes obligations that the EPA must evaluate under the Paperwork
Reduction Act, the Regulatory Flexibility Act/SBREFA, and the Unfunded
Mandates Reform Act, which we do not, there would be no obligations to
evaluate with respect to this particular SIP action because we are not
approving any specific measures as part of this action. Rather, we are
finding that the measure that we previously approved, in conjunction
with the State's justification for not adopting contingency measures
sufficient to provide for emissions reductions amounting to OYW of
progress, meets the attainment-related SIP requirements of CAA section
172(c)(9) for the San Joaquin Valley for the 1997 ozone NAAQS.
Second, this action is not a significant regulatory action subject
to Office of Management and Budget (OMB) review under E.O. 12866
(``Regulatory Planning and Review'') because it is a SIP approval,
which is a category of regulations that has been exempted from review
under section 3(d)(4) of E.O. 12866.\82\ Section 3(f)(4) of the
E.O.,\83\ which identifies a type of ``significant regulatory action''
under the E.O., is not relevant because ``significant regulatory
action'' is a type of ``regulatory action'' that is defined by
reference to the terms ``regulation'' or ``rule,'' and SIP approvals
are exempt from consideration as a ``regulation'' or ``rule'' for the
propose of the E.O.
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\82\ See, Memorandum dated October 12, 1993, from: Sally Katzen,
Administrator, Office of Information and Regulatory Affairs,
Subject: Guidance for Implementing E.O. 12866, Appendix C (listing
``rules that unconditionally approve revisions to State
Implementation Plans'' as exempted from review).
\83\ Section 3(f)(4) of E.O. 12866 provides that '' `Significant
regulatory action' means any regulatory action that is likely to
result in a rule that may: . . . (4) Raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in this Executive order.''
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E. Comments From Concerned Citizen
Comment E-1: This commenter asserts that the EPA has not adequately
demonstrated a rational connection between the facts found and the
choice made, citing Motor Vehicle Manufacturers Assoc. v. State Farm
Mutual Automobile Insurance Co., 463 U.S. 29 (1983). The commenter also
states that where an agency changes policy or adopts a position with
foreseeable public health implications, it must provide a reasoned
explanation supported by evidence and that the proposed rule fails to
meet this standard. The commenter also asserts:
<bullet> The EPA has an obligation to assess cumulative impacts and
disproportionate effects on overburdened communities, consistent with
Executive Order 12898 and EPA's environmental justice guidance;
<bullet> In connection with any EPA action that elevates risks of
increased emissions, delayed compliance, or weakened oversight, which
directly threatens protected interests, the EPA must demonstrate that
the proposed action will not result in adverse public health outcomes;
and
<bullet> The EPA must consider reasonable alternatives that would
achieve statutory objectives with less risk to public health and the
environment.
Response to Comment E-1: The commenter does not indicate in what
way the EPA has not adequately demonstrated a rational connection
between the facts found and the choice made or in what way the proposed
rule fails to provide a reasoned explanation supported by evidence. To
the extent that the commenter is referring to the EPA's reliance on the
principles in the Revised Contingency Measure Guidance, we provide our
explanation for, and application of, the principles in the guidance in
section 1 of the Revised Contingency Measure Guidance and section
III.B. of the proposed rule. We disagree with the other comments for
the following reasons:
<bullet> The EPA does not have an obligation to assess cumulative
impacts and disproportionate effects on overburdened communities,
consistent with Executive Order 12898 and EPA's environmental justice
guidance because Executive Orders 12898, 14094, and 14096 have been
rescinded and because those three executive orders were the foundation
for the development of the EPA environmental justice guidance.\84\
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\84\ Signed by the President on January 20, 2025, Executive
Order 14148 rescinded Executive Orders 14094 and 14096. Signed by
the President on January 21, 2025, Executive Order 14173 rescinded
Executive Order 12898.
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<bullet> The final action that the EPA is taking in this document
would not increase emissions, delay compliance, or weaken oversight.
The final action approves a SIP submission as meeting the attainment-
related contingency measure requirements under CAA section 172(c)(9)
for the San Joaquin Valley for the 1997 ozone NAAQS and finds that the
State has fulfilled a commitment made in connection with the EPA's 2012
approval of the attainment plan for the San Joaquin Valley for the 1997
ozone NAAQS.
<bullet> The EPA is not required to consider reasonable
alternatives that would achieve statutory objectives with less risk to
public health and the environment. Under the CAA, the EPA is required
to approve a SIP submission that complies with the provisions of the
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 CAA.
In this role, EPA is not required to compel the state to consider
alternatives to the choices made by the state, provided that the
state's choices meet the criteria of the CAA. In this instance, the EPA
is concluding that the submission by the State meets the
[[Page 13761]]
applicable requirements, and for that reason, we are not required to
compel the State to consider alternatives.
F. Comments From Anonymous Commenters
Comment F-1: The anonymous commenters both assert that the 1997
ozone standard and related requirements are insufficient to address the
air quality problems in the San Joaquin Valley. One of the anonymous
commenters also notes that the contingency measure submitted for the
1997 ozone standard is not adequate for the area because it only
targets one source: pollution from vehicles. This commenter notes that
there are other sources of emissions that could potentially be
controlled in the Valley and points out that the contingency measures
proposed for the 2008 and 2015 ozone NAAQS include measures that aim to
reduce emissions from other sources, such as coatings and paints. This
commenter also suggests additional contingency measures such as VOC
emissions from industrial and agricultural sources.
Response to Comment F-1: We note that the EPA continues to review
and update, when necessary, the national ambient air quality standards
(NAAQS) for ozone and other pollutants. Subsequent to setting the
eight-hour ozone NAAQS in 1997, the EPA tightened the ozone NAAQS from
0.08 ppm to 0.075 ppm (in 2008) and then to 0.070 ppm (in 2015). The
EPA works with states to implement the 2008 and 2015 ozone NAAQS
through review and action on updated rules and regulations and other
required SIP revisions.
Meanwhile, CARB and the District have adopted and continue to
implement control measures that go beyond the measures that were relied
upon in the attainment demonstration for the 1997 ozone NAAQS, such as
those that target trucks, consumer products, and agricultural burning
for additional reductions,\85\ and that will continue to provide for
emissions reductions within the San Joaquin Valley into the future. Due
to these measures, CARB and the District predict Valley-wide emissions
reductions of 35 percent and 5 percent of NO<INF>X</INF> and VOC,
respectively, between 2023 (the modeled attainment year for the 1997
ozone NAAQS) and 2031 (the attainment year for the 2008 ozone NAAQS)
based on implementation of control measures adopted prior to 2022.\86\
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\85\ See, e.g., EPA's approval of the Heavy-Duty Vehicle
Inspection and Maintenance Regulations at 91 FR 5325 (February 6,
2026); the Consumer Product Amendments at 85 FR 57703 (September 16,
2020); and the new restrictions on agricultural burning at 87 FR
36222 (June 16, 2022).
\86\ The District's 2022 Plan for the 2015 8-Hour Ozone Standard
(adopted December 15, 2022) presents a summary of baseline emissions
projections in appendix B (``Emissions Inventory''). The percentage
reductions cited herein are based on the emissions projections in
tables B-1 and B-2 in appendix B. Specifically, table B-1 shows a
reduction in NO<INF>X</INF> emissions from 157.8 tons per day (tpd)
in 2023 to 103.2 tpd in 2031. For VOC, emissions are projected to
decrease from 305.8 tpd in 2023 to 290.5 tpd in 2031.
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With regard to SIP requirements for contingency measures, we expect
to take action on SIP submissions for the 2008 and 2015 ozone NAAQS for
San Joaquin Valley in the near future. Notwithstanding these upcoming
actions, the EPA continues to implement the 1997 ozone NAAQS for
certain anti-backsliding purposes, such as contingency measures and the
section 185 fee program (fees on sources in the area levied upon
failure to attain).
III. EPA Action
For the reasons set forth in our proposed rule and in our responses
to comments, we are taking final action to approve the Smog Check
Contingency Measure SIP with respect to the CAA's attainment-related
contingency measure requirement under CAA section 172(c)(9) for the San
Joaquin Valley area for the 1997 ozone NAAQS. Our approval relies on
the previously-approved contingency measure for the 1997 ozone NAAQS
for the San Joaquin Valley (i.e., the Smog Check Contingency Measure)
and the justifications from CARB and the District for not adopting
additional contingency measures to provide for the recommended amount
of emissions reductions for such measures. Based on this approval, the
EPA is also taking final action to determine that the State of
California has fulfilled the commitment made by the State in connection
with a previous approval action to develop, adopt, and submit
attainment contingency measures for the San Joaquin Valley for the 1997
ozone NAAQS meeting the requirements of CAA section 172(c)(9).
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the 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 state law 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 OMB under Executive Order 12866 (58 FR 51735, October 4, 1993);
<bullet> Is not subject to Executive Order 14192 (90 FR 9065,
February 6, 2025) because SIP actions are exempt from review under
Executive Order 12866;
<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);
<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 CAA.
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 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).
This action is subject to the Congressional Review Act (CRA), 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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 22, 2026. 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
[[Page 13762]]
for judicial review may be filed, and 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, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 9, 2026.
Michael Martucci,
Acting Regional Administrator, Region IX.
[FR Doc. 2026-05592 Filed 3-20-26; 8:45 am]
BILLING CODE 6560-50-P
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