[Federal Register Volume 85, Number 141 (Wednesday, July 22, 2020)]
[Rules and Regulations]
[Pages 44192-44206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14471]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2019-0318; FRL-10011-44-Region 9]
Clean Air Plans; 2006 Fine Particulate Matter Nonattainment Area
Requirements; San Joaquin Valley, California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA or ``Agency'') is
approving portions of three state implementation plan (SIP) revisions
submitted by the State of California to meet Clean Air Act (CAA or
``Act'') requirements for the 2006 fine particulate matter
(PM2.5) national ambient air quality standards (NAAQS or
``standards'') in the San Joaquin Valley (SJV) ``Serious''
nonattainment area. Specifically, the EPA is approving those portions
of the ``2018 Plan for the 1997, 2006, and 2012 PM2.5
Standards'' and the ``San Joaquin Valley Supplement to the 2016 State
Strategy for the State Implementation Plan'' that pertain to the 2006
PM2.5 NAAQS and address certain CAA requirements for Serious
PM2.5 nonattainment areas. In addition, the EPA is approving
the ``Revision to the California State Implementation Plan for
PM2.5 Standards in the San Joaquin Valley''
(``PM2.5 Prior Commitment Revision'' or ``Revision'') and
finding that the State has complied with this commitment. The EPA is
also approving motor vehicle emission budgets and inter-pollutant
trading ratios for use in transportation conformity analyses for the
2006 PM2.5 NAAQS. Finally, as part of this action, the EPA
is granting an extension of the Serious area attainment date for the
2006 PM2.5 NAAQS in the San Joaquin Valley from December 31,
2019, to December 31, 2024, based on a determination that the State has
[[Page 44193]]
satisfied the statutory criteria for this extension.
DATES: This rule is effective August 21, 2020.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2019-0318. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available through https://www.regulations.gov, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information.
FOR FURTHER INFORMATION CONTACT: Rory Mays, Air Planning Office (AIR-
2), EPA Region IX, (415) 972-3227, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. Summary of Proposed Rules
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews
I. Summary of Proposed Rules
On March 27, 2020, the EPA proposed to approve portions of two SIP
revisions submitted by the California Air Resources Board (CARB) to
meet certain Serious nonattainment area requirements for the 2006 24-
hour PM2.5 NAAQS in the San Joaquin Valley.\1\ In our
proposed rule, we provided background information on the
PM2.5 standards, area designations and related SIP revision
requirements under the CAA, relevant EPA guidance, and the EPA's
implementing regulations for the PM2.5 standards, referred
to as the ``PM2.5 SIP Requirements Rule.'' \2\
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\1\ 85 FR 17382.
\2\ ``Fine Particulate Matter National Ambient Air Quality
Standards: State Implementation Plan Requirements.'' (August 24,
2016).
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The EPA proposed to act on certain portions of the following two
plan submissions that pertain to the 2006 24-hour PM2.5
NAAQS: The ``2018 Plan for the 1997, 2006, and 2012 PM2.5
Standards,'' adopted by the San Joaquin Valley Unified Air Pollution
Control District (SJVUAPCD or District'') on November 15, 2018, and by
CARB on January 24, 2019 (``2018 PM2.5 Plan''), including a
revised Appendix H submitted by CARB as a technical correction on
February 11, 2020; and the ``San Joaquin Valley Supplement to the 2016
State Strategy for the State Implementation Plan,'' adopted by CARB on
October 25, 2018 (``Valley State SIP Strategy''). We refer to the
relevant portions of these SIP submissions collectively as the ``SJV
PM2.5 Plan'' or ``Plan.'' The SJV PM2.5 Plan
addresses the Serious area attainment plan requirements for the 2006
24-hour PM2.5 NAAQS in the San Joaquin Valley and includes a
request under CAA section 188(e) for an extension of the Serious area
attainment date for the area for this NAAQS. CARB submitted the SJV
PM2.5 Plan to the EPA as a revision to the SIP on May 10,
2019.\3\
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\3\ Letter dated May 9, 2019, from Richard Corey, Executive
Officer, CARB, to Mike Stoker, Regional Administrator, EPA Region 9.
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The EPA proposed to approve, as a revision to the California SIP,
the following portions of the SJV PM2.5 Plan for the 2006
PM2.5 NAAQS:
The 2013 base year emission inventories (CAA section
172(c)(3));
The demonstration that best available control measures
(BACM), including best available control technology (BACT), for the
control of direct PM2.5 and PM2.5 plan precursors
will be implemented no later than 4 years after the area was
reclassified (CAA section 189(b)(1)(B));
The demonstration (including air quality modeling) that
the Plan provides for attainment as expeditiously as practicable but no
later than December 31, 2024 (CAA sections 189(b)(1)(A) and 188(e));
Plan provisions that require reasonable further progress
(RFP) toward attainment by the applicable date (CAA section 172(c)(2));
Quantitative milestones that are to be achieved every
three years until the area is redesignated attainment and that
demonstrate RFP toward attainment by the applicable attainment date
(CAA section 189(c));
Motor vehicle emissions budgets for 2020, 2023, and 2024
as shown in Table 14 of the EPA's proposed rule (CAA section 176(c) and
40 CFR part 93, subpart A); \4\ and
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\4\ In light of CARB's request to limit the duration of the
approval of the budgets in the 2018 PM2.5 Plan and in
anticipation of the EPA's approval, in the near term, of an updated
version of CARB's EMFAC (short for EMission FACtor) model for use in
SIP development and transportation conformity in California to
include updated vehicle mix and emissions data, we proposed to limit
the duration of our approval of the budgets to the period before
replacement budgets have been found adequate. 85 FR 17382, 17428-
17430.
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The inter-pollutant trading mechanism provided for use in
transportation conformity analyses for the 2006 PM2.5 NAAQS,
in accordance with 40 CFR 93.124(b).
We did not propose any action on the contingency measure element of
the SJV PM2.5 Plan.
The EPA also proposed to grant the State's request for extension of
the Serious area attainment date from December 31, 2019, to December
31, 2024, based on a conclusion that the State has satisfied the
requirements for such extensions in section 188(e) of the Act. To
support this proposal, we proposed to find that the SJVUAPCD had
complied with its aggregate commitment in the 2012 PM2.5
Plan to achieve total emission reductions of 1.9 tons per day (tpd) of
direct PM2.5 by 2017.\5\ We also noted, however, that the
2018 PM2.5 Plan included updated emissions inventories for
the residential wood burning source category that differed from
previous inventory estimates and showed a 0.86 tpd reduction in winter
season direct PM2.5 emissions from wood burning devices
between 2013 and 2017.\6\ We sought comment as to whether the State and
District had met their commitment. In response to the EPA's proposed
finding and request for comment, CARB developed the PM2.5
Prior Commitment Revision to revise the State's aggregate commitment in
the 2012 PM2.5 Plan to reflect the updated inventories
submitted in the 2018 PM2.5 Plan and submitted it to the EPA
on April 24, 2020, for parallel processing. In a supplemental proposal
published May 12, 2020, the EPA proposed to approve the
PM2.5 Prior Commitment Revision via parallel processing and
proposed to determine that the State has met the 0.86 tpd
commitment.\7\
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\5\ 85 FR 17382, 17409.
\6\ Id. See also, 2018 PM2.5 Plan, App. C, C-257 and
letter dated August 12, 2019, from Richard W. Corey, Executive
Officer, CARB, to Mike Stoker, Regional Administrator, EPA Region
IX, transmitting ``Attachment: Supplemental Information and
Clarifications to 2017 Quantitative Milestones.''
\7\ 85 FR 27976 (May 12, 2020).
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On June 19, 2020, CARB submitted the final version of the
PM2.5 Prior Commitment Revision. We have reviewed this
submittal and find that it fulfills the SIP completeness criteria of 40
CFR part 51, appendix V. The SIP submission also includes evidence that
adequate public notice was given and that an opportunity for a public
hearing was provided consistent with the EPA's implementing regulations
in 40 CFR 51.102. Specifically, CARB provided public notice and
opportunity for public
[[Page 44194]]
comment prior to its May 28, 2020 public hearing on and adoption of the
PM2.5 Prior Commitment Revision.\8\ The SIP submission
includes proof of publication of notices for the public hearing and
includes copies of the written and oral comments received during the
State's public review processes and CARB's responses thereto.\9\
Therefore, we find that the PM2.5 Prior Commitment Revision
meets the procedural requirements for public notice and hearing in CAA
sections 110(a) and 110(l) and 40 CFR 51.102.
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\8\ California Air Resources Board, ``Notice of Public Meeting
to Consider Adoption of a Technical Revision to the San Joaquin
Valley PM2.5 State Implementation Plan,'' dated April 24,
2020.
\9\ J&K Court Reporting, LLC, ``Videoconference Meeting, State
of California Air Resources Board,'' May 28, 2020 (transcript of
CARB's public hearing), and ``Responses to Comments Received on the
Technical Revision to the San Joaquin Valley PM2.5 State
Implementation Plan.''
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Our proposed rule, supplemental proposal, and associated technical
support documents (TSDs) \10\ provide a more detailed discussion of the
rationale for our proposed actions.
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\10\ The docket includes the following four technical support
documents for the March 27, 2020 proposed rule: (1) ``Technical
Support Document, General Evaluation, San Joaquin Valley
PM2.5 Plan for the 2006 PM2.5 NAAQS,''
February 2020 (``EPA's General Evaluation TSD''); (2)``Technical
Support Document, EPA Evaluation of PM2.5 Precursor
Demonstration, San Joaquin Valley PM2.5 Plan for the 2006
PM2.5 NAAQS,'' February 2020 (``EPA's PM2.5
Precursor TSD''); (3) ``Technical Support Document, EPA Evaluation
of BACM/MSM, San Joaquin Valley PM2.5 Plan for the 2006
PM2.5 NAAQS,'' February 2020 (``EPA's BACM/MSM TSD'');
and (4) ``Technical Support Document, EPA Evaluation of Air Quality
Modeling, San Joaquin Valley PM2.5 Plan for the 2006
PM2.5 NAAQS,'' February 2020 (``EPA's Modeling TSD'').
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II. Public Comments and EPA Responses
The public comment period on the EPA's March 27, 2020 proposed rule
closed on April 27, 2020. During this period, the EPA received two
letters requesting a 30-day extension of the comment period on our
proposed rule.\11\ The EPA denied these requests for extension of the
comment period because our statutory timeframe for considering
California's request for an extended attainment date under section
188(e) of the CAA for the 2006 PM2.5 NAAQS for the San
Joaquin Valley ends on June 30, 2020.\12\
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\11\ Letter received April 6, 2020, from Mark Rose, Sierra
Nevada Program Manager, National Parks Conservation Association
(NPCA) and Nayamin Martinez, Executive Director, Central California
Environmental Justice Network (CCEJN) to Rory Mays, EPA; and letter
received April 15, 2020, from Catherina Garoupa White, Executive
Director, CVAQ, et al. to Rory Mays, EPA.
\12\ Email dated April 8, 2020, from Rory Mays, EPA to Mark
Rose, Sierra Nevada Program Manager, NPCA and Nayamin Martinez,
Executive Director, CCEJN; and email dated April 21, 2020, from Rory
Mays, EPA to Catherine Garoupa White, Executive Director, CVAQ, et
al.
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The EPA received four comment submissions on the EPA's March 27,
2020 proposed rule, from the following entities: (1) An anonymous
commenter,\13\ (2) the SJVUAPCD,\14\ (3) a coalition of seven
environmental and community organizations (collectively referred to
herein as ``NPCA''),\15\ and (4) the California Safflower Growers
Association (CSGA).\16\
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\13\ Anonymous comment received March 29, 2020.
\14\ Comment letter dated and received April 27, 2020, from
Samir Sheikh, Executive Officer/APCO, SJVUAPCD to Administrator
Wheeler, EPA.
\15\ Comment letter dated and received April 27, 2020, from Mark
Rose, NPCA, et al. to Rory Mays, EPA, including Appendices A through
G. The seven environmental and community organizations, in order of
appearance in the letter, are NPCA, Earthjustice, Central Valley Air
Quality Coalition, Coalition for Clean Air, Central Valley
Environmental Justice Network, The Climate Center, and Central
Valley Asthma Collaborative (collectively ``NPCA'').
\16\ Comment letter dated and received April 27, 2020, from
Laura Brown, Executive Director, California Safflower Growers
Association to Rory Mays, EPA.
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The public comment period on the EPA's May 12, 2020 supplemental
proposal closed on June 11, 2020. During this period, the EPA received
one comment submission from a private citizen.\17\
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\17\ Email dated June 10, 2020, from Thomas Menz to Rory Mays,
EPA Region IX, with attachments.
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We respond below to a selection of the most significant comments on
our March 27, 2020 proposed rule. We respond to all other comments that
are germane to the proposed rule and all comments on the supplemental
proposal in our separate Response to Comments document available at
https://www.regulations.gov, Docket ID No. EPA-R09-OAR-2019-0318.
Comment 1: NPCA claims that the EPA's approval of the State's and
District's aggregate commitments in the SJV PM2.5 Plan would
be arbitrary and capricious. Specifically, NPCA states that, although
the vast majority of these tonnage commitments are to be achieved
through incentive programs to accelerate the turnover of mobile
sources, most of the EPA's discussion for finding these commitments
reasonable focuses on the rulemaking commitments that provide
relatively little toward meeting these aggregate tons of emission
reductions. NPCA also states that the bulk of the aggregate tonnage
commitments rely on unfunded incentive measures that the EPA proposes
to approve with no record to support their likelihood of success.
Response 1: For the reasons provided in Response 2 through Response
3.C below, and further in our Response to Comments document, we
disagree with NPCA's claim that our approval of the aggregate
commitments in the Plan would be arbitrary and capricious.
We also disagree with NPCA's suggestion that the vast majority of
the aggregate tonnage commitments must necessarily be achieved through
incentive programs. As we explained in our proposed rule, CARB has
committed to present to its Board each of 15 regulatory and incentive-
based control measures listed in Attachment A to the resolution of
adoption (i.e., Resolution 18-49), according to the schedule set forth
in Attachment A,\18\ and to achieve a total of 32 tpd of NOX
emissions reductions and 0.9 tpd of PM2.5 emissions
reductions in the San Joaquin Valley by 2024 either through the listed
measures or through appropriate substitute measures.\19\ Although the
Valley State SIP Strategy indicates that CARB anticipates achieving 23
tpd of the necessary NOX emission reductions and 0.8 tpd of
the necessary PM2.5 emissions reductions through
implementation of the incentive-based measures listed in Attachment
A,\20\ CARB has not specifically committed to adopt any of these listed
measures and may ultimately achieve the required emission reductions
through adoption and implementation of other enforceable control
measures. By email dated November 12, 2019, CARB identified a number of
potential additional State measures on which it intends to begin public
rule development processes this year, including a Tier 5 offroad diesel
engine standard, a ``state green contracting'' measure, and a
``reduction in growth of single-occupancy vehicle travel'' measure.\21\
Under the terms of its commitment, CARB may adopt and implement any of
these new control measures or other substitute measures to achieve its
aggregate tonnage commitment.
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\18\ The list of proposed SIP measures included in Attachment A
to CARB Resolution 18-49 is also provided in tables 7 and 8 of the
Valley State SIP Strategy and in tables 4-8 and 4-9 of the 2018
PM2.5 Plan. See also, 85 FR 17382, 17413-17414 (Table 7).
\19\ CARB Resolution 18-49 (October 25, 2018), 5. See also 85 FR
17382, 17413.
\20\ Valley State SIP Strategy, 38 (Table 8) (identifying
expected emission reductions from proposed State measures).
\21\ Email dated November 12, 2019, from Sylvia Vanderspek, CARB
to Anita Lee, EPA Region IX, ``RE: SJV PM2.5
information'' (attaching ``Valley State SIP Strategy Progress'').
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Similarly, the District has committed to present to its Board each
of 12 regulatory and incentive-based control measures listed in Table
4-4 and Table 4-5 of the 2018 PM2.5 Plan, according to
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the schedule set forth in those tables,\22\ and to ``achieve the
aggregate emissions reductions of 1.88 tpd of NOX and 1.3
tpd of PM2.5 by 2024/2025'' through adoption and
implementation of these listed measures or appropriate substitute
control measures ``in the same implementation timeframes or in the
timeframes needed to meet CAA milestones.'' \23\ The 2018
PM2.5 Plan provides, in Table 4-3, anticipated emission
reductions for each of the nine District rules listed in Table 4-4 but
does not quantify the emission reductions anticipated from
implementation of the incentive-based measures listed in Table 4-5.
Like CARB, the District has not specifically committed to adopt any of
the listed measures and may ultimately achieve the required emission
reductions through adoption and implementation of other enforceable
control measures.
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\22\ See also 85 FR 17382, 17414-17415 (Table 8).
\23\ SJVUAPCD Governing Board Resolution 18-11-16 (November 15,
2018), 10-11. See also 85 FR 17382, 17413.
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Thus, CARB and the SJVUAPCD will not necessarily achieve the
aggregate tonnage commitments through incentive programs, as NPCA
suggests. Instead, although both CARB and the SJVUAPCD must take action
to develop and propose specific regulatory and incentive-based measures
identified in the Plan, they may ultimately elect to meet the
NOX and PM2.5 aggregate tonnage commitments
through adoption and implementation of these listed measures or
appropriate substitute control measures by January 1, 2024. See
Response 2.
Finally, NPCA states that the bulk of the aggregate tonnage
commitments rely on unfunded incentive measures that the EPA ``proposes
to approve with no record to support their likelihood of success.'' To
the extent NPCA intended to assert that the EPA has proposed to approve
all of the incentive-based measures listed in the State's and
District's control measure commitments, this is factually incorrect.
The EPA proposed to approve the State's and District's commitments to
take action with respect to the listed measures, including the
identified incentive-based measures, and to achieve emission reductions
by 2024. To date, the EPA has proposed to approve only one of the three
incentive-based measures listed in CARB's control measure commitment
(i.e., the ``Agricultural Equipment Incentive Measure'' or ``Valley
Incentive Measure'') \24\ and has not yet proposed action on any of the
other incentive-based measures that CARB or the District have committed
to develop and present to their respective boards, as neither agency
has yet adopted and submitted any such additional measures.
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\24\ 85 FR 16588 (March 24, 2020) (proposal to approve Valley
Incentive Measure).
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To the extent NPCA intended to argue, with respect to the Valley
Incentive Measure, that the EPA is proposing to approve this measure
with no record to support its likelihood of success, this comment is
outside the scope of this action. The EPA proposed to approve the
Valley Incentive Measure in a separate rulemaking \25\ and will respond
to all comments received on that proposal, as appropriate, in a
separate final rule.
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\25\ Id.
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Comment 2: NPCA states that the aggregate emission reduction
commitments are not enforceable as required by section 110(a)(2)(A) of
the CAA. Citing an EPA memorandum to the docket for a rulemaking
entitled ``State Implementation Plans: Response to Petition for
Rulemaking; Finding of Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown, and Malfunction,'' NPCA states that to be ``enforceable,'' a
measure must be enforceable by the state, the EPA, and citizens. NPCA
also states that the mere approval of a measure into the SIP does not
convert an unenforceable provision into an enforceable one, and that
the EPA's SIP rulemaking must explain how the aggregate emission
reduction commitments can be enforced.
Response 2: We agree with NPCA's statement that the mere approval
of a measure into the SIP does not convert an unenforceable provision
into an enforceable one, but we disagree with NPCA's claim that the
aggregate commitments in the SJV PM2.5 Plan are not
enforceable. We explain below how the EPA and citizens may enforce the
provisions of CARB's and the District's respective SIP commitments in
the SJV PM2.5 Plan. We respond to NPCA's more specific
comments concerning enforceability in our responses to comments 2.A
through 2.E, in the Response to Comments document.
Under CAA section 110(a)(2)(A), SIPs must include enforceable
emission limitations and other control measures, means or techniques
necessary to meet the requirements of the Act, as well as timetables
for compliance. Similarly, section 172(c)(6) provides that
nonattainment area SIPs must include enforceable emission limitations
and such other control measures, means or techniques as may be
necessary or appropriate to provide for attainment of the NAAQS by the
applicable attainment date.
Control measures, including commitments in SIPs, are enforced
through CAA section 304(a), which provides for citizen suits to be
brought against any ``person,'' including a state,\26\ who is alleged
``to be in violation of . . . an emission standard or limitation. . .
.'' ``Emission standard or limitation'' is defined in subsection (f) of
section 304.\27\ As observed in Conservation Law Foundation, Inc. v.
James Busey et al., 79 F.3d 1250, 1258 (1st Cir. 1996):
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\26\ CAA section 302(e) (defining ``person'' to include a State
or political subdivision thereof).
\27\ Section 304(f) of the CAA defines ``emission standard or
limitation,'' in relevant part, to mean ``a schedule or timetable of
compliance'' which is in effect under the Act ``or under an
applicable implementation plan.'' Section 302(p) of the Act defines
``schedule and timetable of compliance'' to mean ``a schedule of
required measures including an enforceable sequence of actions or
operations leading to compliance with an emission limitation, other
limitation, prohibition, or standard.'' Section 302(q) of the Act
defines ``[a]pplicable implementation plan,'' in relevant part, as
``the portion (or portions) of the implementation plan, or most
recent revision thereof, which has been approved under section 110
of [title I of the Act]. . . and which implements the relevant
requirements of [the Act].''
Courts interpreting citizen suit jurisdiction have largely
focused on whether the particular standard or requirement plaintiffs
sought to enforce was sufficiently specific. Thus, interpreting
citizen suit jurisdiction as limited to claims ``for violations of
specific provisions of the act or specific provisions of an
applicable implementation plan,'' the Second Circuit held that suits
can be brought to enforce specific measures, strategies, or
commitments designed to ensure compliance with the NAAQS, but not to
enforce the NAAQS directly. See, e.g., Wilder, 854 F.2d at 613-14.
Courts have repeatedly applied this test as the linchpin of citizen
suit jurisdiction. See, e.g., Coalition Against Columbus Ctr. v.
City of New York, 967 F.2d 764, 769-71 (2d Cir. 1992); Cate v.
Transcontinental Gas Pipe Line Corp., 904 F. Supp. 526, 530-32 (W.D.
Va. 1995); Citizens for a Better Env't v. Deukmejian, 731 F. Supp.
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1448, 1454-59 (N.D. Cal.), modified, 746 F. Supp. 976 (1990).
Thus, courts have found that the citizen suit provision cannot be
used to enforce the aspirational goal of attaining the NAAQS but can be
used to enforce specific strategies to achieve that goal.\28\
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\28\ See also Committee for a Better Arvin, et al. v. EPA, 786
F.3d 1169, 1181 (9th Cir. 2015) (finding that California's
commitments to propose and adopt emission control measures and to
achieve aggregate emission reductions are enforceable ``emission
standards or limitations'' under the CAA).
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SIP control measures and commitments may also be enforced by the
EPA under section 113(a)(1) of the Act, which authorizes the EPA to
issue notices and compliance orders, assess administrative penalties,
and bring civil
[[Page 44196]]
actions against any ``person,'' including a state, who ``has violated
or is in violation of any requirement or prohibition of an applicable
implementation plan. . . .'' \29\
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\29\ CAA section 113(a)(1)-(2) (establishing EPA's SIP
enforcement authorities), section 302(e) (defining ``person'' to
include a state or political subdivision thereof), and section
302(q) (defining ``applicable implementation plan'' to include the
portion(s) of the implementation plan approved under CAA section 110
that implement relevant CAA requirements).
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CARB's commitments are contained in CARB Resolution 18-49 (October
25, 2018) and the Valley State SIP Strategy and consist of two parts: a
control measure commitment and an aggregate tonnage commitment.\30\
CARB's control measure commitment is to ``begin the measure's public
process and bring to the Board for consideration the list of proposed
SIP measures outlined in the Valley State SIP Strategy and included in
Attachment A, according to the schedule set forth.'' \31\ By email
dated November 12, 2019, CARB clarified that it intended to begin the
public process on each listed measure by discussing the proposed
regulation or program at a public meeting (workshop, working group, or
Board hearing) or in a publicly-released document, after which it would
propose the regulation or program to its Board.\32\ CARB's aggregate
tonnage commitment is ``to achieve the aggregate emissions reductions
outlined in the Valley State SIP Strategy of 32 tpd of NOX
and 0.9 tpd of PM2.5 emissions reductions in the San Joaquin
Valley by 2024.'' \33\ In the Valley State SIP Strategy, CARB describes
this commitment as a ``commitment for new emission reductions'' that
the State must achieve by 2024 through implementation of control
measures, incentive-based measures, or other enforceable measures.\34\
CARB further describes its aggregate tonnage commitment in the Valley
State SIP Strategy as follows:
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\30\ 85 FR 17382, 17413.
\31\ CARB Resolution 18-49 (October 25, 2018), 5. The list of
proposed SIP measures included in Attachment A to CARB Resolution
18-49 is also provided in tables 7 and 8 of the Valley State SIP
Strategy and in tables 4-8 and 4-9 of the 2018 PM2.5
Plan.
\32\ Email dated November 12, 2019, from Sylvia Vanderspek, CARB
to Anita Lee, EPA Region IX, ``RE: SJV PM2.5
information'' (attaching ``Valley State SIP Strategy Progress'') and
CARB Staff Report, 14.
\33\ CARB Resolution 18-49 (October 25, 2018), 5.
\34\ Valley State SIP Strategy, 35 and 37.
While Table 8 [of the Valley State SIP Strategy] includes
estimates of the emission reductions from each of the individual
measures, final measures as proposed by staff to the Board or
adopted by the Board may provide more or less than the initial
emission reduction estimates. CARB's overall commitment is to
achieve the total emission reductions necessary to attain the
federal air quality standards while reflecting the combined
reductions from the existing control strategy and new measures.
Therefore, if a particular measure does not get its expected
emission reductions, the State is still committed to achieving the
total aggregate emission reductions. If actual emission decreases
occur that exceed the projections reflected in the current emissions
inventory and the Valley State SIP Strategy, CARB will submit an
updated emissions inventory to U.S. EPA as part of a SIP revision.
The SIP revision would outline the changes that have occurred and
provide appropriate tracking to demonstrate that aggregate emission
reductions sufficient for attainment are being achieved through
enforceable emission reduction measures.\35\
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\35\ Id. at 37.
The District's commitments are contained in SJVUAPCD Governing
Board Resolution 18-11-16 (November 15, 2018) and Chapter 4 of the 2018
PM2.5 Plan and similarly consist of two parts: A control
measure commitment and an aggregate tonnage commitment.\36\ The control
measure commitment is to ``take action on the rules and measures
committed to in Chapter 4 of the Plan by the dates specified therein,
and to submit these rules and measures, as appropriate, to CARB within
30 days of adoption for transmittal to EPA as a revision to the
[SIP].'' \37\ By email dated November 12, 2019, the District clarified
that it intended to take action on the rules and measures listed in
Chapter 4 of the 2018 PM2.5 Plan by beginning the public
process on each measure, i.e., discussing the proposed regulation or
program at a public meeting, including a workshop, working group, or
Board hearing, or in a publicly-released document, after which it would
propose the rule or measure to the SJVUAPCD Governing Board.\38\ The
District's aggregate tonnage commitment is to ``achieve the aggregate
emissions reductions of 1.88 tpd of NOX and 1.3 tpd of
PM2.5 by 2024/2025'' through adoption and implementation of
these measures or, if the total emission reductions from these rules or
measures are less than these amounts, ``to adopt, submit, and implement
substitute rules and measures that achieve equivalent reductions in
emissions of direct PM2.5 or PM2.5 precursors in
the same implementation timeframes or in the timeframes needed to meet
CAA milestones.'' \39\ Because the District's 2019 amendment to Rule
4901 (``Wood Burning Fireplaces and Wood Burning Heaters'') achieves
0.2 tpd of SIP-creditable direct PM2.5 emissions reductions
in 2024, the District's remaining PM2.5 emissions reduction
commitment for 2024 is 1.1 tpd.\40\
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\36\ 85 FR 17382, 17413.
\37\ SJVUAPCD Governing Board Resolution 18-11-16 (November 15,
2018), 10-11.
\38\ Email dated November 12, 2019, from Jon Klassen, SJVUAPCD
to Wienke Tax, EPA Region IX, ``RE: follow up on aggregate
commitments in SJV PM2.5 plan'' (attaching ``District
Progress In Implementing Commitments with 2018 PM2.5
Plan''). Although neither this submission nor Table 4-3 of the 2018
PM2.5 Plan quantifies expected emission reductions from
the three proposed incentive-based measures listed in Table 4-5 of
the 2018 PM2.5 Plan, these proposed incentive-based
measures are also measures ``committed to in Chapter 4 of the Plan''
and are, therefore, covered by the District's control measure
commitment. Thus, the District has committed to begin the public
process on each regulatory measure listed in Table 4-4 and on each
incentive-based measure listed in Table 4-5 by the relevant ``public
process begins'' date specified in those tables, and to then propose
each measure to the SJVUAPCD Governing Board by the relevant
``action date'' specified in those tables.
\39\ SJVUAPCD Governing Board Resolution 18-11-16 (November 15,
2018), 10-11.
\40\ 85 FR 17382, 17415. As shown in row C of Table 9 of our
proposal, the EPA proposed to credit the District's Rule 4901 (as
amended June 20, 2019) with 0.2 tpd of direct PM2.5
reductions in 2024 and to credit the Valley Incentive Measure with
5.9 tpd of NOX reductions and 0.3 tpd of direct
PM2.5 reductions in 2024. Because we have not yet taken
final action to approve the Valley Incentive Measure, however, we
cannot credit this measure with emission reductions at this time.
Accordingly, the only SIP-creditable control measure beyond baseline
measures in the SJV PM2.5 Plan is the District's Rule
4901 (as amended June 20, 2019). After crediting this rule with 0.2
tpd of direct PM2.5 reductions in 2024 (i.e., subtracting
0.2 tpd from the District's PM2.5 tonnage commitment for
2024, which is 1.3 tpd), the District's remaining PM2.5
tonnage commitment for 2024 is 1.1 tpd.
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Upon the EPA's approval of these commitments into the SIP under CAA
section 110, the commitments will become federally enforceable
requirements of an ``applicable implementation plan'' as defined in CAA
section 302(q). Therefore, as discussed below, both citizens and the
EPA may enforce these commitments under CAA sections 304(a)(1) and
113(a)(1), respectively. The enforceable components of these
commitments are as follows.
First, both CARB and the District have committed to begin a public
process on each of the proposed control measures listed in their
respective control measure commitments \41\ by discussing
[[Page 44197]]
the proposed regulation or program at a public meeting (workshop,
working group, or Board hearing) or in a publicly-released document. If
CARB fails to begin a public process on any of its 15 proposed control
measures by the date specified under the ``public process begins''
column in its control measure commitment, that failure would constitute
a violation of the SIP commitment. Likewise, if the District fails to
begin a public process on any of its 12 proposed control measures by
the date specified under the ``public process begins'' column in its
control measure commitment, that failure would constitute a violation
of the SIP commitment.
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\41\ CARB's 15 proposed control measures and the related
schedules for starting public process, action, and implementation
are listed in Attachment A to Board Resolution 18-49 and in Table 7
of the Valley State SIP Strategy. The SJVUAPCD's 12 proposed control
measures and the related schedules for starting public process,
action, and implementation are listed in tables 4-4 and 4-5 of the
2018 PM2.5 Plan. We refer to these tables as CARB's and
the District's ``control measure commitments.'' Table 7 of our
proposed rule summarizes the information in CARB's control measure
commitment, and Table 8 of our proposed rule summarizes the
information in the SJVUAPCD's control measure commitment. 85 FR
17382, 17413-17415.
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Second, both the State and District have committed to propose, to
their respective boards, each of the control measures listed in their
respective control measure commitments by specific dates. If CARB fails
to propose to its Board any of its 15 proposed control measures by the
relevant ``action'' date specified in its control measure commitment,
that failure would constitute a violation of the SIP commitment.
Likewise, if the District fails to propose to its Board any of its 12
proposed control measures by the relevant ``action'' date specified in
its control measure commitment, that failure would constitute a
violation of the SIP commitment.
Finally, both the State and District have committed to an aggregate
tonnage commitment--i.e., to ``achieve'' specific amounts of
NOX and direct PM2.5 emissions reductions in the
San Joaquin Valley by 2024, through implementation of either the
measures listed in their respective control measure commitments or
appropriate substitute measures. Because the deadline for
implementation of all control measures necessary for attainment in this
plan is January 1, 2024,\42\ we understand that both the State and
District have committed to achieve the necessary emission reductions no
later than January 1, 2024.\43\ To ``achieve'' specified amounts of
emissions reductions through implementation of control measures, a
regulatory agency must require compliance with measures designed to
accomplish such reductions. To require such compliance by January 1,
2024, in turn, necessitates a sequence of regulatory actions well in
advance of that date, ultimately leading to full adoption of measures
that achieve the requisite amounts of emission reductions, following
adequate public process.\44\ Thus, all of the rules and other control
measures that CARB or the SJVUAPCD adopt to satisfy their respective
tonnage commitments will be subject to state rulemaking processes
through which the EPA and the public may track the agencies' progress
in achieving the requisite emissions reductions in the years leading up
to 2024 and before the December 31, 2024 attainment date.
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\42\ 40 CFR 51.1011(b)(5) (requiring implementation of all
control measures needed for attainment as expeditiously as
practicable and no later than the beginning of the year containing
the applicable attainment date).
\43\ This interpretation is consistent with CARB's statement in
its resolution of adoption that ``CARB's mobile source reduction
schedule for the Valley provides measures to be considered
throughout the years with all emissions reductions in place by
January 1, 2024.'' CARB Resolution 18-49 (October 25, 2018), 4.
\44\ The California Administrative Procedure Act (Cal. Gov't
Code, section 11340 et seq.) requires all state agencies to provide,
at minimum, a 45-day opportunity to comment in writing, by fax, or
email on any new or revised regulation, with limited exceptions.
Cal. Gov't Code, section 11346.4. The 45-day opportunity to submit
comments starts with publication in the California Regulatory Notice
Register of a notice of proposed rulemaking, which must be posted on
the rulemaking agency's website and mailed to ``every person who has
filed a request for notice of regulatory actions with the state
agency,'' among others. Id. For proposed regulations involving
``complex proposals'' or a large number of proposals, the state
agency must involve the public in workshops or other public
discussions well before the start of the formal rulemaking process.
Cal. Gov't Code, section 11346.45.
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CARB regularly informs the public of ways to participate in its
rulemaking processes \45\ and provides guidelines for accessing public
records under the State Public Records Act.\46\ Should either CARB or
the SJVUAPCD fail to commence, prior to January 1, 2024, rulemaking
proceedings as necessary to require full implementation of (i.e.,
compliance with) measures achieving the required tonnages of emission
reductions by January 1, 2024, CARB or the District would be in
violation of its SIP commitment.\47\ CARB must also submit each adopted
measure to the EPA for approval into the SIP, after which the EPA
determines, through notice-and-comment rulemaking, whether to approve
the measure under CAA section 110 and the appropriate amounts of SIP
emission reduction credit to attribute to the measure, if approved.
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\45\ See, e.g., CARB's rulemaking schedules at https://ww2.arb.ca.gov/rulemaking-activity.
\46\ ``Guidelines for Accessing Public Records,'' available at
http://www.arb.ca.gov/html/pubrecsguidelines.htm.
\47\ Furthermore, if either agency fails to meet its
commitments, the EPA could make a finding of failure to implement
the SIP under CAA section 179(a), which starts an 18-month period
for the State to correct the non-implementation before mandatory
sanctions are imposed.
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These procedures mandated by the State and District commitments
constitute a specific enforceable strategy designed to bring the San
Joaquin Valley into attainment of the PM2.5 NAAQS by the end
of 2024. The fact that CARB and the District may meet their SIP
commitments by adopting measures that are not specifically identified
in the SIP, or through one of several available techniques, does not
render the requirement to achieve the aggregate emissions reductions
unenforceable.\48\ For over 20 years, the EPA has approved aggregate
tonnage commitments under which the state is required to achieve
specified amounts of emission reductions through enforceable control
measures to be adopted and implemented by a later date.\49\
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\48\ Citizens for a Better Environment v. Deukmejian, 731 F.
Supp. 1448, 1454-59 (N.D. Cal.) (``the basic commitment to adopt and
implement additional measures, should the identified conditions
occur, constitutes a specific strategy, fully enforceable in a
citizens action, although the exact contours of those measures are
not spelled out''), modified, 746 F. Supp. 976 (1990) (holding state
and district liable for failing to satisfy SIP commitment).
\49\ See, e.g., ``http://www.lexis.com/research/
buttonTFLink?_m=b8271650ac023d9ce93fab43ee478a8f&_xfercite=%3ccite%20
cc%3d%22USA%22%3e%3c%21%5bCDATA%5b66%20FR%2057160%5d%5d%3e%3c%2fcite%
3e&_butType=3&_butStat=2&_butNum=24&_butInline=1&_butinfo=%3ccite%20c
c%3d%22USA%22%3e%3c%21%5bCDATA%5b62%20FR%201150%2cat%201187%5d%5d%3e%
3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzB-
zSkAW&_md5=6d0b8c64e7cb22f330ae9f1798feea9b'' 62 FR 1150, 1187 (Jan.
8, 1997) (approving ozone attainment demonstration for the South
Coast Air Basin); ``http://www.lexis.com/research/
buttonTFLink?_m=b8271650ac023d9ce93fab43ee478a8f&_xfercite=%3ccite%20
cc%3d%22USA%22%3e%3c%21%5bCDATA%5b66%20FR%2057160%5d%5d%3e%3c%2fcite%
3e&_butType=3&_butStat=2&_butNum=25&_butInline=1&_butinfo=%3ccite%20c
c%3d%22USA%22%3e%3c%21%5bCDATA%5b65%20FR%2018903%5d%5d%3e%3c%2fcite%3
e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzB-
zSkAW&_md5=6721a3f19a584849c189d2c9f3765afa'' 65 FR 18903 (Apr. 10,
2000) (approving revisions to ozone attainment demonstration for the
South Coast Air Basin); 66 FR 57160 (Nov. 14, 2001) (approving ozone
attainment demonstration for Houston/Galveston, Texas); 67 FR 5170
(Feb. 4, 2002) (approving ozone attainment demonstration for New
York); 69 FR 30005 (May 26, 2004) (approving PM10
attainment demonstration for San Joaquin Valley); and 76 FR 69896
(Nov. 9, 2011) (approving PM2.5 attainment demonstration
for San Joaquin Valley).
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For all of these reasons, we conclude that these enforceable
commitments to adopt and implement additional control measures to
achieve aggregate emission reductions on a fixed schedule are
appropriate means, techniques, or schedules for compliance under
sections 110(a)(2)(A) and 172(c)(6) of the Act.
Comment 3: NPCA states that approval of the aggregate commitments
under the EPA's three-factor test is unreasonable, and that the EPA's
[[Page 44198]]
analysis of these factors is conclusory and contrary to the record.
Response 3: For the reasons provided in Response 3.A through
Response 3.C below, we disagree with the commenter's claim that our
approval of the commitments in the Plan is unreasonable and that our
analysis of the commitments under the three-factor test is unsupported.
Comment 3.A: With respect to the first factor, NPCA states that the
EPA acknowledges that 13.8 percent (%) of the necessary NOX
reductions and over a quarter of the necessary PM2.5
reductions will supposedly come from these new aggregate commitments.
NPCA asserts that the level of these commitments is unprecedented and
far from ``limited,'' and that the EPA offers no record of support for
its conclusion, pointing instead to the difficulty in identifying
additional measures and suggesting that it is reasonable for the State
and District to seek additional time to adopt the last increment of
emission reductions. NPCA claims that the EPA's conclusion regarding
the need for more time has nothing to do with whether the commitments
represent a limited portion of the needed reductions. NPCA states that
these percentages far exceed guidance on the use of voluntary measures,
and that the ton per day levels of aggregate tonnage are beyond the
levels of commitments approved in any prior SIP.
NPCA also states that the ``expectation that even larger tonnage
reductions than have previously been approved in a SIP can magically be
found is inconsistent with EPA's own conclusion that additional
measures are more difficult to find,'' and that the EPA's conclusion is
an admission that the State and District have not identified the
necessary measures. NPCA states that, unlike plans for ozone, the CAA
does not allow PM2.5 plans to include this sort of ``black
box'' that permits plans to put off identification of measures, and
that the EPA's approval undermines the Act's basic planning
requirements by suggesting that a plan need only include ``a blanket
commitment to achieve necessary reductions, even if there is no
identified path to actually doing so.''
Response 3.A: The commenters correctly note that the percentages of
needed emission reductions that are addressed by the aggregate tonnage
commitments in the SJV PM2.5 Plan are higher than those we
have approved in any prior SIP. We disagree, however, with NPCA's claim
that the EPA's approval of these commitments ``undermines the Act's
basic planning requirements'' and suggests that a plan need only
include ``a blanket commitment to achieve necessary reductions, even if
there is no identified path to actually doing so.''
Our proposed rule stated that the emission reductions remaining as
aggregate tonnage commitments in the Plan (after crediting Rule 4901
and the Valley Incentive Measure toward the attainment demonstration)
would be 28 tpd of NOX emission reductions and 1.7 tpd of
direct PM2.5 emission reductions, which equate to
approximately 13.8% of the NOX reductions and 26.6% of the
direct PM2.5 reductions needed to attain the 2006
PM2.5 NAAQS in the San Joaquin Valley by the end of
2024.\50\ Because the EPA has not yet taken final action to approve the
Valley Incentive Measure, however, we cannot credit this measure with
emission reductions at this time and have added the NOX and
direct PM2.5 reductions attributed to this measure back to
the aggregate tonnage commitments. Thus, the emission reductions
remaining as aggregate tonnage commitments are now 33.9 tpd of
NOX emission reductions and 2.0 tpd of direct
PM2.5 emission reductions, which equate to approximately
16.8% of the NOX reductions and 31.3% of the direct
PM2.5 reductions necessary for attainment. See Table 1 in
section III of this final rule.
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\50\ 85 FR 17382, 17415 (Table 9). As shown in row C of Table 9
of our proposal, the EPA proposed to credit the District's Rule 4901
(as amended June 20, 2019) with 0.2 tpd of direct PM2.5
reductions in 2024 and to credit the Valley Incentive Measure with
5.9 tpd of NOX reductions and 0.3 tpd of direct
PM2.5 reductions in 2024.
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Whether a particular aggregate tonnage commitment constitutes a
``limited'' portion of the required emission reductions is a question
that the EPA must evaluate in light of the facts and circumstances of
the nonattainment area at issue. Given the nature of the
PM2.5 challenge in the San Joaquin Valley, the significant
reductions in NOX and direct PM2.5 emission
levels achieved through implementation of baseline measures over the
past several decades, and the difficulty of identifying additional
control measures that are feasible for implementation in the area, we
find it reasonable for the State and District to seek additional time
to adopt the last increment of emission reductions necessary for
attainment by 2024.\51\ Therefore, we find that the aggregate tonnage
commitments in the Plan constitute a limited portion of the required
control strategy for the 2006 PM2.5 NAAQS in the San Joaquin
Valley and that the first factor of our three-factor test is met.
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\51\ 85 FR 17382, 17416.
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NPCA's statement that ``the Plan's aggregate commitments far exceed
guidance on the use of voluntary measures'' appears to be in reference
to the EPA's longstanding guidance recommending certain presumptive
limits on the amounts of emission reductions from voluntary and other
nontraditional (e.g., incentive-based) measures that may be credited in
a SIP.\52\ For example, the EPA has recommended that SIPs rely on
voluntary mobile source emission reduction programs for no more than
three percent of the total projected future year emission reductions
required to attain the relevant NAAQS, except where the state provides
a ``clear and convincing justification'' for a higher limit.\53\ These
guidance documents and the presumptive limits discussed therein do not
apply to our evaluation of the enforceable commitments in the SJV
PM2.5 Plan because the commitments are not voluntary or
incentive-based measures. Although our proposed rule discusses one
incentive-based measure (the Valley Incentive Measure) as a component
of the attainment demonstration in the Plan,\54\ we have not yet taken
final action on the Valley Incentive Measure and are not considering it
as part of our final action on the SJV PM2.5 Plan. Thus, the
SJV PM2.5 Plan does not rely on any voluntary or incentive-
based measure to achieve emission reductions necessary for attainment,
and the EPA's guidance documents on the use of voluntary measures in
SIPs therefore do not apply to this action.
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\52\ 85 FR 17382, 17412 (describing EPA guidance on SIP credit
for voluntary measures).
\53\ EPA, ``Guidance on Incorporating Voluntary Mobile Source
Emission Reduction Programs in State Implementation Plans (SIPs),''
October 24, 1997, 5; EPA, ``Incorporating Emerging and Voluntary
Measure in a State Implementation Plan (SIP),'' October 4, 2004, 9;
EPA, ``Guidance on Incorporating Bundled Measures in a State
Implementation Plan,'' August 16, 2005, 8, n. 6; and EPA, ``Diesel
Retrofits: Quantifying and Using Their Emission Benefits in SIPs and
Conformity: Guidance for State and Local Air and Transportation
Agencies,'' March 2018, 12.
\54\ 85 FR 17382, 17412-17413 (discussing justification for SJV
PM2.5 Plan's reliance on Valley Incentive Measure) and 85
FR 16588 (March 24, 2020) (proposed rule to approve Valley Incentive
Measure).
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To the extent NPCA intended to argue that the EPA's presumptive
limits on use of voluntary measures in SIPs should apply to our
evaluation because of the extent to which CARB anticipates fulfilling
its tonnage commitments through adoption and implementation of
incentive-based measures, we disagree. As explained in Response 1
[[Page 44199]]
and Response 2, although the Valley State SIP Strategy indicates that
CARB anticipates achieving 23 tpd of the necessary NOX
emission reductions and 0.8 tpd of the necessary PM2.5
emissions reductions through implementation of the incentive-based
measures listed in Table 8 of the Valley State SIP Strategy,\55\ CARB
has not specifically committed to adopt any of these listed measures
and may ultimately achieve the required emission reductions through
adoption and implementation of other enforceable control measures.
Thus, the SJV PM2.5 Plan does not specifically rely on any
voluntary or incentive-based measure to achieve emission reductions
necessary for attainment. If and when CARB submits to the EPA a
voluntary or incentive-based measure to achieve a portion of its
aggregate tonnage commitments in the SJV PM2.5 Plan, the EPA
will evaluate the submitted measure in accordance with the applicable
CAA requirements as interpreted in EPA guidance and will take action on
it following notice and comment rulemaking. We encourage NPCA to
participate in any such rulemaking and to submit its comments on the
applicability of the EPA's presumptive limits at that time.
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\55\ Valley State SIP Strategy, 38 (Table 8) (identifying
expected emission reductions from proposed State measures).
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NPCA's claim that the CAA does not allow PM2.5 plans to
include a `` `black box' that permits plans to put off identification
of measures'' appears to be in reference to the provisions in CAA
section 182(e)(5) that allow the EPA to approve, for extreme ozone
nonattainment areas, plan provisions that ``anticipate development of
new control techniques or improvement of existing control
technologies.'' This provision, often referred to as the ``black box''
or ``new technology'' provision of the Act, applies only to ozone
nonattainment areas classified as ``extreme'' nonattainment under
subpart 2 of part D, title I of the Act. Although we agree with NPCA's
assertion that the CAA does not contain an analogous provision for
PM2.5 nonattainment area plans, we disagree with NPCA's
suggestion that the CAA prohibits states from including provisions in
PM2.5 nonattainment area plans that anticipate adoption and
implementation of necessary control measures at a later date. The
inclusion of the new technology provision in section 182(e)(5),
applicable for different purposes in extreme ozone nonattainment areas,
does not preclude the authority of the Agency to approve appropriately
structured enforceable commitments for purposes of PM2.5
nonattainment area plans. As we explained in our proposed rule,
sections 110(a)(2)(A) and 172(c)(6) of the CAA allow for approval of
enforceable commitments that are limited in scope where circumstances
exist that warrant the use of such commitments in place of adopted
measures.\56\ Courts have confirmed that the agency has this
authority.\57\
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\56\ 85 FR 17382, 17416 (noting that the express allowance in
CAA sections 110(a)(2)(A) and 172(c)(6) for ``schedules and
timetables'' demonstrates that Congress understood that all required
controls might not have to be in place before a SIP could be fully
approved).
\57\ The Fifth Circuit Court of Appeals upheld the EPA's
interpretation of CAA sections 110(a)(2)(A) and 172(c)(6) and the
Agency's use and application of the three factor test in approving
enforceable commitments in the 1-hour ozone SIP for Houston-
Galveston. BCCA Appeal Group et al. v. EPA et al., 355 F.3d 817 (5th
Cir. 2003). More recently, the Ninth Circuit Court of Appeals upheld
the EPA's approval of enforceable commitments in ozone and
PM2.5 SIPs for the San Joaquin Valley, based on the same
three factor test. Committee for a Better Arvin, et al. v. EPA, 786
F.3d 1169 (9th Cir. 2015).
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Finally, we disagree with NPCA's claim that the Plan's aggregate
commitment is a ``blanket commitment to achieve necessary reductions''
with no identified path to fulfill it. As explained in Response 2, both
CARB and the SJVUAPCD have submitted specific control measure
commitments \58\ in addition to aggregate tonnage commitments, all of
which necessitate a sequence of regulatory actions ultimately leading
to full adoption of measures that achieve the requisite amounts of
emission reductions by January 1, 2024, following adequate public
process. These procedures mandated by the State and District
commitments constitute a specific enforceable strategy designed to
bring the San Joaquin Valley into attainment of the PM2.5
NAAQS by the end of 2024. See Response 2.
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\58\ Together, CARB's and the District's control measure
commitments identify a total of 21 regulatory measures (12 for
mobile sources and nine for stationary sources) and six incentive-
based measures (three each for mobile and stationary sources) that
the agencies must develop and propose to their respective boards on
a fixed schedule. See Response 2.
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Comment 3.B: NPCA asserts that the EPA's analysis of the second
factor regarding the State's capacity to fulfill its commitments is
unreasonable. According to NPCA, the bulk of the EPA's discussion
focuses on the progress to adopt the identified control measures, while
the bulk of the commitment strategy relies on incentives to achieve
voluntary turnover in specified categories of mobile sources. NPCA
asserts that, for the EPA to conclude that the State is capable of
fulfilling its commitment, the EPA must conclude that this incentive-
dependent strategy is reasonable. NPCA states that for this strategy to
work, CARB and the District must first be able to find the necessary
funding, must then be able to use that money to achieve the level of
turnover described, and finally must demonstrate that the specified
level of turnover will result in the emission reductions anticipated.
NPCA claims that the EPA cannot reasonably conclude that the State is
capable of achieving any of this.
According to NPCA, the EPA acknowledges that the Plan identifies a
total funding need of $5 billion (including $3.3 billion for heavy-duty
trucks and buses and $1.4 billion for agricultural equipment) and
characterizes the various funding programs as ``well-funded'' but
provides no analysis of how these programs line up with the funding
need, or any assessment of whether the State is capable of fulfilling
the targets. NPCA claims that the 2018 CARB Staff Report shows
incentive funding streams providing roughly $350 million per year over
the next seven years, far below the roughly $850 million per year
needed, and that the gap between what CARB and the District asked for
in incentives and what they are likely to receive is on track to grow
to billions of dollars short of what the Plan specifies is needed for
the San Joaquin Valley to attain the NAAQS by 2024. NPCA asserts that
CARB offers no strategy for making up that shortfall, and that the
shortfall has only grown over time.
Moreover, NPCA claims, in light of the current COVID-19 crisis and
anticipated economic fallout, the California Legislature will likely
have significantly less funding available over the next five years due
to funding shortfalls in CARB's greenhouse gas reduction fund (GGRF),
general budget, and other sources that these incentive grant programs
rely upon. NPCA argues that, because there is no reason to think that
all new sources of funding would go to the San Joaquin Valley, the EPA
must explain why it is reasonable to believe that CARB is capable of
finding an additional $1.3 billion per year in new incentive funding--
nearly three times as much as currently achieved by CARB's existing
programs.
Citing the EPA's reference to a September 2019 CARB meeting at
which incentive funding shortfalls were discussed, NPCA claims that the
EPA ``suggests that the Board's recommendation to develop a `Plan B' is
evidence that CARB is capable of fulfilling its commitment.'' But
according to NPCA, this Board meeting is ``evidence of the recognition
that the
[[Page 44200]]
strategy outlined in the Plan is already failing and will not work,''
and the EPA can point to no new plan that came out of the Board's
directive to staff. NPCA also states that neither CARB nor the District
have held or scheduled any workshops to ``discuss additional reduction
opportunities'' despite Board direction to do so. NPCA claims that the
EPA proposes to approve a Plan that has no strategy that the State is
capable of fulfilling.
NPCA asserts that the scale of voluntary replacement that CARB's
commitment assumes is equally absurd. For example, NPCA claims, CARB's
plan is to use $3.3 billion over six years (2019-2024) to achieve 10
tpd of NOX reductions from the accelerated turnover of
trucks and buses, and the Plan suggests incentives will replace 33,000
heavy-duty vehicles with newer technologies to achieve that level of
emission reductions. NPCA claims that this means over a dozen truck
owners per day, every day for the next seven years, will voluntarily
choose to retire their trucks and replace them with advanced
technology. If thousands of pieces of agricultural and other off-road
equipment are also replaced every year, NPCA claims, it is not even
clear that the agencies could process this many applications. According
to NPCA, over the entire life of the Proposition 1B program and the
District's Truck Voucher Program, the District has replaced 4,500
trucks (roughly 300 per year, or less than one per day). NPCA asserts
that the ``best year'' for South Coast's passenger vehicle scrappage
program was 2,600 vehicles. NPCA states that the EPA ``should have at
least compared these numbers to truck population numbers and turnover
rates in the Valley to see if an additional 15,000 trucks per year is
plausible,'' and that the EPA needs to provide a rational basis for
concluding that CARB can fulfill its strategy for achieving this level
of voluntary turnover, even if it obtained the necessary funding.
According to NPCA, the District has a demonstrated track record of
failing to use funds to achieve emissions reduction commitments. Citing
a 2015 Environmental Impact Report for Kern County's revised oil and
gas ordinance and an accompanying agreement signed by the county and
District, NPCA states that the District received almost $89 million in
fee monies to be spent on pollution reduction projects intended to
compensate for otherwise unregulated oil and gas emissions but that the
District has struggled to spend these funds, and that its shortfalls in
spending and encumbrances have left the District with ending
unencumbered balances of more than $6.4 million for 2017, $13.6 million
for 2018, and $48 million for 2019. NPCA asserts that these shortfalls
in spending mean that air pollution from new oil and gas drilling is
increasing unabated and worsening air quality.
Finally, NPCA states that CARB and the District have been using
incentive money for years to replace old mobile sources, and that as
turnover occurs, the remaining mobile sources are cleaner and cleaner
and emission reductions achieved by additional turnovers become smaller
and smaller per vehicle. NPCA claims that the EPA ``needs to provide
some analysis showing that the targeted level of turnover can fulfill
the aggregate emission reductions assuming lower marginal reductions
and higher marginal costs.''
Response 3.B: We disagree with NPCA's claim that the EPA has no
reasonable basis for finding CARB capable of fulfilling its
commitments.
First, both the State and District have made substantial progress
in developing and adopting the regulatory measures listed in their
respective control measure commitments. The SJV PM2.5 Plan
indicates that CARB and the SJVUAPCD anticipate achieving approximately
32% of their combined aggregate tonnage commitments for NOX
reductions and 52% of their combined aggregate tonnage commitments for
direct PM2.5 reductions through adoption and implementation
of regulatory control measures.\59\ As we explained in the proposed
rule, CARB has adopted or begun the public process on all but one of
the 12 regulatory control measures listed in its control measure
commitment, and the District has adopted or begun the public process on
six of the nine regulatory measures listed in its control measure
commitment.\60\ The substantial progress that both agencies have made
in the regulatory processes that they have committed to undertake, for
purposes of achieving a sizable portion of the aggregate tonnage
commitments in the Plan (i.e., 30 and 52% of the NOX and
PM2.5 reductions, respectively), supports our conclusion
that the State and District are capable of fulfilling their respective
commitments.
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\59\ The Valley State SIP Strategy indicates that CARB
anticipates achieving 9 tpd of its 32 tpd NOX emission
reduction commitment and 0.1 tpd of its 0.9 tpd PM2.5
emission reduction commitment through adoption and implementation of
regulatory control measures (Valley State SIP Strategy, 38 (Table
8), and the 2018 PM2.5 Plan indicates that the SJVUAPCD
anticipates achieving all or most of its 1.9 tpd NOX
emission reduction commitment and 0.94 tpd of its 1.1 tpd
PM2.5 emission reduction commitment through adoption and
implementation of regulatory control measures (2018 PM2.5
Plan, 4-12 (Table 4-3) and 2019 Rule 4901 Staff Report). Thus, the
total NOX tonnage attributed to regulatory measures is
10.9 tpd of the 33.9 tpd aggregate commitment (approximately 32%),
and the total PM2.5 tonnage attributed to regulatory
measures is 1.04 tpd of the 2.0 tpd aggregate commitment
(approximately 52%).
\60\ 85 FR 17382, 17416-17417.
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Second, CARB has also made significant progress in developing and
implementing the Valley Incentive Measure, one of three incentive-based
measures listed in its control measure commitment.\61\ CARB adopted and
submitted the Valley Incentive Measure to the EPA in February 2020,
consistent with the 2020 ``action'' date specified in its control
measure commitment, and the EPA proposed to approve this measure into
the SIP on March 24, 2020.\62\ CARB's SIP submission for the Valley
Incentive Measure indicates that the identified incentive projects,
most of which have already been funded and are currently being
implemented, would achieve a total of 5.9 tpd of NOX
emission reductions and 0.3 tpd of PM2.5 emission reductions
in the San Joaquin Valley by 2024.\63\ Although the EPA has not yet
taken final action to approve this measure, CARB's timely adoption and
submission of this measure, together with extensive documentation to
address the CAA's requirements for crediting incentive-based measures
in a SIP, supports our conclusion that the State is capable of adopting
and implementing incentive-based measures to achieve its aggregate
tonnage commitments.
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\61\ Valley State SIP Strategy, 36, 38 (tables 7 and 8).
\62\ 85 FR 16588 (March 24, 2020).
\63\ EPA, ``Technical Support Document for EPA's Rulemaking for
the California State Implementation Plan, California Air Resources
Board Resolution 19-26, San Joaquin Valley Agricultural Equipment
Incentive Measure,'' February 2020.
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Third, the Plan's identified funding need of $5 billion (including
$3.3 billion for heavy-duty trucks and buses and $1.4 billion for
agricultural equipment) to incentivize the necessary level of vehicle
and equipment turnover represents a projection of the potential amount
of incentive funds needed to achieve the aggregate tonnage commitments,
and is not necessarily the amount that will ultimately be required. For
example, as explained below, it is possible that the agricultural
equipment replacement projects could be implemented with less funding
than stated in the Plan. Based on information about the cost of
agricultural equipment replacement projects provided in CARB's SIP
submission for the Valley Incentive Measure, the EPA developed
alternative estimates of the additional funding necessary to implement
[[Page 44201]]
additional agricultural equipment replacement projects in the San
Joaquin Valley. Specifically, based on the amounts of incentive funds
secured or disbursed to implement the projects identified in the Valley
Incentive Measure (a total of approximately $328 million) and emission
reductions summed from those projects, we calculated the average cost-
effectiveness values for 1) projects that have already been fully
funded and 2) all projects relied upon in the Valley Incentive
Measure.\64\ We then used the average cost-effectiveness values to
estimate a range of total incentive funds that could achieve an
additional 5.1 tpd of NOX reductions and 0.5 tpd of direct
PM2.5 reductions from agricultural equipment replacement
projects (i.e., the additional reductions necessary to achieve the
total emission reductions attributed to CARB's proposed ``Accelerated
Turnover of Agricultural Equipment'' measure).\65\
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\64\ Memorandum dated June 22, 2020, from Rebecca Newhouse, EPA
Region IX, Air and Radiation Division, Rules Office to docket number
EPA-R09-OAR-2019-0318, Subject: ``Cost-effectiveness of Emission
Reductions from the Valley Incentive Measure and Estimated Future
Funding Needs for Additional Agricultural Equipment Replacements''
(``EPA Cost-Effectiveness Memo'').
\65\ The SJV PM2.5 Plan indicates that, in addition
to the 5.9 tpd of NOX reductions and 0.3 tpd of
PM2.5 reductions to be achieved by the Valley Incentive
Measure, CARB anticipates achieving an additional 5.1 tpd of
NOX reductions and 0.5 tpd of PM2.5 reductions
from other agricultural equipment replacement measures in the San
Joaquin Valley. Valley State SIP Strategy, 38 (Table 8) (identifying
a total of 11 tpd NOX reductions and 0.8 tpd
PM2.5 reductions to be achieved by ``Accelerated Turnover
of Agricultural Equipment'').
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These calculations resulted in a low estimate of $480 million and a
high estimate of $547 million to achieve both an additional 5.1 tpd of
NOX reductions and an additional 0.5 tpd of direct
PM2.5 reductions from CARB's proposed ``Accelerated Turnover
of Agricultural Equipment'' measure,\66\ both significantly less than
the approximately $1 billion identified in the Plan as necessary to
achieve these remaining emission reductions.\67\ Although our
calculations are based on a number of assumptions that may differ from
those used by CARB and the District in the SJV PM2.5 Plan,
they provide some indication that the emission reductions attributed in
the Plan to agricultural equipment replacement projects may be
achievable with less than $1.4 billion in incentive funds and, by
extension, that the emission reductions attributed to all of the
incentive-based measures in the Plan may be achievable with less than
$5 billion.
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\66\ EPA Cost-Effectiveness Memo, 6 (Table 4). The higher
funding estimates for PM2.5 reductions would be adequate
to also achieve the identified NOX reductions, for which
the EPA calculated significantly lower cost-effectiveness values and
funding needs.
\67\ The 2018 PM2.5 Plan identifies a total of $1.4
billion in funding needed to implement the ``Accelerated Turnover of
Agricultural Equipment'' measure. 2018 PM2.5 Plan, App.
E, Table E-4 (page E-22). Because CARB has already secured $328
million in incentive funds to implement the Valley Incentive
Measure, which is expected to achieve 5.9 of the 11 tpd of
NOX reductions and 0.3 of the 0.8 tpd PM2.5
reductions attributed to the ``Accelerated Turnover of Agricultural
Equipment'' measure, the remaining amount of incentive funds that
the Plan identifies as needed to fully implement this measure (i.e.,
to achieve the remaining 5.1 tpd NOX reductions and 0.5
tpd PM2.5 reductions) is approximately $1.07 billion.
---------------------------------------------------------------------------
CARB's Staff Report for the SJV PM2.5 Plan indicates
that, of the $5 billion estimated to be necessary from 2019 to 2024 to
achieve the needed emission reductions identified in the Plan, over $2
billion is ``identified or anticipated'' ($338 million each year from
2019 to 2024), leaving a total ``incentive funding gap'' of
approximately $2.6 billion over the 2019-2024 period.\68\ That is, the
Plan indicates that over 40% of the needed incentive funds are
identified or anticipated, leaving a ``funding gap'' of less than 60%
of the needed funds. If we assume a 60% funding gap would result in a
failure to achieve 60% of the emission reductions that the Plan
attributes to CARB's incentive-based measures (23 tpd NOX
reductions and 0.8 tpd PM2.5 reductions),\69\ the funding
gap would result in emission reduction shortfalls of approximately 13.8
tpd for NOX and 0.5 tpd for PM2.5, which equate
to approximately 7% of the total NOX reductions and 8% of
the total PM2.5 reductions necessary for attainment.\70\ We
believe it is reasonable to provide the State and District additional
time to identify the specific measures that will achieve these amounts
of reductions.
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\68\ CARB, ``Staff Report, Review of the San Joaquin Valley 2018
Plan for the 1997, 2006, and 2012 PM2.5 Standards,''
release date December 21, 2018 (``CARB Staff Report''), 27 (Table
9).
\69\ Valley State SIP Strategy, 38 (Table 8).
\70\ 2018 PM2.5 Plan, App. H, Table H-6 (identifying
totals of 202.2 tpd NOX reductions and 6.4 tpd
PM2.5 reductions necessary for attainment of the 2006
PM2.5 NAAQS in the San Joaquin Valley by December
31,2024).
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Fifth, we disagree with NPCA's suggestion that anticipated economic
constraints render the State unable to achieve its tonnage commitments
and its claim that the EPA must explain ``why it is reasonable to
believe that CARB is capable of finding an additional $1.3 billion per
year in new incentive funding'' in order to find that CARB is capable
of fulfilling its commitments. Although it is possible that CARB and
the District will have significantly less funding available over the
next several years to implement the incentive-based measures identified
in the Plan, it is also possible that the State and District will
achieve their respective aggregate tonnage commitments with less than
$5 billion in incentive funds, as suggested by our alternative
estimates of the cost-effectiveness and estimated funding needs for
additional agricultural equipment replacement projects. Neither CARB
nor the District has committed to secure $5 billion in funding for its
incentive programs, nor does the Plan establish definitively that this
amount is necessary to achieve the identified tonnage commitments. For
example, CARB and the District may be able to fulfill a substantial
portion of their aggregate tonnage commitments through other measures
not identified in the SJV PM2.5 Plan, in lieu of or in
addition to the identified incentive programs. Although the Valley
State SIP Strategy indicates that CARB anticipates achieving 23 tpd of
the necessary NOX emission reductions (68% of the total 33.9
tpd NOX commitment from both agencies) and 0.8 tpd of the
necessary PM2.5 emissions reductions (40% of the total 2.0
tpd PM2.5 commitment from both agencies) through
implementation of the incentive-based measures listed in CARB's control
measure commitment,\71\ CARB has not specifically committed to adopt
any of these listed measures and may ultimately satisfy its tonnage
commitments through adoption and implementation of other enforceable
control measures. See Response 1 and Response 2. Indeed, CARB has
recently fulfilled the aggregate tonnage commitments in a previous plan
to provide for attainment of the 1997 PM2.5 NAAQS in the San
Joaquin Valley, in part through adoption and implementation of both
regulatory and incentive-based control measures not specifically
identified in the approved attainment plan.\72\
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\71\ Valley State SIP Strategy, 36, 38 (tables 7 and 8).
\72\ 85 FR 17382, 17406-17407. See also, the EPA's General
Evaluation TSD, 3-12.
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CARB has identified a number of potential additional State measures
on which it intends to begin public rule development processes this
year, including a Tier 5 off-road diesel engine standard, a ``state
green contracting'' measure, a ``reduction in growth of single-
occupancy vehicle travel'' measure, and a locomotive emission reduction
measure.\73\ In addition, as
[[Page 44202]]
explained in our proposed rule, emission reductions from certain
measures in the Plan's control strategy, such as zero emission airport
shuttle buses and transportation refrigeration units used for cold
storage, have yet to be quantified but are expected to further reduce
NOX and direct PM2.5 emissions by 2024.\74\
Finally, CARB implements a number of highly successful incentive
programs designed to accelerate turnover to cleaner vehicles, including
the Hybrid and Zero-Emission Truck and Bus Voucher Incentive Project
(HVIP), which accelerates the adoption of cleaner, more-efficient
trucks and buses.\75\ All of these potential additional control
measures or incentive programs are candidate measures that CARB may
adopt, implement, and submit to the EPA to achieve its aggregate
tonnage commitments.
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\73\ Email dated November 12, 2019, from Sylvia Vanderspek, CARB
to Anita Lee, EPA Region IX, ``RE: SJV PM2.5
information'' (attaching ``Valley State SIP Strategy Progress'').
\74\ 85 FR 17382, 17417.
\75\ CARB, ``Public Health: HVIP Metrics (Draft),'' April 16.
2020, slide 3 (showing significant increases in annual HVIP vouchers
for zero-emission and low-NOX vehicles from 2017 to
2019).
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Finally, although NPCA correctly notes that the District has not
fully expended the funds it received from the Kern County Oil and Gas
Emission Reduction Agreement (OGERA) during the last several years,\76\
the EPA does not agree that this equates to ``a demonstrated track
record of failing to use funds to achieve emissions reduction
commitments.'' For example, the District has fulfilled its SIP-approved
aggregate tonnage commitment in the 2008 PM2.5 Plan for the
1997 PM2.5 NAAQS, through adoption and implementation of
both regulatory and incentive-based control measures.\77\ Additionally,
the District's latest annual financial reports indicate that both its
revenues and its expenditures for incentive grant programs have
significantly increased in the past several years, and that grant funds
received and appropriated for a given fiscal year may be expended on
incentive contracts in subsequent fiscal years.\78\ Both the District's
track record to date in fulfilling its SIP-approved aggregate tonnage
commitments and the information concerning funds available for
incentive grant programs in the District's annual financial reports
support our conclusion that the District is capable of fulfilling its
aggregate tonnage commitments in the SJV PM2.5 Plan.\79\
NPCA fails to substantiate its claim that the District's ``shortfalls
in spending mean that air pollution from new oil and gas drilling is
increasing unabated and worsening air quality.''
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\76\ The SJVUAPCD's 2019 annual report on its indirect source
review (ISR) program states that $48.5 million of the FY2018-2019
Voluntary Emission Reduction Agreement (VERA) program balances were
not encumbered as of June 30, 2019, and that $29.7 million of this
unencumbered balance was from the Kern County OGERA. SJVUAPCD,
``2019 Annual Report, Indirect Source Review Program, July 1, 2018
to June 30, 2019'' (December 19, 2019), 9. The revenues from the
Kern County OGERA may be applied to incentive projects to replace
residential wood burning devices, trucks, buses, and diesel-powered
off-road equipment, among others. SJVUAPCD, ``Item Number 7: Approve
Emission Reduction Agreement with Kern County to Fully Mitigate
Construction and Operational Air Quality Impacts from Future Growth
in the Oil and Gas Industry in Kern County,'' August 18, 2016.
\77\ 85 FR 17382, 17406-17407. See also, the EPA's General
Evaluation TSD, 3-12.
\78\ The ``non-operating budget'' revenues and expenditures
identified in the SJVUAPCD's annual financial reports, which
represent the grant funds received and disbursed by the District to
implement emission reduction incentive programs, have increased from
$99.9 million (revenues) and $81.6 million (expenditures) for the
fiscal year ending June 30, 2017 to $289.8 million (revenues) and
$139.7 million (expenditures) for the fiscal year ending June 30,
2019. SJVUAPCD, ``Comprehensive Annual Financial Report, Fiscal Year
Ended June 30, 2017,'' 16-17, ``Comprehensive Annual Financial
Report, Fiscal Year Ended June 30, 2018,'' 16-17, and
``Comprehensive Annual Financial Report, Fiscal Year Ended June 30,
2019,'' 16-17, available at https://www.valleyair.org/General_info/budget.htm.
\79\ The District's aggregate tonnage commitments do not
indicate that the District anticipates achieving any portion of the
required emission reductions through incentive-based control
measures. See Response 2.
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We therefore find that CARB and the SJVUAPCD are capable of
fulfilling their respective aggregate tonnage commitments in the SJV
PM2.5 Plan and that the second factor of our three-factor
test is met.
Comment 3.C: With respect to the third factor, NPCA states that the
scale of the funding shortfall and the turnover required undermine the
EPA's conclusion that the commitment is for a reasonable and
appropriate period of time. NPCA claims that the EPA's conclusory
analysis looks only at specific rule commitments with no discussion of
the main part of the Plan's strategy, and that any such analysis would
have shown that CARB and the District are already falling short on
their funding targets and will need even more funding and even greater
levels of turnover in the years that remain until 2024. NPCA asserts
that there is not enough time to make up the ground that has been lost,
nor is it reasonable to believe that CARB and the District can wait any
longer to develop a Plan B to achieve the emission reduction
commitment. According to NPCA, rulemaking must be occurring now to
achieve the required emission reductions by 2024, and a disapproval of
the aggregate commitments will trigger that required effort.
NPCA asserts that the EPA has provided none of the necessary
analysis to reasonably conclude that the Plan provides any strategy for
achieving the massive aggregate emission reduction commitments in the
SIP, and that no such support exists in the record. NPCA claims that
CARB has submitted an unenforceable promise with no basis for believing
it can be kept. NPCA asserts that the EPA should disapprove the Plan
and direct CARB and the District to submit a plan that outlines a
strategy that does not rely on unrealistic voluntary incentives, and
that if accelerated turnover is required, CARB and the District should
``adopt rules to mandate that turnover and use their limited funds to
assist with that compliance burden rather than making people who
deserve clean air and the success of the plan the ones to pay for any
funding shortfall.''
Response 3.C: We disagree with NPCA's claim that ``the scale of the
funding shortfall and the turnover required'' undermine the EPA's
conclusion that the Plan's aggregate commitments are for a reasonable
and appropriate period of time. As we explained in Response 3.B, the
SJV PM2.5 Plan identifies an ``incentive funding gap'' over
the 2019-2024 period of approximately $2.6 billion, almost 60% of the
funds needed to implement the incentive projects that the Plan
identifies as necessary for attainment.\80\ If we assume a 60% funding
gap would result in a failure to achieve 60% of the emission reductions
that the Plan attributes to CARB's incentive-based measures,\81\ the
funding gap would result in emission reduction shortfalls of
approximately 13.8 tpd for NOX and 0.5 tpd for
PM2.5, which equate to approximately 7% of the total
NOX reductions and 8% of the total PM2.5
reductions necessary for attainment by 2024.\82\ We believe it is
reasonable to provide CARB and the District several years to identify
the specific measures that will achieve these relatively small amounts
of reductions by January 1, 2024.
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\80\ CARB Staff Report, 27 (Table 9).
\81\ Valley State SIP Strategy, 38 (Table 8) (attributing 23 tpd
NOX reductions and 0.8 tpd PM2.5 reductions to
incentive-based measures).
\82\ 2018 PM2.5 Plan, Appendix H, Table H-6
(identifying totals of 202.2 tpd NOX reductions and 6.4
tpd PM2.5 reductions necessary for attainment of the 2006
PM2.5 NAAQS in the San Joaquin Valley by December 31,
2024).
---------------------------------------------------------------------------
Additionally, it is possible that the State and District will
achieve their respective aggregate tonnage commitments with less than
$5 billion in incentive funds, as suggested by our alternative
estimates of the cost-
[[Page 44203]]
effectiveness of agricultural equipment replacement projects and
related funding needs. See Response 3.B. Neither CARB nor the District
has committed to secure $5 billion in funding for its incentive
programs, nor does the Plan establish definitively that this amount is
necessary to achieve the identified tonnage commitments. As CARB notes
in the CARB Staff Report, ``[t]he ultimate goal of the Plan is to
achieve the emissions reductions needed to reach attainment, and
incentive monies raised and equipment turned over are a critical part
of this effort, but not in and of themselves precise targets that must
be met.'' \83\ Given the uncertainties about the levels of incentive
funding and the numbers of vehicle or equipment replacement projects
that are necessary to achieve the aggregate tonnage commitments in the
Plan, the time needed by the State and District to develop and adopt
new or revised control measures (whether regulatory or incentive-
based), and the January 1, 2024 deadline for implementation of all
control measures needed for attainment by December 31, 2024, we find
the State's and District's commitments to adopt and implement
enforceable control measures that achieve the necessary emission
reductions by January 1, 2024 both reasonable and appropriate.
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\83\ CARB Staff Report, 26.
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We also disagree with the commenter's claim that we provided none
of the necessary analysis to reasonably conclude that the Plan provides
a strategy for achieving the aggregate emission reduction commitments
in the SIP, and that CARB has submitted ``an unenforceable promise with
no basis for believing it can be kept.'' As explained in the proposed
rule \84\ and further in Response 2, both CARB and the SJVUAPCD have
submitted specific control measure commitments in addition to aggregate
tonnage commitments, all of which necessitate a sequence of regulatory
actions ultimately leading to full adoption of measures that achieve
the requisite amounts of emission reductions by January 1, 2024,
following adequate public process. These procedures mandated by the
State and District commitments constitute a specific enforceable
strategy designed to bring the San Joaquin Valley into attainment of
the PM2.5 NAAQS by the end of 2024. See Response 2.
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\84\ 85 FR 17382, 17418.
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As we explained in the proposed rule, both CARB and the District
have made progress in developing and adopting the measures listed in
their respective control measure commitments. Specifically, CARB has
adopted 5 measures and begun the public process on 7 of the remaining
10 measures listed in its control measure commitment.\85\ One of the
adopted measures is the Valley Incentive Measure, which CARB adopted
and submitted to the EPA in February 2020, consistent with the 2020
``action'' date specified in its control measure commitment. The EPA
proposed to approve this measure into the SIP on March 24, 2020.\86\
The District has adopted one measure (SJVUAPCD Rule 4901) by the
``action'' date specified in its control measure commitment and begun
the public process on 5 of the remaining 11 measures listed in its
control measure commitment.\87\ The EPA has approved Rule 4901, as
amended June 20, 2019, into the SIP.\88\ The State has made tangible
progress to date in developing, adopting, and submitting these control
measures for the EPA's approval, and we find the remaining steps of the
strategy reasonable and appropriate given the January 1, 2024 deadline
for implementation of the control measures needed for attainment.
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\85\ 85 FR 17382, 17413-17414 (Table 7).
\86\ 85 FR 16588 (March 24, 2020).
\87\ 85 FR 17382, 17414 (Table 8).
\88\ EPA, ``Air Plan Approval; California; San Joaquin Valley
Unified Air Pollution Control District'' (final rule to approve Rule
4901 (``Wood Burning Fireplaces and Wood Burning Heaters'')), signed
June 26, 2020.
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We agree with NPCA's statement that the State's rulemaking process
needs to occur now to achieve the required emission reductions by
January 1, 2024. The control measure commitments in the Plan obligate
both CARB and the District to do precisely that: all but one of the
potential control measures identified in the State's and District's
control measure commitments are scheduled for ``action'' by 2021.\89\
In addition to the 5 listed measures that CARB has already adopted,
CARB must also develop and propose to its Board 10 additional control
measures (8 regulatory measures and 2 incentive-based measures) by 2021
to fully satisfy its control measure commitment.\90\ Similarly, in
addition to the one listed regulatory measure that the SJVUAPCD has
adopted and submitted to the EPA, the District must also develop and
propose to its Board 11 additional control measures (8 regulatory
measures and 3 incentive-based measures) by 2022 to fully satisfy its
control measure commitment.\91\ Finally, both CARB and the SJVUAPCD
must ultimately adopt enforceable control measures, whether listed
measures or substitutes, that achieve a total of 33.9 tpd of
NOX reductions and 2.0 tpd of direct PM2.5
reductions by January 1, 2024. Upon the EPA's approval of these
commitments into the SIP, citizens or the EPA may bring enforcement
actions under sections 304(a) or 113(a) of the CAA, respectively, to
compel action by the State or District if either agency fails to begin
a public process or to propose a specific measure to its board in
accordance with the deadline in its control measure commitment, or
fails to adopt enforceable control measures sufficient to fulfill its
aggregate tonnage commitments. We therefore disagree with NPCA's
suggestion that disapproval of the SJV PM2.5 Plan is the
only way to trigger the rulemaking effort necessary to meet the 2024
attainment deadline.
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\89\ The only potential control measure scheduled for ``action''
by a later date is SJVUAPCD Rule 4550 (``Conservation Management
Practices''), which is scheduled for action in 2022. 85 FR 17382,
17414 (Table 8).
\90\ Id. at 17413-17414 (Table 7).
\91\ Id. at 17414 (Table 8).
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With respect to NPCA's suggestion that CARB and the District should
adopt rules to mandate turnover and use their limited funds to assist
with that compliance burden, we note that the Plan indicates CARB's and
the District's intent to take this approach for certain key emission
sources in the San Joaquin Valley. For example, for heavy-duty trucks,
one of the largest sources of NOX emissions in the San
Joaquin Valley,\92\ CARB's control measure commitment obligates it to
develop and propose several regulatory control measures by 2020 (e.g.,
the ``Heavy-Duty Vehicle Inspection and Maintenance (I/M) Program'' and
the ``Heavy-Duty Low-NOX Engine Standard'') followed by an
incentive-based measure in 2021 (i.e., the ``Accelerated Turnover of
Trucks and Buses Incentive Projects'' measure) to assist with the
compliance burden.\93\ Similarly, for the residential wood burning and
commercial cooking source categories, among the largest sources of
direct PM2.5 emissions in the San Joaquin Valley,\94\ the
District's control measure commitment obligates it to develop and
propose regulatory control measures (i.e., District Rule 4901 and
District Rule 4692 (``Commercial Charbroiling'')) in 2019 and 2020,
respectively, in addition to incentive-based measures (i.e., the
``Residential Wood Burning Devices Incentive Projects'' measure and the
``Commercial Under-fired Charbroiling Incentive Projects'' measure) in
2020, to assist
[[Page 44204]]
with the compliance burden.\95\ We find these timetables for
development of regulatory and incentive-based measures reasonable.
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\92\ 2018 PM2.5 Plan, App. B (Table B-2).
\93\ 85 FR 17382, 17413-17414 (Table 7).
\94\ 2018 PM2.5 Plan, App. B (Table B-1).
\95\ 85 FR 17382, 17414 (Table 8).
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We therefore find that the State's and District's commitments in
the SJV PM2.5 Plan are for a reasonable and appropriate
period of time and that the third factor of our three-factor test is
met.
III. Final Action
For the reasons discussed in this final rule, the associated
Response to Comment document, and further in our proposed rule,
supplemental proposal, and related TSDs, under CAA section 110(k)(3),
the EPA is approving the following portions of the SJV PM2.5
Plan as meeting CAA requirements for implementation of the 2006
PM2.5 NAAQS:
The 2013 base year emission inventories (CAA section
172(c)(3));
The demonstration that BACM, including BACT, for the
control of direct PM2.5 and PM2.5 plan precursors
will be implemented no later than 4 years after the area was
reclassified (CAA section 189(b)(1)(B));
The demonstration (including air quality modeling) that
the Plan provides for attainment as expeditiously as practicable but no
later than December 31, 2024 (CAA sections 189(b)(1)(A) and 188(e));
Plan provisions that require RFP toward attainment by the
applicable date (CAA section 172(c)(2));
Quantitative milestones that are to be achieved every
three years until the area is redesignated attainment and that
demonstrate RFP toward attainment by the applicable attainment date
(CAA section 189(c));
Motor vehicle emissions budgets for 2020, 2023, and 2024
as shown in Table 3 of this final rule (CAA section 176(c) and 40 CFR
part 93, subpart A); and
The inter-pollutant trading mechanism provided for use in
transportation conformity analyses for the 2006 PM2.5 NAAQS,
in accordance with 40 CFR 93.124(b).
With respect to the Plan's attainment demonstration and control
strategy, the EPA proposed to credit the District's Rule 4901 (as
amended June 20, 2019) with 0.2 tpd of direct PM2.5
reductions in 2024 and to credit the Valley Incentive Measure with 5.9
tpd of NOX reductions and 0.3 tpd of direct PM2.5
reductions in 2024.\96\ Because we have not yet taken final action to
approve the Valley Incentive Measure, however, we cannot credit this
measure with emission reductions at this time. Accordingly, the only
SIP-creditable control measure beyond baseline measures in the SJV
PM2.5 Plan is the District's Rule 4901 (as amended June 20,
2019). After crediting this rule with 0.2 tpd of direct
PM2.5 reductions in 2024 (i.e., subtracting 0.2 tpd from the
District's PM2.5 tonnage commitment for 2024, which is 1.3
tpd), the District's remaining tonnage commitments for 2024 are 1.88
tpd of NOX and 1.1 tpd of direct PM2.5. CARB's
aggregate tonnage commitments for 2024 are 32 tpd of NOX and
0.9 tpd of direct PM2.5.
---------------------------------------------------------------------------
\96\ 85 FR 27976, Table 9, row C.
---------------------------------------------------------------------------
Table 1 provides a summary of the total NOX and direct
PM2.5 emission reductions necessary for attainment in the
San Joaquin Valley by December 31, 2024, the emission reductions
attributed to baseline measures and new control strategy measures, and
the emission reductions remaining as aggregate tonnage commitments.
Table 1--Reductions Needed for Attainment and Aggregate Tonnage Commitments
[Tpd, 2024]
----------------------------------------------------------------------------------------------------------------
Direct PM2.5
NOX
----------------------------------------------------------------------------------------------------------------
A..................................... Total reductions needed from baseline 202.2 6.4
and control strategy measures.
B..................................... Reductions from baseline measures....... 168.3 4.2
C..................................... Total reductions from approved measures. 0.0 0.2
D..................................... Total reductions remaining as 33.9 2.0
commitments (A-B-C).
E..................................... Percent (%) of total reductions needed 16.8% 31.3%
remaining as commitments (D/A).
----------------------------------------------------------------------------------------------------------------
Sources: 2018 PM2.5 Plan, Ch. 4, Tables 4-3 and 4-7, and Appendix B, Tables B-1 and B-2; and 2019 Rule 4901
Staff Report, 34.
With respect to the motor vehicle emissions budgets, we are taking
final action to limit the duration of the approval of the motor vehicle
emissions budgets to last only until the effective date of the EPA's
adequacy finding for any subsequently submitted budgets. We are doing
so at CARB's request and in light of the benefits of using EMFAC2017-
derived budgets prior to our taking final action on the future SIP
revision that includes the updated budgets.
Table 2--Motor Vehicle Emission Budgets for the San Joaquin Valley for the 2006 PM2.5 Standard
[Winter average, tpd]
--------------------------------------------------------------------------------------------------------------------------------------------------------
2017 2020 2023 2024
Budget year ---------------------------------------------------------------------------------------
PM2.5 NOX PM2.5 NOX PM2.5 NOX PM2.5 NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fresno.......................................................... 0.9 29.3 0.9 25.9 0.8 15.5 0.8 15.0
Kern............................................................ 0.8 28.7 0.8 23.8 0.7 13.6 0.7 13.4
Kings........................................................... 0.2 5.9 0.2 4.9 0.2 2.9 0.2 2.8
Madera.......................................................... 0.2 5.5 0.2 4.4 0.2 2.6 0.2 2.5
Merced.......................................................... 0.3 11.0 0.3 9.1 0.3 5.5 0.3 5.3
San Joaquin..................................................... 0.7 15.5 0.6 12.3 0.6 7.9 0.6 7.6
Stanislaus...................................................... 0.4 12.3 0.4 9.8 0.4 6.2 0.4 6.0
Tulare \a\...................................................... 0.4 11.2 0.4 8.7 0.4 5.3 0.4 5.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: 2018 PM2.5 Plan, Appendix D, Table 3-2. Budgets are rounded to the nearest tenth of a ton.
\a\ In Table 14 of the EPA's proposed rule, we inadvertently omitted the last row of motor vehicle emission budgets, for Tulare County, although these
budgets were included on page 20 of the EPA's General Evaluation TSD.
[[Page 44205]]
The EPA is also granting the State's request for extension of the
Serious area attainment date in the San Joaquin Valley from December
31, 2019, to December 31, 2024, based on a conclusion that the State
has satisfied the requirements for such extensions in section 188(e) of
the Act.
Finally, the EPA is approving the PM2.5 Prior Commitment
Revision and determining that the State has met the 0.86 tpd
PM2.5 emission reduction commitment in the SIP.
IV. 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 final action merely approves state plans as meeting
federal requirements and does not impose additional requirements beyond
those imposed by state law.
For these reasons, this final 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 13563 (76 FR 3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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 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);
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; and
Does not provide the EPA with the discretionary authority
to address disproportionate human health or environmental effects with
practical, appropriate, and legally permissible methods under Executive
Order 12898 (59 FR 7629, February 16, 1994).
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).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 21, 2020. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Ammonia, Carbon
monoxide, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 30, 2020.
John W. Busterud,
Regional Administrator, Region IX.
For the reasons started in the preamble, EPA amends Chapter I,
title 40 of the Code of Federal Regulations as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
0
2. Section 52.220 is amended by adding paragraphs (c)(478)(ii)(A)(4),
(c)(536), (c)(537), and (c)(538) to read as follows:
Sec. 52.220 Identification of plan--in part.
* * * * *
(c) * * *
(478) * * *
(ii) * * *
(A) * * *
(4) SJVUAPCD's commitments to adopt, submit, and implement
substitute rules that will achieve equivalent reductions in emissions
of direct PM2.5 or PM2.5 precursors in the same
adoption and implementation timeframes or in the timeframes needed to
meet CAA milestones, as stated on p. 4 of SJVUAPCD Governing Board
Resolution 2012-12-19, dated December 20, 2012 were revised by CARB
Resolution 20-15, dated May 28, 2020, in paragraph (c)(539)(ii)(A)(2)
of this section.
* * * * *
(536) The following plan was submitted on May 10, 2019 by the
Governor's designee as an attachment to a letter dated May 9, 2019.
(i) [Reserved]
(ii) Additional materials. (A) California Air Resources Board.
(1) San Joaquin Valley Supplement to the 2016 State Strategy for
the State Implementation Plan, adopted October 25, 2018 (portions
relating to the 2006 PM2.5 NAAQS, only) (``Valley State SIP
Strategy'').
(2) CARB Resolution No. 18-49 with Attachments A and B, October 25,
2018. Commitments to begin the public process on, and bring to the
Board for consideration, the list of proposed SIP measures outlined in
the Valley State SIP Strategy according to the schedule set forth
therein, and commitments to
[[Page 44206]]
achieve the aggregate emissions reductions outlined in the Valley State
SIP Strategy of 32 tpd of NOX and 0.9 tpd of
PM2.5 emissions reductions in the San Joaquin Valley by
2024.
(B) [Reserved]
(537) The following plan was submitted on May 10, 2019 by the
Governor's designee as an attachment to a letter dated May 9, 2019.
(i) [Reserved]
(ii) Additional materials. (A) California Air Resources Board.
(1) CARB Resolution No. 19-1, January 24, 2019.
(2) ``Staff Report, Review of the San Joaquin Valley 2018 Plan for
the 1997, 2006, and 2012 PM2.5 Standards,'' December 21,
2018.
(3) ``Attachment A, Clarifying information for the San Joaquin
Valley 2018 Plan regarding model sensitivity related to ammonia and
ammonia controls.''
(4) ``Staff Report, ARB Review of San Joaquin Valley
PM2.5 State Implementation Plan,'' including Appendix B
(``San Joaquin Valley 2015 PM2.5 SIP, Additional Emission
Reductions Achieved Towards Meeting Aggregate Commitment''), April 20,
2015.
(5) ``Technical Clarifications to the 2015 San Joaquin Valley
PM2.5 State Implementation Plan.''
(6) ``Appendix H, RFP, Quantitative Milestones, and Contingency,
2018 Plan for the 1997, 2006, and 2012 PM2.5 Standards,
Appendix H Revised February 11, 2020,'' (portion pertaining to the 2006
PM2.5 NAAQS, only, and excluding section H.3 (``Contingency
Measures'')).
(B) San Joaquin Valley Unified Air Pollution Control District.
(1) 2018 Plan for the 1997, 2006, and 2012 PM2.5
Standards (``2018 PM2.5 Plan''), adopted November 15, 2018
(portions pertaining to the 2006 PM2.5 NAAQS only),
excluding Chapter 5 (``Demonstration of Federal Requirements for 1997
PM2.5 Standards''), Chapter 7 (``Demonstration of Federal
Requirements for 2012 PM2.5 Standards''), Appendix H,
section H.3 (``Contingency Measures''), and Appendix I (``New Source
Review and Emission Reduction Credits'').
(2) SJVUAPCD Governing Board, In the Matter of: Adopting the San
Joaquin Valley Unified Air Pollution Control District 2018 Plan for the
1997, 2006, and 2012 PM2.5 Standards, Resolution No. 18-11-
16, November 15, 2018. Commitments to take action on the rules and
measures committed to in Chapter 4 of the Plan by the dates specified
therein, and to submit these rules and measures, as appropriate, to
CARB within 30 days of adoption for transmittal to EPA as a revision to
the State Implementation Plan. Commitments to achieve the aggregate
emissions reductions of 1.88 tpd of NOX and 1.3 tpd of
PM2.5 by 2024 and, if the total emission reductions from the
adopted rules or measures are less than those committed to in Chapter 4
of the 2018 PM2.5 Plan, to adopt, submit, and implement
substitute rules and measures that achieve equivalent reductions in
emissions of direct PM2.5 or PM2.5 precursors in
the same implementation timeframes or in the timeframes needed to meet
CAA milestones.
(538) The following plan was submitted on June 19, 2020, by the
Governor's designee as an attachment to a letter dated June 12, 2020.
(i) [Reserved]
(ii) Additional materials. (A) California Air Resources Board.
(1) Revision to the California State Implementation Plan for
PM2.5 Standards in the San Joaquin Valley, adopted May 28,
2020.
(2) CARB Resolution 20-15, dated May 28, 2020, revising the
aggregate emissions reductions commitment in 40 CFR
52.220(c)(478)(ii)(A)(3) to 0.86 tpd of PM2.5.
(B) [Reserved]
0
3. Section 52.244 is amended by adding paragraph (f) to read as
follows:
Sec. 52.244 Motor vehicle emissions budgets.
* * * * *
(f) Approval of the motor vehicle emissions budgets for the
following PM2.5 reasonable further progress and attainment
SIP will apply for transportation conformity purposes only until new
budgets based on updated planning data and models have been submitted
and EPA has found the budgets to be adequate for conformity purposes.
(1) San Joaquin Valley, for the 2006 PM2.5 NAAQS only
(but excluding 2026 budgets), approved August 21, 2020.
(2) [Reserved]
[FR Doc. 2020-14471 Filed 7-21-20; 8:45 am]
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