Rule2026-11168
Conditional Approval; Contingency Measure State Implementation Plan for the 2008 Ozone Standards; San Joaquin Valley, California
Primary source
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Published
June 4, 2026
Effective
July 6, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is taking final action to conditionally approve a state implementation plan (SIP) submission under the Clean Air Act (CAA or "Act") that addresses the contingency measure requirements for the 2008 ozone national ambient air quality standards (NAAQS or "standards") for the San Joaquin Valley ozone nonattainment area. The SIP submission, titled the "Ozone Contingency Measure State Implementation Plan Revision for the 2008 and 2015 8-hour Ozone Standards" ("2024 SJV Ozone Contingency Measure Plan," "Contingency Measure Plan," or "Plan") relies on two ozone contingency measures that the EPA has already approved in separate rulemakings. The approval is conditional because it relies on commitments by the State air agency and regional air district to supplement the 2024 SJV Ozone Contingency Measure Plan with submission of specific additional contingency measures within one year of the EPA's final conditional approval. The EPA is taking final conditional approval action of the SIP submission because the Agency has determined that the existing approved contingency measures, the commitments to submit additional contingency measures, and the justification for not adopting contingency measures that would achieve the recommended amount for such measures, meet the applicable requirements for such SIP submissions for the San Joaquin Valley for the 2008 ozone NAAQS. This conditional approval adds the 2024 SJV Ozone Contingency Measure Plan to the federally enforceable California SIP.
Full Text
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<title>Federal Register, Volume 91 Issue 107 (Thursday, June 4, 2026)</title>
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[Federal Register Volume 91, Number 107 (Thursday, June 4, 2026)]
[Rules and Regulations]
[Pages 33618-33635]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-11168]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2024-0338; FRL-12118-04-R9]
Conditional Approval; Contingency Measure State Implementation
Plan for the 2008 Ozone Standards; San Joaquin Valley, California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to conditionally approve a state implementation plan (SIP)
submission under the Clean Air Act (CAA or ``Act'') that addresses the
contingency measure requirements for the 2008 ozone national ambient
air quality standards (NAAQS or ``standards'') for the San Joaquin
Valley ozone nonattainment area. The SIP submission, titled the ``Ozone
Contingency Measure State Implementation Plan Revision for the 2008 and
2015 8-hour Ozone Standards'' (``2024 SJV Ozone Contingency Measure
Plan,'' ``Contingency Measure Plan,'' or ``Plan'') relies on two ozone
contingency measures that the EPA has already approved in separate
rulemakings. The approval is conditional because it relies on
commitments by the State air agency and regional air district to
supplement the 2024 SJV Ozone Contingency Measure Plan with submission
of specific additional contingency measures within one year of the
EPA's final conditional approval. The EPA is taking final conditional
approval action of the SIP submission because the Agency has determined
that the existing approved contingency measures, the commitments to
submit additional contingency measures, and the justification for not
adopting contingency measures that would achieve the recommended amount
for such measures, meet the applicable requirements for such SIP
submissions for the San Joaquin Valley for the 2008 ozone NAAQS. This
conditional approval adds the 2024 SJV Ozone Contingency Measure Plan
to the federally enforceable California SIP.
[[Page 33619]]
DATES: This rule is effective July 6, 2026.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2024-0338. 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: Andrew Ledezma, Air Planning Office
(ARD-2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105,
telephone number: (415) 972-3985, or by email at
<a href="/cdn-cgi/l/email-protection#224e474647584f430c434c46504755624752430c454d54"><span class="__cf_email__" data-cfemail="cfa3aaabaab5a2aee1aea1abbdaab88faabfaee1a8a0b9">[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
III. EPA Action
IV. Statutory and Executive Order Reviews
I. Summary of Proposed Action
On October 25, 2024 (89 FR 85119) (herein, ``proposed rule''), the
EPA proposed to conditionally approve California's contingency measure
SIP submission for the 2008 ozone NAAQS submitted by the California Air
Resources Board (CARB) for the San Joaquin Valley nonattainment area in
California. Specifically, we proposed to conditionally approve the
``Ozone Contingency Measure State Implementation Plan Revision for the
2008 and 2015 8-hour Ozone Standards (April 25, 2024)'' (herein
referred to as the ``2024 SJV Ozone Contingency Measure Plan,''
``Contingency Measure Plan,'' or ``Plan'') as it pertains to the 2008
ozone NAAQS. CARB submitted the 2024 SJV Ozone Contingency Measure Plan
on April 29, 2024,\1\ as a revision to the California SIP.
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\1\ CARB adopted the 2024 SJV Ozone Contingency Measure Plan as
a SIP revision on April 26, 2024, through CARB Executive Order S-24-
2003, and submitted the SIP revision to the EPA electronically on
April 29, 2024, as an attachment to a letter dated April 26, 2024,
from Steven S. Cliff, Ph.D., Executive Officer, CARB to Martha
Guzman, Regional Administrator, EPA Region IX.
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The 2024 SJV Ozone Contingency Measure Plan relies on two specific
contingency measures that the EPA has previously approved and includes
commitments to adopt five additional contingency measures. The
previously-approved contingency measures include a contingency for the
vehicle inspection and maintenance (``Smog Check'') program, referred
to herein as CARB's ``Smog Check Contingency Measure,'' and amendments
to the San Joaquin Valley Unified Air Pollution Control District's
(SJVUAPCD's or ``District's'') architectural coatings rule (District
Rule 4601) to include a contingency measure for the 2008 ozone NAAQS
(``Architectural Coatings Contingency Measure'').\2\ The commitments
for additional contingency measures relate to further amendments to
District Rule 4601 (Architectural Coatings) (``Architectural Coatings
Rule'') and amendments to District Rule 4603 (Surface Coating of Metal
Parts and Products, Plastic Parts and Products, and Pleasure Crafts)
(``Surface Coating of Metal Parts and Products Rule''), District Rule
4604 (Can and Coil Coating Operations) (``Can and Coil Coatings
Rule''), District Rule 4653 (Adhesives and Sealants) (``Adhesives and
Sealants Rule'') and District Rule 4663 (Organic Solvent Cleaning,
Storage, and Disposal) (``Solvent Cleaning Rule'').
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\2\ 89 FR 56222 (July 9, 2024) (final approval of Smog Check
Contingency Measure). The Architectural Coatings Contingency Measure
is included in the District's Rule 4601. The EPA approved the
Architectural Coatings Contingency Measure at 87 FR 78544 (December
22, 2022).
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On the same day we published our proposed conditional approval of
the 2024 SJV Ozone Contingency Measure Plan, we issued an interim final
determination that California had submitted revisions to the California
SIP that correct the deficiency that had prompted the partial
disapproval of previous SIP submissions addressing contingency measure
requirements for the 2008 ozone NAAQS in San Joaquin Valley.\3\ Our
interim final determination was based on the proposed conditional
approval that we are finalizing in this action. The effect of the
interim final determination is to stay the application of the offset
sanction and to defer the application of the highway sanction that were
triggered by the EPA's previous partial disapproval.
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\3\ 89 FR 85064 (October 25, 2024). Our partial disapproval of
previous SIP submissions addressing the contingency measure
requirements for the San Joaquin Valley for the 2008 ozone NAAQS was
published at 87 FR 59688 (October 3, 2022).
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We proposed to conditionally approve the 2024 SJV Ozone Contingency
Measure Plan because we preliminarily determined that the two approved
contingency measures, the five contingency measures to which the
District commits to adopt, and the justifications by the District and
CARB for not adopting additional contingency measures collectively
satisfy the contingency measure SIP requirements of CAA sections
172(c)(9) and 182(c)(9) for San Joaquin Valley for the 2008 ozone
NAAQS. We proposed a conditional approval, as authorized under CAA
section 110(k)(4), based on commitments by the District and CARB to
adopt and submit the five additional contingency measures within one
year of the conditional approval of the Plan.\4\
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\4\ Letter from Samir Sheikh, Executive Director/Air Pollution
Control Officer, SJVUAPCD, to Dr. Steven S. Cliff, Executive
Officer, CARB, and Martha Guzman, Regional Administrator, EPA Region
IX, dated June 18, 2024; and letter from Michael Benjamin, D. Env.,
Division Chief, Air Quality Planning & Science Division, CARB, to
Martha Guzman, Regional Administrator, EPA Region IX, dated June 24,
2024.
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In section I of the proposed rule, we presented background
information on the ozone NAAQS,\5\ the nonattainment designations and
classifications of the San Joaquin Valley for the 2008 ozone NAAQS, and
the resultant contingency measure SIP obligations, and we summarized
our prior contingency measure (partial) disapproval for the San Joaquin
Valley for the 2008 ozone NAAQS.\6\ In section II of the proposed rule,
we summarized the contingency measure SIP requirements under the CAA,
relevant EPA guidance, and legal precedent, including a brief
discussion of relevant decisions by the Ninth Circuit Court of Appeals
\7\ and the D.C. Circuit Court of Appeals.\8\
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\5\ 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. This action relates to the 8-hour-average
ozone NAAQS that the EPA established in 2008 and that is referred to
as the ``2008 ozone NAAQS'' or ``2008 ozone standard.'' We also
refer herein to the ozone NAAQS that the EPA established in 1997
(the ``1997 ozone NAAQS'') and in 2015 (the ``2015 ozone NAAQS'').
\6\ 87 FR 59688 (October 3, 2022).
\7\ Bahr v. EPA, 836 F.3d 1218, 1235-1237 (9th Cir. 2016) and
Association of Irritated Residents v. EPA, 10 F.4th 937, 946-47 (9th
Cir. 2021) (``AIR v. EPA'' or ``AIR'').
\8\ Sierra Club v. EPA, 21 F.4th 815, 827-828 (D.C. Cir. 2021).
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In addition, we described the EPA's long-standing approach to
contingency
[[Page 33620]]
measures and the EPA's revised approach for addressing the contingency
measure SIP requirements, as presented in the EPA's draft guidance,
entitled ``Draft: Guidance on the Preparation of State Implementation
Plan Provisions that Address the Nonattainment Area Contingency Measure
Requirements for Ozone and Particulate Matter (DRAFT--3/17/23--Public
Review Version),'' herein referred to as the ``Draft Revised
Contingency Measures Guidance.'' \9\ Two principal differences between
the draft revised guidance and the previous guidance on contingency
measures relate to the EPA's recommendations concerning the specific
amount of emission reductions that implementation of contingency
measures should achieve \10\ and the timing for when the emission
reductions from the contingency measures should occur. The Draft
Revised Contingency Measures Guidance also provides recommended
procedures for developing a demonstration, if applicable, that the area
lacks sufficient feasible measures to achieve one year's worth (OYW) of
emissions reductions, building on existing guidance that the state
should provide a reasoned justification for why the smaller amount of
emissions reductions is appropriate.
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\9\ 88 FR 17571 (March 23, 2023) (notice of availability of the
EPA's Draft Revised Contingency Measures Guidance).
\10\ The EPA's long-standing recommendation was that states
should adopt contingency measures sufficient to provide emission
reductions equivalent to one year's worth (OYW) of reasonable
further progress (RFP). In the Revised Contingency Measures
Guidance, the EPA recommends a different amount that contingency
measures should achieve--one that is defined in terms of OYW of
``progress'' rather than OYW of RFP. See, e.g., the EPA's Final
Revised Contingency Measures Guidance at page 23.
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Since publication of the proposed rule, the EPA has issued Final
Revised Contingency Measures Guidance.\11\ The Final Revised
Contingency Measures Guidance carries forward the same basic principles
included in the Draft Revised Contingency Measures Guidance. In this
document, where the context does not warrant a distinction between the
Draft and Final Revised Contingency Measures Guidance, we use the term
``Revised Contingency Measures Guidance.''
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\11\ 89 FR 101602 (December 16, 2024) (notice of availability of
final guidance, herein referred to as the EPA's ``Final Revised
Contingency Measures Guidance'').
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In section III of the proposed rule, we described in general terms
the SIP submission that is the subject of this rulemaking and evaluated
how the District and CARB complied with the procedural requirements for
adopting SIP revisions. The District and CARB adopted the 2024 SJV
Ozone Contingency Measure Plan to respond to the EPA's partial
disapproval of the previous contingency measure SIP submissions for San
Joaquin Valley for the 2008 ozone NAAQS and to address the contingency
measure SIP requirements for San Joaquin Valley for the 2015 ozone
NAAQS. We specified that our proposed conditional approval action
relates only to the 2024 SJV Ozone Contingency Measure Plan as it
pertains to the 2008 ozone NAAQS.
In sections IV and V of the proposed rule, we provided a detailed
summary of the 2024 SJV Ozone Contingency Measure Plan and discussed
how the District and CARB had applied the revised approach to
fulfilling the contingency measure SIP requirement in the context of
the 2008 ozone NAAQS in the San Joaquin Valley, and we presented our
evaluation thereof. Specifically, we discussed our evaluation of the
District's and CARB's identification and evaluation of potential
control measures, adoption of certain contingency measures, comparison
of those contingency measures against OYW of emissions reductions, and
reasoned justification for not adopting further contingency measures,
which we summarize in the following paragraphs.
In the 2024 SJV Ozone Contingency Measure Plan, the District
described its ongoing stationary source regulatory efforts, identified
potential control measures as candidate contingency measures, and
analyzed the technological and/or economic feasibility of each
candidate measure, including the feasibility of implementing such
measures within 60 days and achieving the resulting emission reductions
within one to two years of the triggering event.\12\ The District also
provided more in-depth analysis of potential contingency measures for
certain specific source categories, including biosolids, animal manure,
and poultry litter operations; confined animal facilities;
architectural coatings; surface coating of metal parts and products;
can and coil coating operations; aerospace assembly and component
coating operations; adhesives and sealants; organic solvent cleaning;
polyester resin operations; and wine fermentation and storage
tanks.\13\ Ultimately, the District adopted commitments to adopt
contingency measures for five source categories \14\ and provided a
justification in the form of an infeasibility demonstration for not
adopting contingency measures for the other source categories.
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\12\ 2024 SJV Ozone Contingency Measure Plan, p. 18.
\13\ 2024 SJV Ozone Contingency Measure Plan, section 5.12
(``Further Evaluation of Specific Categories'').
\14\ The District's commitments to adopt contingency measures
relate to the following source categories: architectural coatings,
surface coating of metal parts and products, can and coil coating
operations, adhesives and sealants and organic solvent cleaning.
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Similarly, CARB identified potential mobile source control
measures, assessed whether each candidate measure could be implemented
within 60 days of a triggering event and achieve emission reductions
within one to two years, and then analyzed their technological and/or
economic feasibility.\15\ Regarding timing of emission reductions from
mobile sources, CARB concluded that new engine standards and fleet
regulations are not appropriate for contingency measures given the time
needed for manufacturers to design, develop, and deploy cleaner engines
or equipment at scale, especially for zero-emission equipment.
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\15\ 2024 SJV Ozone Contingency Measure Plan, section 5.11
(``CARB Reactive Organic Gases Area Source Measure Analysis'') and
2024 SJV Ozone Contingency Measure Plan, appendix B (``California
Smog Check Contingency Measure State Implementation Plan
Revision''), specifically, appendix A (``Infeasibility Analysis'')
to the Smog Check Contingency Measure SIP.
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As noted previously, the 2024 SJV Ozone Contingency Measure Plan
relies on two contingency measures that were previously adopted by the
District or CARB and approved by the EPA, including the District's
Architectural Coatings Contingency Measure and CARB's Smog Check
Contingency Measure. The District assessed how the emission reductions
from these previously-adopted contingency measures would compare
against OYW of progress as defined in the Revised Contingency Measures
Guidance.\16\ As part of our evaluation and for the proposed rule, we
prepared an independent assessment of the emission reductions from the
previously adopted and approved contingency measures. In our proposed
rule, we found that the two contingency measures, if triggered, would
provide approximately two percent of OYW of progress for NO<INF>X</INF>
and approximately 19 percent of OYW for VOC.\17\
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\16\ 2024 SJV Ozone Contingency Measure Plan, pp. 89-90.
\17\ 89 FR 85119, 85129 (October 25, 2024).
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The 2024 SJV Ozone Contingency Measure Plan provides for five
additional contingency measures that the District and CARB have
committed to adopt and submit within one year of the EPA's conditional
approval of the
[[Page 33621]]
Plan, but the Plan does not include emissions estimates for the five
additional contingency measures. These additional contingency measures
would increase the overall amount of reductions of VOC from contingency
measures under the Plan but would be unlikely to collectively provide
for OYW of progress for that ozone precursor.
Because the estimated NO<INF>X</INF> and VOC emission reductions
from the contingency measures fall short of OYW of progress, CARB and
the District documented their control measure analyses across the wide
range of source categories under each agency's respective jurisdiction
(e.g., on-road sources, off-road sources, stationary point sources, and
area sources) to demonstrate that adoption of additional contingency
measures would be infeasible. We described the District's and CARB's
infeasibility demonstrations, and our evaluation thereof, in detail in
the proposed rule and proposed to find that they adequately justify the
contingency measures selected by CARB and the District for the 2008
ozone NAAQS in the San Joaquin Valley. In light of the two adopted
contingency measures and five committal contingency measures, and
reasoned justifications for not adopting additional contingency
measures, we proposed to approve the 2024 SJV Ozone Contingency Measure
Plan as meeting the contingency measure requirements of CAA sections
172(c)(9) and 182(c)(9) for the 2008 ozone NAAQS in the San Joaquin
Valley.
Since publication of the proposed rule, the EPA determined that the
San Joaquin Valley failed to attain the 1997 ozone NAAQS by the
applicable attainment date.\18\ That determination triggered the Smog
Check Contingency Measure, which was submitted as a contingency measure
for multiple NAAQS, including the 1997 and 2008 ozone NAAQS, in San
Joaquin Valley.
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\18\ 90 FR 46065 (September 25, 2025).
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Under the current California Smog Check program, certain vehicles
are exempt from the biennial inspection requirement, including vehicles
eight or fewer model years old. Upon the EPA's determination of failure
to attain, the Smog Check Contingency Measure reduced this exemption to
vehicles seven or fewer model years old in the San Joaquin Valley.
As approved into the SIP, the Smog Check Contingency Measure
provides for a second triggering event, and thus, the Smog Check
Contingency Measure continues to be available as a contingency measure
for the 2008 ozone NAAQS in the San Joaquin Valley. Upon a second
triggering event, the Smog Check Contingency Measure would further
reduce the exemption from vehicles seven or fewer model years old to
vehicles six or fewer model years old in the San Joaquin Valley.
We would expect a similar number of motor vehicles to be affected
upon a second triggering event as are affected upon the first
triggering event, and thus, we also expect a similar level of emissions
impact from a second triggering event as has been estimated for the
first triggering event. As such, the emissions reduction estimates from
implementation of the Smog Check Contingency Measure that we relied
upon for our evaluation of the 2024 SJV Ozone Contingency Measure Plan
and that were based on a first triggering event continue to be valid
for use in our final action on the Plan notwithstanding the occurrence
of the first triggering event.
Please see our October 25, 2024 proposed rule (89 FR 85119) for
more information on the 2024 SJV Ozone Contingency Measure Plan and our
evaluation of the Plan for compliance with the applicable CAA
requirements.
II. Public Comments and EPA Responses
The EPA's proposed action provided a 30-day public comment period.
During this period, we received comment letters from three
organizations or groups and two individuals. CARB and the District
submitted letters supporting the EPA's proposed action and related
interim final determination.\19\ The individuals' comments also support
the EPA's proposed action and related interim final determination. A
group of four environmental, public health, and community organizations
in the San Joaquin Valley (collectively, referred to herein as the
``Valley Environmental Organizations'') submitted comments objecting to
our proposed action.\20\ In the following paragraphs, we summarize the
comments objecting to our proposed action and provide our responses.
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\19\ Letter dated November 22, 2024, from Edie Chang, Deputy
Executive Officer, CARB, to Martha Guzman, Regional Administrator,
EPA Region IX; and letter dated November 23, 2024, from Samir
Sheikh, Executive Director/Air Pollution Control Officer, SJVUAPCD,
to EPA Docket Center.
\20\ Letter dated November 25, 2024, from the Central California
Environmental Justice Network, Committee for a Better Arvin, Medical
Advocates for Healthy Air, and Sierra Club, to Andrew Ledezma, Air
and Radiation Division, EPA Region IX, including 13 exhibits. The
Valley Environmental Organizations indicated that they were
submitting comments on the proposed approval of the 2024 SJV Ozone
Contingency Measure Plan (as it pertains to the 2008 ozone NAAQS),
the Smog Check Contingency Measure, and the Architectural Coatings
Contingency Measure. In our October 25, 2024 proposed rule, we
proposed action only on the 2024 SJV Ozone Contingency Measure Plan.
We recognize that the 2024 SJV Ozone Contingency Measure Plan relies
on the Smog Check Contingency Measure and the Architectural Coatings
Measure, but we proposed and finalized approval of the individual
contingency measures separately from our rulemaking on the 2024 SJV
Ozone Contingency Measure Plan. See 88 FR 87981 (December 20, 2023)
and 89 FR 56222 (July 9, 2024) (proposed and final approval of the
Smog Check Contingency Measure); and see 87 FR 57161 (September 19,
2022) and 87 FR 78544 (December 22, 2022) (proposed and final
approval of Architectural Coatings Contingency Measure). We are not
reconsidering our approvals of the two contingency measures through
our rulemaking on the 2024 SJV Ozone Contingency Measure Plan.
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Comment 1: The Valley Environmental Organizations assert that the
EPA's proposed approval of the 2024 SJV Ozone Contingency Measure Plan
departs from the EPA's long-standing interpretation requiring OYW of
reasonable further progress (RFP). They further state that the proposed
approval based on the Revised Contingency Measures Guidance violates
CAA section 172(c)(9) by severing the amount of required emission
reductions from the parallel and related RFP requirement when the EPA
shifts from its OYW of RFP to its new OYW of progress interpretation.
The Valley Environmental Organizations further assert that the plain
meaning does not allow, and the EPA cannot provide a reasoned
justification for, an interpretation that requires less than that which
the Act requires for RFP and that here, the ozone contingency measures
plainly provide reductions far less than OYW of RFP.
Response to Comment 1: 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 sections 172(c)(9) and
182(c)(9), it does not function as the commenter suggests (i.e., to
establish an amount of emission reductions that contingency measures
should achieve).
CAA section 172(c)(9) (``Contingency measures'') requires states to
adopt SIP revisions for nonattainment areas that provide for the
implementation of specific measures to be undertaken if the area fails
to make RFP, or to attain
[[Page 33622]]
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. CAA
section 182(c)(9) (``Contingency provisions'') applies to ozone
nonattainment areas classified as Serious or higher, and it extends the
contingency measure requirements under CAA section 172(c)(9) to
failures to meet any applicable milestone.
Thus, while section 172(c)(9) requires contingency measures where
an area fails to make RFP, the language does not specify what amount of
emission reductions such measures should achieve (i.e., does not
explicitly tie the amount of reductions to RFP). Similarly, while
section 182(c)(9) requires contingency measures where an area fails to
meet any applicable milestone (which in turn is a discrete measure of
RFP), the language similarly does not specify what amount of emission
reductions such measures should achieve. Moreover, the statutory text
also has a link to attainment, but it too does not specify what amount
of emission reductions contingency measures should achieve.
While Congress did not specify an amount that contingency measures
must achieve to comply with CAA sections 172(c)(9) and 182(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
sections 172(c)(9) and 182(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 Measures Guidance, the EPA
continues to take a policy approach but recommends OYW of progress
(rather than OYW of RFP) and provides 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.\21\
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\21\ OYW of RFP is calculated differently for ozone and
particular matter (PM). For ozone, annual RFP is essentially defined
as three percent of the base year emissions inventory (EI). For PM,
annual RFP is the average annual reductions between the base year EI
and the projected attainment year EI (i.e., the projected attainment
inventory for the nonattainment area). In contrast, OYW of progress
is calculated the same way for ozone and PM: by determining the
average annual reductions between the base year EI and the projected
attainment year EI, determining what percentage of the base year EI
this amount represents, then applying that percentage to the
projected attainment year EI to determine the amount of reductions
needed to ensure ongoing progress if contingency measures are
triggered. See also 88 FR 87988, 87994, the EPA's Draft Revised
Contingency Measures Guidance, pp. 21-23, and the EPA's Final
Revised Contingency Measures 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. Contingency measures 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.\22\ With respect to a failure
to attain by the applicable attainment date, the CAA too provides a
remedy by requiring a new attainment plan.\23\
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\22\ See CAA sections 182(g)(3) and 189(c)(3).
\23\ 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 emission reductions on the
annual amount of reductions needed to meet the separate RFP
requirement--OYW of RFP--may in some cases lead to an amount that is
greater than what typically would be needed to make up for a shortfall
in RFP or for attainment purposes.\24\ The OYW of RFP approach was
unnecessarily conservative for estimating the amount of emission
reductions needed for contingency measure purposes because a given
percentage of the base year inventory tends to represent a much more
significant portion of the attainment projected inventory.
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\24\ EPA's Draft Revised Contingency Measures Guidance, pp. 21-
23. See also the EPA's Final Revised Contingency Measures Guidance,
pp. 23-27.
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In shifting to the OYW of progress approach, the EPA recognizes
attainment of the NAAQS by the applicable attainment date as the
primary objective of the nonattainment plan requirements (including the
RFP requirement), and thus, the appropriate metric should be
attainment-focused.\25\ In the absence of a CAA-specified amount of
emission reductions required for contingency measures, the EPA's new
approach is a better reading of the contingency measure SIP requirement
given our understanding of the statutory purpose of contingency
measures following a failure to meet an RFP milestone or to attain,
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>.
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\25\ CAA section 171(1) defines RFP as such annual incremental
reductions in emissions of the relevant pollutant as are required
under part D (of title I of the CAA) or may reasonably be required
by the EPA for the purpose of ensuring attainment of the applicable
NAAQS by the applicable attainment date. (emphasis added)
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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.\26\
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\26\ The provisions of CAA section 182(c)(9) for Serious and
above ozone nonattainment areas are similar to the section 172(c)(9)
requirements except that the focus is on meeting emissions
reductions milestones (CAA section 182(g)).
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As to the specific SIP submission addressed in this document, we
acknowledge that CARB and the District used the newly-recommended
metric in preparing the 2024 SJV Ozone Contingency Measure Plan for
which the EPA is now finalizing conditional 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 previously approved contingency measures that
collectively provide for less than OYW of progress or RFP for both
ozone precursors. The only difference is the extent to which the
emission reductions
[[Page 33623]]
from the contingency measures fall short of each metric. Using the OYW
of progress metric, the contingency measures are estimated to achieve
approximately 19 percent and 2 percent of OYW of progress for VOC and
NO<INF>X</INF>, respectively, as compared to approximately 4 percent of
OYW of RFP using the previously-recommended metric.\27\ 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> emission reductions. Consistent
with the EPA's recommendations in the Revised Contingency Measures
Guidance, CARB and the District provided a reasoned justification in
their infeasibility demonstrations.
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\27\ The estimate of approximately 4 percent of OYW of RFP is
based on estimated reductions of 0.355 tpd of VOC and 0.079 tpd of
NO<INF>X</INF> from contingency measures and estimates of OYW of RFP
of 11.4 tpd of VOC and 11.3 tpd of NO<INF>X</INF>, which represent 3
percent of the baseline emissions estimates for 2011 of 378.7 tpd of
VOC and 375.6 tpd of NO<INF>X</INF>. See 83 FR 61346, 61353
(November 29, 2018) (proposed approval of RFP demonstration for San
Joaquin Valley for the 2008 ozone NAAQS); finalized at 84 FR 11198
(March 25, 2019).
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Comment 2: The Valley Environmental Organizations assert that the
EPA's proposed approval of the 2024 SJV Ozone Contingency Measure Plan
circumvents three recent court decisions \28\ and unlawfully and
arbitrarily a) lowers the amount of emission reductions required for
contingency measures (``by severing the statutory link to [RFP],''
i.e., by shifting from OYW of RFP under the EPA's prior interpretation
to OYW of progress under the EPA's revised interpretation), b) extends
implementation of contingency measures from one year to two years, and
c) invents a new feasibility exemption that does not appear in CAA
section 172(c)(9).\29\ The commenters state that the EPA's proposed
approval relies on the Revised Contingency Measures Guidance ``to
replicate the arbitrary and capricious interpretation the [AIR] court
invalidated.'' \30\
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\28\ The commenter cites Bahr v. EPA, 836 F.3d 1218 (9th Cir.
2016) (``Bahr''); Sierra Club v. EPA, 21 F.4th 815 (D.C. Cir. 2021)
(``Sierra Club''); AIR v. EPA, 10 F.4th 937 (9th Cir. 2021)
(``AIR'').
\29\ Valley Environmental Organizations Letter, pp. 12 and 14.
\30\ Valley Environmental Organizations Letter, p.14.
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Response to Comment 2: In relevant part, the Bahr and Sierra Club
decisions stand for the proposition that contingency measures under CAA
section 172(c)(9) must be conditional and prospective, and thus,
already-implemented control measures cannot serve as contingency
measures. The AIR decision stands for the proposition that surplus
emission reductions from already-implemented measures cannot be relied
upon as a justification for adoption of contingency measures that
provide for less than the recommended amount of emission reductions for
such measures. However, none of the cited court decisions bear on the
questions of the amount of emission reductions that contingency
measures must achieve to comply with the CAA, the timeline for
achieving the emission reductions from contingency measures, or the
consideration of infeasibility as justification for not adopting
contingency measures sufficient to achieve the recommended amount of
such measures.
Moreover, our proposed approval of the 2024 SJV Ozone Contingency
Measure Plan is consistent with the three cited decisions in that the
SIP relies on two contingency measures (Architectural Coatings
Contingency Measure and the Smog Check Contingency Measure) that are
designed to be conditional and prospective. In addition, as discussed
further in the following paragraph, the State has not relied on
emission reductions from already-implemented measures.
The rationale for our approval of the 2024 SJV Ozone Contingency
Measure Plan is not the same as the rationale for our approval, later
withdrawn in response to the AIR decision, of the contingency measure
element for the San Joaquin Valley for the 2008 ozone NAAQS that was at
issue in the AIR case. In the case of the contingency measure element
for the 2008 ozone NAAQS, the EPA took into account the surplus
emission reductions from already-implemented measures in the milestone
years and the years following the attainment date, not as constituting
contingency measures per se, but rather, as justification for approving
a contingency measure element that included a single contingency
measure that would provide for far less than the recommended amount.
The Court found that, by doing so, the EPA had ``severed the
relationship between the requirement of contingency measures and the
benchmark of reasonable further progress, without an adequate
explanation of why the new--and far more modest--contingency measure is
reasonable.'' \31\ 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.''
\32\ 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.''
\33\ The Court rejected the EPA's rationale for allowing consideration
of surplus emission reductions from already-implemented measures,
reasoning that the EPA could not approve a contingency measure element
``lacking robust contingency measures by assuming that they will not be
needed. Because the agency did not provide a reasoned explanation for
approving the state plan, the rule is arbitrary and capricious.'' \34\
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\31\ AIR v. EPA, 10 F.4th 937, 946 (9th Cir. 2021).
\32\ Id.
\33\ Id.
\34\ Id. at 947.
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In the wake of the Sierra Club and AIR decisions, 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 Measures Guidance. Among other things, in
the Revised Contingency Measures Guidance, the EPA explains why the
Agency believes that it is appropriate to update its prior guidance
with respect to the recommended amount of emission reductions that
contingency measures should achieve and the considerations that states
could use to justify adoption of contingency measures that do not
provide for the recommended amount of emission reductions.\35\ We found
that an update to our contingency measures guidance was justified in
light of changed factual circumstances \36\ and a current understanding
of what remaining controls may be available for states to adopt as
contingency measures. For a more detailed explanation of our rationale
for updating the metric, see
[[Page 33624]]
Response to Comment 1, and for a more detailed explanation for allowing
for consideration of feasibility, see Response to Comment 4.
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\35\ EPA's Draft Revised Contingency Measures Guidance, pp. 21-
28 (revised metric) and pp. 29-40 (reasoned justification for
adoption of contingency measures that provide for less than the
recommended amount of emission reductions). See also the EPA's Final
Revised Contingency Measures 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
emission reductions).
\36\ By ``changed circumstances,'' we are referring to court
decisions that have invalidated key aspects of EPA's historical
approach to implementing the contingency measure requirement and the
evolution toward more stringent control programs in the 30 years
since the EPA first articulated its contingency measures guidance.
As described in Response to Comment 3, the progressively stringent
control measures adopted to meet prior attainment and RFP planning
requirements are already implemented measures and therefore
ineligible to serve as contingency measures, resulting in a
narrowing pool of candidate contingency measures.
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With respect to this action, CARB and the District have adopted a
contingency measure element that relies on two contingency measures
that would not collectively achieve the recommended amount of emission
reductions for the two precursors at issue (VOC and NO<INF>X</INF>),
and they have provided a reasoned justification in the form of
infeasibility demonstrations for adopting contingency measures that
provide for less than the recommended amount. The EPA's approval of a
contingency measure element that relies, in part, on CARB and the
District's infeasibility demonstrations, rather than relying on surplus
emission reductions from already-implemented measures, stands in
contrast to the EPA action on the SIP submission at issue in AIR. The
EPA does not assume that contingency measures would not be needed for
San Joaquin Valley but, rather, that CARB and the District have
adequately demonstrated that there are no feasible contingency measures
for VOC or NO<INF>X</INF> that are left to adopt or that could be
implemented within one to two years of the triggering event.
Comment 3: For areas with more severe air pollution, such as
Extreme ozone nonattainment areas, the commenters state that the EPA
has not articulated a reasoned justification for why OYW of progress is
consistent with the CAA remedial scheme that imposes more stringent
requirements on such areas. They suggest that a voluntary
reclassification of an area (e.g., from Serious to Extreme for ozone)
would lower the average annual reductions needed for contingency
measures (e.g., if the same attainment year inventory applied for a
Serious or Extreme areas, then the annual average reduction would be
lower due to averaging over more years).
In addition, the commenters illustrate a purported fatal flaw in
the EPA's interpretation of OYW of progress using a table that shows
OYW of progress for NO<INF>X</INF> in a hypothetical ozone
reclassification from Serious to Extreme (in tons per day of
NO<INF>X</INF>) and state that a lesser amount of emission reductions
for contingency measures for such hypothetical Extreme ozone
nonattainment area runs contrary to the structure of the Act.
Response to Comment 3: As explained in more detail in our Response
to Comment 1, with respect to this specific action, the reliance on the
new OYW of progress metric (rather than the previously-recommended
metric of OYW of RFP) does not materially impact our approval because
the 2024 SJV Ozone Contingency Measure Plan falls short of the
emissions reductions recommended under either metric. However, we note
that, contrary to commenters' assertions, the EPA's interpretation of
the contingency measure requirement under CAA sections 172(c)(9) and
182(c) is consistent with the CAA's general scheme of subjecting areas
with higher classifications to more stringent requirements. More
specifically, the increased stringency relates to the types of measures
that qualify as contingency measures rather than the amount of
emissions reductions that such measures must achieve.
Under the EPA's interpretation of the contingency measure
requirement, contingency measures must be designed to provide emissions
reductions (if triggered) that are not otherwise required to meet other
attainment plan requirements and not relied upon to demonstrate RFP or
attainment. Thus, for example, contingency measures in ozone
nonattainment areas classified as Serious, which must require
implementation of Reasonably Available Control Technology (RACT) for
all stationary sources that emit, or have the potential to emit, 50
tons per year or more of VOC or NO<INF>X</INF>, must be measures that
go beyond the RACT requirement whereas contingency measures in ozone
nonattainment areas classified as Extreme (for which the threshold for
the RACT requirement is 10 tons per year) must be measures that go
beyond the more stringent RACT requirement.\37\ In other words,
reclassification of an area to a higher classification shrinks the pool
of candidate contingency measures because some of the candidate
contingency measures will be required to be adopted and implemented in
the reclassified area to meet the specific control requirements for
that classification and, thus, will be unavailable for adoption as
contingency measures. The candidate contingency measures that remain
eligible to meet the contingency measures SIP requirement under the
higher classification are more stringent than those that had been
available to meet the requirement under the lower classification. While
more stringent measures would achieve further emission reductions, if
triggered, they may achieve a smaller scale of emission reductions than
the prior iterations of increasingly stringent control measures on a
given emission source; stringency (a relative measure) is not the same
as tons per day of emission reductions (an absolute measure).
---------------------------------------------------------------------------
\37\ CAA sections 182(b)(2)(C), 182(c), 182(e) and 182(f).
---------------------------------------------------------------------------
Regarding the commenters' assertion that areas with more severe air
pollution should have contingency measures that achieve a larger amount
of emissions reductions (i.e., one year's worth of RFP), we look once
more to the broader framing of contingency measures within the overall
planning requirements for nonattainment areas. The EPA finds that the
statutory and regulatory requirements to demonstrate attainment as
expeditiously as practicable, and the absence of a specific statutory
metric for how much emissions reductions contingency measures should
achieve, give priority to adopting control measures to attain in the
first place, even if that leaves fewer options for contingency measures
in the event of a failure to attain or to make RFP.
In the 2024 SJV Ozone Contingency Measure Plan, CARB and the
District elaborate further on using an attainment-focused metric by
highlighting the scarcity of potential control measures that would
qualify as contingency measures given the facts and circumstances of
the San Joaquin Valley,\38\ where the progressively stringent set of
control measures adopted to meet prior attainment and RFP planning
requirements are already implemented measures and therefore ineligible
to serve as contingency measures.\39\ This scarcity concept echoes the
tension between the CAA requirements for attainment and contingency
measures and the prioritization of adopting measures to attain in the
first place. Nonetheless, the EPA does not endorse the scarcity concept
as a starting point but rather recommends the detailed analytical
approach to identifying and evaluating potential control measures that
can serve as contingency measures, as described in the Revised
Contingency Measures Guidance and that CARB and the District employed
in developing the 2024 SJV Ozone Contingency Measure Plan.
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\38\ 2024 SJV Ozone Contingency Measure Plan, section 4.1
(``Stringency of District and CARB's Regulatory Program'') and
appendix B (``California Smog Check Contingency Measure State
Implementation Plan Revision''), section 2 (``CARB's Opportunities
for Contingency Measures'').
\39\ 2024 SJV Ozone Contingency Measure Plan, appendix B
(``California Smog Check Contingency Measure State Implementation
Plan Revision''), section 2 (``CARB's Opportunities for Contingency
Measures'').
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Regarding the commenters' suggestion that a State could reduce the
amount of emissions reductions needed for contingency measures by
requesting a
[[Page 33625]]
voluntary reclassification that would extend the amount of time to
attain while relying on the same level of emissions reductions, we
disagree that such an action runs contrary to the general remedial
scheme of the CAA that imposes more stringent requirements on
reclassified areas.\40\ In support of our conclusion in this regard, 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 two ozone areas, one is a
Serious nonattainment area and the other is an Extreme ozone
nonattainment area, and assumes that each area has base year emissions
of 200 tons per day (tpd) and requires emissions reductions of 100 tpd
to attain. The Serious area has a maximum of 9 years to attain, whereas
the Extreme area has a maximum of 20 years to attain. The commenter
estimates OYW of progress at 5.7 tpd for the Serious 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 lower classified area,
not a lesser burden.\41\
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\40\ We further note that a voluntary reclassification would
result in stationary sources in the area being subject to more
stringent (lower) permitting thresholds and lower applicability
thresholds for Reasonably Available Control Technology (RACT)
requirements.
\41\ For comparison purposes, under the commenter's scenario,
the previously-recommended metric of OYW of RFP for both the Serious
and Extreme ozone areas would be 6.0 tpd of VOC, although
NO<INF>X</INF> could be substituted for VOC on an equivalent
percentage basis. Under the Revised Contingency Measures Guidance,
the contingency measures for the Serious ozone area should provide
for OYW of progress for VOCs in addition to the 5.7 tpd of
NO<INF>X</INF>. For the Extreme area, the comparison is between 6.0
tpd of VOC (under the previously-recommended metric of OYW of RFP)
and 2.5 tpd of NO<INF>X</INF>, but again, under the Revised
Contingency Measures Guidance, the recommended amount of reductions
would include both OYW of VOC in addition to the 2.5 tpd of
NO<INF>X</INF>. The comparison illustrates that the EPA's newly-
recommended metric does not, in all instances, lessen the burden on
states to comply with the contingency measure requirement, let alone
eviscerate the requirement, as asserted by the commenters.
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While the EPA is generally required to approve voluntary
reclassification requests (for ozone areas), and reclassifications do
provide for a greater timeline for attainment, there is no guarantee
that the EPA will approve an attainment demonstration that provides for
attainment by the maximum allowable attainment date. This is because
the CAA and the EPA's regulations require states to provide for
attainment ``as expeditiously as practicable'' but no later than the
maximum allowable attainment date.
Thus, under this scenario, we must assume that the nine years
represents ``expeditious attainment'' for the Serious area, whereas 20
years represents ``expeditious attainment'' for the Extreme area. As
such, the Serious area has identified control measures sufficient to
achieve approximately 11.12 tpd reduction on an annual basis over the
nine-year period from the base year to the attainment year. In
contrast, the Extreme area has identified control measures sufficient
to achieve approximately 5 tpd reduction on an annual basis over the
20-year period.
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
Extreme area 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 Measures
Guidance, of the amount of emissions reductions that states should
achieve to meet the CAA's contingency measure SIP requirement runs
contrary to the structure of the CAA.
For these reasons, as well as those described in Response to
Comment 1 of this document, we conclude that the EPA's revised metric
for contingency measure emission reductions (OYW of progress) does not
run contrary to the general remedial scheme of the CAA that imposes
more stringent requirements on areas reclassified to a higher
classification.
Comment 4: Regarding feasibility assessments, the Valley
Environmental Organizations state that the CAA does not subject the
contingency measure requirements to a feasibility standard and reject
the State's and the EPA's proposed reliance on infeasibility
demonstrations. The commenters argue that Congress made no exceptions
to the contingency measure requirements, nor did it provide authority
to relax those requirements based on technological or economic
challenges. They state that the CAA requirements for reasonably
available control measures (RACM) or RACT include a ``reasonably
available'' qualifier and that those for most stringent measures (MSM)
are expressly limited to ``feasible'' measures, while such terms do not
appear in the CAA requirements for contingency measures. They contend
that the EPA conflates the contingency measure requirements with the
primary requirements to attain the NAAQS in the first place. They
further state that Congress expressly provided limited authority to
relax the CAA requirements for RFP but did not do so for contingency
measures.
The commenters state that the RACM requirements (under CAA sections
172(c)(1), 182(b)(2)) require that the primary attainment strategy
include ``all'' RACM and other available control measures that would
expedite attainment and that the MSM provision (for PM<INF>2.5</INF>
nonattainment areas) requires additional control measure
implementation. They argue that contingency measures should not
comprise the same controls that the CAA already requires for attainment
and that failed to attain the NAAQS in the first place and that the EPA
unlawfully and arbitrarily excuses contingency measures needed when the
feasible measures the State has already adopted result in a failure to
attain the NAAQS (citing AIR, 10 F.4th at 946).
Given these alleged flaws in the EPA's interpretation, the
commenters state that the EPA's proposed approval violates the plain
meaning of the CAA contingency measure requirement, fails to reasonably
explain the Agency's relaxation of the emission reductions that
contingency measures must provide, and is therefore arbitrary and
capricious.
Response to Comment 4: As discussed in Response to Comment 1,
Congress must have at least implicitly delegated to the EPA the
authority to determine an amount of emissions reductions that
contingency measures should achieve and thereby give meaning to the
requirement and provide states with a basis to comply with CAA section
172(c)(9) for a given nonattainment area. The EPA continues to take a
policy approach to this question and recommends OYW of progress (rather
than OYW of RFP) and provides 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 approximately OYW of emission reductions, the state
should provide a reasoned justification (referred to herein as an
``infeasibility
[[Page 33626]]
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.\42\ 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.\43\
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\42\ 89 FR 85119, 85123 (October 25, 2024) and EPA's Draft
Revised Contingency Measures Guidance, p. 29. See also the EPA's
Final Revised Contingency Measures Guidance, p. 33.
\43\ Id.
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As stated in the proposed rule, the statutory provisions applicable
to other nonattainment area plan control measure requirements,
including RACM/RACT, best available control measures/best available
control technology (BACM/BACT), and MSM, allow air agencies to exclude
certain control measures that are deemed unreasonable or infeasible
(depending on the requirement).\44\ For example, the MSM provision in
CAA section 188(e) requires plans to include ``the most stringent
measures that are included in the implementation plan of any state or
are achieved in practice in any state, and can feasibly be implemented
in the area.'' While the contingency measures provisions do not include
such caveats, the EPA does not conclude that the contingency measures
provisions should be read to require plans to include infeasible
measures. Thus, the EPA anticipates that a demonstrated lack of
feasible measures would be a reasoned justification for adopting
contingency measures that achieve less than the recommended amount of
emission reductions.\45\
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\44\ Id. RACM/RACT requirements are set forth at CAA sections
172(c)(1) (applicable to nonattainment areas for all the NAAQS),
182(b)(2) (specific RACT requirements for ozone nonattainment
areas), 189(a)(1)(C) (specific RACM requirements for PM
nonattainment areas). BACM/BACT requirements are set forth in CAA
section 189(b)(1)(B) (Serious PM nonattainment areas), and MSM
requirements are set forth in CAA section 188(e) (certain PM
nonattainment areas).
\45\ Moreover, we note that contingency measures under CAA
section 172(c)(9), once triggered, are generally permanent and
become one of the baseline control measures for the next milestone
demonstration or the new attainment plan that must be adopted and
submitted by the state for an area that has failed to attain the
NAAQS by the applicable attainment date. As noted in this document,
technological and economic feasibility is a hallmark of such control
measures. In contrast, CAA section 110(a)(2)(G) requires states to
adopt and submit contingency plans to address emergency episodes as
part of their SIPs, and the contingency plans for emergency episodes
identify emission control actions to be taken at different episode
levels, which are much higher than the NAAQS, without consideration
of economic or technological feasibility. See, generally, 40 CFR
51.150-51.152 and appendix L to 40 CFR part 51. One significant
difference, however, between the emission control actions for
emergency episode plans under CAA section 110(a)(2)(G) and the
control measures relied upon for RFP and attainment is that the
former are temporary and are implemented only while the emergency
episode persists whereas the latter are, as noted, permanent
controls for the area.
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The EPA does not, as the commenters suggest, simply conflate the
contingency measure requirements with other control requirements (e.g.,
RACM/RACT, BACM/BACT, and MSM) that are integral to demonstrating
attainment of the ozone and/or PM<INF>2.5</INF> NAAQS. Rather, while
the analytical approach to identifying and evaluating existing and
potential control measures may be similar to those used for RACM/RACT,
BACM/BACT, and MSM (e.g., identifying the universe of control devices
that can reduce NO<INF>X</INF> emissions from combustion equipment and
whether they are technologically and economically feasible as applied
to a specific type of emissions source in the area), the EPA expects
that the state ``should not simply repeat the control strategy's
infeasibility showing.'' \46\ The contingency measure requirement is in
addition to the other control measure requirements.
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\46\ EPA's Draft Revised Contingency Measures Guidance, p. 31.
At p. 36, the EPA's Final Revised Contingency Measures Guidance
states: ``The EPA expects that justifications establishing that
control measures evaluated as potential CMs are infeasible could be
similar to analyses evaluating the feasibility of the measures to
meet other CAA requirements such as RACM/RACT, but should not simply
repeat the prior infeasibility showing.''
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A conclusion that a measure is not reasonable or feasible, for
example, for RACM does not automatically disqualify it as a potential
contingency measure. If the state identifies control measures that it
determines are not needed to attain nor to collectively advance
attainment, those measures would not be required to satisfy the RACM
requirement but would remain as candidates for contingency measures. To
the extent that the adopted contingency measures achieve a small amount
of emission reductions, the state should provide a more robust
infeasibility showing that there are no additional feasible contingency
measures that could achieve the recommended amount of reductions.\47\
Furthermore, to the extent that the state's analyses and development of
contingency measures occur after the state's analyses and development
of the SIP submissions to meet the attainment control strategy
requirements of the CAA (including associated control requirements and
RFP), the state should update their analyses to reflect the latest
potential control measures.
---------------------------------------------------------------------------
\47\ EPA's Draft Revised Contingency Measures Guidance, p. 31.
See also the EPA's Final Revised Contingency Measures Guidance, p.
37.
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In the case of the 2024 SJV Ozone Contingency Measure Plan, CARB
and the District documented their analyses to identify and evaluate
potential control measures that might serve as contingency measures.
These analyses are updated relative to their 2023 submission of the SJV
PM<INF>2.5</INF> Contingency Measure SIP, the 2021 submission of the
Serious area attainment plan for the 1997 annual PM<INF>2.5</INF>
NAAQS, the 2019 submissions of the Serious area attainment plan for the
1997 24-hour PM<INF>2.5</INF> NAAQS (including BACM demonstration),
Serious area plan for the 2006 24-hour PM<INF>2.5</INF> NAAQS
(including demonstrations for BACM and MSM), Moderate area plan for the
2012 annual PM<INF>2.5</INF> NAAQS (including RACM demonstration), and
2016 submission of the attainment plan for the 2008 ozone NAAQS
(including the RACM demonstration). The EPA has approved these
contingency measure plans and attainment plan control strategies in
successive actions \48\ and they represent an overall stringent set of
control requirements. The State did not set aside measures because they
are not available to collectively advance attainment (as might be
possible in theory, e.g., for RACM for an ozone nonattainment area).
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\48\ 89 FR 80749 (October 4, 2024) (approving the SJV
PM<INF>2.5</INF> Contingency Measure SIP); 88 FR 86581 (December 14,
2023) (approving the State's demonstrations for BACM and five
percent annual emission reductions under CAA section 189(d) for the
1997 annual PM<INF>2.5</INF> NAAQS); 87 FR 4503 (January 28, 2022)
(approving the State's BACM demonstration for the 1997 24-hour
PM<INF>2.5</INF> NAAQS); 85 FR 44192 (July 22, 2020) (approving the
State's demonstrations for BACM and MSM for the 2006 24-hour
PM<INF>2.5</INF> NAAQS); and 84 FR 3302 (February 12, 2019)
(approving the RACM demonstration for the 2008 ozone NAAQS).
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In their updated analyses, CARB and the District considered the
wide range of emissions sources under their primary jurisdiction,
identified potential control measures, analyzed their technological and
economic feasibility, and assessed whether they could achieve emissions
reductions within one to two years of a triggering event, consistent
with the EPA's discussion of the timing objective inherent to the
contingency measure requirement.\49\ For the potential control measures
identified through this
[[Page 33627]]
process, the District further analyzed possible contingency measures
for biosolids, animal manure, and poultry litter operations; confined
animal facilities; architectural coatings; surface coating of metal
parts and products, plastic parts and products, and pleasure crafts;
can and coil coating operations; aerospace assembly and component
coating operations; adhesives and sealants; organic solvent cleaning,
storage, and disposal; polyester resin operations; and wine
fermentation and storage tanks. The District ultimately adopted
commitments for contingency provisions related to architectural
coatings, surface coating of metal parts and products, can and coil
coatings, adhesives and sealants, and solvent cleaning.\50\ These
additional contingency measures will supplement the two existing
approved contingency measures: the District's Architectural Coatings
Contingency Measure and CARB's Smog Check Contingency Measure.
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\49\ 89 FR 85119, 85127-85129 (October 25, 2024) (summary of
District's and State's feasibility analyses), and 85130-85134 (the
EPA's evaluation of the State's feasibility analyses). See also
Draft Revised Contingency Measures Guidance, pp. 40-42 and Final
Revised Contingency Measures Guidance, pp. 45-48.
\50\ 2024 SJV Ozone Contingency Measure Plan, sections 5.12 and
6.
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CARB, in turn, made a reasonable case that new engine standards and
new fleet requirements require more time to implement than would be
appropriate for contingency measures (i.e., would exceed one to two
years after a triggering event) and that the State's technology-forcing
nature of its mobile source regulations reduce or eliminate
opportunities for yet-further emission reductions that could qualify as
contingency measures.\51\ In contrast to new engine standards and new
fleet requirements, CARB's feasibility evaluation for in-use motor
vehicles led to the identification and adoption of the Smog Check
Contingency Measure, which the EPA has approved as part of the
California SIP.
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\51\ 89 FR 85119, 85133-85134 (October 25, 2024).
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The two approved contingency measures and commitments for five
additional contingency measures stand in contrast to the commenters'
argument that the feasibility assessment process put forward in the
EPA's Revised Contingency Measures Guidance, in the State's 2024 SJV
Ozone Contingency Measure Plan, and the EPA's proposed conditional
approval thereof would simply re-employ the control measures originally
employed to attain the ozone and PM<INF>2.5</INF> NAAQS in the San
Joaquin Valley.
Furthermore, in many instances the reason for which the EPA agreed
with the State for not adopting a potential control measure as a
contingency measure was not based on any affirmation that a measure was
economically infeasible, but rather it was based on other reasons. For
example, for the potential control measure of requiring electric water
heaters and furnaces at point of sale, the EPA determined that such a
measure would not be feasible because we expect that it would result in
negligible emission reductions within two years after trigger,
consistent with the District's suggestion that the attrition-based
nature of implementation of this contingency measure option deems the
measure infeasible.\52\
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\52\ 89 FR 85119, 85132 (October 25, 2024), and EPA's Reasoned
Justification TSD, pp. 43-51.
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For the potential control measure of lower NO<INF>X</INF> emissions
limits on oil and gas production equipment with a total rated heat
input of greater than 5.0 million Btu per hour, the EPA determined that
it would be technologically infeasible to meet the lower limits within
the two-year timeframe for contingency measures due to the likely
requirement that affected units would need to install selective
catalytic reduction (SCR) devices to meet the lower limits (i.e., the
planning, engineering, and installation of SCR would take more than two
years).\53\ Similarly, for the potential control measure of lower
NO<INF>X</INF> emission limits for boilers, steam generators, and
process heaters with a total rated heat input of 5.0 million Btu per
hour or less, the EPA expects that units required to meet lower limits
than those already adopted in Rules 4307 and 4308 would require
installation of SCR, which cannot be feasibly achieved within the two-
year timeframe for contingency measures.\54\
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\53\ 89 FR 85119, 85132 (October 25, 2024), and EPA's Reasoned
Justification TSD, pp. 9-22.
\54\ 89 FR 85119, 85132 (October 25, 2024), and EPA's Reasoned
Justification TSD, pp. 9-22.
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In sum, the EPA maintains that it does not read the statute to
require air agencies to adopt and impose infeasible measures.
Furthermore, as applied to the 2024 SJV Ozone Contingency Measure Plan,
we continue to find that the District's and State's two existing
contingency measures for the San Joaquin Valley for the 2008 ozone
NAAQS, in conjunction with the District's and State's commitments to
adopt and submit five additional contingency measures and the
District's and State's infeasibility demonstrations that adequately
justify the contingency measures selected by the District and State,
meet the contingency measure requirements under CAA sections 172(c)(9)
and 182(c)(9).
Comment 5: The Valley Environmental Organizations assert that the
EPA unlawfully and arbitrarily proposes approval of the 2024 SJV Ozone
Contingency Measure Plan based on the Agency's new interpretation in
the Revised Contingency Measures Guidance by extending the
implementation period from one year to two years.
Response to Comment 5: With respect to the issue of extending the
period in which the emissions reductions from contingency measures can
be considered in meeting the contingency measure SIP requirement, we
note that the commenters raise this particular objection to the EPA's
proposed approval in a single sentence and fail to elaborate on how
extending the time period for achieving the emission reductions from
contingency measures from one to two years conflicts with the CAA.
In this instance, we proposed conditional approval of the 2024 SJV
Ozone Contingency Measure Plan, which relies on two approved
contingency measures (the District's Architectural Coatings Contingency
Measure and CARB's Smog Check Contingency Measure) and commitments to
adopt and submit five additional contingency measures. The District's
Architectural Coatings Contingency Measure is designed to be
implemented within 60 days of a triggering event, but architectural
coatings sold, supplied, or offered for sale prior to that time in a
container with a volume of one liter or less may be applied after that
time so long as the coating complied with the standards in effect at
the time the coating was manufactured.\55\ Nonetheless, we would
generally expect the full emissions reductions estimated for the
Architectural Coatings Contingency Measure to be achieved within a year
of the triggering event.
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\55\ District Rule 4601, sections 4.2, 4.3 and 5.3.
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As explained in the EPA's final rule on CARB's Smog Check
Contingency Measure, the emission reductions from the Smog Check
Contingency Measure may not be fully achieved until the second year
after the triggering event.\56\ However, as further explained in that
final rule, and consistent with the Revised Contingency Measures
Guidance, in instances where there are insufficient contingency
measures available to achieve the recommended amount of emission
reductions within one year of the triggering event, contingency
measures that provide reductions within two years of the triggering
event could be appropriate to consider toward achieving the recommended
amount of emission
[[Page 33628]]
reductions.\57\ Contingency measures that result in additional
emissions reductions during the second year following the triggering
event, as contemplated by the Revised Contingency Measures Guidance,
can still serve the important purpose of contingency measures to
continue progress toward attainment, as the State develops and submits,
and the EPA acts on, a SIP submission to address the underlying
condition (e.g., failure to make RFP or to attain by the applicable
attainment date) that triggered the contingency measures in the first
place.\58\
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\56\ 89 FR 56222, 56224-56225 (July 9, 2024).
\57\ 89 FR 56222, 56224-56225 (July 9, 2024); and Final Revised
Contingency Measures Guidance, p. 47.
\58\ Id.
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Comment 6: The Valley Environmental Organizations state that the
EPA unlawfully and arbitrarily proposes to approve the 2024 SJV Ozone
Contingency Measure Plan even though it relies on a contingency measure
(CARB's Smog Check Contingency Measure) that provides for only two
triggering events yet serves as a contingency measure for multiple
NAAQS without requiring supplementation of the SIP with additional
contingency measures. The Valley Environmental Organizations contend
that such approval by the EPA unlawfully and arbitrarily allows
California discretion in adopting further contingency measures and
fails to evaluate whether the emission reductions to follow a second
triggering event would meet either OYW of RFP or OYW of progress.
Response to Comment 6: Our approval relates to the SIP requirements
for contingency measures under CAA sections 172(c)(9) and 182(c)(9) for
the 2008 ozone NAAQS. Under the applicable requirements, states with
ozone nonattainment areas classified as Serious and above must provide
contingency measures that can be triggered in the event of a failure to
meet any RFP milestone or to attain the 2008 ozone NAAQS by the
applicable attainment date.
Neither the CAA nor the EPA's regulations specify a minimum number
of contingency measures or prescribe separate contingency measures for
different contingency measure triggers. The CAA and the EPA's
regulations also do not preclude the reliance on the same contingency
measures for separate NAAQS, and the commenter does not identify any
specific statutory or regulatory requirement that does so. Moreover, it
is not uncommon for a state or district to rely on a core set of
control measures for multiple NAAQS. For example, the State and
District rely on a core set of NO<INF>X</INF> control measures as part
of the control strategies for demonstrating RFP and attainment for both
ozone and PM<INF>2.5</INF> in the San Joaquin Valley. Regardless, we
acknowledge that neither the State nor District has submitted an
enforceable commitment to submit additional contingency measures in
response to the triggering of the contingency measures. The EPA does
not believe that such commitment is required.
In this instance, the 2024 SJV Ozone Contingency Measure Plan
relies on two approved contingency measures, only one of which (CARB's
Smog Check Contingency Measure) provides for a second triggering event
and relates to NAAQS in addition to the 2008 ozone NAAQS.\59\ Unlike
the District's Architectural Coatings Contingency Measure, CARB's Smog
Check Contingency Measure relates to multiple ozone and
PM<INF>2.5</INF> NAAQS but is structured so as to provide not just for
implementation of more stringent requirements upon a first triggering
event, but also to provide for implementation of yet more stringent
requirements upon a second triggering event (i.e., further tightening
of the requirements beyond that triggered by the first event). As
described previously in this document, the Smog Check Contingency
Measure has been triggered once but remains viable for the 2008 ozone
NAAQS because it is structured to provide for a second triggering
event.
---------------------------------------------------------------------------
\59\ The District's Architectural Coatings Contingency Measure
is fully triggered upon a single triggering event (i.e. finding of
failure to meet an RFP milestone or failure to attain by the
applicable attainment date) that relates solely to the 2008 ozone
NAAQS. See section 4.3 of District Rule 4601. In contrast, CARB's
Smog Check Contingency Measure accommodates two triggering events
and has been triggered by a determination by the EPA that the San
Joaquin Valley failed to attain the 1997 ozone NAAQS by the
applicable attainment date. However, because the Smog Check
Contingency Measure provides for a second triggering event, it
remains a viable contingency measure for the 2008 ozone NAAQS. See
p. 3 of the Smog Check Contingency Measure (included as Appendix B
of the 2024 SJV Ozone Contingency Measure Plan).
---------------------------------------------------------------------------
If the Smog Check Contingency Measure were to be triggered a second
time, then it would no longer be available as a contingency measure for
the 2008 ozone NAAQS. In that event, we would expect CARB and the
District to update their feasibility evaluations and adopt and submit a
remedial SIP revision within one year of the triggering event. We would
also expect the SIP revision to take into account the emission
reductions from the remaining contingency measures (the Architectural
Coatings Contingency Measure and additional contingency measures that
the District has committed to adopt) and to include any additional
feasible contingency measures as needed to ensure that the San Joaquin
Valley continues to meet the contingency measure requirements of CAA
sections 172(c)(9) and 182(c)(9) for the 2008 ozone NAAQS.
Comment 7: The Valley Environmental Organizations contend that the
proposed approval of the 2024 SJV Ozone Contingency Measure Plan
violates CAA section 110(l). According to the commenters, this is
because approval of a contingency measure element that plainly does not
provide for OYW of RFP weakens the amount of reductions required by
contingency measure elements and, thereby, constitutes unlawful
backsliding under CAA section 110(l). In the alternative, the
commenters assert that the EPA has unlawfully and arbitrarily failed to
consider and make a finding with respect to whether the approval of the
2024 SJV Ozone Contingency Measure Plan constitutes illegal
backsliding.
Response to Comment 7: CAA section 110(l) prohibits the EPA from
approving a SIP revision if it would interfere with any applicable
requirement concerning attainment and RFP progress or any other
applicable requirement of the Act.
The EPA acknowledges that the Agency did not make any specific
determination with respect to CAA section 110(l) in evaluating the 2024
SJV Ozone Contingency Measure Plan. This is because the 2024 SJV Ozone
Contingency Measure Plan does not relax any control requirements
previously approved as part of the California SIP and thus does not
represent ``backsliding'' in that sense.\60\ Also, by definition,
contingency measures must be measures that go beyond the measures that
provide for RFP and attainment, and thus, approval of contingency
measures would not interfere with either of those separate
requirements.
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\60\ To the extent that the commenters assert that the EPA
approved an emissions level that contingency measures in the San
Joaquin Valley for the 2008 ozone NAAQS must achieve when we
approved the contingency measure element in 2019, and that we are
now approving a SIP revision that establishes a lower emissions
level, we note that we withdrew our 2019 conditional approval of the
contingency measure element for San Joaquin Valley for the 2008
ozone NAAQS with the exception of the Enhanced Enforcement
Activities Program measure at 87 FR 59688 (October 3, 2022).
---------------------------------------------------------------------------
Furthermore, the EPA evaluated the 2024 SJV Ozone Contingency
Measure Plan specifically with respect to the SIP requirements for
contingency measures under CAA sections 172(c)(9) and 182(c)(9) and,
for the reasons given in
[[Page 33629]]
the proposed rule, preliminarily determined that the 2024 SJV Ozone
Contingency Measure Plan, considered together with the two existing
contingency measures and the five additional contingency measures to
which the District and CARB have committed, meets those requirements.
As such, approval of the 2024 SJV Ozone Contingency Measure Plan would
not interfere with the applicable contingency measure requirement. The
commenters do not identify any other applicable CAA requirements
implicated by the EPA's proposed conditional approval of the 2024 SJV
Ozone Contingency Measure Plan.
Comment 8: The Valley Environmental Organizations contend that the
EPA unlawfully and arbitrarily proposed to approve the 2024 SJV Ozone
Contingency Measure Plan based on a 2012 base year emissions inventory,
whereas 2011 is the approved RFP baseline year that was the basis for
the EPA's 2019 approval of the contingency measure element. The Valley
Environmental Organizations view the EPA's proposed approval as
shifting the baseline year for contingency measures from 2011 to 2012
and assert that the EPA fails to explain why this change in the
baseline inventory for the purposes of contingency measures is more
consistent with the Act or with South Coast Air Quality Management
District v. EPA, 882 F.3d 1138 (D.C. Cir. 2018).\61\
---------------------------------------------------------------------------
\61\ The 2008 Ozone SIP Requirement Rule (SRR) requires the RFP
baseline year to be the most recent calendar year for which a
complete triennial inventory was required to be submitted to the
EPA. For the purposes of developing RFP demonstrations for the 2008
ozone standards, the applicable triennial inventory year is 2011.
The 2008 Ozone SRR provided states with the opportunity to use an
alternative baseline year for RFP but that particular aspect of the
2008 Ozone SRR was vacated by the D.C. Circuit in the South Coast
Air Quality Management District v. EPA decision cited by the
commenters.
---------------------------------------------------------------------------
Response to Comment 8: The 2024 SJV Ozone Contingency Measure Plan
uses the 2012 base year emission inventory and the attainment year
emissions inventory to calculate OYW of progress, the amount of
emissions reductions that EPA recommends that states achieve to meet
the contingency measure SIP requirement.\62\ This approach is
consistent with the corresponding recommendations in the EPA's Revised
Contingency Measures Guidance.
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\62\ 2024 SJV Ozone Contingency Measure Plan, pp. 6-7.
---------------------------------------------------------------------------
In 2019, when the EPA first approved (conditionally) the
contingency measure element for the 2008 ozone NAAQS for San Joaquin
Valley, the EPA was recommending that states adopt contingency measures
that provide the equivalent of OYW of RFP.\63\ With respect to the 2008
ozone NAAQS, as commenters note, OYW of RFP is three percent of the
2011 VOC RFP baseline emissions inventory. In 2022, the EPA withdrew
its 2019 (conditional) approval of the contingency measure element for
the 2008 ozone NAAQS for San Joaquin Valley, with the exception of the
Enhanced Enforcement Activities Program measure.\64\
---------------------------------------------------------------------------
\63\ 84 FR 11198, at 11205 (March 25, 2019).
\64\ 87 FR 59688 (October 3, 2022).
---------------------------------------------------------------------------
The change in the baseline inventory used to determine the amount
of emissions reductions that contingency measures should achieve for
San Joaquin Valley for the 2008 ozone NAAQS reflects the change in EPA
guidance on contingency measures. CARB and the District prepared the
original contingency measure element (now withdrawn) in light of EPA
guidance available at that time (and that recommended that contingency
measures achieve OYW of RFP), and CARB and the District prepared the
2024 SJV Ozone Contingency Measure Plan in light of the Revised
Contingency Measures Guidance (that recommends that contingency
measures achieve OYW of progress). We discuss why we believe the new
approach to the recommended amount of emissions reductions that
contingency measures should achieve is the best reading of the CAA in
Response to Comment 1.
Lastly, we note that the South Coast Air Quality Management
District v. EPA decision cited by commenters does not speak to the
contingency measure SIP requirements under CAA sections 172(c)(9) and
182(c)(9), which are the relevant statutory provisions for the EPA's
review and evaluation of the 2024 SJV Ozone Contingency Measure Plan,
and thus there is no need to discuss the consistency between our action
and that particular court decision.
Comment 9: The Valley Environmental Organizations state that the
EPA's proposed approval of the State's contingency measures ignores
Presidential orders that direct the EPA and other federal agencies to
prioritize environmental justice, including Executive Order 14008,
``Tackling the Climate Crisis at Home and Abroad,'' (January 27, 2021)
and Executive Order 14096, ``Revitalizing our Nation's Commitment to
Environmental Justice for All'' (April 21, 2023).\65\ They further
argue that the EPA exacerbates the ``environmental justice crisis'' by
denying the residents of the San Joaquin Valley meaningful pollution
reductions that should happen upon a failure to attain the 2008 ozone
NAAQS. To convey the magnitude of this concern, the commenters cite to
American Lung Association rankings of counties for ozone pollution
(where many San Joaquin Valley counties rank among the worst in the
nation) and the EPA's review of environmental justice indices (where
many San Joaquin Valley counties exceed the 90th percentile) and
describe the sequence of failures to attain the NAAQS by the applicable
attainment dates in San Joaquin Valley, as well as recent air quality
design values for the 1997 and 2008 ozone NAAQS that portend the same.
Lastly, they contend that the EPA's statement in the proposed rule that
the action is expected to have a neutral to positive impact on the air
quality of the affected area lacks credulity because the EPA is
proposing to approve a weakening of its contingency measures
interpretation and lacks factual support.
---------------------------------------------------------------------------
\65\ Valley Environmental Organizations Comment Letter, pp. 4-6.
See also, 86 FR 7619 (February 1, 2021) (Executive Order 14008) and
88 FR 25251 (April 26, 2023) (Executive Order 14096).
---------------------------------------------------------------------------
Response to Comment 9: Executive Orders 14008 and 14096 were
rescinded on January 20, 2025.\66\ In the proposed rule, we indicated
that the action is expected to have a neutral to positive impact
because the approved ozone contingency measures, including the
Architectural Coatings Contingency Measure and the Smog Check
Contingency Measure, and the additional contingency measures to which
the District and CARB have committed to adopt and submit would,
following a triggering event, reduce emissions from various VOC sources
and light-duty vehicles across the San Joaquin Valley. These reductions
would contribute to reduced negative environmental and health impacts
on all populations in the San Joaquin Valley.
---------------------------------------------------------------------------
\66\ Executive Order 14148 (January 20, 2025). See 90 FR 8237
(January 28, 2025).
---------------------------------------------------------------------------
To the extent that the commenters disagree with the EPA's Revised
Contingency Measures Guidance or our application of the guidance to the
facts and circumstances of the San Joaquin Valley, we maintain that the
2024 SJV Contingency Measure Plan, including the related commitments to
adopt additional contingency measures and infeasibility demonstrations
for further contingency measures, considered together with the two
existing and approved ozone contingency measures, meets the contingency
measure SIP requirements of CAA sections 172(c)(9) and 182(c)(9). Under
the CAA, the EPA is required to approve a SIP submission
[[Page 33630]]
that meets the requirements of the CAA and applicable federal
regulations.
Comment 10: The Valley Environmental Organizations allege that,
following the 2021 Ninth Circuit Court decision in AIR v. EPA, the EPA
began to work with CARB and California air districts to weaken the
contingency measure requirement. The Valley Environmental Organizations
further state that, during meetings of a workgroup called the ``Padilla
Contingency Measures Subgroup,'' the EPA committed to revise its long-
standing interpretation of the contingency measure requirements,
including specific elements that would relax emissions reduction
requirements, and contend that the EPA's commitment led to the Revised
Contingency Measures Guidance.\67\ The commenters also contend that the
EPA now proposes, as it allegedly agreed to during the Padilla
Contingency Measures subgroup proceedings, to ``eviscerate the amount
of emissions reductions such measures should provide'' and that the
``EPA has predetermined the outcome of these proposed rulemakings in an
agreement with CARB and the air districts during the Padilla
Contingency Measures Subgroup proceedings,'' thereby violating the
procedural due process clause of the Fifth Amendment to the U.S.
Constitution, CAA section 307, the Administrative Procedure Act, and
Executive Orders 14008 and 14096.\68\
---------------------------------------------------------------------------
\67\ Valley Environmental Organizations Comment Letter, p. 2.
\68\ Valley Environmental Organizations Comment Letter, pp. 2
and 11.
---------------------------------------------------------------------------
The Valley Environmental Organizations include several documents
obtained from the EPA via a Freedom of Information Act request to
support their allegation of improper consultation and coordination.\69\
These include, among other things, documents relating to EPA engagement
in 2021-2023 with the California Air Pollution Control Officers
Association (CAPCOA), the ``Padilla Contingency Measures Subgroup,'' a
letter from South Coast Air Quality Management District, discussions
with California air districts and CARB senior staff, and an email from
EPA Region IX to the SJVUAPCD. The commenters state that these
documents indicate that the EPA worked closely with California air
agencies to fashion an agreement to weaken the contingency measure
requirement and that the EPA shared its revised guidance with the
California agencies several months before releasing the revised
guidance to the general public without regard for the public health
consequences from weakening the contingency measure requirement.\70\
---------------------------------------------------------------------------
\69\ Valley Environmental Organizations Comment Letter, Exhibits
3 through 12.
\70\ Valley Environmental Organizations Comment Letter, pp. 8-
11.
---------------------------------------------------------------------------
Response to Comment 10: We disagree that the EPA improperly
communicated with California air agencies to reconsider the contingency
measure requirement following the 2021 AIR v. EPA decision by the Ninth
Circuit Court of Appeals, and we disagree that the EPA reconsidered the
contingency measure requirement for the purpose of weakening it.
The CAA is referred to as a model of cooperative federalism. Under
the CAA, the EPA is responsible for establishing the NAAQS, and the
states are responsible for developing SIPs and SIP revisions to provide
for implementation, maintenance, and enforcement of the NAAQS. In turn,
the EPA is responsible for promulgating regulations establishing SIP
requirements and for providing guidance to the states in developing
SIPs and SIP revisions to meet the various requirements under the CAA
and our implementing regulations.
In that capacity, it is appropriate for the EPA to reconsider
previously-issued guidance in the wake of court decisions that bear on
EPA actions on SIPs that relied on that guidance.\71\ In this instance,
as discussed in the Revised Contingency Measures Guidance, we issued
the revised guidance document because recent court decisions had
invalidated key aspects of EPA's historical approach to implementing
the contingency measure requirement, and these court decisions had the
effect of prohibiting an approach that many air agencies have
historically used to meet the contingency measure requirement.\72\
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\71\ See, for example, EPA Office of Transportation and Air
Quality, ``Implementing Clean Air Act Section 182(d)(1)(A):
Transportation Control Measures and Transportation Control
Strategies to Offset Growth in Emissions Due to Growth in Vehicle
Miles Travelled,'' EPA-420-B-12-053, August 2012 (revised guidance
in light of the Ninth Circuit Court of Appeals decision in
Association of Irritated Residents v. EPA, 632 F.3d 584, at 596-597
(9th Cir. 2011), reprinted as amended on January 27, 2012).
\72\ Draft Revised Contingency Measures Guidance, p. 2. See also
the EPA's Final Revised Contingency Measures Guidance, p. 2.
---------------------------------------------------------------------------
The EPA developed the Revised Contingency Measures Guidance based
on the recommendations of an ad hoc internal working group, referred to
as the Contingency Measure Task Force, that the EPA assembled soon
after the D.C. Circuit Court of Appeals decision in Sierra Club v.
EPA.\73\ The Contingency Measure Task Force was composed of EPA program
staff and attorneys from both the EPA regions and headquarters. During
the process of preparing the Revised Contingency Measures Guidance,
California air agencies made their views known to the EPA, but those
agencies played no part in the drafting or review of the
recommendations made by the Contingency Measure Task Force to EPA
management or the substance of the Revised Contingency Measures
Guidance itself.
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\73\ The Sierra Club v. EPA decision adopted the rationale of an
earlier decision by the Ninth Circuit Court of Appeals in Bahr v.
EPA that invalidated already-implemented measures as contingency
measures for the purposes of CAA section 172(c)(9). Sierra Club v.
EPA, 21 F.4th 815, 827-28 (D.C. Cir. 2021) and Bahr v. EPA, 836 F.3d
1218 (9th Cir. 2016).
---------------------------------------------------------------------------
Also in the spirit of cooperative federalism, the EPA routinely
communicates with state and local air agencies responsible for SIPs and
SIP revisions regarding compliance with SIP requirements. Again, the
states are responsible for adoption and submission of SIPs and SIP
revisions and there are consequences for failure to meet SIP submission
deadlines.
In this instance, the EPA engaged with state and local air agencies
to hear their concerns about meeting the contingency measure SIP
requirements and to provide a description of the types of revisions to
the contingency measures guidance that EPA staff were developing for
consideration by EPA management. The impetus for heightened interest on
the part of state and local air agencies was the need to meet near-term
deadlines for submission of SIP revisions addressing the contingency
measure SIP requirements for multiple ozone and PM<INF>2.5</INF> NAAQS.
Documents cited by the commenter as evidence of improper coordination
simply reveal that the EPA was responsive to state and local agency
requests for insight as to what the contingency measures guidance
revisions might entail if and when approved by EPA management. Thus the
air agencies that developed SIP revisions in reliance on the
descriptions by EPA staff of not-yet-approved revisions to the
contingency measures guidance were taking a risk that the guidance,
once made publicly available, would differ in material ways from what
EPA staff had described.
With respect to the commitments that the EPA made in connection
with the Padilla Contingency Measures Subgroup,\74\ the EPA did not
commit to
[[Page 33631]]
making any specific revisions to the contingency measures guidance or
to making any revisions to the guidance that are inconsistent with the
CAA or case law. Rather, the Agency committed ``to explore
interpretations and approaches that are consistent with the court
decisions'' and, among other things, ``to revisit'' the general bases
for calculating the amount of emission reductions that contingency
measures should provide,\75\ but as noted previously, the EPA did not
commit to any particular outcome. The Contingency Measure Task Force
followed through on these commitments through meetings and review of
draft documents that were internal to the EPA and eventual publication
of notice in the Federal Register of the availability of the Draft
Revised Contingency Measures Guidance for public review and comment. We
believe the revised draft guidance provides an approach that state and
local air agencies may use to meet the contingency measure SIP
requirements under the CAA.
---------------------------------------------------------------------------
\74\ The Padilla Contingency Measures Subgroup was one of
several such ad hoc groups assembled in response to an inquiry from
U.S. Senator Padilla. See the letter dated December 3, 2021, from
Joseph Goffman, Principal Deputy Assistant Administrator to U.S.
Senator Alex Padilla, responding to letter dated October 19, 2021,
from U.S. Senator Alex Padilla to Michael Regan, Administrator, EPA.
\75\ Email from Elizabeth Adams, Director, Air & Radiation
Division, EPA Region IX, to Philip Fine, Bay Area Air Quality
Management District, March 29, 2023, and attachment titled ``Padilla
Subgroup Focus Area Summaries.'' The Valley Environmental
Organizations included this email and attachment with their comment
letter and identified it as Exhibit 7.
---------------------------------------------------------------------------
The EPA issued the Draft Revised Contingency Measures Guidance on
March 17, 2023, and sought public comment on section 3 (``Showing that
the CMs Achieve Sufficient Reductions''), section 4 (``Reasoned
Justification for Less Than OYW of Progress''), and section 5
(``Guidance on Timing of Reductions from CMs'') of the draft guidance
over a 30-day period ending April 24, 2023.\76\ We applied the
underlying concepts of the draft guidance in our evaluation of the 2024
SJV Ozone Contingency Measure Plan, described as much in our proposed
rule, and provided a 30-day comment period ending November 25, 2024,
consistent with the public notice requirements of the CAA and the
Administrative Procedure Act.\77\
---------------------------------------------------------------------------
\76\ 88 FR 17571 (March 23, 2023).
\77\ 89 FR 85119 (October 25, 2024).
---------------------------------------------------------------------------
For this action, we considered the sum of the emissions reductions
from the two approved ozone contingency measures (the District's
Architectural Coatings Contingency Measure and CARB's Smog Check
Contingency Measure) relative to the recommended amount we have
indicated contingency measures should achieve. Because the measures,
considered together, would not achieve the recommended amount of
emissions reductions for VOC or NO<INF>X</INF>, CARB and the District
submitted infeasibility demonstrations documenting the unavailability
of additional feasible contingency measures for those ozone precursors.
We reviewed and evaluated the infeasibility demonstrations and, in
our proposed rule, provided the rationale for our preliminary
conclusion that the approved contingency measures, considered together
with the commitments made by the District and CARB for five additional
contingency measures, meet the applicable requirements for such
measures and that CARB and the District had provided a reasoned
justification, through the infeasibility demonstrations, for not
adopting contingency measures sufficient to achieve the recommended
amount of emission reductions for VOC and NO<INF>X</INF>.
In this action, we are finalizing our approval of the 2024 SJV
Ozone Contingency Measure Plan for the reasons given in the proposed
rule, as clarified and supplemented in responses to comments. While the
Valley Environmental Organizations object to the consideration of
feasibility in connection with the contingency measure SIP requirement,
the commenters have raised no specific objection to our evaluation of
the infeasibility demonstrations from CARB and the District upon which
our final approval rests, with the exception of our evaluation of the
District's infeasibility demonstration for confined animal facilities.
We address the comment related to confined animal facilities in the
following response.
In summary, in our proposed rule on the State's contingency measure
SIP submission for the 2008 ozone NAAQS in the San Joaquin Valley, as
well as our Revised Contingency Measures Guidance, we articulated a
reasoned justification for the change in EPA policy as to how states
may comply with the contingency measure SIP requirements. We have
responded in this document to comments opposing those policy changes,
and we explained how we were reviewing the 2024 SJV Ozone Contingency
Measure Plan in light of the new guidance. The EPA believes that such
actions satisfy the applicable requirements for public process under
the CAA and Administrative Procedure Act, as well as our
responsibilities to engage state and local air agencies on CAA
requirements, generally, and the development of SIP revisions in the
wake of court decisions that bear on questions of CAA interpretation,
specifically.
Comment 11: The Valley Environmental Organizations object to the
EPA's approval of the infeasibility demonstration with respect to
confined animal facilities. Citing information presented in the
proposed rule, the commenters note the extent to which VOC emissions in
San Joaquin Valley come from the farming operations source category and
are associated with livestock husbandry, particularly silage at dairies
and dairy cattle waste. Commenters contend that the District did not
perform an economic or technological feasibility analysis of
contingency measures from the source category. Rather, the commenters
contend, because the District claims Rule 4570 is the most stringent
rule in the nation, the District found that the District is currently
implementing the most stringent feasible measure. The commenters
further contend that the EPA fails to consider or explain whether
contingency measures from a category that represents such a large
percentage of the VOC emission in the Valley are not technologically or
economically feasible. Further, they contend that, while Rule 4570 may
be the only such rule in the country or the most stringent, that does
not mean that additional emissions reductions are not feasible and that
EPA's cursory dismissal of contingency measures for this category as
infeasible is thus arbitrary and capricious.
Response to Comment 11: The EPA generally agrees with the
commenters as to the extent to which the farming operations such as
livestock husbandry, particularly silage and dairy cattle waste,
contribute to Valley-wide VOC emissions inventories. We also agree that
the District's conclusion that there are no feasible contingency
measures for confined animal facilities, with which we proposed to
agree in our proposed rule, rests on the contention that the District's
rule that applies to this source category, Rule 4570 (Confined Animal
Facilities), contains, as a practical matter, the most stringent
requirements of any analogous air pollution control rules.\78\
---------------------------------------------------------------------------
\78\ 2024 SJV Ozone Contingency Measure Plan, pp.79-80; 89 FR
85119, at 85133.
---------------------------------------------------------------------------
While we believe that the fact that a rule is the most stringent
measure for a given source category is an indicator that additional
controls may not be feasible, we agree that, in this instance,
additional information and evaluation is warranted. Thus, we requested
additional information and analysis from the District, and the District
responded in a letter and attachment that we have evaluated and
included in
[[Page 33632]]
the docket for this rulemaking.\79\ Herein, we refer to the letter and
attachment collectively as the ``Confined Animal Facilities
Supplement.''
---------------------------------------------------------------------------
\79\ 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.''
---------------------------------------------------------------------------
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. The District
contends that the menu-based approach is necessary because CAFs in the
San Joaquin Valley vary significantly compared to traditional
industrial sources.\80\ 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.
---------------------------------------------------------------------------
\80\ Confined Animal Facilities Supplement, p. 3.
---------------------------------------------------------------------------
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.\81\
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,'' \82\ 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.\83\
---------------------------------------------------------------------------
\81\ Confined Animal Facilities Supplement, p. 4.
\82\ 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.
\83\ Confined Animal Facilities Supplement, p. 5.
---------------------------------------------------------------------------
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.\84\
---------------------------------------------------------------------------
\84\ Confined Animal Facilities Supplement, pp. 5-22.
---------------------------------------------------------------------------
With respect to litter amendments and manure additives, the
District separately analyzed acidifying amendments and additives for
poultry litter, manure additives, and microbial additives.\85\ 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.\86\ 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,\87\ the District contends that the effectiveness of microbial
manure additives for VOC emissions reduction remains unproven.\88\
---------------------------------------------------------------------------
\85\ Confined Animal Facilities Supplement, pp. 6-11.
\86\ Confined Animal Facilities Supplement, pp. 7-8.
\87\ 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.
\88\ Confined Animal Facilities Supplement, p. 10.
---------------------------------------------------------------------------
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.\89\ 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.\90\ 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.
---------------------------------------------------------------------------
\89\ USDA and EPA, Agricultural Air Quality Conservation
Measures Reference Guide for Poultry and Livestock Production
Systems. (September 2017).
\90\ Confined Animal Facilities Supplement, p. 12.
---------------------------------------------------------------------------
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
[[Page 33633]]
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 rate needed to control temperature
in production houses and ensure animal health.\91\ Citing the USDA
Reference Guide, the District finds that a high air flow rate in the
summer, animal housing differences, ongoing maintenance, and water
demand make this mitigation measure infeasible.\92\ 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'').\93\
---------------------------------------------------------------------------
\91\ Confined Animal Facilities Supplement, p. 13.
\92\ Confined Animal Facilities Supplement, p. 14.
\93\ 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.\94\ 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.\95\
---------------------------------------------------------------------------
\94\ Confined Animal Facilities Supplement, p. 15.
\95\ 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.\96\ Furthermore, the
District contends that no research 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.\97\ Such restrictions further reduce the
potential of injection of liquid or slurry manure for adoption as a
contingency measure in the San Joaquin Valley.
---------------------------------------------------------------------------
\96\ Confined Animal Facilities Supplement, p. 16.
\97\ 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.\98\ 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.\99\ 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.\100\
---------------------------------------------------------------------------
\98\ Confined Animal Facilities Supplement, pp. 18-19.
\99\ Confined Animal Facilities Supplement, p. 18.
\100\ 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.\101\ Citing
communications with Dr. Peter Robinson, University of California at
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.\102\ The District reasoned, for both of these
measures, it is not feasible to adopt the measures as contingency
requirements, given the remaining uncertainties about VOC emissions
reductions, the impacts on milk production and animal health, and
overall costs.\103\
---------------------------------------------------------------------------
\101\ Confined Animal Facilities Supplement, pp. 19-20.
\102\ University of California Agriculture and Natural
Resources. Ecology and Management of Annual Rangelands Series Part
8: Grazing Management. (December 2020).
\103\ Confined Animal Facilities Supplement, p. 20.
---------------------------------------------------------------------------
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.\104\
---------------------------------------------------------------------------
\104\ Confined Animal Facilities Supplement, 22.
---------------------------------------------------------------------------
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.
III. EPA Action
For reasons provided in our October 25, 2024 proposed rule and in
our responses to comments included in this document, we are taking
final action under CAA section 110(k)(4) to conditionally approve the
2024 SJV Ozone Contingency Measure Plan as a revision of the California
SIP as it pertains to the 2008 ozone NAAQS. We are doing so based on
our determination
[[Page 33634]]
that, considered together with the existing approved contingency
measures and the commitments to submit additional contingency measures,
the 2024 SJV Ozone Contingency Measure Plan meets the contingency
measure requirements of CAA sections 172(c)(9) and 182(c)(9) for the
San Joaquin Valley for the 2008 ozone NAAQS. Thus, we find that the
2024 SJV Ozone Contingency Measure Plan, including the already adopted
contingency measures and commitments, corrects the deficiencies in the
previous contingency measure element submissions for San Joaquin Valley
for the 2008 ozone NAAQS that we partially disapproved in October
2022.\105\ Our approval is conditional because it relies on commitments
by CARB and the District to supplement the 2024 SJV Ozone Contingency
Measure Plan through submission of additional contingency measures
within one year of final conditional approval.
---------------------------------------------------------------------------
\105\ In the same issue of the Federal Register that we
published the proposed rule, we issued an interim final
determination to stay application of the offset sanction and defer
application of the highway sanction that were triggered by the EPA's
October 3, 2022 partial disapproval of SIP revisions submitted to
address the contingency measure requirements for the 2008 ozone
NAAQS for the San Joaquin Valley. 89 FR 85064 (October 25, 2024).
All sanctions and any sanctions clocks associated with the October
3, 2022 partial disapproval will continue to be stayed or deferred
unless and until the EPA proposes to or takes final action to
convert the conditional approval of the 2024 SJV Ozone Contingency
Measure Plan to a disapproval. See 40 CFR 52.31(d)(2)(ii) and CAA
section 110(k)(4).
---------------------------------------------------------------------------
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 CAA. Accordingly, this
action merely takes action to conditionally approve a state plan as
meeting federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Order 12866 (58
FR 51735, October 4, 1993);
<bullet> Is not an Executive Order 14192 (90 FR 9065, February 6,
2025) regulatory action because this action is not significant 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 final rule does not have Tribal implications and
will not impose substantial direct costs on Tribal governments or
preempt Tribal law as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000).
This action is subject to the Congressional Review Act, and the EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 3, 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 for judicial review may
be filed, and it shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: May 22, 2026.
Michael Martucci,
Acting Regional Administrator, Region IX.
For the reasons discussed in the preamble, the EPA amends 40 CFR
part 52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
0
2. In Sec. 52.220a, in paragraph (e), amend table 8 by adding an entry
for ``Ozone Contingency Measure State Implementation Plan Revision for
the 2008 and 2015 8-hour Ozone Standards (April 25, 2024)'' after the
entry for ``SJVUAPCD's commitments to adopt, submit, and implement
substitute rules that will achieve equivalent reductions in emissions
of direct PM<INF>2.5</INF> or PM<INF>2.5</INF> precursors in the same
adoption and implementation timeframes or in the timeframes needed to
meet CAA milestones, as stated on p. 4 of San Joaquin Valley Unified
APCD Resolution 2012-12-19, dated December 20, 2012 were revised by
California Air Resources Board Resolution 20-15, dated May 28, 2020, in
paragraph (c)(539)(ii)(A)(2) of this section'' to read as follows:
Sec. 52.220a Identification of plan--in part.
* * * * *
(e) * * *
[[Page 33635]]
Table 8--San Joaquin Valley Air Basin
----------------------------------------------------------------------------------------------------------------
Applicable State submittal
Name of SIP provision geographic area date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Ozone Contingency Measure State San Joaquin April 29, 2024... June 4, 2026, 91 Approval pertains to
Implementation Plan Revision Valley. FR [INSERT the 2008 ozone NAAQS.
for the 2008 and 2015 8-hour FEDERAL REGISTER Submitted
Ozone Standards (April 25, PAGE WHERE THE electronically on
2024). DOCUMENT BEGINS]. April 29, 2024, as an
attachment to a
letter dated April
26, 2024.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
0
3. Amend Sec. 52.248 by adding paragraph (o) to read as follows:
Sec. 52.248 Identification of plan--conditional approval.
* * * * *
(o) The EPA is conditionally approving the California State
Implementation Plan (SIP) for San Joaquin Valley for the 2008 ozone
NAAQS with respect to the contingency measure requirements of CAA
sections 172(c)(9) and 182(c)(9). The conditional approval is based on
commitments included in a letter from the San Joaquin Valley Unified
Air Pollution Control District (District) dated June 18, 2024 from
Samir Sheikh, Executive Director/Air Pollution Control Officer,
District, to Dr. Steven S. Cliff, Executive Officer, CARB and Martha
Guzman, Regional Administrator, EPA Region IX, to adopt certain rule
revisions, and commitments included in a letter from the California Air
Resources Board (CARB) dated June 24, 2024 from Michael Benjamin, D.
Env., Division Chief, Air Quality Planning & Science Division, CARB, to
Martha Guzman, Regional Administrator, EPA Region IX, to submit the
amended rules to the EPA within 12 months of the effective date of the
final conditional approval. If the District or CARB fail to meet their
commitments within one year of the effective date of the final
conditional approval, the conditional approval is treated as a
disapproval.
[FR Doc. 2026-11168 Filed 6-3-26; 8:45 am]
BILLING CODE 6560-50-P
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