Clean Air Plans; Contingency Measures for the Fine Particulate Matter Standards; San Joaquin Valley, California, 87988-88012 [2023-27686]
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Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Proposed Rules
NAAQS in separate rulemakings, and
will consider the emissions reductions
associated with the Smog Check
Contingency Measure at that time. We
will accept comments from the public
on this proposal until January 19, 2024.
If finalized as proposed, this action
would add the Smog Check Contingency
Measure and the related statutory
provision to the federally-enforceable
California SIP.
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III. Incorporation by Reference
In this action, the EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, the EPA is
proposing to incorporate by reference
California Health & Safety Code section
44011(a)(4)(A) and (B), which
authorizes CARB to narrow the newer
model vehicle Smog Check inspection
exemption. The EPA has made, and will
continue to make, these materials
available through https://
www.regulations.gov and at the EPA
Region IX Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the relevant
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 proposed action
merely proposes to approve a state
measure as meeting federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993), 13563 (76 FR 3821,
January 21, 2011) and 14094 (88 FR
21879, April 11, 2023);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• 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.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
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in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001); and
• 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 proposed rule does
not have tribal implications and will not
impose substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
Executive Order 12898 (Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies
to identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on minority populations
and low-income populations to the
greatest extent practicable and
permitted by law. The EPA defines
environmental justice (EJ) as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies.’’ The EPA
further defines the term fair treatment to
mean that ‘‘no group of people should
bear a disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
CARB evaluated environmental
justice considerations as part of its SIP
submission given that the CAA and
applicable implementing regulations
neither prohibit nor require such an
evaluation. The EPA reviewed and
considered the air agency’s evaluation
of environmental justice considerations
of this action, as is described above in
the section titled, ‘‘Environmental
Justice Considerations’’ as part of the
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EPA’s review. Due to the nature of the
action being taken here, this proposed
action is expected to have a neutral to
positive impact on the air quality of the
affected areas. In addition, there is no
information in the record inconsistent
with the stated goal of E.O. 12898 of
achieving environmental justice for
people of color, low-income
populations, and Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen oxides, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 12, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023–27688 Filed 12–19–23; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2023–0477; FRL–11532–
01–R9]
Clean Air Plans; Contingency
Measures for the Fine Particulate
Matter Standards; San Joaquin Valley,
California
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
two state implementation plan (SIP)
submissions under the Clean Air Act
(CAA) that address the contingency
measures requirements for the 1997
annual, 2006 24-hour, and 2012 annual
fine particulate matter (PM2.5) national
ambient air quality standards (NAAQS
or ‘‘standards’’) for the San Joaquin
Valley PM2.5 nonattainment area. The
two SIP submissions include the area’s
contingency measure plan element and
two specific contingency measures that
would apply to residential wood
burning heaters and fireplaces and nonagricultural, rural open areas. A third
contingency measure, applicable to
light-duty on-road motor vehicles, is the
subject of a separate action by the EPA,
but the related emissions reductions
from the third measure are accounted
for in this proposed rule. The EPA is
proposing approval of the SIP
submissions because the Agency has
SUMMARY:
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Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Proposed Rules
determined that they are in accordance
with the applicable requirements for
such SIP submissions under the CAA
and EPA implementation regulations for
the PM2.5 NAAQS. The proposed
approval, if finalized, would incorporate
the two contingency measures into the
federally enforceable SIP. The EPA will
accept comments on this proposed rule
during a 30-day public comment period.
Comments must be received by
January 19, 2024.
DATES:
Submit your comments,
identified by Docket ID No. EPA–R09–
OAR–2023–0477 at https://
www.regulations.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. The EPA may publish
any comment received to its public
docket. Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (e.g., audio or video) must
be accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
For the full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets. 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.
ADDRESSES:
Rory
Mays, Planning and Analysis Branch
(AIR–2), Air and Radiation Division,
EPA Region IX, 75 Hawthorne Street,
San Francisco, CA 94105. By phone:
(415) 972–3227 or by email at
mays.rory@epa.gov.
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FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ refer to the EPA.
Table of Contents
I. Background for Proposed Action
A. Standards, Designations, Classifications,
and Plans
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B. Findings and Contingency Measure
Disapprovals
II. Summary of SIP Submissions and
Evaluation for Compliance With SIP
Revision Procedural Requirements
A. Summary of SIP Submissions
B. Evaluation for Compliance With SIP
Revision Procedural Requirements
III. Contingency Measure Requirements,
Guidance, and Legal Precedent
A. Statutory and Regulatory Requirements
B. Draft Revised Contingency Measure
Guidance
IV. EPA Review of San Joaquin Valley
Contingency Measures
A. Residential Wood Burning Contingency
Measure
1. Background and Regulatory History
2. Summary of State Submission
3. EPA Evaluation
B. Rural Open Areas Contingency Measure
1. Background and Regulatory History
2. Summary of State Submission
3. EPA Evaluation
C. Smog Check Contingency Measure
V. EPA Review of San Joaquin Valley PM2.5
Contingency Measure Plan Element
A. Background and Regulatory History
B. Summary of State Submission
1. General Considerations
2. Contingency Measure Feasibility
Analyses
3. Conclusion
C. EPA Evaluation
1. General Considerations
2. Contingency Measure Feasibility
Analyses
3. Conclusion
VI. Environmental Justice Considerations
VII. Proposed Action and Request for Public
Comment
VIII. Incorporation by Reference
IX. Statutory and Executive Order Reviews
I. Background for Proposed Action
A. Standards, Designations,
Classifications, and Plans
Under section 109 of the Clean Air
Act (CAA or ‘‘Act’’), the EPA has
established national ambient air quality
standards (NAAQS or ‘‘standards’’) for
certain pervasive air pollutants (referred
to as ‘‘criteria pollutants’’) and conducts
periodic reviews of the NAAQS to
determine whether they should be
revised or whether new NAAQS should
be established. To date, the EPA has
established NAAQS for particulate
matter, ozone, carbon monoxide,
nitrogen dioxide, sulfur dioxide and
lead. Under CAA section 110, states
have primary responsibility for meeting
the NAAQS within the state, and must
submit an implementation plan that
specifies the manner in which the state
will attain and maintain the NAAQS.
These implementation plans are referred
to as ‘‘state implementation plans’’ or
‘‘SIPs.’’
Periodically, states must make SIP
submissions of different types to meet
additional CAA requirements. For
example, after the EPA promulgates a
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new or revised NAAQS, under CAA
section 110(a)(1) and (2), states are
required to adopt and submit to the EPA
a state implementation plan that
provides for implementation,
maintenance, and enforcement of the
NAAQS. Such plans are referred to as
‘‘infrastructure SIPs.’’ Similarly, after
the EPA promulgates designations for a
new or revised NAAQS, states with
designated nonattainment areas must
make SIP submissions that meet
additional requirements for such
nonattainment areas, under CAA section
172(c) and, in the case of the PM2.5
NAAQS, CAA sections 188 and 189.
This type of SIP submission is referred
to as an ‘‘attainment plan.’’
Under CAA section 110(k), the EPA is
charged with evaluation of each SIP
submission submitted by states for
compliance with applicable CAA
requirements, and for approval or
disapproval (in whole or in part) of the
submission. The EPA evaluates SIP
submissions and takes action to
approve, disapprove, or conditionally
approve them through notice-andcomment rulemaking published in the
Federal Register. Where appropriate,
the EPA may act on specific parts of a
SIP submission in separate rulemaking
actions.
In 1997, the EPA promulgated new
NAAQS for fine particulate matter,
using particles with an aerodynamic
diameter less than or equal to a nominal
2.5 micrometers (‘‘PM2.5’’) as the
indicator.1 The EPA established primary
and secondary annual and 24-hour
standards for PM2.5. The EPA set the
1997 annual PM2.5 NAAQS, both
primary and secondary standards, at
15.0 micrograms per cubic meter (mg/
m3), based on a 3-year average of annual
mean PM2.5 concentrations. The EPA set
the 1997 24-hour PM2.5 NAAQS, both
primary and secondary standards, at 65
mg/m3, based on the 3-year average of
the 98th percentile of 24-hour PM2.5
concentrations. Collectively, we refer
herein to the 1997 24-hour and annual
PM2.5 NAAQS as the ‘‘1997 PM2.5
NAAQS.’’ In 2006, the EPA promulgated
a new, more stringent 24-hour NAAQS
for PM2.5 by lowering the primary and
secondary standards level from 65 mg/
m3 to 35 mg/m3 (referred to herein as the
‘‘2006 24-hour PM2.5 NAAQS’’).2 In
2012, the EPA promulgated a new, more
stringent annual NAAQS for PM2.5 by
lowering the primary standards level
from 15.0 mg/m3 to 12.0 mg/m3 (herein
referred to as the ‘‘2012 annual PM2.5
1 62
2 71
FR 38652 (July 18, 1997) and 40 CFR 50.7.
FR 61144 (October 17, 2006) and 40 CFR
50.13.
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NAAQS’’).3 Each iteration of the PM2.5
NAAQS remains in effect, and states
with designated nonattainment areas for
each of them are obligated to meet
applicable attainment plan requirements
for them.
The EPA established each of these
NAAQS after considering substantial
evidence from numerous health studies
demonstrating that serious health effects
are associated with exposures to PM2.5
concentrations above these levels.
Epidemiological studies have shown
statistically significant correlations
between elevated PM2.5 levels and
premature mortality. Other important
health effects associated with PM2.5
exposure include aggravation of
respiratory and cardiovascular disease
(as indicated by increased hospital
admissions, emergency room visits,
absences from school or work, and
restricted activity days), changes in lung
function, and increased respiratory
symptoms. Individuals particularly
sensitive to PM2.5 exposure include
older adults, people with heart and lung
disease, and children.4 PM2.5 can be
particles emitted by sources directly
into the atmosphere as a solid or liquid
particle (‘‘primary PM2.5’’ or ‘‘direct
PM2.5’’), or can be particles that form in
the atmosphere as a result of various
chemical reactions involving PM2.5
precursor emissions emitted by sources
(‘‘secondary PM2.5’’). The EPA has
identified the precursors of PM2.5 to be
oxides of nitrogen (‘‘NOX’’), sulfur
oxides (‘‘SOX’’), volatile organic
compounds (VOCs), and ammonia.5
Following promulgation of a new or
revised NAAQS, the EPA is required
under CAA section 107(d) to designate
areas throughout the Nation as attaining
or not attaining the NAAQS. As noted
previously, for areas the EPA has
designated nonattainment, states are
required under the CAA to submit
attainment plan SIP submissions. These
SIP submissions must provide for,
among other elements, reasonable
further progress (RFP) towards
attainment of the NAAQS, attainment of
the NAAQS no later than the applicable
attainment date, and implementation of
contingency measures to take effect if
the state fails to meet RFP or to attain
the NAAQS by the applicable
attainment date.
The San Joaquin Valley is located in
the southern half of California’s Central
Valley and includes all of San Joaquin,
Stanislaus, Merced, Madera, Fresno,
3 78 FR 3086 (January 15, 2013) and 40 CFR
50.18.
4 78 FR 3086, 3088.
5 EPA, Air Quality Criteria for Particulate Matter,
No. EPA/600/P–99/002aF and EPA/600/P–99/
002bF, October 2004.
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Tulare, and Kings Counties, and the
valley portion of Kern County.6 The area
is home to four million people and is
the Nation’s leading agricultural region.
Stretching over 250 miles from north to
south and averaging 80 miles wide, it is
partially enclosed by the Coast
Mountain range to the west, the
Tehachapi Mountains to the south, and
the Sierra Nevada range to the east. In
2005, the EPA designated the San
Joaquin Valley as nonattainment for the
1997 annual PM2.5 NAAQS and
nonattainment for the 1997 24-hour
PM2.5 NAAQS.7
The local air district with primary
responsibility for developing attainment
plan SIP submissions for the PM2.5
NAAQS in this area is the San Joaquin
Valley Unified Air Pollution Control
District (SJVUAPCD or ‘‘District’’). Once
the District adopts the regional plan, the
District submits the plan to the
California Air Resources Board (CARB)
for adoption as part of the California
SIP. CARB is the State agency
responsible for adopting and revising
the California SIP and for submitting the
SIP and SIP revisions to the EPA.
Generally speaking, under California
law, CARB is responsible for regulation
of mobile sources while the local air
districts are responsible for regulation of
stationary sources.
Originally, the EPA designated areas
for the 1997 annual and 24-hour PM2.5
NAAQS under subpart 1 (of part D of
title I of the CAA), i.e., without
specifying the classifications of
nonattainment required by subpart 4.
Later, in response to a court decision,8
the EPA classified nonattainment areas
for the 1997 annual and 24-hour PM2.5
NAAQS, consistent with the
classifications set forth in subpart 4.
With respect to San Joaquin Valley, in
2014, the EPA classified the San Joaquin
Valley as a ‘‘Moderate’’ nonattainment
area,9 and then in 2015, reclassified the
area as a ‘‘Serious’’ nonattainment area
for the 1997 annual and 24-hour PM2.5
NAAQS.10
In 2016, the EPA determined that the
San Joaquin Valley had failed to attain
the 1997 annual and 24-hour PM2.5
6 For a precise description of the geographic
boundaries of the San Joaquin Valley nonattainment
area, see 40 CFR 81.305.
7 70 FR 944 (January 5, 2005), codified at 40 CFR
81.305.
8 In Natural Resources Defense Council v. EPA,
706 F.3d 428 (D.C. Cir. 2013), the U.S. Court of
Appeals for D.C. Circuit concluded that the EPA
erred in implementing the 1997 PM2.5 NAAQS
solely pursuant to the general implementation
requirements of subpart 1, without also considering
the requirements specific to PM10 nonattainment
areas in subpart 4, part D of title I of the CAA.
9 79 FR 31566 (June 2, 2014).
10 80 FR 18528 (April 7, 2015).
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NAAQS by the applicable ‘‘Serious’’
area attainment date.11 As a result, the
State of California was required, under
CAA section 189(d), to submit a new
SIP submission that, among other
elements, provides for expeditious
attainment of the 1997 annual and 24hour PM2.5 NAAQS and for a minimum
five percent annual reduction in the
emissions of direct PM2.5 or a PM2.5 plan
precursor pollutant in the San Joaquin
Valley (herein, referred to as a ‘‘Five
Percent Plan’’). The Five Percent Plan
for the 1997 annual and 24-hour PM2.5
NAAQS was due no later than
December 31, 2016.12
With respect to the 2006 24-hour
PM2.5 NAAQS, the EPA initially
designated San Joaquin Valley as
nonattainment under subpart 1 (i.e.,
without classification) 13 but, in 2014, in
response to the court decision referred
to previously, the EPA classified the
area as Moderate.14 In 2016, the EPA
reclassified San Joaquin Valley as a
Serious nonattainment area for the 2006
24-hour PM2.5 NAAQS based on the
EPA’s determination that the area could
not practicably attain these NAAQS by
the applicable attainment date of
December 31, 2015.15 The EPA
established an August 21, 2017 deadline
for California to adopt and submit a SIP
submission addressing the Serious
nonattainment area requirements for the
2006 24-hour PM2.5 NAAQS.16
With respect to the 2012 annual PM2.5
NAAQS, the EPA designated San
Joaquin Valley as a Moderate
nonattainment area in 2015.17 Under
CAA section 189 and the EPA’s PM2.5
SIP Requirements Rule,18 the deadline
for the state to submit an attainment
plan SIP submission addressing the
Moderate nonattainment area
requirements for the 2012 annual PM2.5
NAAQS is 18 months from the effective
date of the designation of the area.19 The
effective date of the designation of the
San Joaquin Valley as a Moderate
nonattainment area for the 2012 annual
PM2.5 NAAQS was April 15, 2015, and
thus, the deadline for a SIP submission
addressing the Moderate area
requirements was October 15, 2016.
11 81
FR 84481 (November 23, 2016).
at 84482.
13 74 FR 58688 (November 13, 2009).
14 79 FR 31566.
15 81 FR 2993 (January 20, 2016).
16 Id. at 3000.
17 80 FR 2206 (January 15, 2015).
18 81 FR 58010 (August 24, 2016); codified at 40
CFR part 51, subpart Z.
19 40 CFR 51.1003(a).
12 Id.
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B. Findings and Contingency Measure
Disapprovals
In the wake of these EPA actions,
CARB and the District worked together
to prepare a comprehensive SIP
submission to address the
nonattainment area requirements for the
1997, 2006, and 2012 PM2.5 NAAQS for
San Joaquin Valley, but did not meet the
various SIP submission deadlines. In
late 2018, the EPA issued a finding of
failure to submit to the State for the
required attainment plan SIP
submissions for the 1997 annual and 24hour PM2.5 NAAQS, the 2006 24-hour
PM2.5 NAAQS, and the 2012 annual
PM2.5 NAAQS for the San Joaquin
Valley.20 The EPA’s finding of failure to
submit was effective January 7, 2019.
Under CAA section 110(c), the EPA is
obligated to promulgate a Federal
Implementation Plan (FIP) within two
years of a finding that a state has failed
to make a required SIP submission,
unless the state submits a SIP
submission that corrects the deficiency,
and the EPA approves that SIP
submission, before the EPA promulgates
such FIP.21 In this case, the finding of
failure to submit established a deadline
of January 7, 2021, for the EPA to
promulgate a FIP to address all
applicable attainment plan requirements
for the 1997 annual and 24-hour PM2.5
NAAQS, the 2006 24-hour PM2.5
NAAQS, and 2012 annual PM2.5
NAAQS for San Joaquin Valley, for
which the EPA had not received and
approved an adequate SIP submission
from the State.
To address a portion of current FIP
obligation, the EPA recently proposed a
FIP to address the contingency measures
requirements for the San Joaquin Valley
for the 1997 annual, 2006 24-hour, and
2012 annual PM2.5 NAAQS.22 In short,
the proposed contingency measure FIP
includes two specific contingency
measures, one of which would extend
certain wood-burning curtailment
restrictions Valley-wide and another
which would extend certain fugitive
dust requirements to certain open areas
that are not currently subject to control
requirements.
On May 10, 2019, CARB submitted
two SIP submissions to address the
nonattainment area requirements for all
four of the relevant PM2.5 NAAQS for
the San Joaquin Valley, including the
20 83
FR 62720 (December 6, 2018).
finding of failure to submit also started an
18-month new source review (NSR) offset sanction
clock and a 24-month highway sanction clock for
the State of California. CAA section 179(a) and 40
CFR 52.31.
22 88 FR 53431 (August 8, 2023).
21 The
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contingency measure requirement.23 On
November 8, 2021, CARB submitted a
third SIP submission to amend the
portions of the May 10, 2019 SIP
submissions that pertain to the 1997
annual PM2.5 NAAQS.24 As discussed in
the following paragraph, the EPA has
previously taken a series of actions on
these SIP submissions to address
different nonattainment area
requirements for each of the NAAQS. In
this proposed action, we are focused
only on the contingency measure
requirements.
In 2020, the EPA approved the
portion of the SIP submissions related to
the 2006 24-hour PM2.5 NAAQS, but
deferred action on the contingency
measure element.25 In 2021, the EPA
approved the portion of the SIP
submissions related to the Moderate
area requirements for the 2012 annual
PM2.5 NAAQS except for the
contingency measure element, which
the EPA disapproved.26 The EPA also
disapproved the previously-deferred
contingency measure element for the
2006 24-hour PM2.5 NAAQS.27 In
another 2021 action, the EPA
disapproved the portion of the SIP
submissions related to the 1997 annual
PM2.5 NAAQS except for the emissions
inventory, which the Agency
approved.28 In 2022, the EPA approved
the portion of the SIP submission
related to the 1997 24-hour PM2.5
NAAQS, with the exception of the
contingency measure element.29 In our
action on the SIP submission related to
the 1997 24-hour PM2.5 NAAQS, we
disapproved the contingency measure
element, but also found that the
contingency measure requirement was
moot for that particular PM2.5 NAAQS
23 The SIP revisions submitted on May 10, 2019,
include the ‘‘2016 Moderate Area Plan for the 2012
PM2.5 Standard’’ (‘‘2016 PM2.5 Plan’’) and the ‘‘2018
Plan for the 1997, 2006, and 2012 PM2.5 Standards’’
(‘‘2018 PM2.5 Plan’’), which incorporates by
reference the ‘‘San Joaquin Valley Supplement to
the 2016 State Strategy for the State Implementation
Plan’’ (‘‘Valley State SIP Strategy’’). On February 11,
2020, CARB submitted a revised version of
Appendix H (‘‘RFP, Quantitative Milestones, and
Contingency’’) that replaces the version submitted
with the 2018 PM2.5 Plan on May 10, 2019. The EPA
found the SIP submissions complete in a letter
dated June 24, 2020, from Elizabeth J. Adams,
Director, EPA Region IX, to Richard W. Corey,
Executive Officer, CARB. The EPA’s completeness
determination terminated the NSR offsets and
highway sanctions started by the December 6, 2018
finding of failure to submit but did not affect the
FIP obligation.
24 The SIP revision submitted on November 8,
2021, is titled ‘‘Attainment Plan Revision for the
1997 Annual PM2.5 Standard’’ (‘‘15 mg/m3 SIP
Revision’’).
25 85 FR 44192 (July 22, 2020).
26 86 FR 67343 (November 26, 2021).
27 Id.
28 86 FR 67329 (November 26, 2021).
29 87 FR 4503 (January 28, 2022).
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because of the EPA’s concurrent
determination of attainment by the
applicable attainment date for San
Joaquin Valley for the 1997 24-hour
PM2.5 NAAQS.30
In July 2023, the EPA proposed
approval of the portions of the three SIP
submissions that pertain to the 1997
annual PM2.5 NAAQS in the San Joaquin
Valley nonattainment area.31 More
recently, we took action to finalize our
approval of the SIP submissions for the
1997 annual PM2.5 NAAQS, as
proposed; however, our recent action on
various elements of the San Joaquin
Valley PM2.5 plan for the 1997 annual
PM2.5 NAAQS did not address the
contingency measures requirements for
that particular PM2.5 NAAQS.32
With respect to contingency measure
elements, the State’s May 10, 2019 PM2.5
SIP submissions for San Joaquin Valley
relied upon contingency provisions
included in District Rule 4901 (‘‘Wood
Burning Fireplaces and Wood Burning
Heaters’’), specifically section 5.7.3 of
the rule, and a demonstration that the
emissions reductions from the
contingency measure would be
sufficient to meet the contingency
measure SIP requirements of CAA
section 172(c)(9) if the reductions were
viewed together with ‘‘surplus’’ 33
emissions reductions from alreadyimplemented measures.34 We
disapproved the contingency measure
elements for San Joaquin Valley for the
1997 annual, 2006 24-hour, and 2012
annual PM2.5 NAAQS because the
contingency provision (i.e., section
5.7.3) in Rule 4901 did not address the
potential for State failures to meet RFP,
to meet a quantitative milestone, or to
submit a quantitative milestone report.
In addition, the contingency measure
provision of Rule 4901 was not
structured to achieve any additional
emissions reductions if the EPA were to
find that the monitoring locations in the
‘‘hot spot’’ counties (i.e., Fresno, Kern,
or Madera) are the only counties in the
San Joaquin Valley that are violating the
PM2.5 NAAQS as of the attainment
date.35 In addition, the contingency
30 Id.
31 88
FR 45276 (July 14, 2023).
‘‘Air Quality State Implementation Plans;
Approvals and Promulgations: California; 1997
Annual Fine Particulate Matter Serious and Clean
Air Act Section 189(d) Nonattainment Area
Requirements; San Joaquin Valley, CA,’’ Final rule,
signed December 5, 2023.
33 In this context, ‘‘surplus’’ refers to emissions
reductions not otherwise relied upon for RFP or
attainment demonstrations.
34 See 86 FR 38652, 38668–38669 (July 22, 2021);
86 FR 49100, 49123–49124 and 49132–49133
(September 1, 2021).
35 See 86 FR 38652, 38669–38670 (proposed
disapproval of the contingency measure element for
32 EPA,
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measure elements did not provide
sufficient justification as to why the one
adopted contingency measure (in Rule
4901) would suffice to meet the CAA
requirements for contingency measures
for the PM2.5 NAAQS for San Joaquin
Valley notwithstanding the fact that the
one measure would not achieve one
year’s worth of RFP, as recommended in
longstanding EPA guidance.36 37
In our final rules disapproving the
contingency measure elements for San
Joaquin Valley for the 1997 annual,
2006 24-hour, and 2012 annual PM2.5
NAAQS, we indicated that the
disapprovals would begin an 18-month
clock for imposition of the offset
sanction in CAA section 179(b)(2) and a
24-month clock for imposition of the
highway funding sanction in CAA
section 179(b)(1) unless the State
submits, and the EPA approves, a SIP
revision that corrects the deficiencies
that we identified in our final actions
prior to implementation of the
sanctions.38
II. Summary of SIP Submissions and
Evaluation for Compliance With SIP
Revision Procedural Requirements
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A. Summary of SIP Submissions
On June 8, 2023, CARB submitted the
‘‘PM2.5 Contingency Measure State
Implementation Plan Revision (May 18,
2023)’’ (herein referred to as the ‘‘SJV
PM2.5 Contingency Measure SIP’’) to the
EPA as a revision to the California SIP.39
Also on June 8, 2023, CARB submitted
revisions to Rule 4901 that add PM2.5
NAAQS contingency provisions that we
refer to herein as the ‘‘Residential Wood
Burning Contingency Measure.’’ The
District adopted the SJV PM2.5
Contingency Measure SIP and
Residential Wood Burning Contingency
Measure on May 18, 2023, and
the 1997 annual PM2.5 NAAQS); and 86 FR 49100,
49124–49125 (proposed disapproval of the
contingency measure element for the 2012 annual
PM2.5 NAAQS) and 49133–49134 (proposed
disapproval of the contingency measure element for
the 2006 24-hour PM2.5 NAAQS) (September 1,
2021). The proposed disapprovals were finalized at
86 FR 67329 (1997 annual PM2.5 NAAQS); 86 FR
67343 (2012 annual PM2.5 NAAQS and 2006 24hour PM2.5 NAAQS).
36 Id.
37 81 FR 58010, 58066. See also 57 FR 13498,
13511, 13543–13544 (April 16, 1992), and 59 FR
41998, 42014–42015 (August 16, 1994).
38 86 FR 67329, 67341 (1997 annual PM
2.5
NAAQS); 86 FR 67343, 67346–67347 (2012 annual
PM2.5 NAAQS and 2006 24-hour PM2.5 NAAQS).
39 CARB adopted the SJV PM
2.5 Contingency
Measure SIP and Residential Wood Burning
Contingency Measure as SIP revisions on June 7,
2023, through Executive Order S–23–010 and
submitted the SIP revisions to the EPA
electronically on June 8, 2023, as attachments to a
letter dated June 7, 2023, from Steven S. Cliff,
Ph.D., Executive Officer, CARB to Martha Guzman,
Regional Administrator, EPA Region IX.
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submitted them to CARB for adoption
and submission to the EPA as SIP
revisions. The District adopted the SJV
PM2.5 Contingency Measure SIP and
Residential Wood Burning Contingency
Measure to correct the deficiencies
identified by the EPA in the November
26, 2021 disapprovals of the
contingency measure elements for the
1997 annual, 2006 24-hour, and 2012
annual PM2.5 NAAQS and the
previously adopted contingency
provisions of Rule 4901. In this
document, we are proposing action on
both the SJV PM2.5 Contingency
Measure SIP and the Residential Wood
Burning Contingency Measure.
The June 8, 2023 SIP submission
includes the two specific SIP revisions
(i.e., the SJV PM2.5 Contingency Measure
SIP and the Residential Wood Burning
Contingency Measure), as well as
supporting material including the
resolutions of adoption, CARB
evaluation and completeness forms, and
evidence of public notice and hearing.
The SJV PM2.5 Contingency Measure SIP
includes a general discussion of
contingency measures and related
requirements and guidance, context for
this particular SIP revision, and
feasibility analyses developed by the
District and CARB to identify potential
contingency measures for the PM2.5
NAAQS for the San Joaquin Valley. (In
our evaluation of the latter, we refer to
the State’s feasibility analyses herein as
infeasibility demonstrations.) The SJV
PM2.5 Contingency Measure SIP
includes appendices that provide
further detailed information and
documentation for, among other things,
the emissions reductions estimated for
the Residential Wood Burning
Contingency Measure. The District also
attached excerpts from certain
previously submitted SIPs to provide
support for the conclusions drawn by
the District and CARB with respect to
the infeasibility of adopting additional
contingency measures for the San
Joaquin Valley. The June 8, 2023 SIP
submission of the SJV PM2.5
Contingency Measure SIP and
Residential Wood Burning Contingency
Measure was deemed administratively
complete by operation of law on
December 8, 2023, consistent with CAA
section 110(k)(1).40
Through adoption of the SJV PM2.5
Contingency Measure SIP, the District
committed to evaluating revisions to a
specific fugitive dust rule, District Rule
8051 (‘‘Open Areas’’), for potential as a
second contingency measure for the
40 In addition, see EPA Region IX SIP
Completeness Checklist, October 13, 2023.
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PM2.5 NAAQS for the SJV.41 On
September 21, 2023, the District
adopted revisions to Rule 8051 to add
contingency provisions that we refer to
herein as the ‘‘Rural Open Areas
Contingency Measure.’’ The District
adopted the Rural Open Areas
Contingency Measure to supplement the
SJV PM2.5 Contingency Measure SIP by
providing additional emissions
reductions for the San Joaquin Valley if
triggered by one of the contingency
events. On October 16, 2023, CARB
submitted the Rural Open Areas
Contingency Measure to the EPA as a
revision to the California SIP.42 In this
document, we are also proposing action
on the Rural Open Areas Contingency
Measure.
The October 16, 2023 SIP submission
includes the SIP revision itself (i.e., the
Rural Open Areas Contingency
Measure) as well as supporting material
including the resolutions of adoption,
CARB evaluation and completeness
forms, and evidence of public notice
and hearing. The EPA has reviewed the
October 16, 2023 SIP submission of the
Rural Open Areas Contingency Measure
and finds it to be administratively
complete for the purposes of CAA
section 110(k)(1), effective upon
publication of this proposed rule.43
B. Evaluation for Compliance With SIP
Revision Procedural Requirements
Under CAA section 110(l), SIP
revisions must be adopted by the state,
and the state must provide for
reasonable public notice and hearing
prior to adoption. Pursuant to 40 CFR
51.102, states must provide at least 30days’ notice of any public hearing to be
held on a proposed SIP revision. States
must provide the opportunity to submit
written comments and allow the public
the opportunity to request a public
hearing within that period.44
41 SJV
PM2.5 Contingency Measure SIP, pp. 31–32.
adopted the Rural Open Areas
Contingency Measure as a SIP revision on October
13, 2023, through Executive Order S–23–014 and
submitted the SIP revision to the EPA electronically
on October 16, 2023, as an attachment to a letter
dated October 13, 2023, from Steven S. Cliff, Ph.D.,
Executive Officer, CARB to Martha Guzman,
Regional Administrator, EPA Region IX.
43 EPA Region IX SIP Completeness Checklist,
October 18, 2023.
44 In addition to establishing procedural
requirements for SIP revisions, CAA section 110(l)
prohibits the EPA from approving any SIP revision
that would interfere with any applicable
requirement for reasonable further progress (RFP) or
attainment or any other applicable requirement of
the CAA. In this instance, the Residential Wood
Burning Contingency Measure and the Rural Open
Areas Contingency Measure would provide
emissions reductions beyond those needed for RFP
and attainment of the NAAQS in San Joaquin
Valley and, thus, would not interfere with the RFP
and attainment demonstrations for the area.
42 CARB
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The District adopted the SJV PM2.5
Contingency Measure SIP and the
Residential Wood Burning Contingency
Measure on May 18, 2023, through
Resolution No. 2023–5–7, following a
public hearing held on the same day.
Prior to adoption, the District published
notice of the May 18, 2023 public
hearing in newspapers of general
circulation in each of the eight counties
that comprise the San Joaquin Valley,
and provided more than 30 days for
submission of written comments. CARB
subsequently adopted the SJV PM2.5
Contingency Measure SIP and the
Residential Wood Burning Contingency
Measure as a revision to the SIP on June
7, 2023, through Executive Order S–23–
010. CARB then submitted the SJV PM2.5
Contingency Measure SIP and the
Residential Wood Burning Contingency
Measure to the EPA on June 8, 2023, as
an attachment to a transmittal letter
dated June 7, 2023.
The District adopted the Rural Open
Areas Contingency Measure on
September 21, 2023, through Resolution
No. 2023–9–9, following a public
hearing held on the same day. Prior to
adoption, the District published notice
of the September 21, 2023 public
hearing in newspapers of general
circulation in each of the eight counties
that comprise the San Joaquin Valley,
and provided more than 30 days for
submission of written comments. CARB
subsequently adopted the Rural Open
Areas Contingency Measure as a
revision to the SIP on October 13, 2023,
through Executive Order S–23–014.
CARB then submitted the Rural Open
Areas Contingency Measure to the EPA
on October 16, 2023, as an attachment
to a transmittal letter dated October 13,
2023.
Based on the materials provided in
the June 8, 2023 and October 16, 2023
SIP submissions, we propose to find
that the District and the CARB have met
the procedural requirements for
adoption and submission of SIP
revisions under CAA section 110(l) and
40 CFR 51.102.
III. Contingency Measure
Requirements, Guidance, and Legal
Precedent
The EPA first provided its views on
the CAA’s requirements for particulate
matter plans under part D, title I of the
Act in the following guidance
documents: (1) ‘‘State Implementation
Plans; General Preamble for the
Implementation of Title I of the Clean
Air Act Amendments of 1990’’
(‘‘General Preamble’’); 45 (2) ‘‘State
Implementation Plans; General
45 57
FR 13498 (April 16, 1992).
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Preamble for the Implementation of
Title I of the Clean Air Act Amendments
of 1990; Supplemental’’; 46 and (3)
‘‘State Implementation Plans for Serious
PM–10 Nonattainment Areas, and
Attainment Date Waivers for PM–10
Nonattainment Areas Generally;
Addendum to the General Preamble for
the Implementation of Title I of the
Clean Air Act Amendments of 1990’’
(‘‘General Preamble Addendum’’).47
More recently, in the PM2.5 SIP
Requirements Rule, the EPA established
regulatory requirements and provided
further interpretive guidance on the
statutory SIP requirements that apply to
areas designated nonattainment for all
PM2.5 NAAQS.48
A. Statutory and Regulatory
Requirements
Under CAA section 172(c)(9), states
required to make an attainment plan SIP
submission must include contingency
measures to be implemented if the area
fails to meet RFP (‘‘RFP contingency
measures’’) or fails to attain the NAAQS
by the applicable attainment date
(‘‘attainment contingency measures’’).
Under the PM2.5 SIP Requirements Rule,
states must include contingency
measures that provide that the state will
implement them following a
determination by the EPA that the state
has failed: (1) to meet any RFP
requirement in the approved SIP; (2) to
meet any quantitative milestone (QM) in
the approved SIP; (3) to submit a
required QM report; or (4) to attain the
applicable PM2.5 NAAQS by the
applicable attainment date.49
Contingency measures must be fully
adopted rules or control measures that
are ready to be implemented quickly
upon failure to meet RFP or failure of
the area to meet the relevant NAAQS by
the applicable attainment date.50 In
general, we expect all actions needed to
effect full implementation of the
measures to occur within 60 days after
the EPA notifies the state of a failure to
meet RFP or to attain.51 Moreover, we
expect the additional emissions
reductions from the contingency
measures to be achieved within a year
of the triggering event.52
The purpose of contingency measures
is to continue progress in reducing
emissions while a state revises its SIP to
46 57
FR 18070 (April 28, 1992).
FR 41998 (August 16, 1994).
48 81 FR 58010.
49 40 CFR 51.1014(a).
50 81 FR 58010, 58066 and General Preamble
Addendum, 42015.
51 81 FR 58010, 58066. See also General Preamble
13512, 13543–13544, and General Preamble
Addendum, 42014–42015.
52 General Preamble, 13511.
47 59
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meet the missed RFP requirement or to
correct ongoing nonattainment. Neither
the CAA nor the EPA’s implementing
regulations establish a specific level of
emission reductions that
implementation of contingency
measures must achieve, but the EPA
recommends that contingency measures
should provide for emission reductions
equivalent to approximately one year of
reductions needed for RFP in the
nonattainment area.53 For PM2.5 NAAQS
SIP planning purposes, the EPA
recommends that RFP should be
calculated as the overall level of
reductions needed to demonstrate
attainment divided by the number of
years from the base year to the
attainment year.54 As part of the
attainment plan SIP submission, the
EPA expects states to explain the
amount of anticipated emissions
reductions that the contingency
measures will achieve. In the event that
a state is unable to identify and adopt
contingency measures that will provide
for approximately one year’s worth of
emissions reductions, then EPA
recommends that the state provide a
reasoned justification why the smaller
amount of emissions reductions is
appropriate.55
To satisfy the contingency measure
requirements of 40 CFR 51.1014, the
contingency measures adopted as part of
a PM2.5 NAAQS attainment plan must
consist of control measures for the area
that are not otherwise required to meet
other attainment plan requirements
(e.g., to meet reasonably available
control measure (RACM)/reasonably
available control technology (RACT)
requirements). By definition,
contingency measures are measures that
are over and above what a state must
adopt and impose to meet RFP and to
provide for attainment by the applicable
attainment date.
Contingency measures serve the
purpose of providing additional
emission reductions during the period
after a failure to meet RFP or failure to
attain as the state prepares a new SIP
submission to rectify the problem.
Accordingly, contingency measures
must provide such additional emission
reductions during an appropriate period
and must specify the timeframe within
which their requirements would become
effective following any of the EPA
determinations specified in 40 CFR
51.1014(a).
53 81 FR 58010, 58066. See also General
Preamble, 13511, 13543–13544, and General
Preamble Addendum, 42014–42015.
54 81 FR 58010, 58066.
55 81 FR 58010, 58067.
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In addition, to comply with CAA
section 172(c)(9), contingency measures
must be both conditional and
prospective, so that they will go into
effect and achieve emission reductions
only in the event of a future triggering
event such as a failure to meet RFP or
a failure to attain. In a 2016 decision
called Bahr v. EPA,56 the Ninth Circuit
Court of Appeals held that CAA section
172(c)(9) does not allow EPA approval
of already-implemented control
measures as contingency measures.
Thus, already-implemented measures
cannot serve as contingency measures
under CAA section 172(c)(9). For
purposes of the PM2.5 NAAQS, a state
must develop, adopt, and submit one or
more contingency measures to be
triggered upon a failure to meet any RFP
requirement, failure to meet a
quantitative milestone requirement, or
failure to attain the NAAQS by the
applicable attainment date, regardless of
the extent to which alreadyimplemented measures would achieve
surplus emission reductions beyond
those necessary to meet RFP or
quantitative milestone requirements and
beyond those predicted to achieve
attainment of the NAAQS.
In a recent decision on the EPA’s
approval of a SIP contingency measure
element for the ozone NAAQS, the
Ninth Circuit Court of Appeals held
that, under the EPA’s current guidance,
the surplus emissions reductions from
already-implemented measures cannot
be relied upon to justify the approval of
a contingency measure that would
achieve far less than one year’s worth of
RFP as sufficient by itself to meet the
contingency measure requirements of
CAA sections 172(c)(9) and 182(c)(9) for
the nonattainment area.57
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B. Draft Revised Contingency Measure
Guidance
In March 2023, the EPA published
notice of availability announcing a new
draft guidance addressing the
contingency measures requirement of
section 172(c)(9), entitled ‘‘Draft:
Guidance on the Preparation of State
Implementation Plan Provisions that
Address the Nonattainment Area
Contingency Measure Requirements for
Ozone and Particulate Matter (DRAFT—
3/17/23—Public Review Version)’’
(herein referred to as the ‘‘Draft Revised
Contingency Measure Guidance’’) and
56 Bahr v. EPA, 836 F.3d 1218, 1235–1237 (9th
Cir. 2016). See also Sierra Club v. EPA, 21 F.4th
815, 827–28 (D.C. Cir. 2021).
57 Assoc. of Irritated Residents v. EPA, 10 F.4th
937, 946–47 (9th Cir. 2021) (‘‘AIR v. EPA’’ or
‘‘AIR’’).
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opportunity for public comment.58 The
principal differences between the draft
revised guidance and existing guidance
on contingency measures relate to the
EPA’s recommendations concerning the
specific amount of emission reductions
that implementation of contingency
measures should achieve, and the
timing for when the emissions
reductions from the contingency
measures should occur. The Draft
Revised Contingency Measure Guidance
also provides recommended procedures
for developing a demonstration, if
applicable, that the area lacks sufficient
feasible measures to achieve one year’s
worth of reductions, building on
existing guidance that the state provide
a reasoned justification why the smaller
amount of emissions reductions is
appropriate.
Under the Draft Revised Contingency
Measure Guidance, the recommended
level of emissions reductions that
contingency measures should achieve
would represent one year’s worth of
‘‘progress’’ as opposed to one year’s
worth of RFP.59 One year’s worth of
‘‘progress’’ is calculated by determining
the average annual reductions between
the base year emissions inventory and
the projected attainment year emissions
inventory, determining what percentage
of the base year emissions inventory this
amount represents, then applying that
percentage to the projected attainment
year emissions inventory to determine
the amount of reductions needed to
ensure ongoing progress if contingency
measures are triggered.
With respect to the time period within
which reductions from contingency
measures should occur, the EPA
previously recommended that
contingency measures take effect within
60 days of being triggered, and that the
resulting emission reductions generally
occur within one year of the triggering
event. Under the Draft Revised
Contingency Measure Guidance, in
instances where there are insufficient
contingency measures available to
achieve the recommended amount of
emissions reductions within one year of
the triggering event, the EPA believes
that contingency measures that provide
reductions within up to two years of the
triggering event would be appropriate to
consider towards achieving the
recommended amount of emissions
reductions. The Draft Revised
Contingency Measure Guidance does
not alter the 60-day recommendation for
58 88 FR 17571 (March 23, 2023). The Draft
Revised Contingency Measure Guidance is available
at https://www.epa.gov/air-quality-implementationplans/draft-contingency-measures-guidance.
59 Draft Revised Contingency Measure Guidance,
p. 22.
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the contingency measures to take initial
effect.
If, after adequately evaluating
additional control measures, the state is
unable to identify contingency measures
that would provide approximately one
year’s worth of emissions reductions,
the Draft Revised Contingency Measure
Guidance recommends that the state
should provide a reasoned justification
(referred to herein as an ‘‘infeasibility
demonstration’’) that explains and
documents how it has evaluated all
existing and potential control measures
relevant to the appropriate source
categories and pollutants in the
nonattainment area and has reached
reasonable conclusions regarding
whether such measures are feasible.60
As explained in the Draft Revised
Contingency Measure Guidance, while
the EPA notes that CAA section
172(c)(9) and section 182(c)(9) do not
explicitly provide for consideration of
whether specific measures are feasible,
the Agency believes that it is reasonable
to infer that the statute does not require
control measures regardless of any
technological or cost constraints
whatsoever.61 It is more reasonable to
interpret the contingency measure
requirement not to require air agencies
to adopt and impose infeasible
measures. The statutory provisions
applicable to other nonattainment area
plan control measure requirements,
including RACM/RACT (for ozone and
PM), best available control measure
(BACM)/best available control
technology (BACT) (for PM), and most
stringent measures (MSM) (for PM),
allow air agencies to exclude certain
control measures that are deemed
unreasonable or infeasible (depending
on the requirement). For example, the
MSM provision in CAA section 188(e)
requires plans to include ‘‘the most
stringent measures that are included in
the implementation plan of any state or
are achieved in practice in any state,
and can feasibly be implemented in the
area.’’ The EPA considers it reasonable
to conclude that Congress similarly did
not expect air agencies to satisfy the
contingency measure requirement with
infeasible measures. Thus, the EPA
anticipates that a demonstrated lack of
feasible measures would be a reasoned
justification for adopting contingency
measures that only achieve a lesser
amount of emission reductions.
60 Draft Revised Contingency Measure Guidance,
p. 29.
61 Id.
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IV. EPA Review of San Joaquin Valley
Contingency Measures
We provide our review of two specific
contingency measures—the Residential
Wood Burning Contingency Measure
and the Rural Open Areas Contingency
Measure—in sections IV.A and IV.B of
this document, respectively. As noted
previously, we are reviewing and
proposing approval of a third
contingency measure, the Smog Check
Contingency Measure,62 in a separate
rulemaking; 63 however, we provide a
summary of the Smog Check
Contingency Measure in section IV.C for
informational purposes. Because we are
proposing approval of the contingency
measures, we take into account the
measures’ anticipated emission
reductions in our evaluation of the SJV
PM2.5 Contingency Measure SIP, which
we present in section V of this proposed
rule.
A. Residential Wood Burning
Contingency Measure
1. Background and Regulatory History
Residential wood burning includes
wood-burning heaters (i.e., woodstoves,
pellet stoves, and wood-burning
fireplace inserts), which are used
primarily for heat generation, and woodburning fireplaces, which are used
primarily for aesthetic purposes. All of
these devices emit direct PM2.5 and
NOX. However, wood-burning heaters,
that are certified under the EPA’s New
Source Performance Standards (NSPS)
emit lower levels of PM2.5 compared to
wood-burning fireplaces and non-
certified heaters when properly
installed, operated, and maintained.
Residential wood-burning is included
within the ‘‘Residential Fuel
Combustion’’ emissions inventory
category within the 2018 PM2.5 Plan’s
emissions inventories. In the 2018 PM2.5
Plan, the District estimates emissions of
2.82 tons per day (tpd) of PM2.5 and 0.42
tpd NOX (annual average) specifically
from residential wood burning for each
year from 2017 onward. However, these
estimates do not account for the effect
of 2019 amendments to Rule 4901,
discussed in the following section of
this document.
Rule 4901 (‘‘Wood Burning Fireplaces
and Wood Burning Heaters’’) establishes
requirements for the sale/transfer,
operation, and installation of woodburning devices and on the advertising
of wood for sale intended for burning in
a wood-burning fireplace, wood-burning
heater, or outdoor wood-burning device
within the San Joaquin Valley. One of
the most effective ways to reduce
wintertime smoke is a curtailment
program that restricts use of woodburning heaters and fireplaces on days
that are conducive to buildup of PM
concentrations (i.e., days where ambient
PM2.5 and/or PM10 concentrations are
forecast to be above a particular level,
known as a ‘‘curtailment threshold’’).
Rule 4901 includes a tiered
mandatory curtailment program that
establishes different curtailment
thresholds based on the type of devices
(i.e., registered clean-burning devices 64
vs. unregistered devices) and different
counties (i.e., hot spot vs. non-hot spot).
During a Level One Episodic Wood
87995
Burning Curtailment, operation of
wood-burning fireplaces and other
unregistered wood-burning heaters or
devices is prohibited, but properly
operated, registered wood-burning
heaters may be used.65 During a Level
Two Episodic Wood Burning
Curtailment, operation of any woodburning device is prohibited.66
However, the rule includes an
exemption from the curtailment
provisions for (1) locations where piped
natural gas service is not available and
(2) residences for which a wood-burning
fireplace or wood-burning heater is the
sole available source of heat.67
In order to implement the curtailment
program under Rule 4901, the District
develops daily air quality forecasts,
based on EPA and CARB guidance,
which include a projection of the
maximum PM2.5 concentration in each
county for the following day.68 District
staff then compare this maximum
county PM2.5 concentration forecast
with the curtailment thresholds in Rule
4901. If a county’s PM2.5 forecast
exceeds the applicable threshold, then
the District’s Air Pollution Control
Officer declares a curtailment for the
county for the following day.
In 2019, the District lowered the
curtailment thresholds in Madera,
Fresno, and Kern counties, which the
District identified as ‘‘hot spot’’
counties, because they were ‘‘either new
areas of gas utility or areas deemed to
have persistently poor air quality.’’ 69
Table 1 presents the residential
curtailment thresholds in Rule 4901, as
revised in 2019.
TABLE 1—RESIDENTIAL WOOD BURNING CURTAILMENT THRESHOLDS IN RULE 4901
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[As amended in 2019]
Non-hot spot counties
(San Joaquin, Stanislaus, Merced,
Kings, and Tulare)
Episodic wood burning curtailment levels
Hot spot counties
(Madera, Fresno, and Kern)
Level One (No Burning Unless Registered) ...........................................
Level Two (No Burning for All) ................................................................
12 μg/m3 ........................................
35 μg/m3 ........................................
The 2019 revision by the District also
added a provision to the rule to operate
as a contingency measure, which would
lower the curtailment thresholds for any
county that failed to attain the
applicable standards to levels consistent
with current thresholds for hot spot
counties. However, the EPA
disapproved this provision because it
did not meet all of the CAA
requirements for contingency
measures.70 Specifically, it did not
62 CARB, ‘‘California Smog Check Contingency
Measure State Implementation Plan Revision,’’
release date September 15, 2023, (‘‘Smog Check
Contingency Measure’’).
63 EPA, ‘‘Air Plan Revision; California; Motor
Vehicle Inspection and Maintenance Program
Contingency Measure,’’ Proposed rule, published in
this Federal Register.
64 In order to be registered, a device must either
be certified under the NSPS at time of purchase or
installation and at least as stringent as Phase II
requirements or be a pellet-fueled wood burning
heater exempt from EPA certification requirements
at the time of purchase or installation (Rule 4901,
section 5.9.1). The rule includes requirements for
documentation and inspection to verify compliance
with these standards (Rule 4901, sections 5.9.2 and
5.10).
65 Rule 4901, section 5.7.1.
66 Rule 4901, section 5.7.2.
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20 μg/m3.
65 μg/m3.
address three of the four required
triggers for contingency measures in 40
CFR 51.1014(a) and was not structured
to achieve any additional emissions
reductions if the EPA found that the
monitoring locations in the ‘‘hot spot’’
67 Rule
4901, section 5.7.4.
dated October 9, 2019, from Jon Klassen,
SJVUAPCD to Meredith Kurpius, EPA Region IX,
Subject: ‘‘RE: Info to support Rule 4901.’’
69 2018 PM
2.5 Plan, Appendix J, 60.
70 86 FR 67329, 67338 (for the 1997 annual PM
2.5
NAAQS) and 86 FR 67343, 67345 (for the 2006 24hour PM2.5 NAAQS and 2012 annual PM2.5
NAAQS).
68 Email
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counties (i.e., Fresno, Kern, or Madera)
were the only counties in the San
Joaquin Valley that are violating the
applicable PM2.5 NAAQS as of the
attainment date.71 In addition, with
respect to the 1997 annual PM2.5
NAAQS in particular, the EPA also
disapproved the contingency provision
in Rule 4901 because the EPA was
concurrently disapproving the RFP and
attainment demonstrations and, thus,
was unable to determine whether the
emissions reductions from the
contingency provision were in fact
surplus to the reductions that would be
needed to provide for RFP and
attainment for the 1997 annual PM2.5
NAAQS in the SJV.72 Accordingly, the
SIP-approved version of Rule 4901 does
not include any contingency provision.
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2. Summary of State Submission
On May 18, 2023, the District
amended the contingency measure in
section 5.7.3 of Rule 4901, and CARB
submitted the amended rule as part of
the June 8, 2023 SIP Submission. The
contingency measure would be triggered
by a final determination by the EPA that
the District failed to meet one or more
of the following triggering events for the
applicable PM2.5 NAAQS:
(1) Any Reasonable Further Progress
requirement;
(2) Any quantitative milestone;
(3) Submission of a quantitative
milestone report; or
(4) Attainment of the applicable PM2.5
NAAQS by the applicable attainment
date.
Following the first such triggering
event, the measure would lower the
thresholds for the non-hot spot counties
to the current thresholds for hot spot
counties (i.e., from 20 mg/m3 to 12 mg/
m3 for unregistered devices; and from
65 mg/m3 to 35 mg/m3 for registered
devices). Following the second such
event, the measure would further lower
the threshold for unregistered devices in
all counties of the San Joaquin Valley
from 12 mg/m3 to 11 mg/m3.
The District estimates that the
Residential Wood Burning Contingency
Measure for the first triggering event
would achieve annual average
emissions reductions of 0.5793 tpd
direct PM2.5 and 0.0817 tpd NOX in the
SJV and the second triggering event
would achieve additional reductions of
71 Id. See also 86 FR 38652, 38669 (proposed rule
on contingency measures element for the 1997
annual PM2.5 NAAQS) and 86 FR 49100, 49125 and
49133–49134 (proposed rule on contingency
measures element for the 2012 annual PM2.5
NAAQS and 2006 24-hour PM2.5 NAAQS,
respectively).
72 86 FR 67329, 67338.
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0.1078 tpd direct PM2.5 and 0.0148 tpd
NOX.73
3. EPA Evaluation
Through the revisions adopted by the
District to Rule 4901 on May 18, 2023,
the District has corrected the
deficiencies in the contingency
provision of Rule 4901 that we
identified in our November 26, 2021
final actions. Namely, the contingency
provision in the rule (section 5.7.3) has
been revised to address all the
determinations for which contingency
measures are required under 40 CFR
51.1014(a) and has been revised to
achieve emissions reductions under all
circumstances, i.e., if triggered by one of
the specific EPA determinations. In
addition, we find that the contingency
provision in section 5.7.3 of Rule 4901
is surplus to the RFP and attainment
demonstrations for the annual 1997
PM2.5 NAAQS based on the conclusions
in our recent final action approving the
RFP and attainment demonstrations in
the State’s 15 mg/m3 SIP Revision.74
In our previous actions, we found that
the contingency provision in Rule 4901
met the other specific criteria used to
evaluate contingency measures.75
Specifically, the contingency provision
in Rule 4901 (the Residential Wood
Burning Contingency Measure) is
structured to be both conditional and
prospective, to be implemented quickly
following a triggering event (i.e., within
60 days) and to be implemented without
significant further action by the State or
the EPA. The revisions to section 5.7.3
of Rule 4901 that were adopted on May
18, 2023 do not affect those features of
the contingency provision, and thus we
propose to re-affirm those findings in
this proposed rule.
We also note that the contingency
provisions do not require the
replacement or installation of an
emissions control device and can
therefore achieve emission reductions
upon the rule taking effect. For example,
if the EPA were to determine that the
San Joaquin Valley failed to attain a
given PM2.5 NAAQS, effective in July of
a given year, the more stringent
curtailment thresholds would take effect
in September of that year, prior to the
seasonal start of the No Burn Day
program on November 1st. Thus, the
emission reductions from the
Residential Wood Burning Contingency
73 SJV
PM2.5 Contingency Measure SIP, p. C–15.
‘‘Air Quality State Implementation Plans;
Approvals and Promulgations: California; 1997
Annual Fine Particulate Matter Serious and Clean
Air Act Section 189(d) Nonattainment Area
Requirements; San Joaquin Valley, CA,’’ Final rule,
signed December 5, 2023.
75 See, e.g., 86 FR 38652, 38669.
74 EPA,
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Measure would be achieved within one
year of the triggering event. Based on
our review of the contingency
provisions, as revised, we propose to reaffirm those findings.
Contingency measures must also 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 and
attainment. In this regard, we note that
none of the SJV plans for the 1997
annual, 2006 24-hour, and 2012 annual
PM2.5 NAAQS relied upon the
contingency provision in Rule 4901 to
meet any plan element (other than the
contingency measure element) and that
none of the plans relied on the related
emissions reductions from the
contingency provision to provide for
RFP or attainment. Based on our
previous approvals of the San Joaquin
Valley plans for the 2006 24-hour PM2.5
NAAQS in 2020 and 2012 annual PM2.5
NAAQS in 2021,76 and the recent
approval of the San Joaquin Valley plan
for the 1997 annual PM2.5 NAAQS,
including the various plan elements
such as the BACM, RFP, and attainment
demonstrations, we find that the
Residential Wood Burning Contingency
Measure is not otherwise required for
these PM2.5 NAAQS and that the
associated emissions reductions would
be surplus to the PM2.5-related RFP and
attainment needs of the San Joaquin
Valley.
Therefore, for the reasons provided in
the preceding paragraphs, we propose to
approve Rule 4901, as revised, because
we find that the Residential Wood
Burning Contingency Measure set forth
in section 5.7.3 of the rule now meets
all the applicable requirements for a
contingency measure for the San
Joaquin Valley for the 1997 annual,
2006 24-hour, and 2012 annual PM2.5
NAAQS.
Lastly, we reviewed the emissions
reduction estimates for the Residential
Wood Burning Contingency Measure
that were prepared by the District and
included in Appendix C (‘‘Emission
Reduction Analysis for Rule 4901’’) of
the SJV PM2.5 Contingency Measure SIP
and find the estimates to be reasonable
and adequately documented. As
described in Appendix C of the SJV
PM2.5 Contingency Measure SIP, the
District has estimated the reductions
from the two triggering events provided
for in the Residential Wood Burning
Contingency Measure by taking into
account many different factors, such as
the number of fireplaces and wood
stoves in the individual counties within
76 85
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the San Joaquin Valley, the different
types of wood stoves (registered and
unregistered, certified and uncertified),
and the number of additional
curtailment days under various
scenarios, among other factors. Taking
into account these various factors, the
District estimates the Residential Wood
Burning Contingency Measure would
achieve annual average emissions
reductions of 0.5793 tpd direct PM2.5
and 0.0817 tpd NOX in the SJV
following the first triggering event and
additional reductions of 0.1078 tpd
direct PM2.5 and 0.0148 tpd NOX
following the second triggering event.
Because we are proposing to find that
the Residential Wood Burning
Contingency Measure meets the
requirements for individual contingency
measures, the associated emissions
reductions can be taken into account by
the EPA when determining whether
CARB and the District have met the
requirements for the San Joaquin Valley
as a whole with respect to the
contingency measure SIP requirements
of CAA section 172(c)(9) and 40 CFR
51.1014 for PM2.5 nonattainment areas.
Section V of this document presents our
evaluation of the SJV PM2.5 Contingency
Measure SIP for compliance with these
requirements for the San Joaquin Valley
for the 1997 annual, 2006 24-hour, and
2012 annual PM2.5 NAAQS, and, as part
of that evaluation, we have taken into
account the District’s estimates of
emissions reductions from the
Residential Wood Burning Contingency
Measure.
provisions in Regulation VIII
‘‘significantly strengthened’’ the prior
existing rules by tightening standards,
covering more activities, and adding
more requirements to control dustproducing activities.78 Subsequently,
the District adopted amendments to
Regulation VIII on August 19, 2004, and
September 16, 2004, that the EPA
approved into the San Joaquin Valley
portion of the California SIP in 2006.79
More recently the EPA has reviewed
Regulation VIII for RACM/RACT,
BACM/BACT, and MSM requirements
in acting on the San Joaquin Valley plan
for the 2006 24-hour PM2.5 NAAQS.80
Among the rules of Regulation VIII,
Rule 8051 (‘‘Open Areas’’) applies to
vacant portions of residential and
commercial lots and contiguous parcels
and the 2004 amendments added
applicability thresholds for rural and
urban areas required to meet both the
conditions for a stabilized surface
(defined in Rule 8011) and a 20%
opacity standard. Rule 8051 applies to
any open area having 0.5 acres or more
within urban areas, or 3.0 acres or more
within rural areas, that contains at least
1,000 square feet of disturbed surface
area.81 In addition, under Rule 8051,
upon evidence of vehicle trespass,
owners/operators must apply a
measure(s) that effectively prevents
access to the lot. Rule 8051 does not
apply to agricultural areas, which are
subject to other fugitive dust controls
such as those under Rule 4550
(‘‘Conservation Management Practices’’)
and Rule 8081 (‘‘Agricultural Sources’’).
B. Rural Open Areas Contingency
Measure
2. Summary of State Submission
On September 21, 2023, the District
adopted a new contingency measure in
section 7.0 of District Rule 8051
(referred to herein as the ‘‘Rural Open
Areas Contingency Measure’’), and
CARB submitted Rule 8051, as
amended, to include the Rural Open
Areas Contingency Measure, as a
supplement to the SJV PM2.5
Contingency Measure SIP. The Rural
Open Areas Contingency Measure
would be triggered by a final
1. Background and Regulatory History
In areas where there is open,
uncovered land, a natural crust will
form and minimize dust emissions.
However, activities such as earthmoving
activities, material dumping, weed
abatement, and vehicle traffic will
disturb otherwise naturally stable land
and allow windblown fugitive dust
emissions to occur.
The District adopted fugitive dust
control requirements in Regulation VIII
(containing the 8000 series rules) on
November 15, 2001, to address RACM/
RACT and BACM/BACT attainment
plan requirements for the 1987 p.m.10
NAAQS.77 The EPA found that new
77 Regulation VIII includes eight rules. Rule 8011
(‘‘General Requirements’’) provides definitions and
the general requirements on which the seven other
rules rely. In turn, those seven rules apply to
different sources of fugitive windblown dust based
on activity type. They include Rule 8021
(‘‘Construction, Demolition, Excavation, Extraction,
and Other Earthmoving Activities’’), Rule 8031
(‘‘Bulk Materials’’), Rule 8041 (‘‘Carryout and
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Trackout’’), Rule 8051 (‘‘Open Areas’’), Rule 8061
(‘‘Paved and Unpaved Roads’’), Rule 8071 (Unpaved
Vehicle/Equipment Traffic Area’’), and Rule 8081
(‘‘Agricultural Sources’’). In this proposed rule, the
EPA proposes to approve Rule 8051, as amended to
include a contingency provision, as a revision to the
California SIP.
78 67 FR 15345, 15346–15447 (April 1, 2002)
(proposed rule on 2001 version of Regulation VIII).
79 71 FR 8461 (February 17, 2006).
80 See, e.g., 85 FR 17382, 17431 (March 27, 2020)
(proposal on BACM/BACT and MSM for the 2006
24-hour PM2.5 NAAQS); and EPA Region IX,
‘‘Technical Support Document, EPA Evaluation of
BACM/MSM, San Joaquin Valley PM2.5 Plan for the
2006 PM2.5 NAAQS,’’ February 2020.
81 Rule 8051, section 2.1.
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determination by the EPA that the
District failed to meet one or more of the
following triggering events for the
applicable PM2.5 NAAQS:
(1) Any Reasonable Further Progress
requirement;
(2) Any quantitative milestone;
(3) Submission of a quantitative
milestone report; or
(4) Attainment of the applicable PM2.5
NAAQS by the applicable attainment
date.
The Rural Open Areas Contingency
Measure would lower the applicability
threshold for rural open areas from 3.0
acres to 1.0 acres, thereby reducing
windblown fugitive dust, including the
direct PM2.5 portion of such dust
emissions. The State estimates that the
newly subject total acreage would be
18,816 acres. The Rural Open Areas
Contingency Measure would be effective
60 days after an EPA determination
under 40 CFR 51.1014(a) that triggers
contingency measures. At such time,
Rule 8051 would require any rural open
area having 1.0 acre or more and
containing at least 1,000 square feet of
disturbed surface area (notwithstanding
exemptions in section 4.0 of the rule) to
meet section 5.0 of the rule, which
requires that:
Whenever open areas are disturbed or
vehicles are used in open areas, an owner/
operator shall implement one or a
combination of control measures indicated in
Table 8051–1 to comply with the conditions
of a stabilized surface at all times and to limit
VDE to 20% opacity. In addition to the
requirements of this rule, a person shall
comply with all other applicable
requirements of Regulation VIII.82
Table 8051–1 contains the following
control measures for open areas:
A. Open Areas:
Implement, apply, maintain, and reapply if
necessary, at least one or a combination of
the following control measures to comply at
all times with the conditions for a stabilized
surface and limit VDE to 20% opacity as
defined in Rule 8011:
A1. Apply and maintain water or dust
suppressant(s) to all unvegetated areas; and/
or
A2. Establish vegetation on all previously
disturbed areas; and/or
A3. Pave, apply and maintain gravel, or
apply and maintain chemical/organic
stabilizers/suppressant(s).
B. Vehicle Use in Open Areas:
Upon evidence of trespass, prevent
unauthorized vehicle access by:
Posting ‘No Trespassing’ signs or installing
physical barriers such as fences, gates, posts,
and/or other appropriate barriers to
effectively prevent access to the area.
The Rural Open Areas Contingency
Measure is narrowed by the addition of
82 VDE
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a new exemption in section 4.2 of Rule
8051 that exempts owners or operators
of rural parcels between 1.0 acres to 3.0
acres that implement fire prevention
activities required by a Federal, State, or
local agency by mowing or cutting (if
three inches or more of stubble remains
after moving or cutting) or discing (if no
more than two passes are made).
The District estimates that the Rural
Open Burning Contingency Measure
would achieve annual average
emissions reductions of 0.008 tpd direct
PM2.5.83
3. EPA Evaluation
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As discussed further in the EPA’s
technical support document that
documents our evaluation of amended
Rule 8051,84 we find that the Rural
Open Areas Contingency Measure now
included as section 7.0 of Rule 8051
meets the applicable requirements for
contingency measures. First, we note
that the expansion of the control
requirements to rural parcels between
one (1.0) to three (3.0) acres under
section 7.0 of Rule 8051 is conditional
and prospective by design and is not
required to meet existing control
requirements (i.e., RACM or BACM) 85
nor relied upon by the area as part of the
area’s PM2.5 RFP or attainment
demonstrations. Moreover, the
exemption for owners or operators of
certain rural parcels of 1.0 to 3.0 acres
in size from the requirements of the rule
that would otherwise be included if the
Rural Open Areas Contingency Measure
were triggered is narrowly drawn and
limited such that the exemption will
have essentially no impact on the
emissions reductions expected from
implementation of the Rural Open Areas
Contingency Measure. This is because
the exemption applies only to owners
and operators acting in response to a
Federal, State, or local agency that is
requiring implementation of fire
prevention activities and is further
limited by specifying the methods that
83 SJVUAPCD, Final Draft Staff Report, ‘‘Proposed
Amendments to Rule 8051 (Open Areas),’’
September 21, 2023, p. B–7.
84 EPA Region IX, ‘‘Technical Support Document
for EPA’s Rulemaking for the California State
Implementation Plan, San Joaquin Valley Air
Pollution Control District Rule 8051 (‘Open
Areas’),’’ December 2023.
85 As noted previously, the RACM and BACM
demonstrations that the EPA has approved for the
1997 annual, 2006 24-hour, and the 2012 annual
PM2.5 NAAQS included review of Regulation VIII,
including Rule 8051. See 85 FR 44192, 86 FR
67343, and EPA, ‘‘Air Quality State Implementation
Plans; Approvals and Promulgations: California;
1997 Annual Fine Particulate Matter Serious and
Clean Air Act Section 189(d) Nonattainment Area
Requirements; San Joaquin Valley, CA,’’ Final rule,
signed December 5, 2023.
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must be followed to be covered by the
exemption.
Second, the Rural Open Areas
Contingency Measure includes a trigger
mechanism (‘‘. . . final determination
by EPA that the District has failed to
meet any of the following elements for
any of the PM2.5 NAAQS . . .’’) that
addresses all of the specific types of
determinations listed in 40 CFR
51.1014(a). Third, the Rural Open Areas
Contingency Measure specifies a
schedule for timely implementation
(‘‘Upon 60 days after the issuance of a
final determination . . .’’). While the
extension of the control requirements to
rural parcels between 1.0 to 3.0 acres
under section 7.0 is self-executing (i.e.,
does not require additional rulemaking),
the District will need as a practical
matter to provide notice to the affected
owners/operators that the contingency
measure has been triggered. However,
we do not find that providing such
notice constitutes ‘‘further action’’ by
the state for the purposes of CAA
section 172(c)(9). Lastly, given the
nature of the controls required under
Rule 8051 (such as watering,
establishing vegetation, applying gravel,
or fencing (if needed)), we find that the
associated emissions reductions from
implementation of the Rural Open Areas
Contingency Measure can be achieved
within a year of the triggering event.
Therefore, for the reasons provided in
the preceding paragraphs, we propose to
approve Rule 8051, as revised, because
we find that the Rural Open Areas
Contingency Measure meets all the
applicable requirements for a
contingency measure for the San
Joaquin Valley for the 1997 annual,
2006 24-hour, and 2012 annual PM2.5
NAAQS.
We have also reviewed the emissions
reduction estimates for the Rural Open
Areas Contingency Measure that were
prepared by the District and included in
Appendix B (‘‘Emission Reduction and
Cost Effectiveness Analysis for Proposed
Amendments to Rule 8051 (Open
Areas)’’) of the Final Draft Staff Report
and find the estimates to be reasonable
and adequately documented. As
documented in Appendix B of the Final
Draft Staff Report, the District took into
account county-specific parcel size data,
among other relevant factors to develop
the emissions reduction estimate of
0.008 tpd of direct PM2.5 for the Rural
Open Areas Contingency Measure.86
Because we are proposing to find that
the Rural Open Areas Contingency
Measure meets the requirements for
individual contingency measures, the
associated emissions reductions can be
taken into account by the EPA when
determining whether CARB and District
have met the requirements for the San
Joaquin Valley as a whole with respect
to the contingency measure
requirements of CAA section 172(c)(9)
and 40 CFR 51.1014 for PM2.5
nonattainment areas. Section V of this
document presents our evaluation of the
SJV PM2.5 Contingency Measure SIP for
compliance with these requirements for
the San Joaquin Valley for the 1997
annual, 2006 24-hour, and 2012 annual
PM2.5 NAAQS, and, as part of that
evaluation, we have taken into account
the District’s estimates of emissions
reductions from the Rural Open Areas
Contingency Measure.
86 SJVUAPCD, Final Draft Staff Report, ‘‘Proposed
Amendments to Rule 8051 (Open Areas),’’
September 21, 2023, p. B–7. The District’s estimate
compares favorably with the EPA’s own estimate of
0.01 tpd for essentially the same contingency
measure in EPA’s proposed PM2.5 contingency
measure FIP for San Joaquin Valley. 88 FR 53431,
53444.
87 Smog Check Contingency Measure, section 4.
The Smog Check Contingency Measure is structured
to further narrow the newer vehicle exemption by
another year upon a second triggering event.
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C. Smog Check Contingency Measure
The general purpose of motor vehicle
inspection and maintenance (I/M)
programs is to reduce emissions from
in-use motor vehicles in need of repairs
and thereby contribute to state and local
efforts to improve air quality and to
attain the NAAQS. California has
operated an I/M program, also known as
the ‘‘Smog Check’’ program, in certain
areas of the state for over 30 years.
Under the current California Smog
Check program, certain vehicles are
exempt from the biennial inspection
requirement, including vehicles eight or
fewer model years old.
On November 13, 2023, CARB
submitted a third contingency measure
for San Joaquin Valley for the PM2.5
NAAQS, which we refer to herein as the
Smog Check Contingency Measure.
Under the Smog Check Contingency
Measure, CARB would, within 30 days
of the effective date of an EPA
determination that an applicable
triggering event has occurred for San
Joaquin Valley for the PM2.5 NAAQS,
transmit a letter to the California Bureau
of Automotive Repair and Department
of Motor Vehicles that, in effect, would
narrow the newer vehicle exemption
from eight or fewer model years old to
seven or fewer model years old
throughout the San Joaquin Valley.87
CARB estimates that the Smog Check
Contingency Measure would, after the
first triggering event and adjusting
slightly for the effect on foregone
emission reductions from Carl Moyer
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funding,88 achieve annual average
emission reductions of 0.113 tpd NOX
for the 1997 annual PM2.5 NAAQS,
0.116 tpd NOX for the 2006 24-hour
PM2.5 NAAQS, and 0.083 tpd NOX for
the 2012 annual PM2.5 NAAQS in the
San Joaquin Valley.89
In a separate proposed rule published
in this Federal Register, we are
proposing to approve the Smog Check
Contingency Measure and, therefore, its
associated emissions reductions can be
taken into account by the EPA when
determining whether the State and
District have met the contingency
measure requirements of CAA section
172(c)(9) and 40 CFR 51.1014 for PM2.5
nonattainment areas for the San Joaquin
Valley as a whole. Section V of this
document presents our evaluation of the
SJV PM2.5 Contingency Measure SIP for
compliance with these requirements for
the San Joaquin Valley for the 1997
annual, 2006 24-hour, and 2012 annual
PM2.5 NAAQS, and as part of that
evaluation, we have taken into account
CARB’s estimates of emissions
reductions from the Smog Check
Contingency Measure.
V. EPA Review of San Joaquin Valley
PM2.5 Contingency Measure Plan
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A. Background and Regulatory History
In light of the nonattainment
designation for San Joaquin Valley for
the PM2.5 NAAQS, the State of
California was required under CAA
section 172(c)(9) and 40 CFR 51.1014 to
adopt and submit a SIP revision
providing for implementation of
contingency measures to take effect in
the San Joaquin Valley if the EPA
determines that the area has failed to
meet an RFP requirement, failed to
submit a quantitative milestone report,
failed to meet a quantitative milestone,
or failed to attain the PM2.5 NAAQS by
the applicable attainment date.
In 2019, as discussed in section I.B of
this document, CARB submitted a SIP
revision that included contingency
measure plan elements for San Joaquin
Valley for the 1997 annual and 24-hour,
88 The Carl Moyer Program distributes incentive
grants to fund the incremental cost of cleaner-thanrequired engines, equipment, and other technology.
The slight adjustment to emission reductions
mentioned results from a decrease in funding to the
Carl Moyer program. If the contingency measure
were triggered, fewer vehicles would be exempt
from the Smog Check program, and thus fewer
vehicles would be subject to the Smog Check
abatement fee (which is only assessed on vehicles
exempted from Smog Check testing). That fee
provides funding to the Carl Moyer Program. For
more information on the program, see https://
ww2.arb.ca.gov/carl-moyer-program-apply.
89 Smog Check Contingency Measure, Table 28
and Table 31.
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2006 24-hour, and 2012 annual PM2.5
NAAQS. The contingency measure plan
elements relied on an earlier version of
the Residential Wood Burning
Contingency Measure and justified
reliance on that single measure
notwithstanding the fact that the
measure alone would not achieve
emissions reductions equivalent to one
year’s worth of RFP by reference to
larger planning context for the area and
related surplus emissions reductions
expected to be achieved from alreadyimplemented control measures.
In 2021, the EPA disapproved the
contingency measure plan elements for
the applicable PM2.5 NAAQS because
the plan elements did not include a
contingency measure that addressed all
four triggering events for the PM2.5
NAAQS under 40 CFR 51.1014; that
would ensure that emissions reductions
would be achieved, once triggered; or,
for the 1997 annual PM2.5 NAAQS, that
would be surplus to the area’s needs for
RFP and attainment.90 We proposed
disapproval of the contingency measure
elements before the Ninth Circuit’s
Assoc. of Irritated Residents (AIR) v.
EPA decision 91 was published and,
thus, did not identify the contingency
measure elements’ reliance on surplus
emissions reductions from alreadyimplemented measures (to justify
adoption of a single contingency
measure which would not, on its own,
achieve one year’s worth of RFP) as a
specific deficiency.
B. Summary of State Submission
In response to the disapprovals of the
previous contingency measure elements,
the District and CARB prepared the SJV
PM2.5 Contingency Measure SIP, which
CARB adopted as part of the California
SIP and submitted for EPA approval on
June 8, 2023. In the SJV PM2.5
Contingency Measure SIP, the District
and CARB present their evaluation of
potential contingency measures,
amendments to the previous
contingency provisions in the District’s
residential wood burning rule (i.e., the
Residential Wood Burning Contingency
Measure), a commitment to evaluate
potential contingency provisions for
Rule 8051 (‘‘Open Areas’’), analysis of
one year’s worth of emission reductions,
90 86 FR 38652, 38669–38670; and 86 FR 49100,
49124–49125 and 49133–49134.
91 In AIR v. EPA, the Ninth Circuit held that,
under the EPA’s current guidance, the surplus
emissions reductions from already-implemented
measures cannot be relied upon to justify the
approval of a contingency measure that would
achieve far less than one year’s worth of RFP as
sufficient by itself to meet the contingency measure
requirements of CAA sections 172(c)(9) and
182(c)(9) for the nonattainment area. 10 F.4th at
946–47.
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and infeasibility demonstrations for
rejecting other potential contingency
measures. In light of the AIR v. EPA
decision, the District and CARB do not
justify the selection of the contingency
measures on the basis of surplus
emissions reductions from alreadyimplemented measures, as had been the
case previously, but rather ‘‘due to a
scarcity of available, qualifying
measures,’’ and the time period in
which emission reductions should
occur.92 Subsequent to the submission
of the SJV PM2.5 Contingency Measure
SIP, the District and CARB have
supplemented the contingency measure
elements for the applicable PM2.5
NAAQS with the adoption and
submission of two additional
contingency measures—the Rural Open
Areas Contingency Measure and the
Smog Check Contingency Measure.
1. General Considerations
‘‘General Considerations,’’ for the
purposes of this proposed action,
includes identification of the relevant
pollutants, the use of contingency
measures for more than one triggering
event and for more than one NAAQS,
and the magnitude of emissions
reductions. Contingency measure
feasibility analyses are addressed in a
separate subsection.
a. PM2.5 and PM2.5 Precursors
CARB and the District have
concluded, based on CARB modeling,
that sulfur oxides (SOX), volatile organic
compounds (VOCs), and ammonia are
not significant precursors for PM2.5
formation in the San Joaquin Valley.
Therefore, their contingency measure
submissions address sources of direct
PM2.5 and NOX emissions.
b. Using Same Contingency Measures
for More Than One Triggering Event,
NAAQS
The contingency measures that CARB
and the District rely upon in the SJV
PM2.5 Contingency Measure SIP are not
limited to one PM2.5 NAAQS, but rather
cover all three of the 1997 annual, 2006
24-hour, and 2012 annual PM2.5 NAAQS
(i.e., the same set of contingency
measures has been submitted to address
the contingency measure requirements
for more than one PM2.5 NAAQS).
c. Magnitude of Emissions Reductions
To evaluate the sufficiency of the
Residential Wood Burning Contingency
Measure with respect to the magnitude
of emissions reductions that the
contingency measures should achieve,
the SJV PM2.5 Contingency Measure SIP
92 SJV
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includes calculations of one year’s
worth of RFP for the relevant PM2.5
NAAQS for the San Joaquin Valley. To
do this, the District calculated the
change in annual average emission
reductions from the base year to the
attainment year for the 1997 annual
PM2.5 NAAQS (from 2013 to 2023) and
2006 24-hour PM2.5 NAAQS (from 2013
to 2024), and the outermost Moderate
area RFP year for the 2012 annual PM2.5
NAAQS (from 2013 to 2022), and
divided those by the number of years
between the base year and applicable
attainment or RFP year. The State’s
estimates of one year’s worth of RFP in
the SJV PM2.5 Contingency Measure SIP
are as follows: 0.44 tpd direct PM2.5 and
16.7 tpd NOX (for the 1997 annual PM2.5
NAAQS); 0.58 tpd direct PM2.5 and 18.4
tpd NOX (for the 2006 24-hour PM2.5
NAAQS); and 0.46 tpd direct PM2.5 and
15.3 tpd NOX (for the 2012 annual PM2.5
NAAQS).93
Per the EPA’s Draft Revised
Contingency Measure Guidance, the SJV
PM2.5 Contingency Measure SIP also
includes estimates of one year’s worth
of progress that were made by
calculating one year’s worth of RFP as
a percentage of the base year emissions
inventory and applying that percentage
to the attainment year emissions
inventory for the 1997 annual and 2006
24-hour PM2.5 NAAQS, and to the
outermost Moderate area RFP year for
the 2012 annual PM2.5 NAAQS. The
estimates of one year’s worth of progress
in the SJV PM2.5 Contingency Measure
SIP are as follows: 0.41 tpd direct PM2.5
and 7.91 tpd NOX (for the 1997 annual
PM2.5 NAAQS); 0.52 tpd direct PM2.5
and 6.66 tpd NOX (for the 2006 24-hour
PM2.5 NAAQS); and 0.43 tpd direct
PM2.5 and 8.65 tpd NOX (for the 2012
annual PM2.5 NAAQS).94
CARB and the District present their
comparison of emission reductions from
the Residential Wood Burning
Contingency Measure to those needed
for one year’s worth of progress in Table
17 of the SJV PM2.5 Contingency
Measure SIP.95 They conclude that this
contingency measure would achieve
emission reductions of 0.69 tpd direct
PM2.5 and 0.1 tpd NOX (including
reductions following both first and
second triggering events) and that such
reductions would exceed those needed
for one year’s worth of progress for
direct PM2.5 but would fall short of
93 SJV
PM2.5 Contingency Measure SIP, pp. 5–6;
see ‘‘Step 1b’’ emissions estimates in the ‘‘Step 1’’
table for one year’s worth of RFP.
94 SJV PM
2.5 Contingency Measure SIP, pp. 5–6;
see the ‘‘Step 3’’ table for one year’s worth of
progress.
95 SJV PM
2.5 Contingency Measure SIP, Table 17.
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those needed for one year’s worth of
progress for NOX.
Noting the direct PM2.5 surplus, CARB
and the District then trade the surplus
direct PM2.5 emission reductions at a
ratio of 6:1 (i.e., 6 tpd NOX for each
excess 1 tpd direct PM2.5),96 based on
analyses in their 2021 ‘‘Progress Report
and Technical Submittal for the 2012
PM2.5 Standard San Joaquin Valley’’
(‘‘2021 Progress Report’’).97 CARB and
the District note that direct PM2.5
emission reductions are a more efficient
and cost-effective way to reduce
ambient PM2.5 in the San Joaquin Valley
than NOX emission reductions.98 The
report presented analysis of the relative
effect of reducing 30% direct PM2.5
(annual average) emissions versus 30%
NOX (annual average) emissions on
ambient annual average PM2.5
concentrations (as modeled for 2024) at
each regulatory monitoring site in the
San Joaquin Valley using data from the
precursor sensitivity analyses in the
2018 PM2.5 Plan.99 CARB and the
District examined several methods for
calculating the ratio based on varying
combinations of monitoring sites. They
concluded that 6:1 was a conservative
ratio as it was less than the average ratio
for the two sites with the highest
modeled (annual average) ambient PM2.5
concentrations in 2025 (6.1:1), the
average ratio of sites with modeled 2025
concentrations over 11.00 mg/m3 (6.4:1),
and the average ratio of sites with a
2020 design value over 12 mg/m3
(6.6:1).100 They also conclude that a
ratio of 6:1 would be conservative as it
was less than the 8.1:1 ratio for the
modeled design value for the
Bakersfield-Planz site (i.e., the site with
the highest modeled 2025
concentration).
Applying this 6:1 trading ratio, CARB
and the District estimate that, after
96 SJV
PM2.5 Contingency Measure SIP, pp. 73–74.
and SJVUAPCD, ‘‘Progress Report and
Technical Submittal for the 2012 PM2.5 Standard
San Joaquin Valley,’’ October 19, 2021 (‘‘2021
Progress Report’’). See pages 34–38 for the State’s
‘‘PM2.5 Precursor Sensitivity Modeling Analysis and
Trading Ratios.’’ Transmitted to the EPA by letter
dated October 20, 2021, from Richard W. Corey,
Executive Officer, CARB, to Deborah Jordan, Acting
Regional Administrator, EPA Region IX.
98 2021 Progress Report, p. 34.
99 See Appendix K (‘‘Modeling Attainment
Demonstration’’) of the 2018 PM2.5 Plan, including
Table 14 (annual average modeled emissions
inventory) and Table 49 (precursor sensitivity
analysis for annual average ambient PM2.5
concentration in 2024).
100 At the time, the modeled 2025 PM
2.5
concentrations corresponded to the attainment year
in the State’s Serious area plan for the 2012 annual
PM2.5 NAAQS, which was later withdrawn on
October 27, 2022. Letter dated October 27, 2022,
from Steven S. Cliff, Executive Officer, CARB, to
Martha Guzman, Regional Administrator, EPA
Region IX.
97 CARB
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achieving the full one year’s worth of
progress for direct PM2.5 emission
reductions, the shortfall of NOX
emissions for one year’s worth of
progress would be as follows: 6.13 tpd
(compared to 7.91 tpd for the 1997
annual PM2.5 NAAQS), 5.54 tpd
(compared to 6.66 tpd for the 2006 24hour PM2.5 NAAQS), and 6.99 tpd
(compared to 8.65 tpd for the 2012
annual PM2.5 NAAQS).101 The NOX
equivalent emissions reductions equate
to a range of 17% to 23% of one year’s
worth of progress for NOX.
In light of the shortfall of NOX
emissions reductions, the SJV PM2.5
Contingency Measure SIP includes
feasibility analyses by the District for
stationary and area sources and by
CARB for mobile sources to justify the
reliance on a contingency measure that
would not provide for one year’s worth
of progress (i.e., for NOX). We
summarize the feasibility analyses
prepared by the District and CARB in
the following section of this document.
2. Contingency Measure Feasibility
Analyses
The District states that it has already
implemented rules for sources that meet
or go beyond federal requirements and
that few measures remain to explore as
contingency measures. The District
describes the relative stringency of their
stationary and area source measures by
noting the EPA’s 2020 approval of the
State’s demonstration of BACM and
MSM for the 2006 24-hour PM2.5
NAAQS; highlights the District’s tighter
limits for certain industrial sources
compared to the EPA’s national
emission limits to address the interstate
transport of air pollution; and describes
the numerous regulatory measures and
incentive-based measures adopted since
and in fulfillment of the 2018 PM2.5
Plan.102
More specifically, the District
analyzed the wide range of stationary
and area sources for contingency
measure opportunities, including
identification of potential control
measures, analysis of the technological
and economic feasibility of such
measures, assessment of the time
required to develop and implement
such measures within 60 days and
achieve emission reductions within one
to two years, and discussion of whether
the District could adopt such measures
101 SJV
PM2.5 Contingency Measure SIP, p. 74.
PM2.5 Contingency Measure SIP, section
4.1 (‘‘Stringency of District’s Regulatory Program’’).
See also 87 FR 20036 (April 6, 2022) (proposed rule
for the interstate transport FIP for the 2015 ozone
NAAQS); and 88 FR 36654 (June 5, 2023) (final rule
for interstate transport FIP for the 2015 ozone
NAAQS).
102 SJV
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and secure EPA approval prior to the
EPA promulgating a contingency
measure FIP for PM2.5 in the San
Joaquin Valley. For the potential control
measures identified through this
process, the District further analyzed
possible contingency measures for wood
burning fireplaces and wood burning
heaters, rural open areas, commercial
charbroiling, almond harvesting, and oil
and gas production combustion
equipment. Based on this analysis, the
District adopted the Residential Wood
Burning Contingency Measure and
concluded that the other possible
contingency measures were infeasible or
untimely but committed to further
evaluate the rural open areas rule as a
potential contingency measure.
Subsequently, the District fulfilled the
Agency’s commitment to further
evaluate the rural open areas rule and
adopted the Rural Open Areas
Contingency Measure to supplement the
SJV PM2.5 Contingency Measure SIP.
In turn, CARB states that its mobile
source control programs often set the
standard for other states to follow and
that more than half of mobile source
NOX emissions in the San Joaquin
Valley are from primarily federally
regulated sources, which limit
opportunities for contingency measures
that would achieve one year’s worth of
progress in emission reductions. CARB
further notes that a relatively limited
portion (of NOX) emissions are regulated
by local air districts in California and
that, even if discounting the emission
reductions needed for contingency
measures by primarily federally
regulated emission sources, additional
control measures to achieve the one
year’s worth of emission reductions are
scarce or nonexistent.
CARB states that if such measures
were identified, they would be adopted
to improve air quality and help attain
the NAAQS, rather than held in reserve
as contingency measures, and that
control measures to achieve large
emission reductions often take longer
than two years to implement—beyond
the one- to two-year timeframe for
achieving emission reductions for
contingency purposes. For example,
CARB states that the three largest NOX
reduction measures committed to in the
2022 State SIP Strategy 103 rely on
accelerated turnover of engines and
trucks and shifting to zero-emission
equipment, which is limited by
infrastructure and equipment options.
CARB further states that a central
difficulty in considering contingency
103 CARB, ‘‘2022 State Strategy for the State
Implementation Plan,’’ adopted September 22,
2022, Chapter 5 (‘‘State SIP Measures’’).
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measures is that CARB has already
committed to zero emission standards
where feasible and as expeditiously as
possible to fulfill goals established in
California Executive Order N–79–20 for
mobile sources ranging from light-duty
cars by 2035 to heavy-duty trucks by
2045.104
More specifically, CARB analyzed all
sources under its authority to identify
potential contingency measures using
three criteria, per CAA requirements,
court decisions, and the EPA’s Draft
Revised Contingency Measure
Guidance. First, CARB assessed whether
the measure could be implemented
within 60 days of a triggering event and
emission reductions achieved within
one to two years. Second, CARB
assessed the technological and
economic feasibility of implementing
the measure, particularly within the
one- to two-year timeframe. Third,
CARB evaluated whether it could adopt
the measure and secure EPA approval
by the September 30, 2024 consent
decree deadline for the EPA to
promulgate a FIP or alternatively
approve contingency measure SIP
submissions meeting the contingency
measure requirements.
Regarding mobile source contingency
measures, CARB describes several
challenges that limit the control
measure options that would meet
contingency measure requirements. For
new engine standards, CARB states that
engine manufacturers need lead time to
‘‘design, plan, certify, manufacture, and
deploy cleaner engines.’’ For fleet
regulations, CARB states that
manufacturing must be mature to
provide sufficient supply and that
owners and operators must ‘‘plan,
purchase, and deploy new, often zeroemission, equipment’’ that may involve
changes to business operations and
infrastructure. Based on the time
required for implementing such
measures, CARB concludes that new
engine standards and fleet regulations
are not appropriate for contingency
measures.
Furthermore, CARB states that its
regulations are technology-forcing,
which requires time for industry to
plan, develop, and implement new
technologies, and that it is driving
mobile sources to zero-emissions where
feasible to achieve criteria, air toxic, and
climate pollutant goals. Similarly, CARB
argues that the technology-forcing and
zero-emission-based nature of its mobile
source regulations reduce or eliminate
opportunities for contingency measure
emission reductions. Lastly, CARB
104 Executive Department, State of California,
Executive Order N–79–20, September 23, 2020.
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states that its full rulemaking process for
most mobile source measures takes
about five years to develop and adopt,
which would not be possible prior to
the September 30, 2024 consent decree
deadline for the EPA to promulgate a
FIP, or approve contingency measure
SIP submissions meeting the
contingency measure requirements.
CARB concludes that there are no
feasible mobile source contingency
measures for the 1997 annual, 2006 24hour, and 2012 annual PM2.5 NAAQS
(as of the April 2023 public notice for
the SJV PM2.5 Contingency Measure SIP)
yet continued to assess opportunities for
feasible contingency measures. Per a
June 2023 commitment letter by CARB’s
Executive Officer, and as further
described in section IV.C of this
proposed rule, CARB has since
completed the development of and
adopted the state-wide Smog Check
Contingency Measure that complements
the District contingency measures for
residential wood burning and rural open
areas.
3. Conclusion
Based on achieving the full one year’s
worth of progress for direct PM2.5
emission reductions, a portion of one
year’s worth of progress for NOX
emission reductions, and their
contingency measure feasibility
analyses, CARB and the District
conclude that the SJV PM2.5
Contingency Measure SIP, and related
infeasibility demonstrations, and the
Residential Wood Burning Contingency
Measure fulfill the contingency measure
requirements for the PM2.5 NAAQS.105
C. EPA Evaluation
We propose to find that CARB and the
District have corrected the specific
deficiencies that we identified in the
previously submitted contingency
measure elements for the applicable
PM2.5 NAAQS and that were the bases
for our previous disapprovals of the
contingency measure element. Our
proposed conclusion in this regard
recognizes that the revised contingency
measure plan elements for the
applicable PM2.5 NAAQS (SJV PM2.5
Contingency Measure SIP) now includes
contingency measures (Residential
Wood Burning Contingency Measure,
Rural Open Areas Contingency Measure,
and the Smog Check Contingency
Measure) that address all four triggering
events for the PM2.5 NAAQS under 40
105 SJV PM
2.5 Contingency Measure SIP, p. 74. As
noted previously, the SJV PM2.5 Contingency
Measure SIP has been supplemented with two
additional contingency measures (i.e., the Rural
Open Areas Contingency Measure and the Smog
Check Contingency Measure).
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CFR 51.1014, that have been structured
to ensure emissions reductions, once
triggered, and that are surplus to the
RFP and attainment needs of the San
Joaquin Valley for the 1997 annual
PM2.5 NAAQS.106
1. General Considerations
As stated previously, ‘‘General
Considerations,’’ for the purposes of this
proposed action, includes identification
of the relevant pollutants, the use of
contingency measures for more than one
triggering event and for more than one
NAAQS, and the magnitude of
emissions reductions. We present our
evaluation of the State’s contingency
measure feasibility analyses in a
separate subsection.
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a. PM2.5 and PM2.5 Plan Precursors
Under the CAA, states are required to
regulate not only direct emissions of
PM2.5 in an attainment plan, but also all
PM2.5 precursors. Under the EPA’s PM2.5
SIP Requirements Rule, states must
identify, adopt, and implement control
measures, including control
technologies, on sources of direct PM2.5
emissions and sources of emissions of
PM2.5 plan precursors located in PM2.5
nonattainment areas.107 PM2.5 plan
precursors are those PM2.5 precursors
(which are sulfur dioxide (SO2), NOX,
VOCs, and ammonia) that the state must
regulate in the applicable attainment
plan.108 A state may elect to submit to
the EPA precursor demonstrations for a
specific nonattainment area in order to
establish that regulation of one or more
precursors is not necessary for
attainment in the nonattainment area at
issue.109 If the EPA approves a
comprehensive precursor demonstration
that shows that emissions of a particular
precursor does not contribute
significantly to PM2.5 levels that exceed
the NAAQS in an area, then the state is
not required to control emissions of the
relevant precursor from existing sources
in the current attainment plan.110
Accordingly, the state would not need
to address the precursor in order to meet
attainment plan requirements, including
RFP, in QMs and associated QM reports,
or be required to adopt contingency
measures to reduce the precursor at
issue.111
106 With respect to the contingency measures
being surplus to the RFP and attainment needs of
the San Joaquin Valley for the 1997 annual PM2.5
NAAQS, we are relying on the recent approval of
the RFP and attainment demonstrations in the
State’s 15 mg/m3 SIP Revision.
107 See generally 40 CFR 51.1009(a) and 40 CFR
51.1010(a).
108 40 CFR 51.1000.
109 40 CFR 51.1006(a).
110 40 CFR 51.1006(a)(1)(iii).
111 40 CFR 51.1009(a)(4)(i).
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For the San Joaquin Valley, as noted
in section V.B.1 of this proposed rule,
CARB and the District have concluded,
based on CARB modeling, that SOX,
VOCs, and ammonia are not significant
precursors for PM2.5 formation in the
San Joaquin Valley.112 The EPA has
considered, and approved, the State’s
precursor demonstrations with respect
to the 1997 annual, 2006 24-hour, and
the 2012 annual PM2.5 NAAQS in taking
action on the SIP submissions
applicable to each NAAQS.113
Therefore, we agree with CARB and the
District that the contingency measure
submissions for the 1997 annual, 2006
24-hour, and 2012 annual PM2.5 NAAQS
must address sources of direct PM2.5 and
NOX emissions but do not need to
address sources of SOX, VOCs, or
ammonia.
For the 2006 24-hour PM2.5 NAAQS,
the EPA approved the comprehensive
precursor demonstration that
established that SO2, VOCs, and
ammonia emissions do not contribute
significantly to PM2.5 levels that exceed
the 2006 24-hour PM2.5 NAAQS in the
San Joaquin Valley.114 In 2020, a
petition for review before the Ninth
Circuit Court of Appeals challenged the
EPA’s approval of the portions of the
2019 SIP submissions related to the
2006 24-hour PM2.5 NAAQS. In 2021,
the Court vacated the approval of
aggregate commitments to the extent
such commitments relied on
inadequately funded incentive-based
control measures and remanded to the
EPA for further consideration of the
aggregate commitments, and for further
proceedings consistent with the
decision, but denied the petition in all
other respects.115 The EPA’s approval of
the comprehensive precursor
demonstration was not the subject of the
court challenge. In light of the current
circumstances surrounding these
precursor demonstrations, the EPA
agrees that direct PM2.5 and NOX are the
appropriate pollutants for which
contingency measures are required in
the San Joaquin Valley for the 2006 24hour PM2.5 NAAQS.
112 See, e.g., SJV PM
2.5 Contingency Measure SIP,
Appendix G (Appendix C from the 2018 PM2.5
Plan), p. C–12.
113 EPA, ‘‘Air Quality State Implementation Plans;
Approvals and Promulgations: California; 1997
Annual Fine Particulate Matter Serious and Clean
Air Act Section 189(d) Nonattainment Area
Requirements; San Joaquin Valley, CA,’’ Final rule,
signed December 5, 2023; 85 FR 17382, 17390–
17396, finalized at 85 FR 44192; 86 FR 49100,
49107–49112, finalized at 86 FR 67343.
114 85 FR 17382, 17390–17396, finalized at 85 FR
44192.
115 Medical Advocates for Healthy Air v. EPA, No.
20–72780, Memorandum, Dkt. #58–1 (9th Cir. Apr.
13, 2022).
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b. Using Same Contingency Measures
for More Than One Triggering Event,
NAAQS
Under CAA section 172(c)(9), SIPs
must provide for the implementation of
specific contingency measures if the
area fails to meet RFP or to attain the
NAAQS by the applicable attainment
date. For PM2.5, there are four potential
triggering events: failure to meet any
RFP requirement, failure to submit a
QM report, failure to meet a QM, and
failure to attain the NAAQS by the
applicable attainment date.116
To meet the contingency measure
requirement, states may adopt different
measures for different triggering events
but are not required to do so. If the state
adopts the same set of contingency
measures for all the triggering events,
however, then the contingency
measures may all be implemented by
earlier-occurring triggering events
leaving no contingency measures for
potential later-occuring events. In that
case, if a state has no remaining
approved contingency measures, then
the EPA believes that states must adopt
and submit additional contingency
measures to be available for potential
later-occuring triggering events. The
potential for states to have used all
approved contingency measures, and
thus to lack contingency measures for
potential later-triggering events is
compounded by the reliance on the
same set of contingency measures for
more than one iteration of the PM2.5
NAAQS. Accordingly, while the EPA
might approve a SIP that relies on the
same contingency measures for multiple
potential triggering events, a SIP that
does so may be subject to the need for
future revision each time a triggering
event occurs.
As noted previously, CARB and the
District have submitted three
contingency measures, each of which
covers all three of the 1997 annual, 2006
24-hour, and 2012 annual PM2.5 NAAQS
(i.e., the same set of contingency
measures has been submitted to address
the contingency measure requirements
for more than one PM2.5 NAAQS). In
addition, each of the contingency
measures addresses each of the four
potential triggering events: failure to
meet any RFP requirement, failure to
submit a QM report, failure to meet a
QM, and failure to attain the NAAQS by
the applicable attainment date.117 As
noted previously, states may adopt
different measures for different
triggering events and different NAAQS,
but we do not believe that states are
116 40
117 40
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required to do so, and thus, we find that
the State’s reliance on the same set of
contingency measures for more than one
triggering event and more than one
NAAQS to be acceptable.
In this instance, two of the three
contingency measures—the Residential
Wood Burning Contingency Measure
and the Smog Check Contingency
Measure—include provisions that
would separately be implemented after
a second triggering event.118 Under
section 5.7.3 of Rule 4901, upon a first
triggering event, the No Burn (i.e.,
curtailment) thresholds for the five nonhot spot counties (Kings, Merced, San
Joaquin, Stanislaus, and Tulare) would
be lowered to match the tighter No Burn
thresholds for the three hot spot
counties (Fresno, Madera, and Kern)
(i.e., to 35 mg/m3 for registered devices
and to 12 mg/m3 for unregistered
devices). Upon a subsequent triggering
event (i.e., in response to a separate,
later determination by the EPA), the No
Burn threshold for unregistered
fireplaces and woodstoves for all eight
counties would be lowered from 12 mg/
m3 to 11 mg/m3.
Similarly, under the Smog Check
Contingency Measure, upon a first
triggering event, the Smog Check
exemption would be lowered from eight
or fewer model years old to seven or
fewer model years old. Upon a
subsequent triggering event (i.e., in
response to a separate, later
determination by the EPA), the Smog
Check exemption would be lowered
from seven or fewer model years old to
six or fewer model years old.
Therefore, after a first triggering event,
the State would have two remaining
SIP-approved contingency measures
that are not yet triggered as it develops
a SIP revision to meet the missed RFP
requirement or to correct ongoing
nonattainment. The EPA believes that
the State would need to assess whether
those two remaining contingency
measures were sufficient to meet the
contingency measure requirements in
that future time and, if necessary, adopt
and submit additional contingency
measures to be available for potential
later-occuring triggering events.
c. Magnitude of Emissions Reductions
As noted previously, neither the CAA
nor the EPA’s implementing regulations
establish a specific level of emission
reductions that implementation of
contingency measures must achieve, but
the EPA has recommended in existing
guidance that contingency measures
118 We note that the contingency provisions in
Rule 8051 would be fully implemented following a
first triggering event.
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should provide for emission reductions
equivalent to approximately one year of
reductions needed for RFP in the
nonattainment area.
Using the longstanding approach,
contingency measures should provide
for emissions reductions of
approximately one year’s worth of RFP
for each of the relevant PM2.5 NAAQS.
Under the approach described in the
EPA’s Draft Revised Contingency
Measure Guidance, the EPA has
suggested that contingency measures
provide for emissions reductions of
approximately one year’s worth of
progress for each of the relevant PM2.5
NAAQS rather than one year’s worth of
RFP.
We have reviewed the calculations in
the SJV PM2.5 Contingency Measure SIP,
as summarized in section V.B.1 of this
proposed rule, and find that the State
properly calculated one year’s worth of
RFP (as an interim step in calculating
one year’s worth of progress) and one
year’s worth of progress for each of the
relevant PM2.5 NAAQS in the San
Joaquin Valley.119 We have also
reviewed the calculations in the SJV
PM2.5 Contingency Measure SIP used to
compare the emissions reductions from
the Residential Wood Burning
Contingency Measure with one year’s
worth of progress and generally find
them to be acceptable with the
exception that the calculation includes
the emissions reductions from both
triggering events in the evaluation. Only
the emissions reductions from the first
trigger should be used because there is
no assurance that the additional
emissions reductions from the second
triggering event will provide emissions
reductions in the year or two following
the first triggering event.
We recognize that the calculations in
the SJV PM2.5 Contingency Measure SIP
relied upon an interpollutant trading
ratio of 6:1 (i.e., 6 tpd NOX for each
excess 1 tpd direct PM2.5) to convert
‘‘excess’’ PM2.5 emissions reductions to
equivalent NOX emissions reductions.
The technical basis of the interpollutant
trading ratio of 6:1 was provided in the
State’s 2021 Progress Report to the EPA
to support the State’s Serious area
attainment demonstration for the 2012
annual PM2.5 NAAQS. Specifically, the
State analyzed the relative effect of
reducing 30% direct PM2.5 (annual
average) emissions versus 30% NOX
119 With respect to the 2012 PM
2.5 NAAQS, we
agree with the calculation of one year’s worth of
progress in the SJV PM2.5 Contingency Measure SIP
that is based on the outermost RFP milestone year,
rather than the attainment year, because, as an area
for which an impracticability demonstration has
been approved, the attainment year has not yet been
established.
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88003
(annual average) emissions on ambient
annual average PM2.5 concentrations (as
modeled for 2024) at each regulatory
monitoring site in the San Joaquin
Valley using data from the precursor
sensitivity analyses in the 2018 PM2.5
Plan.120 While the 2021 Progress Report
was nominally for only the 2012 annual
PM2.5 NAAQS and corresponded to the
modeled 2025 attainment year in the
State’s Serious area plan for the 2012
annual PM2.5 NAAQS (later withdrawn
on October 27, 2022), we note that the
control strategy in the 2018 PM2.5 Plan
was built upon annual average
emissions inventories (e.g., for
demonstrating RFP) and applied in
common to the 1997, 2006, and 2012
PM2.5 NAAQS. Later, the 15 mg/m3 SIP
Revision for the 1997 annual PM2.5
NAAQS retained the annual average
emissions inventory basis for the control
strategy to attain that NAAQS and
continued to rely on the State’s
precursor sensitivity analyses. In other
words, there is a common foundation on
which CARB and the District selected
the 6:1 ratio.
As previously discussed, CARB and
the District examined several methods
for calculating the ratio based on
varying combinations of monitoring
sites. They concluded that 6:1 was a
conservative ratio as it was less than the
average ratio for the two sites (in Fresno
and Kern Counties) with the highest
modeled (annual average) ambient PM2.5
concentrations in 2025 (6.1:1), the
average ratio of the six sites (in Fresno,
Kern, Stanislaus, and Tulare Counties)
with modeled 2025 concentrations over
11.00 mg/m3 (6.4:1), and the average
ratio of the six sites (in Fresno, Kern,
Kings, and Tulare Counties) with a 2020
design value over 12 mg/m3 (6.6:1).121
We have reviewed the State’s
technical basis for the 6:1 interpollutant
trading ratio and find that it is a
reasonable ratio for purposes of
estimating the NOX equivalent of excess
direct PM2.5 emission reductions for
purposes of contingency measures in
the San Joaquin Valley for the 1997
annual, 2006 24-hour, and 2012 annual
PM2.5 NAAQS. First, the annual average
emissions inventory and integrated
120 See Appendix K (‘‘Modeling Attainment
Demonstration’’) of the 2018 PM2.5 Plan, including
Table 14 (annual average modeled emissions
inventory) and Table 49 (precursor sensitivity
analysis for annual average ambient PM2.5
concentration in 2024).
121 2021 Progress Report, Table 7 (‘‘Base and
Projected 2025 Annual Average Design Values Used
to Select/Prioritize Sites for Calculating an Average
Trading Ratio’’). At the time, the modeled 2025
concentrations corresponded to the attainment year
in the State’s Serious area plan for the 2012 annual
PM2.5 NAAQS, which was later withdrawn on
October 27, 2022.
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nature of attainment planning for the
three NAAQS provides a common
emissions and control strategy basis for
the ratios. Second, the ratios are based
on whole emissions inventories (rather
than, for example, only on-road
emissions inventories that might be
relevant to motor vehicle emission
budgets) and modeling for a near-term
year (2025), given that these
contingency measures would be
triggered no sooner than 2024.
Third, by examining several methods
that involve averaging across two to six
sites, including two methods that
include both hot spot and non-hot spot
counties, the State provides robustness
in the ratio (i.e., may better reflect the
effect of emission reductions from the
three contingency measures across sites
in the San Joaquin Valley). The
inclusion of non-hot spot counties in
two of the averaging methods is
important in that, upon a first triggering
event, the Residential Wood Burning
Contingency Measure—which is the
contingency measure that would
achieve emission reductions in excess of
one year’s worth of direct PM2.5
emission reductions—would lower the
No Burn (i.e., curtailment) thresholds
for the five non-hot spot counties
(Kings, Merced, San Joaquin, Stanislaus,
and Tulare) to match the tighter No
Burn thresholds for the three hot spot
counties (Fresno, Madera, and Kern).
Fourth, we agree with CARB and the
District that the selected 6:1 ratio is
conservative relative to the slightly
higher average ratios of 6.1:1, 6.4:1, and
6.6:1 from the methods that select sites
with relatively high modeled
concentrations, and relative to the ratio
of 8.1:1 at the modeled 2025 high site
of Bakersfield-Planz.122
The SJV PM2.5 Contingency Measure
SIP calculated the emissions reductions
only from the Residential Wood Burning
Contingency Measure because that was
the only adopted contingency measure
at the time, but the District and CARB
have since supplemented the
submission with two additional
contingency measures—the Rural Open
Areas Contingency Measure and the
Smog Check Contingency Measure. As
described in sections IV.A and IV.B of
this proposed rule, the EPA proposes to
approve the Residential Wood Burning
Continency Measure and the Rural
Open Areas Contingency Measure and,
in a separate rulemaking action, we are
proposing to approve the Smog Check
Contingency Measure. Table 2
summarizes the estimated emissions
reductions from these contingency
measures, as evaluated by the EPA.
TABLE 2—ANNUAL AVERAGE EMISSIONS REDUCTIONS FROM DISTRICT AND CARB CONTINGENCY MEASURES, tpd
1997 Annual PM2.5
NAAQS
2006 24-hour PM2.5
NAAQS
2012 Annual PM2.5
NAAQS
Contingency measure
Direct
PM2.5
NOX
Direct
PM2.5
NOX
Direct
PM2.5
NOX
District: Residential Wood Burning (first triggering event) ......................
District: Non-agricultural Rural Open Areas ............................................
CARB: Smog Check (first triggering event) .............................................
CARB: Effect of Moyer Program funding decrease in the San Joaquin
Valley if Smog Check Contingency Measure triggered .......................
0.5793
0.008
................
0.0817
................
0.117
0.5793
0.008
................
0.0817
................
0.120
0.5793
0.008
................
0.0817
................
0.086
................
(0.004)
................
(0.004)
................
(0.003)
Total ..................................................................................................
0.5873
0.1947
0.5873
0.1977
0.5873
0.1647
Table 3 presents the estimated
emissions reductions as percentages of
one year’s worth of RFP and one year’s
worth of progress both with and without
trading between direct PM2.5 and NOX
emissions. As noted previously in this
proposed rule, one year’s worth of RFP
is the longstanding recommendation by
the EPA to states regarding the
magnitude of emissions reductions that
contingency measures should be
capable of achieving. One year’s worth
of progress is the new recommendation
described in the EPA’s Draft Revised
Contingency Measure Guidance. In
addition, we are proposing to approve
the State’s trading ratio of 6:1 (i.e., 6 tpd
NOX for each excess 1 tpd direct PM2.5)
and to trade excess direct PM2.5
emission reductions, as evaluated by the
EPA, to substitute for a portion of the
shortfall in NOX emission reductions
compared to one year’s worth of RFP
and one year’s worth of progress.123 We
apply this trading ratio in our
calculations for all three PM2.5 NAAQS
considered in this proposed rule.
TABLE 3—EPA EVALUATION OF DISTRICT AND CARB CONTINGENCY MEASURES AS PERCENTAGE OF ONE YEAR’S WORTH
(OYW) OF RFP AND ONE YEAR’S WORTH OF PROGRESS
One year’s worth of RFP
PM2.5 NAAQS
Pollutant
1997 Annual ..............
Direct PM2.5 .............
NOX .........................
Direct PM2.5 .............
NOX .........................
Direct PM2.5 .............
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2006 24-hour .............
2012 Annual ..............
Reductions
target
122 We note that the interpollutant trading ratio of
6:1 compares favorably with the interpollutant
trading ratios that the EPA used recently in the
Agency’s proposed San Joaquin Valley PM2.5
contingency measure FIP. We provide our
evaluation of the interpollutant trading ratio in the
SJV PM2.5 Contingency Measure SIP relative to the
corresponding ratios in our proposed FIP in a
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% OYW
(no trading)
0.44
16.7
0.58
18.4
0.46
One year’s worth of progress
% OYW
(with trading) a
132
1.2
101
1.1
129
100
6.3
100
1.3
100
Memorandum to File from Rory Mays and Scott
Bohning, EPA Region IX, Subject: ‘‘Comparison of
California and EPA Interpollutant Trading Ratios
for Trading Excess Direct PM2.5 Emission
Reductions to NOX Equivalent Emission Reductions
for PM2.5 Contingency Measure Purposes in the San
Joaquin Valley,’’ December 2023.
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Reductions
target
0.41
7.9
0.52
6.7
0.43
% OYW
(no trading)
142
2.5
112
3.0
138
% OYW
(with trading) a
100
15.7
100
8.8
100
123 While this trading would not make up the
entire shortfall in NOX emission reductions, it gives
a sense for the magnitude of the relative ambient
effect of the excess direct PM2.5 emission reductions
towards meeting one year’s worth of RFP or one
year’s worth of progress.
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TABLE 3—EPA EVALUATION OF DISTRICT AND CARB CONTINGENCY MEASURES AS PERCENTAGE OF ONE YEAR’S WORTH
(OYW) OF RFP AND ONE YEAR’S WORTH OF PROGRESS—Continued
One year’s worth of RFP
PM2.5 NAAQS
Pollutant
Reductions
target
NOX .........................
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a The
% OYW
(no trading)
15.3
One year’s worth of progress
% OYW
(with trading) a
1.1
Reductions
target
6.3
8.7
% OYW
(no trading)
% OYW
(with trading) a
1.9
13.1
EPA has calculated % OYW (With Trading) for NOX based on the 6:1 ratio presented in the SJV PM2.5 Contingency Measure SIP.
As shown in Table 2, the sum of the
emissions reductions from the three
contingency measures is approximately
0.5873 tpd direct PM2.5 and ranges from
0.1647 tpd to 0.1977 tpd NOX,
depending on the particular PM2.5
NAAQS. Without taking into account
the substitution principle, these
reductions would exceed one year’s
worth of RFP for direct PM2.5 and
provide a portion of one year’s worth of
RFP for NOX for the 1997 annual PM2.5
NAAQS, 2006 24-hour PM2.5 NAAQS,
and the 2012 annual PM2.5 NAAQS, as
shown in Table 3. With respect to one
year’s worth of progress, these
reductions would similarly exceed one
year’s worth of progress for direct PM2.5
and provide a portion of one year’s
worth of progress for NOX for all three
PM2.5 NAAQS, as shown in Table 3.
Taking into account the substitution
principle, under which, in this case,
excess direct PM2.5 emissions are
substituted for a shortfall in NOX
emissions, the reductions would
amount to 100% of one year’s worth of
RFP for direct PM2.5 and the following
amounts of one year’s worth of RFP for
NOX for each NAAQS: 1997 annual
PM2.5 NAAQS (6.3%), 2006 24-hour
PM2.5 NAAQS (1.3%), and 2012 annual
PM2.5 NAAQS (6.3%). Similarly, the
reductions would amount to 100% of
one year’s worth of progress for direct
PM2.5 and the following amounts of one
year’s worth of progress for NOX for
each NAAQS: 1997 annual PM2.5
NAAQS (15.7%), 2006 24-hour PM2.5
NAAQS (8.8%), and 2012 annual PM2.5
NAAQS (13.1%).
While our estimates of the emissions
from the contingency measures relative
to one year’s worth of RFP or progress
differ in some respects from those
contained in the SJV PM2.5 Contingency
Measure SIP, our conclusion is the same
as the conclusion drawn by the District
and CARB, namely, that the emissions
reductions would provide for one year’s
worth of RFP or progress for direct PM2.5
but would provide only a portion of one
year’s worth of RFP or progress for NOX.
Thus, we would expect the State to
provide a ‘‘reasoned justification’’ to
support approval of the contingency
measures as meeting the requirements
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under CAA section 172(c)(9) and 40
CFR 51.1014 for the nonattainment area
even though the contingency measures
would not provide for the magnitude of
emissions reductions recommended by
the EPA to comply with the
requirements. The District and CARB
have included their reasoned
justifications in the form of feasibility
analyses included as chapters 4 and 5 of
the SJV PM2.5 Contingency Measure SIP,
respectively. We provide our review of
the feasibility analyses in the following
section of this document.
2. Contingency Measure Feasibility
Analyses
The EPA has reviewed the State’s
infeasibility demonstrations for not
adopting contingency measures beyond
the residential wood burning, rural open
areas, and Smog Check contingency
measures, including both the process
used by the State and its assessment
specific to a wide range of stationary,
area, and mobile source categories.124
Notably, in connection with the EPA’s
proposed contingency measure FIP for
the San Joaquin Valley, the EPA
recently prepared a detailed evaluation
of source categories and measures that
we considered as potential additional
contingency measures but determined to
be infeasible or otherwise unsuitable for
contingency measures. See ‘‘EPA Source
Category and Control Measure
Assessment and Reasoned Justification
Technical Support Document, Proposed
Contingency Measures Federal
Implementation Plan for the Fine
Particulate Matter Standards for San
Joaquin Valley, California,’’ July 2023
(‘‘EPA’s Reasoned Justification TSD’’).
We have relied heavily on that TSD
given its breadth and depth, as well as
the expertise of EPA Region IX staff, to
review the State’s infeasibility
demonstration, understand where the
State’s and the EPA’s analyses draw
largely similar conclusions, and identify
those source categories where the
control measure analyses differ. As
described in the following paragraphs,
the EPA proposes to find that the State’s
124 Our
summaries of the infeasibility
demonstrations are found in section V.B.2 of this
document.
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infeasibility demonstrations adequately
justify the contingency measures
selected by the State to meet the
contingency measure requirement under
CAA section 172(c)(9) and 40 CFR
51.1014 for the San Joaquin Valley for
the 1997 annual, 2006 24-hour, and
2012 annual PM2.5 NAAQS.
In terms of process, both CARB and
the District identified and evaluated
existing and potential control measures
using components of the process
recommended in the EPA’s Draft
Revised Contingency Measures
Guidance,125 even if not necessarily in
the same sequence as those
recommended by the EPA. As described
in section V.B.2 of this proposed rule,
for the wide range of stationary and area
sources under its jurisdiction, the
District described their 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.126 The District also provided
more in-depth analysis of potential
control measures for five source
categories, ultimately adopting
measures for two source categories
(wood burning fireplaces and wood
burning heaters and rural open areas)
and providing a reasoned justification
for not adopting such measures for the
other three source categories
(commercial charbroiling, almond
harvesting, and oil and gas production
combustion equipment). We find that
the District employed a reasonable
process to identify and assess the
feasibility and suitability of potential
control measures as contingency
measures for stationary and area sources
in the San Joaquin Valley.
Similarly, as described in section
V.B.2 of this proposed rule, CARB
identified potential mobile source
control measures, assessed whether
125 EPA’s Draft Contingency Measure Guidance,
section 4 (‘‘Reasoned Justification for Less Than
[One Year’s Worth] of Progress’’).
126 SJV PM
2.5 Contingency Measure SIP, pp. 9–11.
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each candidate measure could be
implemented within 60 days of a
triggering event and emission
reductions achieved within one to two
years, and then analyzed their
technological and/or economic
feasibility.127 Regarding timing of
emission reductions from mobile
sources, CARB concludes 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.
As described in the EPA’s Reasoned
Justification TSD,128 as a general matter,
new mobile source engine or vehicle
emission standards require significant
lead time (more than two years) to allow
manufacturers time to retool factories to
produce compliant engines or vehicles.
Retrofit or replacement requirements
also require significant lead time to
allow owners and operators to manage
the process of retrofitting or replacing
old engines or vehicles. Therefore, we
agree with CARB that such mobile
source control measures would not
achieve emission reductions within one
to two years of a contingency measure
triggering event. Overall, we find that
the CARB employed a reasonable
process to identify and assess the
feasibility and suitability of potential
control measures as contingency
measures for mobile sources in the San
Joaquin Valley and in California more
broadly.129
Beyond the analytical components
employed by CARB and the District that
mirror those recommended by the EPA,
CARB and the District also evaluated
whether they could develop, adopt, and
secure EPA approval of SIP
submissions, including additional
contingency measures, meeting the
contingency measure requirements,
prior to the September 30, 2024 consent
decree deadline for the EPA to
promulgate a contingency measures FIP
for San Joaquin Valley for the 1997
annual, 2006 24-hour and 2012 PM2.5
127 SJV PM
2.5 Contingency Measure SIP, section
5.3 (‘‘Measure Analysis’’); and Smog Check
Contingency Measure, Appendix A (‘‘Infeasibility
Analysis’’).
128 EPA’s Reasoned Justification TSD, pp. 143–
144.
129 We note that the EPA’s Reasoned Justification
TSD contains additional information that presents
a comprehensive summary of the emissions
inventories for direct PM2.5 and NOX in the San
Joaquin Valley, as well as consideration of past
recommendations of new control measures or
improvements to existing control measures by the
EPA and community and environmental groups
(whether for purposes of RACM/RACT, BACM/
BACT, MSM, attainment and RFP demonstrations,
or contingency measures).
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NAAQS.130 The EPA finds that such
considerations, while important in the
broader context of environmental
regulation and sanctions in the San
Joaquin Valley, are not appropriate for
evaluating the feasibility or suitability of
potential control measures as
contingency measures. Even absent final
guidance from the EPA, states are
required to adopt and submit
contingency measures within the
timelines established by the CAA in
response to EPA actions, including
disapproval of prior contingency
measure submissions, as was the case
here, effective December 27, 2021.131 In
this instance, however, neither CARB
nor the District relied upon the inability
to adopt contingency measures and
secure EPA approval by the consent
decree deadline as the sole justification
for not adopting additional contingency
measures for any of the relevant source
categories.
In addition, in certain instances, the
District states that the robust public
process necessary to develop and adopt
control measures would take more than
two years,132 while CARB states that a
state-wide regulatory measure typically
needs five years to develop and
adopt,133 and therefore fall outside the
one to two-year timeframe
recommended in the EPA’s Draft
Revised Contingency Measures
Guidance. While we certainly
appreciate the importance of robust
public process in developing control
measures, inclusive of public process
requirements in the CAA and the
Administrative Procedures Act, the EPA
finds that such timing considerations
are not appropriate for assessing the
feasibility of potential control measures
as contingency measures. As previously
noted, states are required to adopt and
submit contingency measures within the
timelines established by the CAA in
response to EPA actions, including
disapproval of prior contingency
measure submissions.
For each of the stationary and area
source categories examined, the EPA
agrees with the District’s determination
that additional control measures cannot
feasibly reduce emissions within one to
two years. We first describe those source
categories where we agree with the
bases presented by the District. Then we
discuss those source categories where
the basis of the EPA’s conclusion differs
from that of the District, even while the
130 SJV PM
2.5 Contingency Measure SIP, pp. 12–
25 and pp. 57–58.
131 86 FR 67329 and 86 FR 67343.
132 SJV PM
2.5 Contingency Measure SIP, section
4.2 (‘‘District Feasibility Analysis’’).
133 SJV PM
2.5 Contingency Measure SIP, 57.
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conclusion itself is the same—that the
additional control measure evaluated
cannot feasibly reduce emissions within
one to two years.
The District’s analyses and
conclusions were substantially the same
as those of the EPA for the following
source categories: open burning and
prescribed/hazard burning (Rules 4103
and 4106), cotton gins (Rule 4204), fuel
burning equipment (Rule 4301), flares
(Rule 4311), lime kilns (Rule 4313; none
operate in the San Joaquin Valley), solid
fuel-fired boilers, steam generators, and
process heaters (Rule 4352), glass
melting furnaces (Rule 4354), asphalt
paving and maintenance (Rule 4641; a
VOC rule), internal combustion engines
(Rule 4702), stationary gas turbines
(Rule 4703), residential wood burning
(Rule 4901, excluding the Residential
Wood Burning Contingency Measure
submitted as amendments to the rule),
and fugitive dust (Regulation VIII,
excluding the Rural Open Areas
Contingency Measure submitted as
amendments to Rule 8051).134
We note that the candidate control
measures evaluated for certain sources,
such as internal combustion engines,
stationary gas turbines, boilers, steam
generators, and process heaters, would
require installation of costly and
engineering-intensive devices (e.g., oxyfuel fired furnaces and natural gas
furnaces equipped with selective
catalytic reduction (SCR) for glass
melting). As described in the EPA’s
Reasoned Justification TSD, while these
technologies may be available and
feasible in some contexts, we found that
it would be technologically infeasible
for these measures to be implemented
and achieve meaningful emission
reductions within one to two years.135
Thus, we agree with the District’s
determinations that such measures
would be technologically infeasible in
the context of contingency measures at
this time.
We note that the EPA’s Reasoned
Justification TSD does not present an
evaluation of potential contingency
measures specifically related to District
Rules 4301, 4309, and 4352 and, thus,
134 We note that, in responding to comments
received during the public review of the SJV PM2.5
Contingency Measure SIP and Residential Wood
Burning Contingency Measure, the District states
that, while there are limited opportunities for
contingency measures, the District ‘‘will consider
additional wood burning curtailments as part of
control measure analyses for upcoming [SIPs].’’ SJV
PM2.5 Contingency Measure SIP, Appendix J
(‘‘Comments and Responses’’), p. J–4. See also
EPA’s Reasoned Justification TSD, section G.1
(‘‘Residential Fuel Combustion’’).
135 See, e.g., EPA’s Reasoned Justification TSD,
pp. 9–22 (the EPA’s evaluation of contingency
measures for boilers, steam generators, and process
heaters).
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we provide our review and evaluation
in this document. With respect to fuel
burning equipment (Rule 4301), the SJV
PM2.5 Contingency Measure SIP notes
that the District has adopted more
stringent NOX requirements for specific
types of fuel burning equipment that
supersede Rule 4301.136 Potential
contingency measures for emission
sources related to Rule 4301 are covered
in the EPA’s evaluation of Rules 4306,
4307, 4308, 4309, 4320, and 4352. Our
assessments of Rules 4309 and 4352 are
contained in the following paragraphs.
With respect to dryers, dehydrators,
and ovens (related to Rule 4309), the
District considered controls such as low
NOX burners and determined that such
technology could not feasibly be
implemented within the two-year
timeframe for contingency measures for
this category, includes further
discussion in appendices F and G of the
SJV PM2.5 Contingency Measure SIP
(i.e., copies of the stationary and area
source control evaluations for the 2022
Ozone Plan 137 and the 2018 PM2.5 Plan,
respectively), and states that, in certain
applications (e.g., dehydrators for
onions), may have an adverse effect on
food product quality.138 We have
reviewed the District’s infeasibility
demonstration and agree that emissions
reductions for this category could not
feasibly be achieved within one to two
years, and are therefore not suitable for
contingency measures. As discussed in
Appendix F of the SJV PM2.5
Contingency Measure SIP, South Coast
Air Quality Management District
(AQMD) has recently revised and
divided its rules for comparable sources,
including amendments to NOX limits,
that are difficult to compare to Rule
4309 given their distinct applicability
and provisions (e.g., whether limits are
differentiated by operating temperature).
The EPA recommends that the District
continue to evaluate dryers,
dehydrators, and ovens for
opportunities to further reduce NOX
emissions (and, as applicable, PM2.5
emissions) in developing subsequent
plans.
With respect to Rule 4352, the State’s
submittal notes that the District adopted
amendments to Rule 4352 in December
2021, and District analysis associated
with the 2021 amendments to Rule 4352
found that all control alternatives that
would further reduce emissions require
technology that had prohibitively high
capital costs and were not cost
136 SJV
PM2.5 Contingency Measure SIP, pp. 13–
14.
137 SJVUAPCD,
‘‘2022 Plan for the 2015 8-hour
Ozone Standard,’’ adopted December 15, 2022.
138 SJV PM
2.5 Contingency Measure SIP, p. 16.
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effective,139 and have not been widely
implemented at facilities subject to Rule
4352. Given these reasons and given
that the emission limits included in the
2021 amendments to Rule 4352 are
lower than those of other districts’ rules,
we agree with the District’s conclusion
with respect to Rule 4352.
For several other source categories,
the EPA finds that the contingency
measure analyses by the District and the
EPA differ in certain respects that
warrant further discussion.
Notwithstanding these differences, both
the District’s analyses and the EPA’s
analyses supporting our recent
contingency measure FIP proposal
support the conclusion that the
measures evaluated cannot feasibly
reduce emissions within one to two
years. We discuss each of these cases in
the paragraphs that follow.
With respect to residential water
heaters (Rule 4902) and residential
furnaces (Rule 4905), the District
evaluated a contingency measure option
to adopt electrification requirements
(i.e., requiring newly purchased
furnaces and water heaters to be zeroemission units) earlier than a
commitment by CARB to develop a
state-wide building electrification
measure that would achieve emission
reductions starting in 2030.140 The
District deemed this contingency
measure option infeasible, citing the
lead time necessary for manufacturers to
design and produce electric units, the
need for collaboration with energy and
building code regulators, consistency
with State and local efforts,
consideration of housing cost and
affordability impacts, and equity
considerations for low-income and
environmental justice communities.141
While we note that certain aspects of
these factors do not necessarily align
with the feasibility criteria outlined in
the EPA’s Draft Revised Contingency
Measures Guidance,142 the EPA
determined that the building
electrification contingency measure
option would not be feasible because we
expect that it would result in negligible
emissions reductions within two years
after trigger,143 consistent with the
District’s suggestion that the attrition139 SJVUAPCD, ‘‘Appendix C, Cost Effectiveness
Analysis for Proposed Amendments to Rule 4352
(Solid Fuel Fired Boilers, Steam Generators, and
Process Heaters,’’ December 16, 2021.
140 SJV PM
2.5 Contingency Measure SIP, 20–22.
141 For further discussion of these factors, see
CARB, ‘‘2022 State Strategy for the State
Implementation Plan,’’ adopted September 22,
2022, pp. 101–103 (‘‘Proposed Measures:
Residential and Commercial Buildings’’).
142 EPA’s Draft Revised Contingency Measures
Guidance, pp. 35–38.
143 EPA’s Reasoned Justification TSD, pp. 43–51.
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based nature of implementation of this
contingency measure option deem the
measure infeasible. The EPA also
recommended that the District consider
developing control measures or
programs that would incentivize the
early replacement of existing gas space
and water heaters with electric
appliances, as such actions could
significantly reduce emissions from this
significant source category in the longerterm future.
With respect to commercial
charbroiling (Rule 4692), the District
noted that particulate matter control
devices are required to be installed and
operated on chain-driven commercial
charbroilers under Rule 4692. The
District evaluated a contingency
measure option involving the
requirement of particulate matter
controls on underfired charbroilers. The
District’s evaluation includes a detailed
cost analysis, concluding that
underfired charbroiler contingency
measure option is infeasible based on
high costs of installation and
maintenance, technological infeasibility
considerations, lack of availability of
specialized staff at restaurants, control
equipment fire safety certification
concerns, and the lack of demonstrated
controls in areas that have adopted
underfired charbroiling control
measures.144 The District also described
ongoing and upcoming efforts to
advance underfired charbroiler
emissions control technology and
demonstrate its performance in practice.
The EPA’s evaluation did not present
cost information to conclude that an
underfired charbroiling contingency
measure would be economically
infeasible, and we did not include the
same considerations regarding lack of
availability of specialized staff at
restaurants and other technological
feasibility concerns presented by the
District. However, the EPA determined
that an underfired charbroiling
contingency measure would be
infeasible based on fire safety
certification concerns and lack of
demonstrated implementation of
controls.145 In addition to
recommending that the District and
CARB collaborate with control
technology manufacturers and industry
to develop effective methods for
reducing the commercial cooking
industry’s impact on public health, the
EPA strongly encouraged the District to
expand its Restaurant Charbroiler
144 SJV
PM2.5 Contingency Measure SIP, pp. 32–
41.
145 EPA’s
Reasoned Justification TSD, pp. 131–
136.
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Technology Partnership program
beyond hot spot counties.
With respect to conservation
management practices (Rule 4550), the
District describes its commitment in the
2018 PM2.5 Plan to evaluate emission
reduction opportunities for sources in
this category (e.g., emission reductions
from fallowed lands and promotion of
selection of conservation tillage as a
conservation management practice
[CMP]), explaining that rule
development is ongoing and describing
Rule 4550 as an ‘‘on-the-way’’
measure.146 We acknowledge the
ongoing efforts by the District to pursue
emission reductions from these
sources,147 although we note that the
District’s use of the ‘‘on-the-way’’ term
differs from its usage in the Draft
Revised Contingency Measures
Guidance, where the EPA defines ‘‘onthe-way’’ measures as ‘‘the control
measures in the nonattainment plan that
will be implemented during the
upcoming planning period’’ (i.e.,
adopted measures whose
implementation is forthcoming in the
near-term).148 However, the EPA
conducted its own evaluation of Rule
4550, finding that Rule 4550 contains
conservation management practice
options that are comparable with the
rules identified in other jurisdictions
and generally contain the same control
measures required in other
jurisdictions.149
The District also presented an
evaluation of dust emissions from
almond harvesting, concluding that a
contingency measure requiring the
replacement of conventional harvesting
technology with low dust harvesting
technology would be infeasible based on
long lead times needed to meet
significant increased demand generated
by such a measure, prohibitively high
cost of equipment, and the need to
conduct additional research to better
understand the changing landscape in
harvesting techniques and associated
emissions.150 The EPA’s evaluation
determined that such a measure would
be infeasible based only on the timing
of emissions reductions; while the EPA
presented cost effectiveness information
for low dust almond harvesters,151 the
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146 SJV
PM2.5 Contingency Measure SIP, pp. 23–
24.
147 See,
e.g., SJVUAPCD, ‘‘Public Workshop for
Potential Amendments to District Rule 4550
(Conservation Management Practices),’’ November
7, 2022 (workshop presentation).
148 EPA’s Draft Revised Contingency Measure
Guidance, p. 32.
149 EPA’s Reasoned Justification TSD, pp. 86–90.
150 SJV PM
2.5 Contingency Measure SIP, pp. 41–
43.
151 EPA’s Reasoned Justification TSD, chapter V.
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EPA did not determine that a low dust
harvester replacement contingency
measure would be economically
infeasible, nor did we determine that
any work needed to understand the
emissions profile of low dust nut
harvesters would disqualify a potential
low dust harvester replacement
contingency measure.152
With respect to oil and gas production
combustion equipment (related to
District Rules 4306 and 4320), the
District evaluated numerous control
options including direct control of PM2.5
(e.g., electrostatic precipitators or
venturi scrubbers), electrification of
oilfield steam generators, and solar
powered oilfield steam generators.153
For each of these options, the District
provided technological and/or economic
feasibility considerations deeming each
option infeasible as a contingency
measure. The District also evaluated
lower emission limits for boilers and
steam generators.154 In this evaluation,
the District explained that the EPA has
determined that Rule 4306 meets MSM
requirements and that Rule 4320 goes
beyond MSM by establishing even lower
emissions limits. The District noted that
equipment operators are already in the
process of investing in and installing
technology to meet the recently
amended Rule 4320 limits and suggests
that the time needed to plan and
prepare for installation of control
equipment to meet lower limits would
exceed the one- to two-year timeline for
a contingency measure to achieve
emissions reductions. The District also
claims numerous technological
feasibility considerations associated
with lowering emission limits for this
category. While the District describes a
‘‘lack of EPA recognized SIP-creditable
emissions reductions from Rule 4320’’
due to the technology advancing nature
of Rule 4320,155 the EPA would
recognize SIP-creditable emission
reductions for this category if provided
with the appropriate information such
as records of the number of units
complying with Rule 4320 NOX
emission limits and their associated
emissions.156
152 EPA’s
153 SJV
Reasoned Justification TSD, p. 95.
PM2.5 Contingency Measure SIP, pp. 44–
47.
154 SJV
PM2.5 Contingency Measure SIP, pp. 47–
49.
155 SJV
PM2.5 Contingency Measure SIP, p. 49.
also, EPA Region IX, ‘‘Technical Support
Document for EPA’s Notice of Proposed
Rulemaking for the California State Implementation
Plan, San Joaquin Valley Unified Air Pollution
Control District’s Rule 4320, Advanced Emission
Reduction Options for Boilers, Steam Generators,
and Process Heaters Greater than 5.0 MMBtu/hr),’’
August 19, 2010, p. 8.
156 See
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The EPA’s evaluation focused on
lowering emission limits for boilers and
steam generators, including
identification of lower emission limits
adopted by the South Coast AQMD for
oilfield steam generators than those
adopted in Rule 4306. While the EPA’s
evaluation does not claim that control
requirements required to meet the lower
limits would be technologically
infeasible altogether (in light of the
lower limits adopted by South Coast
AQMD), we 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 SCR to meet
the lower limits.
The District also included evaluations
for boilers, steam generators, and
process heaters in general covered by
District Rules 4307 and 4308.157 The
District’s assessments for these rules
focus on economic and technological
feasibility, citing dollar per ton cost
effectiveness values for numerous
control options and adding
technological feasibility concerns for
SCONOx/EMx units. The EPA’s
evaluation for boilers in general does
not provide cost effectiveness values to
suggest that lower emission limits for
boilers, steam generators, and process
heaters are economically infeasible.
However, as described in the EPA’s
evaluation, we expect 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.158
Similar to our evaluation of the
District’s feasibility analysis, we have
evaluated CARB’s feasibility analysis, in
part, by comparing the bases and
conclusions of the State’s analysis
against those presented in the EPA’s
Reasoned Justification TSD.159 Both
CARB and the EPA note the importance
of mobile source emissions in the San
Joaquin Valley, particularly given that
the large majority of NOX emissions are
from mobile sources, and describe the
breadth of control measures considered
by CARB to reduce direct PM2.5 and
NOX emissions for broader CAA
purposes in the San Joaquin Valley.
These include new vehicle and engine
emission standards, for both on-road
and non-road applications, which
generally apply to manufacturers and
157 SJV
PM2.5 Contingency Measure SIP, pp. 14–
16.
158 EPA’s
Reasoned Justification TSD, pp. 9–22.
Reasoned Justification TSD, section H
(‘‘Mobile Sources’’).
159 EPA’s
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achieve emission reductions through
vehicle turnover; retrofit or replacement
requirements for existing vehicles and
fleets; and inspection and maintenance
(I/M) program requirements, such as
those implemented under California’s
Smog Check program for light-duty
passenger cars and trucks, and those
entering implementation under
California’s Heavy-Duty I/M program.
We agree that the adopted measures and
on-going development of mobile sources
measures by CARB, including zeroemission standards, further constrain
the opportunities for additional
emission reductions via contingency
measures.160
With respect to contingency measure
requirements, CARB examined potential
controls across the wide range of mobile
source categories, including on-road
light-duty passenger cars, trucks, and
motorcycles; medium- and heavy-duty
trucks and buses and transportation
refrigeration units; commercial harbor
craft, recreational boats, and ocean
going vessels; off-road industrial,
construction, and mining equipment;
airport ground equipment, port and rail
operations, and locomotives; lawn and
garden equipment; and space and water
heaters. The potential controls
considered include pulling forward
compliance dates and/or phase-in
requirements; setting more stringent
standards (often atop recently tightened
standards) through mechanisms such as
emission standards, emissions caps,
thresholds for compliance, testing
frequency, making optional standards
required, or percentage of sales
requirements; and removing exemptions
and/or compliance options. In virtually
all cases, CARB found that control
measures beyond those already adopted
or in development to fulfill
commitments (e.g., under the 2022 State
SIP Strategy) were not technologically
feasible.161 In all cases (except the
160 EPA’s Reasoned Justification TSD, pp. 139–
142. See also, SJV PM2.5 Contingency Measure SIP,
pp. 53–56; and Smog Check Contingency Measure,
pp. 8–10.
161 There were three measures that CARB
indicated as technologically feasible. One is the
Smog Check Contingency Measure that CARB has
adopted and submitted to the EPA. A second was
a different Smog Check measure that would add
requirements for only high mileage vehicles;
however, CARB found that the compliance burden
would disproportionately fall on low-income
populations and disadvantaged communities. SJV
PM2.5 Contingency Measures SIP, p. 59. The third
was to increase the testing frequency under the
Heavy-Duty I/M program; however, CARB found
that the compliance burden would
disproportionately fall on small businesses and
low-income populations. SJV PM2.5 Contingency
Measure SIP, p. 62 and Appendix A, p. 49. In the
latter two cases, CARB also found that, even if the
measure were technologically feasible, the measures
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adopted Smog Check Contingency
Measure), CARB found that the
measures were not suitable for
contingency measures due to lead time
to develop, certify, adopt, and/or
implement measures that could not be
implemented within 60 days of a
triggering event and achieve emission
reductions within one year of the
triggering event.
We have reviewed CARB’s specific
control measure analyses and agree that
such potential control measures are not
feasible within the timeframe necessary
for contingency measures and, in many
cases, are not technologically feasible to
the extent that they build upon on-thebooks and on-the-way measures that are
technology- or market-forcing.
Consistent with our evaluation
presented in the EPA’s Reasoned
Justification TSD,162 the EPA has not
identified any engine or vehicle
emission standards for consideration as
contingency measures. Beyond the wide
range of source types and control
approaches examined by CARB, the
EPA also examined a handful of
potential additional controls and
concluded that they too were not
suitable as contingency measures,
including expansion of Enhanced I/M
requirements to areas currently subject
to Basic I/M or Partial Enhanced I/M
requirements in the San Joaquin
Valley,163 provisions to expand the
applicability of and add requirements to
District Rule 9510 (‘‘Indirect Source
Review’’),164 and additional
transportation control measures.165
Therefore, we propose to find that
CARB’s infeasibility demonstration
adequately justifies the contingency
measures selected by CARB for the San
Joaquin Valley for the 1997 annual,
2006 24-hour and 2012 annual PM2.5
NAAQS.
could not be effectuated within the timeframe
necessary for contingency measures.
162 EPA’s Reasoned Justification TSD, pp. 138–
144.
163 EPA’s Reasoned Justification TSD, section
IV.E. In addition, CARB noted in its comment letter
on the EPA’s proposed contingency measure FIP
that, under the I/M measure evaluated by the EPA,
50% of the vehicles that would be newly subject to
Enhanced I/M would be in disadvantaged
communities whereas only 35% of San Joaquin
Valley population live in such disadvantaged
communities. Letter dated September 22, 2023,
from Steven S. Cliff, Ph.D., Executive Officer, CARB
to Martha Guzman, Regional Administrator, EPA
Region IX. In other words, the compliance burden
would disproportionately fall on low-income
populations and disadvantaged communities.
164 EPA’s Reasoned Justification TSD, section
IV.B.
165 EPA’s Reasoned Justification TSD, pp. 144–
146.
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3. Conclusion
Based on our review and proposed
approval of the three contingency
measures submitted by the State that
would achieve the full one year’s worth
of emission reductions for direct PM2.5
and a portion of one year’s worth of
emission reductions for NOX (whether
using the longstanding RFP method or
the new progress method) and our
review of and proposed finding that the
State’s infeasibility demonstrations
adequately justify the selection of the
three contingency measures, we propose
to approve the SJV PM2.5 Contingency
Measures SIP, the Residential Wood
Burning Contingency Measure, the
Rural Open Areas Contingency Measure,
and the Smog Check Contingency
Measure (as applied to the San Joaquin
Valley) as meeting the contingency
measure requirements of CAA section
172(c)(9) and 40 CFR 51.1014 for the
1997 annual, 2006 24-hour, and 2012
annual PM2.5 NAAQS in the San Joaquin
Valley.
VI. Environmental Justice
Considerations
Executive Order 12898 (59 FR 7629,
February 16, 1994) requires that federal
agencies, to the greatest extent
practicable and permitted by law,
identify and address disproportionately
high and adverse human health or
environmental effects of their actions on
minority and low-income
populations.166 To identify
environmental burdens and susceptible
populations in underserved
communities in the San Joaquin Valley
nonattainment area and to better
understand the context of our proposed
action on these communities, we
conducted a screening-level analysis for
PM2.5 in the San Joaquin Valley using
the EPA’s environmental justice (EJ)
screening and mapping tool
(‘‘EJSCREEN’’).167 The results of this
analysis are being provided for
informational and transparency
purposes.
Our screening-level analysis indicates
that all eight counties in the San Joaquin
166 59
FR 7629 (February 16, 1994).
provides a nationally consistent
dataset and approach for combining environmental
and demographic indicators. EJSCREEN is available
at https://www.epa.gov/ejscreen/what-ejscreen. The
EPA used EJSCREEN to obtain environmental and
demographic indicators representing each of the
eight counties in the San Joaquin Valley. We note
that the indicators for Kern County are for the entire
county. While the indicators might have slightly
different numbers for the San Joaquin Valley
portion of the county, most of the county’s
population is in the San Joaquin Valley portion, and
thus the differences would be small. These
indicators are included in EJSCREEN reports that
are available in the rulemaking docket for this
action.
167 EJSCREEN
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Valley score above the national average
for the EJSCREEN ‘‘Demographic Index’’
(i.e., ranging from 48% in Stanislaus
County to 61% in Tulare County,
compared to 36% nationally).168 169 The
Demographic Index is the average of an
area’s percent minority and percent low
income populations, i.e., the two
populations explicitly named in
Executive Order 12898.170 All eight
counties also score above the national
average for demographic indices of
‘‘linguistically isolated population’’ and
‘‘population with less than high school
education.’’
With respect to pollution, all eight
counties (Fresno, Kern, Kings, Madera,
Merced, San Joaquin, Stanislaus, and
Tulare) score at or above the 97th
percentile nationally for the PM2.5 index
and seven of the eight counties in the
San Joaquin Valley score at or above the
90th percentile nationally for the PM2.5
EJ index (i.e., each county except
Stanislaus County, which scores at the
87th percentile nationally), which is a
combination of the Demographic Index
and the PM2.5 index.171 Most counties
also scored above the 80th percentile for
each of 11 additional EJ indices
included in the EPA’s EJSCREEN
analysis. In addition, several counties
scored above the 90th percentile for
certain EJ indices, including, for
example, the Ozone EJ Index (Fresno,
Kern, Madera, Merced, and Tulare
Counties), the National Air Toxics
Assessment (NATA) Respiratory Hazard
EJ Index (Madera and Tulare Counties),
and the Wastewater Discharge Indicator
168 EPA Region IX, ‘‘EJSCREEN Analysis for the
Eight Counties of the San Joaquin Valley
Nonattainment Area,’’ August 2022.
169 By comparison, the eight counties score above
the State average for the EJSCREEN ‘‘Demographic
Index’’ (i.e., ranging from 52% in Stanislaus County
to 71% in Tulare County, compared to 47% in
California).
170 EJSCREEN reports environmental indicators
(e.g., air toxics cancer risk, Pb paint exposure, and
traffic proximity and volume) and demographic
indicators (e.g., people of color, low income, and
linguistically isolated populations). The score for a
particular indicator measures how the community
of interest compares with the state, the EPA region,
or the national average. For example, if a given
location is at the 95th percentile nationwide, this
means that only five percent of the U.S. population
has a higher value than the average person in the
location being analyzed. EJSCREEN also reports EJ
indexes, which are combinations of a single
environmental indicator with the EJSCREEN
Demographic Index. For additional information
about environmental and demographic indicators
and EJ indexes reported by EJSCREEN, see EPA,
‘‘EJSCREEN Environmental Justice Mapping and
Screening Tool—EJSCREEN Technical
Documentation,’’ section 2 (September 2019).
171 By comparison, two counties score at or above
the 97th percentile in California for the PM2.5 index
and five counties score at or above the 80th
percentile in California for the PM2.5 EJ index
(rather than seven of eight counties that score at or
above the 90th percentile nationally).
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EJ Index (Merced, San Joaquin,
Stanislaus, and Tulare Counties).172
We have considered the geographic
scope of each of the contingency
measures that the EPA proposes to
approve herein on PM2.5 concentrations
in each county of the San Joaquin
Valley, as well as other environmental
considerations that pertain to applicable
pollutant (i.e., combustion PM2.5, dust
PM2.5, or NOX) and the applicable
source category or categories.
For residential wood burning, upon a
first triggering event, the Rule 4901
contingency measure would lower the
No Burn (i.e., curtailment) thresholds
for the five non-hot spot counties
(Kings, Merced, San Joaquin, Stanislaus,
and Tulare) to match the tighter No
Burn thresholds for the three hot spot
counties (Fresno, Madera, and Kern). A
prominent effect of this change would
be to provide similar protections to
people in the two southern-most nonhot spot counties that record among the
highest year-to-year PM2.5 design values
in the San Joaquin Valley (i.e., Kings
County, including Corcoran and
Hanford monitoring sites, and Tulare
County, including Visalia monitoring
site).173 Were No Burn days to be called
in Kings or Tulare County according to
the more stringent thresholds, we also
anticipate there would be smaller but
still beneficial effect in the adjacent
Fresno or Kern Counties, depending on
the meteorology of the day. Upon a
second triggering event, the Rule 4901
contingency measure would further
lower the curtailment threshold for
unregistered devices in all eight
counties of the San Joaquin Valley. This
would provide further protections to
people throughout the area, including
both hot-spot and non-hot spot counties,
including those that record among the
highest year-to-year PM2.5 design values
in the San Joaquin Valley.174
172 Notably, Tulare County scores above the 90th
percentile on six of the 12 EJ indices in the EPA’s
EJSCREEN analysis, including the PM2.5 EJ Index,
which is the highest count among all San Joaquin
Valley counties.
173 For example, the certified 2020–2022 PM
2.5
design value for Visalia (AQS Site ID 061072003)
is 18.4 mg/m3 for the 2012 annual PM2.5 NAAQS
and 65 mg/m3 for the 2006 24-hour PM2.5 NAAQS.
EPA design value workbook dated May 23, 2023,
‘‘PM25_DesignValues_2020_2022_FINAL_05_23_
23.xlsx,’’ worksheets ‘‘Table5a. Site Status Ann’’
and ‘‘Table5b.Site Status 24hr.’’ The certified
design value includes all available data; no data
flagged for exceptional events have been excluded.
The EPA’s Air Quality System (AQS) contains
ambient air pollution data collected by federal,
state, local, and tribal air pollution control agencies
from thousands of monitors. More information is
available at https://www.epa.gov/aqs.
174 For example, the certified 2020–2022 PM
2.5
design value for Bakersfield-Airport (Planz) (AQS
Site ID 060290016) is 18.8 mg/m3 for the 2012
annual PM2.5 NAAQS and 61 mg/m3 for the 2006 24-
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Where these direct PM2.5 emission
reductions from combustion occur, we
also note that they do not require further
chemical transformation in the
atmosphere to form PM2.5 (i.e., the
benefit is immediate) and, as they
include fine particulate matter under
one micron and toxic air chemicals, the
reduction of such sub-micron particles
would similarly reduce exposure of all
residents in these areas, including
minority and low-income populations to
these environmental stressors. These
reductions would also specifically
reduce emissions on the winter days
with the highest ambient PM2.5 levels.
For open areas, the Rule 8051
contingency measure, if triggered,
would lower the applicability threshold
for the rural open area requirements of
Rule 8051 (i.e., for parcels having at
least 1,000 square feet of disturbed soil)
from 3.0 acres to 1.0 acre. Based on our
analysis of land use to date, such rural
open areas are found in all counties of
the San Joaquin Valley, though with
some variation from county to county
consistent with overall land use types
(e.g., San Joaquin County has the
smallest proportion of rural open areas,
while Madera County has the highest
proportion of rural open areas).
Furthermore, there is variation in the
number of rural open areas that would
be newly subject to the rule, i.e., those
between 1.0 to 3.0 acres in size (e.g.,
Kern County has the most total rural
open area acreage from parcels between
1.0 to 3.0 acres in size, while Tulare
County has the least). Given the overall
land use and emission factors,175 and
assuming roughly equal levels of
activity in each county (i.e., soil
disturbances over 1,000 square feet), we
anticipate that the proposed
contingency measure would provide air
quality benefits in all counties of the
San Joaquin Valley, with most air
quality benefits occuring in Fresno,
Kern, Kings, and Madera Counties.
Given that Rule 8051 for open areas
was originally introduced as a PM10
control measure, we anticipate that the
proposed measure would provide cobenefits to limiting PM10 levels in the
San Joaquin Valley, with the same
hour PM2.5 NAAQS. EPA design value workbook
dated May 23, 2023, ‘‘PM25_DesignValues_2020_
2022_FINAL_05_23_23.xlsx,’’ worksheets ‘‘Table5a.
Site Status Ann’’ and ‘‘Table5b.Site Status 24hr.’’
The certified design value includes all available
data; no data flagged for exceptional events have
been excluded.
175 For further discussion of the land use and
emission factors for open areas in the San Joaquin
Valley, see EPA Region IX, ‘‘Technical Support
Document, Proposed Contingency Measures Federal
Implementation Plan for the Fine Particulate Matter
Standards for San Joaquin Valley, California,’’ July
2023, section III.E.
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geographical distribution as discussed
herein for direct PM2.5 emission
reductions.176
Lastly, we anticipate that the Smog
Check Contingency Measure (discussed
in more detail in our separate proposed
rule),177 if triggered, would reduce NOX
and VOC emissions from light-duty
vehicles throughout the San Joaquin
Valley. Such emission reductions would
provide air quality benefits in all
counties of the San Joaquin Valley and
especially along roadways with the
highest vehicle miles traveled,
including the major freeways (e.g.,
California Highway 99) and urban areas
(e.g., Bakersfield, Fresno, Stockton,
Visalia) that intersect minority
populations and low-income
populations throughout the San Joaquin
Valley.
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VII. Proposed Action and Request for
Public Comment
For the reasons described in sections
IV and V of this document, and under
CAA section 110(k)(3), the EPA
proposes to approve two SIP revisions
submitted by CARB on June 8, 2023,
and October 16, 2023, for the San
Joaquin Valley to address the
contingency measure SIP requirements
for San Joaquin Valley for the 1997
annual, 2006 24-hour, and 2012 annual
PM2.5 NAAQS. The SIP submissions
include the contingency measure plan
element for San Joaquin Valley for the
relevant PM2.5 NAAQS (referred to
herein as the ‘‘SJV PM2.5 Contingency
Measure SIP’’) and two specific
contingency measures, referred to
herein as the Residential Wood Burning
Contingency Measure and the Rural
Open Areas Contingency Measure. We
are proposing to approve the SJV PM2.5
Contingency Measure SIP as meeting the
applicable requirements of CAA section
172(c)(9) and 40 CFR 51.1014 for San
Joaquin Valley for the applicable PM2.5
NAAQS based on the infeasibility
demonstrations that are provided in the
submission and based on our proposed
approval of the contingency measures.
The Residential Wood Burning
Contingency Measure and the Rural
176 We also note that environmental and
community groups have recommended that fugitive
dust sources in the San Joaquin Valley be subject
to specific requirements rather than having the
option to select from a menu of control
requirements in Rule 8011 (where the definition for
open areas is found). Letter dated May 18, 2022,
from Tom Frantz, Association of Irritated Residents,
et al., to Michael S. Regan, EPA Administrator,
Attachment B, 7. The proposed measure would not
alter the existing structure but rather tighten the
applicability threshold for rural open areas.
177 EPA, ‘‘Air Plan Revision; California; Motor
Vehicle Inspection and Maintenance Program
Contingency Measure,’’ Proposed rule, published in
this Federal Register.
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Open Areas Contingency Measure are
included in amendments to SJVUAPCD
Rule 4901 (‘‘Wood Burning Fireplaces
and Wood Burning Heaters’’) and Rule
8051 (‘‘Open Areas’’), respectively. We
are proposing to approve the two
specific contingency measures because
they meet the requirements under CAA
section 172(c)(9) and 40 CFR 51.1014 for
such measures. We will accept
comments from the public on this
proposal until January 19, 2024.
If we finalize this action as proposed,
our action will resolve the disapproval
of the contingency measure plan
elements for San Joaquin Valley for the
1997 annual, 2006 24-hour, and 2012
annual PM2.5 NAAQS, and our action
will be codified through revisions to 40
CFR 52.220, ‘‘Identification of plan—in
part’’ and 40 CFR 52.237, ‘‘Part D
Disapproval.’’ In conjunction with our
final approval into the SIP of the
submitted amended versions of
SJVUAPCD Rules 4901 and 8051, we
would remove from the SIP the
previously approved versions of
SJVUAPCD Rules 4901 and 8051. Lastly,
if we finalize our action as proposed,
our FIP obligation arising from our
December 6, 2018 finding of failure to
submit will be terminated, and thus, we
will no longer be obligated to finalize
our August 8, 2023 proposed
contingency measure FIP for San
Joaquin Valley.
VIII. Incorporation by Reference
In this rulemaking, the EPA is
proposing to include in a final EPA rule
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, the EPA is proposing to
incorporate by reference SJVUAPCD
Rule 4901 (‘‘Wood Burning Fireplaces
and Wood Burning Heaters’’), amended
May 18, 2023, and Rule 8051 (‘‘Open
Areas’’), amended September 21, 2023,
identified and discussed in sections
IV.A and IV.B of this preamble and that
include revisions to meet the
contingency measure requirements
under part D of title I of the CAA. The
EPA has made, and will continue to
make, these materials available through
https://www.regulations.gov and at the
EPA Region IX Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
IX. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
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88011
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, the EPA’s role is to
approve state choices, provided that
they meet the criteria of the Clean Air
Act. Accordingly, this proposed action
merely proposes to approve a state plan
and related measures as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this proposed action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 14094 (88 FR
21879, April 11, 2023);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• 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.);
• 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);
• Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not subject to Executive Order
13045 (62 FR 19885, April 23, 1997)
because it proposes to approve a state
program;
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001); and
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act.
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where the EPA or
an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
Executive Order 12898 (Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies
to identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on minority populations
and low-income populations to the
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greatest extent practicable and
permitted by law. The EPA defines
environmental justice (EJ) as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies.’’ The EPA
further defines the term fair treatment to
mean that ‘‘no group of people should
bear a disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
The EPA performed an environmental
justice analysis, as is described in
section VI of this proposed rule, titled
‘‘Environmental Justice
Considerations.’’ The analysis was done
for the purpose of providing additional
context and information about this
rulemaking to the public, not as a basis
of the action. Due to the nature of the
action being taken here, this action is
expected to have a neutral to positive
impact on the air quality of the affected
area. In addition, there is no information
in the record upon which this decision
is based inconsistent with the stated
goal of E.O. 12898 of achieving
environmental justice for people of
color, low-income populations, and
Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Ammonia,
Incorporation by reference,
Intergovernmental relations, Nitrogen
dioxide, Particulate matter, Reporting
and recordkeeping requirements, Sulfur
dioxide, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 12, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023–27686 Filed 12–19–23; 8:45 am]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R5–ES–2023–0179;
FF09E21000 FXES1111090FEDR 245]
RIN 1018–BH06
Endangered and Threatened Wildlife
and Plants; Endangered Species
Status for West Virginia Spring
Salamander and Designation of Critical
Habitat
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), propose to
list the West Virginia spring salamander
(Gyrinophilus subterraneus), an
amphibian species from Greenbrier
County, West Virginia, as an endangered
species and to designate critical habitat
under the Endangered Species Act of
1973, as amended (Act). This
determination also serves as our 12month finding on a petition to list the
West Virginia spring salamander. After
a review of the best available scientific
and commercial information, we find
that listing the species is warranted. We
also propose to designate critical habitat
for the West Virginia spring salamander
under the Act. In total, approximately
3.5 kilometers (2.2 miles) in Greenbrier
County, West Virginia, fall within the
boundaries of the proposed critical
habitat designation. We announce the
availability of a draft economic analysis
of the proposed designation of critical
habitat for the West Virginia spring
salamander. If we finalize this rule as
proposed, it would extend the Act’s
protections to the species and its
designated critical habitat.
DATES: We will accept comments
received or postmarked on or before
February 20, 2024. Comments submitted
electronically using the Federal
eRulemaking Portal (see ADDRESSES,
below) must be received by 11:59 p.m.
eastern time on the closing date. We
must receive requests for a public
hearing, in writing, at the address
shown in FOR FURTHER INFORMATION
CONTACT by February 5, 2024.
ADDRESSES: You may submit comments
by one of the following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–R5–ES–2023–0179, which is
the docket number for this rulemaking.
Then, click on the Search button. On the
resulting page, in the panel on the left
SUMMARY:
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side of the screen, under the Document
Type heading, check the Proposed Rule
box to locate this document. You may
submit a comment by clicking on
‘‘Comment.’’
(2) By hard copy: Submit by U.S. mail
to: Public Comments Processing, Attn:
FWS–R5–ES–2023–0179, U.S. Fish and
Wildlife Service, MS: PRB/3W, 5275
Leesburg Pike, Falls Church, VA 22041–
3803.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see
Information Requested, below, for more
information).
Availability of supporting materials:
Supporting materials, such as the
species status assessment report, are
available on the Service’s website at
https://www.fws.gov/office/westvirginia-ecological-services, at https://
www.regulations.gov at Docket No.
FWS–R5–ES–2023–0179, or both. For
the proposed critical habitat
designation, the coordinates or plot
points or both from which the maps are
generated are included in the decision
file for this critical habitat designation
and are available at https://
www.regulations.gov at Docket No.
FWS–R5–ES–2023–0179 and on the
Service’s website at https://
www.fws.gov/office/west-virginiaecological-services.
FOR FURTHER INFORMATION CONTACT:
Jennifer Norris, Field Supervisor, U.S.
Fish and Wildlife Service, West Virginia
Ecological Services Field Office, 6263
Appalachian Highway, Davis, WV
26260; telephone 304–866–3858.
Individuals in the United States who are
deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States. Please see
Docket No. FWS–R5–ES–2023–0179 on
https://www.regulations.gov for a
document that summarizes this
proposed rule.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under
the Act (16 U.S.C. 1531 et seq.), a
species warrants listing if it meets the
definition of an endangered species (in
danger of extinction throughout all or a
significant portion of its range) or a
threatened species (likely to become an
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]]>Agencies
[Federal Register Volume 88, Number 243 (Wednesday, December 20, 2023)]
[Proposed Rules]
[Pages 87988-88012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27686]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2023-0477; FRL-11532-01-R9]
Clean Air Plans; Contingency Measures for the Fine Particulate
Matter Standards; San Joaquin Valley, California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve two state implementation plan (SIP) submissions under the Clean
Air Act (CAA) that address the contingency measures requirements for
the 1997 annual, 2006 24-hour, and 2012 annual fine particulate matter
(PM2.5) national ambient air quality standards (NAAQS or
``standards'') for the San Joaquin Valley PM2.5
nonattainment area. The two SIP submissions include the area's
contingency measure plan element and two specific contingency measures
that would apply to residential wood burning heaters and fireplaces and
non-agricultural, rural open areas. A third contingency measure,
applicable to light-duty on-road motor vehicles, is the subject of a
separate action by the EPA, but the related emissions reductions from
the third measure are accounted for in this proposed rule. The EPA is
proposing approval of the SIP submissions because the Agency has
[[Page 87989]]
determined that they are in accordance with the applicable requirements
for such SIP submissions under the CAA and EPA implementation
regulations for the PM2.5 NAAQS. The proposed approval, if
finalized, would incorporate the two contingency measures into the
federally enforceable SIP. The EPA will accept comments on this
proposed rule during a 30-day public comment period.
DATES: Comments must be received by January 19, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0477 at https://www.regulations.gov. For comments submitted at
Regulations.gov, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (e.g.,
audio or video) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a
language other than English or if you are a person with a disability
who needs a reasonable accommodation at no cost to you, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Rory Mays, Planning and Analysis
Branch (AIR-2), Air and Radiation Division, EPA Region IX, 75 Hawthorne
Street, San Francisco, CA 94105. By phone: (415) 972-3227 or by email
at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. Background for Proposed Action
A. Standards, Designations, Classifications, and Plans
B. Findings and Contingency Measure Disapprovals
II. Summary of SIP Submissions and Evaluation for Compliance With
SIP Revision Procedural Requirements
A. Summary of SIP Submissions
B. Evaluation for Compliance With SIP Revision Procedural
Requirements
III. Contingency Measure Requirements, Guidance, and Legal Precedent
A. Statutory and Regulatory Requirements
B. Draft Revised Contingency Measure Guidance
IV. EPA Review of San Joaquin Valley Contingency Measures
A. Residential Wood Burning Contingency Measure
1. Background and Regulatory History
2. Summary of State Submission
3. EPA Evaluation
B. Rural Open Areas Contingency Measure
1. Background and Regulatory History
2. Summary of State Submission
3. EPA Evaluation
C. Smog Check Contingency Measure
V. EPA Review of San Joaquin Valley PM2.5 Contingency
Measure Plan Element
A. Background and Regulatory History
B. Summary of State Submission
1. General Considerations
2. Contingency Measure Feasibility Analyses
3. Conclusion
C. EPA Evaluation
1. General Considerations
2. Contingency Measure Feasibility Analyses
3. Conclusion
VI. Environmental Justice Considerations
VII. Proposed Action and Request for Public Comment
VIII. Incorporation by Reference
IX. Statutory and Executive Order Reviews
I. Background for Proposed Action
A. Standards, Designations, Classifications, and Plans
Under section 109 of the Clean Air Act (CAA or ``Act''), the EPA
has established national ambient air quality standards (NAAQS or
``standards'') for certain pervasive air pollutants (referred to as
``criteria pollutants'') and conducts periodic reviews of the NAAQS to
determine whether they should be revised or whether new NAAQS should be
established. To date, the EPA has established NAAQS for particulate
matter, ozone, carbon monoxide, nitrogen dioxide, sulfur dioxide and
lead. Under CAA section 110, states have primary responsibility for
meeting the NAAQS within the state, and must submit an implementation
plan that specifies the manner in which the state will attain and
maintain the NAAQS. These implementation plans are referred to as
``state implementation plans'' or ``SIPs.''
Periodically, states must make SIP submissions of different types
to meet additional CAA requirements. For example, after the EPA
promulgates a new or revised NAAQS, under CAA section 110(a)(1) and
(2), states are required to adopt and submit to the EPA a state
implementation plan that provides for implementation, maintenance, and
enforcement of the NAAQS. Such plans are referred to as
``infrastructure SIPs.'' Similarly, after the EPA promulgates
designations for a new or revised NAAQS, states with designated
nonattainment areas must make SIP submissions that meet additional
requirements for such nonattainment areas, under CAA section 172(c)
and, in the case of the PM2.5 NAAQS, CAA sections 188 and
189. This type of SIP submission is referred to as an ``attainment
plan.''
Under CAA section 110(k), the EPA is charged with evaluation of
each SIP submission submitted by states for compliance with applicable
CAA requirements, and for approval or disapproval (in whole or in part)
of the submission. The EPA evaluates SIP submissions and takes action
to approve, disapprove, or conditionally approve them through notice-
and-comment rulemaking published in the Federal Register. Where
appropriate, the EPA may act on specific parts of a SIP submission in
separate rulemaking actions.
In 1997, the EPA promulgated new NAAQS for fine particulate matter,
using particles with an aerodynamic diameter less than or equal to a
nominal 2.5 micrometers (``PM2.5'') as the indicator.\1\ The
EPA established primary and secondary annual and 24-hour standards for
PM2.5. The EPA set the 1997 annual PM2.5 NAAQS,
both primary and secondary standards, at 15.0 micrograms per cubic
meter ([mu]g/m\3\), based on a 3-year average of annual mean
PM2.5 concentrations. The EPA set the 1997 24-hour
PM2.5 NAAQS, both primary and secondary standards, at 65
[mu]g/m\3\, based on the 3-year average of the 98th percentile of 24-
hour PM2.5 concentrations. Collectively, we refer herein to
the 1997 24-hour and annual PM2.5 NAAQS as the ``1997
PM2.5 NAAQS.'' In 2006, the EPA promulgated a new, more
stringent 24-hour NAAQS for PM2.5 by lowering the primary
and secondary standards level from 65 [mu]g/m\3\ to 35 [mu]g/m\3\
(referred to herein as the ``2006 24-hour PM2.5 NAAQS'').\2\
In 2012, the EPA promulgated a new, more stringent annual NAAQS for
PM2.5 by lowering the primary standards level from 15.0
[mu]g/m\3\ to 12.0 [mu]g/m\3\ (herein referred to as the ``2012 annual
PM2.5
[[Page 87990]]
NAAQS'').\3\ Each iteration of the PM2.5 NAAQS remains in
effect, and states with designated nonattainment areas for each of them
are obligated to meet applicable attainment plan requirements for them.
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\1\ 62 FR 38652 (July 18, 1997) and 40 CFR 50.7.
\2\ 71 FR 61144 (October 17, 2006) and 40 CFR 50.13.
\3\ 78 FR 3086 (January 15, 2013) and 40 CFR 50.18.
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The EPA established each of these NAAQS after considering
substantial evidence from numerous health studies demonstrating that
serious health effects are associated with exposures to
PM2.5 concentrations above these levels. Epidemiological
studies have shown statistically significant correlations between
elevated PM2.5 levels and premature mortality. Other
important health effects associated with PM2.5 exposure
include aggravation of respiratory and cardiovascular disease (as
indicated by increased hospital admissions, emergency room visits,
absences from school or work, and restricted activity days), changes in
lung function, and increased respiratory symptoms. Individuals
particularly sensitive to PM2.5 exposure include older
adults, people with heart and lung disease, and children.\4\
PM2.5 can be particles emitted by sources directly into the
atmosphere as a solid or liquid particle (``primary PM2.5''
or ``direct PM2.5''), or can be particles that form in the
atmosphere as a result of various chemical reactions involving
PM2.5 precursor emissions emitted by sources (``secondary
PM2.5''). The EPA has identified the precursors of
PM2.5 to be oxides of nitrogen (``NOX''), sulfur
oxides (``SOX''), volatile organic compounds (VOCs), and
ammonia.\5\
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\4\ 78 FR 3086, 3088.
\5\ EPA, Air Quality Criteria for Particulate Matter, No. EPA/
600/P-99/002aF and EPA/600/P-99/002bF, October 2004.
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Following promulgation of a new or revised NAAQS, the EPA is
required under CAA section 107(d) to designate areas throughout the
Nation as attaining or not attaining the NAAQS. As noted previously,
for areas the EPA has designated nonattainment, states are required
under the CAA to submit attainment plan SIP submissions. These SIP
submissions must provide for, among other elements, reasonable further
progress (RFP) towards attainment of the NAAQS, attainment of the NAAQS
no later than the applicable attainment date, and implementation of
contingency measures to take effect if the state fails to meet RFP or
to attain the NAAQS by the applicable attainment date.
The San Joaquin Valley is located in the southern half of
California's Central Valley and includes all of San Joaquin,
Stanislaus, Merced, Madera, Fresno, Tulare, and Kings Counties, and the
valley portion of Kern County.\6\ The area is home to four million
people and is the Nation's leading agricultural region. Stretching over
250 miles from north to south and averaging 80 miles wide, it is
partially enclosed by the Coast Mountain range to the west, the
Tehachapi Mountains to the south, and the Sierra Nevada range to the
east. In 2005, the EPA designated the San Joaquin Valley as
nonattainment for the 1997 annual PM2.5 NAAQS and
nonattainment for the 1997 24-hour PM2.5 NAAQS.\7\
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\6\ For a precise description of the geographic boundaries of
the San Joaquin Valley nonattainment area, see 40 CFR 81.305.
\7\ 70 FR 944 (January 5, 2005), codified at 40 CFR 81.305.
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The local air district with primary responsibility for developing
attainment plan SIP submissions for the PM2.5 NAAQS in this
area is the San Joaquin Valley Unified Air Pollution Control District
(SJVUAPCD or ``District''). Once the District adopts the regional plan,
the District submits the plan to the California Air Resources Board
(CARB) for adoption as part of the California SIP. CARB is the State
agency responsible for adopting and revising the California SIP and for
submitting the SIP and SIP revisions to the EPA. Generally speaking,
under California law, CARB is responsible for regulation of mobile
sources while the local air districts are responsible for regulation of
stationary sources.
Originally, the EPA designated areas for the 1997 annual and 24-
hour PM2.5 NAAQS under subpart 1 (of part D of title I of
the CAA), i.e., without specifying the classifications of nonattainment
required by subpart 4. Later, in response to a court decision,\8\ the
EPA classified nonattainment areas for the 1997 annual and 24-hour
PM2.5 NAAQS, consistent with the classifications set forth
in subpart 4. With respect to San Joaquin Valley, in 2014, the EPA
classified the San Joaquin Valley as a ``Moderate'' nonattainment
area,\9\ and then in 2015, reclassified the area as a ``Serious''
nonattainment area for the 1997 annual and 24-hour PM2.5
NAAQS.\10\
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\8\ In Natural Resources Defense Council v. EPA, 706 F.3d 428
(D.C. Cir. 2013), the U.S. Court of Appeals for D.C. Circuit
concluded that the EPA erred in implementing the 1997
PM2.5 NAAQS solely pursuant to the general implementation
requirements of subpart 1, without also considering the requirements
specific to PM10 nonattainment areas in subpart 4, part D
of title I of the CAA.
\9\ 79 FR 31566 (June 2, 2014).
\10\ 80 FR 18528 (April 7, 2015).
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In 2016, the EPA determined that the San Joaquin Valley had failed
to attain the 1997 annual and 24-hour PM2.5 NAAQS by the
applicable ``Serious'' area attainment date.\11\ As a result, the State
of California was required, under CAA section 189(d), to submit a new
SIP submission that, among other elements, provides for expeditious
attainment of the 1997 annual and 24-hour PM2.5 NAAQS and
for a minimum five percent annual reduction in the emissions of direct
PM2.5 or a PM2.5 plan precursor pollutant in the
San Joaquin Valley (herein, referred to as a ``Five Percent Plan'').
The Five Percent Plan for the 1997 annual and 24-hour PM2.5
NAAQS was due no later than December 31, 2016.\12\
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\11\ 81 FR 84481 (November 23, 2016).
\12\ Id. at 84482.
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With respect to the 2006 24-hour PM2.5 NAAQS, the EPA
initially designated San Joaquin Valley as nonattainment under subpart
1 (i.e., without classification) \13\ but, in 2014, in response to the
court decision referred to previously, the EPA classified the area as
Moderate.\14\ In 2016, the EPA reclassified San Joaquin Valley as a
Serious nonattainment area for the 2006 24-hour PM2.5 NAAQS
based on the EPA's determination that the area could not practicably
attain these NAAQS by the applicable attainment date of December 31,
2015.\15\ The EPA established an August 21, 2017 deadline for
California to adopt and submit a SIP submission addressing the Serious
nonattainment area requirements for the 2006 24-hour PM2.5
NAAQS.\16\
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\13\ 74 FR 58688 (November 13, 2009).
\14\ 79 FR 31566.
\15\ 81 FR 2993 (January 20, 2016).
\16\ Id. at 3000.
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With respect to the 2012 annual PM2.5 NAAQS, the EPA
designated San Joaquin Valley as a Moderate nonattainment area in
2015.\17\ Under CAA section 189 and the EPA's PM2.5 SIP
Requirements Rule,\18\ the deadline for the state to submit an
attainment plan SIP submission addressing the Moderate nonattainment
area requirements for the 2012 annual PM2.5 NAAQS is 18
months from the effective date of the designation of the area.\19\ The
effective date of the designation of the San Joaquin Valley as a
Moderate nonattainment area for the 2012 annual PM2.5 NAAQS
was April 15, 2015, and thus, the deadline for a SIP submission
addressing the Moderate area requirements was October 15, 2016.
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\17\ 80 FR 2206 (January 15, 2015).
\18\ 81 FR 58010 (August 24, 2016); codified at 40 CFR part 51,
subpart Z.
\19\ 40 CFR 51.1003(a).
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[[Page 87991]]
B. Findings and Contingency Measure Disapprovals
In the wake of these EPA actions, CARB and the District worked
together to prepare a comprehensive SIP submission to address the
nonattainment area requirements for the 1997, 2006, and 2012
PM2.5 NAAQS for San Joaquin Valley, but did not meet the
various SIP submission deadlines. In late 2018, the EPA issued a
finding of failure to submit to the State for the required attainment
plan SIP submissions for the 1997 annual and 24-hour PM2.5
NAAQS, the 2006 24-hour PM2.5 NAAQS, and the 2012 annual
PM2.5 NAAQS for the San Joaquin Valley.\20\ The EPA's
finding of failure to submit was effective January 7, 2019. Under CAA
section 110(c), the EPA is obligated to promulgate a Federal
Implementation Plan (FIP) within two years of a finding that a state
has failed to make a required SIP submission, unless the state submits
a SIP submission that corrects the deficiency, and the EPA approves
that SIP submission, before the EPA promulgates such FIP.\21\ In this
case, the finding of failure to submit established a deadline of
January 7, 2021, for the EPA to promulgate a FIP to address all
applicable attainment plan requirements for the 1997 annual and 24-hour
PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, and
2012 annual PM2.5 NAAQS for San Joaquin Valley, for which
the EPA had not received and approved an adequate SIP submission from
the State.
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\20\ 83 FR 62720 (December 6, 2018).
\21\ The finding of failure to submit also started an 18-month
new source review (NSR) offset sanction clock and a 24-month highway
sanction clock for the State of California. CAA section 179(a) and
40 CFR 52.31.
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To address a portion of current FIP obligation, the EPA recently
proposed a FIP to address the contingency measures requirements for the
San Joaquin Valley for the 1997 annual, 2006 24-hour, and 2012 annual
PM2.5 NAAQS.\22\ In short, the proposed contingency measure
FIP includes two specific contingency measures, one of which would
extend certain wood-burning curtailment restrictions Valley-wide and
another which would extend certain fugitive dust requirements to
certain open areas that are not currently subject to control
requirements.
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\22\ 88 FR 53431 (August 8, 2023).
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On May 10, 2019, CARB submitted two SIP submissions to address the
nonattainment area requirements for all four of the relevant
PM2.5 NAAQS for the San Joaquin Valley, including the
contingency measure requirement.\23\ On November 8, 2021, CARB
submitted a third SIP submission to amend the portions of the May 10,
2019 SIP submissions that pertain to the 1997 annual PM2.5
NAAQS.\24\ As discussed in the following paragraph, the EPA has
previously taken a series of actions on these SIP submissions to
address different nonattainment area requirements for each of the
NAAQS. In this proposed action, we are focused only on the contingency
measure requirements.
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\23\ The SIP revisions submitted on May 10, 2019, include the
``2016 Moderate Area Plan for the 2012 PM2.5 Standard''
(``2016 PM2.5 Plan'') and the ``2018 Plan for the 1997,
2006, and 2012 PM2.5 Standards'' (``2018 PM2.5
Plan''), which incorporates by reference the ``San Joaquin Valley
Supplement to the 2016 State Strategy for the State Implementation
Plan'' (``Valley State SIP Strategy''). On February 11, 2020, CARB
submitted a revised version of Appendix H (``RFP, Quantitative
Milestones, and Contingency'') that replaces the version submitted
with the 2018 PM2.5 Plan on May 10, 2019. The EPA found
the SIP submissions complete in a letter dated June 24, 2020, from
Elizabeth J. Adams, Director, EPA Region IX, to Richard W. Corey,
Executive Officer, CARB. The EPA's completeness determination
terminated the NSR offsets and highway sanctions started by the
December 6, 2018 finding of failure to submit but did not affect the
FIP obligation.
\24\ The SIP revision submitted on November 8, 2021, is titled
``Attainment Plan Revision for the 1997 Annual PM2.5
Standard'' (``15 [mu]g/m\3\ SIP Revision'').
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In 2020, the EPA approved the portion of the SIP submissions
related to the 2006 24-hour PM2.5 NAAQS, but deferred action
on the contingency measure element.\25\ In 2021, the EPA approved the
portion of the SIP submissions related to the Moderate area
requirements for the 2012 annual PM2.5 NAAQS except for the
contingency measure element, which the EPA disapproved.\26\ The EPA
also disapproved the previously-deferred contingency measure element
for the 2006 24-hour PM2.5 NAAQS.\27\ In another 2021
action, the EPA disapproved the portion of the SIP submissions related
to the 1997 annual PM2.5 NAAQS except for the emissions
inventory, which the Agency approved.\28\ In 2022, the EPA approved the
portion of the SIP submission related to the 1997 24-hour
PM2.5 NAAQS, with the exception of the contingency measure
element.\29\ In our action on the SIP submission related to the 1997
24-hour PM2.5 NAAQS, we disapproved the contingency measure
element, but also found that the contingency measure requirement was
moot for that particular PM2.5 NAAQS because of the EPA's
concurrent determination of attainment by the applicable attainment
date for San Joaquin Valley for the 1997 24-hour PM2.5
NAAQS.\30\
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\25\ 85 FR 44192 (July 22, 2020).
\26\ 86 FR 67343 (November 26, 2021).
\27\ Id.
\28\ 86 FR 67329 (November 26, 2021).
\29\ 87 FR 4503 (January 28, 2022).
\30\ Id.
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In July 2023, the EPA proposed approval of the portions of the
three SIP submissions that pertain to the 1997 annual PM2.5
NAAQS in the San Joaquin Valley nonattainment area.\31\ More recently,
we took action to finalize our approval of the SIP submissions for the
1997 annual PM2.5 NAAQS, as proposed; however, our recent
action on various elements of the San Joaquin Valley PM2.5
plan for the 1997 annual PM2.5 NAAQS did not address the
contingency measures requirements for that particular PM2.5
NAAQS.\32\
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\31\ 88 FR 45276 (July 14, 2023).
\32\ EPA, ``Air Quality State Implementation Plans; Approvals
and Promulgations: California; 1997 Annual Fine Particulate Matter
Serious and Clean Air Act Section 189(d) Nonattainment Area
Requirements; San Joaquin Valley, CA,'' Final rule, signed December
5, 2023.
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With respect to contingency measure elements, the State's May 10,
2019 PM2.5 SIP submissions for San Joaquin Valley relied
upon contingency provisions included in District Rule 4901 (``Wood
Burning Fireplaces and Wood Burning Heaters''), specifically section
5.7.3 of the rule, and a demonstration that the emissions reductions
from the contingency measure would be sufficient to meet the
contingency measure SIP requirements of CAA section 172(c)(9) if the
reductions were viewed together with ``surplus'' \33\ emissions
reductions from already-implemented measures.\34\ We disapproved the
contingency measure elements for San Joaquin Valley for the 1997
annual, 2006 24-hour, and 2012 annual PM2.5 NAAQS because
the contingency provision (i.e., section 5.7.3) in Rule 4901 did not
address the potential for State failures to meet RFP, to meet a
quantitative milestone, or to submit a quantitative milestone report.
In addition, the contingency measure provision of Rule 4901 was not
structured to achieve any additional emissions reductions if the EPA
were to find that the monitoring locations in the ``hot spot'' counties
(i.e., Fresno, Kern, or Madera) are the only counties in the San
Joaquin Valley that are violating the PM2.5 NAAQS as of the
attainment date.\35\ In addition, the contingency
[[Page 87992]]
measure elements did not provide sufficient justification as to why the
one adopted contingency measure (in Rule 4901) would suffice to meet
the CAA requirements for contingency measures for the PM2.5
NAAQS for San Joaquin Valley notwithstanding the fact that the one
measure would not achieve one year's worth of RFP, as recommended in
longstanding EPA guidance.36 37
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\33\ In this context, ``surplus'' refers to emissions reductions
not otherwise relied upon for RFP or attainment demonstrations.
\34\ See 86 FR 38652, 38668-38669 (July 22, 2021); 86 FR 49100,
49123-49124 and 49132-49133 (September 1, 2021).
\35\ See 86 FR 38652, 38669-38670 (proposed disapproval of the
contingency measure element for the 1997 annual PM2.5
NAAQS); and 86 FR 49100, 49124-49125 (proposed disapproval of the
contingency measure element for the 2012 annual PM2.5
NAAQS) and 49133-49134 (proposed disapproval of the contingency
measure element for the 2006 24-hour PM2.5 NAAQS)
(September 1, 2021). The proposed disapprovals were finalized at 86
FR 67329 (1997 annual PM2.5 NAAQS); 86 FR 67343 (2012
annual PM2.5 NAAQS and 2006 24-hour PM2.5
NAAQS).
\36\ Id.
\37\ 81 FR 58010, 58066. See also 57 FR 13498, 13511, 13543-
13544 (April 16, 1992), and 59 FR 41998, 42014-42015 (August 16,
1994).
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In our final rules disapproving the contingency measure elements
for San Joaquin Valley for the 1997 annual, 2006 24-hour, and 2012
annual PM2.5 NAAQS, we indicated that the disapprovals would
begin an 18-month clock for imposition of the offset sanction in CAA
section 179(b)(2) and a 24-month clock for imposition of the highway
funding sanction in CAA section 179(b)(1) unless the State submits, and
the EPA approves, a SIP revision that corrects the deficiencies that we
identified in our final actions prior to implementation of the
sanctions.\38\
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\38\ 86 FR 67329, 67341 (1997 annual PM2.5 NAAQS); 86
FR 67343, 67346-67347 (2012 annual PM2.5 NAAQS and 2006
24-hour PM2.5 NAAQS).
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II. Summary of SIP Submissions and Evaluation for Compliance With SIP
Revision Procedural Requirements
A. Summary of SIP Submissions
On June 8, 2023, CARB submitted the ``PM2.5 Contingency
Measure State Implementation Plan Revision (May 18, 2023)'' (herein
referred to as the ``SJV PM2.5 Contingency Measure SIP'') to
the EPA as a revision to the California SIP.\39\ Also on June 8, 2023,
CARB submitted revisions to Rule 4901 that add PM2.5 NAAQS
contingency provisions that we refer to herein as the ``Residential
Wood Burning Contingency Measure.'' The District adopted the SJV
PM2.5 Contingency Measure SIP and Residential Wood Burning
Contingency Measure on May 18, 2023, and submitted them to CARB for
adoption and submission to the EPA as SIP revisions. The District
adopted the SJV PM2.5 Contingency Measure SIP and
Residential Wood Burning Contingency Measure to correct the
deficiencies identified by the EPA in the November 26, 2021
disapprovals of the contingency measure elements for the 1997 annual,
2006 24-hour, and 2012 annual PM2.5 NAAQS and the previously
adopted contingency provisions of Rule 4901. In this document, we are
proposing action on both the SJV PM2.5 Contingency Measure
SIP and the Residential Wood Burning Contingency Measure.
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\39\ CARB adopted the SJV PM2.5 Contingency Measure
SIP and Residential Wood Burning Contingency Measure as SIP
revisions on June 7, 2023, through Executive Order S-23-010 and
submitted the SIP revisions to the EPA electronically on June 8,
2023, as attachments to a letter dated June 7, 2023, from Steven S.
Cliff, Ph.D., Executive Officer, CARB to Martha Guzman, Regional
Administrator, EPA Region IX.
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The June 8, 2023 SIP submission includes the two specific SIP
revisions (i.e., the SJV PM2.5 Contingency Measure SIP and
the Residential Wood Burning Contingency Measure), as well as
supporting material including the resolutions of adoption, CARB
evaluation and completeness forms, and evidence of public notice and
hearing. The SJV PM2.5 Contingency Measure SIP includes a
general discussion of contingency measures and related requirements and
guidance, context for this particular SIP revision, and feasibility
analyses developed by the District and CARB to identify potential
contingency measures for the PM2.5 NAAQS for the San Joaquin
Valley. (In our evaluation of the latter, we refer to the State's
feasibility analyses herein as infeasibility demonstrations.) The SJV
PM2.5 Contingency Measure SIP includes appendices that
provide further detailed information and documentation for, among other
things, the emissions reductions estimated for the Residential Wood
Burning Contingency Measure. The District also attached excerpts from
certain previously submitted SIPs to provide support for the
conclusions drawn by the District and CARB with respect to the
infeasibility of adopting additional contingency measures for the San
Joaquin Valley. The June 8, 2023 SIP submission of the SJV
PM2.5 Contingency Measure SIP and Residential Wood Burning
Contingency Measure was deemed administratively complete by operation
of law on December 8, 2023, consistent with CAA section 110(k)(1).\40\
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\40\ In addition, see EPA Region IX SIP Completeness Checklist,
October 13, 2023.
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Through adoption of the SJV PM2.5 Contingency Measure
SIP, the District committed to evaluating revisions to a specific
fugitive dust rule, District Rule 8051 (``Open Areas''), for potential
as a second contingency measure for the PM2.5 NAAQS for the
SJV.\41\ On September 21, 2023, the District adopted revisions to Rule
8051 to add contingency provisions that we refer to herein as the
``Rural Open Areas Contingency Measure.'' The District adopted the
Rural Open Areas Contingency Measure to supplement the SJV
PM2.5 Contingency Measure SIP by providing additional
emissions reductions for the San Joaquin Valley if triggered by one of
the contingency events. On October 16, 2023, CARB submitted the Rural
Open Areas Contingency Measure to the EPA as a revision to the
California SIP.\42\ In this document, we are also proposing action on
the Rural Open Areas Contingency Measure.
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\41\ SJV PM2.5 Contingency Measure SIP, pp. 31-32.
\42\ CARB adopted the Rural Open Areas Contingency Measure as a
SIP revision on October 13, 2023, through Executive Order S-23-014
and submitted the SIP revision to the EPA electronically on October
16, 2023, as an attachment to a letter dated October 13, 2023, from
Steven S. Cliff, Ph.D., Executive Officer, CARB to Martha Guzman,
Regional Administrator, EPA Region IX.
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The October 16, 2023 SIP submission includes the SIP revision
itself (i.e., the Rural Open Areas Contingency Measure) as well as
supporting material including the resolutions of adoption, CARB
evaluation and completeness forms, and evidence of public notice and
hearing. The EPA has reviewed the October 16, 2023 SIP submission of
the Rural Open Areas Contingency Measure and finds it to be
administratively complete for the purposes of CAA section 110(k)(1),
effective upon publication of this proposed rule.\43\
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\43\ EPA Region IX SIP Completeness Checklist, October 18, 2023.
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B. Evaluation for Compliance With SIP Revision Procedural Requirements
Under CAA section 110(l), SIP revisions must be adopted by the
state, and the state must provide for reasonable public notice and
hearing prior to adoption. Pursuant to 40 CFR 51.102, states must
provide at least 30-days' notice of any public hearing to be held on a
proposed SIP revision. States must provide the opportunity to submit
written comments and allow the public the opportunity to request a
public hearing within that period.\44\
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\44\ In addition to establishing procedural requirements for SIP
revisions, CAA section 110(l) prohibits the EPA from approving any
SIP revision that would interfere with any applicable requirement
for reasonable further progress (RFP) or attainment or any other
applicable requirement of the CAA. In this instance, the Residential
Wood Burning Contingency Measure and the Rural Open Areas
Contingency Measure would provide emissions reductions beyond those
needed for RFP and attainment of the NAAQS in San Joaquin Valley
and, thus, would not interfere with the RFP and attainment
demonstrations for the area.
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[[Page 87993]]
The District adopted the SJV PM2.5 Contingency Measure
SIP and the Residential Wood Burning Contingency Measure on May 18,
2023, through Resolution No. 2023-5-7, following a public hearing held
on the same day. Prior to adoption, the District published notice of
the May 18, 2023 public hearing in newspapers of general circulation in
each of the eight counties that comprise the San Joaquin Valley, and
provided more than 30 days for submission of written comments. CARB
subsequently adopted the SJV PM2.5 Contingency Measure SIP
and the Residential Wood Burning Contingency Measure as a revision to
the SIP on June 7, 2023, through Executive Order S-23-010. CARB then
submitted the SJV PM2.5 Contingency Measure SIP and the
Residential Wood Burning Contingency Measure to the EPA on June 8,
2023, as an attachment to a transmittal letter dated June 7, 2023.
The District adopted the Rural Open Areas Contingency Measure on
September 21, 2023, through Resolution No. 2023-9-9, following a public
hearing held on the same day. Prior to adoption, the District published
notice of the September 21, 2023 public hearing in newspapers of
general circulation in each of the eight counties that comprise the San
Joaquin Valley, and provided more than 30 days for submission of
written comments. CARB subsequently adopted the Rural Open Areas
Contingency Measure as a revision to the SIP on October 13, 2023,
through Executive Order S-23-014. CARB then submitted the Rural Open
Areas Contingency Measure to the EPA on October 16, 2023, as an
attachment to a transmittal letter dated October 13, 2023.
Based on the materials provided in the June 8, 2023 and October 16,
2023 SIP submissions, we propose to find that the District and the CARB
have met the procedural requirements for adoption and submission of SIP
revisions under CAA section 110(l) and 40 CFR 51.102.
III. Contingency Measure Requirements, Guidance, and Legal Precedent
The EPA first provided its views on the CAA's requirements for
particulate matter plans under part D, title I of the Act in the
following guidance documents: (1) ``State Implementation Plans; General
Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990'' (``General Preamble''); \45\ (2) ``State
Implementation Plans; General Preamble for the Implementation of Title
I of the Clean Air Act Amendments of 1990; Supplemental''; \46\ and (3)
``State Implementation Plans for Serious PM-10 Nonattainment Areas, and
Attainment Date Waivers for PM-10 Nonattainment Areas Generally;
Addendum to the General Preamble for the Implementation of Title I of
the Clean Air Act Amendments of 1990'' (``General Preamble
Addendum'').\47\ More recently, in the PM2.5 SIP
Requirements Rule, the EPA established regulatory requirements and
provided further interpretive guidance on the statutory SIP
requirements that apply to areas designated nonattainment for all
PM2.5 NAAQS.\48\
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\45\ 57 FR 13498 (April 16, 1992).
\46\ 57 FR 18070 (April 28, 1992).
\47\ 59 FR 41998 (August 16, 1994).
\48\ 81 FR 58010.
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A. Statutory and Regulatory Requirements
Under CAA section 172(c)(9), states required to make an attainment
plan SIP submission must include contingency measures to be implemented
if the area fails to meet RFP (``RFP contingency measures'') or fails
to attain the NAAQS by the applicable attainment date (``attainment
contingency measures''). Under the PM2.5 SIP Requirements
Rule, states must include contingency measures that provide that the
state will implement them following a determination by the EPA that the
state has failed: (1) to meet any RFP requirement in the approved SIP;
(2) to meet any quantitative milestone (QM) in the approved SIP; (3) to
submit a required QM report; or (4) to attain the applicable
PM2.5 NAAQS by the applicable attainment date.\49\
Contingency measures must be fully adopted rules or control measures
that are ready to be implemented quickly upon failure to meet RFP or
failure of the area to meet the relevant NAAQS by the applicable
attainment date.\50\ In general, we expect all actions needed to effect
full implementation of the measures to occur within 60 days after the
EPA notifies the state of a failure to meet RFP or to attain.\51\
Moreover, we expect the additional emissions reductions from the
contingency measures to be achieved within a year of the triggering
event.\52\
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\49\ 40 CFR 51.1014(a).
\50\ 81 FR 58010, 58066 and General Preamble Addendum, 42015.
\51\ 81 FR 58010, 58066. See also General Preamble 13512, 13543-
13544, and General Preamble Addendum, 42014-42015.
\52\ General Preamble, 13511.
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The purpose of contingency measures is to continue progress in
reducing emissions while a state revises its SIP to meet the missed RFP
requirement or to correct ongoing nonattainment. Neither the CAA nor
the EPA's implementing regulations establish a specific level of
emission reductions that implementation of contingency measures must
achieve, but the EPA recommends that contingency measures should
provide for emission reductions equivalent to approximately one year of
reductions needed for RFP in the nonattainment area.\53\ For
PM2.5 NAAQS SIP planning purposes, the EPA recommends that
RFP should be calculated as the overall level of reductions needed to
demonstrate attainment divided by the number of years from the base
year to the attainment year.\54\ As part of the attainment plan SIP
submission, the EPA expects states to explain the amount of anticipated
emissions reductions that the contingency measures will achieve. In the
event that a state is unable to identify and adopt contingency measures
that will provide for approximately one year's worth of emissions
reductions, then EPA recommends that the state provide a reasoned
justification why the smaller amount of emissions reductions is
appropriate.\55\
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\53\ 81 FR 58010, 58066. See also General Preamble, 13511,
13543-13544, and General Preamble Addendum, 42014-42015.
\54\ 81 FR 58010, 58066.
\55\ 81 FR 58010, 58067.
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To satisfy the contingency measure requirements of 40 CFR 51.1014,
the contingency measures adopted as part of a PM2.5 NAAQS
attainment plan must consist of control measures for the area that are
not otherwise required to meet other attainment plan requirements
(e.g., to meet reasonably available control measure (RACM)/reasonably
available control technology (RACT) requirements). By definition,
contingency measures are measures that are over and above what a state
must adopt and impose to meet RFP and to provide for attainment by the
applicable attainment date.
Contingency measures serve the purpose of providing additional
emission reductions during the period after a failure to meet RFP or
failure to attain as the state prepares a new SIP submission to rectify
the problem. Accordingly, contingency measures must provide such
additional emission reductions during an appropriate period and must
specify the timeframe within which their requirements would become
effective following any of the EPA determinations specified in 40 CFR
51.1014(a).
[[Page 87994]]
In addition, to comply with CAA section 172(c)(9), contingency
measures must be both conditional and prospective, so that they will go
into effect and achieve emission reductions only in the event of a
future triggering event such as a failure to meet RFP or a failure to
attain. In a 2016 decision called Bahr v. EPA,\56\ the Ninth Circuit
Court of Appeals held that CAA section 172(c)(9) does not allow EPA
approval of already-implemented control measures as contingency
measures. Thus, already-implemented measures cannot serve as
contingency measures under CAA section 172(c)(9). For purposes of the
PM2.5 NAAQS, a state must develop, adopt, and submit one or
more contingency measures to be triggered upon a failure to meet any
RFP requirement, failure to meet a quantitative milestone requirement,
or failure to attain the NAAQS by the applicable attainment date,
regardless of the extent to which already-implemented measures would
achieve surplus emission reductions beyond those necessary to meet RFP
or quantitative milestone requirements and beyond those predicted to
achieve attainment of the NAAQS.
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\56\ Bahr v. EPA, 836 F.3d 1218, 1235-1237 (9th Cir. 2016). See
also Sierra Club v. EPA, 21 F.4th 815, 827-28 (D.C. Cir. 2021).
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In a recent decision on the EPA's approval of a SIP contingency
measure element for the ozone NAAQS, the Ninth Circuit Court of Appeals
held that, under the EPA's current guidance, the surplus emissions
reductions from already-implemented measures cannot be relied upon to
justify the approval of a contingency measure that would achieve far
less than one year's worth of RFP as sufficient by itself to meet the
contingency measure requirements of CAA sections 172(c)(9) and
182(c)(9) for the nonattainment area.\57\
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\57\ Assoc. of Irritated Residents v. EPA, 10 F.4th 937, 946-47
(9th Cir. 2021) (``AIR v. EPA'' or ``AIR'').
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B. Draft Revised Contingency Measure Guidance
In March 2023, the EPA published notice of availability announcing
a new draft guidance addressing the contingency measures requirement of
section 172(c)(9), entitled ``Draft: Guidance on the Preparation of
State Implementation Plan Provisions that Address the Nonattainment
Area Contingency Measure Requirements for Ozone and Particulate Matter
(DRAFT--3/17/23--Public Review Version)'' (herein referred to as the
``Draft Revised Contingency Measure Guidance'') and opportunity for
public comment.\58\ The principal differences between the draft revised
guidance and existing guidance on contingency measures relate to the
EPA's recommendations concerning the specific amount of emission
reductions that implementation of contingency measures should achieve,
and the timing for when the emissions reductions from the contingency
measures should occur. The Draft Revised Contingency Measure Guidance
also provides recommended procedures for developing a demonstration, if
applicable, that the area lacks sufficient feasible measures to achieve
one year's worth of reductions, building on existing guidance that the
state provide a reasoned justification why the smaller amount of
emissions reductions is appropriate.
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\58\ 88 FR 17571 (March 23, 2023). The Draft Revised Contingency
Measure Guidance is available at https://www.epa.gov/air-quality-implementation-plans/draft-contingency-measures-guidance.
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Under the Draft Revised Contingency Measure Guidance, the
recommended level of emissions reductions that contingency measures
should achieve would represent one year's worth of ``progress'' as
opposed to one year's worth of RFP.\59\ One year's worth of
``progress'' is calculated by determining the average annual reductions
between the base year emissions inventory and the projected attainment
year emissions inventory, determining what percentage of the base year
emissions inventory this amount represents, then applying that
percentage to the projected attainment year emissions inventory to
determine the amount of reductions needed to ensure ongoing progress if
contingency measures are triggered.
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\59\ Draft Revised Contingency Measure Guidance, p. 22.
---------------------------------------------------------------------------
With respect to the time period within which reductions from
contingency measures should occur, the EPA previously recommended that
contingency measures take effect within 60 days of being triggered, and
that the resulting emission reductions generally occur within one year
of the triggering event. Under the Draft Revised Contingency Measure
Guidance, in instances where there are insufficient contingency
measures available to achieve the recommended amount of emissions
reductions within one year of the triggering event, the EPA believes
that contingency measures that provide reductions within up to two
years of the triggering event would be appropriate to consider towards
achieving the recommended amount of emissions reductions. The Draft
Revised Contingency Measure Guidance does not alter the 60-day
recommendation for the contingency measures to take initial effect.
If, after adequately evaluating additional control measures, the
state is unable to identify contingency measures that would provide
approximately one year's worth of emissions reductions, the Draft
Revised Contingency Measure Guidance recommends that the state should
provide a reasoned justification (referred to herein as an
``infeasibility demonstration'') that explains and documents how it has
evaluated all existing and potential control measures relevant to the
appropriate source categories and pollutants in the nonattainment area
and has reached reasonable conclusions regarding whether such measures
are feasible.\60\
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\60\ Draft Revised Contingency Measure Guidance, p. 29.
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As explained in the Draft Revised Contingency Measure Guidance,
while the EPA notes that CAA section 172(c)(9) and section 182(c)(9) do
not explicitly provide for consideration of whether specific measures
are feasible, the Agency believes that it is reasonable to infer that
the statute does not require control measures regardless of any
technological or cost constraints whatsoever.\61\ It is more reasonable
to interpret the contingency measure requirement not to require air
agencies to adopt and impose infeasible measures. The statutory
provisions applicable to other nonattainment area plan control measure
requirements, including RACM/RACT (for ozone and PM), best available
control measure (BACM)/best available control technology (BACT) (for
PM), and most stringent measures (MSM) (for PM), allow air agencies to
exclude certain control measures that are deemed unreasonable or
infeasible (depending on the requirement). For example, the MSM
provision in CAA section 188(e) requires plans to include ``the most
stringent measures that are included in the implementation plan of any
state or are achieved in practice in any state, and can feasibly be
implemented in the area.'' The EPA considers it reasonable to conclude
that Congress similarly did not expect air agencies to satisfy the
contingency measure requirement with infeasible measures. Thus, the EPA
anticipates that a demonstrated lack of feasible measures would be a
reasoned justification for adopting contingency measures that only
achieve a lesser amount of emission reductions.
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\61\ Id.
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[[Page 87995]]
IV. EPA Review of San Joaquin Valley Contingency Measures
We provide our review of two specific contingency measures--the
Residential Wood Burning Contingency Measure and the Rural Open Areas
Contingency Measure--in sections IV.A and IV.B of this document,
respectively. As noted previously, we are reviewing and proposing
approval of a third contingency measure, the Smog Check Contingency
Measure,\62\ in a separate rulemaking; \63\ however, we provide a
summary of the Smog Check Contingency Measure in section IV.C for
informational purposes. Because we are proposing approval of the
contingency measures, we take into account the measures' anticipated
emission reductions in our evaluation of the SJV PM2.5
Contingency Measure SIP, which we present in section V of this proposed
rule.
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\62\ CARB, ``California Smog Check Contingency Measure State
Implementation Plan Revision,'' release date September 15, 2023,
(``Smog Check Contingency Measure'').
\63\ EPA, ``Air Plan Revision; California; Motor Vehicle
Inspection and Maintenance Program Contingency Measure,'' Proposed
rule, published in this Federal Register.
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A. Residential Wood Burning Contingency Measure
1. Background and Regulatory History
Residential wood burning includes wood-burning heaters (i.e.,
woodstoves, pellet stoves, and wood-burning fireplace inserts), which
are used primarily for heat generation, and wood-burning fireplaces,
which are used primarily for aesthetic purposes. All of these devices
emit direct PM2.5 and NOX. However, wood-burning
heaters, that are certified under the EPA's New Source Performance
Standards (NSPS) emit lower levels of PM2.5 compared to
wood-burning fireplaces and non-certified heaters when properly
installed, operated, and maintained.
Residential wood-burning is included within the ``Residential Fuel
Combustion'' emissions inventory category within the 2018
PM2.5 Plan's emissions inventories. In the 2018
PM2.5 Plan, the District estimates emissions of 2.82 tons
per day (tpd) of PM2.5 and 0.42 tpd NOX (annual
average) specifically from residential wood burning for each year from
2017 onward. However, these estimates do not account for the effect of
2019 amendments to Rule 4901, discussed in the following section of
this document.
Rule 4901 (``Wood Burning Fireplaces and Wood Burning Heaters'')
establishes requirements for the sale/transfer, operation, and
installation of wood-burning devices and on the advertising of wood for
sale intended for burning in a wood-burning fireplace, wood-burning
heater, or outdoor wood-burning device within the San Joaquin Valley.
One of the most effective ways to reduce wintertime smoke is a
curtailment program that restricts use of wood-burning heaters and
fireplaces on days that are conducive to buildup of PM concentrations
(i.e., days where ambient PM2.5 and/or PM10
concentrations are forecast to be above a particular level, known as a
``curtailment threshold'').
Rule 4901 includes a tiered mandatory curtailment program that
establishes different curtailment thresholds based on the type of
devices (i.e., registered clean-burning devices \64\ vs. unregistered
devices) and different counties (i.e., hot spot vs. non-hot spot).
During a Level One Episodic Wood Burning Curtailment, operation of
wood-burning fireplaces and other unregistered wood-burning heaters or
devices is prohibited, but properly operated, registered wood-burning
heaters may be used.\65\ During a Level Two Episodic Wood Burning
Curtailment, operation of any wood-burning device is prohibited.\66\
However, the rule includes an exemption from the curtailment provisions
for (1) locations where piped natural gas service is not available and
(2) residences for which a wood-burning fireplace or wood-burning
heater is the sole available source of heat.\67\
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\64\ In order to be registered, a device must either be
certified under the NSPS at time of purchase or installation and at
least as stringent as Phase II requirements or be a pellet-fueled
wood burning heater exempt from EPA certification requirements at
the time of purchase or installation (Rule 4901, section 5.9.1). The
rule includes requirements for documentation and inspection to
verify compliance with these standards (Rule 4901, sections 5.9.2
and 5.10).
\65\ Rule 4901, section 5.7.1.
\66\ Rule 4901, section 5.7.2.
\67\ Rule 4901, section 5.7.4.
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In order to implement the curtailment program under Rule 4901, the
District develops daily air quality forecasts, based on EPA and CARB
guidance, which include a projection of the maximum PM2.5
concentration in each county for the following day.\68\ District staff
then compare this maximum county PM2.5 concentration
forecast with the curtailment thresholds in Rule 4901. If a county's
PM2.5 forecast exceeds the applicable threshold, then the
District's Air Pollution Control Officer declares a curtailment for the
county for the following day.
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\68\ Email dated October 9, 2019, from Jon Klassen, SJVUAPCD to
Meredith Kurpius, EPA Region IX, Subject: ``RE: Info to support Rule
4901.''
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In 2019, the District lowered the curtailment thresholds in Madera,
Fresno, and Kern counties, which the District identified as ``hot
spot'' counties, because they were ``either new areas of gas utility or
areas deemed to have persistently poor air quality.'' \69\ Table 1
presents the residential curtailment thresholds in Rule 4901, as
revised in 2019.
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\69\ 2018 PM2.5 Plan, Appendix J, 60.
Table 1--Residential Wood Burning Curtailment Thresholds in Rule 4901
[As amended in 2019]
------------------------------------------------------------------------
Non-hot spot
counties (San
Episodic wood burning Hot spot counties Joaquin,
curtailment levels (Madera, Fresno, Stanislaus,
and Kern) Merced, Kings, and
Tulare)
------------------------------------------------------------------------
Level One (No Burning Unless 12 [mu]g/m\3\..... 20 [mu]g/m\3\.
Registered).
Level Two (No Burning for All).. 35 [mu]g/m\3\..... 65 [mu]g/m\3\.
------------------------------------------------------------------------
The 2019 revision by the District also added a provision to the
rule to operate as a contingency measure, which would lower the
curtailment thresholds for any county that failed to attain the
applicable standards to levels consistent with current thresholds for
hot spot counties. However, the EPA disapproved this provision because
it did not meet all of the CAA requirements for contingency
measures.\70\ Specifically, it did not address three of the four
required triggers for contingency measures in 40 CFR 51.1014(a) and was
not structured to achieve any additional emissions reductions if the
EPA found that the monitoring locations in the ``hot spot''
[[Page 87996]]
counties (i.e., Fresno, Kern, or Madera) were the only counties in the
San Joaquin Valley that are violating the applicable PM2.5
NAAQS as of the attainment date.\71\ In addition, with respect to the
1997 annual PM2.5 NAAQS in particular, the EPA also
disapproved the contingency provision in Rule 4901 because the EPA was
concurrently disapproving the RFP and attainment demonstrations and,
thus, was unable to determine whether the emissions reductions from the
contingency provision were in fact surplus to the reductions that would
be needed to provide for RFP and attainment for the 1997 annual
PM2.5 NAAQS in the SJV.\72\ Accordingly, the SIP-approved
version of Rule 4901 does not include any contingency provision.
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\70\ 86 FR 67329, 67338 (for the 1997 annual PM2.5
NAAQS) and 86 FR 67343, 67345 (for the 2006 24-hour PM2.5
NAAQS and 2012 annual PM2.5 NAAQS).
\71\ Id. See also 86 FR 38652, 38669 (proposed rule on
contingency measures element for the 1997 annual PM2.5
NAAQS) and 86 FR 49100, 49125 and 49133-49134 (proposed rule on
contingency measures element for the 2012 annual PM2.5
NAAQS and 2006 24-hour PM2.5 NAAQS, respectively).
\72\ 86 FR 67329, 67338.
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2. Summary of State Submission
On May 18, 2023, the District amended the contingency measure in
section 5.7.3 of Rule 4901, and CARB submitted the amended rule as part
of the June 8, 2023 SIP Submission. The contingency measure would be
triggered by a final determination by the EPA that the District failed
to meet one or more of the following triggering events for the
applicable PM2.5 NAAQS:
(1) Any Reasonable Further Progress requirement;
(2) Any quantitative milestone;
(3) Submission of a quantitative milestone report; or
(4) Attainment of the applicable PM2.5 NAAQS by the
applicable attainment date.
Following the first such triggering event, the measure would lower
the thresholds for the non-hot spot counties to the current thresholds
for hot spot counties (i.e., from 20 [mu]g/m\3\ to 12 [mu]g/m\3\ for
unregistered devices; and from 65 [mu]g/m\3\ to 35 [mu]g/m\3\ for
registered devices). Following the second such event, the measure would
further lower the threshold for unregistered devices in all counties of
the San Joaquin Valley from 12 [mu]g/m\3\ to 11 [mu]g/m\3\.
The District estimates that the Residential Wood Burning
Contingency Measure for the first triggering event would achieve annual
average emissions reductions of 0.5793 tpd direct PM2.5 and
0.0817 tpd NOX in the SJV and the second triggering event
would achieve additional reductions of 0.1078 tpd direct
PM2.5 and 0.0148 tpd NOX.\73\
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\73\ SJV PM2.5 Contingency Measure SIP, p. C-15.
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3. EPA Evaluation
Through the revisions adopted by the District to Rule 4901 on May
18, 2023, the District has corrected the deficiencies in the
contingency provision of Rule 4901 that we identified in our November
26, 2021 final actions. Namely, the contingency provision in the rule
(section 5.7.3) has been revised to address all the determinations for
which contingency measures are required under 40 CFR 51.1014(a) and has
been revised to achieve emissions reductions under all circumstances,
i.e., if triggered by one of the specific EPA determinations. In
addition, we find that the contingency provision in section 5.7.3 of
Rule 4901 is surplus to the RFP and attainment demonstrations for the
annual 1997 PM2.5 NAAQS based on the conclusions in our
recent final action approving the RFP and attainment demonstrations in
the State's 15 [mu]g/m\3\ SIP Revision.\74\
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\74\ EPA, ``Air Quality State Implementation Plans; Approvals
and Promulgations: California; 1997 Annual Fine Particulate Matter
Serious and Clean Air Act Section 189(d) Nonattainment Area
Requirements; San Joaquin Valley, CA,'' Final rule, signed December
5, 2023.
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In our previous actions, we found that the contingency provision in
Rule 4901 met the other specific criteria used to evaluate contingency
measures.\75\ Specifically, the contingency provision in Rule 4901 (the
Residential Wood Burning Contingency Measure) is structured to be both
conditional and prospective, to be implemented quickly following a
triggering event (i.e., within 60 days) and to be implemented without
significant further action by the State or the EPA. The revisions to
section 5.7.3 of Rule 4901 that were adopted on May 18, 2023 do not
affect those features of the contingency provision, and thus we propose
to re-affirm those findings in this proposed rule.
---------------------------------------------------------------------------
\75\ See, e.g., 86 FR 38652, 38669.
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We also note that the contingency provisions do not require the
replacement or installation of an emissions control device and can
therefore achieve emission reductions upon the rule taking effect. For
example, if the EPA were to determine that the San Joaquin Valley
failed to attain a given PM2.5 NAAQS, effective in July of a
given year, the more stringent curtailment thresholds would take effect
in September of that year, prior to the seasonal start of the No Burn
Day program on November 1st. Thus, the emission reductions from the
Residential Wood Burning Contingency Measure would be achieved within
one year of the triggering event. Based on our review of the
contingency provisions, as revised, we propose to re-affirm those
findings.
Contingency measures must also 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 and
attainment. In this regard, we note that none of the SJV plans for the
1997 annual, 2006 24-hour, and 2012 annual PM2.5 NAAQS
relied upon the contingency provision in Rule 4901 to meet any plan
element (other than the contingency measure element) and that none of
the plans relied on the related emissions reductions from the
contingency provision to provide for RFP or attainment. Based on our
previous approvals of the San Joaquin Valley plans for the 2006 24-hour
PM2.5 NAAQS in 2020 and 2012 annual PM2.5 NAAQS
in 2021,\76\ and the recent approval of the San Joaquin Valley plan for
the 1997 annual PM2.5 NAAQS, including the various plan
elements such as the BACM, RFP, and attainment demonstrations, we find
that the Residential Wood Burning Contingency Measure is not otherwise
required for these PM2.5 NAAQS and that the associated
emissions reductions would be surplus to the PM2.5-related
RFP and attainment needs of the San Joaquin Valley.
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\76\ 85 FR 44192 and 86 FR 67343.
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Therefore, for the reasons provided in the preceding paragraphs, we
propose to approve Rule 4901, as revised, because we find that the
Residential Wood Burning Contingency Measure set forth in section 5.7.3
of the rule now meets all the applicable requirements for a contingency
measure for the San Joaquin Valley for the 1997 annual, 2006 24-hour,
and 2012 annual PM2.5 NAAQS.
Lastly, we reviewed the emissions reduction estimates for the
Residential Wood Burning Contingency Measure that were prepared by the
District and included in Appendix C (``Emission Reduction Analysis for
Rule 4901'') of the SJV PM2.5 Contingency Measure SIP and
find the estimates to be reasonable and adequately documented. As
described in Appendix C of the SJV PM2.5 Contingency Measure
SIP, the District has estimated the reductions from the two triggering
events provided for in the Residential Wood Burning Contingency Measure
by taking into account many different factors, such as the number of
fireplaces and wood stoves in the individual counties within
[[Page 87997]]
the San Joaquin Valley, the different types of wood stoves (registered
and unregistered, certified and uncertified), and the number of
additional curtailment days under various scenarios, among other
factors. Taking into account these various factors, the District
estimates the Residential Wood Burning Contingency Measure would
achieve annual average emissions reductions of 0.5793 tpd direct
PM2.5 and 0.0817 tpd NOX in the SJV following the
first triggering event and additional reductions of 0.1078 tpd direct
PM2.5 and 0.0148 tpd NOX following the second
triggering event.
Because we are proposing to find that the Residential Wood Burning
Contingency Measure meets the requirements for individual contingency
measures, the associated emissions reductions can be taken into account
by the EPA when determining whether CARB and the District have met the
requirements for the San Joaquin Valley as a whole with respect to the
contingency measure SIP requirements of CAA section 172(c)(9) and 40
CFR 51.1014 for PM2.5 nonattainment areas. Section V of this
document presents our evaluation of the SJV PM2.5
Contingency Measure SIP for compliance with these requirements for the
San Joaquin Valley for the 1997 annual, 2006 24-hour, and 2012 annual
PM2.5 NAAQS, and, as part of that evaluation, we have taken
into account the District's estimates of emissions reductions from the
Residential Wood Burning Contingency Measure.
B. Rural Open Areas Contingency Measure
1. Background and Regulatory History
In areas where there is open, uncovered land, a natural crust will
form and minimize dust emissions. However, activities such as
earthmoving activities, material dumping, weed abatement, and vehicle
traffic will disturb otherwise naturally stable land and allow
windblown fugitive dust emissions to occur.
The District adopted fugitive dust control requirements in
Regulation VIII (containing the 8000 series rules) on November 15,
2001, to address RACM/RACT and BACM/BACT attainment plan requirements
for the 1987 p.m.10 NAAQS.\77\ The EPA found that new
provisions in Regulation VIII ``significantly strengthened'' the prior
existing rules by tightening standards, covering more activities, and
adding more requirements to control dust-producing activities.\78\
Subsequently, the District adopted amendments to Regulation VIII on
August 19, 2004, and September 16, 2004, that the EPA approved into the
San Joaquin Valley portion of the California SIP in 2006.\79\ More
recently the EPA has reviewed Regulation VIII for RACM/RACT, BACM/BACT,
and MSM requirements in acting on the San Joaquin Valley plan for the
2006 24-hour PM2.5 NAAQS.\80\
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\77\ Regulation VIII includes eight rules. Rule 8011 (``General
Requirements'') provides definitions and the general requirements on
which the seven other rules rely. In turn, those seven rules apply
to different sources of fugitive windblown dust based on activity
type. They include Rule 8021 (``Construction, Demolition,
Excavation, Extraction, and Other Earthmoving Activities''), Rule
8031 (``Bulk Materials''), Rule 8041 (``Carryout and Trackout''),
Rule 8051 (``Open Areas''), Rule 8061 (``Paved and Unpaved Roads''),
Rule 8071 (Unpaved Vehicle/Equipment Traffic Area''), and Rule 8081
(``Agricultural Sources''). In this proposed rule, the EPA proposes
to approve Rule 8051, as amended to include a contingency provision,
as a revision to the California SIP.
\78\ 67 FR 15345, 15346-15447 (April 1, 2002) (proposed rule on
2001 version of Regulation VIII).
\79\ 71 FR 8461 (February 17, 2006).
\80\ See, e.g., 85 FR 17382, 17431 (March 27, 2020) (proposal on
BACM/BACT and MSM for the 2006 24-hour PM2.5 NAAQS); and
EPA Region IX, ``Technical Support Document, EPA Evaluation of BACM/
MSM, San Joaquin Valley PM2.5 Plan for the 2006
PM2.5 NAAQS,'' February 2020.
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Among the rules of Regulation VIII, Rule 8051 (``Open Areas'')
applies to vacant portions of residential and commercial lots and
contiguous parcels and the 2004 amendments added applicability
thresholds for rural and urban areas required to meet both the
conditions for a stabilized surface (defined in Rule 8011) and a 20%
opacity standard. Rule 8051 applies to any open area having 0.5 acres
or more within urban areas, or 3.0 acres or more within rural areas,
that contains at least 1,000 square feet of disturbed surface area.\81\
In addition, under Rule 8051, upon evidence of vehicle trespass,
owners/operators must apply a measure(s) that effectively prevents
access to the lot. Rule 8051 does not apply to agricultural areas,
which are subject to other fugitive dust controls such as those under
Rule 4550 (``Conservation Management Practices'') and Rule 8081
(``Agricultural Sources'').
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\81\ Rule 8051, section 2.1.
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2. Summary of State Submission
On September 21, 2023, the District adopted a new contingency
measure in section 7.0 of District Rule 8051 (referred to herein as the
``Rural Open Areas Contingency Measure''), and CARB submitted Rule
8051, as amended, to include the Rural Open Areas Contingency Measure,
as a supplement to the SJV PM2.5 Contingency Measure SIP.
The Rural Open Areas Contingency Measure would be triggered by a final
determination by the EPA that the District failed to meet one or more
of the following triggering events for the applicable PM2.5
NAAQS:
(1) Any Reasonable Further Progress requirement;
(2) Any quantitative milestone;
(3) Submission of a quantitative milestone report; or
(4) Attainment of the applicable PM2.5 NAAQS by the
applicable attainment date.
The Rural Open Areas Contingency Measure would lower the
applicability threshold for rural open areas from 3.0 acres to 1.0
acres, thereby reducing windblown fugitive dust, including the direct
PM2.5 portion of such dust emissions. The State estimates
that the newly subject total acreage would be 18,816 acres. The Rural
Open Areas Contingency Measure would be effective 60 days after an EPA
determination under 40 CFR 51.1014(a) that triggers contingency
measures. At such time, Rule 8051 would require any rural open area
having 1.0 acre or more and containing at least 1,000 square feet of
disturbed surface area (notwithstanding exemptions in section 4.0 of
the rule) to meet section 5.0 of the rule, which requires that:
Whenever open areas are disturbed or vehicles are used in open
areas, an owner/operator shall implement one or a combination of
control measures indicated in Table 8051-1 to comply with the
conditions of a stabilized surface at all times and to limit VDE to
20% opacity. In addition to the requirements of this rule, a person
shall comply with all other applicable requirements of Regulation
VIII.\82\
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\82\ VDE is Visible Dust Emissions.
Table 8051-1 contains the following control measures for open
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areas:
A. Open Areas:
Implement, apply, maintain, and reapply if necessary, at least
one or a combination of the following control measures to comply at
all times with the conditions for a stabilized surface and limit VDE
to 20% opacity as defined in Rule 8011:
A1. Apply and maintain water or dust suppressant(s) to all
unvegetated areas; and/or
A2. Establish vegetation on all previously disturbed areas; and/
or
A3. Pave, apply and maintain gravel, or apply and maintain
chemical/organic stabilizers/suppressant(s).
B. Vehicle Use in Open Areas:
Upon evidence of trespass, prevent unauthorized vehicle access
by:
Posting `No Trespassing' signs or installing physical barriers
such as fences, gates, posts, and/or other appropriate barriers to
effectively prevent access to the area.
The Rural Open Areas Contingency Measure is narrowed by the
addition of
[[Page 87998]]
a new exemption in section 4.2 of Rule 8051 that exempts owners or
operators of rural parcels between 1.0 acres to 3.0 acres that
implement fire prevention activities required by a Federal, State, or
local agency by mowing or cutting (if three inches or more of stubble
remains after moving or cutting) or discing (if no more than two passes
are made).
The District estimates that the Rural Open Burning Contingency
Measure would achieve annual average emissions reductions of 0.008 tpd
direct PM2.5.\83\
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\83\ SJVUAPCD, Final Draft Staff Report, ``Proposed Amendments
to Rule 8051 (Open Areas),'' September 21, 2023, p. B-7.
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3. EPA Evaluation
As discussed further in the EPA's technical support document that
documents our evaluation of amended Rule 8051,\84\ we find that the
Rural Open Areas Contingency Measure now included as section 7.0 of
Rule 8051 meets the applicable requirements for contingency measures.
First, we note that the expansion of the control requirements to rural
parcels between one (1.0) to three (3.0) acres under section 7.0 of
Rule 8051 is conditional and prospective by design and is not required
to meet existing control requirements (i.e., RACM or BACM) \85\ nor
relied upon by the area as part of the area's PM2.5 RFP or
attainment demonstrations. Moreover, the exemption for owners or
operators of certain rural parcels of 1.0 to 3.0 acres in size from the
requirements of the rule that would otherwise be included if the Rural
Open Areas Contingency Measure were triggered is narrowly drawn and
limited such that the exemption will have essentially no impact on the
emissions reductions expected from implementation of the Rural Open
Areas Contingency Measure. This is because the exemption applies only
to owners and operators acting in response to a Federal, State, or
local agency that is requiring implementation of fire prevention
activities and is further limited by specifying the methods that must
be followed to be covered by the exemption.
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\84\ EPA Region IX, ``Technical Support Document for EPA's
Rulemaking for the California State Implementation Plan, San Joaquin
Valley Air Pollution Control District Rule 8051 (`Open Areas'),''
December 2023.
\85\ As noted previously, the RACM and BACM demonstrations that
the EPA has approved for the 1997 annual, 2006 24-hour, and the 2012
annual PM2.5 NAAQS included review of Regulation VIII,
including Rule 8051. See 85 FR 44192, 86 FR 67343, and EPA, ``Air
Quality State Implementation Plans; Approvals and Promulgations:
California; 1997 Annual Fine Particulate Matter Serious and Clean
Air Act Section 189(d) Nonattainment Area Requirements; San Joaquin
Valley, CA,'' Final rule, signed December 5, 2023.
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Second, the Rural Open Areas Contingency Measure includes a trigger
mechanism (``. . . final determination by EPA that the District has
failed to meet any of the following elements for any of the
PM2.5 NAAQS . . .'') that addresses all of the specific
types of determinations listed in 40 CFR 51.1014(a). Third, the Rural
Open Areas Contingency Measure specifies a schedule for timely
implementation (``Upon 60 days after the issuance of a final
determination . . .''). While the extension of the control requirements
to rural parcels between 1.0 to 3.0 acres under section 7.0 is self-
executing (i.e., does not require additional rulemaking), the District
will need as a practical matter to provide notice to the affected
owners/operators that the contingency measure has been triggered.
However, we do not find that providing such notice constitutes
``further action'' by the state for the purposes of CAA section
172(c)(9). Lastly, given the nature of the controls required under Rule
8051 (such as watering, establishing vegetation, applying gravel, or
fencing (if needed)), we find that the associated emissions reductions
from implementation of the Rural Open Areas Contingency Measure can be
achieved within a year of the triggering event.
Therefore, for the reasons provided in the preceding paragraphs, we
propose to approve Rule 8051, as revised, because we find that the
Rural Open Areas Contingency Measure meets all the applicable
requirements for a contingency measure for the San Joaquin Valley for
the 1997 annual, 2006 24-hour, and 2012 annual PM2.5 NAAQS.
We have also reviewed the emissions reduction estimates for the
Rural Open Areas Contingency Measure that were prepared by the District
and included in Appendix B (``Emission Reduction and Cost Effectiveness
Analysis for Proposed Amendments to Rule 8051 (Open Areas)'') of the
Final Draft Staff Report and find the estimates to be reasonable and
adequately documented. As documented in Appendix B of the Final Draft
Staff Report, the District took into account county-specific parcel
size data, among other relevant factors to develop the emissions
reduction estimate of 0.008 tpd of direct PM2.5 for the
Rural Open Areas Contingency Measure.\86\
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\86\ SJVUAPCD, Final Draft Staff Report, ``Proposed Amendments
to Rule 8051 (Open Areas),'' September 21, 2023, p. B-7. The
District's estimate compares favorably with the EPA's own estimate
of 0.01 tpd for essentially the same contingency measure in EPA's
proposed PM2.5 contingency measure FIP for San Joaquin
Valley. 88 FR 53431, 53444.
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Because we are proposing to find that the Rural Open Areas
Contingency Measure meets the requirements for individual contingency
measures, the associated emissions reductions can be taken into account
by the EPA when determining whether CARB and District have met the
requirements for the San Joaquin Valley as a whole with respect to the
contingency measure requirements of CAA section 172(c)(9) and 40 CFR
51.1014 for PM2.5 nonattainment areas. Section V of this
document presents our evaluation of the SJV PM2.5
Contingency Measure SIP for compliance with these requirements for the
San Joaquin Valley for the 1997 annual, 2006 24-hour, and 2012 annual
PM2.5 NAAQS, and, as part of that evaluation, we have taken
into account the District's estimates of emissions reductions from the
Rural Open Areas Contingency Measure.
C. Smog Check Contingency Measure
The general purpose of motor vehicle inspection and maintenance (I/
M) programs is to reduce emissions from in-use motor vehicles in need
of repairs and thereby contribute to state and local efforts to improve
air quality and to attain the NAAQS. California has operated an I/M
program, also known as the ``Smog Check'' program, in certain areas of
the state for over 30 years. Under the current California Smog Check
program, certain vehicles are exempt from the biennial inspection
requirement, including vehicles eight or fewer model years old.
On November 13, 2023, CARB submitted a third contingency measure
for San Joaquin Valley for the PM2.5 NAAQS, which we refer
to herein as the Smog Check Contingency Measure. Under the Smog Check
Contingency Measure, CARB would, within 30 days of the effective date
of an EPA determination that an applicable triggering event has
occurred for San Joaquin Valley for the PM2.5 NAAQS,
transmit a letter to the California Bureau of Automotive Repair and
Department of Motor Vehicles that, in effect, would narrow the newer
vehicle exemption from eight or fewer model years old to seven or fewer
model years old throughout the San Joaquin Valley.\87\ CARB estimates
that the Smog Check Contingency Measure would, after the first
triggering event and adjusting slightly for the effect on foregone
emission reductions from Carl Moyer
[[Page 87999]]
funding,\88\ achieve annual average emission reductions of 0.113 tpd
NOX for the 1997 annual PM2.5 NAAQS, 0.116 tpd
NOX for the 2006 24-hour PM2.5 NAAQS, and 0.083
tpd NOX for the 2012 annual PM2.5 NAAQS in the
San Joaquin Valley.\89\
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\87\ Smog Check Contingency Measure, section 4. The Smog Check
Contingency Measure is structured to further narrow the newer
vehicle exemption by another year upon a second triggering event.
\88\ The Carl Moyer Program distributes incentive grants to fund
the incremental cost of cleaner-than-required engines, equipment,
and other technology. The slight adjustment to emission reductions
mentioned results from a decrease in funding to the Carl Moyer
program. If the contingency measure were triggered, fewer vehicles
would be exempt from the Smog Check program, and thus fewer vehicles
would be subject to the Smog Check abatement fee (which is only
assessed on vehicles exempted from Smog Check testing). That fee
provides funding to the Carl Moyer Program. For more information on
the program, see https://ww2.arb.ca.gov/carl-moyer-program-apply.
\89\ Smog Check Contingency Measure, Table 28 and Table 31.
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In a separate proposed rule published in this Federal Register, we
are proposing to approve the Smog Check Contingency Measure and,
therefore, its associated emissions reductions can be taken into
account by the EPA when determining whether the State and District have
met the contingency measure requirements of CAA section 172(c)(9) and
40 CFR 51.1014 for PM2.5 nonattainment areas for the San
Joaquin Valley as a whole. Section V of this document presents our
evaluation of the SJV PM2.5 Contingency Measure SIP for
compliance with these requirements for the San Joaquin Valley for the
1997 annual, 2006 24-hour, and 2012 annual PM2.5 NAAQS, and
as part of that evaluation, we have taken into account CARB's estimates
of emissions reductions from the Smog Check Contingency Measure.
V. EPA Review of San Joaquin Valley PM2.5 Contingency Measure Plan
Element
A. Background and Regulatory History
In light of the nonattainment designation for San Joaquin Valley
for the PM2.5 NAAQS, the State of California was required
under CAA section 172(c)(9) and 40 CFR 51.1014 to adopt and submit a
SIP revision providing for implementation of contingency measures to
take effect in the San Joaquin Valley if the EPA determines that the
area has failed to meet an RFP requirement, failed to submit a
quantitative milestone report, failed to meet a quantitative milestone,
or failed to attain the PM2.5 NAAQS by the applicable
attainment date.
In 2019, as discussed in section I.B of this document, CARB
submitted a SIP revision that included contingency measure plan
elements for San Joaquin Valley for the 1997 annual and 24-hour, 2006
24-hour, and 2012 annual PM2.5 NAAQS. The contingency
measure plan elements relied on an earlier version of the Residential
Wood Burning Contingency Measure and justified reliance on that single
measure notwithstanding the fact that the measure alone would not
achieve emissions reductions equivalent to one year's worth of RFP by
reference to larger planning context for the area and related surplus
emissions reductions expected to be achieved from already-implemented
control measures.
In 2021, the EPA disapproved the contingency measure plan elements
for the applicable PM2.5 NAAQS because the plan elements did
not include a contingency measure that addressed all four triggering
events for the PM2.5 NAAQS under 40 CFR 51.1014; that would
ensure that emissions reductions would be achieved, once triggered; or,
for the 1997 annual PM2.5 NAAQS, that would be surplus to
the area's needs for RFP and attainment.\90\ We proposed disapproval of
the contingency measure elements before the Ninth Circuit's Assoc. of
Irritated Residents (AIR) v. EPA decision \91\ was published and, thus,
did not identify the contingency measure elements' reliance on surplus
emissions reductions from already-implemented measures (to justify
adoption of a single contingency measure which would not, on its own,
achieve one year's worth of RFP) as a specific deficiency.
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\90\ 86 FR 38652, 38669-38670; and 86 FR 49100, 49124-49125 and
49133-49134.
\91\ In AIR v. EPA, the Ninth Circuit held that, under the EPA's
current guidance, the surplus emissions reductions from already-
implemented measures cannot be relied upon to justify the approval
of a contingency measure that would achieve far less than one year's
worth of RFP as sufficient by itself to meet the contingency measure
requirements of CAA sections 172(c)(9) and 182(c)(9) for the
nonattainment area. 10 F.4th at 946-47.
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B. Summary of State Submission
In response to the disapprovals of the previous contingency measure
elements, the District and CARB prepared the SJV PM2.5
Contingency Measure SIP, which CARB adopted as part of the California
SIP and submitted for EPA approval on June 8, 2023. In the SJV
PM2.5 Contingency Measure SIP, the District and CARB present
their evaluation of potential contingency measures, amendments to the
previous contingency provisions in the District's residential wood
burning rule (i.e., the Residential Wood Burning Contingency Measure),
a commitment to evaluate potential contingency provisions for Rule 8051
(``Open Areas''), analysis of one year's worth of emission reductions,
and infeasibility demonstrations for rejecting other potential
contingency measures. In light of the AIR v. EPA decision, the District
and CARB do not justify the selection of the contingency measures on
the basis of surplus emissions reductions from already-implemented
measures, as had been the case previously, but rather ``due to a
scarcity of available, qualifying measures,'' and the time period in
which emission reductions should occur.\92\ Subsequent to the
submission of the SJV PM2.5 Contingency Measure SIP, the
District and CARB have supplemented the contingency measure elements
for the applicable PM2.5 NAAQS with the adoption and
submission of two additional contingency measures--the Rural Open Areas
Contingency Measure and the Smog Check Contingency Measure.
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\92\ SJV PM2.5 Contingency Measure SIP, p. 5.
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1. General Considerations
``General Considerations,'' for the purposes of this proposed
action, includes identification of the relevant pollutants, the use of
contingency measures for more than one triggering event and for more
than one NAAQS, and the magnitude of emissions reductions. Contingency
measure feasibility analyses are addressed in a separate subsection.
a. PM2.5 and PM2.5 Precursors
CARB and the District have concluded, based on CARB modeling, that
sulfur oxides (SOX), volatile organic compounds (VOCs), and
ammonia are not significant precursors for PM2.5 formation
in the San Joaquin Valley. Therefore, their contingency measure
submissions address sources of direct PM2.5 and
NOX emissions.
b. Using Same Contingency Measures for More Than One Triggering Event,
NAAQS
The contingency measures that CARB and the District rely upon in
the SJV PM2.5 Contingency Measure SIP are not limited to one
PM2.5 NAAQS, but rather cover all three of the 1997 annual,
2006 24-hour, and 2012 annual PM2.5 NAAQS (i.e., the same
set of contingency measures has been submitted to address the
contingency measure requirements for more than one PM2.5
NAAQS).
c. Magnitude of Emissions Reductions
To evaluate the sufficiency of the Residential Wood Burning
Contingency Measure with respect to the magnitude of emissions
reductions that the contingency measures should achieve, the SJV
PM2.5 Contingency Measure SIP
[[Page 88000]]
includes calculations of one year's worth of RFP for the relevant
PM2.5 NAAQS for the San Joaquin Valley. To do this, the
District calculated the change in annual average emission reductions
from the base year to the attainment year for the 1997 annual
PM2.5 NAAQS (from 2013 to 2023) and 2006 24-hour
PM2.5 NAAQS (from 2013 to 2024), and the outermost Moderate
area RFP year for the 2012 annual PM2.5 NAAQS (from 2013 to
2022), and divided those by the number of years between the base year
and applicable attainment or RFP year. The State's estimates of one
year's worth of RFP in the SJV PM2.5 Contingency Measure SIP
are as follows: 0.44 tpd direct PM2.5 and 16.7 tpd
NOX (for the 1997 annual PM2.5 NAAQS); 0.58 tpd
direct PM2.5 and 18.4 tpd NOX (for the 2006 24-
hour PM2.5 NAAQS); and 0.46 tpd direct PM2.5 and
15.3 tpd NOX (for the 2012 annual PM2.5
NAAQS).\93\
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\93\ SJV PM2.5 Contingency Measure SIP, pp. 5-6; see
``Step 1b'' emissions estimates in the ``Step 1'' table for one
year's worth of RFP.
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Per the EPA's Draft Revised Contingency Measure Guidance, the SJV
PM2.5 Contingency Measure SIP also includes estimates of one
year's worth of progress that were made by calculating one year's worth
of RFP as a percentage of the base year emissions inventory and
applying that percentage to the attainment year emissions inventory for
the 1997 annual and 2006 24-hour PM2.5 NAAQS, and to the
outermost Moderate area RFP year for the 2012 annual PM2.5
NAAQS. The estimates of one year's worth of progress in the SJV
PM2.5 Contingency Measure SIP are as follows: 0.41 tpd
direct PM2.5 and 7.91 tpd NOX (for the 1997
annual PM2.5 NAAQS); 0.52 tpd direct PM2.5 and
6.66 tpd NOX (for the 2006 24-hour PM2.5 NAAQS);
and 0.43 tpd direct PM2.5 and 8.65 tpd NOX (for
the 2012 annual PM2.5 NAAQS).\94\
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\94\ SJV PM2.5 Contingency Measure SIP, pp. 5-6; see
the ``Step 3'' table for one year's worth of progress.
---------------------------------------------------------------------------
CARB and the District present their comparison of emission
reductions from the Residential Wood Burning Contingency Measure to
those needed for one year's worth of progress in Table 17 of the SJV
PM2.5 Contingency Measure SIP.\95\ They conclude that this
contingency measure would achieve emission reductions of 0.69 tpd
direct PM2.5 and 0.1 tpd NOX (including
reductions following both first and second triggering events) and that
such reductions would exceed those needed for one year's worth of
progress for direct PM2.5 but would fall short of those
needed for one year's worth of progress for NOX.
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\95\ SJV PM2.5 Contingency Measure SIP, Table 17.
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Noting the direct PM2.5 surplus, CARB and the District
then trade the surplus direct PM2.5 emission reductions at a
ratio of 6:1 (i.e., 6 tpd NOX for each excess 1 tpd direct
PM2.5),\96\ based on analyses in their 2021 ``Progress
Report and Technical Submittal for the 2012 PM2.5 Standard
San Joaquin Valley'' (``2021 Progress Report'').\97\ CARB and the
District note that direct PM2.5 emission reductions are a
more efficient and cost-effective way to reduce ambient
PM2.5 in the San Joaquin Valley than NOX emission
reductions.\98\ The report presented analysis of the relative effect of
reducing 30% direct PM2.5 (annual average) emissions versus
30% NOX (annual average) emissions on ambient annual average
PM2.5 concentrations (as modeled for 2024) at each
regulatory monitoring site in the San Joaquin Valley using data from
the precursor sensitivity analyses in the 2018 PM2.5
Plan.\99\ CARB and the District examined several methods for
calculating the ratio based on varying combinations of monitoring
sites. They concluded that 6:1 was a conservative ratio as it was less
than the average ratio for the two sites with the highest modeled
(annual average) ambient PM2.5 concentrations in 2025
(6.1:1), the average ratio of sites with modeled 2025 concentrations
over 11.00 [mu]g/m\3\ (6.4:1), and the average ratio of sites with a
2020 design value over 12 [mu]g/m\3\ (6.6:1).\100\ They also conclude
that a ratio of 6:1 would be conservative as it was less than the 8.1:1
ratio for the modeled design value for the Bakersfield-Planz site
(i.e., the site with the highest modeled 2025 concentration).
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\96\ SJV PM2.5 Contingency Measure SIP, pp. 73-74.
\97\ CARB and SJVUAPCD, ``Progress Report and Technical
Submittal for the 2012 PM2.5 Standard San Joaquin
Valley,'' October 19, 2021 (``2021 Progress Report''). See pages 34-
38 for the State's ``PM2.5 Precursor Sensitivity Modeling
Analysis and Trading Ratios.'' Transmitted to the EPA by letter
dated October 20, 2021, from Richard W. Corey, Executive Officer,
CARB, to Deborah Jordan, Acting Regional Administrator, EPA Region
IX.
\98\ 2021 Progress Report, p. 34.
\99\ See Appendix K (``Modeling Attainment Demonstration'') of
the 2018 PM2.5 Plan, including Table 14 (annual average
modeled emissions inventory) and Table 49 (precursor sensitivity
analysis for annual average ambient PM2.5 concentration
in 2024).
\100\ At the time, the modeled 2025 PM2.5
concentrations corresponded to the attainment year in the State's
Serious area plan for the 2012 annual PM2.5 NAAQS, which
was later withdrawn on October 27, 2022. Letter dated October 27,
2022, from Steven S. Cliff, Executive Officer, CARB, to Martha
Guzman, Regional Administrator, EPA Region IX.
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Applying this 6:1 trading ratio, CARB and the District estimate
that, after achieving the full one year's worth of progress for direct
PM2.5 emission reductions, the shortfall of NOX
emissions for one year's worth of progress would be as follows: 6.13
tpd (compared to 7.91 tpd for the 1997 annual PM2.5 NAAQS),
5.54 tpd (compared to 6.66 tpd for the 2006 24-hour PM2.5
NAAQS), and 6.99 tpd (compared to 8.65 tpd for the 2012 annual
PM2.5 NAAQS).\101\ The NOX equivalent emissions
reductions equate to a range of 17% to 23% of one year's worth of
progress for NOX.
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\101\ SJV PM2.5 Contingency Measure SIP, p. 74.
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In light of the shortfall of NOX emissions reductions,
the SJV PM2.5 Contingency Measure SIP includes feasibility
analyses by the District for stationary and area sources and by CARB
for mobile sources to justify the reliance on a contingency measure
that would not provide for one year's worth of progress (i.e., for
NOX). We summarize the feasibility analyses prepared by the
District and CARB in the following section of this document.
2. Contingency Measure Feasibility Analyses
The District states that it has already implemented rules for
sources that meet or go beyond federal requirements and that few
measures remain to explore as contingency measures. The District
describes the relative stringency of their stationary and area source
measures by noting the EPA's 2020 approval of the State's demonstration
of BACM and MSM for the 2006 24-hour PM2.5 NAAQS; highlights
the District's tighter limits for certain industrial sources compared
to the EPA's national emission limits to address the interstate
transport of air pollution; and describes the numerous regulatory
measures and incentive-based measures adopted since and in fulfillment
of the 2018 PM2.5 Plan.\102\
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\102\ SJV PM2.5 Contingency Measure SIP, section 4.1
(``Stringency of District's Regulatory Program''). See also 87 FR
20036 (April 6, 2022) (proposed rule for the interstate transport
FIP for the 2015 ozone NAAQS); and 88 FR 36654 (June 5, 2023) (final
rule for interstate transport FIP for the 2015 ozone NAAQS).
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More specifically, the District analyzed the wide range of
stationary and area sources for contingency measure opportunities,
including identification of potential control measures, analysis of the
technological and economic feasibility of such measures, assessment of
the time required to develop and implement such measures within 60 days
and achieve emission reductions within one to two years, and discussion
of whether the District could adopt such measures
[[Page 88001]]
and secure EPA approval prior to the EPA promulgating a contingency
measure FIP for PM2.5 in the San Joaquin Valley. For the
potential control measures identified through this process, the
District further analyzed possible contingency measures for wood
burning fireplaces and wood burning heaters, rural open areas,
commercial charbroiling, almond harvesting, and oil and gas production
combustion equipment. Based on this analysis, the District adopted the
Residential Wood Burning Contingency Measure and concluded that the
other possible contingency measures were infeasible or untimely but
committed to further evaluate the rural open areas rule as a potential
contingency measure. Subsequently, the District fulfilled the Agency's
commitment to further evaluate the rural open areas rule and adopted
the Rural Open Areas Contingency Measure to supplement the SJV
PM2.5 Contingency Measure SIP.
In turn, CARB states that its mobile source control programs often
set the standard for other states to follow and that more than half of
mobile source NOX emissions in the San Joaquin Valley are
from primarily federally regulated sources, which limit opportunities
for contingency measures that would achieve one year's worth of
progress in emission reductions. CARB further notes that a relatively
limited portion (of NOX) emissions are regulated by local
air districts in California and that, even if discounting the emission
reductions needed for contingency measures by primarily federally
regulated emission sources, additional control measures to achieve the
one year's worth of emission reductions are scarce or nonexistent.
CARB states that if such measures were identified, they would be
adopted to improve air quality and help attain the NAAQS, rather than
held in reserve as contingency measures, and that control measures to
achieve large emission reductions often take longer than two years to
implement--beyond the one- to two-year timeframe for achieving emission
reductions for contingency purposes. For example, CARB states that the
three largest NOX reduction measures committed to in the
2022 State SIP Strategy \103\ rely on accelerated turnover of engines
and trucks and shifting to zero-emission equipment, which is limited by
infrastructure and equipment options. CARB further states that a
central difficulty in considering contingency measures is that CARB has
already committed to zero emission standards where feasible and as
expeditiously as possible to fulfill goals established in California
Executive Order N-79-20 for mobile sources ranging from light-duty cars
by 2035 to heavy-duty trucks by 2045.\104\
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\103\ CARB, ``2022 State Strategy for the State Implementation
Plan,'' adopted September 22, 2022, Chapter 5 (``State SIP
Measures'').
\104\ Executive Department, State of California, Executive Order
N-79-20, September 23, 2020.
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More specifically, CARB analyzed all sources under its authority to
identify potential contingency measures using three criteria, per CAA
requirements, court decisions, and the EPA's Draft Revised Contingency
Measure Guidance. First, CARB assessed whether the measure could be
implemented within 60 days of a triggering event and emission
reductions achieved within one to two years. Second, CARB assessed the
technological and economic feasibility of implementing the measure,
particularly within the one- to two-year timeframe. Third, CARB
evaluated whether it could adopt the measure and secure EPA approval by
the September 30, 2024 consent decree deadline for the EPA to
promulgate a FIP or alternatively approve contingency measure SIP
submissions meeting the contingency measure requirements.
Regarding mobile source contingency measures, CARB describes
several challenges that limit the control measure options that would
meet contingency measure requirements. For new engine standards, CARB
states that engine manufacturers need lead time to ``design, plan,
certify, manufacture, and deploy cleaner engines.'' For fleet
regulations, CARB states that manufacturing must be mature to provide
sufficient supply and that owners and operators must ``plan, purchase,
and deploy new, often zero-emission, equipment'' that may involve
changes to business operations and infrastructure. Based on the time
required for implementing such measures, CARB concludes that new engine
standards and fleet regulations are not appropriate for contingency
measures.
Furthermore, CARB states that its regulations are technology-
forcing, which requires time for industry to plan, develop, and
implement new technologies, and that it is driving mobile sources to
zero-emissions where feasible to achieve criteria, air toxic, and
climate pollutant goals. Similarly, CARB argues that the technology-
forcing and zero-emission-based nature of its mobile source regulations
reduce or eliminate opportunities for contingency measure emission
reductions. Lastly, CARB states that its full rulemaking process for
most mobile source measures takes about five years to develop and
adopt, which would not be possible prior to the September 30, 2024
consent decree deadline for the EPA to promulgate a FIP, or approve
contingency measure SIP submissions meeting the contingency measure
requirements.
CARB concludes that there are no feasible mobile source contingency
measures for the 1997 annual, 2006 24-hour, and 2012 annual
PM2.5 NAAQS (as of the April 2023 public notice for the SJV
PM2.5 Contingency Measure SIP) yet continued to assess
opportunities for feasible contingency measures. Per a June 2023
commitment letter by CARB's Executive Officer, and as further described
in section IV.C of this proposed rule, CARB has since completed the
development of and adopted the state-wide Smog Check Contingency
Measure that complements the District contingency measures for
residential wood burning and rural open areas.
3. Conclusion
Based on achieving the full one year's worth of progress for direct
PM2.5 emission reductions, a portion of one year's worth of
progress for NOX emission reductions, and their contingency
measure feasibility analyses, CARB and the District conclude that the
SJV PM2.5 Contingency Measure SIP, and related infeasibility
demonstrations, and the Residential Wood Burning Contingency Measure
fulfill the contingency measure requirements for the PM2.5
NAAQS.\105\
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\105\ SJV PM2.5 Contingency Measure SIP, p. 74. As
noted previously, the SJV PM2.5 Contingency Measure SIP
has been supplemented with two additional contingency measures
(i.e., the Rural Open Areas Contingency Measure and the Smog Check
Contingency Measure).
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C. EPA Evaluation
We propose to find that CARB and the District have corrected the
specific deficiencies that we identified in the previously submitted
contingency measure elements for the applicable PM2.5 NAAQS
and that were the bases for our previous disapprovals of the
contingency measure element. Our proposed conclusion in this regard
recognizes that the revised contingency measure plan elements for the
applicable PM2.5 NAAQS (SJV PM2.5 Contingency
Measure SIP) now includes contingency measures (Residential Wood
Burning Contingency Measure, Rural Open Areas Contingency Measure, and
the Smog Check Contingency Measure) that address all four triggering
events for the PM2.5 NAAQS under 40
[[Page 88002]]
CFR 51.1014, that have been structured to ensure emissions reductions,
once triggered, and that are surplus to the RFP and attainment needs of
the San Joaquin Valley for the 1997 annual PM2.5 NAAQS.\106\
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\106\ With respect to the contingency measures being surplus to
the RFP and attainment needs of the San Joaquin Valley for the 1997
annual PM2.5 NAAQS, we are relying on the recent approval
of the RFP and attainment demonstrations in the State's 15 [mu]g/
m\3\ SIP Revision.
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1. General Considerations
As stated previously, ``General Considerations,'' for the purposes
of this proposed action, includes identification of the relevant
pollutants, the use of contingency measures for more than one
triggering event and for more than one NAAQS, and the magnitude of
emissions reductions. We present our evaluation of the State's
contingency measure feasibility analyses in a separate subsection.
a. PM2.5 and PM2.5 Plan Precursors
Under the CAA, states are required to regulate not only direct
emissions of PM2.5 in an attainment plan, but also all
PM2.5 precursors. Under the EPA's PM2.5 SIP
Requirements Rule, states must identify, adopt, and implement control
measures, including control technologies, on sources of direct
PM2.5 emissions and sources of emissions of PM2.5
plan precursors located in PM2.5 nonattainment areas.\107\
PM2.5 plan precursors are those PM2.5 precursors
(which are sulfur dioxide (SO2), NOX, VOCs, and
ammonia) that the state must regulate in the applicable attainment
plan.\108\ A state may elect to submit to the EPA precursor
demonstrations for a specific nonattainment area in order to establish
that regulation of one or more precursors is not necessary for
attainment in the nonattainment area at issue.\109\ If the EPA approves
a comprehensive precursor demonstration that shows that emissions of a
particular precursor does not contribute significantly to
PM2.5 levels that exceed the NAAQS in an area, then the
state is not required to control emissions of the relevant precursor
from existing sources in the current attainment plan.\110\ Accordingly,
the state would not need to address the precursor in order to meet
attainment plan requirements, including RFP, in QMs and associated QM
reports, or be required to adopt contingency measures to reduce the
precursor at issue.\111\
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\107\ See generally 40 CFR 51.1009(a) and 40 CFR 51.1010(a).
\108\ 40 CFR 51.1000.
\109\ 40 CFR 51.1006(a).
\110\ 40 CFR 51.1006(a)(1)(iii).
\111\ 40 CFR 51.1009(a)(4)(i).
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For the San Joaquin Valley, as noted in section V.B.1 of this
proposed rule, CARB and the District have concluded, based on CARB
modeling, that SOX, VOCs, and ammonia are not significant
precursors for PM2.5 formation in the San Joaquin
Valley.\112\ The EPA has considered, and approved, the State's
precursor demonstrations with respect to the 1997 annual, 2006 24-hour,
and the 2012 annual PM2.5 NAAQS in taking action on the SIP
submissions applicable to each NAAQS.\113\ Therefore, we agree with
CARB and the District that the contingency measure submissions for the
1997 annual, 2006 24-hour, and 2012 annual PM2.5 NAAQS must
address sources of direct PM2.5 and NOX emissions
but do not need to address sources of SOX, VOCs, or ammonia.
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\112\ See, e.g., SJV PM2.5 Contingency Measure SIP,
Appendix G (Appendix C from the 2018 PM2.5 Plan), p. C-
12.
\113\ EPA, ``Air Quality State Implementation Plans; Approvals
and Promulgations: California; 1997 Annual Fine Particulate Matter
Serious and Clean Air Act Section 189(d) Nonattainment Area
Requirements; San Joaquin Valley, CA,'' Final rule, signed December
5, 2023; 85 FR 17382, 17390-17396, finalized at 85 FR 44192; 86 FR
49100, 49107-49112, finalized at 86 FR 67343.
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For the 2006 24-hour PM2.5 NAAQS, the EPA approved the
comprehensive precursor demonstration that established that
SO2, VOCs, and ammonia emissions do not contribute
significantly to PM2.5 levels that exceed the 2006 24-hour
PM2.5 NAAQS in the San Joaquin Valley.\114\ In 2020, a
petition for review before the Ninth Circuit Court of Appeals
challenged the EPA's approval of the portions of the 2019 SIP
submissions related to the 2006 24-hour PM2.5 NAAQS. In
2021, the Court vacated the approval of aggregate commitments to the
extent such commitments relied on inadequately funded incentive-based
control measures and remanded to the EPA for further consideration of
the aggregate commitments, and for further proceedings consistent with
the decision, but denied the petition in all other respects.\115\ The
EPA's approval of the comprehensive precursor demonstration was not the
subject of the court challenge. In light of the current circumstances
surrounding these precursor demonstrations, the EPA agrees that direct
PM2.5 and NOX are the appropriate pollutants for
which contingency measures are required in the San Joaquin Valley for
the 2006 24-hour PM2.5 NAAQS.
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\114\ 85 FR 17382, 17390-17396, finalized at 85 FR 44192.
\115\ Medical Advocates for Healthy Air v. EPA, No. 20-72780,
Memorandum, Dkt. #58-1 (9th Cir. Apr. 13, 2022).
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b. Using Same Contingency Measures for More Than One Triggering Event,
NAAQS
Under CAA section 172(c)(9), SIPs must provide for the
implementation of specific contingency measures if the area fails to
meet RFP or to attain the NAAQS by the applicable attainment date. For
PM2.5, there are four potential triggering events: failure
to meet any RFP requirement, failure to submit a QM report, failure to
meet a QM, and failure to attain the NAAQS by the applicable attainment
date.\116\
---------------------------------------------------------------------------
\116\ 40 CFR 51.1014(a).
---------------------------------------------------------------------------
To meet the contingency measure requirement, states may adopt
different measures for different triggering events but are not required
to do so. If the state adopts the same set of contingency measures for
all the triggering events, however, then the contingency measures may
all be implemented by earlier-occurring triggering events leaving no
contingency measures for potential later-occuring events. In that case,
if a state has no remaining approved contingency measures, then the EPA
believes that states must adopt and submit additional contingency
measures to be available for potential later-occuring triggering
events. The potential for states to have used all approved contingency
measures, and thus to lack contingency measures for potential later-
triggering events is compounded by the reliance on the same set of
contingency measures for more than one iteration of the
PM2.5 NAAQS. Accordingly, while the EPA might approve a SIP
that relies on the same contingency measures for multiple potential
triggering events, a SIP that does so may be subject to the need for
future revision each time a triggering event occurs.
As noted previously, CARB and the District have submitted three
contingency measures, each of which covers all three of the 1997
annual, 2006 24-hour, and 2012 annual PM2.5 NAAQS (i.e., the
same set of contingency measures has been submitted to address the
contingency measure requirements for more than one PM2.5
NAAQS). In addition, each of the contingency measures addresses each of
the four potential triggering events: failure to meet any RFP
requirement, failure to submit a QM report, failure to meet a QM, and
failure to attain the NAAQS by the applicable attainment date.\117\ As
noted previously, states may adopt different measures for different
triggering events and different NAAQS, but we do not believe that
states are
[[Page 88003]]
required to do so, and thus, we find that the State's reliance on the
same set of contingency measures for more than one triggering event and
more than one NAAQS to be acceptable.
---------------------------------------------------------------------------
\117\ 40 CFR 51.1014(a).
---------------------------------------------------------------------------
In this instance, two of the three contingency measures--the
Residential Wood Burning Contingency Measure and the Smog Check
Contingency Measure--include provisions that would separately be
implemented after a second triggering event.\118\ Under section 5.7.3
of Rule 4901, upon a first triggering event, the No Burn (i.e.,
curtailment) thresholds for the five non-hot spot counties (Kings,
Merced, San Joaquin, Stanislaus, and Tulare) would be lowered to match
the tighter No Burn thresholds for the three hot spot counties (Fresno,
Madera, and Kern) (i.e., to 35 [mu]g/m\3\ for registered devices and to
12 [mu]g/m\3\ for unregistered devices). Upon a subsequent triggering
event (i.e., in response to a separate, later determination by the
EPA), the No Burn threshold for unregistered fireplaces and woodstoves
for all eight counties would be lowered from 12 [mu]g/m\3\ to 11 [mu]g/
m\3\.
---------------------------------------------------------------------------
\118\ We note that the contingency provisions in Rule 8051 would
be fully implemented following a first triggering event.
---------------------------------------------------------------------------
Similarly, under the Smog Check Contingency Measure, upon a first
triggering event, the Smog Check exemption would be lowered from eight
or fewer model years old to seven or fewer model years old. Upon a
subsequent triggering event (i.e., in response to a separate, later
determination by the EPA), the Smog Check exemption would be lowered
from seven or fewer model years old to six or fewer model years old.
Therefore, after a first triggering event, the State would have two
remaining SIP-approved contingency measures that are not yet triggered
as it develops a SIP revision to meet the missed RFP requirement or to
correct ongoing nonattainment. The EPA believes that the State would
need to assess whether those two remaining contingency measures were
sufficient to meet the contingency measure requirements in that future
time and, if necessary, adopt and submit additional contingency
measures to be available for potential later-occuring triggering
events.
c. Magnitude of Emissions Reductions
As noted previously, neither the CAA nor the EPA's implementing
regulations establish a specific level of emission reductions that
implementation of contingency measures must achieve, but the EPA has
recommended in existing guidance that contingency measures should
provide for emission reductions equivalent to approximately one year of
reductions needed for RFP in the nonattainment area.
Using the longstanding approach, contingency measures should
provide for emissions reductions of approximately one year's worth of
RFP for each of the relevant PM2.5 NAAQS. Under the approach
described in the EPA's Draft Revised Contingency Measure Guidance, the
EPA has suggested that contingency measures provide for emissions
reductions of approximately one year's worth of progress for each of
the relevant PM2.5 NAAQS rather than one year's worth of
RFP.
We have reviewed the calculations in the SJV PM2.5
Contingency Measure SIP, as summarized in section V.B.1 of this
proposed rule, and find that the State properly calculated one year's
worth of RFP (as an interim step in calculating one year's worth of
progress) and one year's worth of progress for each of the relevant
PM2.5 NAAQS in the San Joaquin Valley.\119\ We have also
reviewed the calculations in the SJV PM2.5 Contingency
Measure SIP used to compare the emissions reductions from the
Residential Wood Burning Contingency Measure with one year's worth of
progress and generally find them to be acceptable with the exception
that the calculation includes the emissions reductions from both
triggering events in the evaluation. Only the emissions reductions from
the first trigger should be used because there is no assurance that the
additional emissions reductions from the second triggering event will
provide emissions reductions in the year or two following the first
triggering event.
---------------------------------------------------------------------------
\119\ With respect to the 2012 PM2.5 NAAQS, we agree
with the calculation of one year's worth of progress in the SJV
PM2.5 Contingency Measure SIP that is based on the
outermost RFP milestone year, rather than the attainment year,
because, as an area for which an impracticability demonstration has
been approved, the attainment year has not yet been established.
---------------------------------------------------------------------------
We recognize that the calculations in the SJV PM2.5
Contingency Measure SIP relied upon an interpollutant trading ratio of
6:1 (i.e., 6 tpd NOX for each excess 1 tpd direct
PM2.5) to convert ``excess'' PM2.5 emissions
reductions to equivalent NOX emissions reductions. The
technical basis of the interpollutant trading ratio of 6:1 was provided
in the State's 2021 Progress Report to the EPA to support the State's
Serious area attainment demonstration for the 2012 annual
PM2.5 NAAQS. Specifically, the State analyzed the relative
effect of reducing 30% direct PM2.5 (annual average)
emissions versus 30% NOX (annual average) emissions on
ambient annual average PM2.5 concentrations (as modeled for
2024) at each regulatory monitoring site in the San Joaquin Valley
using data from the precursor sensitivity analyses in the 2018
PM2.5 Plan.\120\ While the 2021 Progress Report was
nominally for only the 2012 annual PM2.5 NAAQS and
corresponded to the modeled 2025 attainment year in the State's Serious
area plan for the 2012 annual PM2.5 NAAQS (later withdrawn
on October 27, 2022), we note that the control strategy in the 2018
PM2.5 Plan was built upon annual average emissions
inventories (e.g., for demonstrating RFP) and applied in common to the
1997, 2006, and 2012 PM2.5 NAAQS. Later, the 15 [mu]g/m\3\
SIP Revision for the 1997 annual PM2.5 NAAQS retained the
annual average emissions inventory basis for the control strategy to
attain that NAAQS and continued to rely on the State's precursor
sensitivity analyses. In other words, there is a common foundation on
which CARB and the District selected the 6:1 ratio.
---------------------------------------------------------------------------
\120\ See Appendix K (``Modeling Attainment Demonstration'') of
the 2018 PM2.5 Plan, including Table 14 (annual average
modeled emissions inventory) and Table 49 (precursor sensitivity
analysis for annual average ambient PM2.5 concentration
in 2024).
---------------------------------------------------------------------------
As previously discussed, CARB and the District examined several
methods for calculating the ratio based on varying combinations of
monitoring sites. They concluded that 6:1 was a conservative ratio as
it was less than the average ratio for the two sites (in Fresno and
Kern Counties) with the highest modeled (annual average) ambient
PM2.5 concentrations in 2025 (6.1:1), the average ratio of
the six sites (in Fresno, Kern, Stanislaus, and Tulare Counties) with
modeled 2025 concentrations over 11.00 [mu]g/m\3\ (6.4:1), and the
average ratio of the six sites (in Fresno, Kern, Kings, and Tulare
Counties) with a 2020 design value over 12 [mu]g/m\3\ (6.6:1).\121\
---------------------------------------------------------------------------
\121\ 2021 Progress Report, Table 7 (``Base and Projected 2025
Annual Average Design Values Used to Select/Prioritize Sites for
Calculating an Average Trading Ratio''). At the time, the modeled
2025 concentrations corresponded to the attainment year in the
State's Serious area plan for the 2012 annual PM2.5
NAAQS, which was later withdrawn on October 27, 2022.
---------------------------------------------------------------------------
We have reviewed the State's technical basis for the 6:1
interpollutant trading ratio and find that it is a reasonable ratio for
purposes of estimating the NOX equivalent of excess direct
PM2.5 emission reductions for purposes of contingency
measures in the San Joaquin Valley for the 1997 annual, 2006 24-hour,
and 2012 annual PM2.5 NAAQS. First, the annual average
emissions inventory and integrated
[[Page 88004]]
nature of attainment planning for the three NAAQS provides a common
emissions and control strategy basis for the ratios. Second, the ratios
are based on whole emissions inventories (rather than, for example,
only on-road emissions inventories that might be relevant to motor
vehicle emission budgets) and modeling for a near-term year (2025),
given that these contingency measures would be triggered no sooner than
2024.
Third, by examining several methods that involve averaging across
two to six sites, including two methods that include both hot spot and
non-hot spot counties, the State provides robustness in the ratio
(i.e., may better reflect the effect of emission reductions from the
three contingency measures across sites in the San Joaquin Valley). The
inclusion of non-hot spot counties in two of the averaging methods is
important in that, upon a first triggering event, the Residential Wood
Burning Contingency Measure--which is the contingency measure that
would achieve emission reductions in excess of one year's worth of
direct PM2.5 emission reductions--would lower the No Burn
(i.e., curtailment) thresholds for the five non-hot spot counties
(Kings, Merced, San Joaquin, Stanislaus, and Tulare) to match the
tighter No Burn thresholds for the three hot spot counties (Fresno,
Madera, and Kern). Fourth, we agree with CARB and the District that the
selected 6:1 ratio is conservative relative to the slightly higher
average ratios of 6.1:1, 6.4:1, and 6.6:1 from the methods that select
sites with relatively high modeled concentrations, and relative to the
ratio of 8.1:1 at the modeled 2025 high site of Bakersfield-Planz.\122\
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\122\ We note that the interpollutant trading ratio of 6:1
compares favorably with the interpollutant trading ratios that the
EPA used recently in the Agency's proposed San Joaquin Valley
PM2.5 contingency measure FIP. We provide our evaluation
of the interpollutant trading ratio in the SJV PM2.5
Contingency Measure SIP relative to the corresponding ratios in our
proposed FIP in a Memorandum to File from Rory Mays and Scott
Bohning, EPA Region IX, Subject: ``Comparison of California and EPA
Interpollutant Trading Ratios for Trading Excess Direct
PM2.5 Emission Reductions to NOX Equivalent
Emission Reductions for PM2.5 Contingency Measure
Purposes in the San Joaquin Valley,'' December 2023.
---------------------------------------------------------------------------
The SJV PM2.5 Contingency Measure SIP calculated the
emissions reductions only from the Residential Wood Burning Contingency
Measure because that was the only adopted contingency measure at the
time, but the District and CARB have since supplemented the submission
with two additional contingency measures--the Rural Open Areas
Contingency Measure and the Smog Check Contingency Measure. As
described in sections IV.A and IV.B of this proposed rule, the EPA
proposes to approve the Residential Wood Burning Continency Measure and
the Rural Open Areas Contingency Measure and, in a separate rulemaking
action, we are proposing to approve the Smog Check Contingency Measure.
Table 2 summarizes the estimated emissions reductions from these
contingency measures, as evaluated by the EPA.
Table 2--Annual Average Emissions Reductions From District and CARB Contingency Measures, tpd
----------------------------------------------------------------------------------------------------------------
1997 Annual PM2.5 2006 24-hour PM2.5 2012 Annual PM2.5
NAAQS NAAQS NAAQS
Contingency measure -----------------------------------------------------------------
Direct Direct Direct
PM2.5 NOX PM2.5 NOX PM2.5 NOX
----------------------------------------------------------------------------------------------------------------
District: Residential Wood Burning (first 0.5793 0.0817 0.5793 0.0817 0.5793 0.0817
triggering event)............................
District: Non-agricultural Rural Open Areas... 0.008 ......... 0.008 ......... 0.008 .........
CARB: Smog Check (first triggering event)..... ......... 0.117 ......... 0.120 ......... 0.086
CARB: Effect of Moyer Program funding decrease ......... (0.004) ......... (0.004) ......... (0.003)
in the San Joaquin Valley if Smog Check
Contingency Measure triggered................
-----------------------------------------------------------------
Total..................................... 0.5873 0.1947 0.5873 0.1977 0.5873 0.1647
----------------------------------------------------------------------------------------------------------------
Table 3 presents the estimated emissions reductions as percentages
of one year's worth of RFP and one year's worth of progress both with
and without trading between direct PM2.5 and NOX
emissions. As noted previously in this proposed rule, one year's worth
of RFP is the longstanding recommendation by the EPA to states
regarding the magnitude of emissions reductions that contingency
measures should be capable of achieving. One year's worth of progress
is the new recommendation described in the EPA's Draft Revised
Contingency Measure Guidance. In addition, we are proposing to approve
the State's trading ratio of 6:1 (i.e., 6 tpd NOX for each
excess 1 tpd direct PM2.5) and to trade excess direct
PM2.5 emission reductions, as evaluated by the EPA, to
substitute for a portion of the shortfall in NOX emission
reductions compared to one year's worth of RFP and one year's worth of
progress.\123\ We apply this trading ratio in our calculations for all
three PM2.5 NAAQS considered in this proposed rule.
---------------------------------------------------------------------------
\123\ While this trading would not make up the entire shortfall
in NOX emission reductions, it gives a sense for the
magnitude of the relative ambient effect of the excess direct
PM2.5 emission reductions towards meeting one year's
worth of RFP or one year's worth of progress.
Table 3--EPA Evaluation of District and CARB Contingency Measures as Percentage of One Year's Worth (OYW) of RFP and One Year's Worth of Progress
--------------------------------------------------------------------------------------------------------------------------------------------------------
One year's worth of RFP One year's worth of progress
------------------------------------------------------------------------------------------
PM2.5 NAAQS Pollutant Reductions % OYW (no % OYW (with Reductions % OYW (no % OYW (with
target trading) trading) \a\ target trading) trading) \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
1997 Annual......................... Direct PM2.5........... 0.44 132 100 0.41 142 100
NOX.................... 16.7 1.2 6.3 7.9 2.5 15.7
2006 24-hour........................ Direct PM2.5........... 0.58 101 100 0.52 112 100
NOX.................... 18.4 1.1 1.3 6.7 3.0 8.8
2012 Annual......................... Direct PM2.5........... 0.46 129 100 0.43 138 100
[[Page 88005]]
NOX.................... 15.3 1.1 6.3 8.7 1.9 13.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ The EPA has calculated % OYW (With Trading) for NOX based on the 6:1 ratio presented in the SJV PM2.5 Contingency Measure SIP.
As shown in Table 2, the sum of the emissions reductions from the
three contingency measures is approximately 0.5873 tpd direct
PM2.5 and ranges from 0.1647 tpd to 0.1977 tpd
NOX, depending on the particular PM2.5 NAAQS.
Without taking into account the substitution principle, these
reductions would exceed one year's worth of RFP for direct
PM2.5 and provide a portion of one year's worth of RFP for
NOX for the 1997 annual PM2.5 NAAQS, 2006 24-hour
PM2.5 NAAQS, and the 2012 annual PM2.5 NAAQS, as
shown in Table 3. With respect to one year's worth of progress, these
reductions would similarly exceed one year's worth of progress for
direct PM2.5 and provide a portion of one year's worth of
progress for NOX for all three PM2.5 NAAQS, as
shown in Table 3.
Taking into account the substitution principle, under which, in
this case, excess direct PM2.5 emissions are substituted for
a shortfall in NOX emissions, the reductions would amount to
100% of one year's worth of RFP for direct PM2.5 and the
following amounts of one year's worth of RFP for NOX for
each NAAQS: 1997 annual PM2.5 NAAQS (6.3%), 2006 24-hour
PM2.5 NAAQS (1.3%), and 2012 annual PM2.5 NAAQS
(6.3%). Similarly, the reductions would amount to 100% of one year's
worth of progress for direct PM2.5 and the following amounts
of one year's worth of progress for NOX for each NAAQS: 1997
annual PM2.5 NAAQS (15.7%), 2006 24-hour PM2.5
NAAQS (8.8%), and 2012 annual PM2.5 NAAQS (13.1%).
While our estimates of the emissions from the contingency measures
relative to one year's worth of RFP or progress differ in some respects
from those contained in the SJV PM2.5 Contingency Measure
SIP, our conclusion is the same as the conclusion drawn by the District
and CARB, namely, that the emissions reductions would provide for one
year's worth of RFP or progress for direct PM2.5 but would
provide only a portion of one year's worth of RFP or progress for
NOX. Thus, we would expect the State to provide a ``reasoned
justification'' to support approval of the contingency measures as
meeting the requirements under CAA section 172(c)(9) and 40 CFR 51.1014
for the nonattainment area even though the contingency measures would
not provide for the magnitude of emissions reductions recommended by
the EPA to comply with the requirements. The District and CARB have
included their reasoned justifications in the form of feasibility
analyses included as chapters 4 and 5 of the SJV PM2.5
Contingency Measure SIP, respectively. We provide our review of the
feasibility analyses in the following section of this document.
2. Contingency Measure Feasibility Analyses
The EPA has reviewed the State's infeasibility demonstrations for
not adopting contingency measures beyond the residential wood burning,
rural open areas, and Smog Check contingency measures, including both
the process used by the State and its assessment specific to a wide
range of stationary, area, and mobile source categories.\124\ Notably,
in connection with the EPA's proposed contingency measure FIP for the
San Joaquin Valley, the EPA recently prepared a detailed evaluation of
source categories and measures that we considered as potential
additional contingency measures but determined to be infeasible or
otherwise unsuitable for contingency measures. See ``EPA Source
Category and Control Measure Assessment and Reasoned Justification
Technical Support Document, Proposed Contingency Measures Federal
Implementation Plan for the Fine Particulate Matter Standards for San
Joaquin Valley, California,'' July 2023 (``EPA's Reasoned Justification
TSD''). We have relied heavily on that TSD given its breadth and depth,
as well as the expertise of EPA Region IX staff, to review the State's
infeasibility demonstration, understand where the State's and the EPA's
analyses draw largely similar conclusions, and identify those source
categories where the control measure analyses differ. As described in
the following paragraphs, the EPA proposes to find that the State's
infeasibility demonstrations adequately justify the contingency
measures selected by the State to meet the contingency measure
requirement under CAA section 172(c)(9) and 40 CFR 51.1014 for the San
Joaquin Valley for the 1997 annual, 2006 24-hour, and 2012 annual
PM2.5 NAAQS.
---------------------------------------------------------------------------
\124\ Our summaries of the infeasibility demonstrations are
found in section V.B.2 of this document.
---------------------------------------------------------------------------
In terms of process, both CARB and the District identified and
evaluated existing and potential control measures using components of
the process recommended in the EPA's Draft Revised Contingency Measures
Guidance,\125\ even if not necessarily in the same sequence as those
recommended by the EPA. As described in section V.B.2 of this proposed
rule, for the wide range of stationary and area sources under its
jurisdiction, the District described their 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.\126\ The District also
provided more in-depth analysis of potential control measures for five
source categories, ultimately adopting measures for two source
categories (wood burning fireplaces and wood burning heaters and rural
open areas) and providing a reasoned justification for not adopting
such measures for the other three source categories (commercial
charbroiling, almond harvesting, and oil and gas production combustion
equipment). We find that the District employed a reasonable process to
identify and assess the feasibility and suitability of potential
control measures as contingency measures for stationary and area
sources in the San Joaquin Valley.
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\125\ EPA's Draft Contingency Measure Guidance, section 4
(``Reasoned Justification for Less Than [One Year's Worth] of
Progress'').
\126\ SJV PM2.5 Contingency Measure SIP, pp. 9-11.
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Similarly, as described in section V.B.2 of this proposed rule,
CARB identified potential mobile source control measures, assessed
whether
[[Page 88006]]
each candidate measure could be implemented within 60 days of a
triggering event and emission reductions achieved within one to two
years, and then analyzed their technological and/or economic
feasibility.\127\ Regarding timing of emission reductions from mobile
sources, CARB concludes 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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\127\ SJV PM2.5 Contingency Measure SIP, section 5.3
(``Measure Analysis''); and Smog Check Contingency Measure, Appendix
A (``Infeasibility Analysis'').
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As described in the EPA's Reasoned Justification TSD,\128\ as a
general matter, new mobile source engine or vehicle emission standards
require significant lead time (more than two years) to allow
manufacturers time to retool factories to produce compliant engines or
vehicles. Retrofit or replacement requirements also require significant
lead time to allow owners and operators to manage the process of
retrofitting or replacing old engines or vehicles. Therefore, we agree
with CARB that such mobile source control measures would not achieve
emission reductions within one to two years of a contingency measure
triggering event. Overall, we find that the CARB employed a reasonable
process to identify and assess the feasibility and suitability of
potential control measures as contingency measures for mobile sources
in the San Joaquin Valley and in California more broadly.\129\
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\128\ EPA's Reasoned Justification TSD, pp. 143-144.
\129\ We note that the EPA's Reasoned Justification TSD contains
additional information that presents a comprehensive summary of the
emissions inventories for direct PM2.5 and NOX
in the San Joaquin Valley, as well as consideration of past
recommendations of new control measures or improvements to existing
control measures by the EPA and community and environmental groups
(whether for purposes of RACM/RACT, BACM/BACT, MSM, attainment and
RFP demonstrations, or contingency measures).
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Beyond the analytical components employed by CARB and the District
that mirror those recommended by the EPA, CARB and the District also
evaluated whether they could develop, adopt, and secure EPA approval of
SIP submissions, including additional contingency measures, meeting the
contingency measure requirements, prior to the September 30, 2024
consent decree deadline for the EPA to promulgate a contingency
measures FIP for San Joaquin Valley for the 1997 annual, 2006 24-hour
and 2012 PM2.5 NAAQS.\130\ The EPA finds that such
considerations, while important in the broader context of environmental
regulation and sanctions in the San Joaquin Valley, are not appropriate
for evaluating the feasibility or suitability of potential control
measures as contingency measures. Even absent final guidance from the
EPA, states are required to adopt and submit contingency measures
within the timelines established by the CAA in response to EPA actions,
including disapproval of prior contingency measure submissions, as was
the case here, effective December 27, 2021.\131\ In this instance,
however, neither CARB nor the District relied upon the inability to
adopt contingency measures and secure EPA approval by the consent
decree deadline as the sole justification for not adopting additional
contingency measures for any of the relevant source categories.
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\130\ SJV PM2.5 Contingency Measure SIP, pp. 12-25
and pp. 57-58.
\131\ 86 FR 67329 and 86 FR 67343.
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In addition, in certain instances, the District states that the
robust public process necessary to develop and adopt control measures
would take more than two years,\132\ while CARB states that a state-
wide regulatory measure typically needs five years to develop and
adopt,\133\ and therefore fall outside the one to two-year timeframe
recommended in the EPA's Draft Revised Contingency Measures Guidance.
While we certainly appreciate the importance of robust public process
in developing control measures, inclusive of public process
requirements in the CAA and the Administrative Procedures Act, the EPA
finds that such timing considerations are not appropriate for assessing
the feasibility of potential control measures as contingency measures.
As previously noted, states are required to adopt and submit
contingency measures within the timelines established by the CAA in
response to EPA actions, including disapproval of prior contingency
measure submissions.
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\132\ SJV PM2.5 Contingency Measure SIP, section 4.2
(``District Feasibility Analysis'').
\133\ SJV PM2.5 Contingency Measure SIP, 57.
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For each of the stationary and area source categories examined, the
EPA agrees with the District's determination that additional control
measures cannot feasibly reduce emissions within one to two years. We
first describe those source categories where we agree with the bases
presented by the District. Then we discuss those source categories
where the basis of the EPA's conclusion differs from that of the
District, even while the conclusion itself is the same--that the
additional control measure evaluated cannot feasibly reduce emissions
within one to two years.
The District's analyses and conclusions were substantially the same
as those of the EPA for the following source categories: open burning
and prescribed/hazard burning (Rules 4103 and 4106), cotton gins (Rule
4204), fuel burning equipment (Rule 4301), flares (Rule 4311), lime
kilns (Rule 4313; none operate in the San Joaquin Valley), solid fuel-
fired boilers, steam generators, and process heaters (Rule 4352), glass
melting furnaces (Rule 4354), asphalt paving and maintenance (Rule
4641; a VOC rule), internal combustion engines (Rule 4702), stationary
gas turbines (Rule 4703), residential wood burning (Rule 4901,
excluding the Residential Wood Burning Contingency Measure submitted as
amendments to the rule), and fugitive dust (Regulation VIII, excluding
the Rural Open Areas Contingency Measure submitted as amendments to
Rule 8051).\134\
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\134\ We note that, in responding to comments received during
the public review of the SJV PM2.5 Contingency Measure
SIP and Residential Wood Burning Contingency Measure, the District
states that, while there are limited opportunities for contingency
measures, the District ``will consider additional wood burning
curtailments as part of control measure analyses for upcoming
[SIPs].'' SJV PM2.5 Contingency Measure SIP, Appendix J
(``Comments and Responses''), p. J-4. See also EPA's Reasoned
Justification TSD, section G.1 (``Residential Fuel Combustion'').
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We note that the candidate control measures evaluated for certain
sources, such as internal combustion engines, stationary gas turbines,
boilers, steam generators, and process heaters, would require
installation of costly and engineering-intensive devices (e.g., oxy-
fuel fired furnaces and natural gas furnaces equipped with selective
catalytic reduction (SCR) for glass melting). As described in the EPA's
Reasoned Justification TSD, while these technologies may be available
and feasible in some contexts, we found that it would be
technologically infeasible for these measures to be implemented and
achieve meaningful emission reductions within one to two years.\135\
Thus, we agree with the District's determinations that such measures
would be technologically infeasible in the context of contingency
measures at this time.
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\135\ See, e.g., EPA's Reasoned Justification TSD, pp. 9-22 (the
EPA's evaluation of contingency measures for boilers, steam
generators, and process heaters).
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We note that the EPA's Reasoned Justification TSD does not present
an evaluation of potential contingency measures specifically related to
District Rules 4301, 4309, and 4352 and, thus,
[[Page 88007]]
we provide our review and evaluation in this document. With respect to
fuel burning equipment (Rule 4301), the SJV PM2.5
Contingency Measure SIP notes that the District has adopted more
stringent NOX requirements for specific types of fuel
burning equipment that supersede Rule 4301.\136\ Potential contingency
measures for emission sources related to Rule 4301 are covered in the
EPA's evaluation of Rules 4306, 4307, 4308, 4309, 4320, and 4352. Our
assessments of Rules 4309 and 4352 are contained in the following
paragraphs.
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\136\ SJV PM2.5 Contingency Measure SIP, pp. 13-14.
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With respect to dryers, dehydrators, and ovens (related to Rule
4309), the District considered controls such as low NOX
burners and determined that such technology could not feasibly be
implemented within the two-year timeframe for contingency measures for
this category, includes further discussion in appendices F and G of the
SJV PM2.5 Contingency Measure SIP (i.e., copies of the
stationary and area source control evaluations for the 2022 Ozone Plan
\137\ and the 2018 PM2.5 Plan, respectively), and states
that, in certain applications (e.g., dehydrators for onions), may have
an adverse effect on food product quality.\138\ We have reviewed the
District's infeasibility demonstration and agree that emissions
reductions for this category could not feasibly be achieved within one
to two years, and are therefore not suitable for contingency measures.
As discussed in Appendix F of the SJV PM2.5 Contingency
Measure SIP, South Coast Air Quality Management District (AQMD) has
recently revised and divided its rules for comparable sources,
including amendments to NOX limits, that are difficult to
compare to Rule 4309 given their distinct applicability and provisions
(e.g., whether limits are differentiated by operating temperature). The
EPA recommends that the District continue to evaluate dryers,
dehydrators, and ovens for opportunities to further reduce
NOX emissions (and, as applicable, PM2.5
emissions) in developing subsequent plans.
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\137\ SJVUAPCD, ``2022 Plan for the 2015 8-hour Ozone
Standard,'' adopted December 15, 2022.
\138\ SJV PM2.5 Contingency Measure SIP, p. 16.
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With respect to Rule 4352, the State's submittal notes that the
District adopted amendments to Rule 4352 in December 2021, and District
analysis associated with the 2021 amendments to Rule 4352 found that
all control alternatives that would further reduce emissions require
technology that had prohibitively high capital costs and were not cost
effective,\139\ and have not been widely implemented at facilities
subject to Rule 4352. Given these reasons and given that the emission
limits included in the 2021 amendments to Rule 4352 are lower than
those of other districts' rules, we agree with the District's
conclusion with respect to Rule 4352.
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\139\ SJVUAPCD, ``Appendix C, Cost Effectiveness Analysis for
Proposed Amendments to Rule 4352 (Solid Fuel Fired Boilers, Steam
Generators, and Process Heaters,'' December 16, 2021.
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For several other source categories, the EPA finds that the
contingency measure analyses by the District and the EPA differ in
certain respects that warrant further discussion. Notwithstanding these
differences, both the District's analyses and the EPA's analyses
supporting our recent contingency measure FIP proposal support the
conclusion that the measures evaluated cannot feasibly reduce emissions
within one to two years. We discuss each of these cases in the
paragraphs that follow.
With respect to residential water heaters (Rule 4902) and
residential furnaces (Rule 4905), the District evaluated a contingency
measure option to adopt electrification requirements (i.e., requiring
newly purchased furnaces and water heaters to be zero-emission units)
earlier than a commitment by CARB to develop a state-wide building
electrification measure that would achieve emission reductions starting
in 2030.\140\ The District deemed this contingency measure option
infeasible, citing the lead time necessary for manufacturers to design
and produce electric units, the need for collaboration with energy and
building code regulators, consistency with State and local efforts,
consideration of housing cost and affordability impacts, and equity
considerations for low-income and environmental justice
communities.\141\ While we note that certain aspects of these factors
do not necessarily align with the feasibility criteria outlined in the
EPA's Draft Revised Contingency Measures Guidance,\142\ the EPA
determined that the building electrification contingency measure option
would not be feasible because we expect that it would result in
negligible emissions reductions within two years after trigger,\143\
consistent with the District's suggestion that the attrition-based
nature of implementation of this contingency measure option deem the
measure infeasible. The EPA also recommended that the District consider
developing control measures or programs that would incentivize the
early replacement of existing gas space and water heaters with electric
appliances, as such actions could significantly reduce emissions from
this significant source category in the longer-term future.
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\140\ SJV PM2.5 Contingency Measure SIP, 20-22.
\141\ For further discussion of these factors, see CARB, ``2022
State Strategy for the State Implementation Plan,'' adopted
September 22, 2022, pp. 101-103 (``Proposed Measures: Residential
and Commercial Buildings'').
\142\ EPA's Draft Revised Contingency Measures Guidance, pp. 35-
38.
\143\ EPA's Reasoned Justification TSD, pp. 43-51.
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With respect to commercial charbroiling (Rule 4692), the District
noted that particulate matter control devices are required to be
installed and operated on chain-driven commercial charbroilers under
Rule 4692. The District evaluated a contingency measure option
involving the requirement of particulate matter controls on underfired
charbroilers. The District's evaluation includes a detailed cost
analysis, concluding that underfired charbroiler contingency measure
option is infeasible based on high costs of installation and
maintenance, technological infeasibility considerations, lack of
availability of specialized staff at restaurants, control equipment
fire safety certification concerns, and the lack of demonstrated
controls in areas that have adopted underfired charbroiling control
measures.\144\ The District also described ongoing and upcoming efforts
to advance underfired charbroiler emissions control technology and
demonstrate its performance in practice. The EPA's evaluation did not
present cost information to conclude that an underfired charbroiling
contingency measure would be economically infeasible, and we did not
include the same considerations regarding lack of availability of
specialized staff at restaurants and other technological feasibility
concerns presented by the District. However, the EPA determined that an
underfired charbroiling contingency measure would be infeasible based
on fire safety certification concerns and lack of demonstrated
implementation of controls.\145\ In addition to recommending that the
District and CARB collaborate with control technology manufacturers and
industry to develop effective methods for reducing the commercial
cooking industry's impact on public health, the EPA strongly encouraged
the District to expand its Restaurant Charbroiler
[[Page 88008]]
Technology Partnership program beyond hot spot counties.
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\144\ SJV PM2.5 Contingency Measure SIP, pp. 32-41.
\145\ EPA's Reasoned Justification TSD, pp. 131-136.
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With respect to conservation management practices (Rule 4550), the
District describes its commitment in the 2018 PM2.5 Plan to
evaluate emission reduction opportunities for sources in this category
(e.g., emission reductions from fallowed lands and promotion of
selection of conservation tillage as a conservation management practice
[CMP]), explaining that rule development is ongoing and describing Rule
4550 as an ``on-the-way'' measure.\146\ We acknowledge the ongoing
efforts by the District to pursue emission reductions from these
sources,\147\ although we note that the District's use of the ``on-the-
way'' term differs from its usage in the Draft Revised Contingency
Measures Guidance, where the EPA defines ``on-the-way'' measures as
``the control measures in the nonattainment plan that will be
implemented during the upcoming planning period'' (i.e., adopted
measures whose implementation is forthcoming in the near-term).\148\
However, the EPA conducted its own evaluation of Rule 4550, finding
that Rule 4550 contains conservation management practice options that
are comparable with the rules identified in other jurisdictions and
generally contain the same control measures required in other
jurisdictions.\149\
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\146\ SJV PM2.5 Contingency Measure SIP, pp. 23-24.
\147\ See, e.g., SJVUAPCD, ``Public Workshop for Potential
Amendments to District Rule 4550 (Conservation Management
Practices),'' November 7, 2022 (workshop presentation).
\148\ EPA's Draft Revised Contingency Measure Guidance, p. 32.
\149\ EPA's Reasoned Justification TSD, pp. 86-90.
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The District also presented an evaluation of dust emissions from
almond harvesting, concluding that a contingency measure requiring the
replacement of conventional harvesting technology with low dust
harvesting technology would be infeasible based on long lead times
needed to meet significant increased demand generated by such a
measure, prohibitively high cost of equipment, and the need to conduct
additional research to better understand the changing landscape in
harvesting techniques and associated emissions.\150\ The EPA's
evaluation determined that such a measure would be infeasible based
only on the timing of emissions reductions; while the EPA presented
cost effectiveness information for low dust almond harvesters,\151\ the
EPA did not determine that a low dust harvester replacement contingency
measure would be economically infeasible, nor did we determine that any
work needed to understand the emissions profile of low dust nut
harvesters would disqualify a potential low dust harvester replacement
contingency measure.\152\
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\150\ SJV PM2.5 Contingency Measure SIP, pp. 41-43.
\151\ EPA's Reasoned Justification TSD, chapter V.
\152\ EPA's Reasoned Justification TSD, p. 95.
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With respect to oil and gas production combustion equipment
(related to District Rules 4306 and 4320), the District evaluated
numerous control options including direct control of PM2.5
(e.g., electrostatic precipitators or venturi scrubbers),
electrification of oilfield steam generators, and solar powered
oilfield steam generators.\153\ For each of these options, the District
provided technological and/or economic feasibility considerations
deeming each option infeasible as a contingency measure. The District
also evaluated lower emission limits for boilers and steam
generators.\154\ In this evaluation, the District explained that the
EPA has determined that Rule 4306 meets MSM requirements and that Rule
4320 goes beyond MSM by establishing even lower emissions limits. The
District noted that equipment operators are already in the process of
investing in and installing technology to meet the recently amended
Rule 4320 limits and suggests that the time needed to plan and prepare
for installation of control equipment to meet lower limits would exceed
the one- to two-year timeline for a contingency measure to achieve
emissions reductions. The District also claims numerous technological
feasibility considerations associated with lowering emission limits for
this category. While the District describes a ``lack of EPA recognized
SIP-creditable emissions reductions from Rule 4320'' due to the
technology advancing nature of Rule 4320,\155\ the EPA would recognize
SIP-creditable emission reductions for this category if provided with
the appropriate information such as records of the number of units
complying with Rule 4320 NOX emission limits and their
associated emissions.\156\
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\153\ SJV PM2.5 Contingency Measure SIP, pp. 44-47.
\154\ SJV PM2.5 Contingency Measure SIP, pp. 47-49.
\155\ SJV PM2.5 Contingency Measure SIP, p. 49.
\156\ See also, EPA Region IX, ``Technical Support Document for
EPA's Notice of Proposed Rulemaking for the California State
Implementation Plan, San Joaquin Valley Unified Air Pollution
Control District's Rule 4320, Advanced Emission Reduction Options
for Boilers, Steam Generators, and Process Heaters Greater than 5.0
MMBtu/hr),'' August 19, 2010, p. 8.
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The EPA's evaluation focused on lowering emission limits for
boilers and steam generators, including identification of lower
emission limits adopted by the South Coast AQMD for oilfield steam
generators than those adopted in Rule 4306. While the EPA's evaluation
does not claim that control requirements required to meet the lower
limits would be technologically infeasible altogether (in light of the
lower limits adopted by South Coast AQMD), we 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 SCR to meet the lower limits.
The District also included evaluations for boilers, steam
generators, and process heaters in general covered by District Rules
4307 and 4308.\157\ The District's assessments for these rules focus on
economic and technological feasibility, citing dollar per ton cost
effectiveness values for numerous control options and adding
technological feasibility concerns for SCONOx/EMx units. The EPA's
evaluation for boilers in general does not provide cost effectiveness
values to suggest that lower emission limits for boilers, steam
generators, and process heaters are economically infeasible. However,
as described in the EPA's evaluation, we expect 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.\158\
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\157\ SJV PM2.5 Contingency Measure SIP, pp. 14-16.
\158\ EPA's Reasoned Justification TSD, pp. 9-22.
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Similar to our evaluation of the District's feasibility analysis,
we have evaluated CARB's feasibility analysis, in part, by comparing
the bases and conclusions of the State's analysis against those
presented in the EPA's Reasoned Justification TSD.\159\ Both CARB and
the EPA note the importance of mobile source emissions in the San
Joaquin Valley, particularly given that the large majority of
NOX emissions are from mobile sources, and describe the
breadth of control measures considered by CARB to reduce direct
PM2.5 and NOX emissions for broader CAA purposes
in the San Joaquin Valley. These include new vehicle and engine
emission standards, for both on-road and non-road applications, which
generally apply to manufacturers and
[[Page 88009]]
achieve emission reductions through vehicle turnover; retrofit or
replacement requirements for existing vehicles and fleets; and
inspection and maintenance (I/M) program requirements, such as those
implemented under California's Smog Check program for light-duty
passenger cars and trucks, and those entering implementation under
California's Heavy-Duty I/M program. We agree that the adopted measures
and on-going development of mobile sources measures by CARB, including
zero-emission standards, further constrain the opportunities for
additional emission reductions via contingency measures.\160\
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\159\ EPA's Reasoned Justification TSD, section H (``Mobile
Sources'').
\160\ EPA's Reasoned Justification TSD, pp. 139-142. See also,
SJV PM2.5 Contingency Measure SIP, pp. 53-56; and Smog
Check Contingency Measure, pp. 8-10.
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With respect to contingency measure requirements, CARB examined
potential controls across the wide range of mobile source categories,
including on-road light-duty passenger cars, trucks, and motorcycles;
medium- and heavy-duty trucks and buses and transportation
refrigeration units; commercial harbor craft, recreational boats, and
ocean going vessels; off-road industrial, construction, and mining
equipment; airport ground equipment, port and rail operations, and
locomotives; lawn and garden equipment; and space and water heaters.
The potential controls considered include pulling forward compliance
dates and/or phase-in requirements; setting more stringent standards
(often atop recently tightened standards) through mechanisms such as
emission standards, emissions caps, thresholds for compliance, testing
frequency, making optional standards required, or percentage of sales
requirements; and removing exemptions and/or compliance options. In
virtually all cases, CARB found that control measures beyond those
already adopted or in development to fulfill commitments (e.g., under
the 2022 State SIP Strategy) were not technologically feasible.\161\ In
all cases (except the adopted Smog Check Contingency Measure), CARB
found that the measures were not suitable for contingency measures due
to lead time to develop, certify, adopt, and/or implement measures that
could not be implemented within 60 days of a triggering event and
achieve emission reductions within one year of the triggering event.
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\161\ There were three measures that CARB indicated as
technologically feasible. One is the Smog Check Contingency Measure
that CARB has adopted and submitted to the EPA. A second was a
different Smog Check measure that would add requirements for only
high mileage vehicles; however, CARB found that the compliance
burden would disproportionately fall on low-income populations and
disadvantaged communities. SJV PM2.5 Contingency Measures
SIP, p. 59. The third was to increase the testing frequency under
the Heavy-Duty I/M program; however, CARB found that the compliance
burden would disproportionately fall on small businesses and low-
income populations. SJV PM2.5 Contingency Measure SIP, p.
62 and Appendix A, p. 49. In the latter two cases, CARB also found
that, even if the measure were technologically feasible, the
measures could not be effectuated within the timeframe necessary for
contingency measures.
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We have reviewed CARB's specific control measure analyses and agree
that such potential control measures are not feasible within the
timeframe necessary for contingency measures and, in many cases, are
not technologically feasible to the extent that they build upon on-the-
books and on-the-way measures that are technology- or market-forcing.
Consistent with our evaluation presented in the EPA's Reasoned
Justification TSD,\162\ the EPA has not identified any engine or
vehicle emission standards for consideration as contingency measures.
Beyond the wide range of source types and control approaches examined
by CARB, the EPA also examined a handful of potential additional
controls and concluded that they too were not suitable as contingency
measures, including expansion of Enhanced I/M requirements to areas
currently subject to Basic I/M or Partial Enhanced I/M requirements in
the San Joaquin Valley,\163\ provisions to expand the applicability of
and add requirements to District Rule 9510 (``Indirect Source
Review''),\164\ and additional transportation control measures.\165\
Therefore, we propose to find that CARB's infeasibility demonstration
adequately justifies the contingency measures selected by CARB for the
San Joaquin Valley for the 1997 annual, 2006 24-hour and 2012 annual
PM2.5 NAAQS.
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\162\ EPA's Reasoned Justification TSD, pp. 138-144.
\163\ EPA's Reasoned Justification TSD, section IV.E. In
addition, CARB noted in its comment letter on the EPA's proposed
contingency measure FIP that, under the I/M measure evaluated by the
EPA, 50% of the vehicles that would be newly subject to Enhanced I/M
would be in disadvantaged communities whereas only 35% of San
Joaquin Valley population live in such disadvantaged communities.
Letter dated September 22, 2023, from Steven S. Cliff, Ph.D.,
Executive Officer, CARB to Martha Guzman, Regional Administrator,
EPA Region IX. In other words, the compliance burden would
disproportionately fall on low-income populations and disadvantaged
communities.
\164\ EPA's Reasoned Justification TSD, section IV.B.
\165\ EPA's Reasoned Justification TSD, pp. 144-146.
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3. Conclusion
Based on our review and proposed approval of the three contingency
measures submitted by the State that would achieve the full one year's
worth of emission reductions for direct PM2.5 and a portion
of one year's worth of emission reductions for NOX (whether
using the longstanding RFP method or the new progress method) and our
review of and proposed finding that the State's infeasibility
demonstrations adequately justify the selection of the three
contingency measures, we propose to approve the SJV PM2.5
Contingency Measures SIP, the Residential Wood Burning Contingency
Measure, the Rural Open Areas Contingency Measure, and the Smog Check
Contingency Measure (as applied to the San Joaquin Valley) as meeting
the contingency measure requirements of CAA section 172(c)(9) and 40
CFR 51.1014 for the 1997 annual, 2006 24-hour, and 2012 annual
PM2.5 NAAQS in the San Joaquin Valley.
VI. Environmental Justice Considerations
Executive Order 12898 (59 FR 7629, February 16, 1994) requires that
federal agencies, to the greatest extent practicable and permitted by
law, identify and address disproportionately high and adverse human
health or environmental effects of their actions on minority and low-
income populations.\166\ To identify environmental burdens and
susceptible populations in underserved communities in the San Joaquin
Valley nonattainment area and to better understand the context of our
proposed action on these communities, we conducted a screening-level
analysis for PM2.5 in the San Joaquin Valley using the EPA's
environmental justice (EJ) screening and mapping tool
(``EJSCREEN'').\167\ The results of this analysis are being provided
for informational and transparency purposes.
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\166\ 59 FR 7629 (February 16, 1994).
\167\ EJSCREEN provides a nationally consistent dataset and
approach for combining environmental and demographic indicators.
EJSCREEN is available at https://www.epa.gov/ejscreen/what-ejscreen.
The EPA used EJSCREEN to obtain environmental and demographic
indicators representing each of the eight counties in the San
Joaquin Valley. We note that the indicators for Kern County are for
the entire county. While the indicators might have slightly
different numbers for the San Joaquin Valley portion of the county,
most of the county's population is in the San Joaquin Valley
portion, and thus the differences would be small. These indicators
are included in EJSCREEN reports that are available in the
rulemaking docket for this action.
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Our screening-level analysis indicates that all eight counties in
the San Joaquin
[[Page 88010]]
Valley score above the national average for the EJSCREEN ``Demographic
Index'' (i.e., ranging from 48% in Stanislaus County to 61% in Tulare
County, compared to 36% nationally).168 169 The Demographic
Index is the average of an area's percent minority and percent low
income populations, i.e., the two populations explicitly named in
Executive Order 12898.\170\ All eight counties also score above the
national average for demographic indices of ``linguistically isolated
population'' and ``population with less than high school education.''
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\168\ EPA Region IX, ``EJSCREEN Analysis for the Eight Counties
of the San Joaquin Valley Nonattainment Area,'' August 2022.
\169\ By comparison, the eight counties score above the State
average for the EJSCREEN ``Demographic Index'' (i.e., ranging from
52% in Stanislaus County to 71% in Tulare County, compared to 47% in
California).
\170\ EJSCREEN reports environmental indicators (e.g., air
toxics cancer risk, Pb paint exposure, and traffic proximity and
volume) and demographic indicators (e.g., people of color, low
income, and linguistically isolated populations). The score for a
particular indicator measures how the community of interest compares
with the state, the EPA region, or the national average. For
example, if a given location is at the 95th percentile nationwide,
this means that only five percent of the U.S. population has a
higher value than the average person in the location being analyzed.
EJSCREEN also reports EJ indexes, which are combinations of a single
environmental indicator with the EJSCREEN Demographic Index. For
additional information about environmental and demographic
indicators and EJ indexes reported by EJSCREEN, see EPA, ``EJSCREEN
Environmental Justice Mapping and Screening Tool--EJSCREEN Technical
Documentation,'' section 2 (September 2019).
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With respect to pollution, all eight counties (Fresno, Kern, Kings,
Madera, Merced, San Joaquin, Stanislaus, and Tulare) score at or above
the 97th percentile nationally for the PM2.5 index and seven
of the eight counties in the San Joaquin Valley score at or above the
90th percentile nationally for the PM2.5 EJ index (i.e.,
each county except Stanislaus County, which scores at the 87th
percentile nationally), which is a combination of the Demographic Index
and the PM2.5 index.\171\ Most counties also scored above
the 80th percentile for each of 11 additional EJ indices included in
the EPA's EJSCREEN analysis. In addition, several counties scored above
the 90th percentile for certain EJ indices, including, for example, the
Ozone EJ Index (Fresno, Kern, Madera, Merced, and Tulare Counties), the
National Air Toxics Assessment (NATA) Respiratory Hazard EJ Index
(Madera and Tulare Counties), and the Wastewater Discharge Indicator EJ
Index (Merced, San Joaquin, Stanislaus, and Tulare Counties).\172\
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\171\ By comparison, two counties score at or above the 97th
percentile in California for the PM2.5 index and five
counties score at or above the 80th percentile in California for the
PM2.5 EJ index (rather than seven of eight counties that
score at or above the 90th percentile nationally).
\172\ Notably, Tulare County scores above the 90th percentile on
six of the 12 EJ indices in the EPA's EJSCREEN analysis, including
the PM2.5 EJ Index, which is the highest count among all
San Joaquin Valley counties.
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We have considered the geographic scope of each of the contingency
measures that the EPA proposes to approve herein on PM2.5
concentrations in each county of the San Joaquin Valley, as well as
other environmental considerations that pertain to applicable pollutant
(i.e., combustion PM2.5, dust PM2.5, or
NOX) and the applicable source category or categories.
For residential wood burning, upon a first triggering event, the
Rule 4901 contingency measure would lower the No Burn (i.e.,
curtailment) thresholds for the five non-hot spot counties (Kings,
Merced, San Joaquin, Stanislaus, and Tulare) to match the tighter No
Burn thresholds for the three hot spot counties (Fresno, Madera, and
Kern). A prominent effect of this change would be to provide similar
protections to people in the two southern-most non-hot spot counties
that record among the highest year-to-year PM2.5 design
values in the San Joaquin Valley (i.e., Kings County, including
Corcoran and Hanford monitoring sites, and Tulare County, including
Visalia monitoring site).\173\ Were No Burn days to be called in Kings
or Tulare County according to the more stringent thresholds, we also
anticipate there would be smaller but still beneficial effect in the
adjacent Fresno or Kern Counties, depending on the meteorology of the
day. Upon a second triggering event, the Rule 4901 contingency measure
would further lower the curtailment threshold for unregistered devices
in all eight counties of the San Joaquin Valley. This would provide
further protections to people throughout the area, including both hot-
spot and non-hot spot counties, including those that record among the
highest year-to-year PM2.5 design values in the San Joaquin
Valley.\174\
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\173\ For example, the certified 2020-2022 PM2.5
design value for Visalia (AQS Site ID 061072003) is 18.4 [mu]g/m\3\
for the 2012 annual PM2.5 NAAQS and 65 [mu]g/m\3\ for the
2006 24-hour PM2.5 NAAQS. EPA design value workbook dated
May 23, 2023, ``PM25_DesignValues_2020_2022_FINAL_05_23_23.xlsx,''
worksheets ``Table5a. Site Status Ann'' and ``Table5b.Site Status
24hr.'' The certified design value includes all available data; no
data flagged for exceptional events have been excluded. The EPA's
Air Quality System (AQS) contains ambient air pollution data
collected by federal, state, local, and tribal air pollution control
agencies from thousands of monitors. More information is available
at https://www.epa.gov/aqs.
\174\ For example, the certified 2020-2022 PM2.5
design value for Bakersfield-Airport (Planz) (AQS Site ID 060290016)
is 18.8 [mu]g/m\3\ for the 2012 annual PM2.5 NAAQS and 61
[mu]g/m\3\ for the 2006 24-hour PM2.5 NAAQS. EPA design
value workbook dated May 23, 2023,
``PM25_DesignValues_2020_2022_FINAL_05_23_23.xlsx,'' worksheets
``Table5a. Site Status Ann'' and ``Table5b.Site Status 24hr.'' The
certified design value includes all available data; no data flagged
for exceptional events have been excluded.
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Where these direct PM2.5 emission reductions from
combustion occur, we also note that they do not require further
chemical transformation in the atmosphere to form PM2.5
(i.e., the benefit is immediate) and, as they include fine particulate
matter under one micron and toxic air chemicals, the reduction of such
sub-micron particles would similarly reduce exposure of all residents
in these areas, including minority and low-income populations to these
environmental stressors. These reductions would also specifically
reduce emissions on the winter days with the highest ambient
PM2.5 levels.
For open areas, the Rule 8051 contingency measure, if triggered,
would lower the applicability threshold for the rural open area
requirements of Rule 8051 (i.e., for parcels having at least 1,000
square feet of disturbed soil) from 3.0 acres to 1.0 acre. Based on our
analysis of land use to date, such rural open areas are found in all
counties of the San Joaquin Valley, though with some variation from
county to county consistent with overall land use types (e.g., San
Joaquin County has the smallest proportion of rural open areas, while
Madera County has the highest proportion of rural open areas).
Furthermore, there is variation in the number of rural open areas that
would be newly subject to the rule, i.e., those between 1.0 to 3.0
acres in size (e.g., Kern County has the most total rural open area
acreage from parcels between 1.0 to 3.0 acres in size, while Tulare
County has the least). Given the overall land use and emission
factors,\175\ and assuming roughly equal levels of activity in each
county (i.e., soil disturbances over 1,000 square feet), we anticipate
that the proposed contingency measure would provide air quality
benefits in all counties of the San Joaquin Valley, with most air
quality benefits occuring in Fresno, Kern, Kings, and Madera Counties.
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\175\ For further discussion of the land use and emission
factors for open areas in the San Joaquin Valley, see EPA Region IX,
``Technical Support Document, Proposed Contingency Measures Federal
Implementation Plan for the Fine Particulate Matter Standards for
San Joaquin Valley, California,'' July 2023, section III.E.
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Given that Rule 8051 for open areas was originally introduced as a
PM10 control measure, we anticipate that the proposed
measure would provide co-benefits to limiting PM10 levels in
the San Joaquin Valley, with the same
[[Page 88011]]
geographical distribution as discussed herein for direct
PM2.5 emission reductions.\176\
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\176\ We also note that environmental and community groups have
recommended that fugitive dust sources in the San Joaquin Valley be
subject to specific requirements rather than having the option to
select from a menu of control requirements in Rule 8011 (where the
definition for open areas is found). Letter dated May 18, 2022, from
Tom Frantz, Association of Irritated Residents, et al., to Michael
S. Regan, EPA Administrator, Attachment B, 7. The proposed measure
would not alter the existing structure but rather tighten the
applicability threshold for rural open areas.
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Lastly, we anticipate that the Smog Check Contingency Measure
(discussed in more detail in our separate proposed rule),\177\ if
triggered, would reduce NOX and VOC emissions from light-
duty vehicles throughout the San Joaquin Valley. Such emission
reductions would provide air quality benefits in all counties of the
San Joaquin Valley and especially along roadways with the highest
vehicle miles traveled, including the major freeways (e.g., California
Highway 99) and urban areas (e.g., Bakersfield, Fresno, Stockton,
Visalia) that intersect minority populations and low-income populations
throughout the San Joaquin Valley.
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\177\ EPA, ``Air Plan Revision; California; Motor Vehicle
Inspection and Maintenance Program Contingency Measure,'' Proposed
rule, published in this Federal Register.
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VII. Proposed Action and Request for Public Comment
For the reasons described in sections IV and V of this document,
and under CAA section 110(k)(3), the EPA proposes to approve two SIP
revisions submitted by CARB on June 8, 2023, and October 16, 2023, for
the San Joaquin Valley to address the contingency measure SIP
requirements for San Joaquin Valley for the 1997 annual, 2006 24-hour,
and 2012 annual PM2.5 NAAQS. The SIP submissions include the
contingency measure plan element for San Joaquin Valley for the
relevant PM2.5 NAAQS (referred to herein as the ``SJV
PM2.5 Contingency Measure SIP'') and two specific
contingency measures, referred to herein as the Residential Wood
Burning Contingency Measure and the Rural Open Areas Contingency
Measure. We are proposing to approve the SJV PM2.5
Contingency Measure SIP as meeting the applicable requirements of CAA
section 172(c)(9) and 40 CFR 51.1014 for San Joaquin Valley for the
applicable PM2.5 NAAQS based on the infeasibility
demonstrations that are provided in the submission and based on our
proposed approval of the contingency measures. The Residential Wood
Burning Contingency Measure and the Rural Open Areas Contingency
Measure are included in amendments to SJVUAPCD Rule 4901 (``Wood
Burning Fireplaces and Wood Burning Heaters'') and Rule 8051 (``Open
Areas''), respectively. We are proposing to approve the two specific
contingency measures because they meet the requirements under CAA
section 172(c)(9) and 40 CFR 51.1014 for such measures. We will accept
comments from the public on this proposal until January 19, 2024.
If we finalize this action as proposed, our action will resolve the
disapproval of the contingency measure plan elements for San Joaquin
Valley for the 1997 annual, 2006 24-hour, and 2012 annual
PM2.5 NAAQS, and our action will be codified through
revisions to 40 CFR 52.220, ``Identification of plan--in part'' and 40
CFR 52.237, ``Part D Disapproval.'' In conjunction with our final
approval into the SIP of the submitted amended versions of SJVUAPCD
Rules 4901 and 8051, we would remove from the SIP the previously
approved versions of SJVUAPCD Rules 4901 and 8051. Lastly, if we
finalize our action as proposed, our FIP obligation arising from our
December 6, 2018 finding of failure to submit will be terminated, and
thus, we will no longer be obligated to finalize our August 8, 2023
proposed contingency measure FIP for San Joaquin Valley.
VIII. Incorporation by Reference
In this rulemaking, the EPA is proposing to include in a final EPA
rule regulatory text that includes incorporation by reference. In
accordance with requirements of 1 CFR 51.5, the EPA is proposing to
incorporate by reference SJVUAPCD Rule 4901 (``Wood Burning Fireplaces
and Wood Burning Heaters''), amended May 18, 2023, and Rule 8051
(``Open Areas''), amended September 21, 2023, identified and discussed
in sections IV.A and IV.B of this preamble and that include revisions
to meet the contingency measure requirements under part D of title I of
the CAA. The EPA has made, and will continue to make, these materials
available through https://www.regulations.gov and at the EPA Region IX
Office (please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section of this preamble for more information).
IX. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely proposes to approve a state
plan and related measures as meeting Federal requirements and does not
impose additional requirements beyond those imposed by state law. For
that reason, this proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
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.);
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);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it proposes to approve a state program;
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act.
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the
[[Page 88012]]
greatest extent practicable and permitted by law. The EPA defines
environmental justice (EJ) as ``the fair treatment and meaningful
involvement of all people regardless of race, color, national origin,
or income with respect to the development, implementation, and
enforcement of environmental laws, regulations, and policies.'' The EPA
further defines the term fair treatment to mean that ``no group of
people should bear a disproportionate burden of environmental harms and
risks, including those resulting from the negative environmental
consequences of industrial, governmental, and commercial operations or
programs and policies.''
The EPA performed an environmental justice analysis, as is
described in section VI of this proposed rule, titled ``Environmental
Justice Considerations.'' The analysis was done for the purpose of
providing additional context and information about this rulemaking to
the public, not as a basis of the action. Due to the nature of the
action being taken here, this action is expected to have a neutral to
positive impact on the air quality of the affected area. In addition,
there is no information in the record upon which this decision is based
inconsistent with the stated goal of E.O. 12898 of achieving
environmental justice for people of color, low-income populations, and
Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Ammonia,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Particulate matter, Reporting and recordkeeping requirements,
Sulfur dioxide, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 12, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-27686 Filed 12-19-23; 8:45 am]
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