[Federal Register Volume 88, Number 151 (Tuesday, August 8, 2023)]
[Proposed Rules]
[Pages 53431-53450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16748]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0352; FRL-10399-01-R9]
RIN 2009-AA05


Federal Implementation Plan for Contingency Measures for the Fine 
Particulate Matter Standards; San Joaquin Valley, California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
promulgate a Federal Implementation Plan (FIP) under the Clean Air Act 
(CAA) that consists of contingency measures for the 1997, 2006, and 
2012 fine particulate matter (PM2.5) national ambient air 
quality standards (NAAQS or ``standards'') for the San Joaquin Valley 
PM2.5 nonattainment area. The contingency measures would 
apply to residential wood burning heaters and fireplaces and rural open 
areas. The proposed FIP, if finalized, would be implemented by the EPA, 
unless and until replaced through the EPA's approval of a contingency 
measure state implementation plan (SIP) submission.

DATES: 
    Comments: Comments must be received on or before September 22, 
2023. Under the Paperwork Reduction Act (PRA), comments on the 
information collection provisions are best assured of consideration if 
the Office of Management and Budget (OMB) receives a copy of your 
comments on or before September 7, 2023.
    Public Hearing: The EPA will hold a virtual public hearing on 
August 23, 2023. Please refer to the SUPPLEMENTARY INFORMATION section 
for additional information on the public hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-R09-
OAR-2023-0352; via the Federal eRulemaking Portal: https://www.regulations.gov (our preferred method). Follow the online 
instructions for submitting comments.
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document. Hand 
deliveries and couriers may be received by scheduled appointment only. 
For further information on EPA Docket Center services and the current 
status, please visit us online at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: For questions regarding this proposed 
rule, please contact Rory Mays, Planning and Analysis Branch (AIR-2), 
Air and Radiation Division, EPA Region IX, (415) 972-3227. For 
questions regarding the virtual public hearing, please contact Kobi 
Cook, Communities and Partnerships Branch (AIR-4), Air and Radiation 
Division, EPA Region IX, (415) 972-3989. Both can be reached by 
emailing [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to the EPA.

Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-R09-OAR-2023-
0352 at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. The EPA may 
publish any comment received to its public docket. Do not submit to the 
EPA's docket at https://www.regulations.gov 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, 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.

B. Participation in Virtual Public Hearing

    The EPA will begin pre-registering speakers for the hearing no 
later than 1 business day after publication of this document in the 
Federal Register. To register to speak at the virtual hearing, please 
visit https://www.epa.gov/sanjoaquinvalley for online registration. The 
last day to pre-register to speak at the hearing will be August 21, 
2023. The EPA will post a general agenda for the hearing that will list 
pre-registered speakers in approximate order at: https://www.epa.gov/sanjoaquinvalley.
    The virtual public hearing will be held via teleconference on 
August 23, 2023. The virtual public hearing will convene at 4 p.m. 
Pacific Time (PT) and will conclude at 7 p.m. PT. The EPA may close the 
session 15 minutes after the last pre-registered speaker has testified 
if there are no additional speakers. For information or questions about 
the public hearing, please contact Kobi Cook, per the FOR FURTHER 
INFORMATION CONTACT section of this document. The EPA will announce 
further details at https://www.epa.gov/sanjoaquinvalley.
    The EPA will make every effort to follow the schedule as closely as 
possible on the day of the hearing; however, please plan for the 
hearings to run either ahead of schedule or behind schedule. Each 
commenter will have 5 minutes to provide oral testimony. The EPA 
encourages commenters to provide the EPA with a copy of their oral 
testimony electronically (via email) by emailing it to 
[email protected]. The EPA also recommends submitting the text 
of your oral comments as written comments to the rulemaking docket.
    The EPA may ask clarifying questions during the oral presentations, 
but will not respond to the presentations at that time. Written 
statements and supporting information submitted during the comment 
period will be considered with the same weight as oral comments and 
supporting information presented at the public hearing.
    Please note that any updates made to any aspect of the hearing will 
be posted online at https://www.epa.gov/sanjoaquinvalley. While the EPA 
expects the hearing to go forward as set forth above, please monitor 
our website or contact Kobi Cook, per the FOR FURTHER INFORMATION 
CONTACT section of this document, to determine if there are any 
updates. The EPA does not intend

[[Page 53432]]

to publish a document in the Federal Register announcing updates.
    If you require the services of a translator or special 
accommodations such as audio description, please pre-register for the 
hearing and describe your needs by August 21, 2023. The EPA may not be 
able to arrange accommodations without advanced notice.
    The information presented in this preamble is organized as follows:

Table of Contents

I. Background for Proposed Action
    A. Standards, Designations, Classifications, and Plans
    B. Findings and Contingency Measure Disapprovals
II. Contingency Measure Requirements, Guidance, and Legal Precedent
    A. Statutory and Regulatory Requirements
    B. Draft Revised Contingency Measure Guidance
III. Proposed FIP Contingency Measures
    A. General Considerations
    1. Legal Authority
    2. Implementation and Enforcement
    3. FIP Obligation for 2012 Annual PM2.5 NAAQS 
Contingency Measures
    4. Applicable PM2.5 Precursors
    5. Magnitude of Emissions Reductions From Contingency Measures
    6. Substitution Between Direct PM2.5 and 
NOX Emissions
    7. Using Same Contingency Measures for More Than One Triggering 
Event, NAAQS
    B. Candidate Measure Identification Process
    1. Emissions Inventory (Direct PM2.5 and 
NOX)
    2. Identification of Current and Future Planned Controls for 
Source Categories
    3. Past EPA Recommendations
    4. Environmental and Community Group Recommendations
    C. Residential Wood Burning
    1. Background
    2. Regulatory History
    3. Proposed Measure
    D. Rural Open Areas Dust
    1. Background
    2. Regulatory History
    3. Proposed Measure
    E. Summary of EPA Analysis and Conclusion
IV. Environmental Justice Considerations
V. Proposed Action and Request for Public Comment
VI. Statutory and Executive Order Reviews

I. Background for Proposed Action

    In the following sections, we describe the PM2.5 
standards that this proposed rule addresses, a brief history of the 
designation and classification of the San Joaquin Valley as 
nonattainment, the State's air quality planning and EPA rulemaking, and 
the basis for the current contingency measure FIP proposal for the 
PM2.5 NAAQS in the San Joaquin Valley.

A. Standards, Designations, Classifications, and Plans

    Under section 109 of the Clean Air Act (CAA or ``Act''), the EPA 
has established National Ambient Air Quality Standards (NAAQS or 
``standards'') for certain pervasive air pollutants (referred to as 
``criteria pollutants'') and conducts periodic reviews of the NAAQS to 
determine whether they should be revised or whether new NAAQS should be 
established. To date, the EPA has established NAAQS for particulate 
matter, ozone, carbon monoxide, nitrogen dioxide, sulfur dioxide and 
lead. Under CAA section 110, states have primary responsibility for 
meeting the NAAQS within the state, and must submit an implementation 
plan that specifies the manner in which the state will attain and 
maintain the NAAQS. These implementation plans are referred to as 
``state implementation plans'' or ``SIPs.'' Periodically, states must 
make SIP submissions of different types to meet additional CAA 
requirements. For example, after the EPA promulgates a new or revised 
NAAQS, under CAA section 110(a)(1) and (2), states are required to 
adopt and submit to the EPA a state implementation plan that provides 
for implementation, maintenance, and enforcement of the NAAQS. Such 
plans are referred to as ``infrastructure SIPs.'' Similarly, after the 
EPA promulgates designations for a new or revised NAAQS, states with 
designated nonattainment areas must make SIP submissions that meet 
additional requirements for such nonattainment areas, under CAA section 
172(c) and, in the case of the PM2.5 NAAQS, CAA sections 188 
and 189. This type of SIP submission is referred to as an ``attainment 
plan.'' Under CAA section 110(k), the EPA is charged with evaluation of 
each SIP submission submitted by states for compliance with applicable 
CAA requirements, and for approval or disapproval (in whole or in part) 
of the submission. The EPA evaluates SIP submissions and takes action 
to approve, disapprove, or conditionally approve them through notice-
and-comment rulemaking published in the Federal Register. Where 
appropriate, the EPA may act on specific parts of a SIP submission in 
separate rulemaking actions.
    In 1997, the EPA promulgated new NAAQS for fine particulate matter, 
using particles with an aerodynamic diameter less than or equal to a 
nominal 2.5 micrometers (``PM2.5'') as the indicator.\1\ The 
EPA established primary and secondary annual and 24-hour standards for 
PM2.5. The EPA set the 1997 annual PM2.5 NAAQS, 
both primary and secondary standards, at 15.0 micrograms per cubic 
meter ([mu]g/m\3\), based on a 3-year average of annual mean 
PM2.5 concentrations. The EPA set the 1997 24-hour 
PM2.5 NAAQS, both primary and secondary standards, at 65 
[mu]g/m\3\, based on the 3-year average of the 98th percentile of 24-
hour PM2.5 concentrations. Collectively, we refer herein to 
the 1997 24-hour and annual PM2.5 NAAQS as the ``1997 
PM2.5 NAAQS'' or ``1997 PM2.5 standards.'' In 
2006, the EPA promulgated a new, more stringent 24-hour NAAQS for 
PM2.5 by lowering the primary and secondary standards level 
from 65 [mu]g/m\3\ to 35 [mu]g/m\3\ (referred to herein as the ``2006 
24-hour PM2.5 NAAQS'').\2\ In 2012, the EPA promulgated a 
new, more stringent annual NAAQS for PM2.5 by lowering the 
primary standards level from 15.0 [mu]g/m\3\ to 12.0 [mu]g/m\3\ (herein 
referred to as the ``2012 annual PM2.5 NAAQS'').\3\ Each 
iteration of the PM2.5 NAAQS remains in effect, and states 
with designated nonattainment areas for each of them are obligated to 
meet applicable attainment plan requirements for them.
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    \1\ 62 FR 38652 (July 18, 1997) and 40 CFR 50.7.
    \2\ 71 FR 61144 (October 17, 2006) and 40 CFR 50.13.
    \3\ 78 FR 3086 (January 15, 2013) and 40 CFR 50.18.
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    The EPA established each of these NAAQS after considering 
substantial evidence from numerous health studies demonstrating that 
serious health effects are associated with exposures to 
PM2.5 concentrations above these levels. Epidemiological 
studies have shown statistically significant correlations between 
elevated PM2.5 levels and premature mortality. Other 
important health effects associated with PM2.5 exposure 
include aggravation of respiratory and cardiovascular disease (as 
indicated by increased hospital admissions, emergency room visits, 
absences from school or work, and restricted activity days), changes in 
lung function, and increased respiratory symptoms. Individuals 
particularly sensitive to PM2.5 exposure include older 
adults, people with heart and lung disease, and children.\4\ 
PM2.5 can be particles emitted by sources directly into the 
atmosphere as a solid or liquid particle (``primary PM2.5'' 
or ``direct PM2.5''), or can be particles that form in the 
atmosphere as a result of various chemical reactions involving 
PM2.5 precursor emissions emitted by sources (``secondary 
PM2.5''). The EPA has identified the precursors of 
PM2.5 to be oxides of nitrogen (``NOX''), sulfur

[[Page 53433]]

oxides, volatile organic compounds, and ammonia.\5\
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    \4\ 78 FR 3086, 3088.
    \5\ EPA, Air Quality Criteria for Particulate Matter, No. EPA/
600/P-99/002aF and EPA/600/P-99/002bF, October 2004.
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    Following promulgation of a new or revised NAAQS, the EPA is 
required under CAA section 107(d) to designate areas throughout the 
nation as attaining or not attaining the NAAQS. As noted previously, 
for areas the EPA has designated nonattainment, states are required 
under the CAA to submit attainment plan SIP submissions. These SIP 
submissions must provide for, among other elements, reasonable further 
progress (RFP) towards attainment of the NAAQS, attainment of the NAAQS 
no later than the applicable attainment date, and implementation of 
contingency measures to take effect if the state fails to meet RFP or 
to attain the NAAQS by the applicable attainment date.
    The San Joaquin Valley is located in the southern half of 
California's Central Valley and includes all of San Joaquin, 
Stanislaus, Merced, Madera, Fresno, Tulare, and Kings counties, and the 
valley portion of Kern County.\6\ The area is home to four million 
people and is the nation's leading agricultural region. Stretching over 
250 miles from north to south and averaging 80 miles wide, it is 
partially enclosed by the Coast Mountain range to the west, the 
Tehachapi Mountains to the south, and the Sierra Nevada range to the 
east. In 2005, the EPA designated the San Joaquin Valley as 
nonattainment for the 1997 annual PM2.5 NAAQS, and 
nonattainment for the 1997 24-hour PM2.5 NAAQS.\7\
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    \6\ For a precise description of the geographic boundaries of 
the San Joaquin Valley nonattainment area, see 40 CFR 81.305.
    \7\ 70 FR 944 (January 5, 2005), codified at 40 CFR 81.305.
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    The local air district with primary responsibility for developing 
attainment plan SIP submissions for the PM2.5 NAAQS in this 
area is the San Joaquin Valley Unified Air Pollution Control District 
(SJVUAPCD or ``District''). Once the District adopts the regional plan, 
the District submits the plan to the California Air Resources Board 
(CARB) for adoption as part of the California SIP. CARB is the State 
agency responsible for adopting and revising the California SIP and for 
submitting the SIP and SIP revisions to the EPA. Under California law, 
generally speaking, CARB is responsible for regulation of mobile 
sources while the local air districts are responsible for regulation of 
stationary sources.
    Originally, the EPA designated areas for the 1997 annual and 24-
hour PM2.5 NAAQS under subpart 1 (of part D of title I of 
the CAA), i.e., without specifying the classifications of nonattainment 
required by subpart 4. Later, in response to a court decision,\8\ the 
EPA classified nonattainment areas for the 1997 annual and 24-hour 
PM2.5 NAAQS, consistent with the classifications set forth 
in subpart 4. With respect to San Joaquin Valley, the EPA classified 
the San Joaquin Valley as a ``Moderate'' nonattainment area,\9\ and 
then later reclassified the area as a ``Serious'' nonattainment area 
for the 1997 annual and 24-hour PM2.5 NAAQS.\10\
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    \8\ In Natural Resources Defense Council v. EPA, 706 F.3d 428 
(D.C. Cir. 2013), the U.S. Court of Appeals for D.C. Circuit 
concluded that the EPA erred in implementing the 1997 
PM2.5 standards solely pursuant to the general 
implementation requirements of subpart 1, without also considering 
the requirements specific to PM10 nonattainment areas in 
subpart 4, part D of title I of the CAA.
    \9\ 79 FR 31566 (June 2, 2014).
    \10\ 80 FR 18528 (April 7, 2015).
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    In 2016, the EPA determined that the San Joaquin Valley had failed 
to attain the 1997 annual and 24-hour PM2.5 NAAQS by the 
applicable ``Serious'' area attainment date.\11\ As a result, the State 
of California was required, under CAA section 189(d), to submit a new 
SIP submission that, among other elements, provides for expeditious 
attainment of the 1997 annual and 24-hour PM2.5 NAAQS and 
for a minimum five percent annual reduction in the emissions of direct 
PM2.5 or a PM2.5 plan precursor pollutant in the 
San Joaquin Valley (herein, referred to as a ``Five Percent Plan''). 
The Five Percent Plan for the 1997 annual and 24-hour PM2.5 
NAAQS was due no later than December 31, 2016.\12\
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    \11\ 81 FR 84481 (November 23, 2016).
    \12\ Id. at 84482.
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    With respect to the 2006 24-hour PM2.5 NAAQS, the EPA 
initially designated San Joaquin Valley as nonattainment under subpart 
1 (i.e., without classification) \13\ but, in 2014, in response to the 
court decision referred to previously, the EPA classified the area as 
Moderate.\14\ In 2016, the EPA reclassified San Joaquin Valley as a 
Serious nonattainment area for the 2006 24-hour PM2.5 NAAQS 
based on the EPA's determination that the area could not practicably 
attain these NAAQS by the applicable attainment date of December 31, 
2015.\15\ The EPA established an August 21, 2017 deadline for 
California to adopt and submit a SIP submission addressing the Serious 
nonattainment area requirements for the 2006 24-hour PM2.5 
NAAQS.\16\
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    \13\ 74 FR 58688 (November 13, 2009).
    \14\ 79 FR 31566.
    \15\ 81 FR 2993 (January 20, 2016).
    \16\ Id. at 3000.
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    With respect to the 2012 annual PM2.5 NAAQS, the EPA 
designated San Joaquin Valley as a Moderate nonattainment area in 
2015.\17\ Under CAA section 189 and the EPA's PM2.5 SIP 
Requirements Rule,\18\ the deadline for the state to submit an 
attainment plan SIP submission addressing the Moderate nonattainment 
area requirements for the 2012 annual PM2.5 NAAQS is 18 
months from the effective date of the designation of the area.\19\ The 
effective date of the designation of the San Joaquin Valley as a 
Moderate nonattainment area for the 2012 annual PM2.5 NAAQS 
was April 15, 2015, and thus, the deadline for a SIP submission 
addressing the Moderate area requirements was October 15, 2016.
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    \17\ 80 FR 2206 (January 15, 2015).
    \18\ 81 FR 58010 (August 24, 2016); codified at 40 CFR part 51, 
subpart Z.
    \19\ 40 CFR 51.1003(a).
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B. Findings and Contingency Measure Disapprovals

    In the wake of these EPA actions, CARB and the District worked 
together to prepare a comprehensive SIP submission to address the 
nonattainment area requirements for the 1997, 2006, and 2012 
PM2.5 NAAQS for San Joaquin Valley, but did not meet the 
various SIP submission deadlines. In late 2018, the EPA issued a 
finding of failure to submit to the State for the required attainment 
plan SIP submissions for the 1997 annual and 24-hour PM2.5 
NAAQS, the 2006 24-hour PM2.5 NAAQS, and the 2012 annual 
PM2.5 NAAQS for the San Joaquin Valley.\20\ The EPA's 
finding of failure to submit was effective January 7, 2019. Under CAA 
section 110(c), the EPA is obligated to promulgate a Federal 
Implementation Plan (FIP) within two years of a finding that a state 
has failed to make a required SIP submission, unless the state submits 
a SIP submission that corrects the deficiency, and the EPA approves 
that SIP submission, before the EPA promulgates such FIP.\21\ In this 
case, the finding of failure to submit established a deadline of 
January 7, 2021, for the EPA to promulgate a FIP to address all 
applicable attainment plan requirements for the 1997 annual and 24-hour 
PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, and 
2012 annual PM2.5

[[Page 53434]]

NAAQS for San Joaquin Valley, for which the EPA had not received and 
approved an adequate SIP submission from the State.
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    \20\ 83 FR 62720 (December 6, 2018).
    \21\ The finding of failure to submit also started an 18-month 
New Source Review (NSR) offset sanction clock and a 24-month highway 
sanction clock for the State of California. CAA section 179(a) and 
40 CFR 52.31.
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    On May 10, 2019, CARB submitted two SIP submissions to address the 
nonattainment area requirements for all four of the relevant 
PM2.5 NAAQS for the San Joaquin Valley, including the 
contingency measure requirement.\22\ As discussed in the following 
paragraph, the EPA has previously taken a series of actions on these 
SIP submissions to address different nonattainment area requirements 
for each of the NAAQS. In this proposed action, we are focused only on 
the contingency measure requirements.
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    \22\ The SIP revisions submitted on May 10, 2019 include the 
``2016 Moderate Area Plan for the 2012 PM2.5 Standard'' 
(``2016 PM2.5 Plan'') and the ``2018 Plan for the 1997, 
2006, and 2012 PM2.5 Standards'' (``2018 PM2.5 
Plan''), which incorporates by reference the ``San Joaquin Valley 
Supplement to the 2016 State Strategy for the State Implementation 
Plan'' (``Valley State SIP Strategy''). On February 11, 2020, CARB 
submitted a revised version of App. H (``RFP, Quantitative 
Milestones, and Contingency'') that replaces the version submitted 
with the 2018 PM2.5 Plan on May 10, 2019. The EPA found 
the SIP submissions complete in a letter dated June 24, 2020, from 
Elizabeth J. Adams, Director, EPA Region IX, to Richard W. Corey, 
Executive Officer, CARB. The EPA's completeness determination 
terminated the NSR offsets and highway sanctions started by the 
December 6, 2018 finding of failure to submit but did not affect the 
FIP obligation.
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    In 2020, the EPA approved the portion of the SIP submissions 
related to the 2006 24-hour PM2.5 NAAQS, but deferred action 
on the contingency measure element.\23\ In 2021, the EPA approved the 
portion of the SIP submissions related to the Moderate area 
requirements for the 2012 annual PM2.5 NAAQS except for the 
contingency measure element, which the EPA disapproved.\24\ The EPA 
also disapproved the previously-deferred contingency measure element 
for the 2006 24-hour PM2.5 NAAQS.\25\ In another 2021 
action, the EPA disapproved the portion of the SIP submissions related 
to the 1997 annual PM2.5 NAAQS except for the emissions 
inventory, which the Agency approved.\26\ In 2022, the EPA approved the 
portion of the SIP submission related to the 1997 24-hour 
PM2.5 NAAQS, with the exception of the contingency measure 
element.\27\ In our action on the SIP submission related to the 1997 
24-hour PM2.5 NAAQS, we disapproved the contingency measure 
element, but also found that the contingency measure requirement was 
moot for that particular PM2.5 NAAQS because of the EPA's 
concurrent determination of attainment by the applicable attainment 
date for San Joaquin Valley for the 1997 24-hour PM2.5 
NAAQS.\28\
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    \23\ 85 FR 44192 (July 22, 2020).
    \24\ 86 FR 67343 (November 26, 2021).
    \25\ Id.
    \26\ 86 FR 67329 (November 26, 2021).
    \27\ 87 FR 4503 (January 28, 2022).
    \28\ Id.
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    The EPA's various actions in 2020 and 2021 on the SIP submissions 
for San Joaquin Valley for the 1997, 2006, and 2012 PM2.5 
NAAQS have served to narrow the scope of the EPA's FIP duty arising 
from the December 6, 2018 finding of failure to submit (effective 
January 7, 2019) to: (1) the contingency measure requirement for the 
2006 24-hour PM2.5 NAAQS and the 2012 annual 
PM2.5 NAAQS, and (2) certain nonattainment area requirements 
(including the contingency measure requirement) for the 1997 annual 
PM2.5 NAAQS other than the base year emissions inventory 
requirement.\29\ This proposed rule addresses only the Serious Area 
contingency measure requirements for the 1997 annual PM2.5 
NAAQS and the 2006 24-hour PM2.5 NAAQS, and the Moderate 
Area contingency measure requirement for the 2012 annual 
PM2.5 NAAQS for San Joaquin Valley. We are proposing this 
contingency measure FIP at this time to fulfill the EPA's statutory 
duties by deadlines established under a consent decree in a lawsuit 
brought against the EPA to compel promulgation of a FIP arising from 
the finding of failure to submit.\30\ The EPA has proposed action on 
the various other nonattainment area requirements for the 1997 annual 
PM2.5 NAAQS in a separate rulemaking.\31\
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    \29\ The disapprovals published by the EPA on November 26, 2021, 
for certain elements of the SIP submissions for the 1997 annual 
PM2.5 NAAQS and the contingency measures elements for the 
2006 24-hour PM2.5 NAAQS and 2012 annual PM2.5 
NAAQS started new 18-month NSR offset sanction clocks and 24-month 
highway sanctions clocks, that began on the effective date of the 
disapprovals (December 27, 2021).
    \30\ Comit[eacute] Progreso de Lamont v. EPA, N.D. Cal., 21-cv-
08733.
    \31\ 88 FR 45276 (July 14, 2023). Specifically, these 
nonattainment requirements include a section 189(d) plan that 
demonstrates expeditious attainment of the 1997 annual 
PM2.5 NAAQS within the time period provided under CAA 
section 179(d) and provides for annual reductions in emissions of 
direct PM2.5 or a PM2.5 plan precursor 
pollutant within the area of not less than five percent per year 
from the most recent emissions inventory for the area until 
attainment; provisions for the implementation of BACM, including 
best available control technology (BACT), for sources of direct 
PM2.5 and all PM2.5 plan precursors no later 
than four years after the area is reclassified; provisions that 
require reasonable further progress (RFP); quantitative milestones 
which are to be achieved every three years until the area is 
redesignated attainment and which demonstrate RFP toward attainment 
by the applicable date.
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II. Contingency Measure Requirements, Guidance, and Legal Precedent

    The EPA first provided its views on the CAA's requirements for 
particulate matter plans under part D, title I of the Act in the 
following guidance documents: (1) ``State Implementation Plans; General 
Preamble for the Implementation of Title I of the Clean Air Act 
Amendments of 1990'' (``General Preamble''); \32\ (2) ``State 
Implementation Plans; General Preamble for the Implementation of Title 
I of the Clean Air Act Amendments of 1990; Supplemental''; \33\ 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'').\34\ More recently, in the PM2.5 SIP 
Requirements Rule, the EPA established regulatory requirements and 
provided further interpretive guidance on the statutory SIP 
requirements that apply to areas designated nonattainment for all 
PM2.5 NAAQS.\35\
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    \32\ 57 FR 13498 (April 16, 1992).
    \33\ 57 FR 18070 (April 28, 1992).
    \34\ 59 FR 41998 (August 16, 1994).
    \35\ 81 FR 58010.
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A. Statutory and Regulatory Requirements

    Under CAA section 172(c)(9), states required to make an attainment 
plan SIP submission must include contingency measures to be implemented 
if the area fails to meet RFP (``RFP contingency measures'') or fails 
to attain the NAAQS by the applicable attainment date (``attainment 
contingency measures''). Under the PM2.5 SIP Requirements 
Rule, states must include contingency measures that provide that the 
state will implement them following a determination by the EPA that the 
state has failed: (1) to meet any RFP requirement in the approved SIP; 
(2) to meet any quantitative milestone (QM) in the approved SIP; (3) to 
submit a required quantitative milestone report; or (4) to attain the 
applicable PM2.5 NAAQS by the applicable attainment 
date.\36\ Contingency measures must be fully adopted rules or control 
measures that are ready to be implemented quickly upon failure to meet 
RFP or failure of the area to meet the relevant NAAQS by the applicable 
attainment date.\37\ In general, we expect all actions needed to effect 
full implementation of

[[Page 53435]]

the measures to occur within 60 days after the EPA notifies the state 
of a failure to meet RFP or to attain.\38\ Moreover, we expect the 
additional emissions reductions from the contingency measures to be 
achieved within a year of the triggering event.\39\
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    \36\ 40 CFR 51.1014(a).
    \37\ 81 FR 58010, 58066 and General Preamble Addendum, 42015.
    \38\ 81 FR 58010, 58066. See also General Preamble 13512, 13543-
13544, and General Preamble Addendum, 42014-42015.
    \39\ General Preamble, 13511.
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    The purpose of contingency measures is to continue progress in 
reducing emissions while a state revises its SIP to meet the missed RFP 
requirement or to correct ongoing nonattainment. Neither the CAA nor 
the EPA's implementing regulations establish a specific level of 
emission reductions that implementation of contingency measures must 
achieve, but the EPA recommends that contingency measures should 
provide for emission reductions equivalent to approximately one year of 
reductions needed for RFP in the nonattainment area. For 
PM2.5 NAAQS SIP planning purposes, the EPA recommends that 
RFP should be calculated as the overall level of reductions needed to 
demonstrate attainment divided by the number of years from the base 
year to the attainment year. As part of the attainment plan SIP 
submission, the EPA expects states to explain the amount of anticipated 
emissions reductions that the contingency measures will achieve. In the 
event that a state is unable to identify and adopt contingency measures 
that will provide for approximately one year's worth of emissions 
reductions, then EPA recommends that the state provide a reasoned 
justification why the smaller amount of emissions reductions is 
appropriate.\40\
---------------------------------------------------------------------------

    \40\ 81 FR 58010, 58067.
---------------------------------------------------------------------------

    To satisfy the requirements of 40 CFR 51.1014, the contingency 
measures adopted as part of a PM2.5 NAAQS attainment plan 
must consist of control measures for the area that are not otherwise 
required to meet other attainment plan requirements (e.g., to meet 
RACM/RACT requirements). By definition, contingency measures are 
measures that are over and above what a state must adopt and impose to 
meet RFP and to provide for attainment by the applicable attainment 
date.
    Contingency measures serve the purpose of providing additional 
emission reductions during the period after a failure to meet RFP or 
failure to attain as the state prepares a new SIP submission to rectify 
the problem. Accordingly, contingency measures must provide such 
additional emission reductions during an appropriate period of time and 
must specify the timeframe within which their requirements would become 
effective following any of the EPA determinations specified in 40 CFR 
51.1014(a).
    In addition, to comply with CAA section 172(c)(9), contingency 
measures must be both conditional and prospective, so that they will go 
into effect and achieve emission reductions only in the event of a 
future triggering event such as a failure to meet RFP or a failure to 
attain. In a 2016 decision called Bahr v. EPA (``Bahr''),\41\ the Ninth 
Circuit Court of Appeals held that CAA section 172(c)(9) does not allow 
EPA approval of already-implemented control measures as contingency 
measures. Thus, already-implemented measures cannot serve as 
contingency measures under CAA section 172(c)(9). For purposes of the 
PM2.5 NAAQS, a state must develop, adopt, and submit one or 
more contingency measures to be triggered upon a failure to meet any 
RFP requirement, failure to meet a quantitative milestone requirement, 
or failure to attain the NAAQS by the applicable attainment date, 
regardless of the extent to which already-implemented measures would 
achieve surplus emission reductions beyond those necessary to meet RFP 
or quantitative milestone requirements and beyond those predicted to 
achieve attainment of the NAAQS.
---------------------------------------------------------------------------

    \41\ Bahr v. EPA, 836 F.3d 1218, 1235-1237 (9th Cir. 2016). See 
also, Sierra Club v. EPA, 21 F.4th 815, 827-828 (D.C. Cir. 2021).
---------------------------------------------------------------------------

    In a recent decision on the EPA's approval of a SIP contingency 
measure element for the ozone NAAQS, the Ninth Circuit Court of Appeals 
held that, under the EPA's current guidance, the surplus emissions 
reductions from already-implemented measures cannot be relied upon to 
justify the approval of a contingency measure that would achieve far 
less than one year's worth of RFP as sufficient by itself to meet the 
contingency measure requirements of CAA sections 172(c)(9) and 
182(c)(9) for the nonattainment area.\42\
---------------------------------------------------------------------------

    \42\ Assoc. of Irritated Residents v. EPA, 10 F.4th 937 (9th 
Cir. 2021) (``AIR v. EPA'' or ``AIR'').
---------------------------------------------------------------------------

B. Draft Revised Contingency Measure Guidance

    In March 2023, the EPA published notice of availability announcing 
a new draft guidance addressing the contingency measures requirement of 
section 172(c)(9), entitled: ``DRAFT: Guidance on the Preparation of 
State Implementation Plan Provisions that Address the Nonattainment 
Area Contingency Measure Requirements for Ozone and Particulate Matter 
(DRAFT-3/17/23--Public Review Version)'' (herein referred to as the 
``Draft Revised Contingency Measure Guidance'') and opportunity for 
public comment.\43\ The principal differences between the draft revised 
guidance and existing guidance on contingency measures relate to the 
EPA's recommendations concerning the specific amount of emission 
reductions that implementation of contingency measures should achieve, 
and the timing for when the emissions reductions from the contingency 
measures should occur.
---------------------------------------------------------------------------

    \43\ 88 FR 17571 (March 23, 2023). The Draft Revised Contingency 
Measure Guidance is available at: https://www.epa.gov/air-quality-implementation-plans/draft-contingency-measures-guidance.
---------------------------------------------------------------------------

    Under the draft revised guidance, the recommended level of 
emissions reductions that contingency measures should achieve would 
represent one year's worth of ``progress'' as opposed to one year's 
worth of RFP. One year's worth of ``progress'' is calculated by 
determining the average annual reductions between the base year 
emissions inventory and the projected attainment year emissions 
inventory, determining what percentage of the base year emissions 
inventory this amount represents, then applying that percentage to the 
projected attainment year emissions inventory to determine the amount 
of reductions needed to ensure ongoing progress if contingency measures 
are triggered.
    With respect to the time period within which reductions from 
contingency measures should occur, the EPA previously recommended that 
contingency measures take effect within 60 days of being triggered, and 
that the resulting emission reductions generally occur within one year 
of the triggering event. Under the draft revised guidance, in instances 
where there are insufficient contingency measures available to achieve 
the recommended amount of emissions reductions within one year of the 
triggering event, the EPA believes that contingency measures that 
provide reductions within up to two years of the triggering event would 
be appropriate to consider towards achieving the recommended amount of 
emissions reductions. The draft revised guidance does not alter the 60-
day recommendation for the contingency measures to take initial effect.

III. Proposed FIP Contingency Measures

A. General Considerations

1. Legal Authority
    CAA section 110(c)(1) authorizes and obligates the EPA to 
promulgate a FIP

[[Page 53436]]

when the EPA finds that a state has failed to make a required 
submission or finds that the plan or plan revision submitted by the 
state does not satisfy the minimum completeness criteria set forth in 
40 CFR part 51, Appendix V, or when the EPA disapproves a SIP 
submission in whole or in part, unless the state first makes a complete 
SIP submission that corrects the deficiency, and the EPA approves that 
submission, before the EPA promulgates such FIP. In this instance, on 
December 6, 2018, we published our finding that California had failed 
to submit attainment plan SIP submissions addressing various 
nonattainment area SIP requirements for the 1997 annual and 24-hour 
PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, and 
2012 annual PM2.5 NAAQS in the San Joaquin Valley. As a 
result of that finding of failure to submit, the EPA was authorized and 
obligated to promulgate a FIP for all of those SIP requirements covered 
by the finding, except those for which the EPA has subsequently 
approved SIP submissions or that the EPA has subsequently found to be 
no longer applicable. CAA section 302(y) defines the term ``Federal 
Implementation Plan'' to mean ``a plan (or portion thereof) promulgated 
by the [EPA] to fill all or a portion of a gap or otherwise correct all 
or a portion of an inadequacy in a [SIP], and which includes 
enforceable emission limitations or other control measures, means, or 
techniques (including economic incentives, such as marketable permits 
or auctions of emissions allowances), and provides for attainment of 
the relevant [NAAQS].''
    In promulgating regulations in a FIP, the EPA may rely on its 
authority under section 110(c) or under authority it has under other 
provisions of the CAA. Under CAA section 110(c), the EPA ``stands in 
the shoes'' of the state and may exercise all authority that the state 
may exercise under the CAA.\44\ For this particular proposed FIP, the 
measures that the EPA is proposing are measures that the state has the 
authority to adopt.
---------------------------------------------------------------------------

    \44\ Under CAA section 110(c), the EPA ``stands in the shoes of 
the defaulting state, and all of the rights and duties that would 
otherwise fall to the state accrue instead to EPA.'' Central Ariz. 
Water Conservation Dist. v. EPA, 990 F.2d 1531, 1541 (9th Cir. 
1993).
---------------------------------------------------------------------------

2. Implementation and Enforcement
    Congress has determined that the primary responsibility for air 
pollution prevention and control at its source rests with state and 
local governments. CAA section 101(a)(3). Accordingly, the EPA has 
attempted to design the FIP contingency measures to ensure that, 
wherever possible, state and local implementation is encouraged and 
facilitated by the proposed FIP's regulatory approach. Thus, for 
example, the FIP generally employs local California rule organization 
and terminology in the proposed measures.
    With respect to enforcement of the FIP, we note that the EPA has a 
comprehensive enforcement program as specified in section 113(a) of the 
CAA. Under this program, the EPA is authorized to take enforcement 
actions to ensure compliance with the CAA and the rules and regulations 
promulgated under the CAA. Such actions include the issuance of an 
administrative order requiring compliance with the applicable 
implementation plan; the issuance of an administrative order requiring 
the payment of a civil penalty for past violations; and the 
commencement of a civil judicial action. Orders issued under CAA 
section 113(a) require subject entities to comply with the requirements 
set forth in the order as expeditiously as practicable, but in no event 
longer than one year after the date the order was issued. Issuance of 
any such order does not prohibit the EPA from assessing any penalties. 
Under CAA section 113(b), civil judicial enforcement may require 
assessment of penalties of up to $117,468 per day for each 
violation.\45\ Additionally, under CAA section 113(c), any person who 
knowingly violates any requirement or prohibition of an implementation 
plan may be subject to criminal enforcement, with penalties including 
fines and imprisonment.
---------------------------------------------------------------------------

    \45\ Pursuant to the EPA's Civil Monetary Penalty Inflation 
Adjustment final rule, 88 FR 986 (January 6, 2023), codified at 40 
CFR 19.4.
---------------------------------------------------------------------------

3. FIP Obligation for 2012 Annual PM2.5 NAAQS Contingency 
Measures
    The EPA's December 6, 2018 finding of failure to submit relates, in 
relevant part, to an overdue Moderate area attainment plan SIP 
submission for San Joaquin Valley for the 2012 annual PM2.5 
NAAQS. In 2021, we approved the portion of the SIP submissions that 
demonstrate that attainment of that NAAQS by the Moderate area 
attainment date of December 31, 2021, was impracticable, and thus we 
reclassified San Joaquin Valley as a Serious area for the 2012 annual 
PM2.5 NAAQS.\46\ \47\ Unlike statutory provisions applicable 
to other NAAQS, section 189(a)(1)(B) authorizes a state to make a 
nonattainment plan SIP submission for an area classified as Moderate 
demonstrating that it is impractical to attain the NAAQS in an area by 
the outermost statutory attainment date.
---------------------------------------------------------------------------

    \46\ 86 FR 67343.
    \47\ The reclassification action 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. 
While we anticipate that the State's SIP submission for the latter 
will address contingency measures, we note that the requirement for 
Serious area contingency measures for the 2012 annual 
PM2.5 NAAQS is outside the scope of this proposed rule; 
there is no requirement for the EPA to promulgate a Serious area 
contingency measures FIP for the 2012 annual PM2.5 NAAQS.
---------------------------------------------------------------------------

    The EPA does not interpret the requirement for contingency measures 
for failing to attain the NAAQS by the applicable attainment date to 
apply to a Moderate area that a state adequately demonstrates cannot 
practicably attain the NAAQS by the statutory attainment date. Because 
it is a given that the area at issue could not attain by the attainment 
date, it would be illogical to require contingency measures (i.e., 
conditional and prospective measures) that would be triggered 
specifically in the event of such a failure to attain. Rather, the EPA 
believes it is appropriate for the state to identify and adopt these 
contingency measures in a timely way as part of the Serious area 
attainment plan that it will develop once the EPA reclassifies such an 
area. However, if a state with a Moderate area that the EPA has found 
cannot practicably attain the NAAQS by the attainment date fails to 
meet RFP, when reviewed as part of the quantitative milestone either 
4.5 or 7.5 years after designation, then the requirement to implement 
contingency measures would be triggered as required by CAA section 
172(c)(9).\48\ Thus, contingency measures for failure to meet RFP, 
failure to submit a quantitative milestone report, or failure to meet 
the quantitative milestones, are necessary for the San Joaquin Valley, 
even if they are not required for purposes of a failure to attain under 
these specific circumstances.
---------------------------------------------------------------------------

    \48\ 81 FR 58010, 58067.
---------------------------------------------------------------------------

    We note that the EPA will separately review SIP submission(s) for 
the Serious area contingency measure requirements for the 2012 annual 
PM2.5 NAAQS, which are outside the scope of the EPA's FIP 
obligation for the San Joaquin Valley. This action addresses the 
Moderate area plan contingency measures requirement for the 2012 annual 
PM2.5 NAAQS.
4. Applicable PM2.5 Precursors
    Under the CAA, states are required to regulate not only direct 
emissions of PM2.5 in an attainment plan, but also all

[[Page 53437]]

PM2.5 precursors. Section 189(e) explicitly requires that 
states do so for major stationary sources, unless such sources do not 
significantly contribute to violations of the NAAQS in the 
nonattainment area at issue. The EPA has interpreted this provision to 
authorize states to establish that it is not necessary to regulate 
precursor emissions from other source categories under the same 
conditions. Courts have upheld this approach.\49\
---------------------------------------------------------------------------

    \49\ See, e.g., Assoc. of Irritated Residents v. EPA, et al., 
423 F.3d 989 (9th Cir. 2005).
---------------------------------------------------------------------------

    Under the EPA's PM2.5 SIP Requirements Rule, states must 
identify, adopt, and implement control measures, including control 
technologies, on sources of direct PM2.5 emissions and 
sources of emissions of PM2.5 plan precursors located in 
PM2.5 nonattainment areas.\50\ PM2.5 plan 
precursors are those PM2.5 precursors (which are 
SO2, NOX, volatile organic compounds (VOCs), and 
ammonia) that the state must regulate in the applicable attainment 
plan.\51\ A state may elect to submit to the EPA precursor 
demonstrations for a specific nonattainment area in order to establish 
that regulation of one or more precursors is not necessary for 
attainment in the nonattainment area at issue.\52\ A precursor 
demonstration refers to an optional set of analyses provided by a state 
that are designed to show that emissions of a particular 
PM2.5 precursor do not contribute significantly to 
PM2.5 levels that exceed the relevant PM2.5 
standards in a particular nonattainment area.\53\ If a comprehensive 
precursor demonstration is approved by the EPA, then the state is not 
required to control emissions of the relevant precursor from existing 
sources in the current attainment plan.\54\ Accordingly, the state 
would not need to address the precursor in order to meet attainment 
plan requirements, including RFP, in QMs and associated QM reports, or 
be required to adopt contingency measures to reduce the precursor at 
issue.\55\
---------------------------------------------------------------------------

    \50\ See generally 40 CFR 51.1009(a) and 40 CFR 51.1010(a).
    \51\ 40 CFR 51.1000.
    \52\ 40 CFR 51.1006(a).
    \53\ 40 CFR 51.1000.
    \54\ 40 CFR 51.1006(a)(1)(iii).
    \55\ 40 CFR 51.1009(a)(4)(i).
---------------------------------------------------------------------------

    For San Joaquin Valley, we have considered the State's precursor 
demonstrations with respect to the 1997 annual PM2.5 NAAQS, 
the 2006 24-hour PM2.5 NAAQS, and the 2012 annual 
PM2.5 NAAQS in taking action on the portions of the SIP 
submissions applicable to those NAAQS. For the 1997 annual 
PM2.5 NAAQS, we disapproved the comprehensive precursor 
demonstration from the 2019 SIP submissions.\56\ More recently, 
however, the EPA proposed to approve the comprehensive precursor 
demonstration in connection with the State's 2021 submission of a 
revised attainment plan for the 1997 annual PM2.5 NAAQS.\57\ 
\58\ The State's comprehensive precursor demonstration documents 
indicate that SO2, VOC, and ammonia emissions do not 
contribute significantly to PM2.5 levels that exceed the 
1997 annual PM2.5 NAAQS in the San Joaquin Valley. On the 
basis of our proposed approval of the comprehensive precursor 
demonstration for the 1997 annual PM2.5 NAAQS, we are not 
proposing FIP contingency measures for SO2, VOC, or ammonia 
but do identify such measures for direct PM2.5 and 
NOX. If we do not finalize our proposed approval of the 
comprehensive precursor demonstration for the 1997 annual 
PM2.5 NAAQS, we will reconsider the potential need for FIP 
contingency measures for emissions sources of those PM2.5 
precursors for purposes of this NAAQS.
---------------------------------------------------------------------------

    \56\ 86 FR 67329.
    \57\ CARB submitted the ``Attainment Plan Revision for the 1997 
Annual PM2.5 Standard (August 19, 2021)'' (``15 [mu]g/
m\3\ SIP Revision'') to the EPA as a SIP revision on November 8, 
2021.
    \58\ 88 FR 45276.
---------------------------------------------------------------------------

    For the 2006 24-hour PM2.5 NAAQS, the EPA approved the 
comprehensive precursor demonstration that established that 
SO2, VOC, and ammonia emissions do not contribute 
significantly to PM2.5 levels that exceed the 2006 24-hour 
PM2.5 NAAQS in the San Joaquin Valley.\59\ A petition for 
review challenged the EPA's approval of the portions of the 2019 SIP 
submissions related to the 2006 24-hour PM2.5 NAAQS, and in 
2021, the Ninth Circuit Court of Appeals vacated the approval of 
aggregate commitments to the extent such commitments relied on 
inadequately-funded incentive-based control measures and remanded to 
the EPA for further consideration of the aggregate commitments, and for 
further proceedings consistent with the decision, but denied the 
petition in all other respects.\60\ The EPA's approval of the 
comprehensive precursor demonstration was not the subject of the court 
challenge, and thus, based on our approval of the comprehensive 
precursor demonstration for the 2006 24-hour PM2.5 NAAQS, we 
are not proposing FIP contingency measures for SO2, VOC, or 
ammonia for the 2006 24-hour PM2.5 NAAQS but do identify 
such measures for direct PM2.5 and NOX. If, in 
response to the court's remand, we withdraw our approval of the 
comprehensive precursor demonstration for the 2006 24-hour 
PM2.5 NAAQS in whole or in part, we will reconsider the 
potential need for FIP contingency measures for emissions sources of 
the relevant PM2.5 precursors for purposes of this NAAQS.
---------------------------------------------------------------------------

    \59\ 85 FR 17382, 17390-17396 (March 27, 2020), finalized at 85 
FR 44192.
    \60\ Medical Advocates for Healthy Air v. EPA, Case No. 20-
72780, Dkt. #58-1 (9th Cir., April 13, 2022).
---------------------------------------------------------------------------

    With respect to the San Joaquin Valley as a Moderate nonattainment 
area for the 2012 annual PM2.5 NAAQS, the EPA approved the 
comprehensive precursor demonstration that established that 
SO2, VOC, and ammonia emissions do not contribute 
significantly to PM2.5 levels that exceed the 2012 annual 
PM2.5 NAAQS in the San Joaquin Valley.\61\ Based on that 
approval, we are not proposing FIP contingency measures for 
SO2, VOC, or ammonia for the 2012 annual PM2.5 
NAAQS (as a Moderate area) but do identify such measures for direct 
PM2.5 and NOX. Our decision not to propose FIP 
contingency measures for SO2, VOC, or ammonia for the 2012 
annual PM2.5 NAAQS relates to San Joaquin Valley as a 
Moderate nonattainment area for that NAAQS, which is the relevant 
classification for the purposes of the proposed FIP. We will consider 
the issue of PM2.5 precursors for San Joaquin Valley for the 
2012 annual PM2.5 NAAQS once again as part of our evaluation 
of the to-be-submitted Serious area plan for the San Joaquin Valley for 
that NAAQS.
---------------------------------------------------------------------------

    \61\ 86 FR 49100, 49107-49112 (September 1, 2021), finalized at 
86 FR 67343.
---------------------------------------------------------------------------

5. Magnitude of Emissions Reductions From Contingency Measures
    As noted previously, neither the CAA nor the EPA's implementing 
regulations establish a specific level of emission reductions that 
implementation of contingency measures must achieve, but the EPA has 
recommended in existing guidance that contingency measures should 
provide for emission reductions equivalent to approximately one year of 
reductions needed for RFP in the nonattainment area. For 
PM2.5, one year of reduction needed for RFP is calculated as 
the overall level of reductions needed to demonstrate attainment by the 
applicable attainment year, divided by the number of years from the 
base year to the attainment year. For example, if the attainment plan 
provides for attainment in five years, then each year RFP would 
generally be one-fifth of the required overall emission reductions 
needed for attainment. Thus, contingency measures

[[Page 53438]]

should achieve approximately that amount of emission reductions to be 
triggered in the event of a failure to meet RFP, or a failure to 
attain.
    Using the longstanding approach, contingency measures should 
provide for emissions reductions of approximately one year's worth of 
RFP for each of the relevant PM2.5 NAAQS. For the 1997 
annual PM2.5 NAAQS and the 2006 24-hour PM2.5 
NAAQS, one year's worth of RFP is calculated by dividing the emission 
reductions from the base year emissions inventory to the attainment 
year emissions inventory by the number of years between those years. 
For the 2012 annual PM2.5 NAAQS, one year's worth of RFP is 
calculated by dividing the emission reductions from the base year 
emissions inventory to the outermost Moderate area RFP milestone year 
emissions inventory by the number of years between those years. For the 
2012 annual PM2.5 NAAQS in this case, RFP is based on the 
outermost Moderate area RFP milestone year rather than the attainment 
year because, as an area for which we approved an impracticability 
demonstration, the attainment year and emissions level providing for 
attainment have not yet been determined and approved.
    As shown in Table 1, for the San Joaquin Valley, one year's worth 
of RFP and the amount of emissions reductions that contingency measures 
should provide for is approximately 0.44 tons per day (tpd) for direct 
PM2.5 and 16.7 tpd for NOX for the 1997 annual 
PM2.5 NAAQS, approximately 0.58 tpd for direct 
PM2.5 and 18.4 tpd for NOX for the 2006 24-hour 
PM2.5 NAAQS, and approximately 0.46 tpd for direct 
PM2.5 and 15.3 tpd for NOX for the 2012 annual 
PM2.5 NAAQS.

                                       Table 1--One Year's Worth of RFP for the PM2.5 NAAQS in San Joaquin Valley
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Emissions (annual average, tpd) a b c                     Number of
                                                                                                                           years between    One year's
        Applicable PM2.5 NAAQS                  Pollutant         ---------------------------------------   Difference     base year and   worth of RFP
                                                                    Base year   Projected attainment/RFP       (tpd)      attainment/RFP       (tpd)
                                                                    inventory          inventory                               year
--------------------------------------------------------------------------------------------------------------------------------------------------------
1997 Annual PM2.5 NAAQS...............  Direct PM2.5.............        62.5  58.1.....................             4.4              10            0.44
                                        NOX......................       317.2  150.6....................           166.6              10            16.7
2006 24-hour PM2.5 NAAQS..............  Direct PM2.5.............        62.5  56.1.....................             6.4              11            0.58
                                        NOX......................       317.2  115.0....................           202.2              11            18.4
2012 Annual PM2.5 NAAQS...............  Direct PM2.5.............        62.5  58.4 (RFP in 2022).......             4.1               9            0.46
                                        NOX......................       317.2  179.8 (RFP in 2022)......           137.4               9            15.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Base year and 2023 attainment year emissions for the 1997 annual PM2.5 NAAQS are from Table H-6 (page H-12) of the revisions to the 2018 PM2.5 Plan
  adopted for the 1997 annual PM2.5 NAAQS on August 19, 2021 (``15 [mu]g/m\3\ SIP Revision'').
\b\ Base year and 2024 attainment year emissions for the 2006 24-hour PM2.5 NAAQS are from 85 FR 17382, 17421, Table 10, citing 2018 PM2.5 Plan,
  Appendix H (rev. February 11, 2020), Table H-5.
\c\ Base year and 2022 RFP year emissions for the 2012 annual PM2.5 NAAQS are from 86 FR 49100, 49121, Table 5, citing 2018 PM2.5 Plan, Appendix H (rev.
  February 11, 2020), Table H-11.

    Using the new approach described in the EPA's Draft Revised 
Contingency Measure Guidance, the EPA recommended that contingency 
measures should provide for emissions reductions of approximately one 
year's worth of progress for each of the relevant PM2.5 
NAAQS. For the 1997 annual PM2.5 NAAQS and the 2006 24-hour 
PM2.5 NAAQS, one year's worth of progress is calculated by 
determining the average annual reductions between the base year 
emissions inventory and the projected attainment year emissions 
inventory, determining what percentage of the base year emissions 
inventory this amount represents, then applying that percentage to the 
projected attainment year emissions inventory. For the 2012 annual 
PM2.5 NAAQS, one year's worth of progress is calculated by 
determining the average annual reductions between the base year 
emissions inventory and the projected outermost Moderate area RFP 
milestone year emissions inventory, determining what percentage of the 
base year emissions inventory this amount represents, then applying 
that percentage to the projected outermost Moderate area RFP milestone 
year emissions inventory. For the 2012 annual PM2.5 NAAQS in 
this case, the calculation of one year's worth of progress is based on 
the outermost Moderate area RFP milestone year rather than the 
attainment year because, as an area for which we approved an 
impracticability demonstration, the attainment year and emissions level 
providing for attainment have not yet been determined and approved.
    As shown in Table 2, for the San Joaquin Valley, one year's worth 
of progress and the amount of emissions reductions that contingency 
measures should provide for is approximately 0.41 tpd for direct 
PM2.5 and 7.9 tpd for NOX for the 1997 annual 
PM2.5 NAAQS, approximately 0.52 tpd for direct 
PM2.5 and 6.7 tpd for NOX for the 2006 24-hour 
PM2.5 NAAQS, and approximately 0.43 tpd for direct 
PM2.5 and 8.7 tpd for NOX for the 2012 annual 
PM2.5 NAAQS.

                                     Table 2--One Year's Worth of Progress for the PM2.5 NAAQS in San Joaquin Valley
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Emissions (annual average, tpd) a b c
                                                                                                            One year's       RFP as a       One year's
        Applicable PM2.5 NAAQS                  Pollutant         ---------------------------------------  worth of RFP    percentage of     worth of
                                                                    Base year   Projected attainment/RFP     (tpd) \d\     the base year  progress (tpd)
                                                                    inventory          inventory                           inventory (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1997 Annual PM2.5 NAAQS...............  Direct PM2.5.............        62.5  58.1.....................            0.44             0.7            0.41
                                        NOX......................       317.2  150.6....................            16.7             5.3             7.9
2006 24-hour PM2.5 NAAQS..............  Direct PM2.5.............        62.5  56.1.....................            0.58             0.9            0.52
                                        NOX......................       317.2  115.0....................            18.4             5.8             6.7
2012 Annual PM2.5 NAAQS...............  Direct PM2.5.............        62.5  58.4 (RFP in 2022).......            0.46             0.7            0.43

[[Page 53439]]

 
                                        NOX......................       317.2  179.8 (RFP in 2022)......            15.3             4.8             8.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Base year and 2023 attainment year emissions for the 1997 annual PM2.5 NAAQS are from Table H-6 (page H-12) of the 15 [mu]g/m\3\ SIP Revision.
\b\ Base year and 2024 attainment year emissions for the 2006 24-hour PM2.5 NAAQS are from 85 FR 17382, 17421, Table 10, citing 2018 PM2.5 Plan,
  Appendix H (rev. February 11, 2020), Table H-5.
\c\ Base year and 2022 RFP year emissions for the 2012 annual PM2.5 NAAQS are from 86 FR 49100, 49121, Table 5, citing 2018 PM2.5 Plan, Appendix H (rev.
  February 11, 2020), Table H-11.
\d\ From Table 1 of this proposed rule.

6. Substitution Between Direct PM2.5 and NOX 
Emissions
    To determine whether a set of contingency measures would be capable 
of achieving one year's worth of RFP or one year's worth of progress, 
excess emissions reductions of one precursor may be substituted for a 
shortfall in emissions reductions from another precursor or direct 
PM2.5 if supported by the attainment modeling results. The 
PM2.5 SIP Requirements Rule supports the concept of states 
using reductions in one pollutant to meet the RFP requirement for 
another pollutant.\62\ It envisages an air quality-based RFP analysis 
with an ``equivalency determination,'' in which ``a state . . . could 
rely upon attainment demonstration modeling results that link emissions 
reductions with air quality improvements.'' The EPA considers it 
reasonable also to apply the interpollutant trading (IPT) concept to 
contingency measures, which should provide one year's worth of RFP 
reductions. The EPA previously approved IPT for contingency measures in 
the 2008 San Joaquin Valley plan for the 1997 annual PM2.5 
NAAQS, as well as for other plan actions.\63\
---------------------------------------------------------------------------

    \62\ 81 FR 58010, 58057 and 40 CFR 51.1012. See also proposed 
rule, 80 FR 15340, 15387 (March 23, 2015).
    \63\ 79 FR 29327 (May 22, 2014); see discussion in proposed 
approval, 78 FR 53113, 53122 (August 28, 2013). The EPA later 
withdrew the approval of the contingency measure SIP at 81 FR 29498 
(May 12, 2016) for reasons unrelated to IPT. At 82 FR 58747 
(December 14, 2017), the EPA found that the deficiency that had been 
the basis for the May 12, 2016 disapproval had been resolved. The 
EPA has approved IPT for showing that aggregate commitments for 
emissions reductions have been met for example in approving the 2018 
PM2.5 Plan for the 2006 24-hour PM2.5 NAAQS. 
85 FR 44192. See also, discussion in the preamble of the affiliated 
proposed rule. 85 FR 17382, 17407 and 17429. See also, South Coast 
Air Quality Management District (SCAQMD), ``2016 Air Quality 
Management Plan,'' App. VI, VI-D-5 and VI-D-6; SCAQMD, ``Technical 
clarification regarding emission reductions associated with 
contingency measures for the 2006 24-hour PM2.5 standard 
attainment and 2012 annual PM2.5 standard Reasonable 
Further Progress,'' February 2020, 4; and 85 FR 71264 (November 9, 
2020).
---------------------------------------------------------------------------

    Our longstanding guidance on contingency measures did not directly 
address this particular issue, but in our Draft Revised Contingency 
Measure Guidance, citing the PM2.5 SIP Requirements Rule, we 
noted that the attainment demonstration modeling in an attainment plan 
SIP submission may provide a reasonable basis to identify ratios for 
the effectiveness of reductions of one precursor to reduce ambient 
concentrations relative to other precursors. If that is the case, it 
may be appropriate for a state to use the ratio to substitute 
contingency measure reductions of one precursor for a shortfall in 
contingency measure reductions of another precursor.\64\ While, with 
respect to the PM2.5 NAAQS, the Draft Revised Contingency 
Measure Guidance refers to substitution of emissions reductions among 
PM2.5 plan precursors, the same holds true for substitution 
of emissions reductions between direct PM2.5 and 
PM2.5 plan precursors.
---------------------------------------------------------------------------

    \64\ Draft Revised Contingency Measure Guidance, 25.
---------------------------------------------------------------------------

    For San Joaquin Valley, modeling conducted by the State for the SIP 
submissions for the 1997 annual PM2.5 NAAQS and the 2012 
annual PM2.5 NAAQS supports the use of a 10.3 to 1 ratio for 
the relative effectiveness of NOX and direct 
PM2.5 emissions reduction to reduce ambient PM2.5 
concentrations. For the 2006 24-hour PM2.5 NAAQS, the 
corresponding ratio is 2.6 to 1. Thus, for example, one tpd of excess 
direct PM2.5 emissions reductions (i.e., beyond one year's 
worth of RFP or progress) could substitute for a shortfall of 10.3 tpd 
of NOX reductions for the purposes of the 1997 annual 
PM2.5 NAAQS or the 2012 annual PM2.5 NAAQS, or 
for a shortfall of 2.6 tpd for the purposes of the 2006 24-hour 
PM2.5 NAAQS. For further detail on our interpollutant 
trading analysis, please see the EPA's Interpollutant Trading Technical 
Support Document (TSD) in the docket for this action.
7. Using Same Contingency Measures for More Than One Triggering Event, 
NAAQS
    Under CAA section 172(c)(9), SIPs must provide for the 
implementation of specific contingency measures if the area fails to 
meet RFP or to attain the NAAQS by the applicable attainment date. For 
PM2.5, there are four potential triggering events: failure 
to meet any RFP requirement, failure to submit a QM report, failure to 
meet a QM, and failure to attain the NAAQS by the applicable attainment 
date.\65\
---------------------------------------------------------------------------

    \65\ 40 CFR 51.1014(a).
---------------------------------------------------------------------------

    To meet the contingency measure requirement, states may adopt 
different measures for different triggering events but are not required 
to do so. If the state adopts the same set of contingency measures for 
all of the triggering events, however, then the contingency measures 
may all be implemented by earlier-occurring triggering events leaving 
no contingency measures for potential later-occuring events. In that 
case, if a state has no remaining approved contingency measures, then 
the EPA believes that states must adopt and submit additional 
contingency measures to be available for potential later-occuring 
triggering events.
    The potential for states to have used all approved contingency 
measures, and thus to lack contingency measures for potential later-
triggering events is compounded by the reliance on the same set of 
contingency measures for more than one iteration of the 
PM2.5 NAAQS. For this proposed rule, we have identified a 
single set of contingency measures that could be triggered by any of 
the regulatory triggers in 40 CFR 51.1014(a) and that would apply to 
the 1997 annual PM2.5 NAAQS, the 2006 24-hour 
PM2.5 NAAQS, and the 2012 annual PM2.5 NAAQS (for 
purposes of the Moderate

[[Page 53440]]

area attainment plan). However, in light of the potential for 
triggering the contingency measures for one PM2.5 NAAQS and 
the resultant absence of contingency measure for the other 
PM2.5 NAAQS, we are proposing regulatory text that would 
commit the Agency to promulgate additional contingency measures if all 
the contingency measures are implemented for one of the 
PM2.5 NAAQS with the result that no FIP contingency measures 
would be left to be implemented for the other PM2.5 NAAQS.

B. Candidate Measure Identification Process

    The EPA has used several guiding principles in identifying 
candidate contingency measures for this FIP proposal. These include 
consideration of:
     Larger emission sources of direct PM2.5 and 
NOX, based on our review of the State's emissions 
inventories (i.e., where the potential magnitude of reductions may be 
greater),
     Past recommendations of new control measures or 
improvements to existing control measures by the EPA and community and 
environmental groups (to leverage the considerable past efforts to 
identify potential additional emission reduction opportunities),
     Awareness of recent and ongoing emission reduction 
strategies by CARB and the District (whose adoption and submission to 
meet another SIP requirement, or whose status as an already implemented 
measure, would render the measure ineligible as a potential contingency 
measure),
     Timing limitations that prevent the measure from being 
implemented without significant further action by the state or the EPA 
as required for contingency measures, or that prevent the potential 
resulting emissions reductions from being achieved within one year of a 
triggering event for the contingency measure (such as the statutory 
four-year lead time for mobile source vehicle and engine 
standards),\66\ and
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    \66\ In our Draft Revised Contingency Measure Guidance, in 
instances where there are insufficient contingency measures 
available to achieve the recommended amount of emission reductions 
within one year, we are considering a change to our guidance to 
allow for up to two years of being triggered for achieving emissions 
reductions from contingency measures.
---------------------------------------------------------------------------

     The potential for changing the EPA's FIP contingency 
measures into SIP contingency measures (i.e., measures that the State 
could adopt, in whole or in part, or adapt in combination with other 
measures), that would achieve comparable emission reductions, as part 
of a contingency measure SIP submission to replace the FIP in 
future).\67\
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    \67\ The facility of translating proposed FIP contingency 
measures into SIP contingency measures has two potential benefits: 
first, implementation and enforcement build on existing structures 
with which the regulated communities are familiar, resulting in 
swift implementation consistent the statutory requirements for 
contingency measures; and second, drafting the FIP measures within 
the context of existing rules may be more readily adapted by the 
state in its contingency measure SIP submission.
---------------------------------------------------------------------------

    Furthermore, as necessary parts of the process for selecting 
measures for inclusion in the proposed contingency measure FIP, the EPA 
evaluated the measures for their emission reduction potential; 
technological and economic feasibility; and suitability as contingency 
measures (i.e., they can be implemented within 60 days of triggering, 
reductions can occur within two years of triggering, etc.).
1. Emissions Inventory (Direct PM2.5 and NOX)
    We reviewed emissions inventories in the 2018 PM2.5 Plan 
and CARB's CEPAM standard emissions tool (2019v1.03) for San Joaquin 
Valley to identify the principal source categories that contribute to 
regional emissions totals and thereby to identify the source categories 
for which meaningful emissions reductions from contingency measures 
might be most achievable. As shown in Table 3, based on the 2018 
PM2.5 Plan emissions inventory,\68\ the top ten source 
categories for direct PM2.5 emissions in the San Joaquin 
Valley in 2023 will contribute approximately 78% of the regional total 
direct PM2.5 emissions. Most of the top ten direct 
PM2.5 sources are stationary and area sources, including 
direct PM2.5 combustion sources such as Cooking and 
Residential Fuel Combustion and direct PM2.5 dust sources 
such as Farming Operations and Fugitive Windblown Dust. With respect to 
NOX emissions, the top ten source categories will contribute 
approximately 77% of the regional total in 2023. Most of the top ten 
NOX sources are mobile sources, including on-road sources 
such as Heavy Heavy-Duty Diesel Trucks and Light-Duty Vehicles and non-
road sources such as Farm Equipment and Trains.
---------------------------------------------------------------------------

    \68\ 2018 PM2.5 Plan, App. B, Table B-1 (direct 
PM2.5) and Table B-2 (NOX).

         Table 3--Top Ten Source Categories for Direct PM2.5 and NOX Emissions, San Joaquin Valley, 2023
                                                [Annual average]
----------------------------------------------------------------------------------------------------------------
                                                                                                   Emissions as
                                                                                     Emissions     percentage of
           Pollutant or precursor                      Source category               (tpd) \a\         total
                                                                                                     inventory
----------------------------------------------------------------------------------------------------------------
Direct PM2.5...............................  Farming Operations.................            13.0            22.3
                                             Fugitive Windblown Dust............             7.2            12.3
                                             Paved Road Dust....................             5.5             9.4
                                             Cooking............................             4.2             7.2
                                             Unpaved Road Dust..................             3.7             6.3
                                             Residential Fuel Combustion........             3.3             5.7
                                             Managed Burning and Disposal.......             3.0             5.1
                                             Farm Equipment.....................             1.8             3.1
                                             Light-Duty Vehicles (LDA, LDT1,                 1.8             3.1
                                              LDT2).
                                             Mineral Processes..................             1.7             2.9
                                                                                 -------------------------------
                                               Total of Top Ten Source                      45.2            77.5
                                             Categories
----------------------------------------------------------------------------------------------------------------
NOX........................................  Heavy Heavy-Duty Diesel Trucks                 33.1            21.5
                                              (HHDV).
                                             Farm Equipment.....................            30.1            19.6
                                             Off-Road Equipment.................            14.7             9.6
                                             Trains.............................             8.8             5.7
                                             Light-Duty Vehicles (LDA, LDT1,                 6.4             4.2
                                              LDT2).

[[Page 53441]]

 
                                             Residential Fuel Combustion........             5.8             3.8
                                             Manufacturing and Industrial.......             5.3             3.5
                                             Medium Heavy-Duty Diesel Trucks                 5.0             3.3
                                              (MHDV).
                                             Service and Commercial.............             4.6             3.0
                                             Aircraft...........................             4.6             3.0
                                                                                 -------------------------------
                                               Total of Top Ten Source                     118.4            77.1
                                             Categories
----------------------------------------------------------------------------------------------------------------
\a\ Source: 2018 PM2.5 Plan, Appendix B, tables B-1 and B-2.

2. Identification of Current and Future Planned Controls for Source 
Categories
    Using the emission inventory information, we identified the 
existing controls for these sources in the EPA approved SIP for the San 
Joaquin Valley, and the planned future controls that apply (or will 
apply) to the source categories or subcategories present in the 
nonattainment area. Existing controls refer to the limits and 
requirements for different source categories set forth in the District, 
CARB, and EPA rules and regulations. Planned future controls refer to 
the commitments to develop and propose control measures found in 
District plans \69\ and in CARB's Valley State SIP Strategy and the 
2022 State SIP Strategy.\70\
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    \69\ See, e.g., 2018 PM2.5 Plan, Ch. 4, Table 4-4; 
and SJVUAPCD, ``2022 Plan for the 2015 8-Hour Ozone Standard,'' 
adopted December 15, 2022, section 3.3.3, 3-9.
    \70\ Valley State SIP Strategy, Table 7; and CARB, ``2022 State 
Strategy for the State Implementation Plan (adopted September 22, 
2022),'' submitted electronically to the EPA on February 23, 2023, 
as an enclosure to a letter dated February 22, 2023.
---------------------------------------------------------------------------

    For example, the District and CARB have adopted many measures from 
2018 to the present that address top ten sources of direct 
PM2.5 and/or NOX in the San Joaquin Valley, 
including but not limited to the following by adoption year:
     Residential Fuel Combustion (2019 amendments to Rule 4901 
(``Wood Burning Fireplaces and Wood Burning Heaters '') and 2021 
residential wood burning incentive measure),
     Managed Burning and Disposal (2021 agricultural burning 
phase-out measure),
     Farming Equipment (2019 agricultural equipment incentive 
measure),
     Heavy-Duty Diesel Trucks (2020 Advanced Clean Trucks 
Regulation and 2021 Heavy-Duty Inspection and Maintenance Regulation)
    The District and CARB continue to workshop and evaluate control 
measures for other top ten source categories, including Farming 
Operations (e.g., potential amendments to Rule 4550 (``Conservation 
Management Practices'')) \71\ and Cooking (e.g., commercial under-fired 
charbroiling).\72\ The exact form and timing of such control measures 
remain uncertain and subject to the State's further evaluation of 
technological and economic feasibility and interaction with other 
governmental entities.
---------------------------------------------------------------------------

    \71\ SJVUAPCD, ``PM2.5 Contingency Measure State 
Implementation Plan Revision,'' May 18, 2023, 23-24. See also, 
SJVUAPCD, ``Public Workshop for Potential Amendments to District 
Rule 4550 (Conservation Management Practices),'' November 7, 2022.
    \72\ SJVUAPCD, ``PM2.5 Contingency Measure State 
Implementation Plan Revision,'' May 18, 2023, 32-41.
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    In addition, as examples of federal action, the EPA has finalized 
Heavy-Duty vehicle and engine standards for model year 2027 and 
beyond,\73\ proposed more stringent emission standards for criteria 
pollutants, including NOX, for both Light-Duty and Medium-
Duty vehicles for model years 2027-2032,\74\ and proposed new 
greenhouse gas standards for Heavy-Duty vehicles starting in model year 
2028 that would also reduce Heavy-Duty vehicle emissions of 
NOX and other criteria pollutant precursors.\75\
---------------------------------------------------------------------------

    \73\ 88 FR 4296 (January 24, 2023).
    \74\ 88 FR 29184 (May 5, 2023).
    \75\ 88 FR 25926 (April 27, 2023).
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    Regarding the fourth largest source of NOX in the San 
Joaquin Valley (trains), in November 2022 the EPA responded to a 
petition from the District that sought action by the EPA to address 
harmful emissions from locomotives.\76\ The EPA committed in the 
response to undertake a notice and comment rulemaking process to 
reconsider existing locomotive preemption regulations to ensure that 
they don't inappropriately limit California's and other states' 
authorities under the CAA to address their air quality issues. In April 
2023, the EPA proposed changes to the locomotive preemption regulations 
delivering on the Agency's commitment.\77\
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    \76\ Letter dated November 9, 2022, from Joe Goffman, Principal 
Deputy Assistant Administrator, EPA, to Liane M. Randolph, Chair, 
CARB, and letter dated November 9, 2022, from Joe Goffman, Principal 
Deputy Assistant Administrator, EPA, to Samir Sheikh, Executive 
Director, SJVUAPCD.
    \77\ 88 FR 25926, 26092-26096 (April 27, 2023).
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    The EPA also committed to engage with stakeholders including 
locomotive and locomotive engine manufacturers, technology suppliers, 
environmental justice communities, environmental and public health non-
governmental organizations, other federal partners, state and local air 
quality agencies, railroad companies, and labor unions as the Agency 
develops options for how new locomotives can achieve the greatest 
degree of emission reduction achievable through the application of 
technology. That engagement, which is ongoing, has already highlighted 
that potential opportunities may exist to reduce emissions from 
locomotives through possible changes to the EPA's regulations to 
control unnecessary idling by new and remanufactured locomotives. 
Technologies that reduce the time that large high-emitting locomotive 
engines operate at idle have the potential to directly reduce PM and 
NOX emissions from locomotives. The EPA is actively 
considering how best to address the emissions from idling locomotives 
among the suite of regulatory options being considered for new and 
remanufactured locomotives.
    With respect to the State's current and planned controls 
specifically for contingency measures in the San Joaquin Valley, on 
June 8, 2023, the State submitted the ``PM2.5 Contingency 
Measure State Implementation Plan Revision'' to the EPA as a revision 
to the California SIP (``June 2023 Contingency

[[Page 53442]]

Measure SIP Submission'').\78\ In that SIP submission, the District and 
CARB present their evaluation of potential contingency measures, 
amendments to the contingency provisions of Rule 4901 (``Wood Burning 
Fireplaces and Wood Burning Heaters''), a commitment to evaluate 
potential contingency provisions for Rule 8051 (``Open Areas''), 
analysis of one year's worth of emission reductions, and infeasibility 
justification for rejecting other potential contingency measures. The 
residential wood burning contingency measure would, upon a first 
triggering event, lower the episodic wood burning curtailment 
thresholds for registered and unregistered devices in five non-hot spot 
counties to match the thresholds that currently apply in the three hot-
spot counties and, upon a second triggering event, would further lower 
the curtailment threshold for unregistered devices in all eight 
counties of the San Joaquin Valley. The District estimates that the 
residential wood burning contingency measures for the first and second 
triggering events would achieve annual average emission reductions of 
0.69 tpd direct PM2.5 and 0.10 tpd NOX in the San 
Joaquin Valley.\79\
---------------------------------------------------------------------------

    \78\ Letter dated June 7, 2023, from Steven S. Cliff, Executive 
Officer, CARB, to Martha Guzman, Regional Administrator, EPA Region 
IX.
    \79\ June 2023 Contingency Measure SIP Submission, 31.
---------------------------------------------------------------------------

    In addition, by letter dated June 23, 2023, CARB committed to bring 
to the CARB Board for consideration no later than February 28, 2024, 
and submit to the EPA no later than March 31, 2024, a contingency 
measure to implement a change to the exemptions for light-duty motor 
vehicles in the California vehicle emissions inspection and maintenance 
(I/M) program--the Smog Check Program--if triggered by an EPA 
determination under 40 CFR 51.1014(a).\80\ CARB indicates that the 
contingency measure for San Joaquin Valley for the PM2.5 
NAAQS will, within 30 days of the effective date of the EPA determining 
that an applicable triggering event occurred, obligate CARB to transmit 
a letter to the California Bureau of Automotive Repair and Department 
of Motor Vehicles finding that providing an exception from Smog Check 
for certain vehicles will prohibit the State from meeting the State's 
commitments with respect to the SIP required by the CAA, effectuating a 
change to the Smog Check exemption for motor vehicles from eight or 
less model-years old to seven or less model-years old throughout the 
San Joaquin Valley.\81\
---------------------------------------------------------------------------

    \80\ Letter dated June 23, 2023, from Steven S. Cliff, Executive 
Officer, CARB, to Martha Guzman, Regional Administrator, EPA Region 
IX.
    \81\ Id.
---------------------------------------------------------------------------

    The EPA is evaluating the June 2023 Contingency Measure SIP 
Submission and June 23, 2023 commitment and will propose action on the 
submission and commitment in a separate rulemaking.
3. Past EPA Recommendations
    When the EPA reviews individual District rules in SIP submissions 
for approval, the EPA routinely includes recommendations for changes to 
the rules to strengthen or clarify them, even if the particular change 
is not required for approval as meeting applicable stringency 
requirements. These recommendations are generally found in the EPA's 
technical support documents prepared for individual rulemakings. We 
have reviewed past recommendations in numerous technical support 
documents prepared in connection with past SIP actions to identify 
potential rule changes that might be suitable as contingency measures.
4. Environmental and Community Group Recommendations
    In 2021, a group of 18 environmental justice, environmental and 
community groups in the San Joaquin Valley sent the EPA a letter in 
which they attached a list of specific control measures that the group 
believes should be adopted or strengthened in the San Joaquin Valley 
area.\82\ These groups later supplemented the 2021 letter with 
additional information concerning the list of control measures.\83\ We 
have taken into account the information contained in the two letters 
and attachments in developing this proposed contingency measure FIP.
---------------------------------------------------------------------------

    \82\ Letter dated October 22, 2021, from Tom Frantz, Association 
of Irritated Residents, et al., to Michael S. Regan, EPA 
Administrator, including Attachment.
    \83\ Letter dated May 18, 2022, from Tom Frantz, Association of 
Irritated Residents, et al., to Michael S. Regan, EPA Administrator, 
including Attachments A, B, and C.
---------------------------------------------------------------------------

C. Residential Wood Burning

1. Background
    Residential wood burning includes wood-burning heaters (i.e., 
woodstoves, pellet stoves, and wood-burning fireplace inserts), which 
are used primarily for heat generation, and wood-burning fireplaces, 
which are used primarily for aesthetic purposes. All of these devices 
emit direct PM2.5 and NOX. However, wood-burning 
heaters, that are certified under the EPA's New Source Performance 
Standards (NSPS) emit lower levels of PM2.5 compared to 
wood-burning fireplaces and non-certified heaters when properly 
installed, operated, and maintained.
    Residential wood-burning is included within the ``Residential Fuel 
Combustion'' emissions inventory category within the 2018 
PM2.5 Plan's emissions inventories. In the 2018 
PM2.5 Plan, the District estimates emissions of 2.82 tpd of 
PM2.5 and 0.42 tpd NOX (annual average) 
specifically from residential wood burning for each year from 2017 
onward. However, these estimates do not account for the effect of the 
2019 amendments to Rule 4901, discussed in the following section of 
this document.
2. Regulatory History
    District Rule 4901 establishes requirements for the sale/transfer, 
operation, and installation of wood-burning devices and on the 
advertising of wood for sale intended for burning in a wood-burning 
fireplace, wood-burning heater, or outdoor wood-burning device within 
the San Joaquin Valley.
    One of the most effective ways to reduce wintertime smoke is a 
curtailment program that restricts use of wood-burning heaters and 
fireplaces on days that are conducive to buildup of PM concentrations 
(i.e., days where ambient PM2.5 and/or PM10 
concentrations are forecast to be above a particular level, known as a 
``curtailment threshold'').
    Rule 4901 includes a tiered mandatory curtailment program that 
establishes different curtailment thresholds based on the type of 
devices (i.e., registered clean-burning devices \84\ vs. unregistered 
devices) and different counties (i.e., hot spot vs. non-hot spot). 
During a Level One Episodic Wood Burning Curtailment, operation of 
wood-burning fireplaces and other unregistered wood-burning heaters or 
devices is prohibited, but properly operated, registered wood-burning 
heaters may be used.\85\ During a Level Two Episodic Wood Burning 
Curtailment, operation of any wood-
---------------------------------------------------------------------------

    \84\ In order to be registered, a device must either be 
certified under the NSPS at time of purchase or installation and at 
least as stringent as Phase II requirements or be a pellet-fueled 
wood burning heater exempt from EPA certification requirements at 
the time of purchase or installation (section 5.9.1). The rule 
includes requirements for documentation and inspection to verify 
compliance with these standards (sections 5.9.2 and 5.10).
    \85\ Rule 4901, section 5.7.1.

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[[Page 53443]]

burning device is prohibited.\86\ However, the rule includes an 
exemption from the curtailment provisions for (1) locations where piped 
natural gas service is not available and (2) residences for which a 
wood-burning fireplace or wood-burning heater is the sole available 
source of heat.\87\
---------------------------------------------------------------------------

    \86\ Rule 4901, section 5.7.2.
    \87\ Rule 4901, section 5.7.4.
---------------------------------------------------------------------------

    In order to implement the curtailment program under Rule 4901, the 
District develops daily air quality forecasts, based on EPA and CARB 
guidance, which include a projection of the maximum PM2.5 
concentration in each county for the following day.\88\ District staff 
then compare this maximum county PM2.5 concentration 
forecast with the curtailment thresholds in Rule 4901. If a county's 
PM2.5 forecast exceeds the applicable threshold, then the 
District's Air Pollution Control Officer declares a curtailment for the 
county for the following day.
---------------------------------------------------------------------------

    \88\ Email dated October 9, 2019, from Jon Klassen, SJVUAPCD to 
Meredith Kurpius, EPA Region IX, Subject: ``RE: Info to support Rule 
4901.''
---------------------------------------------------------------------------

    In 2019, the District lowered the curtailment thresholds in Madera, 
Fresno, and Kern counties, which the District identified as ``hot 
spot'' counties, because they were ``either new areas of gas utility or 
areas deemed to have persistently poor air quality.'' \89\ Table 4 
presents the residential curtailment thresholds in District Rule 4901, 
as revised in 2019.
---------------------------------------------------------------------------

    \89\ 2018 PM2.5 Plan, App. J, 60.

  Table 4--Residential Wood Burning Curtailment Thresholds in Rule 4901
------------------------------------------------------------------------
                                                         Non-hot spot
                                                        counties  (San
                                   Hot spot counties       Joaquin,
                                   (Madera, Fresno,       Stanislaus,
                                       and Kern)      Merced, Kings, and
                                                            Tulare)
------------------------------------------------------------------------
Level One (No Burning Unless      12 [mu]g/m\3\.....  20 [mu]g/m\3\.
 Registered).
Level Two (No Burning for All)..  35 [mu]g/m\3\.....  65 [mu]g/m\3\.
------------------------------------------------------------------------

    The 2019 revision by the District also added a provision to the 
rule to operate as a contingency measure, which would lower the 
curtailment levels for any county that failed to attain the applicable 
standards to levels consistent with current thresholds for hot spot 
counties. However, the EPA disapproved this provision because it did 
not meet all of the CAA requirements for contingency measures.\90\ 
Specifically, it did not address three of the four required triggers 
for contingency measures in 40 CFR 51.1014(a) and was not structured to 
achieve any additional emissions reductions if the EPA found that the 
monitoring locations in the ``hot spot'' counties (i.e., Fresno, Kern, 
or Madera) were the only counties in the San Joaquin Valley that are 
violating the applicable PM2.5 NAAQS as of the attainment 
date.\91\ Accordingly, the SIP-approved version of Rule 4901 does not 
include any contingency provision.
---------------------------------------------------------------------------

    \90\ 86 FR 67329, 67338 (for the 1997 annual PM2.5 
NAAQS) and 86 FR 67343, 67345 (for the 2006 24-hour PM2.5 
NAAQS and 2012 annual PM2.5 NAAQS).
    \91\ Id. See also, 86 FR 38652, 38669 (July 22, 2021) (proposed 
rule on contingency measure element for the 1997 annual 
PM2.5 NAAQS) and 86 FR 49100, 49125 and 49133-49134 
(proposed rule on contingency measure element for the 2012 annual 
PM2.5 NAAQS and 2006 24-hour PM2.5 NAAQS, 
respectively).
---------------------------------------------------------------------------

    On May 18, 2023, the District adopted a new contingency measure in 
section 5.7.3 of Rule 4901, and CARB submitted this contingency measure 
as part of the June 2023 Contingency Measure SIP Submission. The 
contingency measure would be triggered by a final determination by the 
EPA that the District failed to meet one or more of the following 
triggering events of the applicable PM2.5 NAAQS:
    (1) Any Reasonable Further Progress requirement;
    (2) Any quantitative milestone;
    (3) Submission of a quantitative milestone report; or
    (4) Attainment of the applicable PM2.5 NAAQS by the 
applicable attainment date.
    Following the first such triggering event, the measure would lower 
the thresholds for the non-hot spot counties to the current thresholds 
for hot spot counties (i.e., 12 [mu]g/m\3\ for unregistered devices; 35 
[mu]g/m\3\ for registered devices). Following the second such event, 
the measure would further lower the threshold for unregistered devices 
to 11 [mu]g/m\3\.
3. Proposed Measure
    As described further in the EPA's Proposed Contingency Measures 
TSD, we considered various possible contingency measures that could 
apply to the wood-burning source category and concluded that 
strengthening the curtailment program would be the most effective means 
of providing meaningful emissions reductions from this source category 
within one to two years of the triggering event.
    Specifically, the proposed contingency measure for this source 
category would strengthen the curtailment program in Rule 4901 by 
lowering the curtailment levels for the five non-hot-spot counties to 
the current thresholds for hot spot counties (i.e., 12 [mu]g/m\3\ for 
unregistered devices; 35 [mu]g/m\3\ for registered devices). 
Curtailments would continue to be determined on a county-by-county 
basis, so restrictions would continue to be tailored based on the air 
quality for the particular county.
    We estimate the annual average emissions reductions associated with 
this contingency measure would be 0.579 tpd of direct PM2.5 
and 0.082 tpd of NOX. Please refer to the EPA's Proposed 
Contingency Measures TSD for more detail on the proposed measure and 
associated reductions.

D. Rural Open Areas Dust

1. Background
    In areas where there is open, uncovered land, a natural crust will 
form and minimize dust emissions. However, activities such as 
earthmoving activities, material dumping, weed abatement, and vehicle 
traffic will disturb otherwise naturally stable land and allow 
windblown fugitive dust emissions to occur. As a contingency measure, 
the EPA is proposing to add to an existing District measure to further 
reduce emissions from this category. The contingency measure would 
lower the applicability threshold of the District's Rule 8051 from 3.0 
acres to 1.0 acres for rural open areas, thereby reducing windblown 
fugitive dust, including the direct PM2.5 portion of such 
dust emissions.
2. Regulatory History
    SJVUAPCD adopted Regulation VIII (containing the 8000 series rules) 
on November 15, 2001, to address RACM/RACT and BACM/BACT attainment 
plan requirements for the 1987 PM10

[[Page 53444]]

NAAQS.\92\ The EPA found that new provisions in Regulation VIII 
``significantly strengthened'' the prior existing rules by tightening 
standards, covering more activities, and adding more requirements to 
control dust-producing activities.\93\ Subsequently, the District 
adopted amendments to Regulation VIII on August 19, 2004, and September 
16, 2004, that the EPA approved into the San Joaquin Valley portion of 
the California SIP in 2006.\94\ More recently the EPA has reviewed 
Regulation VIII for RACM/RACT, BACM/BACT, and most stringent measures 
requirements in acting on San Joaquin Valley plans for the 2006 24-hour 
PM2.5 NAAQS.\95\ Among the rules of Regulation VIII, Rule 
8051 applies to open areas and the 2004 amendments added applicability 
thresholds for rural and urban areas required to meet both the 
conditions for a stabilized surface (defined in Rule 8011) and a 20% 
opacity standard. In addition, under Rule 8051, upon evidence of 
vehicle trespass, owners/operators must apply a measure(s) that 
effectively prevents access to the lot.
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    \92\ Regulation VIII includes eight rules. Rule 8011 (``General 
Requirements'') provides definitions and the general requirements on 
which the seven other rules rely. In turn, those seven rules apply 
to different sources of fugitive windblown dust based on activity 
type. They include Rule 8021 (``Construction, Demolition, 
Excavation, Extraction, and Other Earthmoving Activities''), Rule 
8031 (``Bulk Materials''), Rule 8041 (``Carryout and Trackout''), 
Rule 8051 (``Open Areas''), Rule 8061 (``Paved and Unpaved Roads''), 
Rule 8071 (Unpaved Vehicle/Equipment Traffic Area''), and Rule 8081 
(``Agricultural Sources''). In this proposed rule, the EPA proposes 
a contingency measure for rural open areas by adding to Rule 8051.
    \93\ 67 FR 15345, 15346-15447 (April 1, 2002) (proposed rule on 
2001 version of Regulation VIII).
    \94\ 71 FR 8461 (February 17, 2006).
    \95\ See, e.g., 85 FR 17382, 17431 (proposal on BACM/BACT and 
MSM for the 2006 24-hour PM2.5 NAAQS); and EPA Region IX, 
``Technical Support Document, EPA Evaluation of BACM/MSM, San 
Joaquin Valley PM2.5 Plan for the 2006 PM2.5 
NAAQS,'' February 2020.
---------------------------------------------------------------------------

3. Proposed Measure
    The proposed contingency measure for this source category would 
lower the applicability threshold from 3.0 acres to 1.0 acres in rural 
areas. As a result, if triggered by a failure to meet RFP requirements 
or a failure to attain, Rule 8051 would then apply to any rural open 
area having 1.0 acre or more and containing at least 1,000 square feet 
of disturbed surface area.
    This measure will require these additional areas to meet the 
existing requirements in Rule 8051. Specifically, Section 5 
(Requirements) of Rule 8051 requires that:

    Whenever open areas are disturbed or vehicles are used in open 
areas, an owner/operator shall implement one or a combination of 
control measures indicated in Table 8051-1 to comply with the 
conditions of a stabilized surface at all times and to limit VDE to 
20% opacity. In addition to the requirements of this rule, a person 
shall comply with all other applicable requirements of Regulation 
VIII.\96\
---------------------------------------------------------------------------

    \96\ VDE is Visible Dust Emissions.

    Table 8051-1 contains the following control measures for open 
---------------------------------------------------------------------------
areas:

    A. Open Areas:
    Implement, apply, maintain, and reapply if necessary, at least 
one or a combination of the following control measures to comply at 
all times with the conditions for a stabilized surface and limit VDE 
to 20% opacity as defined in Rule 8011:
    A1. Apply and maintain water or dust suppressant(s) to all 
unvegetated areas; and/or
    A2. Establish vegetation on all previously disturbed areas; and/
or
    A3. Pave, apply and maintain gravel, or apply and maintain 
chemical/organic stabilizers/suppressant(s).
    B. Vehicle Use in Open Areas:
    Upon evidence of trespass, prevent unauthorized vehicle access 
by:
    Posting `No Trespassing' signs or installing physical barriers 
such as fences, gates, posts, and/or other appropriate barriers to 
effectively prevent access to the area.

    The District makes available certain forms through the District's 
website that owners or operators may use to document compliance with 
the requirements of the rules under Regulation VIII.\97\ For open 
areas, these include ``Form A--Area Water Application'' and/or ``Form 
C--For Permanent/Long Term Dust Controls,'' consistent with the measure 
an owner or operator would select from Table 8051-1. The EPA would 
require owners and operators of rural open areas newly subject to the 
requirements of Rule 8051 (i.e., those with open areas 1.0 to 3.0 acres 
in size) to use the two forms, which the EPA intends to adapt for use 
in connection with this proposed FIP contingency measure. The EPA would 
apply the same recordkeeping requirements found in the District rule to 
newly subject owners and operators--i.e., generally one year following 
project completion except for owners/operators subject to Rule 2520 who 
must retain records for five years. The EPA, however, would add a 
requirement that owners and operators of rural open areas newly subject 
to the requirements of Rule 8051 pursuant to this FIP submit copies of 
records prepared during a calendar year to the EPA by March 31st of the 
following year.
---------------------------------------------------------------------------

    \97\ https://www.valleyair.org/busind/comply/PM10/forms/Regulation_VIII_RecordKeeping_Forms.pdf.
---------------------------------------------------------------------------

    Given the availability and variability of county-based parcel data, 
which inform the location, number, and size of open areas in the 1.0 
acre to 3.0 acres size range, and the differences in emission factors 
for fugitive windblown dust by county, it is difficult to precisely 
quantify the emission reductions associated with lowering the 
applicability threshold for rural open area in Rule 8051 from 3.0 acres 
to 1.0 acre. Nonetheless, based on the information available, we 
estimate that lowering the applicability threshold in rural areas from 
3.0 acres to 1.0 acre would result in direct PM2.5 emission 
reductions of 0.01 tpd (after applying a compliance rate of 75%). 
However, given uncertainties in our methodology for this estimate, we 
are seeking comment on our estimated emissions reductions. This 
contingency measure requires the same kinds of dust control options as 
currently apply to rural areas larger than 3.0 acres. We estimate that 
the annual cost of controlling the dust emission would range from $160/
acre/year to $360/acre/year, depending on the control option selected 
from Table 8051-1 of Rule 8051. Please refer to the EPA's Proposed 
Contingency Measures TSD for more detail on the proposed measure and 
associated reductions and annual cost estimates.

E. Summary of EPA Analysis and Conclusion

    Table 5 summarizes the estimated emissions reductions from the 
proposed contingency measures.

[[Page 53445]]



     Table 5--Annual Average Emissions Reductions From Proposed FIP
                          Contingency Measures
------------------------------------------------------------------------
                               Direct PM2.5 emissions
  Proposed FIP contingency        reductions (tpd)       NOX emissions
           measure                                      reductions (tpd)
------------------------------------------------------------------------
Residential Wood Burning....                    0.579              0.082
Rural Open Areas............                    0.010  .................
                             -------------------------------------------
    Total...................                    0.589              0.082
------------------------------------------------------------------------

    Table 6 presents the estimated emissions reductions as percentages 
of one year's worth of RFP and one year's worth of progress both with 
and without trading between direct PM2.5 and NOX 
emissions. As noted previously in this proposed rule, one year's worth 
of RFP is the longstanding recommendation by the EPA to states 
regarding the magnitude of emissions reductions that contingency 
measures should be capable of achieving. One year's worth of progress 
is the new recommendation described in the EPA's Draft Revised 
Contingency Measure Guidance. In addition, as discussed in section 
III.A.6 of this proposed rule, we are proposing to trade excess direct 
PM2.5 emission reductions to substitute for a portion of the 
shortfall in NOX emission reductions compared to one year's 
worth of RFP and one year's worth of progress.\98\
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    \98\ While this trading would not make up the entire shortfall 
in NOX emission reductions, it gives a sense for the 
magnitude of the relative ambient effect of the excess direct 
PM2.5 emission reductions towards meeting one year's 
worth of RFP or one year's worth of progress.
---------------------------------------------------------------------------

    Specifically, based on modeling conducted for the SIP submissions, 
we are proposing a ratio of 10.3 to 1 for the 1997 annual 
PM2.5 NAAQS and 2012 annual PM2.5 NAAQS and a 
ratio of 2.6 to 1 for the 2006 24-hour PM2.5 NAAQS, where an 
excess of one tpd of direct PM2.5 emission reductions would 
substitute for 10.3 tpd of NOX for the 1997 or 2012 annual 
PM2.5 NAAQS or 2.6 tpd of NOX for the 2006 24-
hour PM2.5 NAAQS. For further detail on our interpollutant 
trading analysis, please see the EPA's Interpollutant Trading TSD.

                 Table 6--Proposed FIP Contingency Measures as Percentage of One Year's Worth of RFP and One Year's Worth of Progress a
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 One year's worth of RFP                          One year's worth of progress
                                                   -----------------------------------------------------------------------------------------------------
          PM2.5 NAAQS                Pollutant        Reductions       % OYW  (no      % OYW  (with      Reductions       % OYW  (no      % OYW  (with
                                                        target          trading)         trading)          target          trading)         trading)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1997 Annual....................  Direct PM2.5.....            0.44              134               100            0.41              144               100
                                 NOX..............            16.7              0.5               9.7             7.9              1.0              24.5
2006 24-hour...................  Direct PM2.5.....            0.58              101               100            0.52              113               100
                                 NOX..............            18.4              0.4               0.6             6.7              1.2               3.9
2012 Annual....................  Direct PM2.5.....            0.46              129               100            0.43              138               100
                                 NOX..............            15.3              0.5               9.6             8.7              0.9              20.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ See tables 1 and 2 of this proposed rule for the derivation of one year's worth of RFP and one year's worth of progress for the 1997 annual PM2.5
  NAAQS, the 2006 24-hour PM2.5 NAAQS, and the 2012 annual PM2.5 NAAQS.

    As shown in Table 5, the sum of the emissions reductions from the 
two proposed FIP contingency measures is approximately 0.589 tpd direct 
PM2.5 and 0.082 tpd NOX. Without taking into 
account the substitution principle, these reductions would exceed one 
year's worth of RFP for direct PM2.5 and provide a portion 
of one year's worth of RFP for NOX for the 1997 annual 
PM2.5 NAAQS, 2006 24-hour PM2.5 NAAQS, and the 
2012 annual PM2.5 NAAQS, as shown in Table 6. With respect 
to one year's worth of progress, these reductions would exceed one 
year's worth of progress for direct PM2.5 and provide a 
portion of one year's worth of progress for NOX for all 
three PM2.5 NAAQS, as shown in Table 6.
    Taking into account the substitution principle, under which, in 
this case, excess direct PM2.5 emissions are substituted for 
a shortfall in NOX emissions, the reductions would amount to 
100% of one year's worth of RFP for direct PM2.5 and the 
following amounts of one year's worth of RFP for NOX by 
NAAQS: 1997 annual PM2.5 NAAQS (9.7%), 2006 24-hour 
PM2.5 NAAQS (0.6%), and 2012 annual PM2.5 NAAQS 
(9.6%). Similarly, the reductions would amount to 100% of one year's 
worth of progress for direct PM2.5 and the following amounts 
of one year's worth of progress for by NAAQS: 1997 annual 
PM2.5 NAAQS (24.5%), 2006 24-hour PM2.5 NAAQS 
(3.9%), and 2012 annual PM2.5 NAAQS (20.4%).
    In the preamble to the PM2.5 SIP Requirements Rule and 
the EPA's Draft Revised Contingency Measures Guidance, we have stated 
that, in those instances where a state is unable to identify 
contingency measures for a given nonattainment area that would provide 
approximately one year's worth of emissions reductions, the state 
should provide a reasoned justification why the smaller amount of 
emissions reductions is appropriate. For this proposed contingency 
measure FIP, we have evaluated a broad range of source categories and a 
broad range of potential emission controls in order to identify 
possible contingency measures. As a result of that analysis, we are 
proposing the two specific contingency measures described in sections 
III.C and III.D of this proposed rule. The proposed contingency 
measures in this FIP would not provide for one year's worth of 
emissions reductions measured by the longstanding RFP method or the new 
progress method, and we are therefore providing a reasoned 
justification for proposing contingency measures that will achieve less 
than the amount of emission reductions that the EPA normally 
recommends.
    The justification is based on the EPA's determination that we are 
unable to identify and adopt feasible contingency

[[Page 53446]]

measures that provide the recommended one year's worth of emission 
reductions. While the EPA notes that CAA section 172(c)(9) and section 
182(c)(9) do not explicitly provide for consideration of whether 
specific measures are feasible, the Agency believes that it is 
reasonable to infer that the statute does not require control measures 
regardless of any technological or cost constraints whatsoever. It is 
more reasonable to interpret the contingency measure requirement not to 
require air agencies to adopt and impose infeasible measures. The 
statutory provisions applicable to other nonattainment area plan 
control measure requirements, including RACM/RACT (for ozone and PM), 
BACM/BACT (for PM), and most stringent measures (for PM), allow air 
agencies to exclude certain control measures that are deemed 
unreasonable or infeasible (depending on the requirement). For example, 
the most stringent measures provision in CAA section 188(e) requires 
plans to include ``the most stringent measures that are included in the 
implementation plan of any state or are achieved in practice in any 
state, and can feasibly be implemented in the area.'' The EPA considers 
it reasonable to conclude that Congress similarly did not expect air 
agencies to satisfy the contingency measure requirement with infeasible 
measures. Thus, the EPA anticipates that a demonstrated lack of 
feasible measures would be a reasoned justification for adopting 
contingency measures that only achieve a lesser amount of emission 
reductions.
    When promulgating a FIP, the EPA is ``standing in the shoes'' of 
the state to meet a SIP requirement that the state has thus far not 
fulfilled. Accordingly, the EPA considers it appropriate to interpret 
the requirements of section 172(c)(9) in the same fashion in the 
context of a FIP. Thus, when the EPA evaluates control measures for 
adoption as potential contingency measures, it is reasonable for the 
Agency to consider such factors as technological and economic 
feasibility. Even a control measure that may theoretically be available 
as a contingency measure, and otherwise meet other legal parameters for 
a contingency measure, may nonetheless be so technologically or 
economically infeasible as to render it unviable as a contingency 
measure. Thus, with a reasoned justification establishing that there 
are no additional feasible measures, it is appropriate for the Agency 
to promulgate a FIP for contingency measures that might result in less 
than the recommended amount of emission reductions.
    To further explain the basis for the EPA's determination that it is 
unable to identify and adopt additional feasible contingency measures 
that would achieve one years' worth of RFP or progress reductions, we 
have prepared a detailed evaluation of source categories and measures 
that we considered as potential additional contingency measures but 
determined to be infeasible or otherwise unsuitable for contingency 
measures and therefore did not include in the proposed FIP. This 
evaluation is presented in the Reasoned Justification TSD (for measures 
not included in this proposed contingency measures FIP). See, for 
example, our evaluation for commercial charbroiling, almond harvesting, 
light-duty vehicles, and large boilers, steam generators, and process 
heaters.

IV. 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 San Joaquin Valley nonattainment area 
and to better understand the context of our proposed FIP on these 
communities, we conducted a screening-level analysis for 
PM2.5 in the San Joaquin Valley using the EPA's 
environmental justice (EJ) screening and mapping tool 
(``EJSCREEN'').\99\ The results of this analysis are being provided for 
informational and transparency purposes.
---------------------------------------------------------------------------

    \99\ EJSCREEN provides a nationally consistent dataset and 
approach for combining environmental and demographic indicators. 
EJSCREEN is available at: https://www.epa.gov/ejscreen/what-ejscreen. The EPA used EJSCREEN to obtain environmental and 
demographic indicators representing each of the eight counties in 
the San Joaquin Valley. We note that the indicators for Kern County 
are for the entire county. While the indicators might have slightly 
different numbers for the San Joaquin Valley portion of the county, 
most of the county's population is in the San Joaquin Valley 
portion, and thus the differences would be small. These indicators 
are included in EJSCREEN reports that are available in the 
rulemaking docket for this action.
---------------------------------------------------------------------------

    Our screening-level analysis indicates that all eight counties in 
the San Joaquin Valley score above the national average for the 
EJSCREEN ``Demographic Index'' (i.e., ranging from 48% in Stanislaus 
County to 61% in Tulare County, compared to 36% 
nationally).100 101 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.\102\ All 
eight counties also score above the national average for demographic 
indices of ``linguistically isolated population'' and ``population with 
less than high school education.''
---------------------------------------------------------------------------

    \100\ EPA Region IX, ``EJSCREEN Analysis for the Eight Counties 
of the San Joaquin Valley Nonattainment Area,'' August 2022.
    \101\ By comparison, the eight counties score above the State 
average for the EJSCREEN ``Demographic Index'' (i.e., ranging from 
52% in Stanislaus County to 71% in Tulare County, compared to 47% in 
California).
    \102\ EJSCREEN reports environmental indicators (e.g., air 
toxics cancer risk, Pb paint exposure, and traffic proximity and 
volume) and demographic indicators (e.g., people of color, low 
income, and linguistically isolated populations). The score for a 
particular indicator measures how the community of interest compares 
with the state, the EPA region, or the national average. For 
example, if a given location is at the 95th percentile nationwide, 
this means that only five percent of the U.S. population has a 
higher value than the average person in the location being analyzed. 
EJSCREEN also reports EJ indexes, which are combinations of a single 
environmental indicator with the EJSCREEN Demographic Index. For 
additional information about environmental and demographic 
indicators and EJ indexes reported by EJSCREEN, see EPA, ``EJSCREEN 
Environmental Justice Mapping and Screening Tool--EJSCREEN Technical 
Documentation,'' section 2 (September 2019).
---------------------------------------------------------------------------

    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 San Joaquin Valley 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.\103\ Most counties also scored above the 80th percentile for 
each of 11 additional EJ indices included in the EPA's EJSCREEN 
analysis. In addition, several counties scored above the 90th 
percentile for certain EJ indices, including, for example, the Ozone EJ 
Index (Fresno, Kern, Madera, Merced,

[[Page 53447]]

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).\104\
---------------------------------------------------------------------------

    \103\ By comparison, two counties score at or above the 97th 
percentile in California for the PM2.5 index and five 
counties score at or above the 80th percentile in California for the 
PM2.5 EJ index (rather than seven of eight counties that 
score at or above the 90th percentile nationally).
    \104\ Notably, Tulare County scores above the 90th percentile on 
six of the 12 EJ indices in the EPA's EJSCREEN analysis, including 
the PM2.5 EJ Index, which is the highest count among all 
San Joaquin Valley counties.
---------------------------------------------------------------------------

    As discussed in the EPA's EJ technical guidance, people of color 
and low-income populations, such as those in the San Joaquin Valley, 
often experience greater exposure and disease burdens than the general 
population, which can increase their susceptibility to adverse health 
effects from environmental stressors.\105\ 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.\106\ The EPA is committed to environmental justice for all 
people, and we acknowledge that the San Joaquin Valley 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.
---------------------------------------------------------------------------

    \105\ EPA, ``Technical Guidance for Assessing Environmental 
Justice in Regulatory Analysis,'' June 2016, section 4.
    \106\ Id. at section 4.1.
---------------------------------------------------------------------------

    Regarding the specific contingency measures proposed herein, we 
have considered the geographic scope of each proposed contingency 
measure on PM2.5 concentrations in each county of the San 
Joaquin Valley, as well as other environmental considerations that 
pertain to applicable pollutant (i.e., combustion PM2.5, 
dust PM2.5, or NOX) and the applicable source 
category or categories.
    For residential wood burning, our proposed contingency measure 
would lower the No Burn (i.e., curtailment) thresholds for the five 
non-hot spot counties (Kings, Merced, San Joaquin, Stanislaus, and 
Tulare counties) to match the tighter No Burn thresholds for the three 
hot spot counties (Fresno, Madera, and Kern counties). A prominent 
effect of this change would be to provide similar protections to people 
in the two southern-most non-hot spot counties that record among the 
highest year-to-year PM2.5 design values in the San Joaquin 
Valley (i.e., Kings County, including Corcoran and Hanford monitoring 
sites, and Tulare County, including Visalia monitoring site).\107\ Were 
No Burn days to be called in Kings or Tulare County according to the 
more stringent thresholds, we also anticipate there would be smaller 
but still beneficial effect in the adjacent Fresno or Kern counties, 
depending on the meteorology of the day.
---------------------------------------------------------------------------

    \107\ For example, the certified 2020-2022 PM2.5 
design value for Visalia (AQS Site ID 061072003) is 18.4 [micro]g/
m\3\ for the 2012 annual PM2.5 NAAQS and 65 [micro]g/m\3\ 
for the 2006 24-hour PM2.5 NAAQS. EPA design value 
workbook dated May 23, 2023, 
``PM25_DesignValues_2020_2022_FINAL_05_23_23.xlsx,'' worksheets 
``Table5a. Site Status Ann'' and ``Table5b.Site Status 24hr.'' The 
certified design value includes all available data; no data flagged 
for exceptional events have been excluded. The EPA's Air Quality 
System (AQS) contains ambient air pollution data collected by 
federal, state, local, and tribal air pollution control agencies 
from thousands of monitors. More information is available at: 
https://www.epa.gov/aqs.
---------------------------------------------------------------------------

    Where these direct PM2.5 emission reductions from 
combustion occur, we also note that they do not require further 
chemical transformation in the atmosphere to form PM2.5 
(i.e., the benefit is immediate) and, as they include fine particulate 
matter under one micron and toxic air chemicals, the reduction of such 
sub-micron particles would similarly reduce exposure of all residents 
in these areas, including minority and low-income populations to these 
environmental stressors. These reductions would also specifically 
reduce emissions on the winter days with the highest ambient 
PM2.5 levels. We also note that environmental and community 
groups have recommended several measures to reduce direct 
PM2.5 emissions from residential wood burning, including a 
recommendation that requirements apply District-wide, rather than 
distinguishing between hot spot and non-hot spot counties.\108\ The 
proposed measure, if triggered, would align all counties to the tighter 
No Burn thresholds of the hot spot counties.
---------------------------------------------------------------------------

    \108\ Letter dated May 18, 2022, from Tom Frantz, Association of 
Irritated Residents, et al., to Michael S. Regan, EPA Administrator, 
May 18, 2022, Attachment A, Attachment, 2; Attachment B, 2, 7; and 
Attachment C, 2, 16-17, 38-48, and 69.
---------------------------------------------------------------------------

    For open areas, the proposed contingency measure, if triggered, 
would lower the applicability threshold for the rural open area 
requirements of Rule 8051 (i.e., for parcels having at least 1,000 
square feet of disturbed soil) from 3.0 acres to 1.0 acre. Based on our 
analysis of land use to date, such rural open areas are found in all 
counties of the San Joaquin Valley, though with some variation from 
county to county consistent with overall land use types (e.g., San 
Joaquin County has the smallest proportion of rural open areas, while 
Madera County has the highest proportion of rural open areas). 
Furthermore, there is variation in the number of rural open areas that 
would be newly subject to the rule, i.e., those between 1.0 to 3.0 
acres in size (e.g., Kern County has the most total rural open area 
acreage from parcels between 1.0 to 3.0 acres in size, while Tulare 
County has the least). Given the overall land use and emission factors, 
as discussed further in the EPA's Proposed Contingency Measures TSD, 
and assuming roughly equal levels of activity in each county (i.e., 
soil disturbances over 1,000 square feet), we anticipate that the 
proposed contingency measure would provide air quality benefits in all 
counties of the San Joaquin Valley, with most air quality benefits 
occuring in Fresno, Kern, Kings and Madera counties.
    Given that Rule 8051 for open areas was originally introduced as a 
PM10 control measure, we anticipate that the proposed 
measure would provide co-benefits to limiting PM10 levels in 
the San Joaquin Valley, with the same geographical distribution as 
discussed herein for direct PM2.5 emission reductions.\109\
---------------------------------------------------------------------------

    \109\ We also note that environmental and community groups have 
recommended that fugitive dust sources in the San Joaquin Valley be 
subject to specific requirements rather than having the option to 
select from a menu of control requirements in Rule 8011 (where the 
definition for open areas is found). Letter dated May 18, 2022, from 
Tom Frantz, Association of Irritated Residents, et al., to Michael 
S. Regan, EPA Administrator, Attachment B, 7. The proposed measure 
would not alter the existing structure but rather tighten the 
applicability threshold for rural open areas.
---------------------------------------------------------------------------

V. Proposed Action and Request for Public Comment

    The EPA is proposing to promulgate a FIP under CAA section 110(c) 
intended to meet the CAA section 172(c)(9) requirements for contingency 
measures for purposes of the 1997 annual PM2.5 NAAQS, the 
2006 24-hour PM2.5 NAAQS, and the 2012 annual 
PM2.5 NAAQS (Moderate area requirements only) for the San 
Joaquin Valley PM2.5 nonattainment area. The contingency 
measures would apply to residential wood burning heaters and fireplaces 
and rural open areas. Unless and until replaced through the EPA's 
approval of a contingency measure SIP submission, the proposed FIP, if 
finalized, would be implemented by the EPA, or by the State or District 
if the EPA delegates that authority to the State or District.
    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.

[[Page 53448]]

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 14094: Modernizing Regulatory Review

    This is not a significant regulatory action subject to review by 
the Office of Management and Budget under Executive Orders 12866 (58 FR 
51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023).

B. Paperwork Reduction Act

    The information collection activities in this proposed rule have 
been submitted to the Office of Management and Budget (OMB) for 
approval under the PRA. The Information Collection Request (ICR) 
document that the EPA has prepared has been assigned EPA ICR number 
2782.01. You can find a copy of the ICR in the docket for this rule, 
and it is briefly summarized here.
    This ICR covers information collection requirements in a CAA FIP 
for contingency measures for the 1997 annual, 2006 24-hour, and 2012 
annual fine particulate matter (PM2.5) national ambient air 
quality standards (NAAQS) in the San Joaquin Valley PM2.5 
nonattainment area in California (40 CFR part 52, subpart F, Sec.  
52.249), herein referred to as the SJV FIP.
    The EPA's proposed FIP will include provisions to lower the 
existing applicability threshold of District Rule 8051 for rural areas 
from 3.0 acres or larger with at least 1,000 square feet of disturbed 
surface area to 1.0 acres or larger with the same square footage of 
disturbed surface area. If this FIP contingency measure is enacted and 
triggered, dust minimization control measures and recordkeeping and 
annual reporting would be required for the newly regulated parcels when 
owners or operators disturb the surface of the applicable rural open 
areas. In general, such owners or operators will be required to 
maintain records of rule compliance consistent with the requirements 
applicable to those owners or operators already subject to the rule, 
with two additional requirements. First, the EPA would add a 
requirement that owners and operators of rural open areas newly subject 
to the requirements of Rule 8051 pursuant to this FIP use two existing 
District forms for such recordkeeping, which the EPA intends to adapt 
for use in connection with this proposed FIP contingency measure. 
Second, while the EPA generally would apply the same record retention 
requirements found in the District rule to newly subject owners and 
operators--i.e., the requirement to maintain records for one year 
following project completion, except for owners/operators subject to 
Rule 2520, who must retain records for five years--the EPA would also 
add a requirement that the owners and operators of rural open areas who 
perform such recordkeeping pursuant to the FIP contingency measure 
submit copies of the records prepared during a calendar year to the EPA 
by March 31st of the following year. These records and reports are 
essential in determining compliance and are required of all sources 
subject to this proposed FIP that disturb the surface of applicable 
rural open areas.
    Respondents/affected entities: Potential respondents are owners or 
operators of open area parcels that range in size of at least 1.0 acre 
but less than 3.0 acres and which contain at least 1,000 square feet of 
disturbed surface area in the San Joaquin Valley PM2.5 
nonattainment area.
    Respondents' obligation to respond: Mandatory (CAA sections 110 and 
114(a)).
    Estimated number of respondents: 3,546.
    Frequency of response: An annual report is required for any year in 
which an owner or operator's rural open area parcel triggers the FIP's 
open area dust control requirements. Records showing adherence to such 
requirements must be maintained for one year, or for five years for 
certain sources, when the control requirements are triggered.
    Total estimated burden: 3,546 hours (per year). Burden is defined 
at 5 CFR 1320.3(b).
    Total estimated cost: $360,923 (per year), includes $0 in 
annualized capital or operation & maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the 
accuracy of the provided burden estimates, and any suggested methods 
for minimizing respondent burden using the docket identified at the 
beginning of this rule. The EPA will respond to any ICR-related 
comments in the final rule. You may also send your ICR-related comments 
to OMB's Office of Information and Regulatory Affairs using the 
interface at https://www.reginfo.gov/public/do/PRAMain. Find this 
particular information collection by selecting ``Currently under 
Review--Open for Public Comments'' or by using the search function. OMB 
must receive comments no later than September 7, 2023.

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 
proposed rule includes two separate contingency measures: one 
applicable to residential wood burning heaters and fireplaces and one 
applicable to rural open areas. The proposed residential wood burning 
measure primarily applies to private residents, which do not qualify as 
small entities, but also applies to businesses, such as restaurants and 
hotels, some of which constitute ``small entities.'' However, the 
proposed measure is not expected to impose any additional costs because 
any increase in heating costs during additional curtailment days would 
be offset by savings on purchases of seasoned wood or pellets, which 
these entities would otherwise be allowed to burn.\110\
---------------------------------------------------------------------------

    \110\ June 2023 Contingency Measure SIP Submission, App. D 
(``Economic Analysis for Rule 4901''), D-3.
---------------------------------------------------------------------------

    The ``small entities'' subject to the requirements of the rural 
open areas measure are those that are owners/operators of residential 
and commercial lots in rural areas with open areas (i.e., vacant 
portions of residential or commercial lots and contiguous parcels) of 
1.0 acre or more and less than 3.0 acres in the San Joaquin Valley, and 
which contain at least 1,000 square feet of disturbed surface area, as 
defined in District Rule 8011, section 3.36. These ``small entities'' 
may include industrial entities such as construction, oilfield, 
equipment and vehicle storage, and truck stop owners/operators, as 
identified in the District's ``Regulation VIII Recordkeeping Reporting 
Forms'' (revised June 1, 2009), as well as other residential, 
industrial, institutional, governmental, or commercial lot owners/
operators. To identify the small entities for these industries, the EPA 
identified North American Industry Classification System (NAICS) codes, 
the applicable small entity thresholds (based on the U.S. Small 
Business Administration's table of small business size standards), and 
then compared the cost of the proposed rural open areas measure against 
average annual receipts data available from the Census Bureau's 
Statistics of U.S. Businesses for 2017 (the latest year for which 
annual receipts are listed by NAICS). The

[[Page 53449]]

Agency has determined that, while most potentially affected entities in 
these industries are small, such entities in the San Joaquin Valley may 
experience an impact of 0% to 0.58% of annual revenues (i.e., not a 
significant impact). Details of this analysis are presented in section 
III.F of the EPA's Proposed Contingency Measures TSD.

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. The action imposes no enforceable duty on any state, 
local, or tribal governments. To the extent that the contingency 
measures of this proposed rule, if triggered, would impose costs on the 
private sector, they would collectively be less than the $100 million 
expenditure threshold identified in 2 U.S.C. 1532(a).

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because this proposed rule 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

    Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to 
any rule that: (1) is determined to be economically significant as 
defined under Executive Order 12866; and (2) concerns an environmental 
health or safety risk that we have reason to believe may have a 
disproportionate effect on children. The EPA interprets Executive Order 
13045 as applying only to those regulatory actions that concern health 
or safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it is not 
economically significant under Executive Order 12866 and because it 
implements specific standards established by Congress in statutes. 
However, to the extent this proposed rule will reduce emissions of 
direct PM2.5 or NOX (as a PM2.5 
precursor), the rule will have a beneficial effect on children's health 
by reducing air pollution.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

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)) directs 
Federal agencies to identify and address ``disproportionately high and 
adverse human health or environmental effects'' of their actions on 
minority populations and low-income populations to the greatest extent 
practicable and permitted by law. The EPA defines environmental justice 
(EJ) as ``the fair treatment and meaningful involvement of all people 
regardless of race, color, national origin, or income with respect to 
the development, implementation, and enforcement of environmental laws, 
regulations, and policies.'' The EPA further defines the term fair 
treatment to mean that ``no group of people should bear a 
disproportionate burden of environmental harms and risks, including 
those resulting from the negative environmental consequences of 
industrial, governmental, and commercial operations or programs and 
policies.'' Consistent with the EPA's discretion under the CAA, the EPA 
has evaluated the environmental justice considerations of this action, 
as is described in section IV (``Environmental Justice 
Considerations'') of this proposed rule. The analysis was done for the 
purpose of providing additional context and information about this 
rulemaking to the public, not as a basis of the action. Due to the 
nature of the action being proposed, this proposed action is expected 
to have a neutral to positive impact on the air quality of the San 
Joaquin Valley. In addition, the information in the record is 
sufficient to support the stated goal of Executive Order 12898 of 
achieving environmental justice for people of color, low-income 
populations, and Indigenous peoples.

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.

Michael S. Regan,
Administrator.

    For the reasons stated in the preamble, part 52 of title 40 of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for Part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart F--California

0
2. Section 52.249 is added to read as follows:


Sec.  52.249  Contingency measures--San Joaquin Valley Air Basin.

    (a) The requirements of section 172(c)(9) of the Clean Air Act and 
40 CFR 51.1014 are not met in the San Joaquin Valley Air Basin for the 
1997 Annual PM2.5 NAAQS, the 2006 24-hour PM2.5 
NAAQS, and the 2012 annual PM2.5 NAAQS.
    (1) Triggers for implementation of contingency measures. The 
provisions in paragraphs (a)(2) and (3) of this section shall apply 60 
days after the effective date of a final EPA determination under 40 CFR 
51.1014(a) for the 1997 Annual PM2.5 NAAQS, the 2006 24-hour 
PM2.5 NAAQS, or the 2012 annual PM2.5 NAAQS.
    (2) Wood burning fireplaces and wood burning heaters. The 
requirements of Sec.  52.220(c)(535)(i)(A)(1) shall apply except as 
provided in paragraphs (a)(2)(i), (ii) and (iii) of this section.
    (i) The episodic wood burning curtailment provisions of Paragraphs 
5.7.1.2 and 5.7.2.2 shall apply throughout the entire jurisdiction of 
the San Joaquin Valley Unified Air Pollution Control District.

[[Page 53450]]

    (ii) The episodic wood burning curtailment provisions in Paragraphs 
5.7.1.1 and 5.7.2.1 are deleted.
    (iii) The EPA shall notify the public of each episodic wood burning 
curtailment required pursuant to this paragraph (a)(2) of this section 
by any of the following methods:
    (A) Provide notice to newspapers of general circulation within the 
San Joaquin Valley.
    (B) Broadcast of messages presented by radio or television stations 
operating in the San Joaquin Valley.
    (C) A recorded telephone message for which the telephone number is 
published.
    (D) Messages posted on the EPA's website.
    (E) Any other method as the EPA determines is appropriate.
    (3) Rural open areas dust. The requirements of Sec.  
52.220(c)(334)(i)(B)(2) shall apply except as provided in paragraphs 
(a)(3)(i) and (ii) of this section.
    (i) The Applicability provision in Paragraph 2.0 is revised to the 
following:
    This rule applies to any open area having 0.5 acres or more within 
urban areas, or 1.0 acres or more within rural areas; and contains at 
least 1,000 square feet of disturbed surface area.
    (ii) The Recordkeeping provision in Paragraph 6.2 is revised to the 
following:
    An owner/operator shall comply with the recordkeeping requirements 
of Sec.  52.220(c)(334)(i)(B)(2), except that owners/operators of open 
areas of 1.0 acres or more to less than 3.0 acres within rural areas 
shall use forms made available by the EPA and shall submit copies of 
the forms prepared during a calendar year to the EPA by March 31st of 
the following year.
    (iii) Records that are required to be submitted under this rule 
must be sent to: U.S. EPA Region IX, Rules Section Manager, Air and 
Radiation Division (Air-3-2), 75 Hawthorne Street, San Francisco, CA 
94105.
    (b) In the event that paragraphs (a)(2) and (3) of this section are 
triggered, and within one year of the triggering of paragraphs (a)(2) 
and (3) of this section, the Administrator shall undertake rulemaking 
to promulgate any contingency measures that are determined to be 
appropriate for the EPA and needed to meet the contingency measure 
requirement for the 1997 annual PM2.5 NAAQS, the 2006 24-
hour PM2.5 NAAQS, or the 2012 annual PM2.5 NAAQS 
in the San Joaquin Valley.
    (c) This section shall 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.
    (d) The Administrator may delegate the authority to implement the 
measures in paragraph (a)(2) or (3) of this section to the San Joaquin 
Valley Unified Air Pollution Control District or to the California Air 
Resources Board. Nothing in this paragraph shall prevent the 
Administrator from implementing or enforcing the measures in paragraphs 
(a)(2) and (3) of this section.

[FR Doc. 2023-16748 Filed 8-7-23; 8:45 am]
BILLING CODE 6560-50-P