[Federal Register Volume 87, Number 192 (Wednesday, October 5, 2022)]
[Proposed Rules]
[Pages 60494-60531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21492]
[[Page 60493]]
Vol. 87
Wednesday,
No. 192
October 5, 2022
Part III
Environmental Protection Agency
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40 CFR Part 52
Clean Air Plans; 2012 Fine Particulate Matter Serious Nonattainment
Area Requirements; San Joaquin Valley, California; Proposed Rule
Federal Register / Vol. 87 , No. 192 / Wednesday, October 5, 2022 /
Proposed Rules
[[Page 60494]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2021-0884; FRL-9292-03-R9]
Clean Air Plans; 2012 Fine Particulate Matter Serious
Nonattainment Area Requirements; San Joaquin Valley, California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: On December 29, 2021, the Environmental Protection Agency (EPA
or ``Agency'') published a proposed rule to approve the State of
California's Serious area plan for the San Joaquin Valley (SJV) for the
2012 annual fine particulate matter (PM2.5) national ambient
air quality standards (NAAQS) for all Serious PM2.5 area
planning requirements, except for contingency measures, which the EPA
proposed to disapprove. Based on adverse comments submitted on that
proposed rule and as a result of a Ninth Circuit Court of Appeals
decision on a related SJV PM2.5 rulemaking for the 2006 24-
hour PM2.5 NAAQS, the EPA has reconsidered its prior
proposal and now proposes to disapprove the State's plan for certain
Serious area planning requirements for the 2012 annual PM2.5
NAAQS. The nonattainment plan elements that the EPA proposes to
disapprove include the plan's best available control measures (BACM)
demonstration for ammonia and building heating, demonstrations of
attainment and reasonable further progress, quantitative milestones,
and motor vehicle emission budgets. The EPA is also proposing to
disapprove the State's optional precursor demonstration for ammonia. We
are not re-proposing any action on the Serious area requirements for
emissions inventories nor contingency measures; our prior proposal to
approve the emissions inventory element and to disapprove the
contingency measure element of the nonattainment plan requirements for
the 2012 annual PM2.5 NAAQS remains unchanged. The EPA will
accept comments on this new proposed rule during a 45-day public
comment period and public hearing, as described in this notice.
DATES: Any comments must arrive by November 21, 2022.
Public hearings: The EPA will host two public hearings on this
proposed rule. The first will take place November 2, 2022, 7:30 p.m. to
8:30 p.m. The second will take place November 3, 2022, 7:00 p.m. to
8:00 p.m. The hearings will be held to accept oral comments on this
proposed rule. Immediately prior to each public hearing, and on October
28, 2022, the EPA will host public meetings on this proposed rule. For
further information on the public hearings and public meetings, please
see the ADDRESSES and SUPPLEMENTAL INFORMATION sections.
ADDRESSES: The November 2, 2022 public hearing will take place at
Fresno City College, Old Administration Building, Room 251, 1101 E
University Ave., Fresno, CA 93741. The November 3, 2022 public hearing
will take place at Bakersfield College, Norman Levan Center, 1801
Panorama Drive, Bakersfield, CA 93305.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2021-
0884, at https://www.regulations.gov. For comments submitted at
Regulations.gov, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: For questions regarding this proposed
rule, please contact Rory Mays, Air Planning Office (AIR-2), EPA Region
IX, (415) 972-3227. For questions regarding the public hearings and
related public meetings, please contact Kelley Xuereb, Immediate Office
(AIR-1), EPA Region IX, (415) 947-4171. Both can be reached by emailing
[email protected].
SUPPLEMENTARY INFORMATION: In addition to the two in-person public
hearings, the EPA will host three public meetings. The public meetings
are an informal opportunity to speak with EPA staff about the action.
We will not accept public comments during the public meetings. The
first meeting will be held virtually on October 28, 2022, 12:00 p.m. to
2:00 p.m. Participants can register to attend the meeting at: https://usepa.zoomgov.com/meeting/register/vJItc-qppzooGCZI10LqoTXf6OpNZIVbWco.
The second will take place on November 2, 2022, 5:30 p.m. to 7:00
p.m. prior to the public hearing at Fresno City College, Old
Administration Building, Room 251, 1101 E University Ave., Fresno, CA
93741. The third will take place on November 3, 2022, 5:00 p.m. to 6:30
p.m. prior to the public hearing at Bakersfield College, Norman Levan
Center, 1801 Panorama Drive, Bakersfield, CA 93305. Spanish translation
will be available during all three events. If you would like to submit
a request for reasonable accommodation, please email
[email protected]. For additional information and updates,
please visit: https://www.epa.gov/sanjoaquinvalley.
Throughout this document, ``we,'' ``us,'' and ``our'' refer to the
EPA.
Table of Contents
I. Background for Proposed Action
A. Applicable SIP Submissions, Completeness Review, and Clean
Air Act Requirements
B. December 29, 2021 Proposed Rule
C. Adverse Comments Submitted January 28, 2022
D. Ninth Circuit Decision on Related SJV PM2.5 Plan
II. Reconsideration of the San Joaquin Valley Serious
PM2.5 Plan
A. Ammonia Precursor Demonstration
B. Best Available Control Measures
C. Attainment Demonstration
D. Reasonable Further Progress Demonstration and Quantitative
Milestones
E. Motor Vehicle Emission Budgets
III. Environmental Justice Considerations
IV. Title VI of the Civil Rights Act
A. Background on CAA Section 110(a)(2)(E)
B. Background on Title VI of the Civil Rights Act of 1964
C. Comments Received on 2021 Proposed Rule
V. Summary of Proposed Actions and Request for Public Comment
VI. Statutory and Executive Order Reviews
I. Background for Proposed Action
The EPA discussed background, applicable State implementation plan
(SIP) submissions, completeness review, and Clean Air Act (CAA or
``Act'') requirements for the SJV Serious PM2.5
[[Page 60495]]
nonattainment area \1\ in sections I, II, and III of our December 29,
2021 proposed rule on California's Serious area plan for the 2012
annual PM2.5 NAAQS.\2\ We refer to that proposed rule herein
as the ``2021 Proposed Rule,'' briefly summarize the relevant CAA
requirements and our previous proposed action with respect to those
requirements here, and rely on the more detailed expositions in that
proposed rule.
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\1\ For a precise description of the geographic boundaries of
the SJV PM2.5 nonattainment area, see 40 CFR 81.305.
\2\ 86 FR 74310 (December 29, 2021).
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The EPA promulgated the primary annual PM2.5 NAAQS of
12.0 micrograms per cubic meter ([micro]g/m\3\) in 2012 (``2012 annual
PM2.5 NAAQS''),\3\ designated and classified the SJV as
Moderate nonattainment for this NAAQS in 2015,\4\ and reclassified the
SJV from Moderate to Serious nonattainment for this NAAQS in our final
rule published November 26, 2021.\5\ That reclassification action
required California to submit a ``Serious area'' attainment plan. Such
an attainment plan must include, among other things, provisions to
assure that, under CAA section 189(b)(1)(B), the BACM for the control
of direct PM2.5 and PM2.5 precursors are
implemented no later than four years after reclassification of the area
and a demonstration (including air quality modeling) that the plan
provides for attainment of this NAAQS as expeditiously as practicable
but no later than December 31, 2025. That reclassification action also
triggered statutory deadlines for California to submit SIP submissions
addressing the Serious area attainment plan requirements for the 2012
annual PM2.5 NAAQS: June 27, 2023, for emissions
inventories, BACM, and nonattainment new source review (NSR), and
December 31, 2023, for the attainment demonstration and related
planning requirements.
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\3\ 78 FR 3086 (January 15, 2013) and 40 CFR 50.18. Unless
otherwise noted, all references to the PM2.5 standards in
this notice, including all instances of ``2012 annual
PM2.5 NAAQS,'' are to the 2012 primary annual NAAQS of
12.0 [micro]g/m\3\ codified at 40 CFR 50.18.
\4\ 80 FR 2206 (January 15, 2015) (codified at 40 CFR 81.305).
\5\ 86 FR 67343 (November 26, 2021).
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A. Applicable SIP Submissions, Completeness Review, and Clean Air Act
Requirements
In this proposed rule, the EPA is proposing action on portions of
two SIP submissions submitted by the California Air Resources Board
(CARB) to address combined nonattainment plan requirements for the
1997, 2006, and 2012 PM2.5 NAAQS in the SJV.\6\
Specifically, the EPA is proposing to act only on those portions of the
following two plan submissions that pertain to the Serious area
requirements for the 2012 annual PM2.5 NAAQS: (1) the ``2018
Plan for the 1997, 2006, and 2012 PM2.5 Standards,'' adopted
by the San Joaquin Valley Unified Air Pollution Control District
(SJVUAPCD or District) on November 15, 2018, and by CARB on January 24,
2019 (``2018 PM2.5 Plan''); \7\ and (2) the ``San Joaquin
Valley Supplement to the 2016 State Strategy for the State
Implementation Plan,'' adopted by CARB on October 25, 2018 (``Valley
State SIP Strategy'').
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\6\ In our 2021 Proposed Rule, we also proposed action on a
third SIP submission dated July 19, 2019. 86 FR 74310, 74311.
However, the relevant component of that submission pertained only to
contingency measures, and we are not modifying our proposed action
on contingency measures in this proposed rule.
\7\ The 2018 PM2.5 Plan was developed jointly by CARB
and the District.
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We refer to the relevant portions of these SIP submissions
collectively in this proposal as the ``SJV PM2.5 Plan'' or
``Plan.'' The SJV PM2.5 Plan addresses attainment plan
requirements for multiple PM2.5 NAAQS in the SJV. CARB
submitted the SJV PM2.5 Plan to the EPA as a revision to the
California SIP on May 10, 2019.\8\ These SIP submissions became
complete by operation of law on November 10, 2019.\9\ In the 2021
Proposed Rule, we proposed to find that the 2018 PM2.5 Plan
and Valley State SIP Strategy each met the procedural requirements for
public notice and hearing in CAA sections 110(a)(1) and (2) and 110(l)
and 40 CFR 51.102.
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\8\ Letter dated May 9, 2019, from Richard W. Corey, Executive
Officer, CARB, to Mike Stoker, Regional Administrator, EPA Region
IX. Previously, in separate rulemakings, the EPA has finalized
action on the portions of the SJV PM2.5 Plan that pertain
to the 1997 annual PM2.5 NAAQS, the 1997 24-hour
PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, and
the Moderate area plan for the 2012 annual PM2.5 NAAQS.
See 86 FR 67329 (November 26, 2021) (final rule regarding the 1997
annual PM2.5 NAAQS); 87 FR 4503 (January 28, 2022) (final
rule regarding the 1997 24-hour PM2.5 NAAQS); 85 FR 44192
(July 22, 2020) (final rule regarding the 2006 24-hour
PM2.5 NAAQS, except contingency measures); and 86 FR
67343 (November 26, 2021) (final rule regarding the Moderate area
plan for the 2012 annual PM2.5 NAAQS and contingency
measures for the 2006 24-hour PM2.5 NAAQS).
\9\ 87 FR 74310, 74311-74312. We note that, with respect to
plans previously required for the 1997, 2006, and 2012
PM2.5 NAAQS, including the Moderate area plan only for
the 2012 annual PM2.5 NAAQS, the EPA had made findings of
failure to submit effective January 7, 2019, that triggered
sanctions clocks. 83 FR 62720 (December 6, 2018). Following the May
10, 2019 submission of the 2018 PM2.5 Plan and Valley
State SIP Strategy, the EPA affirmatively determined that the SIP
submissions addressed the deficiency that was the basis for such
findings, resulting in the termination of the associated sanctions
clocks. Letter dated June 24, 2020, from Elizabeth Adams, Director,
Air and Radiation Division, EPA Region IX, to Richard W. Corey,
Executive Officer, CARB. However, the findings of failure to submit
did not apply to the Serious area plan for the 2012 annual
PM2.5 NAAQS because it was not yet required, and the June
24, 2020 completeness letter did not address the Serious area plan
for the 2012 annual PM2.5 NAAQS.
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In our 2021 Proposed Rule, we also summarized the CAA requirements
applicable to Serious PM2.5 nonattainment areas.\10\ In the
current proposed rule, we are proposing action with respect to the
following requirements:
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\10\ 87 FR 74310, 74313.
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(1) Provisions to assure that BACM, including best available
control technology (BACT), for the control of direct PM2.5
and all PM2.5 precursors shall be implemented no later than
four years after the area is reclassified (CAA section 189(b)(1)(B)),
unless the State elects to make an optional precursor demonstration
that the EPA approves authorizing the State not to regulate one or more
of these pollutants;
(2) A demonstration (including air quality modeling) that the plan
provides for attainment as expeditiously as practicable but no later
than the end of the tenth calendar year after designation as a
nonattainment area (i.e., December 31, 2025, for the SJV for the 2012
annual PM2.5 NAAQS) (CAA sections 188(c)(2) and
189(b)(1)(A)(i));
(3) Plan provisions that require reasonable further progress (RFP)
(CAA section 172(c)(2));
(4) Quantitative milestones that the State must meet every three
years until the EPA redesignates the area to attainment and which
demonstrate RFP toward attainment by the applicable date (CAA section
189(c)); and
(5) Motor vehicle emissions budgets (budgets) for 2025 (CAA section
176(c)).
We are also proposing to disapprove the State's optional precursor
demonstration for ammonia.\11\
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\11\ We are not re-proposing any action on the Serious area
requirements for emissions inventories nor contingency measures; our
prior proposal to approve the emissions inventory element and to
disapprove the contingency measure element of the nonattainment plan
requirements for the 2012 annual PM2.5 NAAQS remains
unchanged.
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In addition, the State's Serious area plan must meet the general
requirements applicable to all SIP submissions under section 110 of the
CAA, including the requirement to provide necessary assurances that the
implementing agencies have adequate personnel, funding, and authority
under section 110(a)(2)(E); and the requirements concerning enforcement
provisions in section 110(a)(2)(C).
[[Page 60496]]
The EPA provided its preliminary views on the CAA's requirements
for particulate matter plans under part D, title I of the Act in the
following guidance documents: (1) ``State Implementation Plans; General
Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990'' (``General Preamble''); \12\ (2) ``State
Implementation Plans; General Preamble for the Implementation of Title
I of the Clean Air Act Amendments of 1990; Supplemental'' (``General
Preamble Supplement''); \13\ and (3) ``State Implementation Plans for
Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-
10 Nonattainment Areas Generally; Addendum to the General Preamble for
the Implementation of Title I of the Clean Air Act Amendments of 1990''
(``General Preamble Addendum'').\14\ More recently, in an August 24,
2016 final rule entitled, ``Fine Particulate Matter National Ambient
Air Quality Standards: State Implementation Plan Requirements''
(``PM2.5 SIP Requirements Rule''), the EPA established
regulatory requirements and provided further interpretive guidance on
the statutory SIP requirements that apply to areas designated
nonattainment for all PM2.5 NAAQS.\15\ We discuss these
regulatory requirements and interpretations of the Act as appropriate
in our evaluation of the State's submissions below.
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\12\ 57 FR 13498 (April 16, 1992).
\13\ 57 FR 18070 (April 28, 1992).
\14\ 59 FR 41998 (August 16, 1994).
\15\ 81 FR 58010 (August 24, 2016).
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B. December 29, 2021 Proposed Rule
In our 2021 Proposed Rule, the EPA proposed to approve the SJV
PM2.5 Plan's: (1) emissions inventory for the 2013 base
year; (2) precursor demonstrations that emissions of ammonia, sulfur
oxides (SOX), and volatile organic compounds (VOC) do not
significantly contribute to exceedances of the 2012 annual
PM2.5 NAAQS in the SJV; (3) BACM demonstration for emission
sources of direct PM2.5 and nitrogen oxides
(NOX); (4) attainment demonstration based on air quality
modeling \16\ and emissions reductions related to aggregate
commitments; (5) RFP demonstration; (6) quantitative milestones; and
(7) motor vehicle emission budgets. We briefly summarize several
aspects of those proposed approvals in the applicable sub-sections of
section II of this proposed rule.
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\16\ We described 2018 PM2.5 Plan's air quality
modeling and our evaluation thereof in section IV.C of the 2021
Proposed Rule.
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We also proposed to disapprove the Plan's contingency measures and
noted the requirements for nonattainment NSR and the State's separate
submission for the nonattainment NSR requirements. However, as we are
not re-proposing any action on contingency measures nor nonattainment
NSR in this proposed rule, we do not summarize those proposals
herein.\17\ In addition, we are not re-proposing any action on the
Plan's precursor demonstrations for SOX and VOC in this
proposed rule; our 2021 Proposed Rule to approve the 2018
PM2.5 Plan's demonstrations that emissions of SOX
and VOC do not significantly contribute to exceedances of the 2012
annual PM2.5 NAAQS in the SJV remains unchanged.
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\17\ Regarding nonattainment NSR, please see the EPA's separate
rulemaking on the State's November 20, 2019 SIP submission of
amendments to SJVUAPCD Rule 2201 (``New and Modified Stationary
Source Review''). 87 FR 45730 (July 29, 2022) (proposed limited
approval and limited disapproval of the Rule 2201 amendments).
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Finally, we are not re-proposing any action in this proposed rule
on the Plan's base year emissions inventory; our 2021 Proposed Rule to
approve the 2018 PM2.5 Plan's base year emissions inventory
remains unchanged. Nevertheless, we briefly summarize our prior
proposal \18\ given the role that base year emissions inventories play
in developing a plan's control strategy and attainment and RFP
demonstrations.
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\18\ See section IV.A of the EPA's 2021 Proposed Rule.
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The 2018 PM2.5 Plan includes summaries of the planning
emissions inventories for direct PM2.5 and all
PM2.5 precursors (NOX, SOX,\19\
VOC,\20\ and ammonia) and related documentation. The Plan contains
annual average daily emission inventories for 2013 through 2028
projected from the 2012 actual emissions inventory,\21\ including the
2013 base year, the 2019 and 2022 RFP milestone years, the 2025 Serious
area attainment year, and a 2028 post-attainment RFP year. The EPA
proposed to approve the 2013 base year emissions inventory in the 2018
PM2.5 Plan as meeting the requirements of CAA section
172(c)(3) and 40 CFR 51.1008. We also proposed to find that the future
year baseline inventories in the 2018 PM2.5 Plan satisfy the
requirements of 40 CFR 51.1008(b)(2) and 51.1012(a)(2) and provide an
adequate basis for the control measure, attainment, and RFP
demonstrations for the 2012 annual PM2.5 NAAQS in the 2018
PM2.5 Plan.
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\19\ The SJV PM2.5 Plan generally uses ``sulfur
oxides'' or ``SOX'' in reference to SO2 as a
precursor to the formation of PM2.5. We use
SOX and SO2 interchangeably throughout this
notice.
\20\ The SJV PM2.5 Plan generally uses ``reactive
organic gasses'' or ``ROG'' in reference to VOC as a precursor to
the formation of PM2.5. We use ROG and VOC
interchangeably throughout this notice.
\21\ 2018 PM2.5 Plan, App. B, B-18.
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C. Adverse Comments Submitted January 28, 2022
The EPA received adverse comments on our 2021 Proposed Rule from a
coalition of 13 environmental, public health, and community
organizations (collectively referred to herein as ``Public
Justice'').\22\ We are not responding to these comments (in the sense
of a final rulemaking action) in this proposed rule, but the Agency has
taken them into account with respect to the Serious area plan elements
discussed in this proposed rule.
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\22\ Comment letter dated and received January 28, 2022, from
Brent Newell, Public Justice, et al., to Rory Mays, EPA, including
Exhibits 1 through 47. We note, however, that there is no Exhibit
23; so, there are 46 exhibits in total. Email dated February 1,
2022, from Brent Newell, Public Justice, to Rory Mays, EPA Region
IX. The 13 environmental, public health, and community organizations
are Public Justice, Central Valley Environmental Justice Network,
Association of Irritated Residents, Central Valley Air Quality
Coalition, Leadership Counsel for Justice and Accountability, Valley
Improvement Projects, The LEAP Institute, Little Manila Rising,
Center for Race, Poverty, and the Environment, Central California
Asthma Collaborative, Animal Legal Defense Fund, National Parks
Conservation Association, and Food and Water Watch (collectively
``Public Justice'').
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Overall, the commenters argue that the EPA must disapprove the 2012
annual PM2.5 NAAQS portion of the SJV PM2.5 Plan
based on alleged nonattainment plan requirement deficiencies in the
submissions. We introduce these comments in this section of this
proposed rule and present more detailed summaries and discussion of the
comments in sections II.A (ammonia precursor demonstration), II.B.2
(BACM for ammonia emission sources), II.B.3 (BACM for building heating
emission sources), II.C (attainment demonstration), and IV (Title VI of
the Civil Rights Act).
Regarding CAA requirements for PM2.5, Public Justice
points to a history of failures to timely attain the 1997 annual
PM2.5 NAAQS in the SJV and states that ``[r]egulators point
to a host of excuses from weather, to international sources, to Federal
inaction, but repeatedly the State and Air District have refused to
adopt feasible controls or regulate politically powerful entities''
such as agricultural sources of air pollution.\23\ The commenters take
issue with the EPA's proposal to approve the plan for the stricter 2012
standard ``without performing its duty to hold [CARB] and the
[District] accountable to meet the
[[Page 60497]]
minimum requirements Congress imposed to protect human health.'' \24\
The commenters assert that the EPA relies on flawed, outdated
information, ignores feasible controls, refuses to require regulation
of ammonia, accepts aggregate commitments in lieu of other control
strategies, and fails to address pollution sources in disadvantaged
communities in the SJV.\25\ With respect to specific CAA requirements,
the commenters argue that the EPA must disapprove the Plan's emissions
inventory, ammonia precursor demonstration, BACM demonstration, and
aggregate commitments.
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\23\ Public Justice Comment Letter, 2.
\24\ Id.
\25\ Id. at 3.
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Regarding Title VI of the Civil Rights Act, the commenters argue
that California must provide necessary assurances that the SIP complies
with Title VI of the Civil Rights Act, pursuant to CAA section
110(a)(2)(E), and failed to do so.\26\ The commenters state that
``PM2.5 pollution has a disparate impact on the basis of
race in the San Joaquin Valley'' and assert that the Plan fails to meet
CAA requirements and ``deliberately ignores obvious sources and control
options and inflicts disparate impacts on Black, Latino, Indigenous,
and people of color'' in the SJV. Therefore, the commenters advocate
that the EPA must disapprove the 2012 annual PM2.5 portion
of the SJV PM2.5 Plan.\27\ We address the commenters' Title
VI comments in section IV of this proposed rule.
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\26\ Id. at 10-14.
\27\ Id. at 1 and 21.
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The EPA is now proposing to disapprove the Plan with respect to
certain CAA requirements (BACM/BACT for ammonia emission sources, BACM/
BACT for building heating emission sources, aggregate commitments,
attainment demonstration, RFP demonstration, quantitative milestones,
and motor vehicle emission budgets). However, we are not in this
proposal comprehensively addressing all issues raised in the Public
Justice comment letter.\28\
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\28\ Additional source categories named by Public Justice
include, for example, residential wood burning, open burning,
conservation management practices at farming operations, soil
NOX emissions, stationary agricultural internal
combustion engines, and cleaner mobile agricultural equipment
engines. Public Justice Comment Letter, 18-20.
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D. Ninth Circuit Decision on Related SJV PM2.5 Plan
In a final rule published July 22, 2020, the EPA finalized approval
of the portions of the SJV PM2.5 Plan \29\ that addressed
the 2006 24-hour PM2.5 NAAQS (except for contingency
measures, which the EPA acted on in a subsequent action).\30\ On
September 17, 2020, a group of five environmental, public health, and
community groups (collectively referred to herein as ``Medical
Advocates'') petitioned the Ninth Circuit Court of Appeals (``Ninth
Circuit'' or ``Court'') for review of the EPA's July 22, 2020 final
rule.\31\ On April 13, 2022, the Ninth Circuit issued a Memorandum
opinion that granted in part and denied in part the petition
(``Memorandum Opinion'').\32\
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\29\ 85 FR 44192.
\30\ 86 FR 67343 (disapproving contingency measures for the 2006
24-hour PM2.5 NAAQS).
\31\ Medical Advocates for Healthy Air v. EPA, Case No. 20-
72780, Dkt. #1 (9th Cir., September 17, 2020). The five
environmental, public health, and community organizations, in order
of appearance in the petition, are Medical Advocates for Healthy
Air, National Parks Conservation Association, Association of
Irritated Residents, and Sierra Club (collectively ``Medical
Advocates'').
\32\ Medical Advocates for Healthy Air v. EPA, Case No. 20-
72780, Dkt. #58-1 (9th Cir., April 13, 2022).
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The Ninth Circuit denied the petitioners' challenge with respect to
the EPA's approval of enforceable commitments in general and the EPA's
approval of the Plan's demonstration of BACM, BACT, and most stringent
measures (MSM) for emission sources of direct PM2.5 and
NOX for purposes of the 2006 24-hour PM2.5 NAAQS.
Significantly, however, the Ninth Circuit also denied in part and
granted in part the petitioners' challenge with respect to the EPA's
approval of the specific enforceable commitments employed as part of
the SJV PM2.5 Plan's control strategy to attain the 2006 24-
hour PM2.5 NAAQS in the SJV by December 31, 2024. The EPA
evaluates enforceable commitments based on three factors: (1) the
commitment represents a limited portion of the required emission
reductions, (2) the State is capable of fulfilling its commitment, and
(3) the commitment is for a reasonable and appropriate timeframe. The
Ninth Circuit denied the petitioners' challenge with respect to the
first and third factors but granted the petitioners' challenge with
respect to the second factor.
The Ninth Circuit found that the EPA had misapplied the second
factor concerning the State's ability to fulfill the aggregate
commitments. The Court reasoned that EPA ``fail[ed] to provide evidence
or a reasoned explanation for its conclusion that California will be
able to fulfill its commitment'' in the face of a potential multi-
billion dollar funding shortfall for incentive-based control measure
commitments, ``which could result in emission reduction shortfalls of
approximately 7% of the total NOX reductions and 8% of the
total PM2.5 reductions necessary for attainment.'' \33\ The
Court also rejected the EPA's arguments that: (1) the funding shortfall
may be smaller than projected, (2) emission reductions may be less
expensive than the strategy predicts, (3) certain yet-to-be-quantified
sources of reductions in the Plan may make up for shortfalls, and (4)
California and the District may identify other measures to fulfill
their commitments. Instead, the Court decided that, ``[b]ecause these
speculative assertions are unsupported by the evidence, they fail to
ensure that California and the District have a plausible strategy for
achieving this portion of the attainment strategy, and therefore do not
collectively satisfy the second factor of the EPA's three-factor
test.'' \34\ The Court concluded that the EPA's analysis with respect
to the second factor for evaluating enforceable commitments was
arbitrary and capricious, vacated the final rule with respect to this
factor, and remanded the matter to the EPA for further consideration of
the second factor.\35\
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\33\ Id. at 6.
\34\ Id. at 7.
\35\ Id. at 10.
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The EPA is currently considering how to address the Court's vacatur
and remand with respect to the 2006 24-hour PM2.5 NAAQS
portion of the SJV PM2.5 Plan and is not proposing any
action with respect to those standards in this proposed rule. However,
the Ninth Circuit's decision is very relevant to this proposed rule
because the State relied on a common control strategy, including the
same enforceable commitments (i.e., the same set of control measure
commitments and aggregate tonnage commitments) for purposes of both the
2006 24-hour PM2.5 NAAQS Serious area plan and the 2012
annual PM2.5 NAAQS Serious area plan. The EPA acknowledges
the deficiency in the factual support for the aggregate commitments
identified by the Ninth Circuit and that this remains the case. If the
EPA cannot approve the aggregate commitments, then this has a direct
bearing on other elements of the State's Serious area SIP submissions
for the 2012 annual PM2.5 NAAQS. As discussed in section
II.C of this proposed rule, based on our reconsideration of the facts
concerning the enforceable commitments in the SJV PM2.5 Plan
with respect to the 2012 annual PM2.5 NAAQS in light of the
Ninth Circuit's decision, the EPA now proposes to disapprove the
State's enforceable commitments and attainment demonstration.
[[Page 60498]]
II. Reconsideration of the San Joaquin Valley Serious PM2.5 Plan
The EPA has reconsidered its 2021 Proposed Rule, based on adverse
comments on that prior proposal and based on a Ninth Circuit Court of
Appeals decision on a related SJV PM2.5 rulemaking. After
careful consideration of the issues raised by commenters and the court,
the EPA now proposes to disapprove the State's plan for the 2012 annual
PM2.5 NAAQS in the SJV for certain Serious area planning
requirements, including: (1) the Plan's precursor demonstration for
ammonia; (2) BACM for ammonia emission sources and BACM for building
heating emission sources; (3) the modeled attainment demonstration; (4)
the RFP demonstration; (5) quantitative milestones; and (6) motor
vehicle emission budgets.
In sections II.A through II.C of this proposed rule, pertaining to
the Plan's precursor demonstration for ammonia as a PM2.5
precursor; BACM/BACT analysis, and modeled attainment demonstration
(including reliance on enforceable commitments), we present a brief
summary of the 2021 Proposed Rule, a summary of the adverse comments
and Ninth Circuit order, as appropriate, and our reconsidered proposal.
In sections II.D and II.E, pertaining to the Plan's RFP demonstration,
quantitative milestones, and motor vehicle emission budgets, we present
a brief summary of the 2021 Proposed Rule and our reconsidered
proposal.\36\ We also note that sections II.A (ammonia precursor
demonstration) and II.B.1 (BACM for ammonia emission sources) are
inter-related in that potential control measures for ammonia emission
sources play a role in both: (1) selecting a reasonable percent
emission reduction to evaluate modeled ambient PM2.5
responses to ammonia emission reductions; and (2) assessing the
availability and application of BACM to such sources in the SJV.
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\36\ The Plan's RFP demonstration, quantitative milestones, and
motor vehicle emission budgets were not the direct subject of
adverse comments nor the Ninth Circuit decision. However, they are
based on the Plan's control strategy to attain the 2012 annual
PM2.5 NAAQS and, thus, the flaws in the Plan's control
strategy affect these additional required elements.
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A. Ammonia Precursor Demonstration
1. Summary of 2021 Proposed Rule
In our 2021 Proposed Rule, the EPA described the requirements for
PM2.5 precursor pollutants, summarized the State's
submissions in the SJV PM2.5 Plan, and presented our
evaluation thereof.\37\ We briefly summarize those here with respect to
the Plan's demonstration for ammonia as a precursor to PM2.5
for purposes of the 2012 annual PM2.5 NAAQS in the SJV. For
a comprehensive discussion of Federal requirements for PM2.5
precursors and a summary of California's submission, please refer to
the following headings in Section IV.B of the 2021 Proposed Rule: (1)
Requirements for Control of PM2.5 Precursors; and (2)
Summary of State's Submission.
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\37\ 86 FR 74310, 74317-74321.
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Regarding CAA requirements applicable to PM2.5
precursors, we explained that the attainment plan requirements of Title
I, subpart 4 apply to emissions of direct PM2.5 and
emissions of NOX, ammonia, SO2, and VOC as
PM2.5 precursors from all types of stationary, area, and
mobile sources, except as otherwise provided in the Act. We further
described how the EPA interprets section 189(e) concerning regulation
of precursors from major stationary sources to authorize it to
determine, under appropriate circumstances, that regulation of specific
PM2.5 precursors from other sources in a given nonattainment
area is not necessary.
As explained in the PM2.5 SIP Requirements Rule, a State
may elect to submit to the EPA a ``comprehensive precursor
demonstration'' for a specific nonattainment area to show that
emissions of a particular precursor from existing sources located in
the nonattainment area do not contribute significantly to
PM2.5 levels that exceed the standard in the area.\38\ The
contribution analysis may consider the sensitivity of PM2.5
to decreases in emissions of the precursor, in addition to the
contribution to ambient concentrations of PM2.5.\39\ If the
EPA determines that the contribution of the precursor to
PM2.5 levels in the area is not significant and approves the
demonstration, then the State is not required to control emissions of
the relevant precursor in the attainment plan.\40\
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\38\ 40 CFR 51.1006(a)(1).
\39\ 40 CFR 51.1006(a)(1)(ii).
\40\ 40 CFR 51.1006(a)(1)(iii).
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The EPA issued the ``PM2.5 Precursor Demonstration
Guidance'' (``PM2.5 Precursor Guidance''),\41\ to provide
recommendations to states for analyzing nonattainment area
PM2.5 and PM2.5 precursor emissions and
developing such optional precursor demonstrations, consistent with the
PM2.5 SIP Requirements Rule. The guidance also describes how
the State may use a sensitivity-based test, in which the modeled
sensitivity or response of ambient PM2.5 concentrations to
changes in emissions of the precursor is estimated and then compared to
a contribution threshold. In addition to comparing the concentration or
modeled response to the threshold, the State can consider other
information in assessing whether the precursor significantly
contributes. The EPA's recommended annual average contribution
threshold for the 2012 annual PM2.5 NAAQS is 0.2 [micro]g/
m\3\.\42\ In other words, if the estimated contribution of a precursor
at monitors is below this threshold, the EPA considers this evidence
that the precursor does not contribute significantly to levels above
the PM2.5 NAAQS in the area in question; above this
threshold, the EPA considers this evidence that the precursor does
contribute significantly. The EPA considers this evidence in
conjunction with additional information that the State may provide, and
determines whether or not the precursor contributes significantly, and
so whether the State must evaluate and implement controls of the
precursor emissions to the appropriate level (e.g., BACM).
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\41\ ``PM2.5 Precursor Demonstration Guidance,'' EPA-
454/R-19-004, May 2019, including Memo 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.
\42\ PM2.5 Precursor Guidance, 17.
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The State presents its precursor demonstration primarily in
Appendix G of the 2018 PM2.5 Plan, with additional
clarifying information in a series of emails available in the docket
for this proposed rule. The State estimates that anthropogenic
emissions of NOX, ammonia, SOX, and VOC will
decrease by 64 percent (%), 1%, 6%, and 9%, respectively, between 2013
and 2025 based on its projected emissions accounting for existing and
additional control measures in the Serious area plan.\43\ Through a
concentration-based analysis, CARB found that ammonium nitrate
constituted 5.2 [micro]g/m\3\ of the annual average PM2.5
concentrations measured at the Bakersfield California Avenue monitor in
2015, exceeding the recommended threshold,\44\ and proceeded to conduct
a sensitivity-based analysis.
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\43\ 2018 PM2.5 Plan, Ch. 7, 7-5 and Table 7-2.
\44\ 2018 PM2.5 Plan, App. G, 3.
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For analytical purposes in accordance with the EPA's guidance, the
State then modeled the sensitivity of ambient PM2.5 to
hypothetical 30% and 70% reductions in anthropogenic emissions of
ammonia in SJV for modeled years
[[Page 60499]]
2013, 2020, and 2024. The results for 2024 are a proxy for the Plan's
modeled attainment year of 2025 for the 2012 annual PM2.5
NAAQS. For the 30% reduction results for 2024, upon which the State
primarily relied, 2 out of 15 monitoring sites in SJV (Madera and
Hanford) had modeled responses to ammonia reductions that were above
the threshold. The ambient PM2.5 response declines
substantially from 2020 to 2024, with the decline being generally
larger for the sites with the highest projected PM2.5
levels. The State supplements the sensitivity analysis for ammonia with
consideration of additional information such as emission trends, the
appropriateness of future year versus base year sensitivity, available
emission controls, and the severity of nonattainment.\45\
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\45\ Id. at App. G, 5.
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The State's precursor demonstration for ammonia also presents a
review of District agricultural rules that control VOC emissions, but
also provide ammonia reduction co-benefits. The State concludes that a
30% reduction is a reasonable upper bound on the potential ammonia
reductions to model. Finally, the State's precursor demonstration
presents extensive support for the State's conclusion that there is an
ambient excess of ammonia relative to nitrate, i.e., that particulate
ammonium nitrate formation in SJV is NOX-limited, and will
become increasingly NOX-limited as NOX reductions
increase into the future from the State's motor vehicle control program
and other measures the State intends to undertake in the Serious area
plan. Based on the forgoing considerations, the State concludes that
ammonia emissions do not contribute significantly to ambient
PM2.5 levels that exceed the 2012 annual PM2.5
NAAQS in the SJV.
The EPA presented its initial evaluation of the State's ammonia
precursor demonstration in section IV.B.3.a of the 2021 Proposed Rule,
with more detailed summaries and evaluation in two EPA technical
support documents (TSDs): ``Technical Support Document, EPA Evaluation
of PM2.5 Precursor Demonstration, San Joaquin Valley
PM2.5 Plan for the 2006 PM2.5 NAAQS,'' February
2020 (``EPA's PM2.5 Precursor TSD''), and ``Technical
Support Document, EPA Evaluation of Ammonia Precursor Demonstration,
San Joaquin Valley Moderate Area PM2.5 Plan for the 2012
PM2.5 NAAQS,'' August 2021 (``EPA's Ammonia Precursor
TSD'').
We noted that the EPA's PM2.5 Precursor Guidance
provides for consideration of future year sensitivity and that
consideration of additional information beyond the concentration-based
and sensitivity-based analyses may be appropriate in assessing a
precursor's significance. We summarized the State's assertions that 30%
is a reasonable upper bound for potential ammonia emission reductions
based on research cited in Appendix C of the 2018 PM2.5 Plan
concerning ammonia emissions and potential control options for
agricultural sources.\46\ However, we did not elaborate in the 2021
Proposed Rule as to why we proposed to agree that 30% was a reasonable
upper bound.
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\46\ EPA's PM2.5 Precursor TSD, 13.
---------------------------------------------------------------------------
We stated that ambient PM2.5 responses to ammonia
emission reductions decline over time, and in concert with the large
projected NOX emission reductions, with the largest declines
occurring at sites with highest projected PM2.5 levels. For
the two sites (Madera and Hanford) where the State's modeled response
in 2024 to a 30% ammonia emission reduction exceeded the recommended
0.2 [micro]g/m\3\ threshold, we evaluated additional information and,
based on that information, gave the modeled projected responses above
the threshold at these sites less weight.
We also considered studies cited by CARB on the 2013 DISCOVER-AQ
aircraft measurements and 2017 satellite measurements, both of which
suggest that ammonia concentrations are underestimated in the SJV. We
noted that if modeled ammonia concentrations were closer to
observations, then the modeled response to ammonia precursor reductions
would be lower than shown in the 2018 PM2.5 Plan's precursor
demonstration. Similarly, an increase in modeled ambient ammonia
concentrations would also make the model response more consistent with
the evidence from the multiple ambient measurement studies that suggest
a very low ambient sensitivity to ammonia, based on measured excess
ammonia relative to NOX, the abundance of particulate
nitrate relative to gaseous NOX, and the large abundance of
ammonia relative to nitric acid. These ambient measurement studies all
conclude that there is a large amount of ammonia left over after
reacting with NOX, so that ammonia emission reductions would
be expected mainly to reduce the amount of ammonia excess, rather than
to reduce the particulate ammonium nitrate, and thus provided strong
evidence independent of the modeling that ambient PM2.5
levels would respond comparatively weakly to ammonia emissions
reductions.
Regarding changes in the effect of ammonia emission reductions over
time as other pollutant levels change, we stated it was appropriate to
consider changes in atmospheric chemistry that may occur between the
base or current year and the attainment year because the changes may
ultimately affect the nonattainment area's progress toward expeditious
attainment. We stated that the 2024 model results would in this case
better represent the point in time at which it is appropriate to
evaluate what potential ammonia controls could achieve, because of the
steep decline in NOX emissions the State projects will occur
by 2024 and 2025 as a result of existing or intended control measures.
We also noted that the projected annual average PM2.5
concentration of 12.0 [micro]g/m\3\, occurring at the Bakersfield-Planz
monitoring site in 2025, would be reduced by 0.12 [micro]g/m\3\, which
would not be considered significant (it is below the EPA's recommended
threshold of 0.2 [micro]g/m\3\).
In sum, we concluded that the State had evaluated the sensitivity
of ambient PM2.5 levels to potential reductions in ammonia
emissions using appropriate modeling techniques; the modeled response
to ammonia reductions is likely lower than reported; and the State's
choice of 2024 and 2025 as the reference points for purposes of
evaluating the sensitivity of ambient PM2.5 levels to
ammonia emission reductions was well-supported. Based on all of these
considerations, the EPA previously proposed to approve the State's
demonstration that ammonia emissions do not contribute significantly to
ambient PM2.5 levels that exceed the 2012 annual
PM2.5 NAAQS in the SJV.
2. Summary of Adverse Comments
Public Justice states that the ``EPA must disapprove the ammonia
precursor demonstration'' and that ``CARB's tortured analysis (and
EPA's proposed acceptance of it)'' is arbitrary and capricious. The
commenter makes several assertions in support of this comment.\47\
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\47\ Public Justice Comment Letter, 16-18.
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First, Public Justice notes that CARB's analysis concluded that
ammonia contributes 5.2 [micro]g/m\3\ to annual average
PM2.5 concentrations, and that this is well above the EPA's
recommended annual average contribution threshold of 0.2 [micro]g/
m\3\.\48\ The commenters also
[[Page 60500]]
took issue with CARB and the EPA's arguments that such results
overstate the role of ammonia because NOX emissions decline
over time, and the EPA's decision to look at the results of sensitivity
modeling for the response of ambient PM2.5 levels to
potential ammonia emission reductions in the future year 2024. The
commenters assert that this analytical approach of considering the
projected sensitivity to ammonia reductions in the future year
``ignores the statutory imperative to demonstrate attainment as
expeditiously as practicable,'' per CAA section 172(a)(2)(A), and that,
even after evaluating the impact ``for the most favorable date''
(2024), CARB still found significant contribution for ammonia above the
EPA's recommended threshold.
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\48\ The commenters note that 38% of the annual average ambient
PM2.5 in Bakersfield is ammonium nitrate. Public Justice
Comment Letter, 6. See also, 2018 PM2.5 Plan, Ch. 3,
Figure 3-2 (``Bakersfield PM2.5 Speciation (Average 2011
to 2013)'').
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Second, Public Justice questioned CARB's reliance and the EPA's
proposed acceptance of a sensitivity analysis that assumed only a 30%
modeled reduction of ammonia emissions. Public Justice points out that
the EPA's guidance for precursor demonstrations suggests that states
should evaluate the effect of reducing emissions between 30% and 70%,
and states that ``CARB argues, and EPA agrees, that only the minimal 30
percent control level is reasonable'' despite large ammonia sources
(e.g., ``industrial dairy and poultry operations'') never having been
regulated in the SJV and the prospect for relatively easier and cheaper
emission reductions than those for NOX.\49\ The commenters
argue that ``[t]he analysis of potential controls is particular[ly]
weak and ignores the wealth of literature demonstrating that strategies
for reducing ammonia emissions from agriculture . . . are among the
most effective for reducing PM concentrations,'' and cite several
studies in support of this argument. The commenters further state that
reducing ammonia emissions may be achieved through ``strategies such as
improving livestock feed to reduce excreted nutrients, altering manure
storage and handling practices to prevent [ammonia] emissions, and
improving synthetic fertilizer use efficiency,'' again citing numerous
studies.\50\ The commenters state that agriculture is responsible for
over 80% of ammonia emissions, and that confined animal facilities
(CAFs) and fertilizer application account for 57% and 36%,
respectively.\51\ Moreover, the commenters assert that ``[n]o real
analysis of control potential is offered'' in the State's precursor
demonstration.
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\49\ Public Justice Comment Letter, 2, 5, and 16-17, and
Exhibits 31 through 34.
\50\ Public Justice Comment Letter, 16-17, Exhibits 35 through
40 and three additional studies: N. Cole, et al., ``Influence of
dietary crude protein concentration and source on potential ammonia
emissions from beef cattle manure,'' J. Anim. Sci. 83, 722, 2005; N.
Cole, P. Defoor, M. Galyean, G. Duff, J. Gleghorn, ``Effects of
phase-feeding of crude protein on performance, carcass
characteristics, serum urea nitrogen concentrations, and manure
nitrogen of finishing beef steers,'' J. Anim. Sci. 12, 3421-3432,
2006; and R. Todd, N. Cole, R. Clark, ``Reducing crude protein in
beef cattle diet reduces ammonia emissions from artificial feedyard
surfaces,'' J. Environ. Qual. 35, 404-411, 2006.
\51\ Public Justice Comment Letter, 5-6, 16, citing See EPA
Region IX, ``Technical Support Document, EPA Evaluation of
PM2.5 Precursor Demonstration, San Joaquin Valley
PM2.5 Plan for the 2006 PM2.5 NAAQS.'' We note
that our TSD in turn cited to State data sources, including the 2018
PM2.5 Plan, App. G, Figure 3.
---------------------------------------------------------------------------
Third, with respect to the State and the EPA's evaluation of
modeled ambient PM2.5 responses to ammonia emission
reductions in 2024, Public Justice states that, in the low (30%)
emission scenario, 2 of 15 monitoring sites have responses over the 0.2
[micro]g/m\3\ recommended threshold and that the EPA argues ``with
extremely biased evidence, that the results at one of the two monitors
could be ignored and that ammonia emissions area likely
underestimated.'' The commenters assert that ``EPA points to evidence
that `the State did not discuss' to discount the results'' for the
Madera monitor, and that the EPA ``offers no excuse for discrediting
the results at the other monitor.''
Fourth, the commenters claim that the EPA's evaluation of the
precursor demonstration looked at supplemental ammonia emission studies
but ignored supplemental studies showing that NOX emissions
from soil (``soil NOX'') may be significantly
underestimated. Public Justice states that the State and the EPA
``assert that NOX emissions will be significantly reduced by
2024 even though the Plan currently does not explain how those
NOX reductions will occur.'' The commenters state that such
approach is ``a one-sided attempt to explain away modeled results that
ammonia contributes significantly to PM2.5'' in the SJV and
cannot overcome the Act's presumption that precursors must be
controlled.
Finally, beyond the assertion that the State's precursor
demonstration with respect to ammonia, and the EPA's proposed approval
of it are incorrect, the commenters also argue that the State's failure
to address ammonia as a precursor to PM2.5 has disparate
impacts on certain communities within SJV and ``avoids difficult
political fights by sacrificing communities of color.'' Finally, the
commenters refer to a 2021 research study that estimates that 1,690
people in California die annually due to agricultural ammonia
emissions.\52\
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\52\ Public Justice Comment Letter, 18. See Domingo, N.G.G.,
Balasubramanian, S., Thakrar, S.K., Clark, M.A., Adams, P.J.,
Marshall, J.D., Muller, N.Z., Pandis, S.N., Polasky, S., Robinson,
A.L., Tessum, C.W., Tilman, D., Tschofen, P., & Hill, J.D., ``Air
quality-related health damages of food,'' Proceedings of the
National Academy of Sciences (Vol. 118, Issue 20, p. e2013637118),
2021, available at https://doi.org/10.1073/pnas.2013637118, attached
as Exhibit 35. See Supplementary Information for ``Air quality-
related health damages of food,'' Table S2 (``Annual emissions and
mortality caused by agricultural production in the 10 states where
emissions of (A) primary PM2.5, (B) NH3, (C)
NOX, (D) SO2, and (E) NMVOCs lead to the
highest total mortality'').
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3. The EPA's Reconsidered Proposal
The EPA agrees with certain points made by the commenters with
respect to ammonia and disagrees with others. Overall, based on the
adverse comments from Public Justice and a re-evaluation of the
information provided by the State, we now conclude that the weight of
evidence is insufficient to establish that ammonia does not contribute
significantly to PM2.5 levels above the NAAQS in the SJV.
The EPA's further evaluation indicates that it is appropriate to retain
the statutory presumption that ammonia must be regulated as a precursor
for the 2012 annual PM2.5 NAAQS in the SJV. Accordingly, if
the EPA finalizes disapproval of the State's ammonia precursor
demonstration, ammonia would remain a plan precursor, and the SJV would
remain subject to the requirements to identify and implement BACM,
BACT, and additional feasible measures on sources of ammonia emissions.
We first address the portion of the comment related to the
sensitivity of the modeled PM2.5 response to reductions in
ammonia emissions and then turn to the portion of the comment
addressing the amount of ammonia reductions that may be available.
a. Comments Related to Sensitivity Modeling Results
The measured ammonium nitrate portion of the annual average
PM2.5 concentration in Bakersfield in 2015 was 5.2 [micro]g/
m\3\.\53\ This is well above the EPA's recommended threshold in the
PM2.5 Precursor Guidance. However, the PM2.5 SIP
Requirements Rule, as interpreted by that guidance, provides the option
for a State to conduct an analysis of the sensitivity of ambient
PM2.5 concentrations to emission reductions of a precursor
pollutant to evaluate the significance of that precursor,\54\ as the
State did for the 2012
[[Page 60501]]
annual PM2.5 NAAQS in the SJV. Thus, the concentration-based
contribution analysis alone (i.e., the 5.2 [micro]g/m\3\) is not
necessarily determinative of a precursor's significance.
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\53\ 86 FR 74310, 74318 and 2018 PM2.5 Plan, App. G,
3.
\54\ 40 CFR 51.1006(a)(1)(ii).
---------------------------------------------------------------------------
The commenters stated that reliance on a sensitivity-based test for
2024 ignores the statutory imperative for expeditious attainment. But,
as noted in the preamble for the PM2.5 SIP Requirements Rule
in explaining the rationale for a sensitivity-based test, ``if
conditions in a particular area are such that control of sources of one
or more precursors does not reduce PM2.5 concentrations in
the area, then those controls will not help the area attain
(expeditiously or otherwise).'' \55\ Thus, if a precursor demonstration
were to show that control of a particular precursor is not effective
for reaching attainment, then the absence of such control would not
violate the requirement for expeditious attainment.
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\55\ 81 FR 58010, 58025.
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As commenters noted, the State relied on its sensitivity-based
contribution analysis for a future year (2024) to evaluate the
significance of ammonia as a precursor to ambient PM2.5
concentrations in the San Joaquin Valley. In our 2021 Proposed Rule, we
discussed the State's selection of 2024 as an acceptable analysis year,
given the projected steep decline in ambient PM2.5
sensitivity to ammonia reductions over time as a result of projected
changes in emissions (i.e., large NOX emission reductions as
contemplated in the Plan, through existing measures and aggregate
commitments), consistent with the facts and circumstances recommended
for consideration in the EPA's PM2.5 Precursor Guidance.\56\
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\56\ 86 FR 74310, 74320-74321 and PM2.5 Precursor
Guidance, 35.
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The PM2.5 Precursor Guidance provides for consideration
of sensitivity in an appropriate future year.\57\ Based on the State's
control strategy, including baseline emission reduction measures and
its control measure and aggregate tonnage commitments, the State
estimated it would achieve over 200 tpd NOX reductions by
2024, representing over 60% of the 2013 base year emissions inventory
for NOX.\58\ Existing baseline measures already in the SIP
are projected by the State to reduce annual average NOX
emissions in the SJV by 173.5 tpd, which is 83.7% of the 207.38 tpd of
NOX reductions modeled to attain the 2012 annual
PM2.5 NAAQS. Over 90% of the baseline NOX
reductions between 2013 and 2025 are due to the existing mobile source
control program.\59\ These reductions will occur regardless of any EPA
action on the precursor demonstration or the 2018 PM2.5 Plan
as a whole. Similarly, additional measures adopted by the State through
the end of 2021 further reduce NOX emissions. Given the
large NOX emission reductions projected to occur by 2024 and
2025, the EPA has concluded that that the 2024 sensitivity model
results better represent the atmospheric chemistry around the
attainment date and in subsequent years than sensitivity modeling
results from 2013 and even 2020.\60\ Due to continued existing and
anticipated NOX reductions, the apparent PM2.5
benefit of ammonia reductions in earlier years declines with time and
does not reflect the ultimate, lower, benefit of such controls near the
attainment year and later.
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\57\ PM2.5 Precursor Guidance, 35.
\58\ 86 FR 74310, 74327, Table 4.
\59\ 2018 PM2.5 Plan, App. B, Table B-2.
\60\ We address the potential impact of ammonia emissions on the
requirement for expeditious attainment in our re-evaluation of the
attainment demonstration in section II.C.3, below.
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Thus, the EPA reasons that the Plan's baseline and additional
control measures will change (and have already changed) the atmospheric
chemistry conditions in the SJV, leading to ambient PM2.5
formation that is much less sensitive to ammonia emission reductions in
the attainment year. We maintain that the State's reliance on its
sensitivity-based contribution analysis for 2024 to evaluate the
significance of ammonia as a precursor is reasonable, well supported,
and consistent with the PM2.5 SIP Requirements Rule and EPA
guidance.
The commenter correctly states that 2 of 15 sites in the 2024 model
scenario based on a 30% reduction in ammonia emission were modeled to
have an ambient PM2.5 response greater than the EPA's
recommended contribution threshold of 0.2 [micro]g/m\3\. However, we
disagree with the commenter's characterization that our further review
of the sensitivity of the Madera and Hanford sites to ammonia emission
reductions was argued ``with extremely biased evidence.'' \61\
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\61\ Public Justice Comment Letter, 18.
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For the Madera monitor (estimated sensitivity of 0.21 [micro]g/m\3\
in 2024 to a 30% ammonia emission reduction), the commenter refers to
the EPA's statement that the 2018 PM2.5 Plan did not discuss
the evidence for the 2013 monitored concentrations at this site being
biased high (as a matter of the physical recordings of the monitor).
However, the EPA did reference the State's prior analysis of such
evidence, which we considered in our evaluation.\62\ Aside from
pointing out that this analysis was not included in the Plan itself,
the comment does not offer analysis to the contrary, and the EPA
continues to think that we reasonably weighed the technical information
before us and, given the role of the 2013 monitored data in the
sensitivity modeling conducted by the State, correctly concluded that
``if more typical Madera concentrations were used, it is likely that
the 2024 Madera response to ammonia reductions would be below the
contribution threshold'' and that the extra year of NOX
reductions from 2024 to 2025 would likely decrease the sensitivity
below the recommended 0.2 [micro]g/m\3\ threshold.
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\62\ 86 FR 74310, 74320, fn. 91, and fn. 92. This analysis
concluded that 2011-2013 Madera data did not fit the geographic
pattern historically seen in relation to other monitors but returned
to the historic pattern after corrections were made to the
monitoring instrument operating procedures. Concentrations were
estimated to be about 10% high during the period in question.
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We further disagree with the commenter's assertion that we offered
no reason for giving less weight to modeled sensitivity results for the
Hanford monitor (estimated sensitivity of 0.26 [micro]g/m\3\ in 2024 to
a 30% ammonia emission reduction). We stated that we gave both Madera
and Hanford modeled sensitivity lower weight in our overall assessment
of ammonia as a precursor. Specifically for Hanford, we described
evidence that the modeled sensitivity there was likely overestimated.
That evidence included an independent study using data from the 2013
DISCOVER-AQ campaign that ``found that the [CMAQ] model underestimated
ammonia at Hanford by a roughly a factor of four or five.'' \63\ In our
assessment, if the model's ammonia concentrations better matched the
observations then there would be more of an ammonia excess in the
model, and the modeled response to ammonia reductions would be lower.
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\63\ 86 FR 74310, 74320.
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More broadly, prior to publishing the 2021 Proposed Rule, the EPA
reviewed available research including from supplemental materials from
CARB, and found a consistent theme based on modeling analyses and
ambient measurement studies--that ``there is a large amount of ammonia
left over after reacting with NOX, so that ammonia emission
reductions would be expected mainly to reduce the amount of ammonia
excess, rather than to reduce the particulate ammonium nitrate.'' \64\
It is important to note that this ammonia excess is measured, and is
independent
[[Page 60502]]
of any assumptions about the size of the ammonia or NOX
emissions inventories, and also independent of any uncertainties in the
modeling exercise. The concerns raised by Public Justice about relative
levels of ammonia and NOX estimation are not sufficient to
cause the EPA to revise the conclusion that PM2.5 is likely
to have low sensitivity to ammonia reductions, which is supported by
the actual observed conditions. The ambient measurement evidence is
strong and leads the EPA to believe that the modeled response to
ammonia in the State's precursor demonstration may be overestimated.
Therefore, we maintain that the EPA may give lower weight to the
modeled sensitivities of ambient PM2.5 concentrations to
ammonia emission reductions at the Madera and Hanford sites.
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\64\ Id. See also, EPA's Ammonia Precursor TSD.
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The commenter states that the EPA's argument on the relative levels
of ammonia and NOX emissions looks at such ammonia studies
but ``ignores supplemental studies showing that . . . soil
NOX emissions [may be significantly underestimated].'' \65\
Unlike the general consensus in the ammonia studies described above,
with respect to the amount of NOX emitted by soil in the SJV
the EPA believes that there is conflicting research. A conclusion of
Almaraz et al. (2018) and Sha et al. (2021) cited by the commenters is
that soil NOX emissions are underestimated, and that they
comprise 30-40% of total NOX emission in California. While
higher levels of soil NOX (or NOX more generally)
would tend to increase the modeled sensitivity of ambient
PM2.5 to ammonia, we maintain that there is not a sufficient
basis to conclude that higher soil NOX emissions should be
used in the air quality modeling for the SJV.\66\
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\65\ Public Justice Comment Letter, 18. Public Justice cited
Almaraz et al. (2018), ``Agriculture is a major source of
NOX pollution in California,'' Science Advances, 4(1),
doi:10.1126/sciadv.aao3477, 2018, available at https://advances.sciencemag.org/content/4/1/eaao3477; and Sha et al. (2021),
``Impacts of soil NOX emission on O3 air
quality in rural California,'' Environmental Science & Technology,
55(10), 7113-7122, available at: doi:10.1021/acs.est.0c06834;
available at https://pubs.acs.org/doi/10.1021/acs.est.0c06834.
\66\ See also, EPA Region IX, ``Response to Comments Document
for the EPA's Final Action on the San Joaquin Valley Serious Area
Plan for the 2006 PM2.5 NAAQS,'' June 2020, 148 and 158.
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In contrast to the studies just cited, Guo et al. (2020) \67\ did
not find such a discrepancy in emissions estimates, concluding that
soil NOX is about 1% of anthropogenic NOX
emissions. The fraction of nitrogen applied as fertilizer released as
NOX to the atmosphere was estimated by Almaraz et al. to be
15%, while seven other studies reviewed by Guo et al. estimated it to
be 2% or less. Yet Almaraz et al., Sha et al., and Guo et al. all
reported high agreement between their modeled and observed soil
NOX emissions. The Almaraz et al. study acknowledged the
limited number of surface measurements that were available for purposes
of comparing the model results and the difficulty in comparing the
model results to the observations and noted the need for more field
measurements. Guo et al. stated that obtaining an emission factor
correlating NOX emissions to fertilizer application from the
data available in various studies (including Almaraz et al.) would be
``difficult or impossible'' due to the sparsity of data collected in
terms of sampling length, sampling frequency, and the episodic nature
of nitrogen gas emissions from soil.
---------------------------------------------------------------------------
\67\ Guo et al. (2020), ``Assessment of Nitrogen Oxide Emissions
and San Joaquin Valley PM2.5 Impacts From Soils in
California,'' Journal of Geophysical Research: Atmospheres, 125(24),
doi: 10.1029/2020JD033304; available at https://doi.org/10.1029/2020JD033304.
---------------------------------------------------------------------------
In light of the uncertainties and disagreements among studies, the
EPA does not believe that available research provides sufficient
certainty about the magnitude and proportion of soil NOX
emissions attributable to agricultural fertilizer application to
require substantial revisions in the NOX emissions inventory
nor the PM2.5 modeling at this time.
In addition, as just described, multiple studies of ambient
measurements show excess ammonia in the atmosphere, which is strong
evidence of low sensitivity to ammonia reduction that is independent of
the accuracy of estimates of precursor emissions from any source,
including soil NOX, and independent of any modeling. Thus,
we disagree that the EPA ``ignored'' the supplemental soil
NOX studies; we were aware of and considered them, but they
did not change our conclusion.
b. Comments Related to Scale of Potential Ammonia Emission Reductions
The 2018 PM2.5 Plan includes modeling of 30% and 70%
reductions in ammonia emissions and focuses on the results of the 30%
reduction based on the assertion that the area could not achieve more
than a 30% decrease in ammonia emissions. Public Justice questions the
basis for the assertion that no more than 30% reductions are available.
In this section, we examine, based on the submission, the
PM2.5 Precursor Guidance, and the Public Justice comment,
the ammonia reductions that may be available in the SJV. Specifically,
we explore the uncertainty with respect to both the current state of
ammonia emissions and controls in the SJV and available research
examining additional control options that may be available. We conclude
that, based on the information before us, the 2018 PM2.5
Plan does not provide sufficient support for the assertion that 30% is
a reasonable upper bound on available ammonia reductions in the SJV.
The District presented its analysis of ammonia control for the
primary ammonia source categories in the SJV in Appendix C, section
C.25 (``Ammonia in the San Joaquin Valley'') of the 2018
PM2.5 Plan. The EPA had reviewed this analysis for our
assessment in the 2021 Proposed Rule that 30% was, for analytical
purposes, a reasonable upper bound for ammonia emission reductions in
the SJV, and referred to prior EPA analysis for our action on the 2006
24-hour PM2.5 NAAQS portion of the 2018 PM2.5
Plan.\68\ In evaluating the Public Justice comments on the potential
control of ammonia, however, we have re-evaluated other portions of the
2018 PM2.5 Plan, including Appendix C, section C.25 and
Appendix G,\69\ and reviewed the studies cited by the commenters, as
well as others from the EPA's own literature search.
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\68\ 86 FR 74310, 74319. See also, 85 FR 17382, 17395 (March 27,
2020), and EPA's PM2.5 Precursor TSD, 13.
\69\ See, e.g., 2018 PM2.5 Plan, App. G, 13, where
CARB states that ``CARB staff, District staff, and the public
process have not identified specific controls that are
technologically and economically feasible to achieve reductions at
the low end of the recommended sensitivity range (i.e., 30 percent),
much less at the upper end of the range.''
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As noted in the EPA's PM2.5 Precursor Guidance,\70\ and
consistent with the PM2.5 SIP Requirements Rule (40 CFR
51.1010(a)(2)(ii), 51.1006(a)(1)(ii)), the EPA may require the State to
identify and evaluate potential control measures for a precursor to
determine the potential emissions reductions achievable, as a part of
the precursor analysis. The guidance states that this evaluation is
particularly important when the PM2.5 response to a 30%
reduction in precursor emissions is close to the contribution
threshold. In the case of a nonattainment area classified as Serious,
this analysis would include identification and evaluation of measures
that would constitute BACM/BACT level controls for such pollutant.\71\
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\70\ PM2.5 Precursor Guidance, 31.
\71\ The PM2.5 Precursor Guidance provides:
``[c]onsistent with the PM2.5 SIP Requirements Rule, the
EPA may in some cases require air agencies to evaluate available
emissions controls in support of a precursor demonstration that
relies on a sensitivity analysis. [See 40 CFR 51.1009(a)(2) and
51.1010(a)(2).] It is particularly important for states to evaluate
available controls where the recommended contribution threshold--
that is, the threshold used for identifying an impact that is
`insignificant'--is close to being exceeded at the low end of the
recommended sensitivity range (e.g., 30 percent). In these cases,
the EPA may determine that to sufficiently evaluate whether the area
is sensitive to reductions, the State must determine the potential
precursor emission reductions achievable through the implementation
of available and reasonable controls for a Moderate area (or best
controls for a Serious area).'' PM2.5 Precursor Guidance
at 31.
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[[Page 60503]]
Even when the modeled responses are below the recommended 0.2
[micro]g/m\3\ contribution threshold, or when particular responses are
given less weight as we have discussed above for Madera and Hanford,
the outcome of a sufficiently thorough controls evaluation and its
conclusions on achievable emissions reductions may be important
information for the EPA to consider in deciding whether to approve the
precursor demonstration. Here, the State's ammonia precursor
demonstration strongly relies on the assertion that no more than 30%
ammonia reductions below current levels is achievable, but there is not
a sufficiently thorough controls evaluation to support that assertion.
Because the 30% value has not been adequately supported, the EPA cannot
evaluate whether the modeled PM2.5 reductions associated
with a 30% reduction in ammonia represent the reductions that may be
possible in the SJV.
The EPA also emphasizes that the 30% control threshold is part of
an analytical test to help evaluate whether the State must regulate
ammonia as a precursor for the 2012 annual PM2.5 NAAQS in
the area; it does not mean that if the State cannot control 30% of
ammonia with BACM/BACT-level controls that there is per se no need to
regulate ammonia. For example, if control of 25% of ammonia is
necessary for attainment of the PM2.5 NAAQS, then the fact
that this is below 30% is irrelevant. Our attention to the 30%
threshold in this notice is to help interpret the PM2.5
responses to modeled ammonia emissions reductions in the State's
precursor demonstration, which modeled a 30% reduction. This point is
important analytically because, insofar as potential ammonia reductions
could be larger than 30%, the modeled responses could be larger than
those relied upon in the State's precursor analysis to support its
determination that ammonia is not a significant precursor.
With respect to the State's assertion that 30% is a reasonable
upper bound for potential ammonia emission reductions, we agree with
the commenters that the analysis of potential ammonia controls provided
by the State and the evaluation of that information by the EPA lacked
detailed support and is not a sufficient basis for the EPA to affirm
that 30% is a reasonable upper bound for potential ammonia emission
reduction in the SJV. This, in turn, affects the EPA's interpretation
of the results of modeled responses to ammonia reductions. There are
two general deficiencies in the submitted analysis that create
uncertainty as to the potential for ammonia emission reductions, as
discussed below: (1) incomplete quantification of existing ammonia
emission reductions from the largest sources of ammonia; and 2)
incomplete consideration and evaluation of potential additional
controls of ammonia emissions for sources in the SJV. We walk through
these uncertainties for each of the largest sources of ammonia in the
SJV (i.e., CAFs and fertilizer application).
As an initial matter, the commenters state that ``[the State]
argues, and EPA agrees, that only the minimal 30 percent control level
is reasonable'' despite major ammonia sources never having been
regulated in the SJV and the relatively easier and cheaper sources of
emission reductions relative to NOX. We understand this
reference to ``major ammonia sources'' to mean the main source
categories of ammonia emissions in the SJV, including CAFs and
fertilizer application, which the State estimated to emit 57% and 36%,
respectively, of the annual average ammonia emissions in the SJV in
2013.\72\
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\72\ See Public Justice Comment Letter, 6, citing EPA Region IX,
``Technical Support Document, EPA Evaluation of PM2.5
Precursor Demonstration, San Joaquin Valley PM2.5 Plan
for the 2006 PM2.5 NAAQS.''
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We agree with the commenters that neither CARB nor the District
have imposed controls specifically to regulate ammonia. We note,
however, that ammonia-specific controls are not required for approval
of an ammonia precursor demonstration. Moreover, although there are not
ammonia-specific controls in place for the largest source categories in
the SJV, many sources of ammonia are in fact regulated by District
rules, such as Rule 4570 (``Confined Animal Facilities''), Rule 4565
(``Biosolids, Animal Manure, and Poultry Litter Operations''), and Rule
4566 (``Organic Material Composting Operations''), which include
enforceable requirements for VOC emissions that would, in general,
achieve some degree of ammonia emission reductions. We agree with the
general assertion, presented by the District in section C-25 (``Ammonia
in the San Joaquin Valley'') of Appendix C of the 2018 PM2.5
Plan, that some management practices to reduce VOCs in those rules also
collaterally reduce ammonia emissions by limiting ammonia formation and
volatilization, even though ammonia reductions are not legally required
by these measures.\73\
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\73\ See, e.g., 2018 PM2.5 Plan, App. C, C-313 (for
CAFs). The lack of controls specifically regulating ammonia
emissions from the largest source categories through enforceable SIP
requirements in the SJV is not an inherent deficiency of the
precursor demonstration, but it does result in challenges for
determining the potential for ammonia emission controls (i.e., in
determining the reductions that have already been achieved, and what
additional reductions are available).
---------------------------------------------------------------------------
Although we expect that existing VOC regulations are achieving a
degree of ammonia control, there are multiple reasons why it is not
clear, based on the record before us, how much reduction is being
achieved, and thus how much additional reduction may be available. For
example, regarding CAFs, as the EPA has previously noted,\74\ the State
has not sufficiently substantiated its calculation of 100 tpd of
ammonia emission reductions attributed to Rule 4570. In the 2018
PM2.5 Plan, the State referenced an outdated analysis from
2006 that relied on a different baseline emissions inventory, but has
not supplemented this analysis, or reconciled it with more recent
emissions inventory data.\75\ We note that CARB has provided the EPA
with significantly lower estimates of ammonia emission reductions
achieved by SJVUAPCD Rule 4570 based on more recent calculations of
reductions from a 2012 baseline emissions inventory.\76\ The 2018
PM2.5 Plan does not reconcile these differences, nor update
the emission reduction estimate from the 2006-era analysis to the
emissions inventory basis of the 2018 PM2.5 Plan.
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\74\ 81 FR 69396, 69397-69398 (October 6, 2016).
\75\ 2018 PM2.5 Plan, App. C, C-311 to C-339 and
SJVUAPCD, ``Final Draft Staff Report, Proposed Re-Adoption of Rule
4570 (Confined Animal Facilities),'' June 18, 2009, at Appendix F,
``Ammonia Reductions Analysis for Proposed Rule 4570 (Confined
Animal Facilities),'' June 15, 2006 (discussing various assumptions
underlying the District's calculation of ammonia emission factors
without identifying relevant emissions inventories).
\76\ Email dated September 3, 2015, from Gabe Ruiz, CARB, to
Larry Biland and Andrew Steckel, EPA Region IX, regarding ``SJV
Livestock Ammonia Emissions with and without Rule 4570.'' This email
notes that 2011 ammonia emissions (pre-rule) were 316.8 tpd, 2012
emissions (without rule) were 323.8 tpd, and 2012 emissions (with
rule) were 250.9 tpd. Thus, application of Rule 4570 would have
achieved either 72.9 tpd of ammonia reductions, measured within 2012
with and without the rule, or 65.9 tpd, measured from the 2011 level
(without rule) to the 2012 level (with rule).
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[[Page 60504]]
In short, although we agree that some existing VOC controls will
also result in ammonia reductions, a more detailed analysis it required
to determine both the effectiveness of existing controls, and the
additional controls that may be available. In the following, the EPA
notes various uncertainties concerning ammonia emissions and in the
amount of reductions achieved by specific rules as a byproduct of the
existing VOC control measures. For a number of key source categories,
ammonia measures require additional analysis to evaluate their
potential to achieve additional emissions reductions, in part based on
research studies included as exhibits to the Public Justice Comment
Letter.
For CAFs, the District discusses in detail how Rule 4570 is
structured (e.g., to address varying types of CAFs); the five main CAF
operations/emission sources: feeding, housing (including distinctions
for housing configurations), solid waste, liquid waste, and land
application of manure; the control menu requirements for each of those
five operations; and research papers that estimate ammonia emission
reductions from some of the measures.\77\ However, the 2018
PM2.5 Plan does not specify, even in an aggregated form,
which control measures were selected by CAFs in their permits-to-
operate with the District for each of the five operations and the scale
of those selections by CAF size, nor does it quantify the emission
reductions from those selections and scales. Thus it is unclear what
level of ammonia control is being achieved, and, importantly for the
precursor demonstration, unclear what level of further ammonia control
may be possible. This uncertainty is increased by several provisions in
Rule 4570 that allow CAF owners/operators to implement ``alternative
mitigation measures'' \78\ in lieu of the mitigation measures listed in
the rule, without any requirement to ensure that such alternative
mitigation measures achieve any particular level of ammonia emission
reductions, or any ammonia reductions at all.\79\
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\77\ 2018 PM2.5 Plan, App. C, C-312 to C-323.
\78\ ``Alternative Mitigation Measure'' is defined in SJVUAPCD
Rule 4570 as ``a mitigation measure that is determined by the APCO,
[CARB], and EPA to achieve reductions that are equal to or exceed
the reductions that would be achieved by other mitigation measures
listed in this rule that owners/operators could choose to comply
with rule requirements.'' SJVUAPCD Rule 4570 (amended October 21,
2010), section 3.4. Because SJVUAPCD Rule 4570 explicitly applies
only to VOC emissions, the requirement for equivalent ``reductions''
in section 3.4 applies only to VOC emission reductions and does not
apply to ammonia emission reductions.
\79\ See, e.g., SJVUAPCD Rule 4570 (amended October 21, 2010) at
section 5.6, Table 4.1.F.
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Furthermore, for certain requirements, the 2018 PM2.5
Plan assumes that a less effective control measure may be implemented
given that the more effective control measure may be more costly. For
instance, the District describes some research studies that relate to
one or more of the options, but it is not clear whether and how the
requirements of each option align with the practices evaluated in each
study. The District cites a 2005 University of California study that
manure from lagoons, diluted with irrigation water, and applied via
surface gravity irrigation systems (e.g., not applied with a drag hose
or similar apparatus) commonly minimized ammonia losses from
volatilization to the air to 10% or less.\80\ However, it is not clear
how the requirements of option H.2.a (liquid manure treated in an
aerobic or anaerobic lagoon) or option H.2.b (24-hour limit for liquid
manure standing on fields) may correspond to the study, whether any
particular level of lagoon treatment or dilution prior to application
would be needed, nor whether a combination of the two would be required
to minimize ammonia losses to air to that degree.
---------------------------------------------------------------------------
\80\ University of California, Division of Agricultural and
Natural Resources, Committee of Experts on Dairy Manure Management,
``Managing Dairy Manure in the Central Valley of California,'' June
2005.
---------------------------------------------------------------------------
For option H.2.c, the District states that use of a drag hose or
similar apparatus could significantly reduce ammonia emissions, but
without specifying how much or pointing to any supporting document, and
only qualitatively asserting a relatively higher cost for using such
equipment, and its limitations when a crop is growing.\81\ The District
states that ``[a]pplication of liquid or slurry manure with a drag hose
or similar apparatus could result in significant [ammonia] reductions,
but has higher costs compared to flood or furrow irrigation of liquid
manure.'' \82\ However, higher cost does not necessarily translate to
the measure being economically infeasible, and thus the option to use
flood or furrow irrigation alone may not represent the most appropriate
method or level of control of ammonia for the land application of
liquid manure. As a result, the District has not demonstrated that
additional reductions are not feasible.
---------------------------------------------------------------------------
\81\ 2018 PM2.5 Plan, App. C, C-323, referring to a
2008 report by Alberta Agriculture and Food (Canada). Albert
Agriculture and Food, ``Ammonia Volatilization from Manure
Application,'' February 2008 (``2008 Alberta Report''). That report
estimates that injection into soil would reduce the average
ammonium-nitrogen fraction loss (i.e., to air) to 0% compared to
incorporation within one day from surface application (25%) or
compared to surface application with no incorporation (66%). 2008
Alberta Report, Table 2.
\82\ 2018 PM2.5 Plan, App. C, C-322 to C-323.
---------------------------------------------------------------------------
The District assumes that all dairies and other cattle facilities
would select option H.2.b (24-hour limit for liquid manure standing on
fields) and cites two studies that suggest substantial ammonia emission
reductions from this limitation, assuming no ammonia emissions into the
air after soil incorporation.\83\ Based on one study, dairy CAF
operations in the SJV would have hypothetically already reduced ammonia
emissions to the air from land application of liquid manure from 66%
ammonium nitrogen to 25% ammonium nitrogen by implementing option H.2.b
(a 41% absolute reduction, or 62% relative reduction). Uncertainty
about the options that are being chosen and implemented by regulated
entities gives rise to uncertainty in the ammonia emission reductions
that are being achieved. The permits-to-operate submitted by each dairy
CAF are required to indicate which option has been selected.\84\
Accordingly these permits, and associated compliance records, should
contain information that would help to address this uncertainty.
Furthermore, if injection via drag hose or similar apparatus (option
H.2.c) is economically feasible, even if more expensive, implementation
of such a measure could further reduce ammonia by 25% based on the same
study, at least for a portion of the operating cycle (e.g., when crops
are not growing). Lastly, a combination of measures (e.g., requiring
that liquid manure be both treated in an anaerobic lagoon, aerobic
lagoon, or digester, and that it be incorporated into the soil within
24 hours) or adjustment to existing options (e.g., requiring
incorporation of liquid manure within 6 hours, rather than 24 hours,
and during cooler hours when ammonia volatilization is less) could
hypothetically reduce ammonia emissions at these sources by more than
30%.\85\
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\83\ 2018 PM2.5 Plan, App. C, C-323, referring to two
studies: the 2008 Alberta Report, and Chadwick et al. ``Emissions of
Ammonia, Nitrous Oxide and Methane from Cattle Manure Heaps: Effect
of Compaction and Covering,'' Atmosphere Environment, 39: 787-799
(2005); available at: http://www.sciencedirect.com/science/article/pii/S135223100400994X.
\84\ Under District Rule 4570, section 5.1, owners/operators of
CAFs subject to the rule must obtain a permit-to-operate for the
facility, and that permit must include a facility emission
mitigation plan, a facility emission inventory, and identify the
mitigation measures selected for the facility.
\85\ 2008 Alberta Report.
---------------------------------------------------------------------------
In general, with respect to dairy CAFs, on a qualitative basis CAF
operators have likely reduced ammonia emissions
[[Page 60505]]
to a degree consistent with the options selected. However, there is not
a quantitative basis to specify the degree and potential for further
reduction. For some of the options within the menu of mitigation
measures for each type of CAF in Rule 4570, there are research studies
to support the basis of existing ammonia emission reductions. The
generalized assumptions used by the State could be evaluated by an
analysis of the options selected by CAFs in permits-to-operate with the
District. Further assessment of available compliance records and
examination of combinations of measures or adjustments to existing
measures could help quantify additional potential ammonia emission
reductions.
In addition, Public Justice cites several studies to support its
assertion that reductions in agricultural ammonia emissions may be
achieved through ``strategies such as improving livestock feed to
reduce excreted nutrients, altering manure storage and handling
practices to prevent [ammonia] emissions, and improving synthetic
fertilizer use efficiency,'' and cites several studies to support this
assertion.\86\ The EPA considers these approaches to warrant
examination as potential means to reduce ammonia and believes that more
information regarding their efficacy as control measures and their
economic and technical feasibility is needed to determine the amount of
the potential additional ammonia control in the SJV.
---------------------------------------------------------------------------
\86\ Public Justice Comment Letter, 16-18.
---------------------------------------------------------------------------
For livestock feed, studies in 2005 and 2006 cited by the commenter
found that ``decreasing the crude protein concentration of beef cattle
finishing diets based upon steam-flaked corn from 13 to 11.5 percent
decreased ammonia emissions by 30 to 44 percent.'' \87\ A 2009 study
cited by the commenter found that ``one feedyard feeding distillers
grains averaged 149 grams of ammonia-N per head per day (NH3-N/head/
day) over nine months, compared with 82 g NH3-N/head/day at another
feedyard feeding lower protein steam-flaked, corn-based diets.'' \88\
Nominally this would represent a 45% reduction in ammonia emissions
from manure by going to a lower protein diet. However, the net ammonia
emission reduction either from reducing crude protein levels in feed,
or by providing a lower protein steam-flaked, corn-based diet rather
than a distiller grain diet is unclear given the role of protein intake
on the time for beef cattle to reach market weight or on milk
production for dairy cattle.
---------------------------------------------------------------------------
\87\ Public Justice Comment Letter, Exhibit 36, 9. Exhibit 36
is: Preece, Sharon L.M. et al., ``Ammonia Emissions from Cattle
Feeding Operations,'' Texas A&M AgriLife Extension Service,
referring to Cole, N.A., R.N. Clark, R.W. Todd, C.R. Richardson, A.
Gueye, L.W. Greene, and K. McBride, ``Influence of Dietary Crude
Protein Concentration and Source on Potential Ammonia Emissions from
Beef Cattle Manure,'' Journal of Animal Science 83:(3), 722 (2005);
and Todd, R.W., N.A. Cole, and R.N. Clark, ``Reducing Crude Protein
in Beef Cattle Diet Reduces Ammonia Emissions from Artificial
Feedyard Surfaces.'' Journal of Environmental Quality. 35:(2), 404-
411 (2006).
\88\ Public Justice Exhibit 36, 10, referring to a study by
Todd, R.W., N.A. Cole, D.B. Parker, M. Rhoades, and K. Casey. 2009.
``Effect of Feeding Distillers Grains on Dietary Crude Protein and
Ammonia Emissions from Beef Cattle Feedyards.'' In Proceedings of
the Texas Animal Manure Management Issues Conference, 83-90.
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For manure handling and storage practices, a 2011 inventory of
mitigation methods by Price et al. identifies many mitigation methods
for various kinds of CAFs, some of which may reduce ammonia emissions
by 50-90%.\89\ For example, Method 44 (``Washing down dairy cow
collecting yards'') involves areas where dairy cows are collected on a
concrete yard prior to milking and, after each milking event, the urine
and manure in the area are removed by pressure washing or by hosing and
brushing, resulting in up to 90% ammonia emission reductions. Method 62
(``Cover solid manure stores with sheeting'') involves covering solid
manure heaps with plastic sheeting, resulting in ammonia emission
reductions up to 90%.\90\ However, the authors note that, for both
Method 44 and Method 62, reducing ammonia emission from the milking
areas would increase the ammonium content of the slurry, potentially
leading to higher ammonia emissions during storage and spreading, but
by a lower amount than the initial reduction amount. Method 71 (``Use
slurry injection application techniques'') involves shallow (5-10 cm
depth) or deep (25 cm depth) injection of slurry into the soil,
resulting in ammonia emission reductions of 70% to 90%, respectively.
---------------------------------------------------------------------------
\89\ Public Justice Comment Letter, Exhibit 39. Exhibit 39 is:
Price et al., ``An Inventory of Mitigation Methods and Guide to
their Effects on Diffuse Water Pollution, Greenhouse Gas Emissions
and Ammonia Emissions from Agriculture, User Guide,'' December 2011.
For mitigation measures that may reduce ammonia emissions by 50-90%,
for example, methods 43, 44, 47-51, 54-55, 62, 64, 70-71, and 73-74
on pages 70-71, 74-78, 81-84, 93-94, 105-108, and 110-112
respectively, achievable control efficiencies from these measures in
the SJV would depend on an applicability and feasibility review.
\90\ We note that District Rule 4570, Table 3.1, section F and
Table 4.1, section F provide mitigation measure options for the
storage of solid manure and separated solids from large dairy CAFs,
including measures that involve covering dry manure piles and
separated solids, respectively, outside of pens with a weatherproof
covering from May through October. Thus, such mitigation measures,
if selected, would not be required for the remaining four months of
the year (June through September). Similar mitigation measure
options in Rule 4570 for covering dry manure piles apply for beef
feedlots, other cattle, swine, poultry, and other CAF types.
---------------------------------------------------------------------------
Mitigation methods are also described for other kinds of CAFs, such
as pig farms and chicken farms. For example, Method 48 (``Install air-
scrubbers or biotrickling filters to mechanically ventilated pig
housing'') involves pig housing where specific technologies are used to
capture up to 90% of the ammonia emissions into recirculation water
that can then be used as a nitrogen-based fertilizer. Method 51 (``In-
house poultry manure drying'') involves installation of ventilation/
drying systems that reduce the moisture content of poultry litter,
resulting in up to 50% ammonia emission reductions, though, as with the
cattle examples, this could result in some increased emissions at
subsequent steps (e.g., storing poultry litter).
In addition to the 2011 inventory of mitigation methods, in
September 2017, the EPA and the U.S. Department of Agriculture, Natural
Resource Conservation Service released the ``Agricultural Air Quality
Conservation Measures, Reference Guide for Poultry and Livestock
Production Systems'' (2017 EPA-USDA Reference Guide). This reference
guide discusses air quality conservation measures relating to nutrition
and feed management, animal confinement, manure management, land
application, and other supplemental practices. Among other things it
includes Appendix A.1 (``Table of Mitigation Effectiveness for Selected
Measures''), which lists 12 measures that may reduce ammonia emissions
by more than 30%, Appendix A.2 (``List of State Programs and
Regulations for AFO Air Emissions''), and Appendix A.3 (``List of AFO
Air Quality Programs & Land-Grant Universities'').
In sum, various research studies on mitigating ammonia emissions
from CAFs suggest that there may be potential for additional ammonia
reductions from activities such as animal feeding and housing to manure
storage, handling, and land application. While the Plan refers to and
describes some of the research studies described herein (e.g., the 2008
Alberta Report and the 2005 Chadwick paper), it is unclear the extent
to which the higher emission reduction measures have been or could be
implemented in the SJV and, when aggregated across all CAF operations,
it remains unclear whether the total reduction from additional measures
would be greater than the State's estimate of maximum available
[[Page 60506]]
reductions.\91\ Accordingly, the EPA concludes that the available
information in the Plan is insufficient to conclude that the State has
sufficiently examined and justified its estimate for the ammonia
emission reductions that may be available from CAFs, which emit a
majority of the ammonia in the SJV.
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\91\ In evaluating the aggregate reductions available across all
sub-activities, it may be important to evaluate the extent to which
reductions at one sub-activity may affect emissions at other stages
of the process.
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Regarding fertilizer application, Rule 4570 and Rule 4565 have
provisions addressing the land application of manure from CAFs and of
biosolids, animal manure, and poultry litter from composting operations
(though these lack specific enforceable requirements for ammonia).
However, more broadly, the District states that fertilizer application
is the second largest ammonia source in the SJV and that the District
does not have statutory authority to regulate such activities.\92\
Notwithstanding this statement, the District describes key research
assessing nitrogen in California, as well as regulations adopted by the
California Water Resources Control Board, including orders adopted by
the Central Valley Regional Water Quality Control Board (e.g., a
Nutrient Management Plan), the Irrigated Lands Regulatory Program
(e.g., a Nitrogen Management Plan), or other individual mechanisms.\93\
These orders subject agricultural operators, including dairies, bovine
feedlots, poultry operations, and crop farmers to ``waste discharge
requirements that protect both surface water and groundwater.'' \94\
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\92\ 2018 PM2.5 Plan, App. C, C-311.
\93\ 2018 PM2.5 Plan, App. C, C-339 to C-343.
\94\ Id. at C-341.
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The EPA anticipates that such regulations are, in practice, likely
to enhance the retention of nitrogen (whether from manure or nitrogen-
based chemical fertilizers) for productive purposes in the SJV (e.g.,
growing crops and enhancing soil health) and limit the loss of nitrogen
as pollution to water and air (e.g., potentially reduce ammonia
emissions). However, to our knowledge, these regulations do not impose
any enforceable requirement for ammonia emissions to the air, and thus
render quantification difficult, as with Rule 4570.\95\
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\95\ Unlike Rule 4570, which has been approved into the
California SIP to limit VOC emissions, the State's water-related
regulations on fertilizer application have not been submitted for
approval into the California SIP.
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In addition, the District states that ``the overall efficiency of
nitrogen usage at California farms is expected to increase and
emissions of reactive nitrogen, including [ammonia], are expected to
decrease significantly.'' We agree that managing the amount of nitrogen
applied to the environment should reduce the potential for pollution to
air, water, and land. However, the District does not attempt to
quantify or otherwise substantiate the scale and timing of such
potential ammonia emission reduction benefits, nor their
enforceability, nor does it attempt to analyze how much additional
reductions may be available. Overall, the EPA finds that the available
evidence is insufficient to conclude that the State has sufficiently
examined and justified its estimate for the ammonia emission reductions
that may be available from fertilizer application, the second largest
ammonia emission source in the SJV.
c. The EPA's Conclusion for Ammonia Precursor Demonstration
The EPA does not believe that the State has presented sufficient
evidence that ammonia does not contribute significantly to
PM2.5 levels above the NAAQS. In the absence of an approved
precursor demonstration, ammonia remains a plan precursor subject to
the requirements of BACM, BACT, and additional feasible measures.
As discussed in our 2021 Proposed Rule,\96\ the modeled response to
30% ammonia emissions reductions is above the EPA's recommended
contribution threshold of 0.20 [micro]g/m\3\ at two monitoring sites,
Madera and Hanford, providing evidence that ammonia significantly
contributes to PM2.5 in SJV. In the previous proposal, we
gave those responses less weight, because of specific evidence
available for these sites that the responses were overestimated. For
Madera, the monitoring data used in estimating the model response are
biased high, and therefore the modeled response of 0.21 [micro]g/m\3\,
just above contribution threshold, is likely overestimated. For
Hanford, several analyses showed ambient ammonia concentrations are
underestimated, and so we believe that the modeled response of 0.26
[micro]g/m\3\ is likely overestimated. Supporting that conclusion is
the evidence from ambient concentrations of excess ammonia relative to
nitrate, which suggest that PM2.5 responses to reductions of
ammonia emissions would be dampened by the NOX-limited
nature of ammonium nitrate formation in the SJV.
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\96\ 86 FR 74310, 74320.
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All of those considerations remain for the current proposal. But in
light of comments received and re-evaluation of the available evidence,
the EPA believes we should give the Hanford response more weight,
because that response would be larger if the ammonia reductions modeled
were larger than the 30% assumed in the State's precursor
demonstration. The previous subsection gave several examples of the
uncertainty and possible underestimation of the ammonia benefit of
available control measures to the SJV. The EPA does not believe there
is sufficient quantitative evidence to rely on 30% as the amount of
achievable reductions, and as the amount to use an upper bound on the
ammonia emission reductions modeled in the State's precursor
demonstration. A robust controls evaluation could show that a larger
amount of reductions is achievable. If it is, then not only would the
Hanford modeled response be larger, but additional monitoring sites
could have a modeled response above the contribution threshold.
For example, with respect to the modeled 2024 ambient
PM2.5 responses to a 70% emission reduction, we note that
the modeled high site of Bakersfield-Planz would have a response of
0.36 [micro]g/m\3\, the site with the largest modeled response would be
0.75 [micro]g/m\3\ at Hanford, and six sites (including Hanford) would
have modeled responses greater than 0.5 [micro]g/m\3\. As a more modest
example, interpolating between the available 30% and 70% modeled
results, if 32% reductions are achievable, then three additional
monitoring sites (Turlock, Merced-S. Coffee St., and Modesto) would
reach the 0.2 [micro]g/m\3\ contribution threshold. The uncertainty
over the ammonia response means that we cannot rely on 30% as an upper
bound for ammonia emission reductions, and so the weight of evidence
shifts relative to that in the 2021 Proposed Rule.
The discussion in this proposed rule, and the heavy reliance in the
2021 Proposed Rule, on the State's use of a 30% upper bound for
potential reduction from controls should not be interpreted as
establishing a 30% ``bright line'' for deciding whether a precursor
should be regulated. The PM2.5 Precursor Guidance recommends
that 30% to 70% emissions reductions be modeled as a way of
implementing the PM2.5 SIP Requirements Rule's option in 40
CFR 51.1006(a)(1)(ii) for a State to assess the sensitivity of the
atmospheric PM2.5 to precursor emission reductions. The
sensitivity of the atmosphere to reductions is a separate question from
what reductions are achievable from controls; the latter is properly
part of the control evaluation for BACM, BACT, and additional feasible
measures. However, it is important to note that under 40 CFR
[[Page 60507]]
51.1010(a)(2)(ii), the EPA may require a control evaluation to help the
EPA evaluate the precursor demonstration. The PM2.5
Precursor Guidance explains that the additional information from a
control evaluation is particularly important when modeled precursor
contributions are close to the threshold for a 30% reduction.\97\ But
the regulations and guidance do not establish an automatic ``off ramp''
for a State to be discharged from the requirements for BACM, BACT, and
additional feasible measures via a showing that achievable reductions
are below a particular percentage.
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\97\ PM2.5 Precursor Guidance, 31.
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We have no evidence that emission reductions below current
emissions levels from BACM on all ammonia sources in the SJV would be
as large as 70%, but the lack of a developed record showing what
ammonia control measures are feasible and what they could achieve makes
it harder for the EPA to assess this point. We also lack sufficient
evidence to conclude that reasonable ammonia control measures could
achieve no more than 30% reductions, and so cannot rely on that
supposition in weighing the modeled responses to reductions and other
evidence. Better quantification of the possible ammonia reductions from
current levels that could result from additional controls would help
resolve this issue. Reconciliation of modeled sensitivity with that
expected from ambient studies would also be appropriate.
The EPA has re-examined the 2024 sensitivity analyses to both 30%
and 70% ammonia emission reductions in light of the uncertainty that
30% represents a reasonable upper bound for potential ammonia emission
reductions. We note that the State modeled 30% reduction scenarios and
predicted ambient PM2.5 responses above 0.2 [micro]g/m\3\ at
2 of 15 sites in 2024; and modeled the 70% reduction scenarios and
predicted responses above 0.2 [micro]g/m\3\ at all monitors in
2024.\98\ The EPA maintains that the State's reliance on its
sensitivity-based contribution analysis for a future year (2024) to
evaluate the significance of ammonia as a precursor is reasonable, well
supported, and consistent with the EPA's guidance. There are also good
reasons for giving less weight to the modeled responses at the Madera
and Hanford sites, although those are tempered by the consideration
that there is not good support for limiting the modeled ammonia
reductions to 30%, leading to the possibility of larger responses at
Hanford and of additional sites with responses above the contribution
threshold.
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\98\ 2018 PM2.5 Plan, App. G, tables 4 through 7.
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The weight of the evidence, including at least one site above the
EPA's recommended contribution threshold and the possibility of
additional ones depending on the unknown amount of reductions
achievable, favor retaining the presumption that ammonia must be
regulated as a PM2.5 precursor for the 2012 annual
PM2.5 NAAQS in the SJV. For the reasons explained above, the
Plan both indicates that there are levels of ammonia control that could
have a significant impact on PM2.5 levels at multiple
monitors in the SJV and does not dispose the potential availability of
ammonia emission reductions at a level that would have such impacts.
Therefore, the EPA proposes to disapprove the State's ammonia precursor
demonstration for the Serious area requirements for purposes of the
2012 annual PM2.5 NAAQS in the SJV.
B. Best Available Control Measures
1. Statutory and Regulatory Requirements
Section 189(b)(1)(B) of the Act requires for any Serious
PM2.5 nonattainment area that the State submit provisions to
assure that the best available control measures (BACM), including
controls that reflect best available control technology (BACT), for the
control of PM2.5 and PM2.5 precursors shall be
implemented no later than four years after the date the area is
reclassified as a Serious area. The EPA has defined BACM in the
PM2.5 SIP Requirements Rule to mean ``any technologically
and economically feasible control measure that can be implemented in
whole or in part within 4 years after the date of reclassification of a
Moderate PM2.5 nonattainment area to Serious and that
generally can achieve greater permanent and enforceable emissions
reductions in direct PM2.5 emissions and/or emissions of
PM2.5 plan precursors from sources in the area than can be
achieved through the implementation of reasonably available control
measures (RACM) on the same source(s).'' \99\
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\99\ 40 CFR 51.1000 (definitions). In longstanding guidance, the
EPA has similarly defined BACM to mean, ``among other things, the
maximum degree of emissions reduction achievable for a source or
source category, which is determined on a case-by-case basis
considering energy, environmental, and economic impacts.'' General
Preamble Addendum, 42010, 42013.
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The EPA generally considers BACM a control level that goes beyond
existing RACM-level controls, for example by expanding the use of RACM
controls or by requiring preventative measures instead of
remediation.\100\ Indeed, because states are required to implement BACM
and BACT when a Moderate nonattainment area is reclassified as Serious
due to its inability to attain the NAAQS through implementation of
``reasonable'' measures, it is logical that ``best'' control measures
should represent a more stringent and potentially more technologically
advanced or more costly level of control.\101\ If RACM and RACT level
controls of emissions have been insufficient to reach attainment, then
the CAA Title I, Part D, subpart 4 provisions for PM2.5
nonattainment plans contemplate the implementation of more stringent
controls, controls on more sources, or other adjustments to the control
strategy necessary to attain the NAAQS in the area. Thus, BACM/BACT
determinations are to be ``generally independent'' of attainment for
purposes of implementing the PM2.5 NAAQS.\102\
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\100\ 81 FR 58010, 58081 and General Preamble Addendum, 42011,
42013.
\101\ 81 FR 58010, 58081 and General Preamble Addendum, 42009-
42010.
\102\ PM2.5 SIP Requirements Rule, 58081-58082. See
also, General Preamble Addendum, 42011.
---------------------------------------------------------------------------
Consistent with longstanding guidance provided in the General
Preamble Addendum, the preamble to the PM2.5 SIP
Requirements Rule discusses the following steps for states to use in
identifying and selecting the emission controls needed to meet the
BACM/BACT requirements of 40 CFR 51.1010:
1. Develop a comprehensive emission inventory of all sources of
PM2.5 and PM2.5 precursors from major and non-
major stationary point sources, area sources, and mobile sources;
2. Identify potential control measures for all sources or source
categories of emissions of PM2.5 and relevant
PM2.5 plan precursors;
3. Determine whether an available control measure or technology is
technologically feasible;
4. Determine whether an available control measure or technology is
economically feasible; and
5. Determine the earliest date by which a control measure or
technology can be implemented in whole or in part.\103\
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\103\ 81 FR 58010, 58083-58085.
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The EPA allows states to consider factors such as a source's
processes and operating procedures, raw materials, physical plant
layout, and potential environmental impacts such as increased water
pollution, waste disposal, and energy requirements when
[[Page 60508]]
considering technological feasibility.\104\ For purposes of evaluating
economic feasibility, the EPA allows states to consider factors such as
the capital costs, operating and maintenance costs, and cost
effectiveness (i.e., cost per ton of pollutant reduced by a measure or
technology) associated with the measure or control.\105\ For any
potential control measure identified through the process described
above that is eliminated from consideration, states are required to
provide detailed written justification for doing so on the basis of
technological or economic feasibility, including how its criteria for
determining such feasibility are more stringent than those used for
determining RACM/RACT.\106\
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\104\ 40 CFR 51.1010(a)(3)(i).
\105\ 40 CFR 51.1010(a)(3)(ii).
\106\ 40 CFR 51.1010(a)(3)(iii).
---------------------------------------------------------------------------
Once these analyses are complete, the State must use this
information to develop enforceable control measures for all relevant
source categories in the nonattainment area and submit them to the EPA
for evaluation as SIP provisions to meet the basic requirements of CAA
section 110 and any other applicable substantive provisions of the Act.
2. BACM for Ammonia Sources
As previously noted, as part of the EPA's 2021 Proposed Rule, we
reviewed the State's analysis of ammonia control for the primary source
categories of ammonia in the context of our evaluation of the State's
precursor demonstration.\107\ Because our prior proposal to approve the
State's ammonia precursor demonstration would have relieved the State
of its obligation to implement BACM for ammonia sources, we did not
present a summary of the 2018 PM2.5 Plan with respect to the
BACM requirements for ammonia for the 2012 annual PM2.5
NAAQS, nor our evaluation thereof. Given our reconsidered proposal to
disapprove the State's ammonia precursor demonstration, in the
following sections of this proposed rule we evaluate the District's
control analysis for the two most substantial source categories of
ammonia, which together sum to more than 90% of the emissions in the
SJV: CAFs and fertilizer application.
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\107\ 86 FR 74310, 74319. See also, 85 FR 17382, 17395 (March
27, 2020), and the EPA's PM2.5 Precursor TSD, 13.
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a. Summary of State's Submission
The District presents its analysis of ammonia controls for the
primary ammonia source categories in the SJV in Appendix C, section
C.25 (``Ammonia in the San Joaquin Valley'') of the 2018
PM2.5 Plan. The District evaluated its emission control
measures for compliance with BACM for CAFs and described water-related
measures applicable to fertilizer application that have co-benefits to
air quality. The District presents its reasoning that measures that
control VOC emissions, such as Rule 4570 for CAFs, also reduce ammonia
emissions due to the physical processes occurring in decomposing manure
and subsequent volatilization of decomposition products (like VOC and
ammonia). As part of its process for identifying candidate BACM,
considering the technical and economic feasibility of additional
control measures, the District reviewed the EPA's guidance documents on
BACM, and control measures implemented in other nonattainment areas in
California and other states.\108\
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\108\ 2018 PM2.5 Plan, Chapter 4, section 4.3.1.
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For CAFs, the District discusses in detail how Rule 4570
(``Confined Animal Facilities'') is structured (e.g., to address
varying types of CAFs, including applicability thresholds); the five
main CAF operations/emission sources: feeding, housing (including
distinctions for housing configurations), solid waste, liquid waste,
and land application of manure; and the control menu requirements for
each of those five operations.\109\ The District summarizes the
specific requirements applicable to each type of cattle-based CAF,
including dairies, beef feedlots, and ``other cattle'' and describes
its basis for ammonia emission reductions estimates, including cited
research papers.
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\109\ 2018 PM2.5 Plan, App. C, C-312 to C-323.
---------------------------------------------------------------------------
The District also compares Rule 4570 to other CAF rules imposed by
the South Coast Air Quality Management District (AQMD), Bay Area AQMD,
Sacramento Metropolitan AQMD, Imperial County Air Pollution Control
District (APCD), and the State of Idaho.\110\ The District evaluates a
potential additional control measure--application of sodium bisulfate
to reduce pH and bacterial levels in bedding for dairy cattle--and
concludes that such measure is not feasible based on a number of
factors, including health and safety of dairy workers and animals,
impacts on water quality, and overall cost and effectiveness.\111\
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\110\ 2018 PM2.5 Plan, App. C, C-323 to C-337.
\111\ 2018 PM2.5 Plan, App. C, C-338 to C-339.
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For fertilizer application, as described in section II.A.3 of this
proposed rule, the District states that fertilizer application is the
second largest ammonia source in the SJV and that the District does not
have statutory authority to regulate such activities.\112\
Notwithstanding, the District describes how regulations adopted by the
California Water Resources Control Board, including orders adopted by
the Central Valley Regional Water Quality Control Board (e.g., a
Nutrient Management Plan), the Irrigated Lands Regulatory Program
(e.g., a Nitrogen Management Plan), or other individual mechanisms
\113\ subject agricultural operators, including dairies, bovine
feedlots, poultry operations, and crop farmers to ``waste discharge
requirements that protect both surface water and groundwater.'' \114\
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\112\ 2018 PM2.5 Plan, App. C, C-311.
\113\ 2018 PM2.5 Plan, App. C, C-339 to C-343.
\114\ 2018 PM2.5 Plan, App. C, C-341.
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Overall, the District concludes that ``the Valley's ammonia
emissions have been significantly reduced through stringent
regulations, that additional ammonia control measures are infeasible,
and that Valley sources are already implementing BACM.'' \115\
---------------------------------------------------------------------------
\115\ 2018 PM2.5 Plan, App C., C-312.
---------------------------------------------------------------------------
b. Summary of Adverse Comments
Public Justice states that ``[w]eaker controls are consistently
allowed for agricultural sources,'' including an ``expansive menu of
control options'' in Rule 4570, that they assert provide little to no
emission reduction benefit.\116\ More broadly, as described in section
II.A.2 of this proposed rule, the commenters assert that ``[t]he
analysis of potential controls is particular[ly] weak and ignores the
wealth of literature demonstrating that strategies for reducing ammonia
emissions from agriculture . . . are among the most effective for also
reducing PM concentrations,'' and cite several studies in support of
this argument.\117\ The commenters further state that reducing ammonia
emissions may be achieved through ``strategies such as improving
livestock feed to reduce excreted nutrients, altering manure storage
and handling practices to prevent [ammonia] emissions, and improving
synthetic fertilizer use efficiency,'' again citing numerous
studies.\118\ The commenters
[[Page 60509]]
argue that the EPA ``should reject the plan's BACM analysis for failing
to justify these weaker controls, and for being inconsistent with the
Title VI prohibition against policies and practices that inflict
disparate impacts.''
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\116\ Public Justice Comment Letter, 20.
\117\ Public Justice Comment Letter, 16, Exhibits 31 through 34.
\118\ Public Justice Comment Letter, 17, Exhibits 35 through 40
and three additional studies: N. Cole, et al., ``Influence of
dietary crude protein concentration and source on potential ammonia
emissions from beef cattle manure,'' J. Anim. Sci. 83, 722, 2005; N.
Cole, P. Defoor, M. Galyean, G. Duff, J. Gleghorn, ``Effects of
phase-feeding of crude protein on performance, carcass
characteristics, serum urea nitrogen concentrations, and manure
nitrogen of finishing beef steers,'' J. Anim. Sci. 12, 3421-3432,
2006; and R. Todd, N. Cole, R. Clark, ``Reducing crude protein in
beef cattle diet reduces ammonia emissions from artificial feedyard
surfaces,'' J. Environ. Qual. 35, 404-411, 2006.
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c. The EPA's Reconsidered Proposal
As a result of our proposed conclusion that ammonia remains a
regulated precursor for the 2012 annual PM2.5 NAAQS in the
SJV, the EPA has evaluated potential ammonia emissions control measures
for the two most substantial source categories in the SJV and evaluated
whether the State has implemented ammonia controls with a BACM/BACT
level of stringency. Thus, the EPA has also evaluated the existing
control measures that the State claims are BACM for two of the main
sources of ammonia in the area, including confined animal facilities
(CAFs) and fertilizer application.\119\ As discussed below, we conclude
that the SJV has not established that it has enforceable requirements
in the SIP that meet a BACM level of stringency to reduce ammonia
emissions from these two categories. Therefore, we propose to
disapprove BACM for ammonia sources in the SJV.
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\119\ By focusing on these two source categories, the EPA is not
indicating that this is an exhaustive list of ammonia source
categories that must be evaluated for BACM. However, because these
two categories amount to more than 90% of the ammonia emissions in
the SJV, we focus our analysis on these two categories.
---------------------------------------------------------------------------
Our basis for proposing to disapprove BACM for ammonia sources
flows from the controls analysis we have reviewed and discuss in
section II.A.3 of this proposed rule. We agree with the commenters that
the analysis of potential controls in the 2018 PM2.5 Plan
was weak in two general areas: (1) incomplete quantification of
existing ammonia emission reductions, and (2) lack of consideration of
potential ammonia control measures identified in research studies. In
that section we describe the Plan's weaknesses with respect to
quantifying emission reductions and rely on that description for
purposes of evaluating BACM.
Similarly, in section II.A.3, we discuss additional options for
ammonia control that we will not reiterate here. Based on our review of
the additional research studies cited by the commenters with respect to
CAFs, measures such as those for adjusting the protein content of
livestock feed (e.g., reducing the portion of beef cattle finishing
diets by 1.5% steam-flaked corn), manure handling and storage (e.g.,
washing dairy cow collecting yards after each milking event, covering
solid manure stores with sheeting), and land application of slurry
(e.g., injection application techniques), it appears that additional
measures may be available to evaluate. Absent a thorough and more
current evaluation of technological and economic feasibility of
potential measures as applied in the SJV, we propose to find that the
State has not demonstrated whether or how additional measures (e.g., in
the form of existing options that could also be feasibly implemented,
or new options that may lead to increased reductions) may have been
evaluated, implemented (even partially) by the existing rules, or set
aside for reasons of technological feasibility or economic feasibility,
consistent with the BACM requirements.
For fertilizer application, as discussed in section II.A.3 of this
proposed rule, the District indicates that it does not have authority
to regulate ammonia emissions from fertilizer application. Regardless
of which State entity, as a matter of State law, has authority over
this class of activities, CAA section 189(b)(1) requires that the State
include provisions to ensure implementation of BACM for direct
PM2.5 and plan precursor emissions, and CAA section
110(a)(2)(E)(i) requires the State to provide necessary assurances that
it has adequate authority to carry out the implementation plan for the
area. While the Plan describes certain water-related measures (e.g.,
Nutrient Management Plans and Nitrogen Management Plan) that subject
agricultural operators, including dairies, bovine feedlots, poultry
operations, and crop farmers to waste discharge requirements, and
likely limit ammonia emissions to the air, to our knowledge, these
regulations do not impose any enforceable requirement for ammonia
emissions to the air, and thus suffer a similar problem as Rule
4570.\120\
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\120\ Unlike Rule 4570, which has been approved into the
California SIP to limit VOC emissions, the State's water-related
regulations on fertilizer application have not been submitted for
approval into the California SIP.
---------------------------------------------------------------------------
We agree that as a general matter, managing the amount of nitrogen
applied to the environment should reduce the potential for pollution to
air, water, and land. However, the 2018 PM2.5 Plan does not
quantify or otherwise substantiate the scale and timing of such
potential ammonia emission reduction benefits, nor their
enforceability. We propose that the State has not adequately identified
potential control measures, evaluated for BACM/BACT, nor demonstrated
the implementation of BACM/BACT for controlling ammonia emissions from
fertilizer application, the second largest source of such emissions in
the SJV.
As a result of our proposal that the State has not demonstrated
that BACM/BACT controls are in place for CAFs and fertilizer
application, two source categories that make up more than 90% of the
ammonia emissions in the SJV, we propose to disapprove the State's BACM
demonstration for ammonia sources.
3. BACM for Building Heating Emission Sources
a. Summary of 2021 Proposed Rule
In our 2021 Proposed Rule, the EPA summarized the State's
submission in the 2018 PM2.5 Plan for the SJV and presented
our BACM evaluation for emission sources of direct PM2.5 and
NOX.\121\ We briefly summarize those components here with
respect to the State's BACM demonstration for building heating emission
sources, such as water heaters and space heaters (e.g., furnaces), in
the SJV.
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\121\ 86 FR 74310, 74324-74325.
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In Appendix C of the 2018 PM2.5 Plan, the District
identifies the stationary and area sources of direct PM2.5
and NOX in the SJV that are subject to District emission
control measures and provides its evaluation of these regulations for
compliance with BACM requirements. As part of its process for
identifying candidate BACM, the District reviewed the EPA's guidance
documents on BACM, additional guidance documents on control measures
for direct PM2.5 and NOX emission sources, and
control measures implemented in other ozone and PM2.5
nonattainment areas in California and other states.\122\ Based on these
analyses, the District concludes that all best available control
measures for stationary and area sources are in place in the SJV for
NOX and directly emitted PM2.5 for purposes of
meeting the BACM/BACT requirement for the 2012 annual PM2.5
NAAQS.
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\122\ 2018 PM2.5 Plan, Ch. 4, section 4.3.1.
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With respect to building heating emission sources, the District
presents its evaluations of Rule 4902 (``Residential Water Heaters'')
and Rule 4905 (``Natural Gas-Fired, Fan-Type Central Furnaces'') in
sections C.20 and C.21, respectively, of Appendix C of the 2018
PM2.5 Plan. Both rules are point of sale rules that limit
what kinds of residential water heaters and furnaces may be sold in the
SJV. The District describes the types of equipment covered by each
rule, compares the specific provisions of each rule that
[[Page 60510]]
limit NOX emissions \123\ to comparable rules in other
California air districts, and concludes that each rule represents BACM
for their respective source category.
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\123\ The District notes that equipment subject to Rule 4902 are
fired on natural gas that meets California Public Utility Commission
standards and, therefore, emit only low amounts of SOX
and direct PM2.5. 2018 PM2.5 Plan, App. C, C-
288.
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Rule 4902 applies to natural gas-fired, residential water heaters
with heat input rates less than or equal to 75,000 British thermal
units per hour (Btu/hr). The District tightened the rule's
NOX limits in 2009; and the EPA approved the rule into the
SIP in 2010.\124\ The District estimates that, due to Rule 4902, annual
average emissions of NOX would decrease from 2.15 tpd in
2013 to 1.91 tpd in 2025 (0.24 tpd decrease) and annual average
emissions of direct PM2.5 would increase from 0.21 tpd in
2013 to 0.23 tpd in 2025 (0.02 tpd increase).\125\
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\124\ 75 FR 24408 (May 5, 2010).
\125\ 2018 PM2.5 Plan, App. C, C-283.
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In addition to comparing the NOX limits in its Rule 4902
to rules in other California air districts, the District also presents
a multi-factor comparison of natural gas-fired and propane-fired, water
heaters to electric water heaters.\126\ The District discussed the
likely impacts of requiring electric water heaters, including the
advantages such as no NOX emissions,\127\ less expensive
purchase price, and smaller size, and the disadvantages such as higher
cost of electricity, and the costs of residence modifications to
convert to electric. Based on 2017-2018 data, which is consistent with
the timing of Plan adoption in 2018, the District calculated emission
reductions and cost effectiveness of the three kinds of water heaters
by fuel type and concluded that ``[w]hile the lifetime cost of an
electric water heater is higher than that of propane and natural gas,
the emissions benefits may make converting to electric water heating a
viable control strategy.'' \128\ The analysis does not explore the cost
effectiveness of such controls and Rule 4902 does not include any
requirements regarding electrification.
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\126\ 2018 PM2.5 Plan, App. C, C-288 to C-289.
\127\ The EPA notes that while the NOX emissions of
electric water heaters and furnaces are zero, there could be an
increase in NOX emissions from electric power plants.
\128\ 2018 PM2.5 Plan, App. C, C-289.
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Rule 4905 applies to natural gas-fired, fan-type central furnaces
with heat input rates less than 175,000 Btu/hr and combination heating
and cooling units with a rated cooling capacity of less than 65,000
Btu/hr. In 2015, the District tightened the rule's NOX
limits for residential units and expanded the rule to include
commercial units and manufactured homes according to a phase-in
schedule. The EPA approved the rule into the SIP in 2016.\129\ The
District estimates that, due to Rule 4905, annual average emissions for
NOX will decrease from 2.44 tpd in 2013 to 2.13 tpd in 2025
(0.31 tpd decrease) and annual average emissions for direct
PM2.5 will increase from 0.20 tpd in 2013 to 0.22 tpd in
2025 (0.02 tpd increase).\130\ Given the need to extend certain
compliance deadlines in subsequent amendments to Rule 4905 due to
limited supply of certified compliant units,\131\ the District states
that it had identified no additional emission reduction measures for
this source category as of that point in time.\132\
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\129\ 81 FR 17390 (March 29, 2016).
\130\ 2018 PM2.5 Plan, App. C, C-290.
\131\ The District further amended Rule 4902 in 2018, 2020, and
2021 to extend the compliance deadline for specific units due to
limited supply of certified compliant units, with each amendment
applying to a smaller subset of those specific units. See, e.g., San
Joaquin Valley UAPCD, ``Item Number 10: Adopt Proposed Amendments to
Rule 4905 (Natural Gas-Fired, Fan-Type Central Furnaces),'' December
16, 2021, 2-3.
\132\ 2018 PM2.5 Plan, App. C, C-293. Unlike the
District's consideration of electric water heaters, the District did
not present an evaluation of electric furnaces in its analysis of
Rule 4905.
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As noted in the EPA's 2021 Proposed Rule, we provided our
evaluation of the District's BACM demonstration for stationary and area
sources in general, and several source categories in more detail, in
three documents: (1) section III of the EPA's ``Technical Support
Document, EPA Evaluation, San Joaquin Valley Serious Area Plan for the
2012 Annual PM2.5 NAAQS,'' December 2021 (``EPA's 2012
Annual PM2.5 TSD''); (2) the EPA's ``Technical Support
Document, EPA Evaluation of BACM/MSM, San Joaquin Valley
PM2.5 Plan for the 2006 PM2.5 NAAQS,'' February
2020 (``EPA's BACM/MSM TSD''); and (3) the EPA's ``Response to Comments
Document for the EPA's Final Action on the San Joaquin Valley Serious
Area Plan for the 2006 PM2.5 NAAQS,'' June 2020 (``EPA's
2020 Response to Comments''). In particular, the EPA's 2020 Response to
Comments presented our evaluation of the District's BACM demonstration
for residential water heaters and residential and commercial, natural
gas-fired, fan-type central furnaces.\133\ At that time we found that
the requirements for residential fuel combustion covered by Rule 4902
and Rule 4905 represented BACM.\134\ In addition, the EPA concluded
that setting a zero-NOX standard for heating appliances in
new buildings reasonably requires additional consideration and analysis
of technological and economic feasibility by the District because, per
the 2018 PM2.5 Plan, the most common types of residential
water heaters and furnaces are those that use natural gas as fuel.
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\133\ EPA's 2020 Response to Comments, Comment 6.O and Response
6.O, 142-148.
\134\ EPA's 2020 Response to Comments, 146-147.
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We also noted that the building codes referenced by commenters at
that time appear to be green building code ordinances that restrict or
prohibit installation of natural gas or propane appliances in new
construction.\135\ Such ordinances, most of which appeared to have been
adopted in late 2019 and early 2020, fell within a category known as
``reach codes,'' which are city and county building code standards for
energy efficiency that exceed California's State-wide standards. We
stated that California law requires local governments to submit
proposed ordinances to the California Energy Commission (CEC) for a
determination that they will be both cost effective and more energy
efficient than statewide standards; compliance with this procedure is
necessary for such measures to be enforceable.\136\ We also noted that
ordinances adopted by city councils and county officials are legally
distinct from measures adopted by the governing boards of the
respective air districts and that it did not appear at the time that
California air districts had adopted similar restrictions.
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\135\ EPA's 2020 Response to Comments, 147-148.
\136\ California 2019 Building Energy Standards, at California
Code of Regulations (CCR), Title 24, Part 1, Article 1, Sec. 10-106
(``Locally Adopted Energy Standards''); see also https://ww2.energy.ca.gov/title24/2016standards/ordinances.
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b. Summary of Adverse Comments
Public Justice states that further emission controls are available
for building heating via the electrification of furnaces, water
heaters, and other gas-fired appliances.\137\ The commenters refer to
comments submitted by a group of environmental, public health, and
community organizations (collectively referred to herein as ``NPCA'')
on the EPA's proposed rule on the 2006 24-hour PM2.5 NAAQS
portion of the SJV PM2.5 Plan,\138\ noting that building
electrification requirements to reduce emissions from such sources
already
[[Page 60511]]
exist in over 30 jurisdictions in California and other states. The
commenters state that, since that time, additional jurisdictions have
moved forward with gas bans, appliance standards, and other strategies
for building heating.\139\
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\137\ Public Justice Comment Letter, 19.
\138\ Comment letter dated and received April 27, 2020, from
Mark Rose, NPCA, et al., to Rory Mays, EPA, including Appendices A
through G. The seven environmental and community organizations, in
order of appearance in the letter, are the National Parks
Conservation Association (NPCA), Earthjustice, Central Valley Air
Quality Coalition, Coalition for Clean Air, Central Valley
Environmental Justice Network, The Climate Center, and Central
Valley Asthma Collaborative (collectively ``NPCA'').
\139\ Public Justice Comment Letter, 19, and Exhibits 41 through
44. Commenters also state that studies suggest these measures may
provide particularly notable benefits to winter PM2.5
peaks in the SJV. Id. at 19.
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With respect to the EPA's response to the NPCA comments in
2020,\140\ Public Justice argues that the ``EPA merely asserted that
the District had found increased building electrification infeasible,''
despite the record showing that other jurisdictions required such
measures, and assert that the District noted the potential of such
measures but rejected them without explanation. The commenters further
argue that the EPA did not rebut evidence on the benefits and
feasibility of such measures, instead noting the need for further
consideration, and that two years later, the Plan does not provide
further consideration.
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\140\ EPA, ``Response to Comments Document for the EPA's Final
Action on the San Joaquin Valley Serious Area Plan for the 2006
PM2.5 NAAQS,'' June 2020. See Comment 6.O and Response
6.O on pages 142-147.
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c. The EPA's Reconsidered Proposal
Based on the adverse comments from Public Justice, the EPA has
reconsidered our proposed approval of the State's demonstration of BACM
for NOX and direct PM2.5 emissions from building
heating appliances, such as residential water heating and residential
and commercial space heating. As discussed below, we now propose to
disapprove the State's BACM demonstration for such building heating
emission sources.
Although the EPA has previously approved the State's BACM
demonstration for building heating emission sources in 2020 with
respect to the 2006 24-hour PM2.5 NAAQS portion of the 2018
PM2.5 Plan, and such approval was upheld by the Ninth
Circuit Court of Appeals,\141\ several factors have reshaped the facts
and circumstances of controlling emissions from such sources as of 2022
and beyond. First, while building ordinances that restrict or prohibit
installation of natural gas or propane appliances in new construction
were starting to appear in 2019 and 2020, as Public Justice correctly
asserts, two additional years have passed and additional jurisdictions
have adopted gas bans, appliance standards, and other strategies for
building heating.\142\ A recent policy brief published by the UCLA
School of Law states that 52 cities and counties in California have
adopted building codes to reduce their reliance on gas for building
heating appliances, and discusses several examples.\143\ The growth in
the number and types of local control measures to reduce pollution from
building heating by restricting or limiting the use of natural gas-
fired heaters support their general availability as technologically
feasible measures.
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\141\ Ninth Circuit Memorandum Order, 9. Regarding increased
building electrification requirements, the Court stated that ``the
EPA considered such an approach and reasonably accepted the State's
determination that it was not feasible at this time.''
\142\ See Public Justice Comment Letter, Exhibits 41 through 44.
\143\ Heather Dadashi, Cara Horowitz, and Julia Stein,
``Pritzker Environmental Law and Policy Briefs, How Air Districts
Can End NOX Pollution From Household Appliances,'' Emmett
Institute on Climate Change and the Environment, UCLA School of Law,
March 2022, 8.
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Second, the time horizon of the 2012 annual PM2.5 NAAQS
portion of the SJV PM2.5 Plan is one year later (2025
attainment date) than that of the 2006 24-hour PM2.5 NAAQS
portion of the Plan (2024 attainment date), affording additional time
for potential control measures to achieve emission reductions that may
assist attainment of the 2012 annual PM2.5 NAAQS. Even if
full implementation of such new measures is not possible by the
applicable attainment date, the State should evaluate whether they
could be implemented in part, consistent with the fifth step for BACM/
BACT evaluation discussed in the PM2.5 SIP Requirements Rule
and the General Preamble (i.e., to determine the earliest date by which
a control measure or technology can be implemented in whole or in
part).\144\
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\144\ 81 FR 58010, 58083-58085.
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Third, some of the underlying bases for the District's cost
comparison for residential water heating may have changed since the
District's 2018 adoption of the Plan. For example, in comparing
emission reductions and cost effectiveness of low-NOX
natural gas, propane, and electric water heaters, the District used
data on energy factors and purchase price from Grainger Industrial
Supply as of June 14, 2018, and lifetime energy cost data from the U.S.
Energy Information Administration as of 2017. Furthermore, as claimed
by Public Justice, the District did not explain its rejection of
additional control measures of this type, other than to assert that
they were generally more costly. Regarding residential and commercial
space heating, CARB and the District did not provide a detailed
economic feasibility analysis in the Plan. CARB and the District simply
stated that, due to limited supply of certified compliant natural gas-
fired units to comply with Rule 4905, they could identify no additional
emission reduction measures. The incomplete cost analyses presented by
the District, changes in costs over time, and lack of justification for
rejecting measures to reduce pollution from building heating by
restricting or limiting the use of natural gas-fired heaters indicate
an insufficient economic feasibility analysis.
Fourth, CARB and at least one other air district (Bay Area AQMD)
are moving forward in developing measures to set zero-emission
standards for space heaters and water heaters. In developing its 2022
State SIP Strategy (for the 2015 ozone NAAQS), CARB has stated that the
``fuels we use and burn in buildings, primarily natural gas, for space
and water heating contribute significantly to building-related criteria
pollutant and GHG emissions and provide an opportunity for substantial
emissions reductions where zero-emission technology is available.''
\145\ Accordingly, CARB is developing zero-emission standard concepts
and, given the intersection of air quality needs and other areas of
building and energy regulation, and identifying other regulatory
entities that they plan to engage, including the U.S. Department of
Energy, CEC, and the California Building Standards Commission,
Department of Housing and Community Development. We note, however, that
the proposed 2022 State SIP Strategy released August 12, 2022,
anticipates implementation starting in 2030, pending rule development
and CARB Board hearing in 2025.\146\
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\145\ CARB, ``Draft 2022 State Strategy for the State
Implementation Plan,'' January 31, 2022, 86-88.
\146\ CARB, ``Proposed 2022 State Strategy for the State
Implementation Plan,'' August 12, 2022, 101-103.
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The Bay Area AQMD hosted public meetings in 2021 and developed
draft amendments to certain rules that would reduce NOX
emissions from residential and commercial furnaces and water
heaters.\147\ Specifically, Bay Area AQMD has developed draft
amendments to two rules: (1) Regulation 9, Rule 4 (``Nitrogen Oxides
from Fan Type Residential Central Furnaces''), which applies to
furnaces with a heat input rate of less than 175,000 Btu/hr and
combination heating and cooling units with a rated cooling capacity of
less than 65,000 Btu/hr (like SJVUAPCD Rule 4905); and (2) Regulation
9, Rule 6 (``Nitrogen Oxides Emissions from
[[Page 60512]]
Natural Gas-Fired Boilers and Water Heaters''), which applies to water
heaters with a rated heat input capacity of 75,000 Btu/hr or less (like
SJVUAPCD Rule 4902), as well as additional source types and sizes.\148\
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\147\ A summary of the Bay Area AQMD's rule development is
available at: https://www.baaqmd.gov/rules-and-compliance/rule-development/building-appliances.
\148\ As in the San Joaquin Valley, larger boilers and similar
equipment used in industrial, institutional, and large commercial
settings are subject to other rules of the Bay Area AQMD, and
therefore not subject to Rule 4 or Rule 6.
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For Rule 4, Bay Area AQMD staff have developed draft amendments to
lower the current NOX emission limit for applicable furnaces
from 40 nanograms of NOX per joule of useful heat (ng/j) to
14 ng/j (which would match the limit in SJVUAPCD Rule 4905) in the
short term (with a compliance date of January 1, 2023); followed by a
zero-NOX emission requirement (with a compliance date of
January 1, 2029); and expand the applicability beyond fan-type central
furnaces to other types of equipment (e.g., wall furnaces and direct
vent units).\149\ For Rule 6, which contains NOX limits for
small boilers and water heaters, Bay Area AQMD staff proposes a zero-
NOX emission requirement. However, staff also note that
while technologies achieving zero-NOX emissions exist,
``they are limited in availability and can be expensive,'' that such
standards would be ``technology and market-forcing,'' and, therefore,
staff proposes compliance dates of January 1, 2027, and January 1,
2031, depending on equipment heat rate (i.e., the size of the boiler or
water heater).\150\
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\149\ Bay Area AQMD, ``Workshop Report, Draft Amendments to
Building Appliance Rules--Regulation 9, Rule 4: Nitrogen Oxides from
Fan Type Residential Central Furnaces and Rule 6: Nitrogen Oxide
Emissions from Natural Gas-Fired Boilers and Water Heaters,''
September 2021, 1.
\150\ Id.
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CARB and Bay Area AQMD efforts in this area underscore the
importance of building heating emission sources, such as water heaters
and space heaters (e.g., furnaces), throughout California and the
continued effort to implement available control measures for these
sources for criteria pollutant attainment planning requirements. At the
same time, while SJVUAPCD, CARB, and Bay Area AQMD each acknowledge
that zero-NOX emission technology for small residential and
commercial space and water heating is available, it is unclear what a
feasible implementation horizon might be in light of CARB's strategy
and the Bay Area AQMD's draft amendments. The plan as submitted did not
address how such implementation considerations may or may not affect
the feasibility of setting such zero-NOX emission standards
for space and water heating in small residential and commercial
buildings in the SJV.
Given the factors discussed above, we now propose that the State
has not adequately identified potential control measures, evaluated for
BACM/BACT, nor demonstrated the implementation of BACM/BACT for
controlling NOX and direct PM2.5 emissions from
building emission heating sources in the SJV.
C. Attainment Demonstration
1. Summary of 2021 Proposed Rule
In sections IV.C (air quality modeling) and IV.F (attainment
demonstration) of our 2021 Proposed Rule, the EPA summarized the CAA
and regulatory requirements for air quality modeling and attainment
demonstrations, the State's submission in the SJV PM2.5
Plan, and our evaluation thereof.\151\ We briefly summarize those
components herein.
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\151\ 86 FR 74310, 74322-74324 (air quality modeling) and 74325-
74338 (attainment demonstration).
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Sections 188(c)(2) and 189(b)(1)(A) of the CAA require that Serious
area plans must include a demonstration (including air quality
modeling) that provides for attainment of the PM2.5 NAAQS as
expeditiously as practicable, but no later than the end of the tenth
calendar year after the area's designation as nonattainment. The
PM2.5 SIP Requirements Rule also specifies that the control
strategy in a Serious area attainment plan must provide for attainment
as expeditiously as practicable.\152\ The outermost statutory Serious
area attainment date for the 2012 annual PM2.5 NAAQS in the
SJV is December 31, 2025 (absent an EPA-approved attainment date
extension request under CAA section 188(e)). For purposes of
determining the attainment date that is as expeditious as practicable,
the State must conduct future year modeling that takes into account
emissions growth, known emissions controls (including any controls that
were previously determined to be RACM/RACT or BACM/BACT), any other
emissions controls required to meet BACM/BACT, and additional measures
as needed for expeditious attainment of the NAAQS. The regulatory
requirements for Serious area plans are codified at 40 CFR 51.1010
(control strategy requirements) and 40 CFR 51.1011(b) (attainment
demonstration and modeling requirements). We also described the EPA's
PM2.5 modeling guidance (``Modeling Guidance''),\153\
including our recommendations therein for photochemical modeling,
inputs, procedures, performance evaluation, emissions simulation, and
calculating relative response factors (RRFs).
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\152\ 40 CFR 51.1011(b)(1); 81 FR 58010, 58087.
\153\ Memorandum dated November 29, 2018, from Richard Wayland,
Air Quality Assessment Division, OAQPS, EPA, to Regional Air
Division Directors, EPA, Subject: ``Modeling Guidance for
Demonstrating Air Quality Goals for Ozone, PM2.5, and
Regional Haze,'' (``Modeling Guidance'').
---------------------------------------------------------------------------
With respect to air quality modeling, the 2018 PM2.5
Plan included the State's modeled attainment demonstration projecting
that the SJV will attain the 2012 annual PM2.5 NAAQS by
December 31, 2025; the State's primary discussion of the photochemical
modeling appears in Appendix K (``Modeling Attainment Demonstration'').
The State provides a conceptual model of PM2.5 formation in
the SJV as part of the modeling protocol in Appendix L (``Modeling
Protocol'') and describes emission input preparation procedures. The
State presents additional relevant information in Appendix C (``Weight
of Evidence Analysis'') of CARB's staff report for the 2018
PM2.5 Plan,\154\ which includes ambient trends and other
data in support of the demonstration of attainment by 2025.
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\154\ CARB, ``Staff Report, Review of the San Joaquin Valley
2018 Plan for the 1997, 2006, and 2012 PM2.5 Standards,''
release date December 21, 2018 (``CARB Staff Report'').
---------------------------------------------------------------------------
In the 2021 Proposed Rule, the EPA presented its review of the
State's modeling approach and its many interconnected facets, including
model input preparation, model performance evaluation, use of the model
output for the numerical NAAQS attainment test, and modeling
documentation, and found it to be generally consistent with the EPA's
recommendations in the Modeling Guidance. We incorporated our
evaluation of the Plan's modeling for the 2006 24-hour PM2.5
NAAQS portion of the SJV PM2.5 Plan \155\ and extended that
evaluation with information specific to the 2012 annual
PM2.5 NAAQS. Overall, in the 2021 Proposed Rule, we
considered the State's analyses consistent with the EPA's guidance on
modeling for PM2.5 attainment planning purposes and proposed
to find that the modeling in the 2018 PM2.5 Plan was
adequate for the purposes of supporting the State's RFP demonstration
and the attainment demonstration.
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\155\ EPA Region IX, ``Technical Support Document, EPA
Evaluation of Air Quality Modeling, San Joaquin Valley
PM2.5 Plan for the 2006 PM2.5 NAAQS,''
February 2020 (``EPA's 2006 NAAQS Modeling TSD'').
---------------------------------------------------------------------------
With respect to the attainment demonstration, the SJV
PM2.5 Plan includes a modeled demonstration projecting
attainment of the 2012 annual PM2.5 NAAQS in the SJV by
December 31, 2025, based on emission reductions
[[Page 60513]]
from implementation of baseline control measures and the development,
adoption, and implementation of additional control measures to meet
specific enforceable commitments. In the EPA's 2021 Proposed Rule, we
described how the Plan's control strategy was to reduce emissions from
sources of NOX and direct PM2.5 and that most of
the projected emission reductions are achieved by baseline measures--
i.e., the combination of State and District measures adopted prior to
the State's and District's adoption of the Plan--that will achieve
ongoing emission reductions from the 2013 base year to the 2025
projected attainment year.
The remainder of the Plan's emission reductions are to be achieved
by additional measures to meet enforceable commitments, including
potential regulatory and incentive-based measures and, as necessary,
substitute measures.\156\ In the Valley State SIP Strategy and the 2018
PM2.5 Plan, CARB and the District, respectively, included
commitments to take action on specific measures by specific years or to
develop substitute measures (referred to as ``control measure
commitments'') and to achieve specified amounts of NOX and
direct PM2.5 emission reductions by certain dates (referred
to as ``aggregate tonnage commitments'').\157\ We refer to these
complementary commitments herein as ``aggregate commitments.''
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\156\ In this proposed rule, the term ``substitute measures''
means additional control measures that were not identified in CARB
and the District's original control measure commitments in adopting
the Valley State SIP Strategy and the 2018 PM2.5 Plan,
respectively. The ``substitute'' aspect primarily relates to
emission reductions (i.e., providing emission reductions where any
adopted measure achieves less emission reductions than originally
estimated, and/or providing emission reductions in lieu of any
originally planned measure that is not adopted). They are also
sometimes referred to as ``alternative measures'' in the SJV
PM2.5 Plan and adopting resolutions.
\157\ CARB Resolution 18-49 and SJVUAPCD Governing Board
Resolution 18-11-16, paragraph 6.
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In the 2021 Proposed Rule, the EPA described several findings
relating to our evaluation of the SJV PM2.5 Plan's
attainment demonstration. First, we proposed to approve the Plan's
emissions inventories and to find the Plan's air quality modeling
adequate.\158\ Second, we proposed to find that the Plan provides for
expeditious attainment through the timely implementation of the control
strategy to reduce emissions from sources of NOX and direct
PM2.5, including RACM, BACM, and any other emission controls
necessary for expeditious attainment.
---------------------------------------------------------------------------
\158\ Sections IV.A (emissions inventory) and IV.C (air quality
modeling) of the 2021 Proposed Rule.
---------------------------------------------------------------------------
Third, the EPA proposed to find that the emissions reductions that
are relied on for attainment in the SIP submission are creditable. We
noted that the SJV PM2.5 Plan relies principally on already
adopted and approved rules to achieve the emissions reductions needed
to attain the 2012 annual PM2.5 NAAQS in the SJV by December
31, 2025, and that the balance of the reductions that the State has
modeled to achieve attainment by this date is currently represented by
enforceable commitments that account for 13.8% of the NOX
and 8.0% of the direct PM2.5 emissions reductions needed for
attainment. In terms of our evaluation of CARB and the District's
enforceable commitments, we proposed to find that circumstances in the
SJV for the 2012 annual PM2.5 NAAQS warrant the
consideration of enforceable commitments and that the EPA's three
criteria for such commitments had been met: (1) the commitments
constitute a limited portion of the required emissions reductions; (2)
both CARB and the District have demonstrated their capability to meet
their commitments; and (3) the commitments are for an appropriate
timeframe. We therefore proposed to approve the State's reliance on
these enforceable commitments in its attainment demonstration.
Overall, in the 2021 Proposed Rule, we proposed to approve the SJV
PM2.5 Plan's demonstration of attainment of the 2012 annual
PM2.5 NAAQS by December 31, 2025, consistent with the
requirements of CAA section 189(b)(1)(A). We presented the basis for
our proposed determination in sections IV.F.3.a through IV.F.3.e of the
2021 Proposed Rule and provided further detail of our evaluation of
baseline measures and the additional measures and aggregate commitments
in sections II and IV, respectively, of the EPA's 2012 Annual
PM2.5 TSD.
2. Summary of Ninth Circuit Order and Adverse Comments
As introduced in section I.D of this proposed rule, in response to
a petition for review of the EPA's approval of the 2006 24-hour
PM2.5 NAAQS portion of the SJV PM2.5 Plan, the
Ninth Circuit Court of Appeals issued a Memorandum Opinion that, in
part, vacated the final action with respect the EPA's second factor for
evaluating the validity of the State's enforceable commitments (i.e.,
whether the State is capable of fulfilling its commitment). The Ninth
Circuit's order is very relevant to this proposed rule because the
State relied on the same common control strategy, including the same
set of enforceable commitments (i.e., the same set of control measure
commitments and aggregate tonnage commitments) for both the 2006 24-
hour PM2.5 NAAQS Serious area plan and the 2012 annual
PM2.5 NAAQS Serious area plan.
The Ninth Circuit found that the EPA ``fail[ed] to provide evidence
or a reasoned explanation for its conclusion that California will be
able to fulfill its commitment'' in the face of a potential multi-
billion dollar funding shortfall for incentive-based control measure
commitments, ``which could result in emission reduction shortfalls of
approximately 7% of the total NOX reductions and 8% of the
total PM2.5 reductions necessary for attainment.'' \159\ In
response to the EPA's arguments that: (1) the funding shortfall may be
smaller than projected; (2) emission reductions may be less expensive
than the strategy predicts; (3) certain yet-to-be-quantified sources of
reductions in the Plan may make up for shortfalls; and (4) California
and the District may identify other measures to fulfill their
commitments, the Court wrote that, ``[b]ecause these speculative
assertions are unsupported by the evidence, they fail to ensure that
California and the District have a plausible strategy for achieving
this portion of the attainment strategy, and therefore do not
collectively satisfy the second factor of the EPA's three-factor
test.'' \160\ It is important to emphasize that the State relied
heavily on the projected emission reductions that it hopes to achieve
through new control measures and emissions reductions reflected in the
aggregate commitments. These reductions are crucial to the State
meeting the modeled attainment demonstration and RFP requirements. If
it is not credible that the State can meet the commitments, then the
EPA cannot approve other nonattainment plan elements that rely upon
them.
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\159\ Medical Advocates for Healthy Air v. EPA, Case No. 20-
72780, Dkt. #58-1 (9th Cir., April 13, 2022), 6.
\160\ Id. at 7.
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Separately, in comments on the EPA's 2021 Proposed Rule, Public
Justice states that CARB and the District's aggregate tonnage
commitments are to ``achieve a specific amount of reductions at the
last possible moment prior to the attainment deadline with no concrete
strategies for how that will be achieved.'' \161\ They assert that
prior plans with aggregate tonnage commitments for the 1997 annual
PM2.5 NAAQS by 2015 (i.e., the 2008 PM2.5 Plan)
and then by 2020 (i.e., the SJV PM2.5 Plan) failed to attain
those standards and that such past failures implies that the
commitments failed to
[[Page 60514]]
deliver the promised clean air.\162\ The commenters further state that
``deferred, unspecified, and last-minute promises to achieve reductions
(i.e., aggregate commitments), inflicts disparate impacts in violation
of Title VI,'' irrespective of whether the commitments comply with the
CAA.
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\161\ Public Justice Comment Letter, 20.
\162\ Public Justice refers specifically to the EPA's November
2016 finding of failure to attain and the EPA's November 2021 final
disapproval of the 1997 annual PM2.5 NAAQS portion of the
SJV PM2.5 Plan. 81 FR 84481 (November 23, 2016) and 86 FR
67329 (November 26, 2021), respectively.
---------------------------------------------------------------------------
3. The EPA's Reconsidered Proposal
As a result of the Ninth Circuit Memorandum Opinion with respect to
the SJV PM2.5 Plan's enforceable commitments, the EPA has
reconsidered its proposed approval of the Plan's demonstration of
attainment for the 2012 annual PM2.5 NAAQS in the SJV by
December 31, 2025, and now proposes to disapprove the Plan's attainment
demonstration. The Ninth Circuit Memorandum Opinion raised concerns
about the ability of CARB and the District to fulfill the commitments.
We present our reconsideration in the following sections of this
proposed rule: (1) our reconsideration of CARB and the District's
enforceable commitments and proposal that the commitments do not meet
the second factor of the EPA's three-factor test (in section II.C.3.a);
and (2) the effect of our proposed disapproval of the State's
enforceable commitments and specific portions of the State's BACM
demonstration on the modeled attainment demonstration (in section
II.C.3.b).
a. Additional Measures and Enforceable Commitments
In this subsection we re-examine CARB and the District's
enforceable commitments. We describe CARB and the District's progress
in adopting specific measures that they committed to present for
governing board adoption, and evaluate whether CARB and the District
have demonstrated the capability to achieve specific tonnages of
reductions that they committed to achieve by the 2025 attainment year.
We first enumerate the measures that have already been approved into
the SIP and quantify the amount of the tonnage commitment that these
account for. We then calculate CARB and the District's remaining
commitments as of the time of this notice, describe the strategy that
CARB and the District have provided for achieving the remaining
reductions (consisting of submitted measures that have not yet been
approved into the SIP, adopted measures that have not yet been
submitted to the EPA, measures under development, and other potential
future measures), and calculate the reductions that may be associated
with these measures. We conclude that although CARB and the District
have made substantial progress toward achieving the committed-to
reductions, CARB and the District have not presented a plausible
strategy demonstrating that they are capable of achieving the entirety
of the aggregate commitment.
In our 2021 Proposed Rule, the EPA described the SJV
PM2.5 Plan's series of CARB and District commitments to
achieve emission reductions through additional control measures, beyond
baseline measures, that are intended to contribute to expeditious
attainment of the 2012 annual PM2.5 NAAQS. For mobile
sources, CARB identified a list of 12 State regulatory measures and 3
incentive-based measures that CARB has committed to propose to its
Board for consideration by specific years.\163\ For stationary sources,
the District identified a list of nine regulatory measures and three
incentive-based measures that the District has committed to propose to
its Board for consideration by specific years.\164\
---------------------------------------------------------------------------
\163\ CARB Resolution 18-49, Attachment A and Valley State SIP
Strategy, Table 7 (``State Measures and Schedule for the San Joaquin
Valley''). The schedule of proposed SIP measures in Table 7 includes
two additional CARB measures: the second phase of the Advanced Clean
Cars Program (``ACC 2'') and the ``Cleaner In-Use Agricultural
Equipment'' measures. However, these measures are not scheduled for
implementation until 2026 and 2030, respectively, which is after the
January 1, 2025 implementation deadline under 40 CFR 51.1011(b)(5)
for control measures necessary for attainment by December 31, 2025.
Therefore, we are not reviewing these measures as part of the
control strategy to attain the 2012 annual PM2.5 NAAQS in
the SJV.
\164\ SJVUAPCD Governing Board Resolution 18-11-16 and 2018
PM2.5 Plan, Table 4-4 (``Proposed Regulatory Measures'')
and Table 4-5 (``Proposed Incentive-Based Measures'').
---------------------------------------------------------------------------
The Plan contains CARB's and the District's estimates of the
emission reductions that could be achieved by each of these additional
measures, if adopted as planned.\165\ As we described in our 2021
Proposed Rule, CARB's commitments are contained in CARB Resolution 18-
49 (October 25, 2018) and the Valley State SIP Strategy and consist of
two parts: a control measure commitment and a tonnage commitment.
---------------------------------------------------------------------------
\165\ 2018 PM2.5 Plan, Ch. 4, Table 4-3 (''Emission
Reductions from District Measures'') and Table 4-9 (''San Joaquin
Valley Expected Emission Reductions from State Measures'') and
Valley State SIP Strategy, Table 8 (``San Joaquin Valley Expected
Emission Reductions from State Measures'').
---------------------------------------------------------------------------
First, CARB has committed to ``begin the measure's public process
and bring to the Board for consideration the list of proposed SIP
measures outlined in the Valley State SIP Strategy and included in
Attachment A, according to the schedule set forth.'' \166\ By email
dated November 12, 2019, CARB confirmed that it intended to begin the
public process on each measure by discussing the proposed regulation or
program at a public meeting (workshop, working group, or Board hearing)
or in a publicly-released document, and to then propose the regulation
or program to its Board.\167\ Second, CARB has committed ``to achieve
the aggregate emissions reductions outlined in the Valley State SIP
Strategy of 32 tpd of NOX and 0.9 tpd of PM2.5
emissions reductions in the San Joaquin Valley by 2024 and 2025.''
\168\ The Valley State SIP Strategy explains that CARB's overall
commitment is to ``achieve the total emission reductions necessary to
attain the Federal air quality standards, reflecting the combined
reductions from the existing control strategy and new measures'' and
that ``if a particular measure does not get its expected emissions
reductions, the State is still committed to achieving the total
aggregate emission reductions.'' \169\
---------------------------------------------------------------------------
\166\ CARB Resolution 18-49, 5.
\167\ Email dated November 12, 2019, from Sylvia Vanderspek,
CARB, to Anita Lee, EPA Region IX, ``RE: SJV PM2.5
information'' (attaching ``Valley State SIP Strategy Progress'') and
CARB Staff Report, 14.
\168\ CARB Resolution 18-49, 5.
\169\ Valley State SIP Strategy, 7.
---------------------------------------------------------------------------
Similarly, in our 2021 Proposed Rule, we explained that the
District's commitments are contained in SJVUAPCD Governing Board
Resolution 18-11-16 (November 15, 2018) and Chapter 4 of the 2018
PM2.5 Plan and also consist of two parts: a control measure
commitment and a tonnage commitment. First, the District has committed
to ``take action on the rules and measures committed to in Chapter 4 of
the Plan by the dates specified therein, and to submit these rules and
measures, as appropriate, to CARB within 30 days of adoption for
transmittal to EPA as a revision to the [SIP].'' \170\ By email dated
November 12, 2019, the District confirmed that it intended to take
action on the listed rules and measures by beginning the public process
on each measure, i.e., discussing the proposed regulation or program at
a public meeting, including a workshop, working group, or Board
hearing, or in a publicly-released document, and then proposing the
rule or measure to the SJVUAPCD Governing Board.\171\ Second, the
District has
[[Page 60515]]
committed to ``achieve the aggregate emissions reductions of 1.88 tpd
of NOX and 1.3 tpd of PM2.5 by 2024/2025''
through adoption and implementation of these measures or, if the total
emission reductions from these rules or measures are less than these
amounts, ``to adopt, submit, and implement substitute rules and
measures that achieve equivalent reductions in emissions of direct
PM2.5 or PM2.5 precursors'' in the same
implementation timeframes.\172\
---------------------------------------------------------------------------
\170\ SJVUAPCD Governing Board Resolution 18-11-16, 10-11.
\171\ Email dated November 12, 2019, from Jon Klassen, SJVUAPCD,
to Wienke Tax, EPA Region IX, ``RE: follow up on aggregate
commitments in SJV PM2.5 Plan'' (attaching ``District
Progress in Implementing Commitments with 2018 PM2.5
Plan'').
\172\ SJVUAPCD Governing Board Resolution 18-11-16, 10-11.
---------------------------------------------------------------------------
In sections IV.F.3.c and IV.F.3.d of our 2021 Proposed Rule, the
EPA described CARB's and the District's progress as of that point in
time on their control measure commitments and progress towards
fulfilling their respective aggregate commitments, respectively. Based
on our reconsideration of the State's enforceable commitments in light
of the Ninth Circuit Memorandum Opinion, while we propose to retain
certain findings with respect to the State's progress, we now propose
that the State has not adequately demonstrated that it can fulfill the
remaining portions of its enforceable commitments (i.e., the second
factor of the EPA's three-factor test). We present our reconsidered
evaluation of the status of CARB's and the District's control strategy
and our three-factor test for enforceable commitments, as follows.
With respect to progress on the control measure commitments, CARB
and the District together have adopted 18 measures of the 27 control
measure commitments in the SJV PM2.5 Plan and have begun the
public process on 5 of the remaining control measure commitments, which
is unchanged since the time of our 2021 Proposed Rule. This progress is
described in further detail in CARB and the District's ``Progress
Report and Technical Submittal for the 2012 PM2.5 Standard
San Joaquin Valley'' (2021 Progress Report).\173\ For CARB's portion,
CARB has adopted 10 of the 15 measures identified in its commitment
(including one incentive-based measure) and begun the public process on
3 of the remaining 5 measures. For the District's portion of the
control measure commitments, the District has adopted 8 of the 12
measures identified in its commitment (including one incentive-based
measure) and begun the public process on 2 of the remaining 4 measures.
---------------------------------------------------------------------------
\173\ ``Progress Report and Technical Submittal for the 2012
PM2.5 Standard San Joaquin Valley,'' October 19, 2021.
Transmitted to the EPA by letter dated October 20, 2021, from
Richard W. Corey, Executive Officer, CARB, to Deborah Jordan, Acting
Regional Administrator, EPA Region IX. See sections of 2021 Progress
Report entitled ``Progress in Implementing District Measures'' and
``Progress in Implementing CARB Measures.''
---------------------------------------------------------------------------
Although CARB and the District have made substantial progress in
developing and adopting the regulatory measures listed in their
respective control measure commitments, they have not yet fulfilled the
commitments for several measures in accordance with the timeframes
established in the SJV PM2.5 Plan. We provide further detail
on CARB and the District's control measure commitments in section IV.A
of the EPA's 2012 Annual PM2.5 TSD (including tables IV-A
and IV-B regarding CARB and the District's control measure commitments,
respectively).\174\
---------------------------------------------------------------------------
\174\ We note that Table IV-A of the EPA's 2012 Annual
PM2.5 TSD contained an error with respect to the adoption
date of CARB's measure for Transportation Refrigeration Units Used
for Cold Storage. While CARB had heard proposed amendments to the
measure on September 23, 2021, the measure was not actually adopted
until February 24, 2022, following further process and rule
adjustments required by the Board. CARB Resolution 22-5, February
24, 2022.
---------------------------------------------------------------------------
Regarding the remaining nine measures not yet proposed for board
consideration, we continue to note that one measure, Rule 4550
(``Conservation Management Practices''), has an action year of 2022 in
the 2018 PM2.5 Plan (i.e., the District has the remainder of
2022 to present a proposed measure for board consideration) and that
four regulatory measures and four incentive-based measures are overdue.
For the four regulatory measures, while CARB and the District have not
proposed these measures to their respective boards, they began the
public process on each of the four measures on time with respect to the
schedule of their respective public process commitments. To our
knowledge, CARB anticipates board consideration of the diesel fuel
measures in 2022 and the forklift measure in 2022 or 2023 \175\ and
continues to develop the airport ground support equipment measure; the
District continues to evaluate potential amendments to Rule 4692 in the
near future.\176\
---------------------------------------------------------------------------
\175\ In the 2021 Progress Report (dated October 19, 2021), page
20, CARB indicates that the Zero-Emission Off-Road Forklift
Regulation Phase 1 would be presented for Board consideration ``as
early as 2022,'' while CARB's updated ``SJV PM2.5 SIP
Measure Tracking'' (dated December 2021) anticipates presenting the
measure to the Board in Summer 2023.
\176\ 2021 Progress Report, 8-9, 20-22, and tables 2 and 3.
---------------------------------------------------------------------------
For the four incentive-based measures, CARB and the District
continue to invest in reducing emissions from heavy-duty trucks and
buses, off-road equipment, agricultural operation internal combustion
engines, and commercial under-fired charbroiling.\177\ However, while
CARB and the District have discussed the proposed programs at board
hearings,\178\ to our knowledge, CARB and the District have not started
the public process for the four incentive-based control measure
commitments as enforceable measures to be submitted to the EPA for
approval and inclusion as control measures in the California SIP.
Furthermore, as discussed in section IV.F.3.c of our 2021 Proposed
Rule, for heavy-duty trucks and off-road equipment, CARB acknowledges
that many of the project lives do not span the attainment year \179\
and, thus, while these projects may accelerate emission reductions and
benefit communities in the SJV, the projects that qualify for SIP
credit may be limited for the purposes of the 2012 annual
PM2.5 NAAQS Serious area attainment demonstration.
---------------------------------------------------------------------------
\177\ CARB, ``Long-Term Heavy-Duty Investment Strategy,
Including Fiscal Year 2020-21 Three-Year Recommendations for Low
Carbon Transportation Investments,'' (App. D to CARB's ``Proposed
Fiscal Year 2021-22 Funding Plan for Clean Transportation
Incentives''), release date October 8, 2021; and SJVUAPCD,
``Comprehensive Annual Financial Report, Fiscal Year Ended June 30,
2020,'' release date December 23, 2020. See also, 2021 Progress
Report, 3 and 15.
\178\ For example, CARB staff discussed the Accelerated Turnover
of Trucks and Buses Incentive Measure at its annual 2020 update to
the CARB Board. CARB presentation, ``Update on the 2018
PM2.5 SIP for the San Joaquin Valley,'' October 22, 2020.
District staff discussed and adopted an emission reductions strategy
for commercial under-fired charbroiling, including incentives, in
December 2020. SJVUAPCD, ``Item Number 11: Adopt Proposed Commercial
Under-Fired Charbroiling Emission Reduction Strategy,'' December 17,
2020.
\179\ Id. at 24 and 32. Generally, mobile source incentive
projects implemented under the Carl Moyer program are under contract
only during the ``project life'' and may not be credited with SIP
emission reductions after the project life ends. EPA Region IX,
``Technical Support Document for EPA's Rulemaking for the California
State Implementation Plan California Air Resources Board Resolution
19-26 San Joaquin Valley Agricultural Equipment Incentive Measure,''
February 2020, 12-13.
---------------------------------------------------------------------------
Overall, while CARB and the District have made substantial progress
in developing and adopting the regulatory measures listed in their
respective control measure commitments that were submitted in the SJV
PM2.5 Plan, in light of the Ninth Circuit Memorandum
Opinion, we have reconsidered the effect of the eight overdue measures
of the original commitments and in particular the overdue incentive-
based measures, on our evaluation of CARB and the District's aggregate
tonnage commitments and our three-factor test. Under the second factor
of the EPA's test for enforceable commitments, the
[[Page 60516]]
Agency must evaluate whether a State is capable of fulfilling such
commitments. The tardiness of presenting these control measures for
board consideration renders the reductions from these measures more
speculative under the second factor.
With respect to the aggregate tonnage commitments to attain the
2012 annual PM2.5 NAAQS in the SJV, we reiterate that CARB
committed to achieve 32 tpd of NOX and 0.9 tpd of
PM2.5 emissions reductions, and the District committed to
achieve 1.88 tpd of NOX and 1.3 tpd of PM2.5
emissions reductions by 2025. These aggregate tonnage commitments sum
to 33.88 tpd NOX and 2.2 tpd direct PM2.5. CARB
and the District have committed to achieve these reductions via the 27
control measure commitments, or such other substitute measures as may
be necessary, to achieve the aggregate tonnage commitments for
NOX and direct PM2.5.
For the purpose of our analysis of the State's progress toward
achieving its aggregate tonnage commitments, of the 18 measures adopted
by December 2021, as well as the adoption of an important substitute
measure (the Agricultural Burning Phase-out Measure \180\), the State
has submitted 12 measures as revisions to the California SIP (i.e.,
more than the 9 measures submitted to EPA as of the time of the 2021
Proposed Rule). Since December 2021, the EPA finalized or proposed
approval of three control measure SIP submissions that were control
measure commitments in the SJV PM2.5 Plan.
---------------------------------------------------------------------------
\180\ See 87 FR 36222 (June 16, 2022).
---------------------------------------------------------------------------
First, the EPA finalized approval of the Heavy-Duty Vehicle
Inspection Program (HDVIP) and Periodic Smoke Inspection Program
(PSIP).\181\ However, as in our 2021 Proposed Rule, CARB has not yet
provided its analysis of the basis for this emission reduction estimate
(of 0.02 tpd direct PM2.5, per the State's 2021 Progress
Report). Therefore, the EPA is not proposing at this time to credit
this measure with any particular amount of emission reductions towards
attainment of the 2012 annual PM2.5 NAAQS in the SJV.
---------------------------------------------------------------------------
\181\ 87 FR 27949 (May 10, 2022).
---------------------------------------------------------------------------
Second, the EPA finalized approval of the Agricultural Burning
Phase-out Measure,\182\ which includes a schedule to phase-out (i.e.,
introduce prohibitions of) agricultural burning for additional crop
categories or materials accounting for a vast majority of the tonnage
of agricultural waste in phases that started January 1, 2022, and
become fully implemented by January 1, 2025.\183\ The EPA received
comments from the District that supported approval of the Agricultural
Burning Phase-out Measure into the SIP while also advocating for a
higher rule effectiveness rate (i.e., 95% instead of EPA's proposed
80%),\184\ which in turn would increase the amount of emission
reductions that the EPA would credit towards fulfilling the District's
aggregate tonnage commitment. We continue to evaluate these comments
and for now have retained our proposal to credit the measure for
emission reductions of 0.83 tpd NOX and 1.23 tpd direct
PM2.5, consistent with the 80% rule effectiveness rate used
by the EPA in the 2021 Proposed Rule.
---------------------------------------------------------------------------
\182\ 87 FR 36222.
\183\ SJVUAPCD, ``Supplemental Report and Recommendations on
Agricultural Burning,'' June 17, 2021 (``2021 Supplemental
Report''), including Table 2-1 (``Accelerated Reductions by Crop
Category'').
\184\ Letter dated January 25, 2022, from Jonathan Klassen,
Director of Air Quality Science and Planning, SJVUPACD, to Michael
Regan, Administrator, U.S. EPA.
---------------------------------------------------------------------------
Third, the EPA has proposed approval of Rule 4311 (``Flares''), as
amended December 17, 2020.\185\ The District's staff report for Rule
4311 estimates that the emission reductions from these amendments would
be 0.19 tpd NOX and 0.03 tpd direct PM2.5 in
2025.\186\ The EPA continues to evaluate the District's estimate with
respect to SIP-creditable emission reductions, though we note that they
are relatively small when compared to the overall 207.38 tpd
NOX and 6.4 tpd direct PM2.5 modeled to attain
the 2012 PM2.5 NAAQS and to the combined aggregate tonnage
commitments of 33.88 tpd NOX and 2.2 tpd direct
PM2.5.
---------------------------------------------------------------------------
\185\ 87 FR 3736 (January 25, 2022).
\186\ SJVUAPCD, ``Item Number 12: Adopt Proposed Amendments to
Rule 4311 (Flares),'' December 17, 2020, Attachment C (``Final Draft
Staff Report with Appendices for Proposed Amendments to Rule
4311''), 21-22.
---------------------------------------------------------------------------
Similar to our 2021 Proposed Rule, we propose to credit reductions
from three measures, all of which are now approved into the SIP and
have large associated emission reductions of direct PM2.5
and/or NOX in the SJV.\187\ The three measures are: Rule
4901 (``Wood Burning Fireplaces and Wood Burning Heaters''); two of
three parts of the Agricultural Equipment Incentive Measure (for which
we described our proposed SIP credit in the 2021 Proposed Rule); and
the Agricultural Burning Phase-out Measure (for which we described our
proposed SIP credit in this proposed rule).\188\
---------------------------------------------------------------------------
\187\ The seven additional measures submitted as SIP revisions
for which the EPA has not proposed action as of August 2022 include:
the Innovative Clean Transit measure (submitted February 13, 2020);
Rules 4306 and 4320 (submitted March 12, 2021); Rule 4702 (submitted
October 15, 2021); Rules 4352 and 4354 (submitted March 9, 2022),
and the Residential Wood Burning Incentive Measure (submitted March
17, 2022).
\188\ Final actions on these measures are as follows: 85 FR
44206 (July 22, 2020) (Rule 4901), 86 FR 73106 (December 27, 2021)
(Agricultural Equipment Incentive Measure), and 87 FR 36222 (June
16, 2022) (Agricultural Burning Phase-out Measure).
---------------------------------------------------------------------------
Based on these SIP-approved measures, our estimate of the remaining
aggregate tonnage commitments remains the same as in our 2021 Proposed
Rule. Specifically, in Table 1 herein we summarize the total
NOX and direct PM2.5 emission reductions that the
State models as sufficient to attain the 2012 annual PM2.5
NAAQS in the SJV by December 31, 2025, the emission reductions
attributed to baseline measures and new control strategy measures
(including only measures currently approved into the California SIP),
and the emission reductions remaining as aggregate tonnage commitments.
Table 1--Reductions for Attainment in 2025 and Aggregate Tonnage
Commitments
------------------------------------------------------------------------
Direct PM2.5
NOX (tpd) (tpd)
------------------------------------------------------------------------
A................ Total reductions from 207.38 6.4
baseline and control
strategy measures
modeled to achieve
attainment.
B................ Reductions from 173.5 4.2
baseline measures.
C................ Reductions from 5.29 1.69
additional measures
approved into the
California SIP.
D................ Total reductions 28.59 0.51
remaining as
commitments (A-B-C).
E................ Percent of total 13.8% 8.0%
reductions needed
remaining as
commitments (D/A).
------------------------------------------------------------------------
Sources: 2018 PM2.5 Plan, Ch. 4, tables 4-3 and 4-7, and Appendix B,
tables B-1 and B-2.
[[Page 60517]]
As shown in Table 1, 13.8% of the NOX reductions
necessary for attainment and 8.0% of the direct PM2.5
reductions necessary for attainment remain as aggregate tonnage
commitments (i.e., combining CARB and the District's remaining
commitments).\189\ Based on the direct PM2.5 emission
reductions that the EPA has credited to Rule 4901 (0.2 tpd) and the
Agricultural Burning Phase-out Measure (1.23 tpd), which add up to 1.43
tpd, we conclude that the District has exceeded its 1.3 tpd direct
PM2.5 commitment by 0.13 tpd.
---------------------------------------------------------------------------
\189\ However, we note that if the EPA were to grant maximum
credit for the emission reductions calculated by the District for
Rule 4311 (0.19 tpd NOX and 0.03 tpd direct
PM2.5), the remaining aggregate tonnage commitments would
be 28.4 tpd NOX (13.7% of total reductions needed to
attain in 2025) and 0.48 tpd direct PM2.5 (7.5% of total
reductions needed to attain in 2025).
---------------------------------------------------------------------------
Beyond the measures that the EPA has taken final action to approve
into the California SIP and proposed to credit herein, CARB has
provided updated emission reduction estimates for 10 additional
measures, including 9 that have been adopted, as well as one substitute
measure in development, as described in the 2021 Progress Report. The
CARB measure with the largest updated emission reduction estimates is
the Heavy-Duty Vehicle Inspection and Maintenance Program (``Heavy-Duty
I/M'').
The District has similarly provided updated emission reduction
estimates for seven additional measures, including six that have been
adopted. The District measures with the largest updated emission
reduction estimates include amendments to Rule 4702 (``Internal
Combustion Engines'') (0.61 tpd NOX), the Residential Wood
Burning Devices Incentive Projects measure (0.33 tpd direct
PM2.5), and Rule 4354 (``Glass Melting Furnaces'') (0.5 tpd
NOX and 0.04 tpd direct PM2.5), as well as
amendments planned in 2022 to Rule 4550 (``Conservation Management
Practices'') (0.32 tpd direct PM2.5).
The EPA is not proposing to credit towards the aggregate tonnage
commitments the updated emission reduction estimates from these
additional District measures. We will review and act on the CARB and
District measures submitted to date (Innovative Clean Transit, Rule
4306, Rule 4320, Rule 4702, Rule 4352, Rule 4354, and the Residential
Wood Burning Incentive Measure), as well as future measure submissions,
in separate rulemakings, during which time the public will have an
opportunity to review and provide comment.
Although we are not proposing to credit reductions from these
measures at this time, in order to determine whether CARB and District
have the capability to meet their aggregate tonnage commitments, we
have re-evaluated the updated emission reduction estimates to assess
whether they could meet the NOX and/or direct
PM2.5 emission reduction commitments with these measures or,
if not, how much would remain of CARB and the District's unfulfilled
aggregate tonnage commitments.
Table 2--Hypothetical Emission Reductions From Estimated, Adopted, and/
or Submitted Additional Measures and Effect on Remaining Aggregate
Tonnage Commitments for 2025
------------------------------------------------------------------------
Direct PM2.5
NOX (tpd) (tpd)
------------------------------------------------------------------------
A................ Total reductions 207.38 6.4
needed from baseline
and control strategy
measures (see Table
1, row A of this
proposed rule).
B................ Total reductions 28.59 0.51
remaining as
commitments after
SIP credit (see
Table 1, row D of
this proposed rule).
CARB:
Submitted Measures:
HDVIP and PSIP 0 0.02
\a\.
Innovative Clean 0.017 <<0.01
Transit.
-------------------------------
C................ Sub-Total...... 0.017 0.02
Additional Adopted
Measures:
Heavy-Duty I/M... 14.7 0.03
Amended Warranty 0.34 <<0.01
Requirements for
Heavy-Duty
Vehicles.
Heavy-Duty Low- 0 0
NOX Engine
Standard--Califo
rnia Action.
Advanced Clean 0.08 <<0.01
Local Trucks
(Last Mile
Delivery).
Zero-Emission <<0.01 <<0.01
Airport Shuttle
Buses.
Small Off-Road 0.155 0.007
Engines.
Transport 0.04 0.01
Refrigeration
Units Used for
Cold Storage.
Agricultural 0.64 0.04
Equipment
Incentive
Measure-Phase 1
(NRCS portion).
-------------------------------
Agricultural 4.9 0.5
Equipment
Incentive
Measure Phase 2.
-------------------------------
D................ Sub-Total...... 15.955 0.087
Measures Not Yet
Presented for Board
Consideration: \b\
Zero-Emission Off- 0.02 <<0.01
Road Forklift
Regulation Phase
1.
Agricultural 4.9 0.5
Equipment
Incentive
Measure Phase 2.
-------------------------------
E................ Sub-Total...... 4.92 0.5
F................ Grand Total for 20.892 0.607
CARB (C+D+E).
-------------------------------
SJVUAPCD:
Submitted Measures:
Rule 4311 0.19 0.03
(``Flares'').
Rule 4306 0.19 0
(``Boilers,
Steam
Generators, and
Process Heaters--
Phase 3'').
Rule 4320 0 0
(``Advanced
Emission
Reduction Option
for Boilers,
Steam
Generators, and
Process Heaters
greater than 5
MMBtu/hr'') \c\.
Rule 4352 0.5 0.04
(``Solid Fuel
Fired Boilers,
Steam
Generators, and
Process
Heaters'').
Rule 4354 0.2 0.04
(``Glass Melting
Furnaces'').
[[Page 60518]]
Rule 4702 0.61 0
(``Internal
Combustion
Engines'').
Residential Wood 0 0.33
Burning
Incentive
Measure.
-------------------------------
G................ Sub-Total...... 1.69 0.44
Measures Not Yet
Presented for Board
Consideration:
Rule 4550 0 0.32
(``Conservation
Management
Practices'').
-------------------------------
H................ Sub-Total...... 0 0.32
-------------------------------
I................ Grand Total for 1.69 0.76
SJVUAPCD (G+H).
-------------------------------
J................ Grand Total 22.58 1.37
(F+I).
-------------------------------
K................ Assuming maximum SIP 6.01 -0.86
credit, total
reductions remaining
as commitments (B-J).
------------------------------------------------------------------------
Sources: 2021 Progress Report, Table 2 and Table 3.
\a\ As discussed herein, the EPA has taken final action to approve
CARB's HDVIP and PSIP measure into the California SIP but we are not
yet proposing SIP credit for these two measures.
\b\ Given the complexities involved in regulating locomotive emissions,
we have conservatively excluded from our analysis the emission
reduction estimates in the 2021 Progress Report for CARB's In-Use
Locomotive Measure.
\c\ The District's draft staff report for Rule 4306 and Rule 4320
estimate emission reductions of 0.19 tpd NOX and 0.45 tpd NOX,
respectively, in 2024. However, the District notes that it is not
proposing the emission reductions from Rule 4320 for SIP credit at
this time. SJVUAPCD, ``Draft Staff Report, Proposed Amendments to Rule
4306 (Boilers, Steam Generators, and Process Heaters--Phase 3),
Proposed Amendments to Rule 4320 (Advanced Emission Reduction Options
for Boilers, Steam Generators, and Process Heaters Greater Than 5.0
MMBtu/hr),'' November 25, 2020, 4.
Assuming the EPA were to agree with the maximum credit for the
emission reductions estimated by CARB and the District in the 2021
Progress Report, these additional measures could achieve emission
reductions of 22.58 tpd NOX and 1.37 tpd direct
PM2.5. Combined with the reductions from additional measures
already approved by EPA into the California SIP (5.29 tpd
NOX and 1.69 tpd direct PM2.5, per Row C of Table
1 of this proposed rule), the State would achieve emission reductions
of 27.87 tpd NOX and 3.06 tpd direct PM2.5.
Compared to the combined aggregate tonnage commitments, the State would
have remaining aggregate tonnage commitments of 6.01 tpd NOX
and would have exceeded the aggregate tonnage commitments by 0.86 tpd
direct PM2.5. More specifically, CARB would have remaining
commitments of 6.65 tpd NOX and 0.03 tpd direct
PM2.5, and the District would have exceeded its commitments
by 0.64 tpd NOX and 0.89 tpd direct PM2.5.
However, given the remaining NOX commitments for CARB,
which are approximately 3% of the NOX emission reductions
modeled to attain the 2012 annual PM2.5 NAAQS in the SJV by
2025, we have given additional consideration to the evidence of
emission reductions for two source categories that have large emission
reduction estimates: Heavy-Duty I/M and the Agricultural Equipment
Incentive Measures, including the NRCS portion of the Phase 1 measure
adopted by CARB in 2019 and the Phase 2 measure slated for 2024
consideration, per the 2021 Progress Report.
With respect to Heavy-Duty I/M, in the Valley State SIP Strategy,
CARB originally estimated that it would achieve 6.8 tpd NOX
and <0.1 tpd direct PM2.5 in 2025 and described the
regulatory concepts that would reflect the current (as of 2018)
``advanced engine and exhaust control technologies, including on-board
diagnostics (OBD).'' \190\ Since that time, as described in the State's
2021 Progress Report and the EPA's 2021 Proposed Rule, California has
developed additional provisions related to Heavy-Duty I/M that the
State estimates would achieve emission reductions of 14.7 tpd
NOX and 0.03 tpd direct PM2.5 in 2025.\191\
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\190\ Valley State SIP Strategy, 19-20 and Table 8.
\191\ 2021 Progress Report, 19. CARB notes that further detail
on emission reduction calculations can be found in the CARB staff
report on Heavy-Duty I/M, released October 15, 2021. See, CARB,
``Staff Report: Initial Statement of Reasons, Public Hearing to
Consider the Proposed Heavy-Duty Inspection and Maintenance
Regulation,'' October 8, 2021, (``Heavy-Duty I/M ISOR'') and App. H
(``Proposed Heavy-Duty Inspection and Maintenance Regulation,
Standardized Regulatory Impact Assessment'').
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While the EPA would still not propose to approve a specific amount
of SIP-creditable reductions until after the State submits such measure
in final form to the EPA as a revision to the SIP, we have re-examined
the role of the potential additional emission reductions from Heavy-
Duty I/M presented by CARB. As a qualitative matter, we agree that the
requirements under California Senate Bill 210 (2019) that heavy-duty
vehicles comply with Heavy-Duty I/M in order to register annually with
the California Department of Motor Vehicles, as well as the
implementation of roadside emissions monitoring (i.e., the Portable
Emissions AcQuisition System, ``PEAQS'') in the SJV to detect high
emitting vehicles between periodic test cycles, are tangible additions
that would increase the emission reductions relative to what was
contemplated at the time of Plan adoption in November 2018 (by the
District) and January 2019 (by CARB).
As a quantitative matter, however, the scale of the estimated 14.7
tpd NOX emission reductions is roughly half the remaining
aggregate commitment of 28.59 tpd NOX and represents 7.1% of
the 207.38 tpd NOX modeled for attainment and a substantial
increase from CARB's original estimate of 6.8 tpd NOX (3.3%
of the 207.38 tpd NOX). This 14.7 tpd NOX
represents a substantial quantity that, pursuant to the Ninth Circuit
Memorandum Opinion, must be supported by evidence to ``ensure that
California and the District have a plausible strategy for achieving
this portion of the attainment strategy'' in order to satisfy the
second factor of the three-factor aggregate commitment test.\192\ While
CARB documented its extensive regulatory and technical
[[Page 60519]]
analyses in the measure's Initial Statement of Reasons and associated
appendices,\193\ CARB has not provided the detailed basis of its
calculations of 14.7 tpd NOX and 0.03 tpd direct
PM2.5 emission reductions to the EPA. Given that CARB may do
so in a future control measure SIP submission, and we lack the record
evidence to do so here, we do not suggest an alternative amount of
emission reduction from Heavy-Duty I/M in this proposed rule. Rather,
we note that the more detailed calculations and technical report
necessary to support such an estimate, specific to the SJV and to
annual average emission reductions in 2025, are not available, and
therefore we do not have sufficient support in the record at this time
to rely on the State's estimated reductions, in line with the Ninth
Circuit Memorandum Opinion.
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\192\ See Medical Advocates for Healthy Air v. EPA, Case No. 20-
72780, Dkt. #58-1, 7 (9th Cir., April 13, 2022).
\193\ Heavy-Duty I/M ISOR and, for example, Heavy-Duty I/M ISOR,
App. D (``Emissions Inventory Methods and Results, Proposed Heavy-
Duty Inspection and Maintenance Regulation'') and App. H (``Proposed
Heavy-Duty Inspection and Maintenance Regulation, Standardized
Regulatory Impact Assessment'').
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With respect to mobile agricultural equipment, the EPA has taken
final action to approve the Funding Agricultural Replacement Measures
for Emission Reductions (FARMER) program and the Carl Moyer Memorial
Air Quality Standards Attainment Program (``Carl Moyer'') portions of
CARB's first incentive measure on agricultural equipment in the SJV
(``Agricultural Equipment Incentive Measure-Phase 1'') and proposed in
our 2021 Proposed Rule to credit emission reductions of 4.46 tpd
NOX and 0.26 tpd direct PM2.5 towards CARB's
aggregate tonnage commitments.\194\ CARB has estimated that it will
achieve 4.9 tpd additional NOX reductions, and 0.5 tpd
additional direct PM2.5 reductions through a second
agricultural equipment incentive measure. In light of the Ninth Circuit
Memorandum Opinion, and its finding that the EPA had not ensured that
CARB and the District had a ``plausible strategy'' for achieving parts
of the attainment strategy that relied on incentive-based reductions in
the face of a budget shortfall for funding these measures, we must
evaluate whether there is sufficient evidence in the record to
establish a reasonable basis for concluding that any ``Phase 2''
agricultural equipment incentive measure will have sufficient funding
to achieve the reductions ascribed to it.
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\194\ 86 FR 74310, 74332; 86 FR 73106, 73109.
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As we noted in the EPA's 2021 Proposed Rule, fewer incentive-based
emission reductions are needed to demonstrate attainment of the 2012
annual PM2.5 NAAQS than were required in the portion of the
SJV PM2.5 Plan addressing the 2006 24-hour PM2.5
NAAQS that was at issue in the Medical Advocates case.\195\ In the
Ninth Circuit Memorandum Opinion, the court pointed to a $2.6 billion
shortfall between what the EPA calculated to be a need for $5 billion
in funding and the more than $2 billion in funding that the State had
``identified or anticipated.'' \196\ Notably, funding for the Carl
Moyer, California Assembly Bill 617, and FARMER programs were included
in the ``identified or anticipated'' portion of the State's funding
analysis, and not the ``incentive funding gap'' for which the Court
found EPA's explanations justifying approval to be overly
speculative.\197\ Accordingly, we do not consider reliance on
reductions from a Phase 2 agricultural equipment incentive measure to
be prohibited by the Ninth Circuit Memorandum Opinion, to the extent
that a Phase 2 rule would rely on the same, existing programs, and
provided that evidence of sufficient identified or reasonably
anticipated funding exists in the record.
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\195\ 86 FR 74310, 74330. This is due to greater-than-expected
reductions from committed to and substitute non-incentive regulatory
measures, such as the Agricultural Burning Phase-Out Measure.
\196\ Medical Advocates for Healthy Air v. EPA, Case No. 20-
72780, Dkt. #58-1, 7; 85 FR 44192, 44201.
\197\ CARB Staff Report, 27 (Table 9).
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As described in the EPA's analysis of the cost-effectiveness of the
Agricultural Equipment Incentive Measure-Phase 1, based on information
provided by CARB, the total project costs resulting in these emission
reductions were $155 million for FARMER and $125 million for Carl
Moyer, or $280 million combined.\198\ As described in the EPA's 2021
Proposed Rule,\199\ the SJV portion of the FARMER funding has typically
been 80% of the State-wide allocation and the first three years of
FARMER funding for the SJV were $108 million (fiscal year 2017-2018),
$104.3 million (fiscal year 2018-2019), and $43.84 million (fiscal year
2019-2020).\200\ For the current fiscal year (2021-2022), the District
accepted $168.43 million in FARMER funds to replace agricultural
equipment in the SJV.\201\ Similarly, we noted that CARB expects Carl
Moyer funding to increase in future years, following the enactment of
California Assembly Bill 1274.\202\
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\198\ Memorandum dated June 22, 2020, from Rebecca Newhouse, EPA
Region IX, to docket number EPA-R09-OAR-2019-0318, Subject: ``Cost-
effectiveness of Emission Reductions from the Valley Incentive
Measure and Estimated Future Funding Needs for Additional
Agricultural Equipment Replacements'' (``EPA Cost-Effectiveness
Memo'').
\199\ 86 FR 74310, 74337.
\200\ CARB, ``Funding Agricultural Replacement Measures for
Emission Reductions (FARMER) Program, San Joaquin Valley APCD,'' as
reported through September 30, 2020.
\201\ SJVUAPCD, ``Item Number 9: Accept $168,425,600 in State
FARMER Program Funds for Use in the District's Agricultural
Equipment Replacement Project,'' March 17, 2022.
\202\ 2021 Progress Report, 22.
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Thus, while future funding allocations are subject to annual State
and local funding cycles, given the renewed, large investment in the
fiscal year 2021-2022 FARMER program, potential for increases in
funding for the Carl Moyer program, and the success of these programs
in meeting enforceability criteria for purposes of crediting emission
reductions, the EPA anticipates that CARB will be able to develop an
additional agricultural equipment incentive measure (``Agricultural
Equipment Incentive measure-Phase 2'') that has funding levels
comparable or larger than those for Phase 1 (i.e., including the $168
million accepted by the District in March 2022) and that CARB's
emission reduction estimates of 4.9 tpd NOX and 0.5 tpd
direct PM2.5 by 2025, per the 2021 Progress Report, are
reasonable and supported by identified or reasonably anticipated
funding.
However, we have not yet taken final action on the NRCS portion of
the Agricultural Equipment Incentive Measure-Phase 1 and, for this
proposed rule, do not rely on the estimated emission reductions for
that portion of the Agricultural Equipment Incentive Measure-Phase 1
(i.e., 0.64 tpd NOX and 0.04 tpd direct PM2.5).
Looking forward in time, this suggests some uncertainty regarding
creditability of emission reductions from any portion of a Phase 2
agricultural equipment incentive measure that may be implemented
through the NRCS program.
Furthermore, for any measure, to the extent that CARB or the
District assumed a 100% rule effectiveness rate where the EPA is not
able to confirm and approve such a rate, further discounts to the
emission reductions estimated may be warranted in certain cases.\203\
Accordingly, the overall remaining NOX commitment could be
larger than 6.01 tpd and the anticipated
[[Page 60520]]
excess emission reductions for direct PM2.5 could be smaller
than 0.86 tpd.
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\203\ For example, the District originally sought SIP credit of
0.26 tpd direct PM2.5 emission reductions from Rule 4901
and the EPA is proposing 0.2 tpd direct PM2.5 based on a
75% rule effectiveness rate. Similarly, CARB and the District sought
SIP credit of 1.04 tpd NOX and 1.54 tpd direct
PM2.5 emission reductions from the Agricultural Burning
Phase-out Measure and the EPA is proposing 0.83 tpd NOX
and 1.23 tpd direct PM2.5 based on an 80% rule
effectiveness rate.
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Notwithstanding some uncertainty as to the scale of emission
reductions from the Heavy-Duty I/M and the Agricultural Equipment
Incentive Measures (i.e., assuming that the additional measures with
discrete emission reduction estimates in the 2021 Progress Report
achieve their respective emission reductions), there remains at least
6.65 tpd NOX and 0.03 tpd direct PM2.5 in CARB's
commitment for which the record does not contain a specific and
plausible strategy to achieve. In our 2021 Proposed Rule we discussed
two possible ways that CARB could fill this gap: (1) additional
reductions from committed or substitute measures named by CARB, and (2)
a hypothetical inter-pollutant trading of excess direct
PM2.5 emission reductions by the District for any shortfall
in NOX emission reductions by CARB. The Ninth Circuit
Memorandum Opinion has established that these concepts in the absence
of a specific SIP revision are too speculative and do not constitute a
``plausible strategy'' for achieving this portion of the commitment.
With respect to additional reductions from committed measures, in
the 2021 Proposed Rule, we explored potential reductions from two
incentive-based measures: Accelerated Turnover of Trucks and Buses
Incentive Projects, and Accelerated Turnover of Off-road Equipment
Incentive Projects.\204\ CARB initially estimated that they would
achieve 8 tpd NOX reductions from Accelerated Turnover of
Trucks and Buses Incentive Projects, and 1.5 tpd NOX
reductions from Accelerated Turnover of Off-road Equipment Incentive
Projects.\205\ However, CARB did not propose a measure to its board for
either measure by 2021, as it had committed to do, nor to our knowledge
has CARB started the public process for enforceable measures to be
submitted to the EPA for inclusion as control measures in the
California SIP.
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\204\ 86 FR 74310, 74335.
\205\ Valley State SIP Strategy, Table 7.
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In the 2021 Progress Report, CARB acknowledged that many of the
project lives do not span the attainment year \206\ and, thus, while
these projects accelerate emission reductions and benefit communities
in the SJV, the projects that qualify for SIP credit may be limited for
the purposes of the 2012 annual PM2.5 NAAQS Serious area
attainment demonstration. In our 2021 Proposed Rule, we acknowledged
these weaknesses in these incentive programs, but we nonetheless
assumed that these measures may ultimately result in SIP-creditable
emission reductions for a portion of the combined 9.5 tpd
NOX.\207\ In light of the Ninth Circuit Memorandum Opinion,
the EPA does not consider it appropriate to rely on reductions that
have been rendered substantially less likely to occur by the State's
update indicating that few emissions from these projects may be
creditable.
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\206\ 2021 Progress Report at 24 and 32. Generally, mobile
source incentive projects implemented under the Carl Moyer program
are under contract only during the ``project life'' and may not be
credited with SIP emission reductions after the project life ends.
EPA Region IX ``Technical Support Document for EPA's Rulemaking for
the California State Implementation Plan California Air Resources
Board Resolution 19-26 San Joaquin Valley Agricultural Equipment
Incentive Measure,'' February 2020, 12-13.
\207\ 86 FR 74310, 74335.
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Furthermore, while the State continues to invest heavily in the
replacement of older, dirty heavy-duty vehicles and equipment on a
State-wide basis,\208\ we are not aware of a document that identifies
specific funding amounts applied to the replacement of such equipment
in the SJV within the specific timeline of the Plan's demonstration of
attainment of the 2012 annual PM2.5 NAAQS by December 31,
2025. In brief, the amount of funding that is specific to the SJV for
these two measures for purposes of attainment of the 2012 annual
PM2.5 NAAQS is unclear, and this renders more speculative at
least a portion of the large scale of NOX emission
reductions originally anticipated.\209\
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\208\ See, e.g., CARB, ``Proposed Fiscal Year 2021-22 Funding
Plan for Clean Transportation Incentives, Appendix D: Long-Term
Heavy-Duty Investment Strategy,'' release date October 8, 2021.
\209\ The EPA also notes that, for regulatory measures that have
large estimated emission reductions, rather than incentive-based
measures, CARB estimated that its Low-Emission Diesel Fuel
Requirement would achieve an additional 1 tpd NOX and 0.1
tpd direct PM2.5 reductions. However, without near-term
adoption and submission, its associated emission reductions may not
be creditable towards the aggregate tonnage commitment for 2025.
---------------------------------------------------------------------------
With respect to substitute measures under development, CARB points
to the In-Use Locomotive Rule (and estimates emission reductions of
1.14 tpd NOX and 0.03 tpd direct PM2.5 by 2025 in
the SJV), which is slated for 2022 Board consideration.\210\ However,
as noted in our 2021 Proposed Rule,\211\ given the complexities
involved in regulating locomotive emissions, we have conservatively
excluded from our analysis the emission reduction estimates in the 2021
Progress Report for CARB's In-Use Locomotive Measure.
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\210\ 2021 Progress Report, 20-21. Additional information on
CARB's regulatory concepts for the In-Use Locomotive Measure are
available at: https://ww2.arb.ca.gov/our-work/programs/reducing-rail-emissions-california/locomotives-and-railyards-meetings-workshops.
\211\ 86 FR 74310, 74334, fn. 228.
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In addition, CARB has identified further measures that were not
included in the original control measure commitments that may provide
emission reductions toward CARB's aggregate tonnage commitments.\212\
These measures include Cargo Handling Equipment Registration,
Construction and Mining Equipment Measure, and Co-Benefits from the
Climate Program. However, we do not have information as to what these
measures might entail, when the State may adopt or implement them, and
what scale of emission reductions they could potentially achieve.
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\212\ CARB, ``SJV PM2.5 SIP Measure Tracking,''
September 2021, 3. Available at: https://ww2.arb.ca.gov/resources/documents/2018-san-joaquin-valley-pm25-plan.
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Based on the lack of information on funding and process for heavy-
duty and off-road equipment incentive-based measures and the lack of
information on other potential substitute measures, such as a
Construction and Mining Equipment Measure, and in light of the Ninth
Circuit Memorandum Opinion, we have reconsidered our evaluation of this
prospect and now propose that there is not sufficient evidence to show
that the Valley State SIP Strategy contains a ``plausible strategy'' to
achieve the remaining NOX and direct PM2.5
emission reductions needed for attainment.
The other approach that the 2021 Proposed Rule discusses for
filling the gap in CARB's strategy for achieving its commitment is
based on a hypothetical future SIP revision. In the 2021 Progress
Report, CARB and the District provided additional emissions analysis to
assess how excess direct PM2.5 emission reductions could be
converted to equivalent NOX emission reductions using an
inter-pollutant trading ratio rooted in the sensitivity analyses of the
2018 PM2.5 Plan.\213\ CARB and the District have not
formally submitted this analysis as a SIP revision to the EPA or
requested that the EPA apply such inter-pollutant trading for purposes
of fulfilling the aggregate tonnage commitments through an equivalent
amount of emission reductions.
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\213\ 2021 Progress Report, Table 4 and 33-37.
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Consistent with past EPA action on PM2.5 planning SIP
submissions for the SJV,\214\ where the State submits a SIP
[[Page 60521]]
revision that would substitute reductions in one pollutant to achieve a
tonnage commitment concerning a different pollutant (e.g., substituting
excess direct PM2.5 reductions to satisfy a NOX
reduction commitment), it must include an appropriate inter-pollutant
trading (IPT) ratio and the technical basis for such ratio in the plan
submission itself, along with the requisite public process. The EPA
will review any such IPT ratio and its bases before approving or
disapproving any such SIP revision. The possibility of a future SIP
submission discussing IPT does not constitute a ``plausible strategy''
for achieving reductions that are modeled to result in attainment.
Thus, at this time, we are not proposing to approve any particular
inter-pollutant trading approach for purposes of meeting the aggregate
tonnage commitments, nor applying any excess reductions of one
pollutant towards fulfilling a portion of committed reductions of the
other pollutant.
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\214\ For example, the EPA has approved an inter-pollutant
trading mechanism for use in transportation conformity analyses for
the 2006 24-hour PM2.5 NAAQS. 85 FR 44192, 44204. In that
same final rule, the EPA approved the State's demonstration that it
had fulfilled prior aggregate tonnage commitments, in part, by using
an inter-pollutant trading approach that the EPA found adequate. 85
FR 44192, 44205; see also proposed rule at 85 FR 17382, 17406-17407
and associated EPA's General Evaluation TSD, Table III-C and section
IV.
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The additional evaluation we have discussed herein as part of our
reconsideration of the State's enforceable commitments requires us to
re-evaluate the EPA's three-factor test for enforceable commitments.
Based on our reconsideration, and consistent with the Ninth Circuit
Memorandum Opinion, we retain our proposed findings that the State's
commitments meet the first factor (the commitment represents a limited
portion of the required reductions, i.e., 13.8% of the NOX
and 8.0% of the direct PM2.5 emission reductions necessary
to attain) and the third factor (the commitment is for a reasonable and
appropriate timeframe) of the three-factor test. However, we now
propose that the State's commitments do not meet the second factor
(regarding the State's capability to fulfill its commitments). Our
analysis and findings for the first and third factors are presented in
section IV.F.3.e of the 2021 Proposed Rule. We provide our reconsidered
evaluation of the second factor as follows in this proposed rule.
As the EPA noted in our 2021 Proposed Rule, CARB and the District
have been capable of developing and adopting many of the regulatory
measures listed in their respective control measure commitments.
However, the question before us more precisely is whether such
substantial progress, coupled with the strategy submitted by the State
for achieving the remaining reductions which the State has modeled as
leading to attainment, is sufficient to show that the State is capable
of fulfilling its entire aggregate tonnage commitments by 2025. Several
components of our reconsideration suggest that the State may not be
capable of fulfilling the entire aggregate tonnage commitment,
particularly with respect to NOX emission reductions from
additional CARB measures.
First, in terms of additional measures for which CARB and the
District provided updated emission reduction estimates, we have given
additional consideration to the evidence of emission reductions for two
source categories that have large emission reduction estimates: Heavy-
Duty I/M and the Agricultural Equipment Incentive Measures. For Heavy-
Duty I/M, CARB has not provided to the EPA a sufficient basis for its
increase in estimated emission reductions from 6.8 tpd NOX
to 14.7 tpd NOX, where the 14.7 tpd reduction amounts to
7.1% of the total emission reductions modeled for attainment of the
2012 annual PM2.5 NAAQS. Although the EPA is confident,
based on its review, that emission reductions are available in this
category, and that the State is capable of achieving some amount of
reductions, the State has not sufficiently supported its assertion that
it is capable of achieving 14.7 tpd of NOX and 0.03 tpd of
direct PM2.5. As discussed above, due to uncertainty
surrounding the NRCS portion of the Agricultural Equipment Incentive
Measure-Phase 1, we are not relying on reductions from that portion of
the rule, and the creditability of any NRCS portion of a potential
future Phase 2 has not been established.
Furthermore, for any measure, to the extent that CARB or the
District assumed a 100% rule effectiveness rate where the EPA is not
able to confirm and approve such a rate, further discounts to the
emission reduction estimates may be warranted in certain cases.
Accordingly, the overall remaining NOX commitment could
be larger than 6.01 tpd and the anticipated excess emission reductions
for direct PM2.5 could be smaller than 0.86 tpd.
Second, even if the EPA were to assume maximum credit for the
additional measures for which CARB and the District provided updated
emission reduction estimates, CARB, in combination with the District,
would still need emission reductions of at least 6 tpd NOX
to fulfill its commitments.\215\ Moreover, the reductions from CARB's
remaining incentive measures for Heavy-Duty vehicles and off-road
equipment appear to be limited relative to the combined emission
reduction estimate of 9.5 tpd NOX in the Plan. Without
documentation supporting the funding amounts to be applied in the SJV
within the timeline of the 2012 annual PM2.5 NAAQS portion
of the SJV PM2.5 Plan, it is not clear that the full amount
of these estimated reductions is supported by a ``plausible strategy''
to achieve them, as required in the Ninth Circuit Memorandum Opinion.
In addition, the identified substitute measures lack sufficient detail
to provide support for making up for NOX emission reduction
shortfalls from CARB's control measure commitments.
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\215\ As noted in this proposed rule, if the EPA were to assume
credit for emission reductions from the additional District
measures, the District would have exceeded its aggregate tonnage
commitments by 0.64 tpd NOX and 0.89 tpd direct
PM2.5.
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Given the gap between the reductions needed and the reductions for
which CARB and the District have presented a non-speculative plan for
achieving, we now propose that the State has not demonstrated that it
is capable of fulfilling the remaining aggregate tonnage commitments
necessary to attain the 2012 annual PM2.5 NAAQS in the SJV
by December 31, 2025, and therefore find that the SJV PM2.5
Plan does not meet the second factor of our three-factor test for
enforceable commitments.
b. Attainment Demonstration
Based on our reconsideration of the Plan's enforceable commitments
described in section II.C.3.a of this proposed rule, and our
reconsideration of the Plan's BACM demonstration for described in
section II.B, we now propose to disapprove the SJV PM2.5
Plan's modeled attainment demonstration for the 2012 annual
PM2.5 NAAQS in the SJV by December 31, 2025. We discuss the
interrelationship of these nonattainment plan elements as follows.
Regarding enforceable commitments, CAA section 110(a)(2)(A)
provides that each SIP ``shall include enforceable emission limitations
and other control measures, means or techniques . . . as well as
schedules and timetables for compliance, as may be necessary or
appropriate to meet the applicable requirements of [the Act].'' Section
172(c)(6) of the Act, which applies to nonattainment SIPs, is virtually
identical to section 110(a)(2)(A). The EPA interprets the CAA to allow
for approval of enforceable commitments that are limited in scope,
where circumstances exist that warrant the use of such commitments in
place of
[[Page 60522]]
adopted and submitted measures, and considers three factors in
determining whether to approve the enforceable commitment.
Given our proposed finding above that the State has not met the
second factor of the EPA's three-factor test (i.e., whether the State
is capable of fulfilling its commitment), the State is left with a gap
between the reductions that it has modeled as necessary for attainment,
and the reductions that the EPA may count as constituting the State's
control plan. Therefore, the EPA proposes that the State's control
strategy does not include sufficient enforceable measures, pursuant to
CAA sections 110(a)(2)(A) and 172(c)(6), to achieve the necessary
emission reductions to attain the 2012 annual PM2.5 NAAQS in
the SJV by December 31, 2025.
The lack of an approved control plan to achieve the reductions
necessary to attain by 2025 is sufficient on its own to compel
disapproval of the attainment demonstration. However, even if the
State's control plan was sufficient to lead to attainment in 2025, the
Public Justice Comment Letter and our reconsidered BACM analysis in
section II.B of this notice raise additional issues regarding the
sufficiency of the modeled attainment demonstration.
The State's attainment demonstration identifies the Bakersfield-
Planz monitor as the design value monitor, and models this monitor as
achieving the 12.0 [micro]g/m\3\ concentration necessary for attainment
in 2025.\216\ The State's submission also indicates that the
Bakersfield-Planz monitor is modeled to read 12.1 [micro]g/m\3\ in
2024.\217\ This represents a very narrow margin between modeled
attainment in 2024 and 2025. In light of the Act's requirement to
demonstrate attainment by the most expeditious date practicable, in
order for the EPA to approve the Plan's demonstration that the area
will attain by 2025, the State must also demonstrate that attainment by
an earlier date is not practicable.
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\216\ 2018 PM2.5 Plan, App. K, Table 39.
\217\ Id. at Table 33.
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As explained in section II.B of this notice, the EPA now proposes
to find that the State has not sufficiently demonstrated that it has
implemented BACM for all necessary categories of sources. Most notably,
the State has not sufficiently evaluated the amount of ammonia
reductions that may be available. In light of the very small (0.1
[micro]g/m\3\) gap between attaining in 2024 and 2025, and the State's
sensitivity modeling in its precursor demonstration indicating that a
30% reduction in ammonia would reduce annual PM2.5
concentrations at the Bakersfield-Planz monitor by 0.12 [micro]g/m\3\
and a 70% reduction would reduce annual PM2.5 concentrations
at the Bakersfield-Planz monitor by 0.36 [micro]g/m\3\, the State has
not demonstrated that reductions from sources identified in section
II.B could not expedite attainment.\218\ As a result, even if the
State's control plan was sufficiently concrete that the EPA could
credit all reductions of NOX and direct PM2.5
that the State indicated that it intended to use to fulfill its
aggregate commitments, the State is still required to demonstrate that
the selected attainment year (e.g., 2025) is as expeditious as
practicable considering potential emission reductions from all plan
precursors, including ammonia.
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\218\ See 2018 PM2.5 Plan, App. G, tables 4 through
7.
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The EPA emphasizes that it is stating both that the Plan does not
demonstrate that the SJV will attain by 2025 and that the State has not
demonstrated that it could not attain sooner than 2025. These findings
are not in tension with one another. Under the Act, the State must
demonstrate that its control plan will be sufficient to attain the
NAAQS, and to attain the NAAQS by the most expeditious date
practicable. The State's failure to demonstrate that it could not
attain sooner than 2025 is not inconsistent with the State also having
other analytical or substantive flaws in its control plan to attain by
2025. The EPA is not proposing to find that the SJV can practicably
attain by 2024, nor is the EPA proposing to find that the SJV could not
possibly attain by 2025. Instead, the EPA is proposing, in light of the
uncertainty regarding ammonia controls, to find that the State has
failed to demonstrate that it could not practicably attain before 2025,
and in light of identified deficiencies in the control plan, that the
State's control strategy for attaining by 2025 is flawed.
Furthermore, for the 1997 annual PM2.5 NAAQS, on
November 8, 2021, the State submitted the ``Attainment Plan Revision
for the 1997 Annual PM2.5 Standard,'' which was adopted by
the District on August 19, 2021, and by CARB on September 23, 2021
(``15 [micro]g/m\3\ SIP Revision''). In that submission, the State
updated its prior air quality modeling to account for more recent
monitored air quality data. Specifically, the State estimated 2023
annual average concentrations starting from a 2018 monitored base year
(i.e., rather than a 2013 base year, in order to reflect updated
monitored air quality data), and applied updated, scaled relative
response factors (RRFs) to reflect emissions changes between 2018 and
2023.\219\ Because this scaling indicated a significant change in the
modeling results for the 1997 annual PM2.5 NAAQS, and the
modeling for the 2012 annual PM2.5 NAAQS relies on many of
the same models and assumptions, the result of the scaling analysis
introduces additional uncertainty to the modeled attainment
demonstration for the 2012 PM2.5 NAAQS. Accordingly, we
recommend updated modeling analysis for the 2012 annual
PM2.5 NAAQS.
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\219\ 15 [micro]g/m\3\ SIP Revision, Ch. 5, 5-9 to 5-12. See
also 15 [micro]g/m\3\ SIP Revision, App. K, 64-65. In the 15
[micro]g/m\3\ SIP Revision, the State used existing modeling runs
for 2020 and 2024 to compute RRFs for each PM2.5
component using the standard approach recommended in the EPA's
Modeling Guidance. Those RRFs were then scaled to reflect emissions
changes between 2018 and 2023 to arrive at updated RRFs.
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As a result of our proposed disapproval of the control plan and the
uncertainty regarding additional reductions that could be achieved by
further BACM/BACT level controls for all appropriate plan precursors
(particularly for ammonia), we now propose to disapprove the attainment
demonstration for the 2012 annual PM2.5 NAAQS.
D. Reasonable Further Progress Demonstration and Quantitative
Milestones
1. Summary of 2021 Proposed Rule
In section IV.G of our 2021 Proposed Rule, the EPA described the
requirements for RFP and quantitative milestones for a Serious
PM2.5 nonattainment area, summarized the State's submission
in the 2018 PM2.5 Plan for the SJV, and presented our
evaluation thereof.\220\ We briefly summarize those components here and
rely on the more complete exposition in that proposed rule, except as
described in section II.D.2 of this proposed rule (i.e., the EPA's
reconsidered proposal for RFP and quantitative milestones).
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\220\ 86 FR 74310, 74338-74345.
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Regarding requirements, CAA section 172(c)(2) provides that all
nonattainment area plans shall require RFP toward attainment. In
addition, CAA section 189(c) requires that all PM2.5
nonattainment area plans contain quantitative milestones for purposes
of measuring RFP, as defined in CAA section 171(1), every three years
until the EPA redesignates the area to attainment. Section 171(1) of
the Act defines RFP as the annual incremental reductions in emissions
of the relevant air pollutant as are required by part D, title I of the
Act, or as may reasonably be required by the Administrator for the
purpose of ensuring attainment of the
[[Page 60523]]
NAAQS by the applicable attainment date.
In addition to the EPA's longstanding guidance on the RFP
requirements for PM, the Agency has established specific regulatory
requirements for the PM2.5 NAAQS in the PM2.5 SIP
Requirements Rule for purposes of satisfying the Act's RFP requirements
and provided related guidance in the preamble to the rule.
Specifically, under the PM2.5 SIP Requirements Rule, for a
PM2.5 attainment plan a State must include an RFP analysis
that includes, at minimum, the following four components: (1) an
implementation schedule for control measures; (2) RFP projected
emissions for direct PM2.5 and all PM2.5 plan
precursors for each applicable milestone year, based on the anticipated
control measure implementation schedule; (3) a demonstration that the
control strategy and implementation schedule will achieve reasonable
progress toward attainment between the base year and the attainment
year; and (4) a demonstration that by the end of the calendar year for
each triennial milestone date for the area, pollutant emissions will be
at levels that reflect either generally linear progress or stepwise
progress in reducing emissions on an annual basis between the base year
and the attainment year.\221\ Additionally, states should estimate the
RFP projected emissions for each quantitative milestone year by sector
on a pollutant-by-pollutant basis.\222\
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\221\ 40 CFR 51.1012(a).
\222\ 81 FR 58010, 58056.
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Section 189(c) of the Act requires that PM2.5 attainment
plans include quantitative milestones that demonstrate RFP. The purpose
of the quantitative milestones is to allow periodic evaluation of the
State's progress towards attainment of the PM2.5 NAAQS in
the area consistent with RFP requirements. Because RFP is an annual
emission reduction requirement and the quantitative milestones are to
be achieved every three years, when a State demonstrates compliance
with the quantitative milestone requirement, it should also demonstrate
that RFP has been achieved during each of the relevant three years.
Quantitative milestones should provide an objective means to evaluate
progress toward attainment meaningfully, e.g., through imposition of
emissions controls in the attainment plan and the requirement to
quantify those required emissions reductions on the schedule approved
by the EPA and thus required to meet RFP.
As we noted in the 2021 Proposed Rule, the CAA does not specify the
starting point for counting the three-year periods for quantitative
milestones under CAA section 189(c). In the General Preamble and
General Preamble Addendum, the EPA interpreted the CAA to require that
the starting point for the first three-year period be the due date for
the Moderate area plan submission.\223\ Consistent with this
longstanding interpretation of the Act, the PM2.5 SIP
Requirements Rule requires that each plan for a Serious
PM2.5 nonattainment area that demonstrates attainment by the
end of the 10th calendar year following the date of designation contain
quantitative milestones to be achieved no later than milestone dates
7.5 years and 10.5 years from the date of designation of the area.\224\
The 2018 PM2.5 Plan includes a demonstration designed to
show attainment by the end of the 10th calendar year following
designations (i.e., December 31, 2025). Because the EPA designated the
SJV nonattainment for the 2012 annual PM2.5 NAAQS effective
April 15, 2015,\225\ the applicable quantitative milestone dates for
purposes of the submitted Serious area plan for this NAAQS in the SJV
are October 15, 2022, and October 15, 2025.
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\223\ General Preamble, 13539 and General Preamble Addendum,
42016.
\224\ 40 CFR 51.1013(a)(2)(i).
\225\ 80 FR 2206.
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Quantitative milestones must provide for objective evaluation of
reasonable further progress toward timely attainment of the
PM2.5 NAAQS in the area and include, at minimum, a metric
for tracking progress achieved in implementing SIP control measures,
including BACM and BACT, by each milestone date.\226\
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\226\ 81 FR 58010, 58064 and 58092.
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The State presents its RFP demonstration and quantitative
milestones for the 2012 annual PM2.5 NAAQS in Appendix H of
the 2018 PM2.5 Plan. Following the identification of a
transcription error in the RFP tables of Appendix H, the State
submitted a revised version of Appendix H that corrects the
transcription error and provides additional information on the RFP
demonstration.\227\ Given the State's conclusions that ammonia,
SOX, and VOC emissions do not contribute significantly to
PM2.5 levels that exceed the 2012 annual PM2.5
NAAQS in the SJV, the RFP demonstration provided by the State only
addresses emissions of direct PM2.5 and NOX.\228\
Similarly, the State developed quantitative milestones based upon the
Plan's control measure strategy to achieve emission reductions of
direct PM2.5 and NOX.\229\
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\227\ Appendix H to 2018 PM2.5 Plan, submitted
February 11, 2020, via the EPA State Planning Electronic
Collaboration System. This revised version of Appendix H replaces
the version submitted with the 2018 PM2.5 Plan on May 10,
2019. All references to Appendix H in this proposed rule are to the
revised version of Appendix H submitted February 11, 2020.
\228\ 2018 PM2.5 Plan, App. H, H-1.
\229\ Id. at App. H, H-23 to H-24 (for CARB milestones) and H-20
to H-22 (for District milestones).
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For the 2012 annual PM2.5 NAAQS, the RFP demonstration
in the Plan follows a stepwise approach due to the time required for
CARB and the District ``to amend rules, develop programs, and implement
the emission reduction measures.'' \230\ The revised Appendix H
provides clarifying information on the RFP demonstration, including
additional information to justify the Plan's stepwise approach to
demonstrating RFP. This clarifying information did not affect the
Plan's quantitative milestones. It is important to note that the State
evaluated what would be necessary for purposes of meeting RFP premised
upon its approach to regulating only direct PM2.5 and
NOX emissions, and upon a December 31, 2025
attainment date that itself depended upon the State achieving certain
additional emission reductions though the enforceable commitments.
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\230\ Id. at App. H, H-4.
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In our 2021 Proposed Rule we further described the State's RFP
demonstration and quantitative milestones in the SJV PM2.5
Plan, including, for example, the anticipated implementation schedule
for CARB and District control measures, projected emissions for each
RFP year and attainment year, and percent reductions to be achieved in
each milestone year, which would be consistent with a stepwise
approach. We noted that the reductions between the 2013 base year and
2019 milestone year are consistent with generally linear progress
toward the targeted attainment date, while the reductions by the 2022
milestone year would fall short of the rate of reductions to show
generally linear RFP. We also noted that the State relies on more
substantial direct PM2.5 and NOX emission
reductions by January 1, 2025, due in large part to CARB and the
District's reliance on enforceable commitments to achieve additional
PM2.5 and NOX emission reductions from new
measures implemented by 2024. Lastly, we noted the State's overall
conclusion that the adopted control strategy and additional commitments
for reductions from new control programs by this time are adequate to
meet the RFP requirement for the 2012 annual PM2.5 NAAQS
with
[[Page 60524]]
the projected attainment date of December 31, 2025.
Regarding quantitative milestones, Appendix H of the 2018
PM2.5 Plan identifies October 15 milestone dates for the
2019 and 2022 RFP milestone years, the 2025 attainment year, and a
post-attainment milestone year of 2028.\231\ Appendix H also identifies
target emissions levels to meet the RFP requirement for direct
PM2.5 and NOX emissions for each of these
milestone years,\232\ as shown in Table 6 of our 2021 Proposed Rule,
and control measures that CARB and the District already have in place
or plan to implement by each of these years, in accordance with the
control strategy in the Plan.\233\
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\231\ 2018 PM2.5 Plan, App. H, Table H-12.
\232\ Id. at Table H-5.
\233\ Id. at H-23 to H-24 (for CARB milestones) and H-20 to H-22
(for District milestones).
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We noted, however, that while quantitative milestones are required
for 2019 in the context of the Moderate area plan for the 2012 annual
PM2.5 NAAQS in the SJV (corresponding to the 4.5 years after
the date of designation), we have already evaluated and approved the
State's quantitative milestones for 2019, as supplemented by the 2018
PM2.5 Plan.\234\ Therefore, the EPA is not evaluating the
2019 milestones for purposes of the State's Serious area plan for the
2012 annual PM2.5 NAAQS in the SJV.
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\234\ 86 FR 67343, 67346.
---------------------------------------------------------------------------
Although the State's attainment demonstration for the 2012 annual
PM2.5 NAAQS does not rely on CARB's and the District's
control measure commitments for emission reductions until 2024,\235\
the RFP and quantitative milestone elements of the 2018
PM2.5 Plan rely on these control measure commitments to
demonstrate that the plan requires RFP toward attainment.\236\ In our
2021 Proposed Rule we summarized the specific milestones identified by
the State for each milestone year and with respect to the control
measure commitments in each three-year period.
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\235\ 2018 PM2.5 Plan, Ch. 4, Table 4-3 (``Emission
Reductions from District Measures'') and Table 4-9 (``San Joaquin
Valley Expected Emission Reductions from State Measures'').
\236\ 2018 PM2.5 Plan, App. H, H-4 to H-10
(describing commitments by CARB and SJVUAPCD to adopt additional
measures to fulfill tonnage commitments for 2024 and 2025, including
``action'' and ``implementation'' dates occurring before 2024 to
ensure expeditious progress toward attainment).
---------------------------------------------------------------------------
The EPA presented its evaluation of the State's RFP demonstration
and quantitative milestones in section IV.G.3 of the 2021 Proposed
Rule, with additional information in section V of the EPA's 2012 Annual
PM2.5 TSD. We previously proposed to approve the State's RFP
demonstration and quantitative milestones.
2. The EPA's Reconsidered Proposal
As discussed in section II.C.3, we are now proposing to disapprove
the attainment demonstration for the Serious area plan portion of the
2018 PM2.5 Plan for the 2012 annual PM2.5 NAAQS
because we are proposing to not approve the State's control plan to
achieve the reductions modeled for 2025 and the attainment
demonstration does not demonstrate that the SJV could not practicably
attain before 2025. The RFP demonstration in the Plan is deficient
because it sets out a timeline for implementing the deficient control
plan, which is not sufficient to ``ensure attainment'' under CAA
section 171(l). The quantitative milestones do not ``demonstrate [RFP]
toward attainment by the applicable date'' under CAA section 189(c),
both because the Plan does not sufficiently demonstrate that the
control plan will result in attainment, and because the plan does not
sufficiently establish what the applicable date should be.\237\ As a
result, the EPA proposes to disapprove the Plan's Serious area RFP
demonstration and quantitative milestones for the 2012 annual
PM2.5 NAAQS.
---------------------------------------------------------------------------
\237\ In addition, as discussed in section II.C.3.a of this
proposed rule, the EPA notes that of the State's 27 control measure
commitments, four regulatory measures and four incentive-based
measures are overdue (i.e., were due for board consideration in 2020
or 2021). It is not clear, based on the evidence before the EPA,
that such measures will be presented to the CARB and District boards
in the 2022 calendar year. Furthermore, to the extent the State
relies on substitute measures to ultimately fulfill its aggregate
tonnage commitments in 2025 (e.g., the Agricultural Burning Phase-
out Measure), the State has not provided quantitative milestones as
part of a SIP revision that would provide for periodic evaluation of
the State's progress in implementing such substitute measures. In
addition, the State has not provided quantitative milestones for
ammonia.
---------------------------------------------------------------------------
E. Motor Vehicle Emission Budgets
1. Summary of 2021 Proposed Rule
In section IV.I of our 2021 Proposed Rule, the EPA described the
requirements for motor vehicle emission budgets (``budgets'') for a
Serious PM2.5 nonattainment area, summarized the State's
submission in the 2018 PM2.5 Plan for the SJV, and presented
our evaluation thereof.\238\ We briefly summarize those components here
and rely on the more complete exposition in that proposed rule, except
as described in section II.E.2 of this proposed rule (i.e., the EPA's
reconsidered proposal for budgets).
---------------------------------------------------------------------------
\238\ 86 FR 74310, 74347-74351.
---------------------------------------------------------------------------
Section 176(c) of the CAA requires federally funded or approved
actions in nonattainment and maintenance areas to conform to the SIP's
goals of eliminating or reducing the severity and number of violations
of the NAAQS and achieving expeditious attainment of the NAAQS.
Conformity to the SIP's goals means that such actions will not: (1)
cause or contribute to new violations of a NAAQS; (2) increase the
frequency or severity of an existing violation; or (3) delay timely
attainment of any NAAQS or any interim milestone.
Actions involving Federal Highway Administration (FHWA) or Federal
Transit Administration (FTA) funding or approval are subject to the
EPA's transportation conformity rule, codified at 40 CFR part 93,
subpart A (``Transportation Conformity Rule''). Under this rule,
metropolitan planning organizations (MPOs) in nonattainment and
maintenance areas coordinate with State and local air quality and
transportation agencies, the EPA, FHWA, and FTA to demonstrate that an
area's regional transportation plan (RTP) and transportation
improvement programs (TIP) conform to the applicable SIP. The MPO's
demonstration is typically done by showing that estimated emissions
from existing and planned highway and transit systems are less than or
equal to the applicable budgets contained in adequate or approved
control strategy implementation plans. An attainment plan for the
PM2.5 NAAQS should include budgets for the attainment year
and each required RFP milestone year for direct PM2.5 and
PM2.5 precursors subject to transportation conformity
analyses. Budgets are generally established for specific years and
specific pollutants or precursors and must reflect all of the motor
vehicle control measures contained in the attainment and RFP
demonstrations.\239\
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\239\ 40 CFR 93.118(e)(4)(v).
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In our 2021 Proposed Rule, we described how states should identify
budgets for direct PM2.5, NOX, and all other
PM2.5 precursors for which the State and/or the EPA has
determined that on-road emissions significantly contribute to
PM2.5 levels in the area for each RFP milestone year and the
attainment year if the plan demonstrates attainment.\240\ All direct
PM2.5 SIP budgets should include direct PM2.5
motor vehicle emissions from tailpipes, brake wear, and tire wear.
---------------------------------------------------------------------------
\240\ 40 CFR 93.102(b)(2)(iv) and (v).
---------------------------------------------------------------------------
We described the process by which the State and the EPA should
determine
[[Page 60525]]
whether other pollutant emissions (i.e., for re-entrained road dust,
VOC, SO2, and ammonia) contribute significantly to the
PM2.5 nonattainment problem, either with respect to the
whole plan or with respect to on-road mobile emissions, and therefore
be subject to the transportation conformity requirements (i.e., budgets
for such pollutant(s) must be included in the plan). We further noted
that transportation conformity trading mechanisms are allowed under 40
CFR 93.124 where a State establishes appropriate mechanisms for such
trades and where the basis for the trading mechanism is the SIP
attainment modeling that establishes the relative contribution of each
PM2.5 precursor pollutant.
The EPA's process for determining the adequacy of a budget consists
of three basic steps: (1) notifying the public of a SIP submittal; (2)
providing the public the opportunity to comment on the budgets during a
public comment period; and (3) making a finding of adequacy or
inadequacy.\241\ The EPA can notify the public by either posting an
announcement on the EPA's adequacy website notifying the public that
the EPA has received a SIP submission that will be reviewed to
determine if the budgets in that submission are adequate for
transportation conformity purposes (40 CFR 93.118(f)(1)), or through a
Federal Register notice of proposed rulemaking when the EPA reviews the
adequacy of submitted motor vehicle emission budgets simultaneously
with its review and action on the SIP itself (40 CFR 93.118(f)(2)).
---------------------------------------------------------------------------
\241\ 40 CFR 93.118(f).
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The State includes budgets for direct PM2.5 and
NOX emissions for the 2019 and 2022 RFP milestone years, the
projected attainment year (2025), and one post-attainment year
quantitative milestone (2028) in the 2018 PM2.5 Plan.\242\
The State establishes separate direct PM2.5 and
NOX subarea budgets for each county, or partial county (for
Kern County), in the SJV.\243\ CARB calculated the budgets using
EMFAC2014,\244\ which was, at the time, CARB's latest version of the
EMFAC model for estimating emissions from on-road vehicles operating in
California that had been approved by EPA at the time of Plan
development, and the latest modeled vehicle miles traveled and speed
distributions from the SJV MPOs from the Final 2017 Federal
Transportation Improvement Programs, adopted in September 2016. The
budgets reflect annual average emissions consistent with the annual
averaging period of the 2012 annual PM2.5 NAAQS and the 2018
PM2.5 Plan's RFP demonstration.
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\242\ 2018 PM2.5 Plan, App. D, Table 3-3.
\243\ 40 CFR 93.124(c) and (d).
\244\ EMFAC is short for EMission FACtor. The EPA announced the
availability of the EMFAC2014 model for use in State implementation
plan development and transportation conformity in California on
December 14, 2015. The EPA's approval of the EMFAC2014 emissions
model for SIP and conformity purposes was effective on the date of
publication of the notice in the Federal Register.
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In our 2021 Proposed Rule, the EPA noted the following: (1) 2022
and 2025 are the required budget years applicable to the Serious area
plan portion of the 2018 PM2.5 Plan for the 2012 annual
PM2.5 NAAQS in the SJV (and that the attainment year of 2025
coincided with the latter milestone year based on timing of
designations); (2) the EPA had approved the budgets for the 2022 RFP
milestone year in acting on the Moderate area plan and, therefore, will
not be acting on them again in acting on the Serious area plan; \245\
(3) the EPA is not evaluating the 2019 budgets, which would neither be
used in any future conformity determinations (as the plan contains
budgets for 2022 and other future years), nor required for the
submitted Serious area plan; and (4) the EPA would begin the motor
vehicle emissions budget adequacy and approval review processes for the
2028 post-attainment milestone year budgets only if the area were to
fail to attain the standard by December 31, 2025 (the applicable
Serious area attainment date if the EPA were to finalize approval of
the 2018 PM2.5 Plan's attainment demonstration).
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\245\ 86 FR 67343, 67346.
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The Plan's direct PM2.5 budgets include tailpipe, brake
wear, and tire wear emissions but do not include paved road dust,
unpaved road dust, and road construction dust emissions.\246\ The State
did not include budgets for VOC, SO2, or ammonia, consistent
with its precursor demonstration that control of these precursors would
not significantly contribute to attainment of the 2012 annual
PM2.5 NAAQS. The State also included a discussion of the
significance/insignificance factors for motor vehicle emissions of
ammonia, SO2, and VOC to support a finding of insignificance
under the transportation conformity rule.\247\ The State is not
required to include re-entrained road dust in the PM2.5
budgets under section 93.103(b)(3) unless the EPA or the State has made
a finding that these emissions are significant, and neither the State
nor the EPA has made such a finding. Nevertheless, the Plan includes a
discussion of the significance/insignificance factors for re-entrained
road dust and concludes that such emissions are insignificant.\248\ The
budgets included in the 2018 PM2.5 Plan are shown in Table 3
of this proposed rule, which is identical to Table 9 of our 2021
Proposed Rule.
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\246\ 2018 PM2.5 Plan, App. D, D-122 to D-123.
\247\ 40 CFR 93.109(f).
\248\ 2018 PM2.5 Plan, App. D, D-121.
Table 3--Motor Vehicle Emission Budgets for the San Joaquin Valley for the 2012 PM2.5 Standard
[Annual average, tpd]
----------------------------------------------------------------------------------------------------------------
2022 (RFP year) \a\ 2025 (attainment
------------------------ year)
County -----------------------
PM2.5 NOX PM2.5 NOX
----------------------------------------------------------------------------------------------------------------
Fresno.......................................................... 0.9 21.2 0.8 14.3
Kern............................................................ 0.8 19.4 0.8 12.8
Kings........................................................... 0.2 4.1 0.2 2.7
Madera.......................................................... 0.2 3.5 0.2 2.3
Merced.......................................................... 0.3 7.6 0.3 5.0
San Joaquin..................................................... 0.6 10.0 0.6 6.9
Stanislaus...................................................... 0.4 8.1 0.4 5.6
Tulare.......................................................... 0.4 6.9 0.4 4.7
----------------------------------------------------------------------------------------------------------------
Source: 2018 PM2.5 Plan, Appendix D, Table 3-3. Budgets are rounded to the nearest tenth of a ton.
[[Page 60526]]
\a\ The EPA has already approved the 2022 RFP budgets in our final rule on the State's Moderate area plan for
the 2012 annual PM2.5 NAAQS in the SJV.
In our 2021 Proposed Rule, we also described the State's proposed
trading mechanism in the 2018 PM2.5 Plan for transportation
conformity analyses that would allow future decreases in NOX
emissions from on-road mobile sources to offset any on-road increases
in direct PM2.5 emissions.
We presented our evaluation of the State's Serious area budgets for
the 2012 annual PM2.5 NAAQS in the SJV and proposed to
approve the 2025 budgets. We noted our preliminary review of the
budgets submitted for adequacy, which preceded our proposed approval of
the budgets, consistent with the EPA's general process. Based on
information in the Plan, we proposed that budgets were not required for
SO2, VOC, and ammonia.
Based on our proposed approval of the State's RFP and attainment
demonstrations, and our review of the budgets in the Plan, we proposed
that the 2025 budgets for RFP and attainment were consistent with those
demonstrations, were clearly identified and precisely quantified, and
met all other applicable statutory and regulatory requirements
including the adequacy criteria in 40 CFR 93.118(e)(4) and (5). We
provided a more detailed discussion of the budgets in section VI of the
EPA's 2012 Annual PM2.5 TSD. We noted that our proposed
approval of the budgets for the 2012 annual PM2.5 NAAQS did
not affect the status of the previously approved budgets for the 1997
PM2.5 NAAQS and related trading mechanism, which remain in
effect for that PM2.5 NAAQS, nor the 2006 24-hour
PM2.5 NAAQS and related trading mechanism, which remain in
effect for that PM2.5 NAAQS.\249\
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\249\ 76 FR 69896, 69923-69924 (November 9, 2011) (final rule
approving direct PM2.5 and NOX budgets for
2012 and 2014 for the 1997 annual and 24-hour PM2.5
NAAQS); and 85 FR 44192, 44204 (final rule approving direct
PM2.5 and NOX budgets for 2020, 2023, and 2024
for the 2006 24-hour PM2.5 NAAQS); and 86 FR 53150,
53176-53179 (September 24, 2021) (proposed rule to approve budgets
from the 2018 PM2.5 Plan for direct PM2.5 and
NOX for 2017 and 2020 for the 1997 24-hour
PM2.5 NAAQS). We note that, following our 2021 Proposed
Rule on the 2012 annual PM2.5 NAAQS portion of the Plan,
the EPA finalized approval of the 2017 and 2020 budgets for the 1997
24-hour PM2.5 NAAQS portion of the Plan. 87 FR 4503.
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Based on our review of the State's trading mechanism for
transportation conformity analyses for the 2012 annual PM2.5
NAAQS, the EPA previously proposed to approve the trading mechanism,
which would allow future decreases in NOX emissions from on-
road mobile sources to offset any on-road increases in
PM2.5, using a 6.5:1 NOX:PM2.5
ratio.\250\ To ensure that the trading mechanism does not affect the
ability to meet the NOX budget, we noted the following: (1)
the Plan provides that the NOX emission reductions available
to supplement the PM2.5 budget would only be those remaining
after the NOX budget has been met; (2) the SJV MPOs would
have to document clearly the calculations used in the trading when
demonstrating conformity, along with any additional reductions of
NOX and PM2.5 emissions in the conformity
analysis; and (3) the trading calculations must be performed prior to
the final rounding to demonstrate conformity with the budgets. We
summarized the technical bases for our proposed approval of the trading
mechanism in the 2021 Proposed Rule and in section VI of the EPA's 2012
Annual PM2.5 TSD.
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\250\ For example, a 1 tpd excess of direct PM2.5
emissions from on-road mobile sources in 2025 could be offset by a
6.5 tpd reduction in NOX emissions below the
NOX budget for on-road mobile sources in 2025.
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Regarding the duration of budgets for the 2012 annual
PM2.5 NAAQS, the EPA noted that once budgets are approved,
they cannot be superseded by revised budgets submitted for the same CAA
purpose and the same year(s) addressed by the previously approved SIP
until the EPA approves the revised budgets as a SIP revision. While
CARB had requested in its letter submitting the 2018 PM2.5
Plan that the EPA limit the duration of the budgets (i.e., to allow an
adequacy finding, rather than approval, of future SIP revision of
budgets to replace the initial budgets),\251\ CARB later clarified that
since they have submitted EMFAC2021 for EPA review, they no longer
request that we limit the duration of our approval.\252\
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\251\ Letter dated May 9, 2019, from Richard W. Corey, Executive
Officer, CARB, to Mike Stoker, Regional Administrator, EPA Region
IX, 3.
\252\ Email dated November 30, 2021, from Nesamani Kalandiyur,
Manager, Transportation Analysis Section, Sustainable Transportation
and Communities Division, CARB, to Karina O'Connor, EPA Region IX.
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Lastly, in our 2021 Proposed Rule, the EPA proposed to disapprove
the contingency measure element of the 2018 PM2.5 Plan with
respect to the Serious area requirements for the 2012 annual
PM2.5 NAAQS, and we are not modifying our proposed action on
contingency measures in this proposed rule. Accordingly, we noted that
if the EPA were to finalize the proposed disapproval of the 2012 annual
PM2.5 NAAQS Serious area contingency measure element, the
area would be eligible for a protective finding under the
transportation conformity rule because the 2018 PM2.5 Plan
reflects adopted control measures that fully satisfy the emissions
reductions requirements for the RFP and attainment year of 2025.\253\
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\253\ 40 CFR 93.120(a)(3).
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2. The EPA's Reconsidered Proposal
Based on the EPA's reconsideration and proposed disapprovals of the
attainment and RFP demonstrations discussed herein, we have
reconsidered our proposed approval of the Serious area budgets for the
2012 annual PM2.5 NAAQS in the SJV. As discussed below, the
EPA now proposes to disapprove the 2025 RFP and attainment year
budgets.
As noted in section I.B of this proposed rule, we are not re-
proposing any action on the Plan's precursor demonstrations for
SOX and VOC (i.e., we retain our proposed approval that
SOX and VOC are not plan precursors for the 2012 annual
PM2.5 NAAQS in the SJV, and therefore SO2 and VOC
budgets would not be required, consistent with the transportation
conformity regulation (40 CFR 93.102(b)(2)(v))). However, as discussed
in section II.A.3 of this proposed rule, the EPA now proposes to
disapprove the State's precursor demonstration that ammonia does not
significantly contribute to exceedances of the 2012 annual
PM2.5 NAAQS in the SJV, and therefore the Plan's precursor
demonstration would not address the State's obligation to consider
whether ammonia budgets are necessary in the Serious area plan.
In the Plan, the State provides a discussion of the significance/
insignificance factors for motor vehicle emissions of ammonia (and
SO2 and VOC), which would demonstrate a finding of
insignificance under the transportation conformity rule.\254\ The
factors typically addressed for significance include an examination of
the on-road contribution of ammonia to the total emissions, and the
likelihood of future motor vehicle emission controls. We note that
annual average ammonia emissions from on-road mobile sources are an
estimated 3.4 tpd of a total of 324.3 tpd from all sources in 2025, or
about 1% of the total ammonia emissions.\255\ Based on our
[[Page 60527]]
review, and the small contribution of ammonia emissions from on-road
mobile sources, the EPA agrees with the State's finding that on-road
mobile source emissions of ammonia are insignificant and therefore the
State is not required to include budgets for ammonia in its Serious
area plan for the 2012 annual PM2.5 NAAQS in the SJV.
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\254\ For the criteria and procedures for demonstrating a
finding of insignificance under the transportation conformity rule,
see 40 CFR 93.109(f).
\255\ 2018 PM2.5 Plan, App. B, Table B-5.
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With respect to the 2025 RFP and attainment year, the EPA proposes
to disapprove the direct PM2.5 and NOX budgets
for 2025, as follows. While the 2025 budgets for RFP and attainment
were clearly identified and precisely quantified, in this proposed rule
the EPA proposes to disapprove the State's Serious area RFP and
attainment demonstrations for the 2012 annual PM2.5
NAAQS.\256\ The EPA cannot approve budgets where the underlying CAA
requirements (i.e., RFP and attainment) are disapproved and therefore
proposes to disapprove the 2025 budgets. The budgets, when considered
together with all other emission sources, cannot be consistent with the
applicable requirements for RFP and attainment of the 2012 annual
PM2.5 NAAQS given the proposed disapprovals of the RFP and
attainment demonstrations. Therefore, we are proposing to disapprove
the motor vehicle emissions budgets because they do not meet applicable
statutory and regulatory requirements, including the adequacy criteria
specified in the transportation conformity rule.\257\ If the EPA
finalizes the disapproval, the EPA would concurrently withdraw the
adequacy finding for the 2025 RFP and attainment year motor vehicle
emission budgets.\258\
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\256\ See 40 CFR 93.118(e)(4)(iii).
\257\ 40 CFR 93.118(e)(4).
\258\ The EPA found the 2025 budgets adequate in our 2021
Proposed Rule. See also, the EPA's 2012 Annual PM2.5 TSD,
41.
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Lastly, given that we now propose to disapprove the Plan's RFP and
attainment demonstrations for the 2012 annual PM2.5 NAAQS,
rather than just the Serious area contingency measure element alone (as
described in our 2021 Proposed Rule), the SJV would not be eligible for
a protective finding under the transportation conformity rule because
the 2018 PM2.5 Plan's control measures do not fully satisfy
the emissions reductions requirements for the RFP and attainment year
of 2025.\259\
---------------------------------------------------------------------------
\259\ 40 CFR 93.120(a)(3).
---------------------------------------------------------------------------
As a result, if the EPA finalizes our proposed disapproval of the
budgets, upon the effective date of our final rule the area would be
subject to a conformity freeze under 40 CFR 93.120 of the
transportation conformity rule. No new transportation plan, TIP, or
project may be found to conform until the State submits another control
strategy implementation plan revision fulfilling the same CAA
requirements, the EPA finds the budgets in the revised plan adequate or
approves the budgets, the MPO makes a conformity determination for the
new budgets, and the U.S. Department of Transportation makes a
conformity determination.\260\ In addition, only transportation
projects outside of the first four years of the current conforming
transportation plan and TIP or that meet the requirements of 40 CFR
93.104(f) during the resulting conformity freeze may be found to
conform until California submits a new attainment and RFP plan for the
2012 annual PM2.5 NAAQS and (1) the EPA finds the submitted
budgets adequate per 40 CFR 93.118 or (2) the EPA approves the new
attainment plan and conformity to the new plan is determined.\261\
Furthermore, if, as a result of our final disapproval action, the EPA
imposes highway sanctions under section 179(b)(1) of the Act two years
from the effective date of our final rule, then the conformity status
of the transportation plan and TIP will lapse on that date and no new
transportation plan, TIP, or project may be found to conform until
California submits a new plan for the 2012 annual PM2.5
NAAQS, and conformity to the plan is determined.\262\
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\260\ 40 CFR 93.120(a)(2).
\261\ Id.
\262\ 40 CFR 93.120(a)(1).
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III. Environmental Justice Considerations
Executive Order 12898 (59 FR 7629, February 16, 1994) requires that
Federal agencies, to the greatest extent practicable and permitted by
law, identify and address disproportionately high and adverse human
health or environmental effects of their actions on minority and low-
income populations. Additionally, Executive Order 13985 (86 FR 7009,
January 25, 2021) directs Federal Government agencies to assess
whether, and to what extent, their programs and policies perpetuate
systemic barriers to opportunities and benefits for people of color and
other underserved groups, and Executive Order 14008 (86 FR 7619,
February 1, 2021) directs Federal agencies to develop programs,
policies, and activities to address the disproportionate health,
environmental, economic, and climate impacts on disadvantaged
communities.
To identify environmental burdens and susceptible populations in
underserved communities in the SJV nonattainment area and to better
understand the context of our proposed action on the 2012 annual
PM2.5 NAAQS portion of the SJV PM2.5 Plan on
these communities, we conducted a screening-level analysis using the
EPA's environmental justice (EJ) screening and mapping tool
(``EJSCREEN'').\263\ Our screening-level analysis indicates that all
eight counties in the SJV score above the national average for the
EJSCREEN ``Demographic Index'' (i.e., ranging from 48% in Stanislaus
County to 61% in Tulare County, compared to 36% nationally).\264\ The
Demographic Index is the average of an area's percent minority and
percent low income populations, i.e., the two populations explicitly
named in Executive Order 12898.\265\ All eight counties also score
above the national average for demographic indices of ``linguistically
isolated population'' and ``population with less than high school
education.''
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\263\ EJSCREEN provides a nationally consistent dataset and
approach for combining environmental and demographic indicators.
EJSCREEN is available at https://www.epa.gov/ejscreen/what-ejscreen.
The EPA used EJSCREEN to obtain environmental and demographic
indicators representing each of the eight counties in the San
Joaquin Valley. We note that the indicators for Kern County are for
the entire county. While the indicators might have slightly
different numbers for the SJV portion of the county, most of the
county's population is in the SJV portion, and thus the differences
would be small. These indicators are included in EJSCREEN reports
that are available in the rulemaking docket for this action.
\264\ EPA Region IX, ``EJSCREEN Analysis for the Eight Counties
of the San Joaquin Valley Nonattainment Area,'' August 2022.
\265\ EJSCREEN reports environmental indicators (e.g., air
toxics cancer risk, Pb paint exposure, and traffic proximity and
volume) and demographic indicators (e.g., people of color, low
income, and linguistically isolated populations). The score for a
particular indicator measures how the community of interest compares
with the State, the EPA region, or the national average. For
example, if a given location is at the 95th percentile nationwide,
this means that only 5% of the US population has a higher value than
the average person in the location being analyzed. EJSCREEN also
reports EJ indexes, which are combinations of a single environmental
indicator with the EJSCREEN Demographic Index. For additional
information about environmental and demographic indicators and EJ
indexes reported by EJSCREEN, see EPA, ``EJSCREEN Environmental
Justice Mapping and Screening Tool--EJSCREEN Technical
Documentation,'' section 2 (September 2019).
---------------------------------------------------------------------------
With respect to pollution, all eight counties score at or above the
97th percentile nationally for the PM2.5 index and seven of
the eight counties in the SJV score at or above the 90th percentile
nationally for the PM2.5 EJ index, which is a combination of
the Demographic Index and the PM2.5 index. Most counties
also scored above the 80th percentile for each of 11 additional EJ
indices included in the EPA's EJSCREEN analysis. In addition, several
[[Page 60528]]
counties scored above the 90th percentile for certain EJ indices,
including, for example, the Ozone EJ Index (Fresno, Kern, Madera,
Merced, and Tulare counties), the National Air Toxics Assessment (NATA)
Respiratory Hazard EJ Index (Madera and Tulare counties), and the
Wastewater Discharge Indicator EJ Index (Merced, San Joaquin,
Stanislaus, and Tulare counties).\266\
---------------------------------------------------------------------------
\266\ Notably, Tulare County scores above the 90th percentile on
six of the 12 EJ indices in the EPA's EJSCREEN analysis, including
the PM2.5 EJ Index, which is the highest count among all
SJV counties.
---------------------------------------------------------------------------
As discussed in the EPA's EJ technical guidance, people of color
and low-income populations, such as those in the SJV, often experience
greater exposure and disease burdens than the general population, which
can increase their susceptibility to adverse health effects from
environmental stressors.\267\ Underserved communities may have a
compromised ability to cope with or recover from such exposures due to
a range of physical, chemical, biological, social, and cultural
factors.\268\ The EPA is committed to environmental justice for all
people, and we acknowledge that the SJV nonattainment area includes
minority and low income populations that are subject to higher levels
of PM2.5 and other pollution relative to State and national
averages, and that such concerns could be affected by this action.
---------------------------------------------------------------------------
\267\ EPA, ``Technical Guidance for Assessing Environmental
Justice in Regulatory Analysis,'' section 4 (June 2016).
\268\ Id. at section 4.1.
---------------------------------------------------------------------------
If the EPA were to finalize the proposed disapprovals described in
section II of this proposed rule, California would be required to
submit a plan revision for the SJV for the 2012 annual PM2.5
NAAQS to address the identified deficiencies. In addition, as
summarized in section V of this proposed rule, such final action would
trigger clocks for the SJV for offset sanctions 18 months after the
final rule effective date, highway funding sanctions six months after
the offset sanctions, and the obligation for the EPA to promulgate a
Federal implementation plan (FIP) within two years of the final rule
effective date. These obligations ensure that the identified
deficiencies are resolved in an expeditious manner, consistent with the
principles of environmental justice.
We note that, in developing and proposing draft regulations for
governing board consideration, both CARB and the District consider the
potential benefits of proposed measures for reducing health hazards to
disadvantaged communities, such as diesel PM exposure near Heavy-Duty
truck corridors and indoor smoke exposure from residential wood
burning. There may be further opportunities to address EJ concerns
through such control development and implementation.
More broadly, California law has established additional
requirements for community-focused action to reduce air pollution in
the State. For example, in response to California Assembly Bill 617
(2017), CARB and the District have engaged communities in the SJV,
performed technical evaluations, and ultimately selected four
communities (South Central Fresno, Shafter, Stockton, and Arvin/Lamont)
that are in varying stages of developing and implementing community air
monitoring programs and community emission reduction programs.\269\
Furthermore, grant programs implemented by the local, State, and
Federal authorities may serve to smooth and accelerate emission
reductions of PM2.5 and its precursor pollutants in the SJV,
thereby relieving some of the cumulative burden on disadvantaged
communities in the SJV nonattainment area.\270\
---------------------------------------------------------------------------
\269\ For further information, see, e.g., SJVUAPCD, ``Item
Number 9: Receive Progress Reports on AB617 Community Emission
Reduction Program Implementation,'' November 18, 2021.
\270\ For example, through the EPA's Targeted Airshed Grant
program, the District has competed for, and the EPA has granted 13
awards to the District from 2015 through 2021, totaling $77.4
million, to replace older, dirtier woodstoves, agricultural
equipment, heavy-duty trucks and yard trucks, and agricultural nut
harvesters with cleaner equipment. A list of the Targeted Airshed
Grants the EPA awarded in fiscal years 2015-2020 is accessible
online at https://www.epa.gov/air-quality-implementation-plans/targeted-airshed-grant-recipients. These EPA grants support projects
to reduce emissions in areas facing the highest levels of ground-
level ozone and PM2.5.
---------------------------------------------------------------------------
IV. Title VI of the Civil Rights Act
As noted in section I.C of this proposed rule, the EPA received a
comment letter dated January 28, 2022 (the Public Justice Comment
Letter), on the 2021 Proposed Rule from a coalition of 13
organizations.
The commenters urge the EPA to disapprove the Serious area plan
``because EPA has failed to require CARB/SJV to provide necessary
assurances that the State implementation plan complies with Title VI of
the Civil Rights Act of 1964. The on-going environmental justice and
air pollution crisis demand EPA reverse course and disapprove the 2012
plan.'' \271\ To support this argument, the commenters provide
information regarding the racial demographics of the SJV, the potential
for disparate impacts from exposure to PM2.5, and specific
aspects of the SJV PM2.5 Plan that the commenters believe
result in disparate impacts. The commenters point to past precedent in
which the EPA has considered compliance with Title VI of the Civil
Rights Act (Title VI) in the SIP context through CAA section
110(a)(2)(E). The commenters also note that thus far California has
provided no ``demonstration'' that the Serious area plan does not cause
or exacerbate disparate impacts on affected communities in the SJV.
Thus, the commenters assert that the EPA must disapprove the Serious
area plan because the State did not provide ``required assurances'' of
compliance with Title VI.
---------------------------------------------------------------------------
\271\ Public Justice Comment Letter, 2.
---------------------------------------------------------------------------
At this time, the EPA has not issued any guidance or regulations
concerning what might be required for purposes of CAA section
110(a)(2)(E) as it regards Title VI. The EPA has addressed other
aspects of section 110(a)(2)(E) in the context of infrastructure SIP
submissions in its September 2013 ``Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2).'' Similarly, EPA regulations only address
other aspects of section 110(a)(2)(E) in 40 CFR Sections 51.230-232.
A. Background on CAA Section 110(a)(2)(E)
For purposes of background, section 110(a)(2)(E) of the CAA, in
relevant part and with emphasis added, reads as follows:
(2) Each implementation plan submitted by a State under this
chapter shall be adopted by the State after reasonable notice and
public hearing. Each such plan shall--. . .
(E) provide (i) necessary assurances that the State (or, except
where the Administrator deems inappropriate, the general purpose
local government or governments, or a regional agency designated by
the State or general purpose local governments for such purpose)
will have adequate personnel, funding, and authority under State
(and, as appropriate, local) law to carry out such implementation
plan (and is not prohibited by any provision of Federal or State law
from carrying out such implementation plan or portion thereof), (ii)
requirements that the State comply with the requirements respecting
State boards under section 7428 of this title, and (iii) necessary
assurances that, where the State has relied on a local or regional
government, agency, or instrumentality for the implementation of any
plan provision, the State has responsibility for ensuring adequate
implementation of such plan provision.\272\
---------------------------------------------------------------------------
\272\ 42 U.S.C. Section 7410(a)(2)(E) (emphasis added).
[[Page 60529]]
---------------------------------------------------------------------------
The EPA has previously addressed CAA section 110(a)(2)(E)(i), Title
VI, and necessary assurances in a 2012 action on a nonattainment plan
SIP submission from California for purposes of the ozone NAAQS.\273\
Comments submitted on the EPA's April 24, 2012 proposed action
contended that the SIP submission was not in compliance with CAA
section 110(a)(2)(E) because of alleged violations of Title VI related
to the regulation of pesticides as precursors to ozone (as volatile
organic compounds). To evaluate the commenter's concerns, the EPA
sought additional necessary assurances from the State concerning its
regulation of pesticides. California submitted additional information
to the EPA concerning the State's activities that were part of the
resolution of a Title VI complaint, and additional information
concerning the State's regulation of pesticides. California submitted
this information to provide ``necessary assurances'' to the EPA that
implementation of the requirements of the SIP submission would not
violate Title VI. The EPA accepted this information as providing
adequate necessary assurances for purposes of section 110(a)(2)(E) and
did not require the State to make any substantive changes to support
approval of the SIP revision.
---------------------------------------------------------------------------
\273\ 77 FR 65294 (October 26, 2012) (final rule); 77 FR 24441
(April 24, 2012) (proposed rule).
---------------------------------------------------------------------------
Commenters in the 2012 action asserted that California had not
provided sufficient necessary assurances. In the response to comments
in the 2012 action, the EPA explained that ``Section 110(a)(2)(E),
however, does not require a State to `demonstrate' it is not prohibited
by Federal or State law from implementing its proposed SIP revision.
Rather, this section requires a State to provide `necessary assurances'
of this.'' \274\ The EPA further explained,
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\274\ 77 FR 65294, 65302, column 2.
Courts have given EPA ample discretion in deciding what
assurances are ``necessary'' and have held that a general assurance
or certification is sufficient. (``EPA is entitled to rely on a
state's certification unless it is clear that the SIP violates state
law and proof thereof * * * is presented to EPA.'' BCCA Appeal Group
v. EPA, 355 F.3d 817, 830 fn 11 (5th Cir. 2003)).\275\
---------------------------------------------------------------------------
\275\ Id.
The EPA received a petition for review (from groups overlapping
with the groups that sent the Public Justice Comment Letter) of the
EPA's October 26, 2012 final action which was reviewed and ultimately
decided in EPA's favor by the Ninth Circuit Court of Appeals.\276\ The
Court used an arbitrary and capricious standard of review to evaluate
the EPA's conclusion that the State had provided adequate ``necessary
assurances'' that implementation of the SIP is not prohibited by
Federal law--specifically, Title VI of the Federal Civil Rights Act of
1964--per the language of section 110(a)(2)(E). The Ninth Circuit found
that the EPA fulfilled its duty to provide a reasoned judgment because
its determination was cogently explained and supported by the record.
In dismissing the petition, the Court explained that ``[t]he EPA has a
duty to provide a reasoned judgment as to whether the State has
provided `necessary assurances,' but what assurances are `necessary' is
left to the EPA's discretion.'' \277\
---------------------------------------------------------------------------
\276\ El Comit[eacute] Para El Bienstar de Earlimart et al. (El
Comit[eacute]) v. EPA, 786 F.3d 688 (9th Cir. 2015).
\277\ 786 F.3d at 700.
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B. Background on Title VI of the Civil Rights Act of 1964
For purposes of background context, Title VI prohibits recipients
of Federal financial assistance from discriminating on the basis of
race, color, or national origin. Under the EPA's nondiscrimination
regulations, which implement Title VI and other civil rights laws,\278\
recipients of EPA financial assistance are prohibited from taking
actions in their programs or activities that are intentionally
discriminatory and/or have an unjustified disparate impact.\279\ This
includes policies, criteria or methods of administering programs that
are neutral on their face but have the effect of discriminating.\280\
Under the EPA's regulation, recipients of EPA financial assistance are
also required to have in place certain procedural safeguards, including
grievance procedures that assure the prompt and fair resolution of
external discrimination complaints.\281\
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\278\ 40 CFR part 7 and part 5.
\279\ 40 CFR Sections 7.30 and 7.35.
\280\ 40 CFR Section 7.35(b).
\281\ 40 CFR Section 7.90.
---------------------------------------------------------------------------
The EPA carries out its mandate to ensure that recipients of EPA
financial assistance comply with their nondiscrimination obligations by
investigating administrative complaints filed with the EPA alleging
discrimination prohibited by Title VI and the other civil rights laws;
\282\ initiating affirmative compliance reviews; \283\ and providing
technical assistance to recipients to assist them in meeting their
Title VI obligations. In the current matter being addressed in this
action, no Title VI complaint was filed regarding CARB or the
District.\284\ Also, the EPA (through the External Civil Rights
Compliance Office or ECRCO) has not initiated and is not currently
conducting a compliance review of either CARB or SJVUAPCD.
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\282\ 40 CFR Section 7.120.
\283\ 40 CFR Section 7.115.
\284\ The EPA's External Civil Rights Compliance Office (ECRCO)
contacted Mr. Brent Newell, signatory to the Public Justice Comment
Letter, to see whether the commenters intended to file a Title VI
administrative complaint with the EPA. In response, the commenters
stated, ``[t]he comments submitted were neither intended nor styled
as a Title VI complaint. The comments raise significant issues with
respect to EPA's proposed approval, including the section
110(a)(2)(E) issues and EPA's authority and duty to enforce Title
VI, and we expect EPA to respond to all of the issues in the final
action/response to comments.'' Email exchange dated February 8,
2022, between Brent Newell, Public Justice and Lilian Dorka,
Director, External Civil Rights Compliance Office, EPA Office of
General Counsel.
---------------------------------------------------------------------------
C. Comments Received on 2021 Proposed Rule
The commenters raise the issue of compliance with section
110(a)(2)(E) with respect to Title VI. The commenters contend that the
SIP submission for the SJV is not in compliance with CAA section
110(a)(2)(E) because California has not provided necessary assurances
to ensure that implementation of the SIP is in compliance with Title
VI. The commenters did not submit these specific comments to CARB or
the SJVUAPCD during the State's development and adoption process of the
proposed SIP revisions that are currently at issue. The commenters are
not required to have done so to raise this issue with the EPA now, but
as a result, the SIP submission to the EPA does not include any CARB or
District response concerning this specific issue. In addition, the SIP
submission does not include specifically identified necessary
assurances per section 110(a)(2)(E) provided by the State.
At the outset, the EPA acknowledges the statements in the comment
letter that the SJV area has historically been designated as
nonattainment for the PM2.5 NAAQS and that the SJV area
includes higher representation of persons of color compared to the
State average. Although in this action the EPA is not proposing to
disapprove on the basis of CAA section 110(a)(2)(E), if the EPA
disapproves the Serious area plan as proposed today, California would
need to submit a revised Serious area plan for the SJV. The EPA expects
that any such revision would comply with the requirements of section
110(a)(2)(E) and that CARB and the District will engage with the
community through notice and comment during the SIP
[[Page 60530]]
development process for its revised Serious area plan prior to
submitting a revised SIP to the EPA, and specifically with respect to
necessary assurances relative to Title VI. The new SIP development
process provides an important opportunity for CARB and the District to
identify potential adverse disparate impacts on the basis of race,
color, or national origin from its revised Serious area plan for the
2012 annual PM2.5 NAAQS and address them as appropriate.
The EPA acknowledges that it has not issued national guidance or
regulations concerning implementation of section 110(a)(2)(E) as it
pertains to consideration of Title VI and disparate impacts on the
basis of race, color, or national origin in the context of the SIP
program. Such guidance is forthcoming and will address CAA section
110(a)(2)(E)'s necessary assurance requirements as they relate to Title
VI. In the interim, CARB and the District may find existing EPA and DOJ
Title VI and environmental justice resources useful, even though these
documents do not relate specifically to CAA section 110(a)(2)(E).\285\
Additionally, the EPA's ECRCO is available to provide technical
assistance regarding Title VI compliance to CARB and/or the District as
they develop the revised Serious area plan for the 2012 annual
PM2.5 NAAQS.
---------------------------------------------------------------------------
\285\ See ECRCO's Toolkit Chapter I at: https://www.epa.gov/sites/default/files/2017-01/documents/toolkit-chapter1-transmittal_letter-faqs.pdf, January 18, 2017, and Department of
Justice ``Title VI Legal Manual (Updated)'' at: https://www.justice.gov/crt/fcs/T6Manual6. See also, e.g., EPA, ``Guidance
on Considering Environmental Justice During the Development of
Regulatory Actions,'' (May 2015), and EPA, ``Technical Guidance for
Assessing Environmental Justice in Regulatory Analysis,'' (June
2016).
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V. Summary of Proposed Actions and Request for Public Comment
For the reasons discussed in this proposed rule, under CAA section
110(k)(3), the EPA proposes to disapprove, as a revision to the
California SIP, the following portions of the SJV PM2.5 Plan
for the 2012 annual PM2.5 NAAQS to address the CAA's Serious
area planning requirements in the SJV nonattainment area:
(1) the demonstration that BACM, including BACT, for the control of
ammonia emission sources and for the control of NOX and
direct PM2.5 building heating emission sources will be
implemented no later than 4 years after the area was reclassified (CAA
section 189(b)(1)(B) and 40 CFR 51.1010(a));
(2) the demonstration that the Plan provides for attainment as
expeditiously as practicable but no later than December 31, 2025 (CAA
sections 188(c)(2) and 189(b)(1)(A) and 40 CFR 51.1011(b));
(3) plan provisions that require RFP toward attainment by the
applicable date (CAA section 172(c)(2) and 40 CFR 51.1012(a));
(4) quantitative milestones that are to be achieved every three
years until the area is redesignated attainment and that demonstrate
RFP toward attainment by the applicable attainment date (CAA section
189(c) and 40 CFR 51.1013(a)(2)(i)); and
(5) motor vehicle emissions budgets for 2025 as shown in Table 3 of
this proposed rule (CAA section 176(c) and 40 CFR part 93, subpart A).
We are also proposing to disapprove the State's precursor
demonstration for ammonia. Our proposed action on the emissions
inventory and contingency measure elements remains unchanged from our
2021 Proposed Rule.
If we finalize the proposed disapprovals for BACM, the attainment
demonstration, RFP, quantitative milestones, or motor vehicle emission
budgets, the offset sanction in CAA section 179(b)(2) would apply in
the SJV 18 months after the effective date of a final disapproval, and
the highway funding sanctions in CAA section 179(b)(1) would apply in
the area six months after the offset sanction is imposed.\286\ Neither
sanction will be imposed under the CAA if the State submits and we
approve, prior to the implementation of the sanctions, a SIP revision
that corrects the deficiencies that we identify in our final action.
The EPA intends to work with CARB and the SJVUAPCD to correct the
deficiencies in a timely manner.
---------------------------------------------------------------------------
\286\ 40 CFR 52.31.
---------------------------------------------------------------------------
In addition to the sanctions, CAA section 110(c)(1) provides that
the EPA must promulgate a Federal implementation plan (FIP) addressing
any disapproved elements of an attainment plan two years after the
effective date of disapproval unless the State submits, and the EPA
approves, a SIP submission that cures the disapproved elements.
Furthermore, if we take final action disapproving the 2012 annual
PM2.5 NAAQS portion of the SJV PM2.5 Plan, a
conformity freeze will take effect upon the effective date of any final
disapproval (usually 30 days after publication of the final action in
the Federal Register). A conformity freeze means that only projects in
the first four years of the most recent RTP and TIP can proceed. During
a freeze, no new RTPs, TIPs, or RTP/TIP amendments can be found to
conform.\287\
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\287\ See 40 CFR 93.120(a).
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We will accept comments from the public on these proposals for the
next 45 days. The deadline and instructions for submission of comments
are provided in the DATES and ADDRESSES sections at the beginning of
this proposed rule.
VI. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://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 proposed SIP disapproval, if finalized, will not
in-and-of itself create any new information collection burdens, but
will simply disapprove 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
proposed SIP partial disapproval, if finalized, will not in-and-of
itself create any new requirements but will simply disapprove 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 proposes to disapprove certain 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
[[Page 60531]]
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
proposing to partially disapprove 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 proposed SIP partial disapproval, if
finalized, will not in-and-of itself create any new regulations, but
will simply disapprove 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 Population
Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. The EPA's evaluation of this issue is
contained in the section of the preamble titled ``Environmental Justice
Considerations.''
List of Subjects 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: September 28, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-21492 Filed 10-4-22; 8:45 am]
BILLING CODE 6560-50-P