[Federal Register Volume 86, Number 225 (Friday, November 26, 2021)]
[Rules and Regulations]
[Pages 67329-67343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25617]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2021-0260; FRL-8644-01-R9]
Partial Approval and Partial Disapproval of Air Quality
Implementation Plans; California; San Joaquin Valley Serious Area and
Section 189(d) Plan for Attainment of the 1997 Annual PM2.5 NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve in part and disapprove in part portions of state
implementation plan (SIP) revisions submitted by California to address
Clean Air Act (CAA or ``Act'') requirements for the 1997 annual fine
particulate matter (PM2.5) national ambient air quality
standards (NAAQS or ``standards'') in the San Joaquin Valley
PM2.5 nonattainment area. Specifically, the EPA is approving
the 2013 base year emissions inventories in the submitted SIP revision.
The EPA is disapproving the attainment demonstration and related
elements, including the comprehensive precursor demonstration, five
percent annual emissions reductions demonstration, best available
control measures (BACM) demonstration, reasonable further progress
(RFP) demonstration, quantitative milestones, and contingency measures.
The EPA is also disapproving the motor vehicle emissions budgets in the
plan as not meeting the requirements of the CAA and EPA regulations.
DATES: This rule is effective on December 27, 2021.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2021-0260. 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. If you need assistance
in a language other than English or if you are a person with
disabilities who needs a reasonable accommodation at no cost to you,
please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section.
FOR FURTHER INFORMATION CONTACT: Ashley Graham, Air Planning Office
(ARD-2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105,
(415) 972-3877, or by email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. Summary of Proposed Rule
II. Public Comments and EPA Responses
A. Comments From SJVUAPCD
B. Comments From Earthjustice
C. Comments From a Private Citizen
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Summary of Proposed Rule
On July 22, 2021, the EPA proposed to approve in part and
disapprove in part portions of SIP revisions submitted by the
California Air Resources Board (CARB) to meet CAA requirements for the
1997 annual PM2.5 NAAQS in the San Joaquin Valley
PM2.5 nonattainment area.\1\ The SIP revisions on which we
proposed action are those portions of the ``2018 Plan for the 1997,
2006, and 2012 PM2.5 Standards'' (``2018 PM2.5
[[Page 67330]]
Plan'') \2\ and the ``San Joaquin Valley Supplement to the 2016 State
Strategy for the State Implementation Plan'' (``Valley State SIP
Strategy'') \3\ that pertain to the 1997 annual PM2.5 NAAQS.
CARB submitted the 2018 PM2.5 Plan and Valley State SIP
Strategy to the EPA as a revision to the California SIP on May 10,
2019. We refer to the portions of these two SIP submissions that
pertain to the 1997 annual PM2.5 NAAQS collectively as the
``SJV PM2.5 Plan'' or ``Plan.'' The SJV PM2.5
Plan addresses the Serious area and CAA section 189(d) attainment plan
requirements for the 1997 annual PM2.5 NAAQS in the San
Joaquin Valley, including the State's demonstration that the area would
attain the 1997 annual PM2.5 NAAQS by December 31, 2020.
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\1\ 86 FR 38652.
\2\ The San Joaquin Valley Unified Air Pollution Control
District (SJVUAPCD or ``District'') adopted the 2018
PM2.5 Plan on November 15, 2018 and CARB adopted it on
January 24, 2019. The 2018 PM2.5 Plan includes a revised
version of Appendix H submitted by CARB as a technical correction on
February 11, 2020.
\3\ CARB adopted the Valley State SIP Strategy on October 25,
2018.
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The EPA proposed to approve the 2013 base year emissions
inventories in the SJV PM2.5 Plan and proposed to disapprove
the attainment demonstration and related elements, including the
comprehensive precursor demonstration, five percent annual emissions
reductions demonstration, BACM demonstration, RFP demonstration,
quantitative milestone demonstration, motor vehicle emissions budgets,
and contingency measures. The EPA proposed to disapprove these elements
because the San Joaquin Valley area did not attain by the State's
projected attainment date of December 31, 2020.\4\
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\4\ The EPA's proposed action was based on our review of
preliminary but complete and quality-assured ambient air monitoring
data for 2018-2020. For this final action, the EPA has reviewed the
final, certified ambient monitoring data. These final certified data
values are the same as the values shown in Table 5 of the EPA's
proposal in most instances except for minor differences in 2020
annual means and 2020 design values for the following three sites:
Fresno-Pacific (AQS ID: 06-019-5025), Bakersfield-Golden State
Highway (AQS ID: 06-029-0010), and Corcoran (AQS ID: 06-031-0004).
The final data values support our preliminary conclusion that the
San Joaquin Valley area did not attain by the State's projected
attainment date of December 31, 2020. Source: EPA, 2020 AQS Design
Value Report, AMP480, accessed September 29, 2021.
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The EPA also proposed action on amendments to the local air
district's SIP-approved residential wood-burning rule, the San Joaquin
Valley Unified Air Pollution Control District (SJVUAPCD or
``District'') Rule 4901, ``Wood Burning Fireplaces and Wood Burning
Heaters'' (``Rule 4901''), submitted by the State to the EPA on July
19, 2019. These amendments include a contingency measure in section
5.7.3 of the amended rule that the State submitted to address
contingency measure requirements for the 1997 annual PM2.5
NAAQS. The EPA proposed to disapprove, and to remove from the
California SIP, the contingency provision of Rule 4901 (i.e., section
5.7.3) because this provision does not satisfy CAA requirements for
contingency measures and is severable from the remainder of Rule 4901.
Our disapproval of section 5.7.3 of Rule 4901 as a contingency measure
for the 1997 annual PM2.5 NAAQS, and our removal of this
provision from the SIP, has no effect on our prior approval of Rule
4901 for purposes of meeting the BACM and most stringent measures
requirements for the 2006 PM2.5 NAAQS in the San Joaquin
Valley,\5\ which remains in effect for all but section 5.7.3 of Rule
4901.
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\5\ 85 FR 44206 (July 22, 2020) (final approval of Rule 4901)
and 85 FR 44192 (July 22, 2020) (determination that Rule 4901
implements BACM and MSM for residential wood burning).
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II. Public Comments and EPA Responses
The EPA's proposed action provided a 30-day public comment period
that ended on August 23, 2021. We received four sets of comments,
including two comment submissions from private citizens,\6\ one comment
letter from the SJVUAPCD,\7\ and one comment letter from a coalition of
environmental and community organizations (collectively referred to
herein as ``Earthjustice'').\8\ All of the comments are included in the
docket for this action. The comment submissions from private citizens
generally supported our proposal to disapprove the contingency measures
element of the SJV PM2.5 Plan. The supportive portions of
those comments do not require a response. We respond to the remainder
of the comments received on our July 22, 2021 proposed rule in this
notice.
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\6\ Comment dated July 30, 2021, from Cherie Yang, to Docket ID
No. EPA-R09-OAR-2021-0260, and comment dated August 23, 2021, from
Thomas Menz, to Docket ID No. EPA-R09-OAR-2021-0260, with
attachment.
\7\ Letter dated August 23, 2021, from Samir Sheikh, Executive
Director/Air Pollution Control Officer, SJVUAPCD, to Ashley Graham,
EPA Region IX, Subject: ``Re: Partial Approval and Partial
Disapproval of Air Quality Implementation Plans; California; San
Joaquin Valley Serious Area and Section 189(d) Plan for Attainment
of the 1997 Annual PM2.5 NAAQS (EPA-R09-OAR-2021-0260).''
\8\ Letter dated August 23, 2021, from Paul Cort, Earthjustice,
et al., to Ashley Graham, EPA Region IX, Subject: ``Re: Proposed
Partial Disapproval of San Joaquin Valley Serious Area Plan for
Attainment of the 1997 Annual PM2.5 NAAQS (Docket ID No.
EPA-R09-OAR-2021-0260),'' including attachments A through G. The
environmental and community organizations, in order of appearance in
the letter, include Central Valley Air Quality Coalition, National
Parks Conservation Association, Earthjustice, Climate Policy
Coordinator, Leadership Council for Justice and Accountability, The
Climate Center, Central California Environmental Justice Network,
Little Manila Rising, Madera Coalition for Community Justice, Mi
Familia Vota, Fresno Building Healthy Communities, Valley
Improvement Projects, Clean Water Action, The San Joaquin Valley
Latino Equity Advocacy & Policy Institute, Coalition for Clean Air,
and Center for Race, Poverty, and the Environment (collectively
``Earthjustice'').
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A. Comments From SJVUAPCD
Comment A.1: SJVUAPCD states that it supports the EPA's proposal to
approve the 2013 base year emissions inventories but is concerned about
the proposed disapproval of the attainment demonstration and related
elements. The District notes that it adopted the SJV PM2.5
Plan on November 15, 2018, and that CARB adopted the plan on January
24, 2019, and states that it is unfortunate that CARB did not submit
the plan to the EPA until May 10, 2019. The District also notes that
the EPA did not take action to approve or disapprove the Plan by
November 10, 2020, as required by statute.
Response A.1: We acknowledge that the EPA did not take action to
approve or disapprove the SJV PM2.5 Plan by November 10,
2020, as required by the Act. With this final action, we are
discharging the EPA's statutory obligation under CAA section 110(k)(2)
to act on the SIP submission.
Comment A.2: SJVUAPCD states that ``[i]t is absurd and inequitable
to disapprove a plan because monitoring data that was unavailable when
the plan was completed now contradicts the modeling in the plan.'' In
support of its argument, the commenter quotes from the D.C. Circuit
Court of Appeals' decision in EME Homer City Generation, L.P. v. EPA,
795 F.3d 118 (D.C. Cir. 2015):
We will not invalidate EPA's predictions solely because there
might be discrepancies between those predictions and the real world.
That possibility is inherent in the enterprise of prediction. The
best model might predict that the Nationals will win the World
Series in 2015. If that does not happen, you can't necessarily fault
the model. As we have said previously, the fact that a `model does
not fit every application perfectly is no criticism; a model is
meant to simplify reality in order to make it tractable. See EME
Homer City Generation, L.P. v. EPA, 795 F.3d 118, 135 (D.C. Cir.
2015), citing Chemical Manufacturers Association v. EPA, 28 F.3d
1259, 1264 (D.C. Cir. 1994).
Response A.2: We disagree with the commenter's claim that it is
absurd and inequitable to disapprove the SJV PM2.5
[[Page 67331]]
Plan based on ambient air quality monitoring data that contradicts the
modeling in the plan. Section 189(b) of the CAA requires that a state
with a Serious PM2.5 nonattainment area submit, among other
things, a demonstration that the plan ``provides for attainment of the
[PM2.5 NAAQS] by the applicable attainment date,'' and
section 189(d) similarly requires that a state with a Serious
PM2.5 nonattainment area that fails to attain by the
applicable attainment date submit plan revisions that, among other
things, ``provide for attainment of the [PM2.5 NAAQS].''
Nothing in the CAA or in the EPA's implementing regulations precludes
the EPA's consideration of ambient air monitoring data in determining
whether a submitted plan satisfies these statutory requirements. The
EPA's longstanding guidance on modeled attainment demonstrations
highlights the importance of considering recent design values (i.e.,
ambient air quality data) in selecting a base modeling year and
projecting future changes in emissions and ambient concentrations.\9\
Consistent with this guidance, the EPA routinely considers ambient air
quality data during the model performance evaluation process that it
conducts to determine whether a state's air quality model provides
reliable predictions of future pollutant concentrations.\10\ The
commenter provides no statutory or regulatory support for a claim that
the EPA cannot consider available ambient air quality data as part of
its review of a submitted attainment demonstration to determine whether
it ``provides for'' attainment of the NAAQS by the applicable
attainment date.
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\9\ Memorandum dated November 29, 2018, from Richard A. Wayland,
Division Director, Air Quality Assessment Division, Office of Air
Quality Planning and Standards, EPA, to Regional Air Division
Directors, Regions 1-10, Subject: ``Modeling Guidance for
Demonstrating Air Quality Goals for Ozone, PM2.5 and
Regional Haze,'' 18.
\10\ See, e.g., EPA, Region IX Air Division, ``Technical Support
Document, EPA Evaluation of Air Quality Modeling, San Joaquin Valley
PM2.5 Plan for the 2006 PM2.5 NAAQS,''
February 2020, 18-24.
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Generally, an attainment demonstration is a predictive tool for
assessing air quality at a future time, and as the D.C. Circuit stated
in EME Homer City Generation, the possibility of discrepancies between
predictions and the real world is ``inherent in the enterprise of
prediction.'' \11\ In this case, however, CARB submitted the attainment
demonstration for the 1997 annual PM2.5 NAAQS less than 20
months before the State's projected attainment date (i.e., December 31,
2020),\12\ and the EPA's action on the SJV PM2.5 Plan is
occurring at a time when that attainment date is no longer a projected
date because the date has passed. Thus, our evaluation of the
attainment demonstration is no longer based on ``predictions.''
Complete, quality-assured, and certified ambient air quality data
available to the EPA at this time clearly indicate that the SJV
PM2.5 Plan failed to ``provide for'' attainment of the 1997
annual PM2.5 NAAQS by the State's identified attainment
date, December 31, 2020. In this context, it is reasonable for the EPA
to take these data into account and, on that basis, to disapprove the
attainment demonstration and related elements of the SJV
PM2.5 Plan for failure to ``provide for'' attainment of the
1997 annual PM2.5 NAAQS by the identified attainment date.
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\11\ 795 F.3d at 135 (citing Chemical Manufacturers Association
v. EPA, 28 F.3d 1259, 1264 (D.C. Cir. 1994)).
\12\ CARB submitted the SJV PM2.5 Plan on May 10,
2019, well after the statutory deadline for this submission, which
was December 31, 2016. 81 FR 84481, 84482 (November 23, 2016).
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Comment A.3: The commenter asserts that ``[t]imely review of the
Plan by EPA under the timelines required per statute would have negated
the complications cited by EPA in their proposed disapproval.'' The
commenter acknowledges that, according to the Ninth Circuit Court of
Appeals' decision in Sierra Club v. EPA, 671 F.3d 955 (9th Cir. 2012),
the EPA must properly evaluate new information that indicates that a
SIP awaiting approval is inaccurate or not current and ``may not simply
ignore it without reasoned explanation of its choice.'' \13\ However,
the commenter claims that ``at issue in this Sierra Club case was EPA's
2010 approval of a 2004 plan without consideration of emissions
inventory data that became available in 2006'' and that ``[t]hese
timeframes significantly surpass the timeframe at issue now with the
District's 2018 PM2.5 Plan (adopted in late 2018,
demonstrating attainment in 2020, and subject to EPA action in 2021).''
The commenter also notes that the Ninth Circuit in Sierra Club did not
opine on the Petitioners' argument that the EPA improperly approved the
plan in 2010 knowing that attainment by the 2010 attainment deadline
was impossible.
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\13\ 671 F.3d at 967 (9th Cir. 2012).
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Response A.3: As discussed in Response A.1, we acknowledge that the
EPA did not act on the SJV PM2.5 Plan within the statutory
timeframe. We note that the EPA's delayed action on the SJV
PM2.5 Plan was due, in part, to the State's late submission
of several overdue attainment plans for multiple PM2.5 NAAQS
for the San Joaquin Valley \14\ in May 2019. Notwithstanding the
belated submission of these attainment plans, the EPA has since taken
proposed or final action on each required plan.\15\ We are now
discharging our statutory obligation under CAA section 110(k)(2) to act
on the SJV PM2.5 Plan.
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\14\ 83 FR 62720 (December 6, 2018) (identifying statutory
deadlines for submission of complete SIPs for 1997, 2006, and 2012
PM2.5 NAAQS in the San Joaquin Valley).
\15\ 85 FR 44192 (final action on Serious area plan and
extension request for 2006 PM2.5 NAAQS), 86 FR 38652
(proposed action on Serious area and section 189(d) plan for 1997
annual PM2.5 NAAQS), 86 FR 49100 (September 1, 2021)
(proposed action on Moderate area plan for 2012 PM2.5
NAAQS), and 86 FR 53150 (September 24, 2021) (proposed action on
Serious area and section 189(d) plan for 1997 24-hour
PM2.5 NAAQS).
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The commenter suggests that Sierra Club does not support the EPA's
rationale for disapproval of the SJV PM2.5 Plan because the
period between the State's submission of, and the EPA's action on, the
SJV PM2.5 Plan (approximately two and a half years, from May
2019 to November 2021) is shorter than the period between the State's
submission of, and the EPA's action on, the ozone plan at issue in
Sierra Club (over five years, from November 2004 to March 2010).\16\
This suggestion, however, reflects a misconstruction of the court's
holding in this case. In Sierra Club, the Ninth Circuit remanded the
EPA's March 2010 approval of an ozone attainment plan for the San
Joaquin Valley submitted in 2004, holding that the EPA's failure to
consider new emissions data that the State had submitted in 2007 as
part of a separate ozone plan rendered the EPA's action arbitrary and
capricious under the Administrative Procedure Act.\17\ Although the
court noted the length of the EPA's delay in acting on the 2004 plan
submission after updated emissions data had become available, the
decision ultimately rested on the unreasonableness of the EPA's failure
to address the new emissions data, not on the specific number of years
that had passed since the State submitted the
[[Page 67332]]
plan.\18\ The court found the EPA's action arbitrary and capricious
because of its ``reliance on old data without meaningful comment on the
significance of more current compiled data'' and concluded that ``it
was unreasonable for EPA summarily to rely on the point of view taken
[in longstanding policy] without advancing an explanation for its
action based on `the facts found and the choice made.' '' \19\ Contrary
to the commenter's characterization of Sierra Club, the EPA interprets
that decision to stand for the proposition that it would be
inappropriate for the EPA to ignore monitoring data that clearly
establish, as a factual matter, that the attainment demonstration
failed to provide for attainment.
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\16\ 74 FR 33933 (July 14, 2009) (proposed rule) and 75 FR 10420
(March 8, 2010) (final rule).
\17\ Sierra Club v. EPA, 671 F.3d 955 (9th Cir. 2012). The court
also noted that the EPA's action was inconsistent with the court's
holding in Ass'n of Irritated Residents (AIR) v. EPA, 632 F.3d 584
(9th Cir. 2011), which ``supports the proposition that if new
information indicates to EPA that an existing SIP or SIP awaiting
approval is inaccurate or not current, then, viewing air quality and
scope of emissions with public interest in mind, EPA should properly
evaluate the new information and may not simply ignore it without
reasoned explanation of its choice.'' Id. at 967.
\18\ Id. at 965-968.
\19\ Id. at 968 (citing Burlington Truck Lines, 371 U.S. 156,
168 (1962)).
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The EPA has reviewed complete, quality-assured, and certified
ambient air quality data for the 2018-2020 period that establish that
the San Joaquin Valley did not attain the 1997 annual PM2.5
NAAQS by the December 31, 2020 attainment date identified in the SJV
PM2.5 Plan.\20\ In light of these facts, we conclude that
the SJV PM2.5 Plan failed to provide for attainment of the
1997 annual PM2.5 NAAQS as required by CAA sections 189(b)
and 189(d).
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\20\ 86 FR 38652, 38665 (Table 5) and fn. 4, supra (noting that
certified data confirm the preliminary conclusions provided in the
EPA's proposed rule).
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The commenter fails to explain its statement that ``[n]otably, in
deciding the matter based on inventory data, the Sierra Club court did
not reach Petitioners' argument that EPA improperly approved the 2004
SIP submission in 2010 knowing that attainment by the 2010 deadline was
impossible.'' We decline to speculate on the meaning or relevance of
the Ninth Circuit's decision not to reach this issue.
Comment A.4: SJVUAPCD's comment letter summarizes the regulatory
consequences that would result from final disapproval of the SJV
PM2.5 Plan and states that these consequences could not have
been foreseen or avoided in light of recent wildfires and data handling
issues. The commenter asserts that a better path would have been for
the EPA to ``approve the plan as valid at the time of adoption by the
District'' and concurrently make a finding of failure to attain by the
2020 deadline, triggering a requirement for a revised plan. The
commenter claims that this path would be ``more consistent with the
cooperative federalism embedded in the Clean Air Act'' and would have
avoided sanctions consequences outside of the District's direct
control, although sanctions would still apply if the District were to
fail to submit a revised plan on time.
Response A.4: We disagree with the commenter's claim that the EPA
could have proposed to approve the SJV PM2.5 Plan for the
1997 annual PM2.5 NAAQS as ``valid at the time of adoption
by the District.'' As discussed in our proposed rule and in Response
A.2, complete, quality-assured, and certified ambient air monitoring
data for the 2018-2020 period establish that the San Joaquin Valley did
not attain by the December 31, 2020 attainment date identified by the
State in the SJV PM2.5 Plan. We are, therefore, disapproving
the SJV PM2.5 Plan for failure to provide for attainment as
required by the CAA.
Comment A.5: SJVUAPCD states that the San Joaquin Valley did not
attain by the December 31, 2020 attainment date due to wildfires and
data handling issues that were outside of the District's control. The
commenter concludes that after accounting for wildfire-related
exceptional events, the San Joaquin Valley is attaining the 1997 24-
hour PM2.5 NAAQS and that all areas except for Bakersfield-
Planz are attaining the 1997 annual PM2.5 NAAQS. The
commenter attributes the failure to attain at the Bakersfield-Planz
site to data handling issues at the CARB-operated monitor that were
outside of the District's control.
The commenter states that the District and CARB have drafted a SIP
revision for the 1997 annual PM2.5 NAAQS with a December 31,
2023 attainment date, and notes that the District Governing Board
adopted the revision on August 19, 2021, and that CARB intends to
approve the revision in September 2021. The commenter states that it
hopes the EPA will approve the plan revision quickly to avoid a similar
situation as the current one.
Response A.5: We appreciate the commenter's perspective on the San
Joaquin Valley's air quality challenges and information about recent
steps taken by the State and District to develop a revised plan.
Comments regarding the revised plan are, however, outside the scope of
this rulemaking.
Comment A.6: SJVUAPCD requests that the EPA clearly articulate in
the final action on the SJV PM2.5 Plan for 1997 annual
PM2.5 NAAQS that development, review, and approval of new
contingency measures for those NAAQS are governed by a timeline
separate from the elements included in the SIP revision that the
District Governing Board adopted on August 19, 2021. The commenter
states that the District looks forward to working with CARB and the EPA
to address the contingency measure requirements.
Response A.6: There is no separate timeline associated with the
requirement for the contingency measure element, as the commenter
suggests. As discussed in section III of this notice, as a result of
this final action, California will be required to develop and submit a
revised plan for the San Joaquin Valley that satisfies the CAA's
Serious area and section 189(d) requirements, including the requirement
for contingency measures, for the 1997 annual PM2.5 NAAQS.
Section III of this final rule discusses the timeline for application
of mandatory offset and highway sanctions as a result of this final
disapproval.
Comment A.7: SJVUAPCD asserts that the federal government has not
done enough to achieve reductions in emissions from mobile sources and
that this has resulted in ``disproportionate pressure on the District
and CARB to continue reduc[ing] emissions to make up the shortfall,
demonstrate attainment, and satisfy contingency requirements.''
Response A.7: These comments do not identify a specific issue that
is relevant to the EPA's action on the SJV PM2.5 Plan for
the 1997 annual PM2.5 NAAQS.
Comment A.8: SJVUAPCD asserts that the SJV PM2.5 Plan
for the 1997 NAAQS is fully approvable even though the San Joaquin
Valley did not attain by the December 31, 2020 attainment date.
Response A.8: We disagree with these comments. See Response A.2.
B. Comments From Earthjustice
Comment B.1: Earthjustice asserts that the EPA's proposed approval
of the 2013 base year emissions inventories is arbitrary and
capricious. Specifically, Earthjustice argues that because the
inventories were developed using a mobile source emissions model (i.e.,
EMFAC2014) that has since been updated, the 2013 baseline emissions
inventories do not reflect the best information available. Earthjustice
claims that ``CARB and the District know the emissions assumptions
included in the 2013 baseline inventory do not reflect the best
information because they have a more current, more accurate EMFAC2017
model that undermines those EMFAC2014 results.'' The commenter states
that the EPA has not offered an analysis to support a conclusion that
only the modeling was incorrect, and not the baseline emissions
inventory inputs used in the modeling. Earthjustice further asserts
that the inventories are inextricably tied to the attainment
demonstration and
[[Page 67333]]
related elements, and that because the area did not attain by the
attainment date in the Plan, the EPA must also disapprove the
inventories. The commenter asserts that there is no reason for the EPA
to approve the emissions inventories if the remainder of the plan is
disapproved.
Finally, Earthjustice states that the State must develop a new plan
and that the new plan cannot rely on the 2013 base year emissions
inventories that the EPA has proposed to approve, but rather the State
must develop the new plan using the updated mobile source emissions
model EMFAC2017. Earthjustice also claims that the State must use
EMFAC2017 in any new regional and hot-spot analyses because the
transportation conformity grace periods have expired.
Response B.1: The EPA disagrees with Earthjustice's claim that our
approval of the 2013 base year inventories is arbitrary and capricious.
We evaluated the emissions inventories in the SJV PM2.5 Plan
to determine if they satisfy CAA requirements as interpreted in the
EPA's regulations at 40 CFR 51.1008 and in the preamble to the EPA's
implementation rule for the PM2.5 NAAQS (hereafter
``PM2.5 SIP Requirements Rule'').\21\ As discussed in the
proposal, we found that the State and District had used emissions
inventory estimation methodologies consistent with the EPA's
recommendations, and that the inventories in the SJV PM2.5
Plan are comprehensive and based on the most current and accurate
information available to the State and District when they were
developing the Plan.\22\ Based on these evaluations, we proposed to
approve the 2013 base year emissions inventories in the SJV
PM2.5 Plan as meeting the requirements of CAA section
172(c)(3) and 40 CFR 51.1008.
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\21\ 81 FR 58010 (August 24, 2016).
\22\ 86 FR 38652, 38658.
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CARB used its mobile source emissions model, EMFAC2014, to generate
the on-road mobile source inventories in the SJV PM2.5 Plan.
The EPA approved EMFAC2014 for use in SIPs and conformity
determinations on December 14, 2015.\23\ At the time that the State and
District were developing the SJV PM2.5 Plan, EMFAC2014 was
the most current mobile source model available for emissions inventory
development purposes. CARB submitted the SJV PM2.5 Plan to
the EPA on May 10, 2019. On August 15, 2019, the EPA approved
EMFAC2017, the latest revision to this mobile source emissions
model.\24\ We find that it would be unreasonable to require the State
and District to revise the SJV PM2.5 Plan because of an
updated EMFAC model that the EPA approved several months after the
State's submission of the Plan. The EPA has stated in longstanding
policy that the CAA does not require states that have already submitted
SIP submissions or will submit SIP submissions shortly after the
release of a new mobile source model to revise these submissions simply
because a new motor vehicle emissions model is available, as it would
be unreasonable to require a state to revise such a submission after
significant work had already occurred.\25\
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\23\ 80 FR 77337.
\24\ 84 FR 41717. The grace period for new regional emissions
analyses begins on August 15, 2019, and ends on August 16, 2021,
while the grace period for hot-spot analyses begins on August 15,
2019, and ends on August 17, 2020. Id. at 41720.
\25\ EPA, Office of Transportation and Air Quality, ``Policy
Guidance on the Use of MOVES3 for State Implementation Plan
Development, Transportation Conformity, General Conformity, and
Other Purposes,'' November 2020, 7, 8; EPA, Office of Air Quality
Planning and Standards, Air Quality Assessment Division, ``Emissions
Inventory Guidance for Implementation of Ozone and Particulate
Matter National Ambient Air Quality Standards (NAAQS) and Regional
Haze Regulations,'' May 2017, 27, 28; and memorandum dated January
18, 2002, from John Seitz, Office of Air Quality Planning and
Standards and Margo Oge, Office of Transportation and Air Quality,
EPA, ``Policy Guidance on the Use of MOBILE6 for SIP Development and
Transportation Conformity.''
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Nevertheless, the EPA has considered information regarding the
differences between the EMFAC2014 and EMFAC2017 emissions estimates
that has become available since our proposal. On November 8, 2021, CARB
submitted a SIP revision to address the CAA requirements for the 1997
annual PM2.5 NAAQS.\26\ The submission included CARB's
``Staff Report, Proposed SIP Revision for the 15 [micro]g/m\3\ Annual
PM2.5 Standard for the San Joaquin Valley'' (``CARB Staff
Report''), which includes a comparison of estimated annual
NOX and PM2.5 emissions in the San Joaquin Valley
in the 2013 base year.\27\ CARB determined that PM2.5
emissions estimates for 2013 derived using EMFAC2017 are approximately
six percent higher than estimates derived using EMFAC2014, and that
NOX emissions estimates for 2013 derived using EMFAC2017 are
seven percent lower than the emissions estimates derived using
EMFAC2014.\28\ CARB also concluded that the differences in 2013 base
year emissions derived using EMFAC2014 and EMFAC2017 are not
significant enough to affect the modeled attainment demonstration in
the revised SIP submission. Thus, CARB's analyses support our
conclusion that the 2013 base year emissions inventories in the SJV
PM2.5 Plan are comprehensive, accurate, and current,
consistent with the requirements of CAA section 172(c)(3) and 40 CFR
51.1008.
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\26\ Letter dated November 8, 2021, from Richard W. Corey,
Executive Officer, CARB, to Deborah Jordan, Acting Regional
Administrator, EPA Region 9.
\27\ Available at https://ww2.arb.ca.gov/sites/default/files/2021-08/SJV%2015%20ug%20SIP%20Revision%20Staff%20Report%20FINAL.pdf.
\28\ The CARB Staff Report indicates that 2013 annual emissions
derived using EMFAC2014 are 183.09 tpd of NOX and 6.45
tpd of PM2.5, whereas 2013 annual emissions derived using
EMFAC 2017 are 170.04 tpd of NOX and 6.83 tpd of
PM2.5. CARB Staff Report, Table 2.
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The EPA also disagrees with the commenter's claim that the base
year emissions inventories are ``inextricably tied to the demonstration
of attainment'' and related plan elements and that disapproval of the
attainment demonstration thus requires disapproval of the emissions
inventories. Section 172(c)(3) of the CAA requires that plans for
nonattainment areas include ``a comprehensive, accurate, current
inventory of actual emissions from all sources of the relevant
pollutant or pollutants in such area, including such periodic revisions
as the Administrator may determine necessary to assure that the
requirements of [part D of title I of the CAA] are met.'' Nothing in
the text of section 172(c)(3) indicates that the EPA cannot evaluate
the adequacy of the emissions inventories independent of other
requirements such as RFP or attainment.
As the EPA explained in the preamble to the EPA's PM2.5
SIP Requirements Rule, the base year emissions inventory requirement in
CAA section 172(c)(3) is a requirement independent of the attainment
demonstration and related plan elements and, therefore, is not
suspended by a determination by the EPA that the area has attained the
NAAQS (i.e., a ``clean data determination'').\29\ For over 25 years,
the EPA has maintained its interpretation in the ``Clean Data Policy,''
now codified at 40 CFR 51.1015 for PM2.5 purposes, that only
those plan requirements that are linked by their terms to the CAA's
requirements for attainment and RFP (e.g., the attainment
demonstration, RFP, and contingency measures) are suspended upon a
determination by the EPA that the area is attaining the relevant
NAAQS.\30\
[[Page 67334]]
Consistent with this longstanding interpretation, 40 CFR 51.1015
excludes the base year emissions inventory from the attainment-related
requirements that are suspended upon a clean data determination for the
PM2.5 NAAQS.\31\ The commenter provides no statutory support
for a claim that the requirement for emissions inventories in CAA
section 172(c)(3) is inextricably tied to the attainment demonstration
and related plan elements. Put simply, an emissions inventory may still
be adequate, even if other elements (e.g., a failure to evaluate and
impose control measures on sources that would result in attainment) of
an attainment plan are not.
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\29\ 81 FR 58010, 58128.
\30\ Memorandum dated May 10, 1995, from John S. Seitz,
Director, EPA Office of Air Quality Planning and Standards (OAQPS),
to Air Division Directors, EPA Regions I-X, Subject: ``Reasonable
Further Progress, Attainment Demonstration, and Related Requirements
for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air
Quality Standard'' and memorandum dated December 14, 2004, from
Stephen D. Page, Director, OAQPS, EPA, to Air Division Directors,
EPA Regions I-X, Subject: ``Clean Data Policy for the Fine Particle
National Ambient Air Quality Standards.''
\31\ 40 CFR 51.1015 (stating that ``[u]pon a determination by
the EPA that a [ ] PM2.5 nonattainment area has attained
the PM2.5 NAAQS, the requirements for the state to submit
an attainment demonstration, reasonable further progress plan,
quantitative milestones and quantitative milestone reports, and
contingency measures for the area shall be suspended until'' the
area is redesignated to attainment, after which such requirements
are permanently discharged, or the EPA determines that the area has
re-violated the PM2.5 NAAQS, at which time the
requirements are reinstated. See also 40 CFR 51.918, 51.1118, and
51.1318 (similarly suspending attainment-related planning
requirements, but not emissions inventory requirements, upon a clean
data determination for the ozone NAAQS).
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We also disagree with the commenter's assertion that there is no
reason for the EPA to approve the emissions inventories if the
remainder of the plan is being disapproved. Under CAA section
110(k)(3), the EPA may approve any portion of a SIP submission that
meets the requirements of the Act. For the reasons provided in the
proposal, the EPA finds that the 2013 base year emissions inventories
in the SJV PM2.5 Plan are consistent with the requirements
of the CAA, as interpreted in the EPA's regulations and guidance.
Earthjustice's claim that in a new attainment plan for the 1997
annual PM2.5 NAAQS for the San Joaquin Valley the State
``cannot rely on the 2013 base year inventory that EPA proposes to
approve'' is outside of the scope of this rulemaking. The EPA will
review the revised attainment plan submitted by the State on November
8, 2021, for compliance with the requirements of the CAA and the EPA's
regulations and will determine, following notice-and-comment
rulemaking, whether the submission satisfies all applicable CAA
requirements. We encourage Earthjustice to resubmit these comments as
appropriate during such a future rulemaking.
Finally, Earthjustice is correct that because the transportation
conformity grace periods for use of EMFAC2014 have expired, the State
must use EMFAC2017 in any new regional emissions analyses that begin on
or after August 16, 2021,\32\ unless and until the EPA approves a new
version of EMFAC. This means that all new hydrocarbon, NOX,
PM10, PM2.5, and CO regional conformity analyses
started after the end of the two-year grace period must be based on
EMFAC2017, even if the SIP is based on an earlier version of the EMFAC
model.
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\32\ The grace period for use of EMFAC2014 in conformity
determinations for projects ended on August 17, 2020 and the grace
period for use of EMFAC2014 in regional plan and TIP conformity
determinations ended on August 16, 2021. 84 FR 41717.
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Comment B.2: Earthjustice states that it agrees with the EPA's
proposal to disapprove the precursor demonstration in the SJV
PM2.5 Plan for the 1997 annual PM2.5 NAAQS but
asserts that the EPA's reasoning necessitates certain other findings by
the EPA. Earthjustice describes the EPA's reasoning in the proposed
rule \33\ as tying the precursor demonstration to the attainment
demonstration and asserts that if the attainment demonstration has
proven to be wrong, then the precursor demonstration must necessarily
also be wrong, both for the 1997 annual PM2.5 NAAQS and for
the 1997 24-hour PM2.5 NAAQS. Earthjustice states that the
``defects'' in the precursor demonstration for the 1997 annual
PM2.5 NAAQS also ``infect the precursor demonstration for
the 1997 24-hour standard plan'' and that the EPA should disapprove
that demonstration as well ``to make it clear to the District and CARB
that a new analysis for both standards will be required.'' Earthjustice
also reiterates its concerns with the precursor demonstration that it
raised previously in comments on the EPA's approval of the plan for the
2006 24-hour PM2.5 NAAQS, such as the failure to properly
account for NOX emissions from soil and the refusal to
consider the cost-effectiveness of ammonia controls as compared to
NOX controls. The commenter asserts that should the EPA
decide to approve the precursor demonstration despite the failure of
the attainment demonstration, the EPA must issue a new proposal that
explains the EPA's rationale and offers the public the opportunity to
review and comment.
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\33\ 86 FR 38652, 38660.
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Response B.2: The EPA acknowledges Earthjustice's support for
disapproving the precursor demonstration but does not agree with the
commenter's characterization of the EPA's rationale for the
disapproval. As we explained in the proposed rule, the EPA proposed to
disapprove the attainment demonstration and related elements in the SJV
PM2.5 Plan for the 1997 annual PM2.5 NAAQS based
on ambient monitoring data that show that the Plan was insufficient to
achieve attainment of the 1997 annual PM2.5 NAAQS by
December 31, 2020, the State's projected attainment date.\34\ We
further explained that ``[g]iven that we are proposing to disapprove
the attainment demonstration, and given that the precursor
demonstration for the 1997 annual PM2.5 NAAQS largely relies
on the technical analyses and assumptions that provide the basis for
the attainment demonstration, we are also proposing to disapprove the
precursor demonstration in the SJV PM2.5 Plan for the 1997
annual PM2.5 NAAQS.'' \35\
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\34\ Id. at 38665-38666.
\35\ Id. at 38660.
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The EPA is not taking the position that disapproval of an
attainment demonstration necessarily renders the associated precursor
demonstration deficient in all cases. Nothing in the CAA, the
PM2.5 SIP Requirements Rule,\36\ or in the EPA's guidance on
PM2.5 precursor demonstrations (hereafter ``PM2.5
Precursor Guidance'') \37\ indicates that approval of a precursor
demonstration is necessarily contingent upon approval of the associated
attainment demonstration. Where the modeled attainment demonstration
and the precursor demonstration are based on the same modeling
platform, the EPA may find that fundamental flaws in that modeling
platform render both demonstrations deficient. But the EPA evaluates
each demonstration on its own merits, and in some cases the EPA may
find it appropriate to approve a precursor demonstration even if the
attainment demonstration with which it is associated is deficient.
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\36\ 81 FR 58010.
\37\ Memorandum dated May 30, 2019, from Scott Mathias, Acting
Director, Air Quality Policy Division and Richard Wayland, Director,
Air Quality Assessment Division, Office of Air Quality Planning and
Standards (OAQPS), EPA to Regional Air Division Directors, Regions
1-10, EPA, Subject: ``Fine Particulate Matter (PM2.5)
Precursor Demonstration Guidance,'' attaching ``PM2.5
Precursor Demonstration Guidance,'' EPA-454/R-19-004, May 2019.
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In this case, we find that the modeling platform used in the SJV
PM2.5 Plan for the 1997 annual PM2.5 NAAQS is
adequate to support both the attainment demonstration and the precursor
demonstration for the 1997 annual PM2.5
[[Page 67335]]
NAAQS. Although we are disapproving the attainment demonstration for
the 1997 annual PM2.5 NAAQS based on ambient air quality
monitoring data that show that the area failed to attain these NAAQS by
the end of 2020, our disapproval does not rest on a conclusion that the
modeling platform is fundamentally flawed. In our discussion about the
modeling platform in the proposal, we stated that ``[t]he magnitude and
timing of predicted concentrations of total PM2.5 [in the
San Joaquin Valley] . . . generally match the occurrence of elevated
PM2.5 levels in the measured observations'' and ``[a]
comparison to other recent modeling efforts shows good model
performance on bias, error, and correlation with measurements, for
total PM2.5 and for most of its chemical components.'' \38\
The same modeling platform provides the basis for California's Serious
area plan for attainment of the 2006 PM2.5 NAAQS in the San
Joaquin Valley that the EPA approved on July 22, 2020,\39\ the Moderate
area plan for the 2012 annual PM2.5 NAAQS in the San Joaquin
Valley that the EPA proposed to approve on September 1, 2021,\40\ and
the Serious area and CAA section 189(d) plan for the 1997 24-hour
PM2.5 NAAQS in the San Joaquin Valley that the EPA proposed
to approve on September 24, 2021.\41\
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\38\ 86 FR 38652, 38664.
\39\ 85 FR 44192. See also EPA, ``Technical Support Document,
EPA Evaluation of Air Quality Modeling, San Joaquin Valley
PM2.5 Plan for the 2006 PM2.5 NAAQS,''
February 2020 (``2006 PM2.5 NAAQS Modeling TSD''),
section J (``Air Quality Model Performance'').
\40\ 86 FR 49100.
\41\ 86 FR 53150.
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We acknowledge that the modeling erroneously projected that the San
Joaquin Valley would attain the 1997 annual PM2.5 NAAQS by
the end of 2020. There are a number of factors other than flaws in the
modeling itself that may result in model predictions not matching
monitored values, including meteorology in the attainment year that
differs substantially from meteorology in the modeling platform base
year, and actual emissions levels in the attainment year that differ
substantially from projected emissions levels. The modeling platform
uses 2013 as a base year, with emissions and meteorology from 2013 as
inputs, and with performance validated against 2013 monitored
concentrations. If the meteorological conditions in 2020 were more
conducive to PM2.5 formation than those in 2013, then the
2020 design value would be higher than predicted by the modeling with
its 2013 base case, even if the model itself is performing well.
Natural variability in meteorological conditions can cause model
predictions based on one year to overestimate or underestimate
concentrations for a different year.\42\
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\42\ The differences in modeled conduciveness to
PM2.5 formation in 2020 versus 2013 is not the result of
the State choosing an unusually favorable base year. As explained in
the Plan's modeling protocol, the State chose the 2013 base year as
representative of conditions conducive to poor air quality based on
meteorology-adjusted trends. 2018 PM2.5 Plan, Appendix L,
L-12.
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Similarly, unpredictable emissions differences can lead to
differences between modeled and observed concentrations. There were
high particulate and precursor emissions in the years 2018 and 2020
from unexpected wildfires in the areas surrounding the San Joaquin
Valley during the summer and fall months. Wildfires were not included
in the State's modeling emissions inventory, but base period wildfire
emissions can indirectly affect predicted future concentrations when
they are estimated using Relative Response Factors (RRFs), as
recommended in the EPA's ``Modeling Guidance for Demonstrating
Attainment of Air Quality Goals for Ozone, PM2.5, and
Regional Haze'' (``Modeling Guidance'').\43\ We note that wildfires
were much less prevalent during the 2010-2014 period that was used to
estimate the base design value,\44\ compared to the number and severity
of wildfires in and around the San Joaquin Valley during the 2018-2020
period used to calculate the 2020 monitored design value.\45\ While
they likely were not the sole factor, the 2018-2020 wildfires may have
contributed to the State's underestimated design value projection for
2020, even though the model was not deficient.
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\43\ ``Modeling Guidance for Demonstrating Air Quality Goals for
Ozone, PM2.5, and Regional Haze,'' EPA-454/R-18-009,
November 2018, 100. Available at https://www.epa.gov/scram/state-implementation-plan-sip-attainment-demonstration-guidance. Modeled
RRFs represent the model concentration response to emissions changes
between the base year and future year and are multiplied by base
design values to estimate future concentrations. The base design
values are estimated from several years of monitored concentrations
and reflect wildfire emissions present in the base period. Note,
however, that the base design value would not reflect wildfire-
influenced monitor data excluded via the Exceptional Events Rule
process (see 40 CFR 50.1(j), (k), (l); 50.14(a)(1)(i); 51.930) or as
otherwise modified to exclude data unrepresentative for modeling
purposes. The only data that CARB excluded for the base design value
period 2010-2014 was for high wind fugitive dust events on April 11,
2010 and May 5, 2013 at the Bakersfield-Planz site. CARB's ``Staff
Report, Review of the San Joaquin Valley 2018 Plan for the 1997,
2006, and 2012 PM2.5 Standards,'' release date December
21, 2018, Appendix C1 and C2.
\44\ The average number of acres burned in wildfires in
California during 2010-2014 was 484,000; 2010 had the highest
acreage burned, 913,000, and 2013 had 602,000. By contrast, the
2018-2020 average was 2,062,000; 2020 had the highest acreage
burned, 3,950,000. California Department of Forestry and Fire
Protection (CAL FIRE), CAL FIRE Stats and Events, https://www.fire.ca.gov/stats-events/, accessed October 4, 2021.
\45\ Wildfire-influenced monitor data during August 20-24, 2020
were excluded under the Exceptional Events Rule for the 1997 24-hour
PM2.5 NAAQS, but this exclusion did not affect the design
value for the annual 1997 PM2.5 NAAQS. Letter dated July
13, 2021 from Elizabeth J. Adams, Director, Air and Radiation
Division, EPA Region IX, to Michael Benjamin, Division Chief, Air
Quality Planning and Science Division, CARB.
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Finally, the State's technical findings in the precursor
demonstration analysis support the EPA's disapproval of it for purposes
of the 1997 annual PM2.5 NAAQS. To support the precursor
demonstration, the State used the modeling platform discussed above to
assess the sensitivity of PM2.5 concentrations to reductions
in precursor concentrations. The State modeled precursor emissions
reductions and compared the resulting changes in PM2.5
concentrations to 0.2 micrograms per cubic meter ([micro]g/m\3\), the
EPA's recommended contribution threshold for the annual
PM2.5 NAAQS.\46\ The modeled PM2.5 responses to a
30 percent ammonia emissions reduction for the 2013 base year ranged
from 0.20 to 0.72 [micro]g/m\3\, exceeding the 0.2 [micro]g/m\3\
contribution threshold at 14 of 15 monitoring sites.\47\ For the 2020
future year, the modeled PM2.5 responses to a 30 percent
ammonia emissions reduction ranged from 0.12 to 0.42 [micro]g/m\3\,
exceeding the 0.2 [micro]g/m\3\ contribution threshold at 9 of 15
monitoring sites. For the 2024 future year, the response ranged from
0.08 to 0.26 [micro]g/m\3\; exceeding 0.2 [micro]g/m\3\ at two
monitoring sites.\48\
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\46\ PM2.5 Precursor Demonstration Guidance, 17.
\47\ 2018 PM2.5 Plan, Appendix G, Table 2.
\48\ Id. at Table 4 and Table 5.
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For the approval of the precursor demonstration for the 2006 24-
hour NAAQS,\49\ and for the proposed approvals of the precursor
demonstration for the 1997 24-hour NAAQS \50\ and the 2012 annual
NAAQS,\51\ the EPA partly relied on model estimates of ammonia
sensitivity from the 2024 future year. There is evidence that
NOX emissions reductions that are projected to occur by 2024
result in the modeling for 2024 being more representative of current
ambient conditions, as reflected in monitoring studies of nitrate and
ammonia.\52\ For 2024, all monitoring sites were projected to have 24-
hour PM2.5
[[Page 67336]]
responses below the 1.5 [micro]g/m\3\ contribution threshold. In
addition, the 24-hour modeled PM2.5 responses are below the
threshold at all but one site in 2020, and there were no monitored
violations of the 1997 24-hour PM2.5 NAAQS in 2020. Thus,
the EPA concluded that ammonia is not contributing to PM2.5
levels above the 1997 24-hour PM2.5 NAAQS in the 2020
attainment year.
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\49\ 85 FR 44192.
\50\ 86 FR 53150.
\51\ 86 FR 49100.
\52\ 2006 PM2.5 NAAQS Modeling TSD, 11.
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In contrast, for the 1997 annual PM2.5 NAAQS, certified
ambient air quality data show that the San Joaquin Valley recorded
PM2.5 levels exceeding the NAAQS in 2020, so the monitoring
data alone do not support a conclusion that ammonia emissions do not
contribute significantly to levels exceeding the NAAQS. Also, the
modeling results indicate that annual average PM2.5
concentrations are more sensitive than 24-hour average PM2.5
concentrations to ammonia reductions. The evidence that modeling for
2024 is representative of current ambient conditions supports giving
relatively less weight to the 2020 results. However, for the annual
NAAQS there are 9 sites out of 15 above the contribution threshold in
2020, too many to discount. Furthermore, even the 2024 results show two
sites above the contribution threshold. The combined results for 2020
and 2024 contradict a conclusion that ammonia emissions do not
contribute significantly to PM2.5 levels that exceed the
1997 annual PM2.5 NAAQS in the San Joaquin Valley.
With respect to Earthjustice's claim that the ``defects'' in the
precursor demonstration for the 1997 annual PM2.5 NAAQS also
necessitate disapproval of the precursor demonstration for the 1997 24-
hour PM2.5 NAAQS, we note that these comments are outside
the scope of this rulemaking, as our action today pertains only to the
Serious area and CAA section 189(d) plan for the 1997 annual
PM2.5 NAAQS.\53\
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\53\ The EPA has separately proposed action on the Serious area
and CAA section 189(d) plan for the 1997 24-hour PM2.5
NAAQS in the San Joaquin Valley. 86 FR 53150.
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With respect to Earthjustice's statement that it previously raised
concerns about the precursor demonstration in comments on the EPA's
separate approval of the attainment plan for the 2006 24-hour
PM2.5 NAAQS, e.g., concerning failure to account for
NOX emissions from soil and to consider the cost-
effectiveness of ammonia controls as compared to NOX
controls, the EPA responded to those comments in the ``Response to
Comments Document for the EPA's Final Action on the San Joaquin Valley
Serious Area Plan for the 2006 PM2.5 NAAQS,'' dated June
2020, which is available at https://www.regulations.gov under Docket ID
No. EPA-R09-OAR-2019-0318 (see Response 6.P-1 and Response 6.Q).
Finally, we do not dispute the commenter's assertion that we could
not approve the precursor demonstration without issuing a new proposal
that explains our rationale and provides an opportunity for public
comment.
Comment B.3: Earthjustice supports the EPA's proposal to disapprove
the Plan's BACM demonstration. Earthjustice also states that, even if
the EPA were to approve the precursor demonstration in the Plan, the
EPA could not finalize an approval of the BACM demonstration without a
new proposal, and that any action to approve the plan's BACM
demonstration must provide an analysis of the issues pertaining to
control measures that the commenter identified in prior comments
submitted to the EPA and offer commenters the ability to review that
analysis.
Response B.3: We are finalizing our proposal to disapprove both the
precursor demonstration and the BACM demonstration in the SJV
PM2.5 Plan for the 1997 annual PM2.5 NAAQS and,
therefore, do not provide specific responses to these comments. When
the EPA proposes to take action on a new or revised BACM demonstration
submitted by the State to satisfy CAA requirements applicable to the
San Joaquin Valley area for these NAAQS, the EPA will provide a full
analysis to support its proposal and will provide a minimum 30-day
period for public comments on that proposal, consistent with the
requirements of the Administrative Procedure Act.\54\
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\54\ Section 553 of the Administrative Procedure Act requires
that federal agencies provide general notice of proposed rulemaking
by publication in the Federal Register and to ``give interested
persons an opportunity participate in the rule making through
submission of written data, views, or arguments with or without
opportunity for oral presentation.'' 5 U.S.C. 553(b), (c). See also
CAA section 307(h) (requiring, consistent with the policy of
subchapter II of chapter 5 of Title 5, that the EPA ``ensure a
reasonable period for public participation of at least 30 days'' in
promulgating any regulation under title I of the Act).
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Comment B.4: Earthjustice states that it agrees with the EPA's
proposal to disapprove the five percent annual emissions reduction
demonstration, asserting that because the SJV PM2.5 Plan
``failed to show 5 percent reductions beyond the 2020 attainment date,
and the area has still not attained, the 5 percent demonstration is
deficient on its face.'' The commenter further claims that the five
percent annual reductions demonstration must be disapproved because it
relies on a ``flawed emission inventory built with an outdated EMFAC
model.'' The commenter requests clarification regarding the EPA's
statement that greater than the required five percent annual emissions
reductions have been achieved and removal of Table 3 in the proposal
because the commenter asserts that the five percent requirement cannot
be assessed without a ``valid current and accurate inventory.''
Response B.4: We agree with the commenter that the EPA cannot
approve the five percent annual emissions reduction demonstration in
the SJV PM2.5 Plan given that the Plan demonstrates
reductions only through 2020, the area did not attain by 2020, and
therefore the Plan does not meet the requirement to demonstrate five
percent reductions per year until attainment. We are, therefore,
disapproving the five percent emissions reduction demonstration in the
Plan. However, we disagree with the commenter's claim that the EPA must
also disapprove the five percent demonstration specifically ``because
it relies on a flawed emission inventory built with an outdated EMFAC
model.'' See Response B.1.
With respect to Earthjustice's assertion that Table 3 in our
proposed rule should be removed, we note that this table simply
summarizes the State's submission \55\ and does not constitute an
approval of the submitted five percent annual emissions reduction
demonstration, in any respect. Earthjustice also requests that the EPA
clarify its statement in the proposed rule that ``NOX
emissions reductions are greater than the required five percent per
year.'' \56\ We explained in the proposed rule that ``[t]he State's
methodology for calculating the five percent emission reduction targets
for the years 2017, 2018, 2019, and 2020 is consistent with CAA
requirements as interpreted in the PM2.5 SIP Requirements
Rule, and the Plan shows that NOX emissions reductions from
2017 to 2020 are greater than the required five percent per year.''
\57\
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\55\ 86 FR 38652, 38663.
\56\ Id. at 38662.
\57\ Id.
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We included these statements in the proposed rule to explain how we
were evaluating the State's submitted five percent annual emissions
reduction demonstration, and to distinguish those portions of the
submitted analysis that appear to meet CAA requirements from those
portions that do not. The State's identification of 2013 as the
starting point for the calculation of the five
[[Page 67337]]
percent reduction required under CAA section 189(d) is appropriate
because 2013 is one of the three years for which the EPA evaluated
monitored air quality data to determine that the San Joaquin Valley had
failed to attain the 1997 PM2.5 NAAQS \58\ and, thus, may be
treated as the ``the most recent inventory'' for this purpose.\59\ The
State's identification of 2017 as the first year during which the Plan
must provide for the required five percent reduction from base year
emissions levels is appropriate because the due date for the section
189(d) plan was December 31, 2016.\60\ Thus, if the five percent annual
reduction calculation is based on an approvable base year emissions
inventory and the Plan provides for the calculated level of reduction
each year beginning after the due date for the section 189(d) plan, the
calculation itself is consistent with the EPA's interpretation of the
section 189(d) requirements.
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\58\ The EPA determined on November 23, 2016, that the San
Joaquin Valley had failed to attain the 1997 annual and 24-hour
PM2.5 NAAQS. 81 FR 84481.
\59\ 81 FR 58010, 58099 (stating that, for purposes of
calculating the emission reductions necessary to satisfy the five
percent annual reduction criterion of CAA section 189(d), ``the EPA
strongly recommends that the inventory year be one of the 3 years
from which monitored air quality data were used to determine that
the area failed to attain'' the relevant PM2.5 NAAQS).
\60\ Id. at 58101 (stating that ``[t]he requirement for a 5
percent annual reduction in any one pollutant, calculated based on
the emissions levels in the most recent inventory, must then be
achieved every year between the CAA section 189(d) plan submission
date and the new projected attainment date for the area'') (emphasis
added) and 83 FR 62720 (identifying December 31, 2016 deadline for
submission of 189(d) plan for the 1997 PM2.5 NAAQS for
the San Joaquin Valley).
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As we explained in the proposed rule, however, the Plan fails to
satisfy CAA section 189(d) requirements because the December 31, 2020
attainment date identified in the Plan is not the ``applicable
attainment date,'' and the Plan therefore does not provide annual
reductions of at least five percent each year from the date of plan
submission ``until the applicable attainment date approved by the
EPA.'' \61\ Because we are disapproving the five percent annual
emissions reduction demonstration in the Plan, the State is required to
submit a revised plan that satisfies the requirements of section
189(d). The EPA will evaluate any revised plan submitted by the State
for compliance with the statutory and regulatory requirements and will
provide the public an opportunity to comment on the EPA's proposed
action on any such submission, consistent with the requirements of the
Administrative Procedure Act.\62\
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\61\ 40 CFR 51.1000 (defining ``applicable attainment date'' as
the latest statutory date by which an area is required to attain a
particular PM2.5 NAAQS or the attainment date approved by
the EPA as part of an attainment plan for the area). See also 86 FR
38652, 38663 (explaining that the December 31, 2020 attainment date
projected by the State is not the ``applicable attainment date'' for
purposes of the 1997 annual PM2.5 NAAQS in this area
because the EPA is proposing to disapprove the attainment
demonstration).
\62\ 5 U.S.C. 553(b), (c).
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Comment B.5: Earthjustice states that it agrees that the EPA cannot
approve the modeling demonstration in the SJV PM2.5 Plan
because design values in the San Joaquin Valley in 2020 were above the
NAAQS at half of the monitoring sites. The commenter notes that the EPA
has not provided a full evaluation of the attainment demonstration and
that if the EPA should change course and decide to approve the
attainment demonstration, it must repropose the action and provide a
full evaluation. Finally, referencing a previous comment letter
submitted to the EPA, the commenter asserts that the State and District
cannot claim to have met the statutory obligation to demonstrate
attainment of the 1997 annual PM2.5 NAAQS as expeditiously
as practicable because the Plan does not meet the requirements for BACM
and MSM.
Response B.5: We are finalizing our proposal to disapprove the
attainment demonstration in the SJV PM2.5 Plan for the 1997
annual PM2.5 NAAQS and, therefore, do not provide specific
responses to these comments. When the EPA proposes to take action on a
new or revised attainment demonstration for the San Joaquin Valley area
for these NAAQS, the EPA will provide a full analysis to support its
proposal and will provide a minimum 30-day period for public comments
on that proposal, consistent with the requirements of the
Administrative Procedure Act.\63\ We respond to Earthjustice's claim
that the Plan fails to include BACM and MSM in Response B.3.
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\63\ 5 U.S.C. 553(b), (c).
---------------------------------------------------------------------------
Comment B.6: Earthjustice supports the EPA's proposal to disapprove
the RFP and quantitative milestone elements of the SJV PM2.5
Plan based on the EPA's proposal to disapprove the attainment
demonstration, stating that ``if the plotted trajectories fail as an
empirical fact to lead to attainment, they cannot reasonably be
approved as meeting the Act's requirements.'' Earthjustice asserts that
the EPA must also disapprove the RFP and quantitative milestone
demonstrations due to the absence of an approved precursor
demonstration and because the base year emissions inventory was
developed using models that are ``known to be flawed.''
Response B.6: We agree with the commenter's claim that our
disapproval of the attainment demonstration and precursor demonstration
in the SJV PM2.5 Plan for the 1997 annual PM2.5
NAAQS necessitate disapproval of the RFP and quantitative milestone
elements of the Plan for these NAAQS as well. In the absence of an
approved precursor demonstration, the RFP and quantitative milestone
demonstrations, which address only direct PM2.5 and
NOX emissions, are not approvable. However, as explained in
Response B.1, we disagree with the commenter's claim that the EPA must
disapprove the base year emissions inventories in the SJV
PM2.5 Plan because the State developed them using flawed
models. Therefore, we disagree with the commenter's claim we must cite
alleged flaws in the 2013 base year emissions inventories as an
additional basis for disapproving the RFP and quantitative milestones.
Comment B.7: Earthjustice states that it agrees with the EPA's
proposal to disapprove the contingency measure element of the SJV
PM2.5 Plan for the 1997 annual PM2.5 NAAQS but
asserts that there are additional fundamental flaws that the EPA did
not identify in the proposal. The commenter claims that the contingency
measures as submitted would not provide for one year's worth of
emissions reductions, that quantification of the reductions needed to
meet one year's worth of RFP is not possible in the absence of an
approved attainment demonstration and accurate emissions inventory, and
that the measures outlined in the plan cannot be implemented within 60
days of an EPA determination that the area failed to meet RFP or to
attain by the attainment date. The commenter further asserts that the
EPA should not approve a commitment to adopt additional measures or
adopt a measure that consists only of enhanced enforcement as
sufficient to meet contingency measure requirements. Earthjustice
states that in this particular case, a commitment to enhance
enforcement is ``particularly egregious as a contingency measure
because there is no assurance of actual emission reductions, no
concrete means of enforcing th[e] commitment, and no way to suggest
these emission reductions are surplus to the reductions provided by
control measures already part of the attainment demonstration.''
[[Page 67338]]
Citing its prior comments on the EPA's proposal to approve the
State's attainment plan for the 2006 PM2.5 NAAQS in the San
Joaquin Valley, Earthjustice argues that the ``hot spot'' approach in
Rule 4901 also does not meet the basic control measure requirements of
the CAA and that therefore, the State cannot expand the geographic
applicability of the rule to achieve additional reductions to meet the
contingency measures requirement. The commenter asserts that rather
than sever the contingency measure provisions (i.e., section 5.7.3)
from the rule, the EPA should partially disapprove Rule 4901 for
failing to require controls on all sources.
Lastly, Earthjustice recommends that the EPA clearly state that
addressing the identified deficiencies in Rule 4901 would not result in
an approvable contingency measure.
Response B.7: As the commenter correctly notes, the EPA's proposal
does not assess whether the amount of emissions reductions provided by
the contingency measures in the SJV PM2.5 Plan is sufficient
because, as discussed in the EPA's proposal, it is not possible to
determine whether the measures go beyond what is required for RFP or
attainment purposes in the first instance, let alone whether the amount
of emissions reductions from the measures is sufficient, in the absence
of an approved attainment demonstration.\64\ The EPA disagrees,
however, with the commenter's assertion that quantification of the
amount of emissions reductions needed to meet the contingency measures
requirement is not possible because the emissions inventories are
allegedly inaccurate. For the reasons discussed in our proposal and in
Response B.1 of this notice, we have determined that the 2013 base year
emissions inventories in the SJV PM2.5 Plan are
comprehensive, accurate, current inventories of actual emissions
consistent with the requirements of CAA section 172(c)(3).
---------------------------------------------------------------------------
\64\ 86 FR 38652, 38669.
---------------------------------------------------------------------------
Earthjustice did not explain the basis for its assertion that
``[n]one of the measures outlined in the plan can be fully implemented
within 60 days of'' an EPA determination of failure to meet RFP or
failure to attain by the attainment date. As we explained in our
proposed rule, section 5.7.3 of Rule 4901 identifies a specific
triggering mechanism (i.e., the EPA's final determination that the San
Joaquin Valley has failed to attain the 1997 PM2.5 NAAQS by
the applicable attainment date) and specifies a timeframe within which
its requirements become effective after a failure-to-attain
determination (i.e., 60 days from the effective date of the EPA's final
determination), and would take effect with minimal further action by
the State or the EPA.\65\
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\65\ Id. Specifically, the contingency measure in Rule 4901
provides for the application of lower wood burning curtailment
thresholds in certain counties ``on and after sixty days following
the effective date of EPA final rulemaking.'' Rule 4901, as amended
June 20, 2019, section 5.7.3.
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As also discussed in our proposal, however, section 5.7.3 of Rule
4901 fails to satisfy the requirements for contingency measures
because, among other deficiencies, it does not address three of the
four required triggers for contingency measures in 40 CFR 51.1014(a),
i.e., failure to meet a quantitative milestone, failure to submit a
quantitative milestone report, and failure to meet an RFP
requirement.\66\ Because we are disapproving the contingency measure
provision in Rule 4901 for the reasons provided in our proposed rule,
we provide no further response to this comment.
---------------------------------------------------------------------------
\66\ 86 FR 38652, 38669.
---------------------------------------------------------------------------
Additionally, the commenter's statement that the EPA should not
approve a commitment to adopt additional measures or enhance
enforcement as sufficient to meet contingency measure requirements is
outside of the scope of this rulemaking. The EPA did not propose to
approve any commitments by the State or District for purposes of
meeting the contingency measure requirements for the 1997 annual
PM2.5 NAAQS. The contingency measure at issue in this
rulemaking (i.e., section 5.7.3 of Rule 4901) is not a commitment to
adopt an additional measure but rather has already been adopted by the
State. We are disapproving this particular measure because of the
deficiencies discussed in our proposed rule. Furthermore, because CARB
withdrew the ``State Implementation Plan Attainment Contingency
Measures for the San Joaquin Valley 15 [mu]g/m\3\ Annual
PM2.5 NAAQS'' \67\ SIP revision that included an enhanced
enforcement contingency measure, that measure is no longer before the
EPA for consideration and is not at issue in this rulemaking.\68\
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\67\ Letter dated October 23, 2017, from Richard W. Corey,
Executive Officer, CARB, to Alexis Strauss, Acting Regional
Administrator, EPA Region 9.
\68\ Letter dated March 19, 2021, from Richard W. Corey,
Executive Officer, CARB, to Deborah Jordan, Acting Regional
Administrator, EPA Region 9, transmitting CARB Executive Order S-21-
004.
---------------------------------------------------------------------------
We disagree with the commenter's claim that the District's ``hot
spot'' approach to regulation under Rule 4901 does not meet the basic
control measure requirements of the CAA and that the EPA should
partially disapprove Rule 4901 for failing to require available
controls on all sources in the nonattainment area, instead of merely
``severing'' section 5.7.3. On July 22, 2020, the EPA approved the
District's June 20, 2019 revisions to Rule 4901 into the California SIP
based on a determination that the rule meets the requirements of CAA
sections 110(a)(2), 110(l) and 193.\69\ Also on July 22, 2020, the EPA
determined that Rule 4901, as amended June 20, 2019, meets the
requirements for BACM/BACT and MSM for the 2006 PM2.5 NAAQS
in the San Joaquin Valley.\70\ The EPA took these actions after
considering and responding to comments pertaining to the District's
``hot spot'' approach to regulation under Rule 4901 that Earthjustice
submitted during those prior rulemakings, among other comments.\71\ In
this action, we are evaluating only the contingency measure provision
in Rule 4901, section 5.7.3, for compliance with the requirements for
contingency measures in CAA section 172(c)(9) and 40 CFR 51.1014.
Comments pertaining to other provisions of Rule 4901 are, therefore,
outside the scope of this rulemaking.
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\69\ 85 FR 44206.
\70\ 85 FR 44192.
\71\ EPA Region IX, ``Response to Comments Document for the
EPA's Final Action on the San Joaquin Valley Serious Area Plan for
the 2006 p.m.2.5 NAAQS,'' June 2020.
---------------------------------------------------------------------------
Based on the deficiencies we have identified in section 5.7.3 of
Rule 4901, we are disapproving the contingency measure element of the
SJV PM2.5 Plan, including section 5.7.3 of Rule 4901.
Because section 5.7.3 of Rule 4901 is severable from the rest of the
rule, we are removing it from the SIP.\72\
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\72\ The EPA's prior incorporation of section 5.7.3 of Rule 4901
into the SIP was in error, as this specific provision is severable
from the rest of the rule and the EPA did not evaluate it for
compliance with the applicable CAA requirements for contingency
measures. 85 FR 44206.
---------------------------------------------------------------------------
Comment B.8: Earthjustice states that it agrees that the motor
vehicle emissions budgets in the SJV PM2.5 Plan must be
revised because the San Joaquin Valley area did not attain by the
projected attainment date. The commenter argues that the inadequacy of
the RFP and five percent annual reduction elements of the Plan also
demonstrate the inadequacy of the budgets. Lastly, the commenter
asserts that the budgets must be revised because they were developed
using the EMFAC2014 model, which is no longer ``current and accurate.''
Response B.8: As discussed in our proposal, we are disapproving the
motor vehicle emissions budgets in the SJV PM2.5 Plan
because they cannot be
[[Page 67339]]
consistent with the applicable requirements for RFP and attainment of
the 1997 annual PM2.5 NAAQS given that we are disapproving
the attainment-related elements of the Plan (including the attainment,
RFP, and five percent annual reductions demonstrations).\73\ Thus, the
budgets are inadequate because they do not meet the applicable
statutory and regulatory requirements.\74\ We did not propose to
disapprove the budgets on the basis that they were developed using
EMFAC2014 because EMFAC2014 was the most current mobile source model
available when the State and District were developing the SJV
PM2.5 Plan (see Response B.1).\75\ The commenter's claim
that the budgets must be revised in a new plan raises issues that are
outside the scope of this rulemaking. The EPA will evaluate the motor
vehicle emissions budgets submitted with the State's revised Serious
area and section 189(d) plan for the 1997 annual PM2.5 NAAQS
in the San Joaquin Valley \76\ and determine, through notice-and-
comment rulemaking, whether the submitted budgets satisfy the
applicable statutory and regulatory requirements.
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\73\ 86 FR 38652, 38672.
\74\ 40 CFR 93.118(e)(4)(iv).
\75\ 40 CFR 93.111(a).
\76\ CARB submitted this revised plan for the 1997 annual NAAQS
on November 8, 2021. Letter dated November 8, 2021, from Richard W.
Corey, Executive Officer, CARB, to Deborah Jordan, Acting Regional
Administrator, EPA Region 9.
---------------------------------------------------------------------------
Comment B.9: Earthjustice states that CARB has advised San Joaquin
Valley residents that the State and District are under no obligation to
implement contingency measures because the EPA has not issued a formal
notice of failure to attain, and that the EPA ``must direct the State
and District to immediately implement additional emission reduction
measures pursuant to [CAA] section 172(c)(9).'' According to
Earthjustice, nothing in CAA section 172(c)(9) requires a formal notice
or otherwise references the finding of failure to attain mandated by
section 179(c). Instead, Earthjustice claims, ``the statute is clear
that contingency measures must take effect `if the area fails . . . to
attain,' which it has as an indisputable fact, `without further action
by the State or the Administrator.'''
Earthjustice further claims that, while a finding of failure to
attain is not required to trigger contingency measures, it is a
prerequisite for triggering the other consequences outlined in section
179(d). According to Earthjustice, the EPA had a statutory obligation
under CAA section 179(c)(1) to determine whether or not the area
attained no later than June 30, 2021, and the EPA's proposed rule
satisfies the requirement in CAA section 179(c)(2) to publish notice in
the Federal Register. Thus, Earthjustice claims, the ``EPA should
notify the State and District, and confirm with the public, that the
[July 22, 2021] notice published in the Federal Register satisfied the
statutory obligation in section 179(c)(2), and triggered the clocks
outlined in section 179(d).'' Earthjustice asserts that ``[t]o conclude
otherwise is to flout the statutory deadlines and the agency's public
health protection obligations.''
Response B.9: We disagree with these comments. First, the EPA has
provided by rule that contingency measures for the PM2.5
NAAQS apply only upon a ``determination'' by the EPA that one of four
types of failures has occurred. Specifically, 40 CFR 51.1014(a) states
that contingency measures ``shall take effect with minimal further
action by the state or the EPA following a determination by the
Administrator that the area has failed: (1) To meet any RFP requirement
in an attainment plan approved in accordance with Sec. 51.1012; (2) To
meet any quantitative milestone in an attainment plan approved in
accordance with Sec. 51.1013; (3) To submit a quantitative milestone
report required under Sec. 51.1013(b); or, (4) To attain the
applicable PM2.5 NAAQS by the applicable attainment date.''
In the preamble to the PM2.5 SIP Requirements Rule, the EPA
noted its intent ``to notify the state of a failure to meet RFP or to
attain the NAAQS by publication of its determination in the Federal
Register,'' after which ``[t]he state should ensure that the
contingency measures are fully implemented as expeditiously as
practicable[.]'' \77\ Moreover, the EPA's longstanding practice has
been to require state and local agencies to implement contingency
measures for failure to attain (``attainment contingency measures'')
only after the EPA has determined, through notice-and-comment
rulemaking, that the area failed to attain the NAAQS by the applicable
attainment date. Thus, the EPA disagrees with the commenter's claim
that attainment contingency measures must be self-effectuating before
the EPA has made a determination concerning attainment under CAA
section 179(c).
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\77\ 81 FR 58010, 58066 (contingency measure requirements for
Moderate PM2.5 nonattainment areas) and 58093
(contingency measure requirements for Serious PM2.5
nonattainment areas).
---------------------------------------------------------------------------
Second, we disagree with Earthjustice's claim that the EPA had a
June 30, 2021 statutory deadline under CAA section 179(c)(1) to
determine whether or not the San Joaquin Valley attained the 1997
annual PM2.5 NAAQS. Section 179(c)(1) of the CAA requires
the EPA to determine, as expeditiously as practicable after the
``applicable attainment date'' for any nonattainment area but no later
than six months after such date and based on the area's air quality
data as of the attainment date, whether the area attained the NAAQS by
that date. The EPA has defined ``applicable attainment date,'' in
relevant part, to mean ``the latest statutory date by which an area is
required to attain a particular PM2.5 NAAQS, unless the EPA
has approved an attainment plan for the area to attain such NAAQS, in
which case the applicable attainment date is the date approved under
such attainment plan.'' \78\ Because the EPA has not yet approved an
attainment plan for the 1997 annual PM2.5 NAAQS in the San
Joaquin Valley that satisfies the requirements of CAA section 189(d),
the ``applicable attainment date'' is the latest statutory date by
which the area is required to attain the 1997 annual PM2.5
NAAQS.
---------------------------------------------------------------------------
\78\ 40 CFR 51.1000 (definitions).
---------------------------------------------------------------------------
As we explained in our October 6, 2016 proposal to find that the
area had failed to attain the 1997 annual and 24-hour PM2.5
NAAQS, the statutory attainment date for a state subject to the
requirement for a CAA section 189(d) plan for the 1997 PM2.5
NAAQS is set by CAA section 179(d)(3), which in turn relies upon
section 172(a)(2) for the establishment of a new statutory attainment
date, but with a different starting point than provided in section
172(a)(2).\79\ Under section 179(d)(3), the new attainment date is the
date by which the nonattainment area can attain the NAAQS as
expeditiously as practicable, but no later than 5 years from the date
of the final determination of failure to attain, except that the EPA
may extend the attainment date for a period no greater than 10 years
from the final determination, considering the severity of nonattainment
and the availability and feasibility of pollution control measures.\80\
The EPA's determination that the San Joaquin Valley area failed to
attain the 1997 annual PM2.5 NAAQS published in the Federal
Register on November 23, 2016.\81\ Thus, under CAA section 179(d)(3),
the relevant latest statutory attainment date for purposes of the 1997
annual PM2.5 NAAQS in the San Joaquin Valley is November 23,
2021, except that the EPA may extend the attainment
[[Page 67340]]
date to November 23, 2026, considering the severity of nonattainment
and the availability and feasibility of pollution control measures. On
November 8, 2021, the State submitted a revised attainment plan to
correct the deficiencies in the SJV PM2.5 Plan identified in
this final action. We note that the EPA may elect to approve a new
attainment date that is as expeditiously as practicable, but not later
than November 23, 2026, if the statutory criteria in section 172(a)(2)
are met. In the meantime, the ``applicable attainment date'' for the
1997 annual PM2.5 NAAQS in the San Joaquin Valley is
November 23, 2021, and the EPA does not have a mandatory duty under
section 179(c)(1) to determine whether the area attained by that date
until May 23, 2022.
---------------------------------------------------------------------------
\79\ 81 FR 69448, 69453-69454.
\80\ Id.
\81\ 81 FR 84481.
---------------------------------------------------------------------------
Third, we disagree with Earthjustice's claim that the EPA's July
22, 2021 proposed rule constitutes a finding of failure to attain under
CAA section 179(c)(2) that triggers the consequences outlined in CAA
section 179(d). Section 179(d) of the CAA requires a state to submit a
revised plan meeting the requirements of section 179(d)(2) ``[w]ithin 1
year after the Administrator publishes the notice under [section
179(c)(2)] (relating to notice of failure to attain). . . .'' The EPA's
proposed rule is not a final agency action and does not constitute
notice of a determination under CAA section 179(c) as to whether the
area attained the NAAQS. Accordingly, the proposed rule alone does not
trigger any obligation on the State to submit a revised plan under CAA
section 179(d). If and when the EPA takes final action to determine,
through notice-and-comment rulemaking, that the San Joaquin Valley has
failed to attain the 1997 annual PM2.5 NAAQS, that final
action will, upon publication in the Federal Register, trigger the
obligation on the State to submit a revised plan under CAA section
179(d) within one year.
Comment B.10: Earthjustice notes that the EPA outlined the
sanctions consequences that would result if the proposed disapproval is
finalized but asserts that the EPA did not accurately describe the
status of the sanctions related to the December 2018 finding of failure
to submit or the consequences if the State were to withdraw the Plan.
The commenter asserts that the EPA never made an affirmative
completeness finding on the SJV PM2.5 Plan, that the area
should therefore already be subject to offset and highway sanctions,
and that withdrawal of the Plan would require immediate imposition of
sanctions.
Additionally, the commenter states that it expects that the
``District and State will quickly adopt a new plan, based on the
defective 2013 base year inventory and outdated EMFAC2014 model, that
includes no new control measures or contingency measures, and claim
that its submittal should turn off sanctions'' but that sanctions
cannot be stayed until the EPA has affirmatively found the plan
complete. Citing the EPA's SIP Processing Manual, the commenter adds
that the EPA cannot make an affirmative completeness determination if
the required elements are missing or inadequate on their face.
Response B.10: The commenter's claim that the EPA never made an
affirmative completeness finding on the SJV PM2.5 Plan and
that the area should therefore already be subject to offset and highway
sanctions is incorrect. As we explained in our proposed rule, following
the EPA's December 2018 finding that the State had failed to submit a
complete section 189(d) attainment plan for the 1997 annual
PM2.5 NAAQS, among other required SIP submissions, for the
San Joaquin Valley, CARB submitted the SJV PM2.5 Plan for
these NAAQS (among other submissions) on May 10, 2019, and ``[o]n June
24, 2020, the EPA issued a letter finding the [SJV PM2.5
Plan] complete and terminating the sanctions clocks under CAA section
179(a).'' \82\ Thus, mandatory sanctions currently do not apply for
purposes of the PM2.5 NAAQS in the San Joaquin Valley area.
---------------------------------------------------------------------------
\82\ 86 FR 38652, 38653-38654 (citing letter dated June 24,
2020, from Elizabeth J. Adams, Director, Air and Radiation Division,
EPA Region IX, to Richard W. Corey, Executive Officer, CARB,
Subject: ``RE: Completeness Finding for State Implementation Plan
(SIP) Submissions for San Joaquin Valley for the 1997, 2006, and
2012 Fine Particulate Matter (PM2.5) National Ambient Air
Quality Standards (NAAQS) and Termination of Clean Air Act (CAA)
Sanctions Clocks''). The letter is available at https://www.regulations.gov under Docket ID No. EPA-R09-OAR-2021-0260.
---------------------------------------------------------------------------
We agree, however, with Earthjustice that if the State were to
withdraw the SJV PM2.5 Plan, mandatory sanctions would apply
immediately in the San Joaquin Valley, given that withdrawal of the
required SIP submission would eliminate the EPA's basis for terminating
the sanctions clocks under CAA section 179(a). The EPA's December 2018
findings of failure to submit became effective on January 7, 2019,
triggering clocks under CAA section 179(a) for the application of
emissions offset sanctions 18 months after the finding and highway
funding sanctions 6 month thereafter, unless the EPA affirmatively
determines that the State has submitted a complete SIP addressing the
identified deficiencies.\83\ Because these clocks have now expired,
withdrawal by the State of the SIP submission that provided the basis
for the EPA's termination of the sanctions clocks would result in
immediate application of mandatory sanctions under 40 CFR 52.31(d).
---------------------------------------------------------------------------
\83\ Id. at 38653.
---------------------------------------------------------------------------
We do not respond to Earthjustice's additional comments regarding a
new plan and related sanctions consequences as these comments are
outside the scope of this rulemaking.
Comment B.11: Earthjustice states that the EPA has known since
December 2018 that it had two years to promulgate a federal
implementation plan (FIP), and that it was clear from available air
quality data that the SJV PM2.5 Plan would fail to bring the
San Joaquin Valley into attainment of the 1997 PM2.5 NAAQS
by the end of 2020. And yet, according to Earthjustice, the EPA has
instead focused on justifying and defending the repeated failures of
the State and District. Earthjustice states that California is the only
state in the nation that continues to violate ozone and particulate
matter standards adopted over 20 years ago. Earthjustice notes that the
EPA is already subject to a statutory deadline to promulgate a FIP,
that ``[i]t is beyond time for EPA to intercede and outline the
elements of a FIP or SIP that would be adequate to attain the national
standards,'' and that ``Valley Residents would be more than willing to
assist in that exercise.'' According to Earthjustice, ``[a]t a minimum,
such a plan would close loopholes for oil and gas operations, require
real emission reductions at mobile source magnet facilities, impose
meaningful controls at industrial agricultural facilities (including
controls on ammonia emissions), address emissions from gas-fired
appliances, and require feasible controls on wood burning across the
Valley.'' Earthjustice urges the EPA to ``use this disapproval to
finally change course and direct its resources to solving, instead of
excusing, the Valley's air quality problems.''
Response B.11: As we explained in the proposed rule, as a result of
the EPA's December 6, 2018 determination, effective January 7, 2019,
that California had failed to submit the required attainment plan for
the 1997 annual PM2.5 NAAQS, among other required SIP
submissions for the San Joaquin Valley, the EPA is already subject to a
statutory deadline to promulgate a FIP for this purpose no later than
two years after the effective date of that determination--i.e., by
January 7, 2021.\84\ We intend to work with the State, the District,
and stakeholders in
[[Page 67341]]
the San Joaquin Valley in the near term to either correct the
deficiencies in the submitted Serious area and section 189(d) plan for
the 1997 annual PM2.5 NAAQS or promulgate a FIP or FIPs, as
appropriate and necessary to correct such deficiencies.
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\84\ 83 FR 62720.
---------------------------------------------------------------------------
C. Comments From a Private Citizen
Comment C.1: The private citizen commenter \85\ states that they
support the EPA's disapproval of the contingency measure element of the
SJV PM2.5 Plan, adding that the ``contingencies . . . ought
to be triggered should the hot-spot counties of Madera, Fresno and/or
Kern fail to attain any of the several National Ambient Air Quality
Standards the plan seeks to address.'' The commenter claims that the
EPA has determined that Kern County failed to attain the 1997 annual
PM2.5 NAAQS and that there are no adopted contingency
measures in place to be triggered by the failure to attain to reduce
emissions in Kern County. The commenter further asserts that the EPA
does not offer a timetable for adoption of revised contingency
measures. The commenter notes that the SJVUAPCD Governing Board has
adopted a revised attainment plan for the 1997 annual PM2.5
NAAQS with a 2023 attainment date, that the EPA has proposed to extend
the attainment date for the area, and that this revised plan does not
contain any new control measures. The commenter recommends that the EPA
specify a timeline for the State to submit new contingency measures,
recommending that new measures are adopted before the next wood burning
season. Lastly, the commenter summarizes recommendations that the EPA
provided previously for the District's residential wood burning rule,
and further recommends that SJVUAPCD apply the three-minute emissions
opacity limit under Rule 4101 to residential wood burning.
---------------------------------------------------------------------------
\85\ Comment dated August 23, 2021, from Thomas Menz, to Docket
ID No. EPA-R09-OAR-2021-0260, with attachment.
---------------------------------------------------------------------------
Response C.1: The EPA appreciates these comments regarding the
contingency measures in the SJV PM2.5 Plan. However, as
explained in Response B.9, the EPA has not yet made a determination as
to whether the San Joaquin Valley attained the 1997 annual
PM2.5 NAAQS. Under CAA section 179(d)(3), the latest
statutory attainment date for purposes of the 1997 annual
PM2.5 NAAQS in the San Joaquin Valley is November 23, 2021,
except that the EPA may extend the attainment date to November 23,
2026, considering the severity of nonattainment and the availability
and feasibility of pollution control measures. On November 8, 2021, the
State submitted a revised attainment plan to correct the deficiencies
in the SJV PM2.5 Plan identified in this final action. We
note that the EPA may approve a new attainment date extending to
November 23, 2026, at the latest, if the statutory criteria in section
172(a)(2) are met. In the meantime, the ``applicable attainment date''
for the 1997 annual PM2.5 NAAQS in the San Joaquin Valley is
November 23, 2021, and the EPA does not have a mandatory duty under
section 179(c)(1) to determine whether the area attained by that date
until May 23, 2022.
The commenter's claim that the EPA has proposed to extend the
attainment date for the 1997 annual PM2.5 NAAQS in the San
Joaquin Valley is incorrect, and comments about provisions other than
section 5.7.3 in Rule 4901 are outside the scope of this
rulemaking.\86\
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\86\ As we explained in Response B.7, the EPA previously
approved Rule 4901, as amended June 20, 2019, as meeting the
requirements for BACM/BACT and most stringent measures for the 2006
PM2.5 NAAQS (85 FR 44192) and the requirements of CAA
sections 110(a)(2), 110(l) and 193 (85 FR 44206). In this action, we
are evaluating only the contingency measure provision in Rule 4901,
section 5.7.3, for compliance with the requirements for contingency
measures in CAA section 172(c)(9) and 40 CFR 51.1014. Comments
pertaining to other provisions of Rule 4901 are, therefore, outside
the scope of this rulemaking.
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With respect to the commenter's assertion that the EPA's proposed
action does not provide a timetable for the submission of new
contingency measures, our proposed rule discussed the requirement for
the State to make a new SIP submission to address the identified
deficiencies with respect to the attainment plan for the 1997 annual
PM2.5 NAAQS, as well as the consequences of a final
disapproval and associated timelines.\87\ Upon the effective date of a
final disapproval of the contingency measures, offset and highway
sanctions clocks will start and sanctions will be imposed as outlined
in section III of this notice, unless the State submits, and we
approve, SIP revisions meeting the applicable requirements prior to
implementation of the sanctions.
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\87\ 86 FR 38652, 38672-38673.
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III. Final Action
For the reasons discussed in our proposed action and herein, the
EPA is taking final action to approve in part and disapprove in part
the SJV PM2.5 Plan for the 1997 annual PM2.5
NAAQS. We are approving the 2013 base year emissions inventories as
meeting the requirements of CAA section 172(c)(3) and 40 CFR 51.1008.
We are disapproving the precursor demonstration, five percent annual
emissions reductions demonstration, BACM demonstration, attainment
demonstration, RFP demonstration, quantitative milestones, motor
vehicle emissions budgets, and contingency measures for failure to meet
applicable CAA requirements. We are also removing from the California
SIP the contingency provision of Rule 4901 (section 5.7.3) because this
provision does not satisfy CAA requirements for contingency measures
and is severable from the remainder of the rule.
As a result of these final disapprovals, the offset sanction in CAA
section 179(b)(2) will apply in the San Joaquin Valley area 18 months
after the effective date of this final action. For new or modified
major stationary sources in the area, the ratio of emissions reductions
to increased emissions shall be two to one. The highway funding
sanctions in CAA section 179(b)(1) will apply in the area six months
after the offset sanction is imposed. These sanctions will not apply if
California submits, and we approve, a SIP submission or submissions
meeting the applicable CAA requirements prior to the implementation of
sanctions.\88\
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\88\ See 40 CFR 52.31, which sets forth in detail the sanctions
consequences of a final disapproval.
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In addition to the sanctions, CAA section 110(c)(1) provides that
the EPA must promulgate a FIP addressing any disapproved elements of
the attainment plan two years after the effective date of the final
disapproval, unless the State submits, and the EPA approves, a SIP
submission or submissions to cure the identified deficiencies. As a
result of the EPA's December 6, 2018 determination, effective January
7, 2019, that California had failed to submit the required attainment
plan for the 1997 annual PM2.5 NAAQS, among other required
SIP submissions for the San Joaquin Valley,\89\ the EPA is already
subject to a statutory deadline to promulgate a FIP for purposes of
these NAAQS no later than two years after the effective date of that
determination.\90\
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\89\ 83 FR 62720.
\90\ Id.
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Furthermore, upon the effective date of this final action, a
conformity freeze will take effect in the San Joaquin Valley
nonattainment area. A conformity freeze means that only projects in the
first four years of the most recent regional transportation plan (RTP)
and transportation improvement program (TIP) can proceed. During a
[[Page 67342]]
freeze, no new RTPs, TIPs, or RTP/TIP amendments can be found to
conform.\91\
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\91\ 40 CFR 93.120(a).
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Finally, as a result of this final action, California is required
to develop and submit a revised attainment plan for the San Joaquin
Valley area that addresses the applicable CAA requirements, including
the Serious area plan requirements and the requirements of CAA section
189(d) for the 1997 annual PM2.5 NAAQS. In accordance with
sections 179(d)(3) and 172(a)(2) of the CAA, the revised plan must
demonstrate attainment of these NAAQS as expeditiously as practicable
and no later than 5 years from the date of the EPA's prior
determination that the area failed to attain (i.e., by November 23,
2021), except that the EPA may extend the attainment date to a date no
later than 10 years from the date of this determination (i.e., to
November 23, 2026), considering the severity of nonattainment and the
availability and feasibility of pollution control measures.\92\ We note
that on November 8, 2021, California submitted a SIP revision to
address the CAA requirements for the 1997 annual PM2.5
NAAQS. The EPA intends to evaluate and act on the revised SIP
submission through subsequent rulemakings, as appropriate.
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\92\ 81 FR 84481, 84482 (final EPA action determining that the
San Joaquin Valley had failed to attain the 1997 PM2.5
NAAQS by the December 31, 2015 Serious area attainment date).
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IV. Incorporation by Reference
In this document, the EPA is amending regulatory text that includes
incorporation by reference. As explained in section III of this
document, the EPA is removing section 5.7.3 of SJVUAPCD Rule 4901 as
amended on June 20, 2019 from the California State Implementation Plan,
which is incorporated by reference in accordance with the requirements
of 1 CFR part 51. The EPA has made, and will continue to make, these
documents available through https://www.regulations.gov and at the EPA
Region IX Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because this SIP disapproval does not in-and-of-itself create
any new information collection burdens but simply disapproves certain
state requirements for inclusion in the SIP.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This SIP
disapproval does not in-and-of itself create any new requirements but
simply disapproves certain state requirements for inclusion in the SIP.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action disapproves pre-existing requirements
under state or local law and imposes no new requirements. Accordingly,
no additional costs to state, local, or tribal governments, or to the
private sector, result from this action.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP revision that the EPA is
disapproving would not 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, and will not impose substantial direct costs on
tribal governments or preempt tribal law. Thus, Executive Order 13175
does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because this SIP disapproval does not in-and-of
itself create any new regulations but simply disapproves certain state
requirements for inclusion in the SIP.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211 because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA lacks the discretionary authority to address environmental
justice in this rulemaking.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
L. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 25, 2022. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule 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
[[Page 67343]]
such rule or action. This action may not be challenged later in
proceedings to enforce its requirements (see CAA section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Ammonia,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Particulate matter, Reporting and recordkeeping requirements,
Sulfur dioxide, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 17, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
For the reasons stated in the preamble, the 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 revising paragraph (c)(535)(i)(A)(1)
and adding paragraph (c)(537)(ii)(B)(5) to read as follows:
Sec. 52.220 Identification of plan--in part.
* * * * *
(c) * * *
(535) * * *
(i) * * *
(A) * * *
(1) Rule 4901, ``Wood Burning Fireplaces and Wood Burning
Heaters,'' except section 5.7.3, amended on June 20, 2019.
* * * * *
(537) * * *
(ii) * * *
(B) * * *
(5) 2018 Plan for the 1997, 2006, and 2012 PM2.5
Standards (``2018 PM2.5 Plan''), adopted November 15, 2018,
portions of Appendix B (``Emissions Inventory'') pertaining to the 2013
base year emissions inventories as they relate to the 1997 annual
PM2.5 NAAQS only.
* * * * *
0
4. Section 52.237 is amended by adding paragraph (a)(11) to read as
follows:
Sec. 52.237 Part D disapproval.
(a) * * *
(11) The following portions of the ``2018 Plan for the 1997, 2006,
and 2012 PM2.5 Standards'' as they pertain to the 1997
annual PM2.5 standards in the San Joaquin Valley are
disapproved because they do not meet the requirements of Part D of the
Clean Air Act: Comprehensive precursor demonstration, five percent
annual emissions reductions, best available control measures/best
available control technology demonstration, attainment demonstration,
reasonable further progress demonstration, quantitative milestones,
motor vehicle emissions budgets, and contingency measures.
* * * * *
[FR Doc. 2021-25617 Filed 11-24-21; 8:45 am]
BILLING CODE 6560-50-P