Alexis Strauss, Acting Regional Administrator, EPA Region 9 signed the following notice of final rulemaking on 

September 23, 2016, and EPA is submitting it for publication in the Federal Register (FR). While we have taken 

steps to ensure the accuracy of this Internet version of this final rule, it is not the official version. Please refer to the 

official version in a forthcoming FR publication, which will appear on the Government Printing Office's FDsys 

website (https://www.gpo.gov/fdsys/search/home.action) and on Regulations.gov (http://www.regulations.gov) in 

Docket No. EPA-R09-OAR-2015-0432. 

6560–50–P 

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 52
 

[EPA-R09-OAR-2015-0432; FRL- ] 

Denial of Request for Extension of Attainment Date for 1997 PM2.5 NAAQS; California; 

San Joaquin Valley Serious Nonattainment Area 

AGENCY: U.S. Environmental Protection Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection Agency (EPA) is denying a request submitted by 

California for extension of the attainment date for the 1997 24-hour and annual fine particulate 

matter (PM2.5) national ambient air quality standards in the San Joaquin Valley Serious PM2.5 

nonattainment area. 

DATES: This rule is effective on [INSERT DATE 30 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER]. 

ADDRESSES: The EPA has established docket number EPA-R09-OAR-2015-0432 for this 

action. Generally, documents in the docket for this action are available electronically at 

http://www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne Street, San 

Francisco, California 94105-3901. While all documents in the docket are listed at 

http://www.regulations.gov, some information may be publicly available only at the hard copy 

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This document is a prepublication version, signed by Alexis Strauss, Acting Regional Administrator, EPA Region 9 

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location (e.g., copyrighted material, large maps, multi-volume reports), and some may not be 

available in either location (e.g., confidential business information (CBI)). To inspect the hard 

copy materials, please schedule an appointment during normal business hours with the contact 

listed in the FOR FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: Rory Mays, Air Planning Office (AIR-2), 

EPA Region 9, (415) 972-3227, mays.rory@epa.gov. 

SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us” and “our” 

refer to the EPA. 

TABLE OF CONTENTS 

I. Background 

II. Final Action on Section 188(e) Extension Request 

III. Statutory and Executive Order Reviews 

I. Background 

On February 9, 2016, the EPA proposed to approve, conditionally approve, and 

disapprove state implementation plan (SIP) revisions submitted by California (the “State” or 

California Air Resources Board (CARB)) to address Clean Air Act (CAA or “Act”) requirements 

for the 1997 24-hour and annual PM2.5 national ambient air quality standards (NAAQS) in the 

San Joaquin Valley (SJV) Serious PM2.5 nonattainment area.1 The SIP revisions on which we 

proposed action are the “2015 Plan for the 1997 PM2.5 Standard,” which the State submitted on 

June 25, 2015, and the “2018 Transportation Conformity Budgets for the San Joaquin Valley 

1 81 FR 6936 (February 9, 2016). 

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PM2.5 SIP, Plan Supplement,” submitted on August 13, 2015. We refer to these SIP submissions 

collectively as the “2015 PM2.5 Plan” or “the Plan.” The 2015 PM2.5 Plan is a PM2.5 Serious area 

attainment plan for the SJV and includes a request to extend the applicable attainment date for 

the 24-hour and annual PM2.5 standards by three and five years, respectively, on the basis that 

attainment by December 31, 2015 is impracticable, in accordance with CAA section 188(e). 

The EPA proposed to approve the following elements of the Plan as satisfying applicable 

CAA requirements: (1) the 2012 base year emissions inventories; (2) the best available control 

measures (BACM)/best available control technology demonstration; (3) the attainment 

demonstration; (4) the reasonable further progress demonstration; (5) the State’s application for 

an extension of the Serious area attainment date to December 31, 2018 for the 1997 24-hour 

PM2.5 NAAQS and to December 31, 2020 for the 1997 annual PM2.5 NAAQS; (6) the San 

Joaquin Valley Unified Air Pollution Control District (the “District” or SJVUAPCD) 

commitment to amend and implement revisions to SJVUAPCD Rule 4692 (“Commercial 

Charbroiling”) for under-fired charbroilers on a specific schedule; and (7) the motor vehicle 

emissions budgets for 2014, 2017, 2018, and 2020. Additionally, the EPA proposed to approve 

the Plan’s inter-pollutant trading mechanism for use in transportation conformity analyses, with 

the condition that trades are limited to substituting excess reductions in emissions of nitrogen 

oxides (NOx) for direct PM2.5 emission reductions. 

The EPA proposed to conditionally approve the Plan’s quantitative milestones based on a 

commitment by the State to adopt specific enforceable measures by a date certain but not later 

than one year after the date of the Plan approval, consistent with CAA section 110(k)(4). Finally, 

the EPA proposed to disapprove the Plan’s contingency measures for failure to satisfy the 

requirements of CAA section 172(c)(9). 

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Section 188(e) of the CAA provides the Administrator with discretionary authority to 

grant a state’s request for an extension of a Serious area attainment date where certain conditions 

are met. Before the EPA may extend the attainment date for a Serious area under section 188(e), 

the State must: (1) apply for an extension of the attainment date beyond the statutory attainment 

date; (2) demonstrate that attainment by the statutory attainment date is impracticable; (3) have 

complied with all requirements and commitments pertaining to the area in the implementation 

plan; (4) demonstrate to the satisfaction of the Administrator that the plan for the area includes 

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; and (5) submit a 

demonstration of attainment by the most expeditious alternative date practicable.2

 The EPA’s 

determination of whether such a plan provides for attainment by the most expeditious date 

practicable depends on whether the plan provides for implementation of BACM no later than the 

statutory implementation deadline, the most stringent measures (MSM) as expeditiously as 

practicable, and any other technologically and economically feasible measures that will result in 

attainment as expeditiously as practicable. 

Given the strategy in the nonattainment provisions of the Act to offset longer attainment 

time frames with more stringent control requirements, the EPA interprets the MSM provision to 

assure that additional controls that can feasibly be implemented in the area beyond the set of 

measures adopted as BACM are implemented. Two ways to do this are (1) to require that more 

sources and source categories be subject to MSM analysis than to BACM analysis and controlled 

as necessary – i.e., by expanding the applicability provisions in the MSM control requirements to 

cover more sources, and (2) to require reanalysis of any measures adopted in other areas that 

2 Id. at 6940. 

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were rejected during the BACM analysis because they could not be implemented by the BACM 

implementation deadline to see if they are now feasible for the area given the longer attainment 

timeframe.3 

The EPA provided a 30-day period for public comment on the proposed rule and received 

comment letters from Mr. Paul Cort, on behalf of Earthjustice, and from Mr. Shawn Dolan. The 

comments from Earthjustice primarily argued that the control measure analysis in the Plan for 

several sources categories, including ammonia emission sources, glass melting furnaces, and 

internal combustion engines used in agricultural operations, fail to satisfy CAA requirements. 

The comments from Mr. Shawn Dolan argued that EPA Method 9 should be phased out in favor 

of other methods for evaluating visible emissions such as the Digital Camera Opacity Technique 

(DCOT). 

II. Final Action on Section 188(e) Extension Request 

Based on our reevaluation of the 2015 PM2.5 Plan and related control measures and 

consideration of the comments we received, the EPA is denying CARB’s request for extension 

of the December 31, 2015 Serious area attainment date for the 1997 PM2.5 NAAQS in the SJV. 

As explained in our proposed rule, one of the minimum criteria for extension of an attainment 

date under CAA section 188(e) is that the state demonstrate to the satisfaction of the 

Administrator that the plan for the area includes 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. For a number of source categories, CARB and the SJVUAPCD have 

demonstrated that the SIP includes the most stringent measures required or achieved in practice 

in other areas. For the following reasons, however, we find that CARB and the SJVUAPCD have 

3 Id. at 6941. 

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not demonstrated to the EPA’s satisfaction that the plan for the SJV area includes all MSM that 

can feasibly be implemented in the area. 

First, the 2015 PM2.5 Plan does not adequately demonstrate that it includes MSM for 

sources of ammonia emissions in the SJV.4 As explained in our proposed rule, three source 

categories collectively emitted 95% of all ammonia emissions in the 2012 annual average base 

year inventory for the SJV area: confined animal facilities (CAFs), composting operations, and 

fertilizer application.5 The 2015 PM2.5 Plan states that three SIP-approved rules designed to limit 

volatile organic compound (VOC) emissions also control ammonia emissions from two of these 

source categories (i.e., CAFs and composting operations) but does not substantiate these 

conclusions. For example, according to the 2015 PM2.5 Plan, many of the VOC control measures 

in SJVUAPCD Rule 4570 (“Confined Animal Facilities”), as amended October 21, 2010, have 

an ammonia “co-benefit,” and these measures have reduced ammonia emissions in the SJV by 

over 100 tons per day (tpd).6 The 2015 PM2.5 Plan does not, however, specifically identify any 

enforceable requirement in SJVUAPCD Rule 4570 that reduces ammonia emissions from CAF 

operations, nor does it substantiate its calculation of ammonia emission reductions attributed to 

SJVUAPCD Rule 4570 other than by reference to an outdated analysis from 2006.7

 Moreover, a 

4 As we explained in our proposed rule, the EPA does not agree at this time with the State’s and District’s 

conclusion in the Plan that ammonia emissions do not contribute significantly to PM2.5 levels exceeding the PM2.5 

standards in the SJV. 81 FR 6936, 6948 (February 9, 2016). Accordingly, consistent with the regulatory presumption 

under subpart 4 of part D, title I of the Act, ammonia emission sources are subject to control evaluation for purposes 

of implementing the 1997 PM2.5 NAAQS in the SJV. 5 81 FR 6936, 6978 (February 9, 2016); see also 2015 PM2.5 Plan, Appendix C, p. C-239. 6 2015 PM2.5 Plan, Appendix C, pp. C-239 to C-240. 7 2015 PM2.5 Plan, Appendix C, pp. C-239 to C-275 and SJVUAPCD, “Final Draft Staff Report, Proposed ReAdoption of Rule 4570 (Confined Animal Facilities),” June 18, 2009, at Appendix F, “Ammonia Reductions 

Analysis for Proposed Rule 4570 (Confined Animal Facilities),” June 15, 2006 (discussing various assumptions 

underlying the District’s calculation of ammonia emission factors without identifying relevant emissions 

inventories). We note that CARB has provided the EPA with significantly lower estimates of ammonia emission 

reductions achieved by SJVUAPCD Rule 4570 based on more recent calculations of reductions from a 2012 

baseline emissions inventory. Email dated September 3, 2015, from Gabe Ruiz (CARB) to Larry Biland and Andrew 

Steckel (EPA), regarding “SJV Livestock Ammonia Emissions with and without Rule 4570.” 

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number of provisions in SJVUAPCD Rule 4570 allow CAF owners/operators to implement 

“alternative mitigation measures”8 in lieu of the mitigation measures listed in the rule, without 

any requirement to ensure that such alternative mitigation measures achieve any particular level 

of ammonia emission reductions.9 We find these analyses in the 2015 PM2.5 Plan insufficient to 

demonstrate that the plan includes MSM for ammonia emissions from CAFs in the SJV. Because 

emissions from CAFs account for more than half of all ammonia emissions in the SJV,10 a more 

robust analysis of potential ammonia emission reduction measures for this source category is 

necessary to satisfy the MSM requirement. 

Similarly, the 2015 PM2.5 Plan states that SJVUAPCD Rule 4565 (“Biosolids, Animal 

Manure, and Poultry Litter Operations”), as adopted March 15, 2007, and SJVUAPCD Rule 

4566 (“Organic Material Composting Operations”), as adopted August 18, 2011, limit ammonia 

emissions from composting operations but does not specifically identify any enforceable 

requirement in either of these rules that reduces ammonia emissions, nor does it identify a basis 

for the District’s statement that “the [ammonia] control efficiencies are assumed to be the same 

as the VOC control efficiencies... since the same control measures will reduce both VOC and 

[ammonia] from these operations.”11 By contrast, South Coast Air Quality Management District 

(SCAQMD) Rule 1133.2 (“Emission Reductions from Co-Composting Operations”), as adopted 

January 10, 2003, and SCAQMD Rule 1133.3 (“Emission Reductions from Greenwaste 

8 “Alternative Mitigation Measure” is defined in SJVUAPCD Rule 4570 as “a mitigation measure that is determined 

by the APCO, ARB, and EPA to achieve reductions that are equal to or exceed the reductions that would be 

achieved by other mitigation measures listed in this rule that owners/operators could choose to comply with rule 

requirements.” SJVUAPCD Rule 4570 (amended October 21, 2010), section 3.4. Because SJVUAPCD Rule 4570 

explicitly applies only to VOC emissions, the requirement for equivalent “reductions” in section 3.4 applies only to 

VOC emission reductions and does not apply to ammonia emission reductions. 9 See, e.g., SJVUAPCD Rule 4570 (amended October 21, 2010) at section 5.6, Table 4.1.F. 10 2015 PM2.5 Plan, Appendix B, pp. B-17 and B-19. 11 2015 PM2.5 Plan, Appendix C, pp. C-271 to C-278. 

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Composting Operations”), as adopted July 8, 2011, both contain specific requirements to reduce 

ammonia emissions and, in some cases, to achieve an overall ammonia emission reduction of at 

least 80% by weight from specified baseline levels.12 

With respect to fertilizer application, the 2015 PM2.5 Plan discusses ongoing research on 

improved methods of fertilizer application to maximize nitrogen use efficiency and minimize air 

and water quality impacts and states that “the weight of evidence suggests that managing nutrient 

applications to fields ... has significantly reduced losses of nitrogen compounds to the 

environment, including leaching of nitrogen compounds to groundwater and air emissions such 

as ammonia and nitrous oxide.”13 The 2015 PM2.5 Plan does not, however, provide any specific 

analysis of potential control measures to reduce ammonia emissions from fertilizer application or 

identify any enforceable SIP requirement that reduces ammonia emissions from this source 

category. 

In sum, the 2015 PM2.5 Plan fails to identify any specific, enforceable requirement to 

reduce ammonia emissions in the SIP for the area and does not demonstrate that the State or 

District adequately considered potential control measures to expand or strengthen the reasonably 

available control measure (RACM) strategy for ammonia emission sources.14 We therefore find 

the District’s analyses in the 2015 PM2.5 Plan insufficient to demonstrate that the plan includes 

MSM for ammonia emission sources in the SJV. 

12 SCAQMD Rule 1133.2 (adopted January 10, 2003), section (d) and SCAQMD Rule 1133.3 (adopted July 8, 

2011), section (d).
 13 2015 PM2.5 Plan, Appendix C, pp. C-268 to C-271. 14 The SJVUAPCD’s Moderate area plan for the 2006 PM2.5 NAAQS, adopted in 2012, relies upon the same SIPapproved VOC control measures to satisfy RACM requirements for these NAAQS. See EPA, Final Rule, “Approval 

and Promulgation of Air Quality State Implementation Plans; California; San Joaquin Valley; Moderate Area Plan 

for the 2006 PM2.5 NAAQS,” August 16, 2016 (pre-publication notice). 

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Second, the 2015 PM2.5 Plan does not adequately demonstrate that it includes MSM for 

NOx emissions from internal combustion engines used in agricultural operations in the SJV. 

SJVUAPCD Rule 4702, as amended November 14, 2013, regulates NOx emissions from two 

types of agricultural internal combustion (IC) engines rated at 25 brake horsepower (bhp) or 

greater: spark-ignited (SI) engines and compression-ignited (CI) engines.15 For SI engines used 

in agricultural operations, the rule establishes NOx emission limits of 90 parts per million by 

volume (ppmv) for rich-burn engines and 150 ppmv for lean-burn engines.16 For CI engines used 

in agricultural operations, Rule 4702 requires compliance by specified dates with EPA Tier 3 or 

Tier 4 NOx emission standards for non-road CI engines in 40 CFR part 89 or part 1039, as 

applicable, or an 80 ppmv NOx emission limit, depending on engine type.17 

SCAQMD Rule 1110.2, by contrast, establishes an 11 ppmv NOx emission limit for all 

stationary SI and CI engines rated over 50 bhp, effective July 1, 2011, with limited exceptions 

for agricultural engines that meet certain conditions.18 According to the SCAQMD, three natural 

gas-fired SI engines used in agricultural operations are currently subject to the 11 ppmv NOx 

emission limit in Rule 1110.2 and use nonselective catalytic reduction (NSCR, also called 

“three-way catalysts”) control technology to comply with this emission limit.19 The Feather 

River Air Quality Management District (FRAQMD) Rule 3.22, as amended October 6, 2014, 

15 SJVUAPCD Rule 4702 (amended November 14, 2013), sections 2.0 and 5.2. 16 Id. at section 5.2.3 and Table 3. 17 Id. at section 5.2.4 and Table 4 and section 3.37 (defining Tier 1, Tier 2, Tier 3, and Tier 4 engines). 18 SCAQMD Rule 1110.2 (amended February 1, 2008), section (d)(1) (referencing Tables I and II). Rule 1110.2 

provides an exemption from the 11 ppmv emission limit for agricultural engines that meet EPA Tier 4 emission 

standards and either of two additional conditions: (1) the engine operator submits documentation to the SCAQMD, 

by the deadline for a permit application, that the applicable electric utility has rejected an application for an 

electrical line extension to the location of the engines, or (2) the SCAQMD determines that the operator does not 

qualify for funding under California Health and Safety Code Section 44229 to replace, retrofit or repower the 

engine. SCAQMD Rule 1110.2 at section (h)(9). 

19 Email dated May 3, 2016, from Kevin Orellana (SCAQMD) to Nicole Law (EPA), regarding “Question on 

Engines under Rule 1110.2.” 

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establishes NOx emission limits of 25 parts per million (ppm) and 65 ppm for rich-burn and leanburn agricultural engines in southern FRAQMD, respectively, except for agricultural engines 

that emit less than 50% of the major source thresholds for regulated air pollutants and/or 

hazardous air pollutants.20 The NOx emission limits for agricultural engines in SCAQMD Rule 

1110.2 and FRAQMD Rule 3.22 are significantly more stringent than the 90 ppmv and 150 

ppmv limits applicable to agricultural engines in SJVUAPCD Rule 4702. Moreover, 

SJVUAPCD Rule 4702 itself establishes NOx emission limits for IC engines used in other (nonagricultural) operations that range from 11 to 50 ppmv for rich-burn engines and 11 to 75 ppmv 

for lean-burn engines, depending on type of fuel and use.21 

In Appendix C of the 2015 PM2.5 Plan, the SJVUAPCD estimated the following costs of 

replacing agricultural SI engines: $76,209 per ton to replace a lean-burn engine to meet an 11 

ppmv NOx limit; $42,146 per ton to replace a lean-burn engine to meet a 65 ppmv NOx limit; 

$59,754 per ton to replace a rich-burn engine to meet an 11 ppmv NOx limit; and $69,521 per ton 

to replace a rich-burn engine to meet a 25 ppmv NOx limit.22 The District subsequently submitted 

additional information indicating that the cost of replacing a lean-burn engine to meet 65 ppmv 

or 25 ppmv NOx limits would be the same as the replacement cost to meet an 11 ppmv NOx limit 

($76,209 per ton), as selective catalytic reduction (SCR) would be necessary for a lean-burn 

20 FRAQMD Rule 3.22 (amended October 6, 2014), section D.1, Table 2 (South FRAQMD Emission Limits) and 

section B.1.e (Exemptions). As of June 2016, staff at the FRAQMD were unaware of any stationary SI engines 

currently operating at agricultural facilities in the Feather River area that have demonstrated compliance with the 25 

ppm or 65 ppm NOx emission limits in FRAQMD Rule 3.22. See email dated June 2, 2016, from Alamjit Mangat 

(FRAQMD) to Nicole Law (EPA), regarding “Engines in FRAQMD” (stating that all 423 agricultural engines 

currently operating in the Feather River area qualify for an exemption from the NOx emission limits in FRAQMD 

Rule 3.22). Nonetheless, because these NOx emission limits are approved into the California SIP as part of an earlier 

version of FRAQMD Rule 3.22 (see 77 FR 12493, March 1, 2012), they are required as MSM if they can feasibly be 

implemented in the SJV. 21 SJVUAPCD Rule 4702 (amended November 14, 2013), section 5.2.1. Table 1 and section 5.2.2. Table 2. 22 2015 PM2.5 Plan, Appendix C, pp. C-132 to C-139. 

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engine to meet any of these limits, and indicating that the cost of replacing a rich-burn engine to 

meet a 65 ppmv NOx limit would also be the same as the replacement cost to meet 25 ppmv or 

11 ppmv NOx limits ($59,754 or $69,521 per ton), as three-way catalysts (NSCR) would be 

necessary for a rich-burn engine to meet any of these limits.23 The SJVUAPCD did not, however, 

identify the bases for any of these cost estimates or submit related technical documentation. At 

the EPA’s request, the SJVUAPCD provided additional information about the technological and 

economic feasibility of IC engine retrofits to meet lower NOx limits but similarly did not identify 

the bases for its cost estimates or provide any related technical documentation.24 Moreover, 

according to the SCAQMD, the cost-effectiveness of replacing an agricultural SI engine ranges 

from $5,650 to $29,000 per ton of NOx reduced and, for most engine categories, is below 

$20,000 per ton.25 

Given the absence of a technical basis for the SJVUAPCD’s cost estimates for engine 

replacements or retrofits, the contrary information presented by the SCAQMD regarding costs 

for the same type of engines, and the significantly lower NOx emission levels achieved in 

practice in the South Coast area, as well as the lower NOx limits for similar engines required in 

SIP-approved rules for both the Feather River area and the SJV, we find the District’s analyses in 

the 2015 PM2.5 Plan insufficient to demonstrate that the plan includes MSM for NOx emissions 

from IC engines used in agricultural operations. 

23 Email dated April 27, 2016, from Sheraz Gill (SJVUAPCD) to Andrew Steckel (EPA), regarding “Additional SJV 

info.” 24 Email dated June 25, 2015, from Sheraz Gill (SJVUAPCD) to Andrew Steckel (EPA), regarding “Requested 

Information.” 25 Email dated May 3, 2016, from Kevin Orellana (SCAQMD) to Nicole Law (EPA), regarding “Question on 

Engines under Rule 1110.2.” 

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Third, the 2015 PM2.5 Plan does not adequately demonstrate that it includes MSM for 

NOx emissions from container glass melting furnaces in the SJV. SJVUAPCD Rule 4354, as 

amended May 19, 2011, establishes a NOx emission limit of 1.5 pounds of NOx per ton (lbs 

NOx/ton) of glass pulled, over a 30-day rolling average.26 Under the SCAQMD’s Regional Clean 

Air Incentives Market (RECLAIM) Program, the SCAQMD determined in 2000 that a NOx limit 

of 1.2 lbs NOx/ton of glass pulled represented Best Available Retrofit Control Technology 

(BARCT)27 for glass melting furnaces, and in 2015 the SCAQMD determined that a lower NOx 

limit of 0.24 lbs NOx/ton of glass pulled represents BARCT for this source category based on use 

of SCR or the “Ultra Cat ceramic filter system,” which the SCAQMD found is guaranteed to 

achieve an 80% NOx reduction and has been installed or is under construction at 12 glass 

manufacturing locations worldwide.28 The Owens-Brockway Glass Container facility, which 

manufactures clear and colored beer bottles, is the only glass melting facility currently operating 

in the South Coast area.29 At the EPA’s request, the SCAQMD provided continuous emission 

monitoring system (CEMS) data from February 2015 for the Owens-Brockway facility. The 

CEMS data shows that the facility operated at approximately 90% production capacity and 

26 SJVUAPCD Rule 4354 (amended May 19, 2011), section 5.1. 27 BARCT is defined as “an emission limitation that is based on the maximum degree of reduction achievable taking 

into account environmental, energy, and economic impacts by each class or category of source.” California Health & 

Safety Code Section 40406. 28 The RECLAIM program requires that container glass melting facilities achieve NOx reductions consistent with the 

2015 BARCT determination (0.24 lbs NOx/ton of glass pulled) by 2022. SCAQMD Rule 2002 (as amended 

December 4, 2015), subparagraph (f)(1)(L) and Table 6 (“RECLAIM NOx 2022 Ending Emission Factors”); see 

also SCAQMD, Draft Final Staff Report, “Proposed Amendments to Regulation XX, Regional Clean Air Incentives 

Market (RECLAIM), NOx RECLAIM,” December 4, 2015, at pp. 170-171. 29 Email dated May 13, 2016, from Kevin Orellana (SCAQMD) to Idalia Perez (EPA) regarding “question regarding 

SCAQMD boilers and container glass facility;” see also email dated April 28, 2016, from Kevin Orellana 

(SCAQMD) to Idalia Perez (EPA) regarding “question regarding SCAQMD boilers and container glass facility.” 

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consistently emitted below 0.72 lbs NOx/ton of glass pulled during that month, using oxyfuel 

firing to control NOx emissions.30 

According to the SJVUAPCD, NOx emissions from glass melting facilities operating 

oxyfuel or SCR systems can vary widely depending on multiple factors, including the stability of 

the glass pull rate and the condition and age of the furnace refractory and insulation.31 The 

SJVUAPCD states that glass melting facilities in the SJV manufacture a large variety of sizes 

and shapes of still and sparkling wine glass bottles and often must respond to fluctuating 

demands in the wine industry, which require operators to use their furnaces in a manner that 

results in a less stable pull rate compared to facilities located in the South Coast, which mainly 

produce beer bottles. Additionally, according to the SJVUAPCD, as furnaces age the refractory 

is not as effective at retaining heat in the furnace and the burner fire rate must be increased over 

time to maintain the same overall furnace and glass temperature, which increases NOx emissions 

on a lb/ton basis. The District states that all of these factors result in varied NOx emission rates 

depending on production conditions, furnace age, and furnace design.32 The District did not, 

however, submit or reference any technical documentation to support its conclusions about the 

feasibility of lower NOx emission limits for glass melting furnaces in the SJV. Given the absence 

of a technical basis for the SJVUAPCD’s conclusions about the feasibility of more stringent 

controls for glass melting furnaces, and the available information from the SCAQMD about 

significantly lower NOx emission levels that have been achieved in practice both in the South 

Coast and elsewhere, we find the District’s analyses in the 2015 PM2.5 Plan insufficient to 

30 Email dated April 13, 2016, from Kevin Orellana (SCAQMD) to Idalia Perez (EPA) regarding “question 

regarding SCAQMD boilers and container glass facility.” 31 Email dated April 27, 2016, from Sheraz Gill (SJVUAPCD) to Andrew Steckel (EPA) regarding “Additional SJV 

info.” 32 Id. 

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This document is a prepublication version, signed by Alexis Strauss, Acting Regional Administrator, EPA Region 9 

on September 23, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. 

demonstrate that the plan includes MSM for NOx emissions from container glass melting 

furnaces. 

Finally, the 2015 PM2.5 Plan does not adequately demonstrate that the State and District 

reevaluated, for potential adoption, control measures rejected during the State’s and District’s 

development of the previous attainment plan for the 1997 PM2.5 NAAQS in the SJV area (the 

“2008 PM2.5 Plan”)33 in accordance with the EPA’s longstanding interpretation of the MSM 

requirement. As explained in our proposed rule, given the strategy in the nonattainment 

provisions of the Act to offset longer attainment time frames with more stringent control 

requirements, the EPA interprets the MSM provision to assure that additional controls that can 

feasibly be implemented in the area beyond the set of measures adopted as BACM are 

implemented. Two ways to do this are (1) to require that more sources and source categories be 

subject to MSM analysis than to BACM analysis and controlled as necessary – i.e., by expanding 

the applicability provisions in the MSM control requirements to cover more sources, and (2) to 

require reanalysis of any measures adopted in other areas that were rejected during the BACM 

analysis because they could not be implemented by the BACM implementation deadline to see if 

they are now feasible for the area given the longer attainment timeframe.34 In this case, because 

CARB submitted both the BACM demonstration required under CAA section 189(b)(1)(B) and 

the MSM demonstration required under CAA section 188(e) simultaneously, we compared the 

BACM and MSM analyses in the 2015 PM2.5 Plan with the previous RACM analysis carried out 

by the District to support the 2008 PM2.5 Plan. 

33 76 FR 69896 (November 9, 2011) (final rule approving most elements of 2008 PM2.5 Plan). 34 81 FR 6936, 6941 (February 9, 2016); see also EPA, Final Rule, “Fine Particulate Matter National Ambient Air 

Quality Standards: State Implementation Plan Requirements,” 81 FR 58010, 58096-58097 (August 24, 2016). 

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This document is a prepublication version, signed by Alexis Strauss, Acting Regional Administrator, EPA Region 9 

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The 2015 PM2.5 Plan identifies four District control measures not included in the RACM 

control strategy that the EPA approved as part of the 2008 PM2.5 Plan.35 Collectively, these four 

District measures are projected to achieve a total of 0.0357 tpd of NOx emission reductions and 

3.3 tpd of direct PM2.5 emission reductions by 2018 and to achieve a total of 0.4011 tpd of NOx 

emission reductions and 2.0 tpd of direct PM2.5 emission reductions by 2020.36 The MSM 

evaluation in the 2015 PM2.5 Plan provides little discussion of actions to either expand the 

applicability provisions in the RACM control measures to cover more sources, or to reanalyze 

measures that were rejected during the previous RACM analysis to see if they are now feasible 

for the area given the longer attainment timeframe (i.e., the extended attainment dates requested 

by the State). While the Plan provides the District’s conclusions that its existing SIP control 

measures satisfy BACM and MSM requirements and that no additional control measures are 

feasible, it provides limited technical support for these conclusions.37 We note that many of the 

SJVUAPCD rules that the 2015 PM2.5 Plan relies on to address the MSM requirement have not 

been revised in many years38 and that the State and District should conduct a more 

comprehensive evaluation of potential measures to strengthen these regulations, subject to 

notice-and-comment rulemaking, to ensure expeditious attainment of the 1997 PM2.5 NAAQS in 

the SJV. 

35 81 FR at 6973-6975 (February 9, 2016). The four District control measures are: (1) Rule 4308 (“Boilers, Steam 

Generators, and Process Heaters 0.075 to <2 MMBtu/hr”), as amended November 14, 2013; (2) an enforceable 

commitment to amend Rule 4692 (“Commercial Charbroiling”) in 2016 to add requirements for under-fired 

charbroilers; (3) Rule 4901 (“Wood Burning Fireplaces and Wood Burning Heaters”), as amended September 18, 

2014; and (4) Rule 4905 (“Natural Gas-Fired, Fan-Type Residential Central Furnaces”), as amended January 22, 

2015. 36 Id. at 6975, Table 9. 37 See generally 2015 PM2.5 Plan, Appendix C (BACM and MSM for Stationary and Area Sources). 38 See, e.g., 2015 PM2.5 Plan, Appendix C at pp. C-106 to C-114 (discussing SJVUAPCD Rule 4550, as adopted 

August 19, 2004); pp. C-194 to C-197 (discussing SJVUAPCD Rule 8061, as amended August 19, 2004); and pp. 

C-275 to C-278 (discussing SJVUAPCD Rule 4565, as adopted March 15, 2007).
 

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This document is a prepublication version, signed by Alexis Strauss, Acting Regional Administrator, EPA Region 9 

on September 23, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. 

In light of the deficiencies in the MSM analyses, we find that the State and District have 

not demonstrated to the EPA’s satisfaction that the 2015 PM2.5 Plan includes 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, in accordance with the requirements of 

CAA section 188(e). For these reasons, the EPA is denying CARB’s request for extension of the 

December 31, 2015 Serious area attainment date under CAA section 188(e) for the 1997 PM2.5 

NAAQS in the SJV. 

We note that the EPA had proposed to grant the State’s requested extension of the 

Serious area attainment date in the SJV for the reasons explained in our February 9, 2016 

proposed action on the 2015 PM2.5 Plan. Public comments on our proposal, however, presented 

information indicating that our proposal to grant the requested extension would not be consistent 

with the requirements of the Act. Our proposal to grant the State’s request for extension of the 

Serious area attainment date raised the question as to whether the 2015 PM2.5 Plan satisfied the 

minimum criteria in CAA section 188(e) for such extensions. Implicit in any such proposal to 

grant an extension requested by a state is the possibility that the EPA may decide to deny the 

extension, after considering public comments. Because our February 9, 2016 proposed rule 

provided adequate notice of both the possibility that the EPA would grant the State’s request for 

extension of the attainment date for the SJV and the possibility that the EPA would deny this 

request, we are not providing additional opportunity for comment before this final action takes 

effect. 

The EPA is taking final action only to deny the State’s requested extension of the 

attainment date for the 1997 PM2.5 NAAQS in the SJV and is not finalizing its proposed actions 

on other elements of the 2015 PM2.5 Plan at 81 FR 6936 (February 9, 2016) at this time. The 

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This document is a prepublication version, signed by Alexis Strauss, Acting Regional Administrator, EPA Region 9 

on September 23, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. 

EPA will take final action on the remaining portions of the submitted 2015 PM2.5 Plan, as 

appropriate, in a subsequent rulemaking. 

III. Statutory and Executive Order Reviews

Additional information about these statutes and Executive Orders can be found at 

http://www.epa.gov/laws-regulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: 

Improving Regulation and Regulatory Review 

This action is not a significant regulatory action and was therefore not submitted to the 

Office of Management and Budget (OMB) for review. 

B. Paperwork Reduction Act (PRA) 

This action does not impose an information collection burden under the PRA because this 

action does not impose additional requirements beyond those imposed by state law. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have a significant economic impact on a substantial 

number of small entities under the RFA. This action will not impose any requirements on small 

entities beyond those imposed by state law. 

D. Unfunded Mandates Reform Act (UMRA) 

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 

1531–1538, and does not significantly or uniquely affect small governments. This action does 

not impose additional requirements beyond those imposed by state law. Accordingly, no 

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This document is a prepublication version, signed by Alexis Strauss, Acting Regional Administrator, EPA Region 9 

on September 23, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. 

additional costs to State, local, or tribal governments, or to the private sector, will result from this 

action. 

E. Executive Order 13132: Federalism 

This action does not have federalism implications. It will not have substantial direct 

effects on the states, on the relationship between the national government and the states, or on 

the distribution of power and responsibilities among the various levels of government. 

F. Executive Order 13175: Coordination With Indian Tribal Governments 

This action does not have tribal implications, as specified in Executive Order 13175, 

because the SIP is not approved to apply on any Indian reservation land or in any other area 

where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not 

impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive 

Order 13175 does not apply to this action. 

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety 

Risks 

The EPA interprets Executive Order 13045 as applying only to those regulatory actions 

that concern environmental health or safety risks that the EPA has reason to believe may 

disproportionately affect children, per the definition of “covered regulatory action” in section 2– 

202 of the Executive Order. This action is not subject to Executive Order 13045 because it does 

not impose additional requirements beyond those imposed by state law. 

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

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This document is a prepublication version, signed by Alexis Strauss, Acting Regional Administrator, EPA Region 9 

on September 23, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. 

This action is not subject to Executive Order 13211, because it is not a significant 

regulatory action under Executive Order 12866. 

I. National Technology Transfer and Advancement Act (NTTAA) 

Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its 

regulatory activities unless to do so would be inconsistent with applicable law or otherwise 

impractical. The EPA believes that this action is not subject to the requirements of section 12(d) 

of the NTTAA because application of those requirements would be inconsistent with the CAA. 

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority 

Populations and Low-Income Population 

The EPA lacks the discretionary authority to address environmental justice in this 

rulemaking. 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and the EPA will submit a rule report to each House of 

the Congress and to the Comptroller General of the United States. This action is not a “major 

rule” as defined by 5 U.S.C. 804(2). 

L. Petitions for Judicial Review 

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action 

must be filed in the United States Court of Appeals for the appropriate circuit by [insert date 60 

days after date of publication in the Federal Register]. Filing a petition for reconsideration by 

the Administrator of this final rule does not affect the finality of this rule for the purposes of 

judicial review nor does it extend the time within which a petition for judicial review may be 

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This document is a prepublication version, signed by Alexis Strauss, Acting Regional Administrator, EPA Region 9 

on September 23, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. 

filed, and shall not postpone the effectiveness of such rule or action. This action may not be 

challenged later in proceedings to enforce its requirements (see section 307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air pollution control, Ammonia, Incorporation by Reference, 

Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping 

requirements, Sulfur dioxide. 

___September 23, 2016.____________ ___//signed//_________________ 

Dated Alexis Strauss, 

Acting Regional Administrator, 

EPA Region 9. 

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