Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 29327 

1For a more detailed description of the SJV PM2.5

SIP, see 76 FR 41338, 41339 to 41359 (July 13, 

2011). 

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 July 21, 2014. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. Parties with 

objections to this direct final rule are 

encouraged to file a comment in 

response to the parallel notice of 

proposed rulemaking for this action 

published in the proposed rules section 

of today’s Federal Register, rather than 

file an immediate petition for judicial 

review of this direct final rule, so that 

EPA can withdraw this direct final rule 

and address the comment in the 

proposed rulemaking. 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, Oxides of Nitrogen, 

Ozone, Volatile organic compounds, 

Incorporation by reference. 

Dated: May 2, 2014. 

Susan Hedman, 

Regional Administrator, Region 5. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. Section 52.726 is amended by 

adding paragraph (oo) to read as 

follows: 

§ 52.726 Control strategy; Ozone. 

* * * * * 

(oo) Approval—On March 28, 2014, 

the State of Illinois submitted a revision 

to its State Implementation Plan for the 

Illinois portion of the Chicago-GaryLake County, Illinois-Indiana area (the 

Greater Chicago Area). The submittal 

established new Motor Vehicle 

Emissions Budgets (MVEB) for Volatile 

Organic Compounds (VOC) and Oxides 

of Nitrogen (NOX) for the year 2025. The 

MVEBs for the Illinois portion of the 

Greater Chicago Area are now: 60.13 

tons per day of VOC emissions and 

150.27 tons per day of NOX emissions 

for the year 2025. 

[FR Doc. 2014–11487 Filed 5–21–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2013–0534; FRL–9911–07– 

Region 9] 

Approval and Promulgation of 

Implementation Plans; California; San 

Joaquin Valley; Contingency Measures 

for the 1997 PM2.5 Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a State 

implementation plan (SIP) revision 

submitted by California that corrects 

deficiencies in the Clean Air Act (CAA) 

contingency measures for the 1997 

annual and 24-hour national ambient air 

quality standards (NAAQS) for fine 

particulate matter (PM2.5) in the San 

Joaquin Valley (SJV). Approval of this 

SIP revision lifts the CAA section 

179(b)(2) offset sanctions and terminates 

the CAA section 179(b)(1) highway 

funding sanction clock triggered by the 

EPA’s partial disapproval of the SJV SIP 

for attainment of the 1997 PM2.5 NAAQS 

on November 9, 2011. 

DATES: This rule is effective on June 23, 

2014. 

ADDRESSES: You may inspect the 

supporting information for this action, 

identified by docket number EPA–R09– 

OAR–2013–0534, by one of the 

following methods: Federal 

eRulemaking portal, http://

www.regulations.gov, please follow the 

online instructions; or, Visit our 

regional office at, U.S. Environmental 

Protection Agency Region 9, 75 

Hawthorne Street, San Francisco, CA 

94105–3901. 

Docket: The index to the docket 

(docket number EPA–R09–OAR–2013– 

0534) for this action is available 

electronically at http://

www.regulations.gov and in hard copy 

at EPA Region 9, 75 Hawthorne Street, 

San Francisco, California. While 

documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., voluminous records, large 

maps, copyrighted material), and some 

may not be publicly available in either 

location (e.g., Confidential Business 

Information). To inspect the hard copy 

materials, please schedule an 

appointment during normal business 

hours with the contact listed directly 

below. 

FOR FURTHER INFORMATION CONTACT: 

Frances Wicher, EPA Region 9, (415) 

972–3957, wicher.frances@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to the EPA. 

Table of Contents 

I. Background Information 

II. Public Comments and the EPA’s 

Responses 

A. Comments Regarding Necessary Types 

and Quantities of Contingency Measure 

Emission Reductions 

B. Comments Regarding Emission 

Reductions From Waiver Measures and 

Incentive Grant Programs 

C. General Comments 

III. Final Actions 

IV. Statutory and Executive Order Reviews 

I. Background Information 

On November 9, 2011, the EPA 

partially approved and partially 

disapproved the San Joaquin Valley 

PM2.5 State Implementation Plan (‘‘SJV 

PM2.5 SIP’’) (76 FR 69896). The SJV 

PM2.5 SIP is California’s plan for 

attaining the 1997 PM2.5 NAAQS in the 

San Joaquin Valley.1 Our partial 

disapproval of the SJV PM2.5 SIP was 

based on our determination that its 

contingency measure provisions failed 

to meet the requirements of Clean Air 

Act (‘‘CAA’’ or ‘‘the Act’’) section 

172(c)(9), which require that the SIP for 

each PM2.5 nonattainment area contain 

contingency measures to be 

implemented if the area fails to make 

reasonable further progress (RFP) or to 

attain the NAAQS by the applicable 

attainment date. See 76 FR 41338, 41357 

to 41359 (July 13, 2011) (proposed 

partial approval and partial disapproval 

of SJV PM2.5 SIP) and 76 FR 69896, 

69918 to 69919 and 69924 (final partial 

approval and partial disapproval of SJV 

PM2.5 SIP). The disapproval became 

effective on January 9, 2012, starting a 

sanctions clock for imposition of new 

source review offset sanctions 18 

months after January 9, 2012, and 

highway sanctions 6 months after the 

imposition of offset sanctions, pursuant 

to CAA section 179 and our regulations 

at 40 CFR 52.31. 

On July 3, 2013, CARB submitted the 

Contingency Measure SIP as a revision 

to the California State Implementation 

Plan. The Contingency Measure SIP 

addresses the SIP deficiencies identified 

in the EPA’s 2011 partial disapproval of 

the SJV PM2.5 SIP by (1) confirming that 

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2See ‘‘Clean Air Fine Particle Implementation 

Rule,’’ 72 FR 20586 (April 25, 2007), codified at 40 

CFR part 51, subpart Z. 

3The NRDC decision remanded both the 2007 

PM2.5 Implementation Rule and a separate 

rulemaking to implement the New Source Review 

permitting requirements for the 1997 PM2.5 NAAQS. 

This latter rule is not at issue in this action. 

the SJV area had met its 2012 RFP 

milestones and (2) expanding upon the 

attainment contingency measures in the 

SJV PM2.5 SIP to establish a contingency 

plan that achieves SIP-creditable 

emission reductions equivalent to 

approximately one year’s worth of RFP 

in 2015. See generally Contingency 

Measure SIP. Among these SIPcreditable emission reductions are 

reductions from a contingency provision 

in the District’s residential woodburning 

rule, Rule 4901, and reductions from the 

District’s implementation of two 

incentive grant programs: The Carl 

Moyer Memorial Air Quality Standards 

Attainment Program (‘‘Carl Moyer 

Program’’) and the Proposition 1B: 

Goods Movement Emission Reduction 

Program (‘‘Prop 1B’’). Id. at 4 and 6. A 

detailed description of the Contingency 

Measure SIP can be found at 78 FR 

53113, 53115 (August 28, 2013). 

On August 28, 2013, we proposed to 

approve the Contingency Measure SIP 

as correcting the deficiency in the SJV 

PM2.5 SIP related to the attainment 

contingency measure requirement (78 

FR 53113). At the same time, we also 

proposed to find, based on 

documentation in the Contingency 

Measure SIP, that the RFP contingency 

measure requirement in CAA section 

172(c)(9) for the 2012 milestone year 

was moot because the SJV has achieved 

the emission reduction benchmarks for 

the 2012 RFP year. Our full evaluation 

of the Contingency Measure SIP and our 

rationale for finding that this SIP 

corrects the deficiencies in the SJV 

PM2.5 SIP can be found in the August 

28, 2013 proposed rule. Based on our 

proposed approval of the Contingency 

Measure SIP, we also issued on August 

28, 2013, an interim final determination 

that stayed the imposition of the offset 

sanctions that became effective in the 

SJV on July 9, 2013 and tolled the 

sanctions clock for the imposition of the 

highway sanctions (78 FR 53038). 

II. Public Comments and the EPA’s 

Responses 

The EPA provided a 30-day period for 

the public to comment on our proposed 

rule. During this comment period, 

which ended on September 28, 2013, we 

received four public comments. A copy 

of these comment letters can be found 

in the docket. We provide our responses 

to these comments below. 

A. Comments Regarding Necessary 

Types and Quantities of Contingency 

Measure Emission Reductions 

Comment 1: Earthjustice cites the D.C. 

Circuit Court of Appeals’ decision in 

Natural Resources Defense Council v. 

EPA, 706 F.3d 428 (D.C. Cir. 2013) 

(hereafter ‘‘NRDC’’) to support its claim 

that the Contingency Measure SIP 

cannot be approved under the CAA. 

Specifically, Earthjustice argues that the 

EPA’s approval of the SJV PM2.5 SIP was 

built upon the EPA’s 2007 

implementation rule for the 1997 PM2.5

NAAQS (hereafter ‘‘2007 PM2.5

Implementation Rule’’),2 which the 

NRDC court has since remanded for 

failure to comply with the requirements 

of subpart 4 of title I, part D of the CAA; 

that the SJV PM2.5 SIP and the 

reasonable further progress (RFP) 

projections therein likewise fail to 

satisfy the applicable requirements of 

subpart 4; and that because the 

contingency measure obligation is based 

upon the RFP projections in the SJV 

PM2.5 SIP, the Contingency Measure SIP 

is also flawed. 

Earthjustice argues that the most 

significant defect in the SJV PM2.5 SIP 

is that it assumes the maximum 

available attainment deadline without 

implementing best available control 

measures (BACM) under CAA section 

189(b)(1)(B), and that because of this 

erroneous attainment date the RFP 

trajectory in the SJV PM2.5 SIP provides 

for a 9-year attainment ‘‘glide path’’ that 

fails to comply with the CAA. Under 

subpart 4, Earthjustice argues, 

nonattainment areas relying on 

reasonably available control measures 

have four years to attain and thus have 

a contingency measure obligation of 25 

percent of the total reductions required 

for attainment, rather than the one-ninth 

of total reductions provided in the 

Contingency Measure SIP. Alternatively, 

Earthjustice argues that had the SJV 

qualified for an extended attainment 

deadline under CAA section 188(b)(1), 

the District would have had to 

implement BACM, which would have 

provided for steeper emission 

reductions than currently provided in 

the SJV PM2.5 SIP which is based on the 

implementation of reasonably available 

controls. 

Earthjustice further contends that 

because the SJV area has failed to attain 

the PM2.5 standard by the ‘‘moderate’’ 

area deadline in subpart 4, a new plan 

with new controls and an attainment 

horizon that is less than 9 years is 

required. Earthjustice states that this 

new plan must include new RFP targets 

and contingency measures, and that the 

calculation of these targets will require 

more than one-ninth of the total 

reductions required, because the 

interval between the baseline for the 

serious area plan and the attainment 

deadline will be less than nine years. 

Thus, according to Earthjustice, ‘‘no 

matter how the SJV chooses to comply 

with subpart 4, there is no scenario in 

which the RFP trajectory and therefore 

the quantity of emission reductions 

required for contingency measures will 

match those calculated in the [SJV PM2.5

SIP].’’ 

Response 1: As a threshold matter, to 

the extent the commenter is challenging 

our November 2011 final action on the 

SJV PM2.5 SIP based on the D.C. 

Circuit’s January 2013 decision in 

NRDC, such a challenge may only be 

brought in the appropriate circuit court 

within specified timeframes under CAA 

section 307(b). Section 307(b)(1) 

provides, inter alia, that any petition for 

review of an EPA action in ‘‘approving 

or promulgating any implementation 

plan under [CAA section 110] * * * 

which is locally or regionally applicable 

may be filed only in the United States 

Court of Appeals for the appropriate 

circuit’’ and must be filed ‘‘within sixty 

days from the date notice of such 

promulgation, approval, or action 

appears in the Federal Register, except 

that if such petition is based solely on 

grounds arising after such sixtieth day, 

then any petition for review under this 

subsection shall be filed within sixty 

days after such grounds arise.’’ Our 

action today on the Contingency 

Measure SIP is not the appropriate 

forum for a challenge to our November 

2011 final action on the SJV PM2.5 SIP. 

We nonetheless respond below to the 

substance of Earthjustice’s claims. In 

NRDC, the U.S. Court of Appeals for the 

D.C. Circuit remanded the EPA’s 2007 

PM2.5 Implementation Rule,3 holding 

that the EPA erred in implementing the 

1997 PM2.5 standards solely pursuant to 

the general implementation provisions 

of subpart 1 of part D, title I of the CAA, 

without also considering the particulate 

matter-specific provisions of subpart 4. 

The court directed the EPA to repromulgate the rule pursuant to subpart 

4 of part D, title I of the Clean Air Act 

but declined to impose a deadline by 

which the Agency must do so. See 706 

F.3d 428, 437 and n. 10. This decision 

has no bearing on our action on the 

Contingency Measure SIP. 

Earthjustice’s arguments rest on the 

premise that the NRDC decision 

necessarily invalidates our November 

2011 final action on the SJV PM2.5 SIP 

(76 FR 69896, November 9, 2011) and 

therefore renders flawed any assessment 

of contingency measure obligations 

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4The 2007 PM2.5 Implementation Rule therefore 

remains ‘‘on the books’’ while the EPA effects the 

required changes through one or more national 

rulemakings consistent with the NRDC decision. 

5To remove these commitments from the 

applicable SIP before the EPA has re-promulgated 

an implementation rule pursuant to subpart 4 

consistent with the NRDC opinion would be to 

temporarily defeat the enhanced environmental 

protections provided by these federally-enforceable 

control obligations. 

6 In rulemakings on individual areas subsequent 

to the NRDC decision, the EPA has explained in 

detail its view that the court’s recently announced 

interpretation should not be applied retroactively. 

See, e.g., 78 FR 20856 (April 8, 2013) (proposed 

redesignation of Indianapolis to attainment for 1997 

annual PM2.5 standard) and 78 FR 41698 (July 11, 

2013) (final redesignation of Indianapolis to 

attainment for 1997 annual PM2.5 standard). The 

U.S. District Court for the District of Colorado 

recently agreed with the EPA’s position that NRDC 

does not require retroactive application of Subpart 

4 requirements. See Wildearth Guardians v. Gina 

McCarthy, Case No. 13–CV–1275–WJM–KMT (D. 

Colo., March 11, 2014) (dismissing plaintiff’s claim 

that the EPA missed a non-discretionary deadline 

based on retroactive application of Subpart 4). 

7The disapproval also triggered an obligation on 

the EPA under CAA section 110(c)(1) to promulgate 

a federal implementation plan to address the 

deficiency unless the State submits and the EPA 

approves a plan revision correcting the deficiency 

within two years (76 FR 69896, 69924, November 

9, 2011). 

8Letter dated July 3, 2013, from Richard W. 

Corey, Executive Officer, California Air Resources 

Board, to Jared Blumenfeld, Regional 

Administrator, U.S. EPA Region 9, transmitting the 

San Joaquin Valley Air Pollution Control District’s 

‘‘Quantification of Contingency Reductions for the 

2008 PM2.5 Plan’’ (adopted June 20, 2013), with 

enclosures. 

9Under 40 CFR 52.31(d)(2)(ii), during the period 

between 18 and 24 months following the EPA’s 

disapproval of a plan submission, offset sanctions 

are stayed and highway sanctions deferred if the 

EPA proposes to approve a revised plan submitted 

by the State and issues an interim final 

determination that the revised plan ‘‘corrects the 

deficiency prompting the [disapproval].’’ 

10The offset sanction initially applied in the SJV 

area on July 9, 2013 (78 FR 53038, August 28, 2013). 

Thus, under 40 CFR 52.31(d)(2)(ii), the offset 

sanction would reapply on the date the EPA issued 

a proposed or final disapproval and the highway 

sanction would apply immediately because more 

than 6 months have passed since initial application 

of the offset sanction. 

11As the U.S. District Court for the District of 

Colorado recently stated, ‘‘retroactive application of 

Subpart 4 to impose deadlines of which the States 

were not previously aware would be unfair and 

contrary to the state/federal balance outlined in the 

CAA.’’ See Wildearth Guardians v. Gina McCarthy, 

Case No. 13–CV–1275–WJM–KMT (D. Colo., March 

11, 2014) at 12. 

12As the EPA explained in the preamble to the 

2007 PM2.5 Implementation Rule, contingency 

measures should provide for emission reductions 

equivalent to about one year of reductions needed 

for RFP, based on the overall level of reductions 

needed to demonstrate attainment divided by the 

number of years from the ‘‘base year’’ to the 

attainment year (72 FR 20586, 20643, April 25, 

2007). Thus, without first establishing the relevant 

base year, the attainment year, and the overall level 

Continued 

derived from that plan. Nothing in 

NRDC, however, indicates the court 

intended to automatically invalidate 

other EPA rulemakings that were based 

in whole or in part on the 2007 PM2.5

Implementation Rule. Indeed, the D.C. 

Circuit remanded but did not vacate the 

2007 PM2.5 Implementation Rule,4 citing 

in its opinion (at 706 F.3d at 437 n. 10) 

a prior decision in which it held that ‘‘it 

is appropriate to remand without 

vacatur in particular occasions where 

vacatur ‘would at least temporarily 

defeat . . . the enhanced protection of 

the environmental values covered by 

[the EPA rule at issue].’ ’’ North Carolina 

v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 

2008). Our November 2011 final action 

on the SJV PM2.5 SIP included approval 

of District commitments to adopt and 

implement specific control measures on 

a fixed schedule and State and District 

commitments to achieve specific 

amounts of NOX, SOX and direct PM2.5

emission reductions by fixed dates. See 

76 FR 69896, 69924 (November 9, 2011), 

codified at 40 CFR 52.220(c)(392) and 

(c)(395). Absent an EPA rulemaking to 

withdraw or revise this final rule, which 

NRDC does not compel, our final action 

on the SJV PM2.5 SIP remains effective 

and these State and District 

commitments remain federallyenforceable requirements of the 

California SIP.5 We therefore disagree 

with the commenter’s assertion that the 

RFP projections in the SJV PM2.5 SIP 

render the Contingency Measure SIP 

flawed. 

Additionally, we do not believe that 

the NRDC court’s January 4, 2013 

decision should be interpreted so as to 

retroactively impose subpart 4 

requirements on the state in the context 

of our action on this corrective SIP, as 

the timing and nature of the court’s 

decision compound the consequences of 

disapproval based on such retroactive 

application here.6 California submitted 

the various components of the SJV PM2.5

SIP (and revisions thereto) between June 

2008 and July 2011. On July 13, 2011, 

we proposed to approve all elements of 

the SJV PM2.5 SIP except for its 

contingency measure provisions and 

described the specific deficiencies in 

the contingency measures that 

California would need to address in a 

corrective SIP submission in order to 

avoid mandatory sanctions (76 FR 

41338, 41358 to 41359, 41361, July 13, 

2011). We finalized this partial approval 

and partial disapproval action on 

November 9, 2011, effective January 9, 

2012, starting a sanctions clock for 

imposition of offset sanctions 18 months 

after January 9, 2012 and highway 

sanctions 6 months later, pursuant to 

CAA section 179(b) and the EPA’s 

regulations at 40 CFR 52.31 (76 FR 

69896, 69924, November 9, 2011) (final 

rule partially approving and partially 

disapproving SJV PM2.5 SIP).7 We stated 

in the final rule that ‘‘[n]either sanction 

[would] be imposed under the CAA if 

California submits and we approve prior 

to the implementation of the sanctions, 

SIP revisions that correct the 

deficiencies identified in our proposed 

action.’’ Id. California reasonably relied 

upon this statement to develop a SIP 

submission addressing the deficiencies 

identified in the July 2011 proposed 

action—i.e., a SIP submission 

containing contingency measures that 

achieve emission reductions equivalent 

to one year’s worth of RFP, on a 

pollutant-specific basis, which are in 

excess of the emission reductions relied 

on for RFP and attainment in the SJV 

PM2.5 SIP (76 FR 41338, 41358 to 41359, 

41361, July 13, 2011). 

Over a year later, on January 4, 2013, 

the D.C. Circuit issued its decision 

remanding the EPA’s 2007 PM2.5

Implementation Rule. By this time, just 

six months remained before mandatory 

offset sanctions would apply in the SJV 

under CAA section 179(b) unless the 

State submitted and we approved a SIP 

revision correcting the deficiencies that 

prompted the EPA’s disapproval. On 

June 20, 2013, the District adopted the 

Contingency Measure SIP, which it had 

developed to address the deficiencies 

identified in the 2011 action on the SJV 

PM2.5 SIP, and CARB submitted this 

corrective SIP on July 3, 2013.8 We 

proposed to approve the Contingency 

Measure SIP on August 28, 2013 (78 FR 

53113). Concurrently, we issued an 

interim final determination to stay offset 

sanctions and defer highway sanctions 

in the SJV area, based on our ‘‘proposal 

to approve the State’s SIP revision as 

correcting the deficiency that initiated 

these sanctions’’ (78 FR 53038, August 

28, 2013).9 To disapprove this corrective 

SIP submission now, based on a 

retroactive application of subpart 4 

requirements to the SJV PM2.5 SIP, 

would immediately subject the SJV area 

to offset sanctions and highway 

sanctions under the EPA’s sanction 

application sequencing rule in 40 CFR 

52.31(d)(2)(ii).10 We believe it would be 

unreasonable to now disapprove this 

SIP submission, which corrects the 

deficiencies we had identified, and 

subject the SJV area to mandatory 

sanctions solely because the State did 

not address subpart 4 requirements of 

which it had no notice.11

Moreover, it is not clear what RFP 

projections would result from the new 

subpart 4 plan that Earthjustice calls for 

and, consequently, it is impossible for 

the State to quantify a contingency 

measure obligation based on such a new 

plan before it is developed.12 It would 

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of reductions needed to demonstrate attainment, 

and then considering whether available controls 

(whether RACM or BACM) might expedite the 

attainment date, it is impossible to determine the 

rate of emission reductions that would demonstrate 

RFP and the corresponding amount of emission 

reductions that would be equivalent to about one 

year of RFP. 

be even more unreasonable to 

disapprove this corrective SIP 

submission on the basis of RFP 

trajectories that cannot currently be 

ascertained, particularly given the 

lengthy rulemakings that would be 

necessary for the State to develop a new 

plan under subpart 4 with new RFP 

targets and a new attainment deadline, 

and the likely economic hardship that 

would result from continued 

application of mandatory offset and 

highway sanctions during this time. The 

D.C. Circuit recognized the inequity of 

this type of retroactive impact in Sierra 

Club v. Whitman, 285 F.3d 63 (D.C. Cir. 

2002), where it upheld the district 

court’s ruling refusing to make 

retroactive the EPA’s determination that 

the St. Louis area did not meet its 

attainment deadline. In that case, 

petitioners urged the court to make the 

EPA’s nonattainment determination 

effective as of the date that the statute 

required, rather than the later date on 

which the EPA actually made the 

determination. The court rejected this 

view, stating that applying it ‘‘would 

likely impose large costs on the States, 

which would face fines and suits for not 

implementing air pollution prevention 

plans * * * even though they were not 

on notice at the time.’’ Id. at 68. 

Similarly, it would be unreasonable to 

penalize California by rejecting this 

corrective SIP on the basis of subpart 4 

requirements of which the State was 

unaware when we partially disapproved 

the SJV PM2.5 SIP, particularly when 

relief from mandatory sanctions would 

not be available until after the State 

completes a lengthy rulemaking process 

to adopt an entirely new plan under 

subpart 4. 

In separate rulemakings, the EPA has 

taken steps to respond to the NRDC 

decision by addressing the applicable 

requirements of subpart 4 for areas 

designated nonattainment for the 1997 

PM2.5 NAAQS and/or the 2006 PM2.5

NAAQS. For example, the EPA recently 

completed a rulemaking to classify all 

PM2.5 nonattainment areas nationwide, 

including the San Joaquin Valley, as 

‘‘moderate’’ nonattainment under 

subpart 4 and to establish a December 

31, 2014 deadline for the states to 

submit any additional SIP revisions that 

may be necessary to satisfy the 

requirements applicable to moderate 

nonattainment areas under CAA section 

189(a). See 78 FR 69806 (November 21, 

2013) (proposed rule) and 

‘‘Identification of Nonattainment 

Classification and Deadlines for 

Submission of State Implementation 

Plan (SIP) Provisions for the 1997 Fine 

Particle (PM2.5) National Ambient Air 

Quality Standard (NAAQS) and 2006 

PM2.5 NAAQS,’’ signed April 25, 2014 

(final rule, pre-publication copy). As 

explained in that rulemaking, the EPA 

recognizes that prior to the D.C. 

Circuit’s decision in NRDC, states have 

worked towards meeting the air quality 

goals of both the 1997 PM2.5 standards 

and the 2006 PM2.5 standards in 

accordance with EPA regulations and 

guidance derived from subpart 1, 

including the requirements of the 2007 

PM2.5 Implementation Rule (78 FR 

69806, 69809). Taking this history into 

account, the EPA concluded that a 

December 31, 2014 deadline would 

provide states a relatively brief but 

reasonable amount of time to ascertain 

whether and to what extent any 

additional SIP submissions would be 

needed to satisfy the applicable 

requirements of subpart 4 in a particular 

nonattainment area and to develop, 

adopt and submit any such SIPs. See id. 

The EPA explicitly stated that this 

rulemaking ‘‘does not affect any action 

that the EPA has previously taken under 

section 110(k) of the Act on a SIP for a 

PM2.5 nonattainment area.’’ Id. at 69810. 

Accordingly, California is obligated to 

consider whether and to what extent 

any additional SIP submissions may be 

required to satisfy the applicable 

requirements of subpart 4 for the 1997 

and/or 2006 PM2.5 NAAQS in the SJV 

and to develop, adopt and submit any 

such SIPs, following reasonable notice 

and public hearings, no later than 

December 31, 2014. In the meantime, 

our November 2011 final action remains 

in effect and continues to provide the 

appropriate basis for calculating the 

required quantity of emission 

reductions in this corrective SIP. We 

believe it is appropriate to address the 

NRDC decision on a prospective rather 

than retrospective basis by maintaining 

the environmental benefits of air quality 

plans that the EPA has previously 

approved while working with state and 

local agencies to supplement these prior 

submissions as necessary going forward. 

Our approval of the Contingency 

Measure SIP today does not obviate the 

State’s obligation to submit these 

additional SIP revisions, consistent with 

the requirements of subpart 4, including 

additional contingency measures as 

necessary. 

Comment 2: Earthjustice argues that 

the EPA cannot claim that the 

Contingency Measure SIP and the SJV 

PM2.5 SIP are consistent with the 

implementation rule remanded by the 

D.C. Circuit pending adoption of a new 

implementation rule. According to 

Earthjustice, subpart 4 is selfeffectuating and directly-enforceable 

and does not require EPA regulations in 

order for states to know their planning 

obligations. Additionally, Earthjustice 

states that the EPA has already adopted 

guidance interpreting subpart 4 in 

‘‘State Implementation Plans; General 

Preamble for the Implementation of 

Title I of the Clean Air Act Amendments 

of 1990’’ (57 FR 13498, April 16, 1992) 

(hereafter ‘‘General Preamble’’) and in 

‘‘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’’ (59 

FR 41998, August 16, 1994) (hereafter 

‘‘Addendum’’). According to 

Earthjustice, the requirements of subpart 

4 are plain on their face and well 

understood, and the NRDC holding 

means that these requirements have 

always applied to PM2.5 nonattainment 

plans notwithstanding the EPA’s efforts 

to avoid them. 

Response 2: It appears Earthjustice is 

arguing that NRDC compels us to 

disapprove the Contingency Measure 

SIP based on a retroactive application of 

subpart 4 requirements to the 

underlying SJV PM2.5 SIP. We disagree 

with this assertion. As explained above, 

we do not believe it would be 

reasonable to disapprove this corrective 

SIP based on a finding that the 

underlying attainment and RFP 

demonstrations in the SJV PM2.5 SIP, 

which we fully approved in 2011, now 

fail to satisfy subpart 4 requirements of 

which the State had no notice. As 

discussed in our proposal (78 FR 53113, 

53123), the Contingency Measure SIP 

corrects the deficiencies that prompted 

the partial disapproval of the SJV PM2.5

SIP in 2011. We believe our approval of 

this corrective SIP submission today is 

appropriate in light of the State’s 

reasonable reliance on the 2011 final 

action, the significant consequences of a 

disapproval based on retroactive 

application of subpart 4 requirements in 

this context, and the EPA’s separate 

rulemaking to establish reasonable 

timeframes for states to submit 

additional SIPs that may be required to 

satisfy the requirements of under 

subpart 4. See Response 1. 

The commenter does not appear to 

challenge our position that the general 

contingency measure requirement in 

subpart 1 (CAA section 172(c)(9)) 

continues to govern our evaluation of 

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Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 29331 

13As explained in our proposed rule, subpart 4 

of part D, title I of the Act contains no specific 

provision governing contingency measures for PM10

or PM2.5 nonattainment areas that supersedes the 

general contingency measure requirement for all 

nonattainment areas in CAA section 172(c)(9). 

Thus, even if we apply the subpart 4 requirements 

to our evaluation of the Contingency Measure SIP 

and disregard the provisions of the 2007 PM2.5

Implementation Rule remanded by the NRDC court, 

the general requirement for contingency measures 

in CAA section 172(c)(9) continues to apply (78 FR 

53113, 53115 n. 8). 

and action on the Contingency Measure 

SIP.13 Under the EPA’s long-standing 

policy, which pre-dates the 2007 PM2.5

Implementation Rule by more than a 

decade, contingency measures in a SIP 

should consist of available control 

measures beyond those required in the 

control strategy to attain the standards 

or demonstrate RFP, provide SIPcreditable emission reductions equal to 

approximately one year of the emission 

reductions needed for RFP, and be 

implemented without further action by 

the State. See General Preamble at 

13543 to 13544 (discussing contingency 

measures for moderate PM10

nonattainment areas); see also 

Addendum at 42014 to 42015 

(discussing contingency measures for 

serious PM10 nonattainment areas). We 

are approving the Contingency Measure 

SIP because it meets these criteria as 

applied to the SJV PM2.5 SIP and 

because it corrects the deficiencies that 

prompted the 2011 partial disapproval 

of that plan (78 FR 53113, 53123). 

Our approval of the Contingency 

Measure SIP today does not rest on a 

conclusion that compliance with the 

2007 PM2.5 Implementation Rule 

remanded by the court suffices to satisfy 

CAA requirements pending adoption of 

a new implementation rule, nor does the 

EPA believe an implementation rule is 

necessary for states to know their 

planning obligations under subpart 4. 

Indeed, although the EPA has not yet 

issued a new or revised implementation 

rule consistent with the court’s directive 

in NRDC, the EPA has established a 

December 31, 2014 deadline for all 

states with PM2.5 nonattainment areas to 

submit any additional SIPs that may be 

required under subpart 4, following 

consultation as appropriate with EPA 

regional offices. See ‘‘Identification of 

Nonattainment Classification and 

Deadlines for Submission of State 

Implementation Plan (SIP) Provisions 

for the 1997 Fine Particle (PM2.5) 

National Ambient Air Quality Standard 

(NAAQS) and 2006 PM2.5 NAAQS,’’ 

signed April 25, 2014 (final rule, prepublication copy). To the extent any 

revisions to the SJV PM2.5 SIP are 

necessary to ensure compliance with the 

requirements of subpart 4, California is 

required to adopt and submit such SIP 

revisions by December 31, 2014, 

including additional contingency 

measures as appropriate. 

Comment 3: Earthjustice comments 

that the EPA cannot claim as a basis for 

approval that the Contingency Measure 

SIP satisfies the obligations identified in 

the EPA’s 2011 final action on the SJV 

PM2.5 SIP because that plan does not 

comply with the Act. Earthjustice 

contends that the approval of the 

Contingency Measure SIP would 

‘‘compound the legal defects of the [SJV 

PM2.5 SIP]’’ and that we should act 

immediately to ‘‘call’’ the SJV PM2.5 SIP 

under CAA section 110(k)(5) because we 

now know that the plan fails to comply 

with the requirements of the Act. In the 

meantime, Earthjustice asserts that we 

cannot add to the legal defects by 

approving contingency measures that 

are based on a defective plan. In support 

of these arguments, Earthjustice cites 

Association of Irritated Residents v. 

EPA, 632 F.3d 584 (9th Cir. 2011), 

reprinted as amended on January 27, 

2012, 686 F.3d 668, further amended 

February 13, 2012 (‘‘AIR’’). 

Response 3: We disagree with these 

arguments. First, as discussed above, 

nothing in NRDC compels us to 

retroactively apply subpart 4 

requirements to the SJV PM2.5 SIP and 

to disapprove the Contingency Measure 

SIP on that basis. Absent an EPA 

rulemaking to withdraw or revise our 

November 2011 final action on the SJV 

PM2.5 SIP (76 FR 69896, November 9, 

2011), that final action remains effective 

and provides an appropriate basis for 

our evaluation of the State’s corrective 

SIP submission in accordance with the 

EPA’s long-standing policies on 

contingency measures. See Response 1. 

Second, the EPA’s discretionary ‘‘SIP 

call’’ authority in CAA section 110(k)(5) 

is not relevant to this action as we have 

not made any of the findings that would 

obligate us to ‘‘call’’ the SJV PM2.5 SIP. 

Section 110(k)(5) provides, in relevant 

part, that ‘‘[w]henever the Administrator 

finds that the applicable 

implementation plan for any area is 

substantially inadequate to attain or 

maintain the relevant [NAAQS] . . . or 

to otherwise comply with any 

requirement of [the CAA],’’ the EPA 

‘‘shall require the State to revise the 

plan as necessary to correct such 

inadequacies’’ and may establish 

reasonable deadlines, not to exceed 18 

months after providing notice to the 

State, for the submission of such plan 

revisions. CAA section 110(k)(5), 42 

U.S.C. 7410(k)(5). Should we find that 

the SJV PM2.5 SIP is ‘‘substantially 

inadequate to attain or maintain’’ the 

1997 PM2.5 NAAQS or to otherwise 

comply with any requirement of the 

Act, we would be obligated to require 

that California revise the plan as 

necessary to correct such inadequacies 

(i.e., to issue a ‘‘SIP call’’) and would be 

authorized to establish reasonable 

deadlines for the State to submit such 

plan revisions, not to exceed 18 months 

after the EPA notifies the State of the 

inadequacies. To date, however, we 

have not made any such finding under 

section 110(k)(5) with respect to the SJV 

PM2.5 SIP. The EPA believes that its 

recent rulemaking to classify all PM2.5

nonattainment areas as ‘‘moderate’’ 

nonattainment and to set a December 

31, 2014 deadline for subpart 4 SIP 

submissions provides a reasonable 

timeframe for California to develop, 

adopt and submit any additional SIP 

submissions that are necessary to 

comply with the requirements of 

subpart 4 in the San Joaquin Valley. See 

‘‘Identification of Nonattainment 

Classification and Deadlines for 

Submission of State Implementation 

Plan (SIP) Provisions for the 1997 Fine 

Particle (PM2.5) National Ambient Air 

Quality Standard (NAAQS) and 2006 

PM2.5 NAAQS,’’ signed April 25, 2014 

(final rule, pre-publication copy). Under 

CAA section 110(k)(5), the EPA retains 

the discretion to determine after this 

deadline for SIP submissions whether 

the PM2.5 SIP for the SJV is substantially 

inadequate to comply with CAA 

requirements. 

Finally, the Ninth Circuit Court of 

Appeal’s decision in AIR is inapposite. 

AIR involved our action on proposed 

revisions to the SIP for the one-hour 

ozone standard for the Los AngelesSouth Coast air basin (686 F.3d 668 at 

671). An approved SIP for the area was 

in place, but after conducting new 

modeling for the one-hour ozone 

standard, California submitted proposed 

SIP revisions, including a revised 

attainment demonstration that relied on 

additional control measures. Id. at 672– 

73. California later withdrew certain of 

the proposed additional control 

measures and the State specifically 

represented that the currently approved 

plan was not sufficient to provide for 

attainment. Id. We approved the control 

measures that had not been withdrawn. 

Id. at 673. However, we disapproved the 

revised attainment demonstration 

because California had substantially 

based it upon emission reductions 

resulting from the withdrawn control 

measures. Id. This disapproval left in 

place the existing attainment 

demonstration, which the State had 

specifically characterized as deficient. 

Id. The Ninth Circuit held that our 

action was arbitrary and capricious, 

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29332 Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 

14The 2007 PM2.5 Implementation Rule contained 

rebuttable presumptions concerning certain PM2.5

precursors applicable to attainment plans and 

control measures related to those plans. 

Specifically, in 40 CFR 51.1002(c), the EPA 

provided, among other things, that a state was ‘‘not 

required to address VOC [and ammonia] as . . . 

PM2.5 attainment plan precursor[s] and to evaluate 

sources of VOC [and ammonia] emissions in the 

State for control measures,’’ unless the State or the 

EPA provided an appropriate technical 

demonstration showing that emissions from sources 

of these pollutants ‘‘significantly contribute’’ to 

PM2.5 concentrations in the nonattainment area (40 

CFR 51.1002(c)(3), (4)). 

15CAA section 189(e) provides that control 

requirements for major stationary sources of direct 

PM10 shall also apply to PM10 precursors from those 

sources, except where the EPA determines that 

major stationary sources of such precursors ‘‘do not 

contribute significantly to PM10 levels which 

exceed the standard in the area.’’ 

because we had a duty under CAA 

section 110(l) to evaluate whether the 

SIP, as a whole, would provide for 

attainment of the NAAQS when the EPA 

approved a revision to the already 

approved SIP. Id. at 673–74. 

The circumstances here are 

significantly different from those in AIR. 

First, nothing in the record indicates 

that California considers any element of 

the currently approved SJV PM2.5 SIP 

insufficient to provide for attainment of 

the 1997 PM2.5 standards. Second, the 

Contingency Measure SIP neither 

revises nor replaces the attainment 

demonstration in the currently 

approved plan, nor does it alter any 

existing emission limitation or other 

control requirement in the applicable 

SIP. Finally, California has not 

withdrawn any control measures that 

provide emission reductions necessary 

for attainment of the 1997 PM2.5

standards; to the contrary, the 

Contingency Measure SIP expands upon 

the contingency measure portion of the 

SJV PM2.5 SIP by providing additional 

NOX, SOX, and direct PM2.5 emission 

reductions beyond those relied upon for 

RFP and attainment in the SJV PM2.5

SIP, thereby correcting the deficiency 

that we had identified in 2011 (78 FR 

5311, 53123). In sum, nothing in the 

Contingency Measure SIP revises the 

currently approved attainment 

demonstration in the SJV PM2.5 SIP, nor 

does any information in the State’s 

submissions raise a question about the 

plan’s sufficiency to provide for timely 

attainment of the 1997 PM2.5 standards. 

The AIR decision therefore is not 

pertinent to our action. 

For these reasons, we disagree with 

the commenter’s claim that our approval 

of the Contingency Measure SIP would 

‘‘compound’’ or ‘‘add to’’ existing legal 

defects in the SJV PM2.5 SIP. Because 

our approval of the Contingency 

Measure SIP strengthens the SIP and 

does not interfere with the on-going 

process for ensuring that requirements 

for RFP and attainment of the 1997 

PM2.5 NAAQS are met, we find that it 

complies with CAA section 110(l). To 

the extent California is obligated to 

submit additional SIP revisions 

consistent with subpart 4 requirements 

by December 31, 2014, these 

outstanding obligations do not preclude 

approval today of the Contingency 

Measure SIP as adequate to correct prior 

SIP deficiencies that triggered sanctions 

clocks. See Response 1. 

Comment 4: Earthjustice comments 

that the SJV PM2.5 SIP fails to properly 

address PM2.5 precursor emissions and 

that the EPA approved the plan based 

on the ‘‘illegal presumption’’ in the 

2007 PM2.5 Implementation Rule that 

VOC and ammonia need not be 

controlled. Earthjustice argues that 

because the NRDC court has rejected 

this presumption, without a showing 

that sources of these precursor 

emissions do not contribute 

significantly to PM2.5 levels, they are 

subject to controls and therefore subject 

to separate contingency measure targets. 

Earthjustice further argues that the San 

Joaquin Valley APCD has made no such 

demonstration and that ‘‘the record 

currently before EPA suggests that these 

emissions do contribute significantly to 

ambient levels even though the District 

believes that a strategy focusing on 

oxides of nitrogen is better policy.’’ In 

support of these arguments, Earthjustice 

references our responses to comments 

regarding VOCs in our final action on 

the SJV PM2.5 SIP (76 FR 69896, 69902). 

Response 4: To the extent the 

commenter is challenging the November 

2011 final action on the SJV PM2.5 SIP 

based on the D.C. Circuit’s January 2013 

decision in NRDC, such a challenge may 

only be brought in the U.S. Court of 

Appeals for the appropriate circuit 

within specified timeframes under CAA 

section 307(b). We are today acting on 

a SIP revision submitted by the State to 

correct SIP deficiencies that prompted 

sanctions, and comments concerning 

the analyses underlying the November 

2011 action on the SJV PM2.5 SIP are not 

germane to this action. See Response 1. 

As discussed above, the November 

2011 final action on the SJV PM2.5 SIP 

remains in effect and we believe that it 

would be unreasonable to retroactively 

apply the requirements of subpart 4 to 

our prior evaluation of the PM2.5

precursor assessment in the SJV PM2.5

SIP. Although the EPA has taken steps 

in a separate rulemaking to respond to 

the NRDC decision regarding subpart 4 

and is requiring all states with PM2.5

nonattainment areas, including 

California, to submit SIP revisions as 

necessary to address subpart 4 

requirements no later than December 31, 

2014, that rulemaking specifically notes 

that it does not affect any action that the 

EPA has previously taken under CAA 

section 110(k) on a SIP for a PM2.5

nonattainment area. See 78 FR 69806, 

69810 (November 21, 2013) and 

‘‘Identification of Nonattainment 

Classification and Deadlines for 

Submission of State Implementation 

Plan (SIP) Provisions for the 1997 Fine 

Particle (PM2.5) National Ambient Air 

Quality Standard (NAAQS) and 2006 

PM2.5 NAAQS,’’ signed April 25, 2014 

(final rule, pre-publication copy). 

Accordingly, the RFP demonstration in 

the SJV PM2.5 SIP remains the 

appropriate basis for our evaluation of 

the specific types and amounts of 

emission reductions provided by the 

Contingency Measure SIP at this time. 

See Response 1. 

Even if the EPA takes the view that 

NRDC compels us to retroactively apply 

the requirements of subpart 4 to our 

prior evaluation of the PM2.5 precursor 

assessment in the SJV PM2.5 SIP, it is not 

clear at this time how such a 

reevaluation would affect the 

assessment of required contingency 

measures. The D.C. Circuit remanded 

the EPA’s 2007 PM2.5 Implementation 

Rule, including the presumptions 

concerning VOC and ammonia in 40 

CFR 51.1002.14 While expressly 

declining to decide the specific 

challenge to these presumptions (see 

706 F.3d at 437, n. 10 (D.C. Cir. 2013)), 

the court cited CAA section 189(e) 15 to 

support its observation that ‘‘[a]mmonia 

is a precursor to fine particulate matter, 

making it a precursor to both PM2.5 and 

PM10’’ and that ‘‘[f]or a PM10

nonattainment area governed by subpart 

4, a precursor is presumptively 

regulated.’’ 706 F.3d at 436, n. 7 (citing 

CAA section 189(e), 42 U.S.C. 7513a(e)). 

The NRDC court did not, however, 

address whether and how it was 

substantively necessary to regulate any 

specific precursor in a particular PM2.5

nonattainment area. Moreover, even 

assuming both VOC and ammonia must 

be regulated for purposes of attaining 

the 1997 PM2.5 standards in the SJV, it 

is not clear what collection of control 

measures for which specific precursors 

would ultimately be necessary to satisfy 

the requirements in subpart 4 

concerning reasonably available control 

measures (CAA section 189(a)(1)(C)), 

best available control measures (CAA 

section 189(b)(1)(B)), or quantitative 

milestones demonstrating RFP (CAA 

section 189(c)). See, e.g., General 

Preamble at 13540 to 13541 (discussing 

technological feasibility, cost of control, 

and ‘‘de minimis’’ emission levels 

among factors to be considered in 

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Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 29333 

16See n. 12, supra. 

17 In response to comments on the SJV PM2.5 SIP, 

we discussed the 2009 approval of Rule 4901 for 

PM10 BACM purposes as relevant context, but the 

Agency’s approval of the RACM demonstration in 

the SJV PM2.5 SIP did not rely on this prior action 

(76 FR 69896, 69904 and 69906, November 9, 2011). 

determining RACM and RACT for a 

particular PM10 nonattainment area); see 

also Addendum at 42011 to 42014 

(distinguishing BACM from RACM 

standard and discussing factors to be 

considered in determining BACM and 

BACT for a particular PM10

nonattainment area, including 

technological and economic feasibility). 

Given that it is thus currently 

impossible to identify the precise 

collection of control measures that 

would be necessary in a new subpart 4 

plan, let alone to quantify the emission 

reductions that these measures would 

collectively achieve and then calculate 

the reductions that would be required 

for associated contingency measure 

purposes,16 we do not believe it would 

be reasonable to penalize the State at 

this time for failure to carry out these 

tasks in the past. The State and District 

must first address these issues as 

appropriate through adoption of a SIP 

revision satisfying the requirements of 

subpart 4, which is due December 31, 

2014. 

Under the commenter’s read of NRDC, 

relief from mandatory sanctions for SIP 

deficiencies identified prior to the 

NRDC decision would be unavailable to 

California until it completes lengthy 

State and local rulemaking processes to 

develop and adopt an entirely new 

attainment plan that satisfies the 

requirements of subpart 4, requirements 

that are not yet due and that we have 

not, to date, identified as bases for plan 

disapproval. We decline to read the 

court’s decision in a way that would 

lead to such an inequitable and 

retroactive result. 

Comment 5: Earthjustice claims that 

the alleged legal defects of the SJV PM2.5

SIP preclude the EPA from determining 

that the proposed contingency measures 

are ‘‘beyond or in addition to’’ the core 

control requirements of the CAA. 

Earthjustice argues that this problem is 

most apparent in the EPA’s treatment of 

the contingency provision in the 

District’s residential woodburning rule, 

Rule 4901. Citing our November 2011 

responses to comments on the SJV PM2.5

SIP (76 FR 69896, 69904), Earthjustice 

states that we did not require 

implementation of this measure as a 

basic control measure on the basis that 

it would not ‘‘advance attainment’’ by at 

least a year and argues that this 

justification ‘‘is no longer sufficient if 

the area is subject to the [BACM] 

requirement, as it must be given that it 

has failed to attain within four years of 

its designation as nonattainment for 

PM2.5.’’ Earthjustice asserts that BACM 

are more stringent than reasonably 

available controls and cannot be 

rejected based on whether or not they 

advance attainment, and that credit for 

the Rule 4901 contingency measure is 

therefore inappropriate. Furthermore, 

Earthjustice asserts that our 2009 

approval of Rule 4901 as BACM for 

PM10 is ‘‘not sufficient for concluding 

that improvements such as those 

included in the proposed contingency 

measure are beyond [BACM]’’ as the 

necessary demonstration has not been 

made and ‘‘there is no reason to believe 

that the lower trigger included in the 

proposed contingency measure is not 

technically feasible or cost-effective.’’ 

Noting that the problems associated 

with PM2.5 in the Valley are different 

than those associated with PM10, 

Earthjustice cites the preamble to the 

EPA’s 2007 PM2.5 Implementation Rule 

(72 FR 20617) to support its conclusion 

that ‘‘past determinations on the 

adequacy of control measures cannot 

substitute for a new demonstration for a 

new state implementation plan.’’ 

Response 5: As noted above, it 

appears the commenter is challenging 

the November 2011 final action on the 

SJV PM2.5 SIP based on the D.C. 

Circuit’s January 2013 decision in 

NRDC. Such a challenge, however, may 

only be brought in the U.S. Court of 

Appeals for the appropriate circuit 

within specified timeframes under CAA 

section 307(b). We are today acting on 

a SIP revision submitted by the State to 

correct SIP deficiencies that prompted 

sanctions, and comments concerning 

the analyses underlying the EPA’s 

November 2011 action on the SJV PM2.5

SIP are not germane to this action. See 

Response 1. 

We nonetheless respond below to the 

substance of the commenter’s claims. To 

the extent the commenter is arguing that 

our action today on the Contingency 

Measure SIP constitutes a determination 

that the contingency provision in Rule 

4901 is ‘‘beyond BACM,’’ this is 

incorrect. We have not yet made any 

determination concerning BACM for 

PM2.5 in the SJV and make no such 

determination today, as the area has not 

been classified as a ‘‘Serious Area’’ area 

under subpart 4 and the State therefore 

has not submitted a Serious Area plan 

for SJV for any PM2.5 standard. See CAA 

section 189(b)(1)(B) (requiring that 

‘‘each State in which all or part of a 

Serious Area is located’’ submit a plan 

for such area that includes BACM for 

the control of PM10) and section 

189(b)(2) (requiring submission of 

BACM provisions ‘‘no later than 18 

months after reclassification of the area 

as a Serious Area’’). Although 

Earthjustice suggests that we are relying 

on the Agency’s prior (2009) approval of 

Rule 4901 as BACM for the control of 

PM10 as a basis for today’s action, this 

suggestion is also incorrect. As part of 

the 2011 action on the SJV PM2.5 SIP, we 

concluded that the contingency 

provision in Rule 4901 was not a 

required RACM under CAA section 

172(c)(1) 17 and that it qualified for 

consideration as a contingency measure 

because it provided emission reductions 

beyond those relied upon for RFP or 

attainment in that plan. See 76 FR 

41338, 41358 (July 13, 2011) and 76 FR 

69896, 69904 and 69906 (November 9, 

2011). We disagree with the 

commenter’s claim that we must now 

also conclude that the contingency 

provision in Rule 4901 is not a required 

BACM under CAA section 189(b)(1)(B). 

Likewise, we disagree with the 

commenter’s contention that our 

November 2011 rationale for not 

requiring implementation of this 

measure as a basic control measure (i.e., 

on the basis that it would not ‘‘advance 

attainment’’ by at least a year) is no 

longer sufficient because the area has 

failed to attain within four years of its 

designation as nonattainment for PM2.5

and is, therefore, now subject to the 

BACM requirement. Under the CAA, 

BACM is required only for 

nonattainment areas classified as 

serious (CAA section 189(b)(1)(B)). The 

SJV area is currently classified as 

moderate nonattainment. See 

‘‘Identification of Nonattainment 

Classification and Deadlines for 

Submission of State Implementation 

Plan (SIP) Provisions for the 1997 Fine 

Particle (PM2.5) National Ambient Air 

Quality Standard (NAAQS) and 2006 

PM2.5 NAAQS,’’ signed April 25, 2014 

(final rule, pre-publication copy). 

Whether or not the SJV area has attained 

the 1997 PM2.5 standards to date, in the 

absence of an EPA rulemaking to 

reclassify the area as a Serious Area 

under subpart 4, the requirement to 

submit a Serious Area plan that assures 

implementation of BACM does not 

apply (CAA sections 189(b)(1)(B) and 

189(b)(2)). 

We note also that the commenter’s 

reference to CAA section 188(c)(1) to 

support its contention that ‘‘[u]nder 

subpart 4, nonattainment areas relying 

on reasonably available controls have 

four years to attain’’ is not accurate. 

Section 188(c)(1) states that ‘‘[f]or a 

Moderate Area, the attainment date 

shall be as expeditiously as practicable 

but no later than the end of the sixth 

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29334 Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 

18Under CAA sections 188(b)(2) and 179(c), the 

EPA must determine no later than 6 months 

following the applicable attainment date for the 

1997 PM2.5 standards in the SJV (April 5, 2015), 

based on air quality data, whether the area attained 

the standards by that date. Should we determine 

that the SJV area has failed to attain by April 5, 

2015, the area will be reclassified by operation of 

law as a Serious Area and the State will be required 

to submit plan provisions consistent with the 

requirements of subpart 4 within 18 months. See 

CAA sections 188(b)(2) and 189(b)(2). 

calendar year after the area’s 

designation as nonattainment, except 

that, for areas designated nonattainment 

for PM10 under section [107(d)(4) of the 

Act], the attainment date shall not 

extend beyond December 31, 1994’’ 

(CAA section 188(c)(1), 42 U.S.C. 

7513(c)(1)). It appears that the 

commenter is interpreting the exception 

specified in the last clause of this 

provision to mean that the SJV PM2.5

nonattainment area must attain the 1997 

PM2.5 NAAQS within four years of its 

designation as nonattainment for these 

standards. By its terms, however, this 

provision establishes an attainment date 

that has long passed (December 31, 

1994) and applies only to those areas 

that were designated by operation of law 

under CAA section 107(d)(4) as 

nonattainment for the PM10 NAAQS, 

pursuant to the CAA Amendments of 

1990. See CAA section 107(d)(4)(B), 42 

U.S.C. 7407(d)(4)(B) (establishing 

nonattainment designations by 

operation of law for certain areas 

identified by the EPA as ‘‘Group I’’ areas 

prior to November 15, 1990 and areas 

where air quality monitoring data 

showed a violation of the PM–10 

NAAQS before January 1, 1989). This 

provision and the December 31, 1994 

attainment date specified therein do not 

apply for purposes of establishing the 

applicable attainment date for an area 

designated nonattainment for the 1997 

PM2.5 NAAQS in 2005, such as the San 

Joaquin Valley. 

If and when the EPA reclassifies the 

SJV area from ‘‘moderate’’ to ‘‘serious’’ 

nonattainment for a PM2.5 standard 

under subpart 4,18 California will be 

obligated to submit, no later than 18 

months after such reclassification, SIP 

provisions to assure that BACM for 

PM2.5 shall be implemented no later 

than 4 years after the date the area is 

reclassified, among other things (CAA 

sections 189(b)(1)(B) and 189(b)(2)). 

Contingency measures for any new or 

revised plan submitted to address 

subpart 4 requirements would have to 

provide emission reductions beyond 

those relied upon in the control strategy 

for that plan (i.e., for a ‘‘Serious Area,’’ 

measures that are ‘‘beyond BACM’’). 

We note that the possibility that a 

measure may be required as RACM or 

BACM in the future does not preclude 

its use as a contingency measure now. 

Likewise, an approval of a measure as 

a contingency measure now does not 

preclude a future determination that it 

is a required RACM or BACM under 

subpart 4. As the EPA explained in the 

Addendum, ‘‘if all or part of the 

moderate area plan contingency 

measures become part of the required 

serious area control measures (i.e., 

BACM), then additional contingency 

measures must be submitted whether or 

not the previously submitted 

contingency measures had already been 

implemented.’’ Addendum at 42015. 

Comment 6: Earthjustice comments 

that because the RFP demonstration will 

change under a plan that complies with 

subpart 4, the assessment of the controls 

required for demonstrating RFP will 

also change. Earthjustice argues that 

without a new RFP demonstration, the 

EPA cannot determine whether the 

contingency measures are surplus to 

measures that are otherwise required by 

the Act. 

Response 6: As explained above, we 

do not believe it would be reasonable to 

disapprove this corrective SIP based on 

a finding that the underlying attainment 

and RFP demonstrations in the SJV 

PM2.5 SIP, demonstrations that we fully 

approved in 2011, now fail to satisfy 

subpart 4 requirements of which the 

State had no notice. As discussed in our 

proposal (78 FR 53113, 53123), the 

Contingency Measure SIP corrects the 

deficiencies that prompted the partial 

disapproval of the SJV PM2.5 SIP in 

2011. We believe our approval of this 

corrective SIP submission today is 

appropriate in light of the State’s 

reasonable reliance on our 2011 final 

action, the significant consequences of a 

disapproval based on retroactive 

application of subpart 4 requirements in 

this context, and the EPA’s separate 

rulemaking to establish reasonable 

timeframes for states to submit 

additional SIPs that may be required 

under subpart 4 consistent with the 

NRDC decision. See Response 1. 

B. Comments Regarding Emission 

Reductions From Waiver Measures and 

Incentive Grant Programs 

Comment 7: Earthjustice comments 

that ‘‘Congress was not willing to let 

states merely ‘promise’ to protect air 

quality’’ and that CAA section 110(a) 

requires states to formulate plans for 

meeting and maintaining compliance 

with the NAAQS which ‘‘include 

enforceable emission limitations and 

other control measures, means or 

techniques (including economic 

incentives such as fees, marketable 

permits, and auctions of emissions 

rights) . . . as may be necessary or 

appropriate to meet the applicable 

requirements of this chapter. . . .’’ 

Earthjustice states that even those 

nontraditional techniques for reducing 

pollution (economic incentives, 

marketable permits, and auctions of 

emissions rights) authorized by section 

110(a)(2)(A) must be ‘‘enforceable,’’ 

meaning that the EPA and citizens must 

have the ability to bring enforcement 

actions to assure compliance. 

Earthjustice further asserts that ‘‘[a] state 

cannot claim SIP credit from control 

measures that shield pollution sources 

from independent enforcement actions.’’ 

In support of these statements, 

Earthjustice references the EPA’s 

statements in ‘‘State Implementation 

Plans; General Preamble for the 

Implementation of Title I of the Clean 

Air Act Amendments of 1990’’ (57 FR 

13498, April 16, 1992) (hereafter 

‘‘General Preamble’’); ‘‘Improving Air 

Quality with Economic Incentive 

Programs,’’ U.S. EPA, Office of Air and 

Radiation, January 2001 (EPA–452/R– 

01–001) (hereafter ‘‘2001 EIP 

Guidance’’); and the February 4, 2013 

docket memorandum for a rulemaking 

entitled ‘‘State Implementation Plans: 

Response to Petition for Rulemaking; 

Findings of Substantial Inadequacy; and 

SIP Calls to Amend Provisions Applying 

to Excess Emissions During Periods of 

Startup, Shutdown, and Malfunction’’ 

(EPA–HQ–OAR–2012–0322) (hereafter 

‘‘2013 SSM Memo’’). 

Response 7: We agree generally with 

the statement that the CAA requires 

states to submit implementation plans 

including measures that the EPA and 

citizens can enforce. As the commenter 

notes, the EPA has long interpreted 

CAA section 110(a) to mean that control 

measures and other means of achieving 

emission reductions in a SIP, including 

‘‘nontraditional techniques for reducing 

pollution [such as] economic incentives, 

marketable permits, and auctions of 

emissions rights,’’ must be 

‘‘enforceable’’ (General Preamble at 

13556). We disagree, however, with 

Earthjustice’s suggestion that the 

emission reductions identified in the 

Contingency Measure SIP are not 

enforceable because they are based on 

‘‘measures that shield pollution sources 

from independent enforcement actions.’’ 

As explained below in Response 8 

through Response 15, all of the 

measures relied upon in the 

Contingency Measure SIP are directly 

enforceable by the State and/or District 

against pollution sources, and the 

District’s commitments concerning the 

incentive-based emission reductions are 

also enforceable by the EPA and citizens 

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19The term ‘‘affirmative defense’’ means, in the 

context of an enforcement proceeding, a response 

or defense put forward by a defendant, regarding 

which the defendant has the burden of proof, and 

the merits of which are independently and 

objectively evaluated in a judicial or administrative 

proceeding. See 1999 SSM Memo, Attachment at 2, 

n. 4. 

under the CAA. Nothing in the 

Contingency Measure SIP ‘‘shields’’ 

pollution sources from enforcement 

actions brought by the State or District. 

See Response 8 through Response 15. 

Comment 8: Earthjustice highlights 

both the EPA’s enforcement authority in 

CAA section 113 and the citizen suit 

provision in CAA section 304 as 

indication that ‘‘Congress was not 

willing to rely on states alone to 

guarantee that the claimed emission 

reductions would occur or be enforced.’’ 

Citing Pennsylvania v. Del. Valley 

Citizens’ Council for Clean Air, 478 U.S. 

546, 560 (1986), Earthjustice states that 

‘‘[t]he Supreme Court has found that 

‘Congress enacted 304 specifically to 

encourage citizen participation in the 

enforcement of standards and 

regulations established under this Act, 

and intended the section to afford 

citizens very broad opportunities to 

participate in the effort to prevent and 

abate air pollution.’ ’’ Additionally, 

Earthjustice states that ‘‘[t]his notion 

that SIPs must be built upon emission 

reductions that are capable of being 

enforced by EPA and citizens pervades 

a number of EPA policies regarding SIP 

approvability.’’ For example, 

Earthjustice states that the ‘‘EPA will 

not approve control measures that 

include ‘director discretion’ to define or 

redefine compliance requirements’’ and 

that the EPA also will ‘‘not allow SIPs 

to include state affirmative defenses that 

would foreclose EPA or other 

enforcement.’’ In support of these 

statements, Earthjustice references EPA 

statements in the 2013 SSM Memo and 

in a memorandum dated September 20, 

1999, from Steven A. Herman, Assistant 

Administrator for Enforcement and 

Compliance, to Regional 

Administrators, entitled ‘‘State 

Implementation Plans (SIPs): Policy 

Regarding Excess Emissions During 

Malfunctions, Startup, and Shutdown’’ 

(hereafter ‘‘1999 SSM Guidance’’). 

Earthjustice asserts that the two main 

contingency measures relied upon by 

the District—excess emission reductions 

from State mobile source measures and 

emission reductions achieved through 

incentive programs—fail to meet these 

criteria for enforceability. 

Response 8: We agree generally with 

the commenter’s statement that SIPs 

must be built upon emission reductions 

that the EPA and citizens can enforce 

under CAA sections 113 and 304, 

respectively. We disagree, however, 

with the commenter’s assertion that the 

contingency measures relied upon by 

the District contain any impermissible 

‘‘director discretion’’ or ‘‘affirmative 

defense’’ provisions that may bar EPA or 

citizen enforcement of these measures 

or otherwise fail to meet the Act’s 

requirements for enforceability. 

As Earthjustice correctly states, the 

EPA has stated in long-standing policy 

that it would not approve into a SIP any 

‘‘director discretion’’ or ‘‘affirmative 

defense’’ provision that would bar the 

EPA or citizens from enforcing 

applicable SIP requirements, as such 

provisions would be inconsistent with 

the regulatory scheme established in 

title I of the Act. See 2013 SSM Memo 

at 11–13 (quoting 1999 SSM Guidance 

at 3). Although some degree of state/

local agency discretion in a SIP rule 

may be permissible if explicit and 

replicable procedures within the rule 

tightly define how the discretion will be 

exercised to assure equivalent emission 

reductions, the EPA has long stated that 

SIP provisions that include unbounded 

discretion for state personnel 

unilaterally to change or to grant 

variances from applicable SIP 

provisions are problematic and 

inconsistent with the requirements of 

the CAA. See ‘‘Guidance Document for 

Correcting Common VOC and Other 

Rule Deficiencies (a.k.a. The Little 

Bluebook),’’ U.S. EPA Region IX, 

originally issued April 1991, revised 

August 21, 2001; see also 78 FR 12460, 

12485 to 12486 (February 22, 2013) 

(proposed findings of substantial 

inadequacy and SIP calls to amend 

provisions applying to excess emissions 

during periods of startup, shutdown, 

and malfunction) and 2013 SSM Memo 

at 13. With respect to ‘‘affirmative 

defenses,’’ 19 the EPA has stated in longstanding policy that a state may include 

in a SIP certain narrowly drawn 

affirmative defense provisions, which 

qualifying sources may utilize in 

enforcement proceedings under 

specified circumstances, but that a SIP 

may not contain any defense to 

injunctive relief or any provision that 

would enable a state to bar EPA or 

citizen enforcement of applicable 

requirements. See 2013 SSM Memo at 

11–13; see also 1999 SSM Guidance 

at 2. 

Nothing in the Contingency Measure 

SIP authorizes either CARB or the 

District to modify the requirements of 

the SIP. As explained below in 

Response 13, the District has submitted 

enforceable commitments to account for 

specified amounts of NOX and PM2.5

emission reductions to be achieved in 

2015 through incentive programs and to 

adopt and submit substitute measures 

on a fixed schedule if the identified 

programs fail to achieve these emission 

reductions in 2015. Since the EPA is 

approving these commitments into the 

SIP, they are federally enforceable 

requirements of an applicable 

implementation plan, which cannot be 

modified except through a SIP revision 

adopted by the State after reasonable 

notice and public hearing and approved 

by the EPA through notice-andcomment rulemaking. See CAA sections 

110(l) and 302(q), 5 U.S.C. section 553, 

and 40 CFR 51.105. Additionally, 

nothing in the Contingency Measure SIP 

creates grounds for an affirmative 

defense that could be used in 

proceedings to enforce the District’s SIP 

commitments, nor does the Contingency 

Measure SIP contain any provision that 

could bar EPA or citizen enforcement of 

these SIP commitments. We therefore 

disagree with the commenter’s 

suggestion that the Contingency 

Measure SIP contains any ‘‘director 

discretion’’ or ‘‘affirmative defense’’ 

provision that would undermine the 

enforceability of these emission 

reductions. We explain more fully 

below how the District’s SIP 

commitments can be enforced by the 

EPA and citizens. See Response 10 

through Response 15. 

In addition, the EPA disagrees with 

the commenter’s assertion that the 

CARB mobile source control measures 

relied upon in the Contingency Measure 

SIP are not creditable as contingency 

measures. As explained in Response 9 

below, the EPA has historically allowed 

emission reduction credit for California 

motor vehicle emissions standards that 

have received waivers of federal 

preemption pursuant to the waiver 

approval process of CAA section 209 

(‘‘waiver measures’’), without requiring 

California to submit the standards 

themselves to the EPA for approval as 

part of the California SIP. See, e.g., 76 

FR 69896 (November 9, 2011) (final rule 

partially approving and partially 

disapproving SJV PM2.5 SIP) and 77 FR 

12652 (March 1, 2012) (final rule 

approving SJV 8-hour Ozone SIP). 

Waiver measures are substituted for 

federal mobile source control measures 

in California, and they become 

enforceable by the State once the EPA 

issues a waiver or authorization. Based 

on considerations of permanence, 

enforceability, and quantifiability, the 

EPA continues to believe that it is 

appropriate and consistent with the 

CAA to allow California to rely on 

emission reductions resulting from 

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29336 Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 

20Specifically, the commenter states: ‘‘As EPA is 

well aware from previous comments on the 2008 

PM2.5 Plan (incorporated by reference here), most of 

the CARB mobile source control measures relied 

upon here to provide excess emission reductions 

are not actually approved into the state 

implementation plan. As a result, they are not 

enforceable by EPA or through independent citizen 

enforcement. . . .’’ See letter dated September 27, 

2013, from Paul Cort, at 7. Given the context of this 

comment and the broad range of issues raised by 

commenters during the EPA’s previous rulemaking 

on the 2008 PM2.5 Plan (referred to herein as the 

‘‘SJV PM2.5 SIP’’), we assume Earthjustice intended 

here to incorporate by reference only those of its 

own comments addressing the EPA’s treatment of 

CARB mobile source control measures in the SIP 

(see letter dated August 12, 2011, from Paul Cort, 

Staff Attorney, and Sarah Jackson, Research 

Associate, Earthjustice, ‘‘Comments on EPA’s 

Partial Approval/Disapproval of the San Joaquin 

Valley’s State Implementation Plan for Fine 

Particulate Matter, Docket # EPA–R09–OAR–2010– 

0516’’). 

waiver measures in SIPs. See 

Response 9. 

Comment 9: Earthjustice states that 

most of the CARB mobile source control 

measures relied upon to provide excess 

emission reductions are not approved 

into the SIP and, therefore, are not 

enforceable by the EPA or through 

independent citizen enforcement. 

Earthjustice states that the EPA is aware 

of this issue from previous comments on 

the 2008 PM2.5 Plan and incorporates 

those comments by reference.20

Earthjustice contends that because ‘‘the 

State is free to amend or rescind these 

measures altogether without EPA 

oversight,’’ these emission reductions 

are not creditable as contingency 

measures. 

Response 9: We disagree with the 

commenter’s argument that emission 

reductions from CARB mobile source 

control measures may not be credited as 

contingency measures. The EPA 

believes that credit for emission 

reductions from implementation of 

California mobile source rules that are 

subject to CAA section 209 waivers 

(‘‘waiver measures’’) is appropriate 

notwithstanding the fact that such rules 

are not approved as part of the 

California SIP. In our July 13, 2011 

proposed action on the SJV PM2.5 SIP 

and the technical support document for 

that proposal, we explained why we 

believe such credit is appropriate. See 

76 FR 41338, 41345 (July 13, 2011) and 

‘‘Technical Support Document and 

Responses to Comments, Final Rule on 

the San Joaquin Valley 2008 PM2.5 State 

Implementation Plan,’’ U.S. EPA Region 

9, September 30, 2011 (hereafter ‘‘2011 

Final TSD’’) at 101–105. Historically, 

the EPA has granted credit for the 

waiver measures because of special 

Congressional recognition, in 

establishing the waiver process in the 

first place, of the pioneering California 

motor vehicle control program and 

because amendments to the CAA (in 

1977) expanded the flexibility granted 

to California in order ‘‘to afford 

California the broadest possible 

discretion in selecting the best means to 

protect the health of its citizens and the 

public welfare,’’ (H.R. Rep. No. 294, 

95th Congr., 1st Sess. 301–2 (1977)). In 

allowing California to take credit for the 

waiver measures notwithstanding the 

fact that the underlying rules are not 

part of the California SIP, the EPA 

treated the waiver measures similarly to 

the Federal motor vehicle control 

requirements, which the EPA has 

always allowed States to credit in their 

SIPs without submitting the program as 

a SIP revision. As we explained in the 

2011 Final TSD (p. 87), credit for 

Federal measures, including those that 

establish on-road and nonroad 

standards, notwithstanding their 

absence in the SIP, is justified by 

reference to CAA section 110(a)(2)(A), 

which establishes the following content 

requirements for SIPs: ‘‘. . . enforceable 

emission limitations and other control 

measures, means, or techniques 

(including economic incentives such as 

fees, marketable permits, and auctions 

of emissions rights), . . . , as may be 

necessary or appropriate to meet the 

applicable requirements of this 

chapter.’’ (emphasis added.) Federal 

measures are permanent, independently 

enforceable (by the EPA and citizens), 

and quantifiable without regard to 

whether they are approved into a SIP, 

and thus the EPA has never found such 

measures to be ‘‘necessary or 

appropriate’’ for inclusion in SIPs to 

meet the applicable requirements of the 

Act. CAA section 209 establishes a 

process under which the EPA allows 

California’s waiver measures to 

substitute for Federal measures, and like 

the Federal measures for which they 

substitute, the EPA has historically 

found, and continues to find, based on 

considerations of permanence, 

enforceability, and quantifiability, that 

such measures are not ‘‘necessary or 

appropriate’’ for California to include in 

its SIP to meet the applicable 

requirements of the Act. 

First, with respect to permanence, we 

note that, to maintain a waiver, CARB’s 

on-road waiver measures can be relaxed 

only to a level of aggregate equivalence 

to the Federal Motor Vehicle Control 

Program (FMVCP) (CAA section 

209(b)(1)). In this respect, the FMVCP 

acts as a partial backstop to California’s 

on-road waiver measures (i.e., absent a 

waiver, the FMVCP would apply in 

California). Likewise, Federal nonroad 

vehicle and engine standards act as a 

partial backstop for corresponding 

California nonroad waiver measures. 

The constraints of the waiver process 

thus serve to limit the extent to which 

CARB can relax the waiver measures for 

which there are corresponding the EPA 

standards, and thereby serve an antibacksliding function similar in 

substance to those established for SIP 

revisions in CAA sections 110(l) and 

193. Meanwhile, the growing 

convergence between California and 

EPA mobile source standards 

diminishes the difference in the 

emission reductions reasonably 

attributed to the two programs and 

strengthens the role of the Federal 

program in serving as an effective 

backstop to the State program. In other 

words, with the harmonization of EPA 

mobile source standards with the 

corresponding State standards, the 

Federal program is becoming essentially 

a full backstop to most parts of the 

California program. 

Second, as to enforceability, we note 

that the waiver process itself bestows 

enforceability onto California to enforce 

the on-road or nonroad standards for 

which the EPA has issued the waiver. 

CARB has as long a history of 

enforcement of vehicle/engine 

emissions standards as the EPA, and 

CARB’s enforcement program is equally 

as rigorous as the corresponding EPA 

program. The history and rigor of 

CARB’s enforcement program lends 

assurance to California SIP revisions 

that rely on the emission reductions 

from CARB’s rules in the same manner 

as the EPA’s mobile source enforcement 

program lends assurance to other state’s 

SIPs in their reliance on emission 

reductions from the FMVCP. While it is 

true that citizens and the EPA are not 

authorized to enforce California waiver 

measures under the Clean Air Act (i.e., 

because they are not in the SIP), citizens 

and the EPA are authorized to enforce 

EPA standards in the event that vehicles 

operate in California without either 

California or EPA certification. 

As to quantifiability, the EPA’s 

historical practice has been to give SIP 

credit for motor-vehicle-related waiver 

measures by allowing California to 

include motor vehicle emissions 

estimates made by using California’s 

EMFAC (and its predecessors) motor 

vehicle emissions factor model in SIP 

inventories. The EPA verifies the 

emission reductions from motorvehicle-related waiver measures through 

review and approval of EMFAC, which 

is updated from time to time by 

California to reflect updated methods 

and data, as well as newly-established 

emissions standards. (Emission 

reductions from the EPA’s motor vehicle 

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Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 29337 

21The EPA’s historical practice in allowing 

California credit for waiver measures 

notwithstanding the absence of the underlying rules 

in the SIP is further documented by reference to the 

EPA’s review and approval of a May 1979 revision 

to the California SIP entitled, ‘‘Chapter 4, California 

Air Quality Control Strategies.’’ In our proposed 

approval of the 1979 revision (44 FR 60758, October 

22, 1979), we describe the SIP revision as outlining 

California’s overall control strategy, which the State 

had divided into vehicular sources and nonvehicular (stationary source) controls. As to the 

former, the SIP revision discusses vehicular control 

measures as including technical control measures 

and transportation control measures. The former 

refers to the types of measures we refer to herein 

as waiver measures, as well as fuel content 

limitations, and a vehicle inspection and 

maintenance program. The 1979 SIP revision 

included several appendices, including appendix 

4–E, which refers to ‘‘ARB vehicle emission 

controls included in title 13, California 

Administrative Code, chapter 3 . . . ,’’ including 

the types of vehicle emission standards we refer to 

herein as waiver measures; however, California did 

not submit the related portions of the California 

Administrative Code (CAC) to the EPA as part of 

the 1979 SIP revision submittal. With respect to the 

CAC, the 1979 SIP revision states: ‘‘The following 

appendices are portions of the California 

Administrative Code. Persons interested in these 

appendices should refer directly to the code.’’ Thus, 

the State was clearly signaling its intention to rely 

on the California motor vehicle control program but 

not to submit the underlying rules to the EPA as 

part of the SIP. In 1980, we finalized our approval 

as proposed (45 FR 63843, September 28, 1980). 

standards are reflected in an analogous 

model known as MOVES.) The EMFAC 

model is based on the motor vehicle 

emissions standards for which 

California has received waivers from the 

EPA but accounts for vehicle 

deterioration and many other factors. 

The motor vehicle emissions estimates 

themselves combine EMFAC results 

with vehicle activity estimates, among 

other considerations. See the 1982 Bay 

Area Air Quality Plan, and the related 

the EPA rulemakings approving the plan 

(see 48 FR 5074 (February 3, 1983) for 

the proposed rule and 48 FR 57130 

(December 28, 1983) for the final rule) 

as an example of how the waiver 

measures have been treated historically 

by the EPA in California SIP actions.21

The SJV PM2.5 SIP was developed using 

a version of the EMFAC model referred 

to as EMFAC2007, which the EPA has 

approved for use in SIP development in 

California. (73 FR 3464, January 18, 

2008). Thus, the emission reductions 

that are from the California on-road 

‘‘waiver measures’’ and that are 

estimated through use of EMFAC are as 

verifiable as are the emission reductions 

relied upon by states other than 

California in developing their SIPs 

based on estimates of motor vehicle 

emissions made through the use of the 

MOVES model. 

Moreover, the EPA’s waiver review 

and approval process is analogous to the 

SIP approval process. First, CARB 

adopts its emissions standards following 

notice and comment procedures at the 

state level, and then submits the rules 

to the EPA as part of its waiver request. 

When the EPA receives new waiver 

requests from CARB, the EPA publishes 

a notice of opportunity for public 

hearing and comment and then 

publishes a decision in the Federal 

Register following the public comment 

period. Once again, in substance, the 

process is similar to that for SIP 

approval and supports the argument 

that one hurdle (the waiver process) is 

all Congress intended for California 

standards, not two (waiver process plus 

SIP approval process). Second, just as 

SIP revisions are not effective until 

approved by the EPA, changes to 

CARB’s rules (for which a waiver has 

been granted) are not effective until the 

EPA grants a new waiver, unless the 

changes are ‘‘within the scope’’ of a 

prior waiver and no new waiver is 

needed. Third, both types of final 

actions by the EPA—i.e., final actions 

on California requests for waivers and 

final actions on state submittals of SIPs 

and SIP revisions—may be challenged 

under section 307(b)(1) of the CAA in 

the appropriate United States Court of 

Appeals. 

In the 2011 Final TSD (pp. 102–103), 

we indicated that we believe that 

section 193 of the CAA, the general 

savings clause added by Congress in 

1990, effectively ratified our longstanding practice of granting credit for 

the California waiver rules because 

Congress did not insert any language 

into the statute rendering the EPA’s 

treatment of California’s motor vehicle 

standards inconsistent with the Act. 

Rather, Congress extended the 

California waiver provisions to most 

types of nonroad vehicles and engines, 

once again reflecting Congressional 

intent to provide California with the 

broadest possible discretion in selecting 

the best means to protect the health of 

its citizens and the public welfare. 

Requiring the waiver measures to 

undergo SIP review in addition to the 

statutory waiver process is not 

consistent with providing California 

with the broadest possible discretion as 

to on-road and nonroad vehicle and 

engine standards, but rather, would add 

to the regulatory burden California faces 

in establishing and modifying such 

standards, and thus would not be 

consistent with Congressional intent. In 

short, we believe that Congress intended 

California’s mobile source rules to 

undergo only one the EPA review 

process (i.e., the waiver process), not 

two. 

In summary, the EPA has historically 

given SIP credit for waiver measures in 

our approval of attainment 

demonstrations and other planning 

requirements such as reasonable further 

progress and contingency measures 

submitted by California. We continue to 

believe that section 193 ratifies our 

long-standing practice of allowing credit 

for California’s waiver measures 

notwithstanding the fact they are not 

approved into the SIP, and correctly 

reflects Congressional intent to provide 

California with the broadest possible 

discretion in the development and 

promulgation of on-road and nonroad 

vehicle and engine standards. Further, 

even without considering section 193, 

the Act’s structure, evolution, and 

provision for the waiver of federal 

preemption for California mobile source 

emissions standards all support the 

EPA’s long-standing interpretation of 

the CAA to allow California to rely on 

emission reductions resulting from 

waiver measures when developing SIP 

emission inventories, related attainment 

demonstrations, and contingency 

measures, even though the waiver 

measures are not in the SIP itself. 

Comment 10: Referencing the 

District’s commitments to monitor, 

assess, and report on program 

implementation and to remedy emission 

reduction shortfalls, Earthjustice 

characterizes the ‘‘contingency 

measure’’ as an ‘‘enforceable 

commitment to adopt measures as 

needed’’ and asserts that such 

‘‘committal SIPs’’ have repeatedly been 

rejected by the courts. More 

fundamentally, Earthjustice argues, 

‘‘this commitment does not create 

enforceable emission limits or control 

measures as required by section 

110(a)(2)(A)’’ but rather ‘‘creates an 

enforceable duty to adopt such emission 

limits or control measures as 

contingency measures’’ (emphases in 

original). Earthjustice contends that this 

is a plain violation of section 

110(a)(2)(A). Moreover, Earthjustice 

contends, ‘‘this duty already exists 

under section 172(c)(9), so this 

proposed contingency measure adds 

nothing beyond what is already required 

by law.’’ 

Response 10: We disagree with the 

commenter’s characterization of the 

District’s commitments in the 

Contingency Measure SIP as a 

‘‘committal SIP.’’ Courts have rejected 

the EPA’s use of the ‘‘conditional 

approval’’ procedure in CAA section 

110(k)(4) to permit states to postpone 

statutory SIP deadlines by submitting 

‘‘committal SIPs’’ that contain no 

specific remedial measures but instead 

merely promise to adopt such measures 

in the future. See, e.g., Natural 

Resources Defense Council, Inc. v. EPA, 

et al, 22 F.3d 1125 (D.C. Cir. 1994) and 

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29338 Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 

22As we explained in our proposed rule (78 FR 

53113, 53115), contingency measures may include 

Federal, state and local measures already scheduled 

for implementation that provide emission 

reductions in excess of those needed to provide for 

RFP or expeditious attainment. Nothing in the 

statute precludes a state from implementing such 

measures before they are triggered. See, e.g., LEAN 

v. EPA, 382 F.3d 575 (5th Cir. 2004) (upholding 

contingency measures that were previously 

required and implemented where they were in 

excess of the attainment demonstration and RFP 

SIP). The EPA believes that its interpretation of the 

contingency measure requirement in section 

172(c)(9) of the Act is reasonable because 

reductions from these contingency measures are 

continuing in nature. 

23See n. 46, infra (discussing December 5, 2015 

deadline for implementation of substitute measures 

under District’s SIP commitment). 24See n. 31, infra. 

Sierra Club v. EPA, 356 F.3d 296 (D.C. 

Cir. 2004). The District’s commitments 

in the Contingency Measure SIP, 

however, are not promises to adopt 

measures in the future. Instead, these 

SIP commitments identify on-going 

emission reductions and current 

obligations that the District must satisfy 

on an ongoing basis.22 Specifically, the 

District’s SIP commitments obligate the 

District to track its ongoing 

implementation of the Prop 1B and Carl 

Moyer Program requirements for 

specific projects relied upon for SIP 

credit and to submit reports to the EPA, 

on an annual basis, that include detailed 

information regarding the type, location, 

and duration of each such project. See 

Response 13 (referencing SJVUAPCD 

Board Resolution No. 13–6–18 at pg. 3 

and Rule 9610 at Section 4.5). As 

explained in supporting materials 

submitted by the District, all of the 

projects relied upon for SIP credit in the 

Contingency Measure SIP are subject to 

‘‘already-executed, legally binding 

contracts’’ which ensure that the 

District’s claimed emission reductions 

are currently being achieved. See 

SJVUAPCD, ‘‘Quantification of 

Contingency Reductions for the 2008 

PM2.5 Plan’’ (June 20, 2013) at 7, 8. 

Although the District’s SIP 

commitments include an enforceable 

requirement to submit substitute 

measures in the event of a shortfall in 

expected emission reductions for 2015, 

this secondary obligation does nothing 

to undermine the District’s current 

obligation to monitor, assess, and report 

on its implementation of the Prop 1B 

and Carl Moyer Program for the 

identified projects and the actual 

emission reductions achieved through 

these projects, consistent with the 

applicable requirements of Rule 9610. 

To the contrary, the secondary 

commitment to adopt and submit 

substitute measures is provided as an 

additional safeguard to ensure that, if 

the projects relied upon for SIP credit 

fail to achieve the expected emission 

reductions by the applicable 

implementation deadline (i.e., by 

December 5, 2015), the District will be 

required to implement a timely remedy, 

i.e., to adopt and submit substitute 

measures that achieve equivalent 

amounts of emission reductions by the 

same implementation deadline.23 In 

sum, the District’s SIP commitments 

establish current obligations as part of 

an enforceable sequence of actions 

leading to compliance with a December 

5, 2015 emission reduction obligation, 

which the EPA or citizens may enforce 

under the CAA. See Response 13. 

We also disagree with the 

commenter’s characterization of the 

District’s SIP commitments as a ‘‘duty to 

adopt’’ emission limits or control 

measures that violates the requirements 

of CAA section 110(a)(2)(A). CAA 

section 110(a)(2)(A) requires that each 

SIP ‘‘include enforceable emission 

limitations and other control measures, 

means, or techniques (including 

economic incentives such as fees, 

marketable permits, and auctions of 

emissions rights), . . . as may be 

necessary or appropriate to meet the 

applicable requirements of [the Act].’’ 

CAA section 110(a)(2)(A); see also CAA 

section 172(c)(6) (establishing 

substantively identical requirements for 

nonattainment areas). Thus, in addition 

to ‘‘emission limitations’’ and ‘‘control 

measures,’’ the Act allows for SIPs to be 

built upon other ‘‘means or techniques’’ 

as may be necessary or appropriate to 

provide for timely attainment of the 

NAAQS. See BCCA Appeal Group v. 

EPA, 355 F.3d 817 (5th Cir. 2003), reh’g 

denied, 2004 U.S. App. LEXIS 215 (5th 

Cir., January 8, 2004) (noting expansion 

of the EPA’s authority under section 

110(a)(2)(A) following Congress’ 

addition of the ‘‘means’’ and 

‘‘techniques’’ and ‘‘as appropriate’’ 

language as part of the 1990 CAA 

Amendments). Moreover, as explained 

in the EPA’s proposed rule, both CAA 

section 110(a)(2)(A) and section 

172(c)(6) explicitly provide for the use 

of economic incentives as one tool for 

states to use to achieve attainment of the 

NAAQS. See 78 FR 53113, 53118 

(quoting reference in CAA section 

110(a)(2)(A) to ‘‘economic incentives 

such as fees, marketable permits, and 

auctions of emissions rights’’). Nothing 

in the Act prohibits the District’s use of 

economic incentives as part of a 

contingency measure plan that ensures 

an appropriate level of emission 

reduction progress if attainment is not 

achieved and additional planning by the 

State is needed. 

The incentive programs relied upon 

in the Contingency Measure SIP provide 

emission reductions in excess of those 

relied on for RFP or for expeditious 

attainment in the SJV PM2.5 SIP (78 FR 

53113, 53123). These incentive 

programs do not alter any existing 

control requirement in the applicable 

SIP and do not interfere with any 

applicable requirement concerning 

attainment and RFP or any other 

applicable requirement of the Act. Id. 

The District has submitted a SIP 

commitment to comply with detailed 

requirements of the Prop 1B program 

and Carl Moyer Program guidelines 

through a sequence of actions leading to 

compliance with a December 2015 

emission reduction obligation, which 

the EPA or citizens may enforce under 

CAA sections 113 and 304, respectively. 

See Response 13. For all of these 

reasons, we conclude that the District’s 

SIP commitments are both enforceable 

‘‘emission standards or limitations’’ as 

defined in CAA section 304(f) 24 and 

appropriate ‘‘means or techniques’’ for 

achieving NOX and PM2.5 emission 

reductions under CAA sections 

110(a)(2)(A) and 172(c)(6), and that 

these enforceable commitments are 

permissible components of a plan 

submitted to satisfy the attainment 

contingency measure requirement in 

CAA section 172(c)(9). 

Comment 11: Earthjustice asserts that 

the EPA’s reliance on the ‘‘enforceable 

commitment’’ to adopt control measures 

as an enforceable contingency measure 

is also a plain violation of section 

172(c)(9), which requires that 

contingency measures ‘‘take effect . . . 

without further action by the State or 

the Administrator.’’ Citing the EPA’s 

interpretive statements in the 

Addendum (59 FR 41998, August 16, 

1994), Earthjustice contends that ‘‘[t]he 

commitment to adopt new rules and 

measures is a blatant attempt to allow 

the District to defer adoption of 

enforceable contingency measures until 

after the attainment failure occurs’’ and 

that ‘‘[t]his undermines the entire 

purpose of the contingency measure 

requirement.’’ Earthjustice concludes 

that the incentive program contingency 

measure therefore cannot be approved. 

Response 11: We disagree. As 

explained in Response 10 above, the 

District’s SIP commitments contain both 

a current obligation for the District to 

monitor, assess, and report on its 

ongoing implementation of the Prop 1B 

and Carl Moyer Program requirements 

with respect to specified projects and a 

secondary obligation for the District to 

implement a timely remedy, should the 

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25See General Preamble at 13512, 13543–13544 

and the Addendum at 42014–42015 (‘‘EPA 

generally expects all actions needed to effect full 

implementation of the [contingency] measures to 

occur within 60 days after EPA notifies the State of 

the area’s failure [to attain]’’). 

26Under CAA section 179(c), the EPA must 

determine whether the SJV area has attained the 

1997 PM2.5 NAAQS ‘‘as expeditiously as 

practicable’’ and no later than 6 months after the 

applicable attainment date, based on the area’s air 

quality as of the attainment date. Because the 

applicable attainment date for the 1997 PM2.5

NAAQS in the SJV area is April 5, 2015, the EPA 

must make this determination regarding attainment 

for the SJV no later than October 5, 2015. 

27See n. 46, infra (discussing December 5, 2015 

deadline for implementation of substitute measures 

under District’s SIP commitment). In our proposed 

rule, we erroneously stated that following an EPA 

finding that the SJV area has failed to attain the 

1997 PM2.5 NAAQS, the District would be obligated 

to verify through the 2016 annual demonstration 

report whether the required amounts of NOX and 

direct PM2.5 reductions had occurred or to adopt 

and submit substitute rules consistent with its 

Board commitment (78 FR 53113, 53122). We 

hereby clarify that the 2014 annual demonstration 

report (not the 2016 report) is the vehicle through 

which the District must either demonstrate that the 

required amounts of emission reductions will 

continue through 2015 or identify substitute 

measures to be implemented by December 5, 2015. 

See Rule 9610, Section 4.4 (requiring that each 

annual demonstration report ‘‘identify and quantify 

SIP commitment shortfalls, if any, and remedies for 

addressing said shortfalls’’). We note, however, that 

under Rule 9610 the District remains subject to an 

ongoing obligation to retrospectively assess the 

performance of its incentive programs for potential 

future enhancements and that the 2016 annual 

demonstration report should, therefore, contain 

information adequate to verify whether the required 

amounts of NOX and direct PM2.5 reductions 

occurred in 2015. See Rule 9610, Section 4.7. 

identified projects fail to achieve the 

expected emission reductions. These 

SIP obligations take effect without 

further action by the State or the 

Administrator, in accordance with CAA 

section 172(c)(9). 

Additionally, consistent with the 

EPA’s longstanding interpretation of the 

contingency measure requirement in 

CAA section 172(c)(9) as requiring that 

all actions needed to effect full 

implementation of contingency 

measures occur within 60 days after the 

EPA notifies the State of a failure to 

attain the NAAQS by the applicable 

attainment date,25 the District’s SIP 

commitments ensure that all actions 

needed to effect full implementation of 

the incentive-based emission reductions 

will occur no later than December 5, 

2015. Should the EPA find based on the 

2014 annual demonstration report that 

the required amounts of NOX and PM2.5

emission reductions may not continue 

through 2015 as projected, the EPA will 

promptly notify the District of its 

potential obligation to implement 

substitute measures consistent with its 

Board commitment no later than 

December 5, 2015, so that the District 

has ample time for any rulemakings that 

may be necessary to meet this 

implementation deadline. Subsequently, 

should the EPA determine that the SJV 

area has failed to attain the 1997 PM2.5

NAAQS by the applicable attainment 

date of April 5, 2015,26 the District will 

be obligated under its SIP commitment 

either to confirm that the Prop 1B and 

Carl Moyer Program projects identified 

in the 2014 and 2015 annual 

demonstration reports will continue to 

achieve the required amounts of NOX

and PM2.5 emission reductions in 

December 2015 as projected, or to adopt 

and submit substitute measures 

achieving equivalent amounts of 

emission reductions (4.15 tpd of NOX

reductions and 0.10 tpd of direct PM2.5

reductions) no later than December 5, 

2015.27 See SJVUAPCD Board 

Resolution No. 13–6–18 at p. 3. 

Earthjustice suggests that only those 

‘‘substitute’’ measures that the District 

would be obligated to implement in the 

event of an emission reduction shortfall 

constitute enforceable contingency 

measures, and that the EPA’s approval 

of this SIP commitment therefore 

impermissibly allows the District to 

delay adoption of required measures. As 

discussed above, however, the 

enforceable contingency measure here is 

the District’s SIP commitment in its 

entirety, which includes a current 

obligation to monitor, assess, and report 

on the District’s ongoing 

implementation of the Prop 1B and Carl 

Moyer Program requirements with 

respect to specified projects which 

collectively are expected to achieve 4.15 

tpd of NOX reductions and 0.10 tpd of 

direct PM2.5 reductions in 2015. This 

current obligation constitutes an 

enforceable measure in itself, and 

should the District fail to fully account 

for the required amounts of NOX and 

direct PM2.5 emission reductions in 

annual demonstration reports submitted 

in 2014 and 2015 that satisfy the 

applicable requirements of Rule 9610, 

the EPA may make a finding of failure 

to implement the SIP under CAA 

section 179(a) and either the EPA or 

citizens may take enforcement action 

under CAA section 113 or 304, 

respectively. See Response 12 and 

Response 13. The secondary obligation 

to adopt and submit ‘‘substitute’’ 

measures is an additional safeguard to 

be effectuated only if the District fails to 

satisfy its current obligation to monitor, 

assess, and report on its ongoing 

emission reduction responsibilities. We 

therefore disagree with the commenter’s 

assertion that the District’s SIP 

commitment allows it to ‘‘defer 

adoption of enforceable contingency 

measures until after the attainment 

failure occurs.’’ 

In sum, the District’s SIP 

commitments establish current 

obligations on the District to take action 

well before the applicable attainment 

date to achieve the required emission 

reductions by December 5, 2015, 

whether through annual demonstration 

reports submitted in 2014 and 2015 or 

through adoption and submission of 

substitute measures to be implemented 

by December 5, 2015. Given the 

District’s long history of successful 

implementation and enforcement of 

Prop 1B and Carl Moyer Program grants 

and the detailed requirements in the 

associated incentive program 

guidelines, as discussed in our technical 

support document for the proposed rule 

(see U.S. EPA Region 9, ‘‘Technical 

Support Document, Proposed Approval 

of Clean Air Act Section 172(c)(9) 

Contingency Measures, San Joaquin 

Valley State Implementation Plan for 

Attainment of the 1997 PM2.5

Standards,’’ August 15, 2013 (hereafter 

‘‘Proposal TSD’’)) and further in these 

responses to comments, we expect that 

the District’s implementation of these 

program requirements for the identified 

projects will achieve the District’s 

claimed 4.15 tpd of NOX reductions and 

0.10 tpd of direct PM2.5 reductions in 

2015. However, should the EPA find 

based on documentation submitted by 

the District in 2014 that the required 

emission reductions may not occur in 

2015 as projected, the District will be 

obligated under its SIP commitment to 

adopt and submit substitute measures 

achieving the required emission 

reductions by December 5, 2015. We 

find these SIP commitments adequate to 

ensure that an appropriate level of 

emission reduction progress will 

continue to be made should the SJV area 

fail to attain the 1997 PM2.5 NAAQS by 

the applicable attainment date of April 

5, 2015. 

Comment 12: Earthjustice asserts that 

the incentive-based emission reductions 

are unenforceable by the EPA or citizens 

and that the EPA itself has described 

such emission reductions as ‘‘not 

enforceable against individual sources,’’ 

‘‘voluntary,’’ and subject to a cap on SIP 

credit. 

Response 12: We disagree with the 

commenter’s assertion that these 

emission reductions are unacceptable 

because they are unenforceable by the 

EPA or citizens. As the commenter 

notes, the EPA has described 

‘‘voluntary’’ measures as those that are 

not directly enforceable against 

individual sources and has 

recommended presumptive limits 

(sometimes referred to as ‘‘caps’’) on the 

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29340 Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 

28A measure can be both emerging and voluntary. 

See 2004 Emerging and Voluntary Measures Policy 

at 1. 

29A voluntary mobile source emission reduction 

program (VMEP) is a mechanism that supplements 

traditional emission reduction strategies through 

voluntary, nonregulatory changes in local 

transportation sector activity levels or changes in 

in-use vehicle and engine fleet composition, among 

other things. See 1997 VMEP at 3. 

credit that may be allowed in a SIP for 

such measures. Such voluntary 

measures may be credited for SIP 

purposes only where the State submits 

other enforceable mechanisms to ensure 

that the required emission reductions 

are achieved, subject to EPA and citizen 

enforcement under the CAA. As 

discussed further below, the incentivebased emission reductions relied upon 

in the Contingency Measure SIP fall 

within the EPA’s presumptive limits on 

credit for voluntary measures and are 

consistent with the EPA’s 

recommendations for voluntary mobile 

source emission reduction programs. 

Additionally, these incentive-based 

emission reductions are consistent with 

the EPA’s recommendations for 

discretionary economic incentive 

programs. We discuss below EPA’s 

guidance on both voluntary measures 

and economic incentive programs (EIPs) 

and our rationale for concluding that the 

Contingency Measure SIP adequately 

addresses the applicable requirements 

of the Act, as described in these 

guidance documents. 

The EPA believes that it is 

appropriate and consistent with the Act 

to allow a limited percentage of the total 

emission reductions needed to satisfy 

any statutory requirement to come from 

‘‘voluntary’’ or ‘‘emerging’’ measures or 

other nontraditional measures and 

programs, where the State commits to 

certain safeguards and satisfies the 

statutory criteria for SIP approval. See, 

e.g., ‘‘Guidance on Incorporating 

Voluntary Mobile Source Emission 

Reduction Programs in State 

Implementation Plans (SIPs),’’ October 

24, 1997 (hereafter ‘‘1997 VMEP’’) at 4– 

7; ‘‘Incorporating Emerging and 

Voluntary Measures in a State 

Implementation Plan,’’ September 2004 

(hereafter ‘‘2004 Emerging and 

Voluntary Measures Policy’’) at 8–12; 

and ‘‘Guidance on Incorporating 

Bundled Measures in a State 

Implementation Plan,’’ August 16, 2005 

(hereafter ‘‘2005 Bundled Measures 

Guidance’’) at 7–12. The EPA has 

described ‘‘voluntary measures’’ as 

measures or strategies that are not 

directly enforceable against individual 

sources, and ‘‘emerging measures’’ as 

those that are more difficult to 

accurately quantify than traditional SIP 

emission reduction measures.28 See 

1997 VMEP at 4; 2004 Emerging and 

Voluntary Measures Policy at 13, 19; 

and 2005 Bundled Measures Guidance 

at 2. ‘‘Voluntary’’ measures for 

stationary and area sources may include 

consumer-oriented programs to reduce 

the use of high-emitting paints or other 

consumer products during the ozone 

season; mechanisms to encourage 

pollution prevention or process changes 

at unregulated emission points; and 

voluntary wood stove changeout 

programs. See 2004 Emerging and 

Voluntary Measures Policy at 19, 20. 

‘‘Voluntary’’ mobile source emission 

reduction programs (VMEPs) 29 may 

include employer-based transportation 

management programs to manage 

employee commute and travel behavior; 

area-wide rideshare incentives to 

encourage commuters to use alternatives 

to single-occupant vehicles; and auto 

restricted zones, no-drive days, or other 

limitations on vehicle use in a given 

geographic area. See 1997 VMEP at 

Attachment 1. ‘‘Emerging’’ measures 

include activities that indirectly reduce 

emissions by promoting more efficient 

energy use or that promote renewable 

resources (e.g., use of solar power, wind 

power, or biomass) and activities that 

improve air quality by means other than 

emission reductions (e.g., heat island 

measures that reduce criteria pollutant 

concentrations by lowering ambient 

temperatures). See 2004 Emerging and 

Voluntary Measures Policy at 14–15. 

Where a State submits a VMEP or other 

voluntary or emerging measure for SIP 

approval, the EPA evaluates it for 

consistency with four fundamental 

‘‘integrity elements’’ and with SIP 

attainment and reasonable further 

progress (RFP) requirements, and to 

ensure that it does not interfere with 

other requirements of the Act. See 1997 

VMEP at 6; see also 78 FR 53113, 53118 

and Proposal TSD at 22–24. 

In light of the increasing incremental 

cost associated with further stationary 

and mobile source emission reductions 

and the difficulty of identifying such 

additional sources of emission 

reductions, the EPA encourages 

innovative approaches to generating 

emission reductions through voluntary 

and emerging measures and other 

nontraditional measures and programs. 

See 1997 VMEP at 4–5; 2004 Emerging 

and Voluntary Measures Policy at 9; and 

2005 Bundled Measures Guidance at 7. 

The EPA also recognizes, however, that 

these nontraditional measures raise 

novel issues related to enforceability 

and quantification of the associated 

emission reductions. Accordingly, the 

EPA’s policies addressing 

nontraditional measures provide for 

some flexibility in meeting established 

SIP requirements for enforceability and 

quantification, provided the State takes 

clear responsibility for ensuring that the 

emission reductions necessary to meet 

applicable CAA requirements are 

achieved. See 1997 VMEP at 5–7; 2004 

Emerging and Voluntary Measures 

Policy at 9; 2005 Bundled Measures 

Guidance at 7; and ‘‘Roadmap for 

Incorporating Energy Efficiency/

Renewable Energy Policies and 

Programs into State and Tribal 

Implementation Plans,’’ July 2012 

(hereafter ‘‘2012 Roadmap for EE/RE 

Programs’’) at 37–38. Importantly, the 

EPA has consistently stated that any 

voluntary or other nontraditional 

measure submitted for SIP credit must 

be accompanied by an appropriate 

enforceable ‘‘backstop’’ commitment 

from the State to monitor emission 

reductions achieved and to rectify any 

shortfall in a timely manner. See, e.g., 

1997 VMEP at 4–5; 2004 Emerging and 

Voluntary Measures Policy at 8–12; 

2005 Bundled Measures Guidance at 7– 

12; and ‘‘Guidance on SIP Credits for 

Emission Reductions from ElectricSector Energy Efficiency and Renewable 

Energy Measures,’’ August 5, 2004 

(hereafter ‘‘2004 Electric-Sector EE/RE 

Guidance’’) at 6–7. Thus, although the 

State is not necessarily responsible for 

implementing a program dependent on 

voluntary actions, the State is obligated 

to monitor, assess and report on the 

implementation of any such program 

and the associated emission reductions, 

and to remedy emission reduction 

shortfalls in a timely manner should the 

voluntary measure not achieve the 

projected emission reductions. See 1997 

VMEP at 6–7. The EPA believes that 

voluntary measures, in conjunction with 

the enforceable commitment to monitor 

emission reductions achieved and 

rectify any shortfall, meet the SIP 

control measure requirements of the 

Act. See 1997 VMEP at 5 and 2004 

Emerging and Voluntary Measures 

Policy at 8–9. 

Given the innovative nature of these 

nontraditional measures, the EPA has 

recommended ‘‘presumptive’’ limits on 

the amounts of emission reductions 

from such measures that may be 

credited in a SIP. Specifically, for 

VMEPs, the EPA has identified a 

presumptive limit of three percent (3%) 

of the total projected future year 

emission reductions required to attain 

the appropriate NAAQS, and for any 

particular SIP submittal to demonstrate 

attainment or maintenance of the 

NAAQS or progress toward attainment 

(RFP), 3% of the specific statutory 

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Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 29341 

30Section 113 of the CAA authorizes the EPA to 

issue notices and compliance orders, assess 

administrative penalties, and bring civil actions 

against any ‘‘person,’’ including a State, who ‘‘has 

violated or is in violation of any requirement or 

prohibition of an applicable implementation plan. 

. . .’’ CAA section 113(a)(1)–(2), 42 U.S.C. 

7413(a)(1)–(2); CAA section 302(e), 42 U.S.C. 

7602(e) (defining ‘‘person’’ to include a State or 

political subdivision thereof). ‘‘Applicable 

implementation plan’’ is defined in CAA section 

302(q), in relevant part, as ‘‘the portion (or portions) 

of the implementation plan, or most recent revision 

thereof, which has been approved under section 

110 of [title I of the Act] . . . and which 

implements the relevant requirements of [the Act].’’ 

42 U.S.C. 7602(q). 

31CAA section 304(a)(1) authorizes any person to 

bring a civil action against any ‘‘person,’’ including 

a State, ‘‘who is alleged to have violated or to be 

in violation of . . . an emission standard or 

limitation. . . .’’ 42 U.S.C. 7604(a)(1); CAA section 

302(e), 42 U.S.C. 7602(e) (defining ‘‘person’’ to 

include a State or political subdivision thereof). An 

‘‘emission standard or limitation’’ is defined in 

section 304(f), in relevant part, to mean ‘‘a schedule 

or timetable of compliance’’ which is in effect 

under the Act ‘‘or under an applicable 

implementation plan.’’ 42 U.S.C. 7604(f)(1). 

‘‘Schedule and timetable of compliance’’ is broadly 

defined in section 302(p) to mean ‘‘a schedule of 

required measures including an enforceable 

sequence of actions or operations leading to 

compliance with an emission limitation, other 

limitation, prohibition, or standard.’’ 42 U.S.C. 

7602(p). 

32The District Governing Board’s commitments 

are also enforceable against the State through 

CARB’s adoption of the Contingency Measure SIP. 

See State of California, Air Resources Board, ‘‘San 

Joaquin Valley PM2.5 Contingency Measures 

Update,’’ Resolution 13–30 (June 27, 2013) (‘‘the 

Board hereby adopts the PM2.5 Contingency 

Measures Update as a revision to the California SIP 

and directs the Executive Officer to transmit it to 

the U.S. EPA’’ as a SIP revision). Throughout this 

document, references to enforcement against the 

District include enforcement against the State, 

which has responsibility for ensuring adequate 

implementation of the SIP consistent with CAA 

section 110(a)(2)(E). 

33The EPA has promulgated regulations for 

‘‘statutory EIPs’’ required under CAA sections 

182(g), 187(d)(3), or 187(g) and has issued guidance 

for ‘‘discretionary EIPs.’’ See generally 40 CFR part 

51, subpart U; 59 FR 16690 (April 7, 1994); and 

2001 EIP Guidance. A ‘‘discretionary EIP’’ is any 

EIP submitted to the EPA as an implementation 

plan revision for purposes other than to comply 

with the statutory requirements of CAA sections 

182(g)(3), 182(g)(5), 187(d)(3), or 187(g) (40 CFR 

51.491). In today’s action, we address only the 

requirements that apply to discretionary EIPs as the 

Contingency Measure SIP does not contain any 

statutory EIP. 

requirement. See 1997 VMEP at 5. As 

explained in the 2001 EIP Guidance, the 

EPA recommended this 3% cap (per 

pollutant) on the credit allowed for 

VMEPs because states are ‘‘not required 

to play a direct role in implementing 

these programs, the programs are not 

directly enforceable against 

participating parties, and there may [be] 

less experience in quantifying the 

emission benefits from these programs.’’ 

2001 EIP Guidance at 158. For voluntary 

stationary and area source measures, the 

EPA has identified a presumptive limit 

of 6% of the total amount of emission 

reductions required for RFP, attainment, 

or maintenance demonstration 

purposes. See 2004 Emerging and 

Voluntary Measures Policy at 9 and 

2005 Bundled Measures Guidance at 8. 

These limits are presumptive in that the 

EPA may approve emission reductions 

from voluntary or other nontraditional 

measures in excess of the presumptive 

limits where the State provides a clear 

and convincing justification for such 

higher amounts, which the EPA would 

review on a case-by-case basis. See id. 

The incentive-based emission 

reductions in the Contingency Measure 

SIP are consistent with the EPA’s 

recommendations in the 1997 VMEP. 

First, the Contingency Measure SIP and 

related support documents contain the 

State’s and District’s demonstrations 

that the claimed incentive-based 

emission reductions are quantifiable, 

surplus, enforceable and permanent 

consistent with EPA policy. See 

Proposal TSD at 29–42. Second, the SIP 

submission contains enforceable 

commitments by the District to monitor, 

assess and report on its implementation 

of specified portions of the Carl Moyer 

and Prop 1B programs and the 

associated emission reductions, and to 

remedy emission reduction shortfalls in 

a timely manner should these programs 

fail to achieve the projected amounts 

(i.e., 4.15 tpd of NOX reductions and 

0.10 tpd of direct PM2.5 reductions) in 

2015. See 78 FR 53113, 53121–53122 

and Proposal TSD at 42–44. These 

commitments become federally 

enforceable by the EPA under CAA 

section 113 30 and by citizens under 

CAA section 304 31 upon the EPA’s 

approval of the commitments into the 

SIP. Thus, although neither the EPA nor 

citizens can enforce these emission 

reductions directly against sources, as a 

result of today’s action the EPA and 

citizens may enforce these emission 

reductions against the District,32

pursuant to the District’s SIP-approved 

commitments. See Proposal TSD at 42– 

44; see also Response 13 below 

(discussing EPA and citizen 

enforcement of SIP commitments under 

the CAA). Third, the incentive-based 

emission reductions relied upon in the 

Contingency Measure SIP amount to 

less than two percent of the total 

projected NOX reductions and less than 

one percent of the total projected PM2.5

reductions needed to attain the 1997 

PM2.5 NAAQS in the San Joaquin Valley 

by April 5, 2015 (78 FR 53113, 53121, 

n. 29). These amounts of emission 

reductions fall within the EPA’s 

recommended 3% cap (per pollutant) on 

the credit allowed for VMEPs. Finally, 

the incentive-based emission reductions 

do not interfere with requirements of 

the CAA and are consistent with the 

attainment and RFP requirements in the 

approved SJV PM2.5 SIP (78 FR 53113, 

53123 (discussing the EPA’s evaluation 

of the Contingency Measure SIP in 

accordance with CAA section 110(l)). 

Additionally, as explained in our 

proposed rule, the EPA evaluated the 

incentive-based emission reductions in 

the Contingency Measure SIP in 

accordance with the Agency’s guidance 

on discretionary economic incentive 

programs (EIPs),33 specifically 

‘‘financial mechanism EIPs’’ (78 FR 

53113, 53118, August 28, 2013). The 

EPA’s approach to discretionary EIPs 

differs in several respects from its 

approach to ‘‘voluntary’’ and 

‘‘emerging’’ measures. A discretionary 

EIP uses market-based strategies to 

encourage the reduction of emissions 

from stationary, area, and/or mobile 

sources in an efficient manner. See 2001 

EIP Guidance at 3. To qualify for 

approval as a discretionary EIP, 

emission reductions or actions leading 

to reductions must be enforceable either 

by the State or by the EPA, and the State 

must be directly responsible for 

ensuring that program elements are 

implemented. See id. at 157–158 (states 

may use the 2001 EIP Guidance where 

‘‘[a]ctions and/or emission reductions 

by identifiable sources are enforceable 

by [the State] and/or by the EPA’’). 

Additionally, the emission reductions 

resulting from an EIP must be 

quantifiable with a higher degree of 

certainty than the reductions resulting 

from an emerging measure. See 2004 

Emerging and Voluntary Measures 

Policy at 5. Given these more rigorous 

approval criteria, the EPA’s presumptive 

limits on SIP credit for voluntary and 

emerging measures do not apply to 

discretionary EIPs. See 2001 EIP 

Guidance at 158 (‘‘[states] may use the 

EIP guidance to implement programs 

which will generate emission reductions 

beyond the 3 percent limit’’); see also 

2004 Emerging and Voluntary Measures 

Policy at 6 (‘‘EIP measures are not 

subject to a percentage limitation that 

applies to voluntary measures’’). 

A ‘‘financial mechanism EIP’’ is an 

EIP that indirectly reduces emissions by 

increasing costs for high emitting 

activities—e.g., through subsidies 

targeted at promoting pollutionreducing activities or products. See 

2001 EIP Guidance at 119–122 (Chapter 

8.0). The EPA has identified several 

attributes that may make subsidy 

financial mechanism EIPs successful, 

including: (1) The relevant 

governmental body possesses legal 

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34These State and District enforcement 

authorities distinguish both the Prop 1B program 

and the Carl Moyer Program from an entirely 

‘‘voluntary’’ measure, which depends on actions by 

individual sources that cannot be enforced. See, 

e.g., 2001 EIP Guidance at 157–58 (describing 

VMEPs as ‘‘innovative mobile source air quality 

programs that are voluntary or that are operated by 

a non-governmental entity’’ and distinguishing 

these from EIPs, for which the State is ‘‘directly 

responsible for ensuring that program elements are 

implemented’’). 

35The Contingency Measure SIP relies on 

emission reductions from incentive programs that 

apply only to mobile emission sources— 

specifically, ‘‘on-road vehicle replacement’’ projects 

funded through the Prop 1B program and ‘‘off-road 

vehicle replacement’’ projects funded through the 

Carl Moyer Program (78 FR 53113, 53120). 

authority to provide subsidies; (2) the 

subsidies address activities reasonably 

related to actual emissions or potential 

emissions; (3) where projected emission 

reductions are based on changes in 

behavior, methods for verifying that 

such reductions have taken place to the 

degree projected are generally accepted 

as unbiased and trustworthy; and (4) if 

needed, adequate penalty provisions are 

in place to ensure that the subsidy is 

used as expected. See 2001 EIP 

Guidance at 27 (‘‘Attributes That Make 

Subsidy Financial Mechanism EIPs 

Successful’’). 

As explained further below, the 

incentive-based emission reductions in 

the Contingency Measure SIP are 

consistent with the EPA’s 

recommendations for ‘‘financial 

mechanism EIPs’’ in the 2001 EIP 

Guidance. First, CARB and the District 

are directly responsible for ensuring that 

the Prop 1B program and Carl Moyer 

Program are implemented in accordance 

with State law. See 2010 Prop 1B 

guidelines at 1–4 (‘‘Overview’’) and 

2011 Carl Moyer Program Guidelines at 

Chapter 1 (‘‘Program Overview’’). 

Second, these incentive funds address 

activities reasonably related to actual or 

potential air pollutant emissions by 

requiring grant recipients to purchase 

and operate newer, cleaner vehicles or 

equipment in place of older, morepolluting vehicles or equipment, subject 

to detailed contract requirements. See 

Response 13. Third, the 2008 and 2010 

Prop 1B guidelines and the 2011 Carl 

Moyer Program Guidelines establish a 

number of methods for verifying that 

projected emission reductions have 

taken place through compliance with 

the terms and conditions of each 

funding contract. See Response 13 and 

Response 14. Finally, under the 

applicable guidelines, actions by 

grantees that lead to emission 

reductions are directly enforceable by 

the State and/or the District—e.g., CARB 

and/or the District may assess fiscal 

penalties and take certain corrective 

actions where contract violations are 

identified 34—and EPA and citizens 

may, in turn, enforce the annual 

reporting and emission reduction 

obligations against the District. See 

Response 13 and Response 14. 

Consistent with the EPA’s 

recommendations for ‘‘financial 

mechanisms EIPs,’’ these provisions in 

the 2008 and 2010 Prop 1B guidelines 

and the 2011 Carl Moyer Program 

Guidelines are adequate to ensure that 

program funds are used as expected— 

i.e., to reduce emissions from higherpolluting vehicles and equipment by 

replacing them with newer, lowerpolluting equipment and vehicles. 

In sum, although the incentive-based 

emission reductions in the Contingency 

Measure SIP are not directly enforceable 

against individual sources by the EPA or 

citizens, the District may enforce 

specific emissions-reducing actions 

against individual sources, and the EPA 

and citizens may, in turn, enforce the 

emission reduction obligations against 

the District, pursuant to the District’s 

SIP-approved commitments. Thus, 

whether the incentive-based emission 

reductions are characterized as 

dependent upon ‘‘voluntary’’ measures 

(i.e., a VMEP) or resulting from a 

discretionary ‘‘financial mechanism 

EIP,’’ we find the District’s SIP 

commitments in the Contingency 

Measure SIP adequate to ensure that the 

EPA and citizens may enforce these 

emission reductions under the Act. The 

Contingency Measure SIP and related 

support documents also adequately 

address all other applicable 

requirements of the CAA and the EPA’s 

recommendations as set forth in the 

1997 VMEP and 2001 EIP Guidance (78 

FR 53113, 53118–53122, August 28, 

2013). Given all of these considerations, 

we find that the incentive-based 

emission reductions in the Contingency 

Measure SIP satisfy the statutory criteria 

for SIP approval. 

Comment 13: Citing both the 2001 EIP 

Guidance and the 2004 Emerging and 

Voluntary Measures Policy, Earthjustice 

highlights seven criteria for 

enforceability and asserts that the 

emission reductions identified in the 

Contingency Measure SIP do not meet 

these criteria. 

Response 13: As an initial matter, we 

note that both the 2001 EIP Guidance 

and the 2004 Emerging and Voluntary 

Measures Policy set forth the EPA’s 

recommendations for EIPs or voluntary 

measures submitted for SIP purposes 

and do not establish binding legal 

requirements. See 2001 EIP Guidance at 

12 and 19 (stating that the EPA would 

determine through notice-and-comment 

rulemaking whether a particular EIP 

submission meets the applicable CAA 

requirements) and 2004 Emerging and 

Voluntary Measures Policy at 2. 

Moreover, the 2004 Emerging and 

Voluntary Measures Policy does not 

apply to mobile emission sources such 

as on-road and non-road vehicles.35 See 

2004 Emerging and Voluntary Measures 

Policy at 5. We have, however, 

evaluated the incentive-based emission 

reductions in the Contingency Measure 

SIP for consistency with the 

fundamental ‘‘integrity elements’’ 

outlined in the 2001 EIP Guidance, the 

2004 Emerging and Voluntary Measures 

Policy, and other guidance on 

innovative measures as part of our 

evaluation of the SIP submission in 

accordance with CAA requirements. 

Based on this evaluation, we disagree 

with the commenter’s assertion that the 

incentive-based emission reductions in 

the Contingency Measure SIP fail to 

adequately address the enforceability 

recommendations provided in EPA 

policy. As the commenter notes, the 

2001 EIP Guidance identifies 

enforceability considerations that are 

substantively identical to the 

recommendations in the 2004 Emerging 

and Voluntary Measures Policy. 

According to the 2001 EIP Guidance, 

emission reductions use, generation, 

and other required actions are 

enforceable if: (1) They are 

independently verifiable; (2) program 

violations are defined; (3) those liable 

for violations can be identified; (4) the 

State and the EPA maintain the ability 

to apply penalties and secure 

appropriate corrective actions where 

applicable; (5) citizens have access to all 

the emissions-related information 

obtained from the source; (6) citizens 

can file suits against sources for 

violations; and (7) they are practicably 

enforceable in accordance with other 

EPA guidance on practicable 

enforceability. See 2001 EIP Guidance at 

35–36. 

The actions required of grantees 

under the applicable portions of the 

Prop 1B and Carl Moyer Program 

guidelines, as discussed in our proposed 

rule, the Proposal TSD, and further 

below, adequately address these 

enforceability recommendations. First, 

the required actions are independently 

verifiable through (1) pre-project and 

post-project on-site inspections (with 

photographic documentation) that the 

District and/or CARB must carry out 

pursuant to the applicable guidelines, 

and (2) documents that each grantee is 

required to maintain and/or submit to 

the District in accordance with detailed 

contract provisions. See generally 2008 

Prop 1B guidelines at Section III.D 

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36Each project application must be incorporated 

by reference into the equipment project contract, 

which the equipment owner must maintain for at 

least two years after equipment project ends or 

three years after final payment, whichever is later. 

See 2008 Prop 1B guidelines at Section III.D.10 

(‘‘Equipment project contracts’’) and 2010 Prop 1B 

guidelines at Section IV.A.11 (‘‘Equipment project 

contracts’’). 

37A project application that is ‘‘accurate and 

complete’’ may be included as an attachment to the 

contract to satisfy the ‘‘project specification’’ 

requirements of the 2011 Carl Moyer Program 

Guidelines. See 2011 Carl Moyer Program 

Guidelines at Section Z.6 (stating that ‘‘[a]ll 

contracts must include detailed information on the 

baseline and new vehicles, equipment, and/or 

engines that were used in the project costeffectiveness calculation’’). Each contract must be 

retained by the grantee for at least two years after 

contract expiration or three years after final project 

payment, whichever is later. See id. at Z.10 (‘‘OnSite Inspections and Audits’’). 

38Under the 2008 Prop 1B guidelines, all grant 

recipients are required to submit reports to the 

District annually. See 2008 Prop 1B guidelines at 

Appendix A (‘‘Trucks Serving Ports and Intermodal 

Rail Yards’’), Section D (‘‘Annual Reporting 

Requirements’’). The 2010 Prop 1B guidelines also 

require annual reports except that certain owners of 

equipment with PM retrofits with a 2-year contract 

may report at the end of the 2-year project life. See 

2010 Prop 1B guidelines, Appendix A (‘‘Heavy Duty 

Diesel Trucks’’), Section G (‘‘Annual Reporting 

Requirements’’). 

(‘‘Local Agency Project Implementation 

Requirements’’), Section IV (‘‘General 

Equipment Project Requirements’’), and 

Appendix A, Section C (‘‘Recordkeeping 

Requirements’’) and Section D (‘‘Annual 

Reporting Requirements’’); 2010 Prop 

1B guidelines at Section IV.A (‘‘Project 

Implementation Requirements’’), 

Section VI (‘‘General Equipment Project 

Requirements’’), and Appendix A, 

Section F (‘‘Recordkeeping 

Requirements’’) and Section G (‘‘Annual 

Reporting Requirements’’); and 2011 

Carl Moyer Program Guidelines, Part I, 

Chapter 3 (‘‘Program Administration’’). 

For example, the 2008 and 2010 Prop 

1B guidelines require, among other 

things, that (1) all project applications 36

include documentation of current 

equipment and activity information (e.g. 

engine make, model, horsepower and 

fuel type, annual vehicle miles of travel 

(VMT) in California, and estimated 

percentage of annual VMT in trade 

corridors); (2) that the District conduct 

a ‘‘pre-inspection’’ of each application 

deemed eligible for funding, to verify 

information regarding the baseline 

engine, vehicle, or equipment; (3) that 

the District conduct a ‘‘post-inspection’’ 

of each funded project to record, among 

other things, identifiers and 

specifications for the new engine/

equipment (e.g., VIN numbers for new 

trucks, serial numbers for new engines), 

verification that the new engine/

equipment is operational and consistent 

with the equipment described in the 

project application, and verification of 

the destruction of the old/replaced 

equipment, where applicable; and (4) 

that the District’s pre-inspection and 

post-inspection project files include 

photographic documentation of each 

piece of equipment being inspected, 

including an engine serial number, 

visible distinguishing identification 

(e.g., a license plate), and a full view of 

the equipment. See Proposal TSD at 30– 

35; see also 2008 Prop 1B guidelines at 

Section III.D.8 (‘‘Equipment project preinspections’), Section III.D.14 

(‘‘Equipment project post-inspections), 

Section IV.D (‘‘Equipment Project 

Application Requirements’’) and 

Appendix A, Section F (‘‘Application 

Information’’); and 2010 Prop 1B 

guidelines at Section IV.A.10 

(‘‘Equipment project pre-inspections’), 

Section IV.A.16 (‘‘Equipment project 

post-inspections), Section VI.D 

(‘‘Equipment Project Application 

Requirements’’) and Appendix A, 

Section F (‘‘Application Information’’). 

Similarly, the 2011 Carl Moyer 

Program Guidelines require, among 

other things, that (1) all project 

applications 37 include documentation 

of existing engine usage in previous 

years (e.g. miles traveled, hours 

operated, or fuel consumed per year); (2) 

that the District conduct a ‘‘preinspection’’ of each application deemed 

eligible for funding, to verify 

information regarding the baseline 

engine, vehicle, or equipment; (3) that 

the District conduct a ‘‘post-inspection’’ 

of each funded project to record, among 

other things, information regarding the 

new engines, vehicles/equipment, and 

retrofit devices as needed to provide a 

basis for emission calculations and to 

ensure contract enforceability; and (4) 

that the District’s pre-inspection and 

post-inspection project files include 

photographic documentation of the 

engine, vehicle, or equipment 

information, including a legible serial 

number and/or other identifying 

markings. See Proposal TSD at 37–42; 

see also 2011 Carl Moyer Program 

Guidelines, Part I, Chapter 3, at Section 

W (‘‘Minimum Project Application 

Requirements’’), Section AA (‘‘Project 

Pre-Inspection’’), and Section BB 

(‘‘Project Post-Inspection’’). 

Second, the applicable portions of the 

2008 and 2010 Prop 1B guidelines and 

the 2011 Carl Moyer Program guidelines 

specifically define the required 

elements of each contract and the types 

of actions that constitute violations of 

such contracts. For example, under the 

2008 and 2010 Prop 1B guidelines, each 

equipment project contract must 

include: (1) A unique ‘‘tracking 

number’’; (2) the equipment owner’s 

contact information; (3) the original 

application submitted by the equipment 

owner; (4) requirements for the 

equipment owner to submit reports to 

the local agency annually or 

biennially 38; (5) the equipment owner’s 

agreement to allow ongoing evaluations 

and audits of equipment and 

documentation by the District, CARB, or 

their designated representative(s); and 

(6) requirements for the equipment 

owner to retain all records pertaining to 

the program (i.e., invoices, contracts, 

and correspondence) for at least two 

years after equipment project ends or 

three years after final payment, 

whichever is later. See 2008 Prop 1B 

guidelines at Section III.D.10 

(‘‘Equipment project contracts’’) and 

2010 Prop 1B guidelines at Section 

IV.A.11 (‘‘Equipment project 

contracts’’); see also Proposal TSD at 

30–32. Additionally, under the same 

guidelines, the following actions (among 

others) are specifically identified as 

contract violations: (1) Failure to meet 

the terms and conditions of an executed 

equipment project contract, including 

equipment operating conditions and 

geographic restrictions; (2) failure to 

allow for an electronic monitoring 

device or tampering with an installed 

device or data; (3) insufficient, 

incomplete, or faulty equipment project 

documentation; and (4) failure to 

provide required documentation or 

reports in a timely manner. See 2008 

Prop 1B guidelines at Section IV.G 

(‘‘Equipment Project Non-Performance’’) 

and 2010 Prop 1B guidelines at VI.I 

(‘‘Equipment Project NonPerformance’’); see also Proposal TSD at 

30–32. 

Similarly, under the 2011 Carl Moyer 

Program Guidelines, each equipment 

project contract must include: (1) The 

name and contact information of the 

grantee; (2) specified timeframes for 

‘‘project completion’’ (the date the 

project post-inspection confirms that the 

project has become operational) and 

‘‘project implementation’’ (the project 

life used in the project cost-effectiveness 

calculation); (3) detailed information on 

both baseline and new vehicles, 

equipment, and/or engines, including 

documentation adequate to establish 

historical annual usage; (4) 

requirements for the grantee to maintain 

the vehicle, equipment and/or engine 

according to the manufacturer’s 

specifications for the life of the project; 

(5) annual reporting requirements; (6) a 

provision authorizing the District, 

CARB, and their designees to conduct 

fiscal audits and to inspect the project 

engine, vehicle, and/or equipment and 

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39The 2011 Carl Moyer Program Guidelines 

authorize the District to grant a ‘‘waiver’’ to a 

grantee who demonstrates to the District’s 

satisfaction that certain conditions justify contract 

noncompliance for a defined period. See 2011 Carl 

Moyer Program Guidelines, Part I, Chapter 3 at 

Section FF.4(D). We note that, for any project that 

the District has relied upon for SIP credit, Section 

4.3 of Rule 9610 requires the District to annually 

adjust its calculation of SIP-creditable emission 

reductions to reflect periods of noncompliance 

under any such waiver. 

40See also n. 38, supra. 

41All references to Rule 9610 herein are to the 

rule as adopted by the District on June 20, 2013. 

42 In its December 18, 2013 email, the District 

confirmed that it ‘‘will include information in 

future annual demonstration reports as necessary to 

ensure the ongoing tracking of projects claimed in 

prior annual demonstration reports, including 

adjustments necessary under Section 4.3 [of Rule 

9610].’’ We note that beginning with the 2014 

annual demonstration report, the District must 

identify the specific projects (by unique project 

identification number) that the District has relied 

upon for emission reduction credit in the 

Contingency Measure SIP, including adjustments 

made as required by Section 4.3 of Rule 9610, to 

ensure that the EPA and citizens can track the 

District’s progress in satisfying its SIP 

commitments. See Rule 9610, Section 4.5; see also 

Proposal TSD at 27, n. 17. The District may satisfy 

this requirement by including, in its annual 

demonstration report, the list of specific projects in 

the attachments to the EPA’s Proposal TSD (as 

adjusted consistent with Rule 9610, Section 4.3), 

which the EPA developed because the 2013 Annual 

Demonstration Report does not specifically identify 

the projects relied upon for credit in the 

Contingency Measure SIP. See Proposal TSD at 

Attachment A (‘‘Prop 1B: On-Road Vehicle 

Replacement projects achieving emission 

reductions through 2015’’) and Attachment B (‘‘Carl 

Moyer Program: Off-Road Vehicle Replacement 

projects achieving emission reductions through 

2015’’). 

associated records during the contract 

term, and (7) requirements to maintain 

and retain project records for at least 

two years after contract expiration or 

three years after final project payment, 

whichever is later. See 2011 Carl Moyer 

Program Guidelines, Part I, Chapter 3 at 

Section Z (‘‘Minimum Contract 

Requirements’’); see also Proposal TSD 

at 37–38 (describing requirements for 

Off-Road Compression Ignition engine 

replacement projects in 2011 Carl Moyer 

Program Guidelines, Part I, Chapter 9 at 

Section C (‘‘Project Criteria’’)). 

Additionally, the 2011 Carl Moyer 

Program Guidelines explicitly require 

that each contract ‘‘specify that by 

executing the contract, the grantee 

understands and agrees to operate the 

vehicle, equipment, and/or engine 

according to the terms of the contract’’ 

and describe the potential repercussions 

to the grantee for non-compliance with 

contract requirements. See 2011 Carl 

Moyer Program Guidelines, Part I, 

Chapter 3 at Section Z.11 

(‘‘Repercussions for Non-Performance’’) 

and Section FF (‘‘Nonperforming 

Projects’’).39 The 2011 Carl Moyer 

Program Guidelines also specifically 

identify types of actions on the part of 

the District that CARB may treat as 

violations of program requirements— 

e.g., misuse of Carl Moyer Program 

funds and insufficient, incomplete, or 

inaccurate project documentation. See 

2011 Carl Moyer Program Guidelines at 

Section U (‘‘Program NonPerformance’’). 

Third, grantees that are liable for 

violations of these contract provisions 

can be identified by the State and/or 

District and, through the annual 

demonstration reports submitted to the 

EPA, by the EPA and citizens as well. 

Specifically, as discussed above, under 

the 2008 Prop 1B guidelines, the 2010 

Prop 1B guidelines, and the 2011 Carl 

Moyer Program guidelines, each 

contract executed by the District must 

require the grantee to maintain project 

records for at least two years after 

contract expiration or three years after 

final project payment, whichever is 

later, and to submit annual or biennial 

reports to the District. See 2008 Prop 1B 

guidelines at Section III.D.10 

(‘‘Equipment project contracts’’), 2010 

Prop 1B guidelines at Section IV.A.11 

(‘‘Equipment project contracts’’),40 and 

2011 Carl Moyer Program Guidelines, 

Part I, Chapter 3 at Section Z 

(‘‘Minimum Contract Requirements’’); 

see also Proposal TSD at 30–32 and 37– 

40. Additionally, the 2008 and 2010 

Prop 1B guidelines require that each 

contract contain a provision stating the 

equipment owner’s agreement to allow 

ongoing evaluations and audits of 

equipment and documentation by the 

District, CARB, or their designated 

representative(s), and the 2011 Carl 

Moyer Program Guidelines similarly 

require that all contracts authorize the 

District, CARB, or their designees to 

conduct fiscal audits of the project and/ 

or to inspect the project engine, vehicle, 

and/or equipment and associated 

records during the contract term. See id. 

These provisions in the Prop 1B and 

Carl Moyer Program guidelines enable 

both the State and District to identify 

grantees that violate their contract 

provisions. 

The EPA and citizens, in turn, can 

identify violators through the annual 

demonstration reports that the District is 

obligated under its SIP commitment to 

make publicly available (on the 

District’s Web site) and to submit to the 

EPA by August 31 of each year. See 

SJVUAPCD Board Resolution No. 13–6– 

19 (June 20, 2013) at 3 and Rule 9610, 

Section 5.0. Specifically, Section 6.1 of 

Rule 9610 (as adopted June 2013) 41

states that ‘‘[a]ll documents created and/ 

or used in implementing the 

requirements of Section 4.0 shall be 

kept and maintained as required by the 

applicable incentive program guidelines 

. . . [and] shall be made available for 

public review’’ consistent with the 

California Public Records Act and other 

related requirements. Section 6.1 also 

states that ‘‘[i]nformation regarding the 

process for the public review of such 

records shall be included in the annual 

demonstration report.’’ Rule 9610, 

Section 6.1. Consistent with these 

requirements, the 2013 Annual 

Demonstration Report submitted by the 

District states that the public may 

request documents created and/or used 

in implementing the requirements of 

Section 4.0 (of Rule 9610) through the 

District’s Public Records Release 

Request form, which is available on the 

District Web site. See SJVUAPCD, ‘‘2013 

Annual Demonstration Report’’ (January 

31, 2014) at 8. The District has 

confirmed that both the EPA and 

citizens may use this form to request 

copies of the required records for any 

Prop 1B or Carl Moyer Program project 

that the District has relied upon for SIP 

credit, which will be identified in the 

District’s annual demonstration reports 

going forward. See email dated 

December 18, 2013, from Jeannine 

Tackett, SJVUAPCD, to Idalia Perez, 

U.S. EPA Region 9, ‘‘RE: question 

needed for response to comments on 

contingency measure SIP.’’ 42

Fourth, the State maintains the ability 

to apply penalties and secure 

appropriate corrective actions where 

contract terms are violated, and the EPA 

maintains the ability to require 

appropriate corrective actions of the 

District where projected emission 

reductions are not achieved. For 

example, under the 2008 and 2010 Prop 

1B guidelines, where the District finds 

that a grantee has violated a contract 

term, the District is authorized to 

recover all or a portion of program 

funds, assess fiscal penalties on 

equipment owners based on the severity 

of the non-performance, and prohibit 

the equipment owner from participating 

in future State incentive programs, 

among other things. See 2008 Prop 1B 

guidelines at Section IV.G (‘‘Equipment 

Project Non-Performance’’) and 2010 

Prop 1B guidelines at Section VI.I 

(‘‘Equipment Project NonPerformance’’). Under the 2011 Carl 

Moyer Program Guidelines, both CARB 

and the District are authorized to ‘‘seek 

any remedies available under the law 

for noncompliance with Carl Moyer 

Program requirements and 

nonperformance with the contract,’’ 

including withholding of program 

funds, and should CARB determine that 

the District’s oversight and enforcement 

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43The 2008 Prop 1B guidelines require the 

District to retain all ‘‘program records’’ (e.g., 

invoices, contracts, and correspondence) for at least 

two years after the project ends or three years after 

final payment, whichever is later. See 2008 Prop 1B 

guidelines, Chapter II, Section D.10.b (‘‘General 

Program provisions’’). The 2010 Prop 1B guidelines 

require the District to retain ‘‘program records’’ for 

35 years after the bond issuance date providing the 

funds for the grant, or to send all records to ARB 

by the end date of the grant agreement. See 2010 

Prop 1B guidelines, Chapter II, Section E.10.b 

(‘‘General Program provisions’’). Under the Carl 

Moyer Program Guidelines, the District must keep 

each ‘‘project file’’ for a minimum of two years after 

the end of the contract term or a minimum of three 

years after final payment, whichever is later. See 

2011 Carl Moyer Program Guidelines, Chapter 3, 

Section V (‘‘ARB Audit of Air Districts’’) at 3–25. 

A ‘‘project file’’ generally includes a copy of the 

application, a completed pre- and post-inspection 

form, and the annual reports submitted by the 

grantee. See id. at Section X.6, Section AA.4, 

Section BB.1.(G), and Section DD.3. 

44This interpretation is consistent with 

information in the District’s 2013 Annual 

Demonstration Report, which identifies 

‘‘agricultural off-road vehicle replacement projects 

funded through the Carl Moyer Program’’ and ‘‘onroad vehicle replacement projects funded through 

the Prop 1B program’’ as the projects relied upon 

for contingency measure purposes. See 2013 

Annual Demonstration Report at 26 (Table 5). 

45See notes 30 and 31, supra. 

46Consistent with the EPA’s longstanding 

interpretation of CAA section 172(c)(9) as requiring 

that all actions needed to effect full implementation 

of contingency measures occur within 60 days after 

the EPA notifies the State of a failure to attain the 

NAAQS by the applicable attainment date (78 FR 

53113, 53115), we interpret the phrase ‘‘applicable 

implementation deadline’’ in the District’s SIP 

commitment to mean 60 days after October 5, 2015, 

which is the latest date by which the EPA must 

determine whether the SJV area has attained the 

1997 PM2.5 NAAQS pursuant to CAA section 179(c). 

In our proposed rule, we stated that the District’s 

commitment obligated it to adopt and submit any 

substitute measures necessary to correct a shortfall 

in emission reductions ‘‘no later than December 31, 

2016’’ (78 FR 53113, 53121, 53122). In this final 

action, however, we are clarifying our interpretation 

of the SIP commitment to mean that any substitute 

measures necessary to correct a shortfall in 2015 

emission reductions must be adopted and 

submitted to the EPA no later than the applicable 

Continued 

of the program is insufficient, CARB 

may recapture funds granted to the 

District that have not yet been awarded 

to approved projects. See 2011 Carl 

Moyer Program Guidelines, Chapter 3 at 

Section U (‘‘Program NonPerformance’’). Additionally, as 

explained further below, the EPA 

maintains the ability to enforce the 

District’s SIP commitments—i.e., to 

require the District to submit annual 

demonstration reports consistent with 

the requirements of Rule 9610 and/or to 

adopt and submit substitute measures 

on a fixed timeframe, where projected 

emission reductions are not achieved. 

Fifth, citizens have access to all of the 

emissions-related information obtained 

from the source. As explained in our 

proposed rule, the Board commitments 

submitted with the Contingency 

Measure SIP obligate the District to 

‘‘account for’’ its claimed NOX and 

PM2.5 emission reductions ‘‘in annual 

demonstration reports pursuant to the 

requirements of Rule 9610.’’ See 

SJVUAPCD Board Resolution No. 13–6– 

18 at 3. Rule 9610 requires the District 

to submit to the EPA, no later than 

August 31 of each year, an ‘‘annual 

demonstration report’’ that includes 

detailed information about each specific 

project that the District has relied upon 

to achieve SIP-creditable emission 

reductions (e.g., unique project 

identification numbers, project 

implementation dates, applicable 

incentive program guideline(s), and 

quantified emission reductions per year 

and aggregated over the project life, by 

pollutant). See 78 FR 53113, 53121 

(citing Rule 9610, sections 4.1–4.6 and 

5.0) (emphases added). Additionally, 

Rule 9610 requires that ‘‘[a]ll documents 

created and/or used in implementing 

the requirements of Section 4.0 shall be 

kept and maintained as required by the 

applicable incentive program 

guidelines’’ and that ‘‘such records shall 

be made available for public review.’’ 

Rule 9610, Section 6.1. Under the 2008 

and 2010 Prop 1B guidelines, all grant 

recipients must, among other things, 

retain ‘‘all documents, invoices, and 

correspondence associated with the 

application, award, contract, 

monitoring, enforcement, and reporting 

requirements’’ for at least two years after 

the equipment project contract term or 

three years after final payment, 

whichever is later’’; must make records 

readily available and accessible to the 

District, CARB, or their designees upon 

request; and must submit regular reports 

to the District that include information 

about annual miles traveled, 

certification and documentation of 

travel within California’s trade 

corridors, and certification that the 

project was operated in accordance with 

the signed contract. See 2008 Prop 1B 

guidelines, Appendix A (‘‘Trucks 

Serving Ports and Intermodal Rail 

Yards’’), Section C (‘‘Recordkeeping 

Requirements’’) and Section D (‘‘Annual 

Reporting Requirements’’) at A–4 and 

2010 Prop 1B guidelines, Appendix A 

(‘‘Heavy Duty Diesel Trucks’’), Section F 

(‘‘Recordkeeping Requirements’’) and 

Section G (‘‘Annual Reporting 

Requirements’’) at A–19. The 2011 Carl 

Moyer Program Guidelines contain 

substantially similar recordkeeping and 

reporting requirements for grantees in 

Chapter 3, Section Z.9 (‘‘Reporting’’), 

Section Z.10 (‘‘On-Site Inspections and 

Audits’’), and Section DD (‘‘Grantee 

Annual Reporting’’). Pursuant to section 

6.1 of Rule 9610, all of these documents 

must be made available for public 

review upon request.43 See Rule 9610, 

Section 6.1. 

Sixth, although citizens cannot file 

suits against sources for violations, both 

the EPA and citizens may file suits 

against the District for violations of its 

commitments to ensure that the 

projected emission reductions are 

achieved in 2015. Specifically, the 

SJVUAPCD Governing Board has 

submitted a commitment to quantify 

SIP-creditable emission reductions in 

the amount of 4.15 tpd of NOX

reductions and 0.10 tpd of PM2.5

reductions using the incentive program 

guidelines and related documents 

identified in Rule 9610 and to ‘‘account 

for these NOX and PM2.5 emission 

reductions in annual demonstration 

reports pursuant to the requirements of 

Rule 9610’’ for purposes of satisfying 

the PM2.5 contingency measure 

requirement for 2015. SJVUAPCD Board 

Resolution No. 13–6–18 at p. 3. 

Additionally, the Board’s commitment 

states that ‘‘[if] there is a shortfall in 

expected emission reductions for 2015, 

the District will adopt and submit to 

EPA substitute rules and measures that 

will achieve equivalent emission 

reductions as expeditiously as 

practicable and no later than any 

applicable implementation deadline in 

the CAA or EPA’s implementing 

regulations, by no later than December 

31, 2016.’’ Id. As explained in our 

proposed rule (78 FR 53113, 53121), the 

EPA interprets these District 

commitments as applying to emission 

reductions to be achieved in 2015 

through specific types of Prop 1B and 

Carl Moyer Program projects,44 and the 

EPA expects that the 2014 annual 

demonstration report will then specify 

the individual projects relied upon to 

achieve these emission reductions, 

consistent with the requirements of Rule 

9610, Section 4.5. See Proposal TSD at 

25–27, n. 13 and n. 17 (referencing 

Proposal TSD at Attachment A and 

Attachment B). These Board 

commitments, which become federally 

enforceable by the EPA and by citizens 

upon approval into the SIP,45 impose 

clear and specific requirements on the 

District to account for specific amounts 

of NOX and PM2.5 emission reductions 

through annual demonstration reports 

that satisfy the requirements of Rule 

9610 and, if the identified projects fail 

to achieve the projected emission 

reductions in 2015, to adopt and submit 

to the EPA substitute measures that will 

achieve equivalent amounts of emission 

reductions as expeditiously as 

practicable and no later than December 

5, 2015.46 Should the EPA determine 

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29346 Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 

implementation deadline for these contingency 

measures under CAA section 172(c)(9), which is 

December 5, 2015. This interpretation is consistent 

with the text of the District’s SIP commitment, 

which states that in the event of a shortfall, the 

District will ‘‘adopt and submit to EPA substitute 

rules and measures that will achieve equivalent 

emission reductions as expeditiously as practicable 

and no later than any applicable implementation 

deadline in the CAA or EPA’s implementing 

regulations, by no later than December 31, 2016.’’ 

See SJVUAPCD Board Resolution No. 13–6–18 at p. 

3 (emphases added). As a practical matter, because 

a December 2015 deadline for implementation of 

the remedy requires the District to begin developing 

any necessary substitute measures well before that 

date, the EPA intends to determine by late 2014 

(based on the District’s 2014 annual demonstration 

report and other available documentation) whether 

there will be any shortfall in projected emission 

reductions that triggers the District’s obligation to 

adopt and submit substitute measures. 47See n. 42, supra. 

that the SJV area has failed to attain the 

1997 PM2.5 standards by the applicable 

attainment date (April 5, 2015), the EPA 

and citizens may enforce both 

components of the District’s SIP 

commitment under sections 113 and 

304 of the CAA, respectively, as follows: 

(1) If the Board fails to annually account 

for its claimed NOX and PM2.5 emission 

reductions consistent with the 

requirements of Rule 9610, the EPA or 

citizens may enforce the District’s 

obligation to submit the required 

reports; and (2) if the District’s 2014 

annual demonstration report indicates 

that the specific projects identified 

therein will not achieve the District’s 

claimed amounts of NOX and PM2.5

emission reductions (4.15 tpd of NOX

reductions and 0.10 tpd of PM2.5

reductions) in 2015 as projected, the 

EPA or citizens may enforce the 

District’s obligation to adopt and submit 

substitute measures that will achieve 

equivalent amounts of emission 

reductions by December 5, 2015. See 

Proposal TSD at 42–44. We find these 

provisions adequate to ensure that the 

EPA and citizens may secure 

appropriate corrective actions where 

projected emission reductions are not 

achieved. 

Finally, the emission reductions to be 

achieved through the identified Prop 1B 

and Carl Moyer Program projects are 

practicably enforceable consistent with 

EPA policy on enforceability 

requirements. The EPA generally 

considers a requirement to be 

‘‘practically enforceable’’ if it contains a 

clear statement as to applicability; 

specifies the standard that must be met; 

states compliance timeframes sufficient 

to meet the standard; specifies sufficient 

methods to determine compliance, 

including appropriate monitoring, 

record keeping and reporting 

provisions; and recognizes relevant 

enforcement consequences. See 

‘‘Review of State Implementation Plans 

and Revisions for Enforceability and 

Legal Sufficiency,’’ September 3, 1987 

(‘‘1987 Potter Memo’’) and ‘‘Guidance 

on Enforceability Requirements for 

Limiting Potential to Emit through SIP 

and Section 112 Rules and General 

Permits,’’ January 25, 1995 (‘‘1995 PTE 

Policy’’) at 5, 6. The actions associated 

with the incentive-based emission 

reductions in the Contingency Measure 

SIP are practicably enforceable on two 

levels. First, as explained above, the 

actions required of grantees under the 

2008 and 2010 Prop 1B guidelines and 

the 2011 Carl Moyer Program 

Guidelines are practicably enforceable 

by the State and District. Specifically, 

under the applicable portions of the 

Prop 1B and Carl Moyer Program 

guidelines (see Proposal TSD at 29–42), 

each grant of incentive funds must be 

subject to contract provisions that 

clearly identify the funded equipment 

or vehicle; specify the actions required 

of the grantee; identify relevant 

compliance timeframes (e.g., a ‘‘project 

life’’); specify sufficient methods to 

determine the grantee’s compliance 

with contract provisions, including 

detailed monitoring, recordkeeping and 

reporting requirements; and identify 

potential enforcement consequences in 

cases of contract non-compliance. Taken 

together, these provisions of the 2008 

and 2010 Prop 1B guidelines and the 

2011 Carl Moyer Program Guidelines 

ensure that the actions required of 

grantees are practically enforceable 

consistent with EPA policy. 

Second, the actions required of the 

District under its SIP commitment are 

practicably enforceable by the EPA and 

citizens. As discussed above, the 

District has submitted an enforceable 

commitment to account for specified 

amounts of NOX and direct PM2.5

emission reductions through annual 

demonstration reports meeting the 

requirements of Rule 9610 and, should 

the projects identified in those reports 47

fail to achieve the specified reductions 

in 2015, to adopt and submit substitute 

measures achieving equivalent amounts 

of reductions on a fixed schedule. This 

commitment clearly identifies the 

District as the responsible entity; 

specifies the requirement that must be 

met and the compliance timeframes 

(i.e., to account for specific amounts of 

incentive-based NOX and PM2.5

emission reductions or to adopt and 

submit substitute measures by fixed 

dates); and, through reference to the 

requirements of Rule 9610, specifies 

sufficient methods to determine 

compliance (i.e., the requirements under 

Section 4.0 of Rule 9610 that each 

annual demonstration report must 

satisfy). Should the District fail to 

submit annual demonstration reports 

meeting the requirements of Rule 9610 

that confirm that its claimed NOX and 

PM2.5 emission reductions occurred in 

2015 as projected, the EPA may make a 

finding of failure to implement the SIP 

under CAA section 179(a), which starts 

an 18-month period for the State/

District to correct the nonimplementation before mandatory 

sanctions are imposed. Additionally, the 

EPA or citizens may enforce the 

District’s obligation to adopt and submit 

substitute measures that will achieve 

equivalent emission reductions no later 

than December 5, 2015. 

Taking into account all of these 

provisions of the applicable incentive 

program guidelines and the District’s 

SIP commitments, we find the 

incentive-based emission reductions 

relied upon in the Contingency Measure 

SIP to be practically enforceable 

consistent with EPA policy. 

Comment 14: Earthjustice asserts that 

the incentive-based emission reductions 

are not independently verifiable because 

the EPA and citizens can only rely on 

data submitted to or collected by the 

District. Additionally, Earthjustice 

contends that the EPA has no authority 

to inspect sources for compliance with 

the contracts between the District and 

the source, and that the EPA also lacks 

the ability to apply penalties or secure 

corrective actions against the sources. 

Finally, Earthjustice asserts that because 

the emission reductions are secured 

through contracts between the source 

and the District, compliance with those 

agreements cannot be enforced by the 

public or the EPA, and that the District 

‘‘has discretion to modify these 

contracts and redefine violations 

without any EPA or public oversight.’’ 

Response 14: First, we disagree with 

the commenter’s claim that the 

incentive-based emission reductions are 

not independently verifiable. Although 

enforcement of these emission 

reductions by the EPA or citizens 

generally depends upon project-related 

information maintained by the District, 

this does not preclude independent 

verification of the emission reductions if 

sufficient safeguards are in place to 

ensure that the District will obtain and 

maintain adequate compliance-related 

records and make these records 

available to the EPA and the public. As 

discussed above, the applicable 

incentive program guidelines (the 2008 

and 2010 Prop 1B guidelines and the 

2011 Carl Moyer Program Guidelines) 

require that the District maintain 

specific documentation of pre-project 

and post-project inspections for each 

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Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 29347 

funded project and that all grantees 

submit detailed compliance-related 

documentation to the District on an 

annual or biennial basis. The District, in 

turn, is obligated under its SIP 

commitment to make these project 

records available to the EPA and to the 

public upon request. See Response 13. 

Furthermore, as a result of the EPA’s 

approval of the District’s commitments 

into the SIP, the EPA may require under 

CAA section 114(a) that the District 

provide information necessary for the 

purpose of determining whether the 

District is in violation of these SIP 

commitments—including all 

compliance-related documentation that 

the District maintains in accordance 

with the applicable incentive program 

guidelines. See CAA section 114(a) 

(authorizing the EPA to require 

submission of information from ‘‘any 

person’’ who may have information 

necessary for the purpose of 

determining whether a SIP requirement 

has been violated) and section 302(e) 

(defining ‘‘person’’ to include a State or 

political subdivision thereof). We find 

the monitoring, recordkeeping and 

reporting requirements of the applicable 

incentive program guidelines, together 

with the District’s enforceable SIP 

commitments, adequate to ensure that 

the incentive-based emission reductions 

can be independently verified. 

Second, although the commenter 

correctly states that the EPA is not 

authorized to inspect sources for 

compliance with their funding contracts 

or to apply penalties or secure 

corrective actions against individual 

sources, we do not believe such 

authorities are necessary in order to 

enforce these emission reductions under 

the CAA. As discussed in Response 13 

above, both the District and CARB are 

authorized to inspect sources for 

compliance with their funding contracts 

and to apply penalties or secure 

corrective actions against sources that 

violate their contracts. Rule 9610 

requires the District to maintain records 

of all such inspections and enforcement 

actions (see Rule 9610, Section 6.1), and 

under section 114(a) of the CAA, the 

EPA may require the District to provide 

these project-related records for 

purposes of determining whether the 

District is in violation of its SIP 

commitment. Both the EPA and citizens 

may also obtain these records from the 

District through submission of a ‘‘Public 

Records Release Request.’’ See Response 

13. Based on these project-related 

records, the EPA and citizens may verify 

whether the District has adequately 

accounted for 4.15 tpd of NOX

reductions and 0.10 tpd of PM2.5

reductions in 2015, consistent with its 

SIP commitments. Additionally, where 

the documentation evidences a shortfall 

in the required emission reductions, the 

District would be obligated—subject to 

the EPA and citizen enforcement under 

the CAA—to adopt and submit 

substitute measures that achieve 

equivalent emission reductions no later 

than December 5, 2015. We find these 

provisions adequate to ensure that the 

incentive-based emission reductions in 

the Contingency Measure SIP may be 

enforced under the CAA. 

Finally, although we agree with the 

commenter’s claim that neither the EPA 

nor citizens can enforce compliance 

with the contracts between sources and 

the District, we disagree with the claim 

that the District has discretion to 

‘‘redefine violations without any EPA or 

public oversight.’’ As explained above, 

upon approval into the SIP the District’s 

commitments become federally 

enforceable by the EPA and by citizens 

under sections 113 and 304 of the Act, 

respectively. See Response 13. These 

SIP-approved commitments cannot be 

modified, nor can the District ‘‘redefine 

violations’’ thereof, except through a SIP 

revision adopted by the State after 

reasonable notice and public hearing 

and approved by the EPA through 

notice-and-comment rulemaking. See 

CAA section 110(l); 5 U.S.C. section 

553; 40 CFR 51.105; see also Response 

8. 

Comment 15: Earthjustice cites the 

EPA’s 2001 EIP Guidance to support its 

assertion that to be enforceable, a 

‘‘financial mechanism EIP’’ must meet 

the general programmatic and sourcespecific definitions of enforceable. 

Earthjustice asserts that the EPA’s 

analysis does not include any review of 

the programmatic requirements outlined 

in EPA policy and that the Valley’s 

incentive program ‘‘violates several of 

these criteria.’’ Additionally, as to the 

‘‘source-specific’’ definition of 

enforceable in EPA policy, Earthjustice 

asserts that the EPA lacks the ability to 

independently verify compliance 

because the EPA is reliant upon 

information collected by the State and 

District and cannot collect its own 

information, conduct inspections, 

demand additional reporting, or enforce 

the failure to submit required reports. 

Earthjustice further contends that the 

limited reporting required under the 

Carl Moyer program does not allow the 

EPA to independently verify 

compliance given ‘‘EPA must rely on 

the limited documentation submitted by 

the owner and will not even see reports 

on usage of the new equipment unless 

that data happens to be collected by the 

State or District and shared with EPA.’’ 

Earthjustice concludes that the 

incentive program contingency measure 

thus fails to be ‘‘enforceable’’ either at 

the programmatic level or the sourcespecific level. 

Response 15: We disagree with 

Earthjustice’s characterization of the 

EPA’s recommendations in the 2001 EIP 

Guidance. The EPA stated in the 2001 

EIP Guidance that ‘‘[t[he emission 

reductions associated with a financial 

mechanism EIP are enforceable if they 

meet the general programmatic and 

source-specific definitions of 

enforceable.’’ 2001 EIP Guidance at 120. 

Additionally, the EPA stated that 

although a program containing these 

elements would assure that the program 

would meet the applicable CAA 

provisions, the EPA would also evaluate 

programs submitted by states that do not 

contain all of these elements and would 

determine, through notice-and-comment 

rulemaking, whether such programs 

satisfied the applicable CAA 

requirements. See 2001 EIP Guidance at 

119; see also 2001 EIP Guidance at 12 

and 19. Because the enforceability 

considerations highlighted in the 2001 

EIP Guidance are non-binding 

recommendations, the EPA does not 

apply them as regulatory criteria in its 

evaluation of an EIP submission. 

We have, however, evaluated the 

incentive-based emission reductions in 

the Contingency Measure SIP for 

consistency with the EPA’s 

recommendations in the 2001 EIP 

Guidance and find them generally 

consistent with the general 

programmatic and source-specific 

definitions of ‘‘enforceable’’ in this 

document. As Earthjustice notes, the 

‘‘programmatic’’ definition of 

enforceable highlights seven key factors 

that should be considered in 

determining whether an EIP is 

enforceable. See 2001 EIP Guidance at 

35–36. We addressed each of these 

seven factors in Response 13 above. The 

‘‘source-specific’’ definition of 

enforceable highlights three key factors 

that should be considered in 

determining whether an EIP is 

enforceable: (1) The source is liable for 

any violations; (2) the liable party is 

identifiable; and (3) the State, the 

public, and the EPA can independently 

verify a source’s compliance. See 2001 

EIP Guidance at 40. With respect to the 

first two factors (the source’s liability for 

violations and the ability to identify the 

liable party), see Response 13 above. 

With respect to the third factor (the 

ability of the State, the public, and the 

EPA to independently verify a source’s 

compliance), see Response 14 above. 

We also disagree with Earthjustice’s 

assertion that the EPA cannot collect the 

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29348 Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 

48SJVAPCD, EPA, US Department of Agriculture 

NRCS, and CARB; Statement of Principles 

Regarding the Approach to State Implementation 

Plan Creditability of Agricultural Equipment 

Replacement Incentive Programs Implemented by 

the USDA Natural Resources Conservation Service 

and the San Joaquin Valley Air Pollution Control 

District, December 2010. 

49USDA and EPA, Implementation Principles for 

Addressing Agricultural Equipment under the Clean 

Air Act, July 26, 2012. 

information necessary to independently 

verify compliance and that the reporting 

required under the Carl Moyer program 

does not allow the EPA to 

independently verify compliance. As 

discussed above, the applicable 

incentive program guidelines (the 2008 

and 2010 Prop 1B guidelines and the 

2011 Carl Moyer Program Guidelines) 

require that the District maintain 

specific documentation of pre-project 

and post-project inspections for each 

funded project and that all grantees 

submit detailed compliance-related 

documentation to the District on an 

annual or biennial basis. The District, in 

turn, is obligated under its SIP 

commitment to maintain these project 

records and make them available to the 

EPA and to the public upon request. See 

Response 13; see also n. 43 supra. 

Furthermore, as a result of the EPA’s 

approval of the District’s commitments 

into the SIP, the EPA may require under 

CAA section 114(a) that the District 

provide information necessary for the 

purpose of determining whether the 

District is in violation of its SIP 

commitments—including all 

compliance-related documentation that 

the District maintains in accordance 

with the applicable incentive program 

guidelines. See id. and Response 14. We 

find these provisions adequate to ensure 

that the EPA can collect the information 

necessary to independently verify the 

District’s compliance with its SIP 

commitments. 

All SIP measures have some level of 

uncertainty, whether it comes from the 

uncertainty associated with the 

emissions factors for certain sources, the 

level of compliance with existing SIP 

measures, or the modeling for an 

attainment demonstration. The issue is 

how best to apply assumptions and 

tools to reduce the uncertainty to a 

manageable factor. See 2004 ElectricSector EE/RE Guidance at 11. As 

explained in our Proposal TSD and 

further in these responses to comments, 

the incentive programs relied upon in 

the Contingency Measure SIP are subject 

to detailed monitoring, recordkeeping, 

reporting, and emissions quantification 

requirements under State law, all of 

which are designed to ensure that 

program grants are used to reduce air 

pollution through the replacement of 

older, higher-polluting vehicles and 

equipment with newer, cleaner vehicles 

and equipment and to ensure that the 

resulting emission reductions are 

calculated consistent with established 

quantification protocols. See Proposal 

TSD at 29–42; see also Response 13. We 

find these requirements of the Prop 1B 

program and Carl Moyer Program 

adequate to reduce the uncertainties in 

calculating associated emission 

reductions to a manageable factor and to 

provide a reasonable basis for approval 

of the incentive-based emission 

reductions in the Contingency Measure 

SIP. 

Comment 16: The District notes that 

the EPA did not review emission 

reductions achieved through the 

National Resources Conservation 

Service Environmental Quality 

Incentives Program (NRCS EQIP) for the 

replacement of agricultural equipment 

(as included in Rule 9610 and 

documented through the District’s 2013 

Annual Demonstration Report). It 

describes efforts that have been taken 

toward developing procedures for 

crediting these emission reductions for 

SIP purposes including the statement of 

principles agreed upon by the District, 

NRCS, EPA, and CARB in December 

2010 48 and the document signed by the 

EPA and NRCS in July 2012.49 The 

District states that the agencies that 

signed these statements agreed to work 

collaboratively to develop a mechanism 

to provide SIP credit for emission 

reductions from federal, state, and local 

incentive programs that meet the EPA 

integrity principles of being surplus, 

quantifiable, enforceable, and 

permanent. The District comments that 

it appreciates the EPA’s efforts over the 

last several years in reviewing the NRCS 

EQIP Program in the context of these 

agreements and Rule 9610 and looks 

forward to the EPA’s approval of this 

program as SIP-creditable in the near 

future. 

Response 16: We did not evaluate the 

EQIP as part of our action on the 

Contingency Measure SIP because the 

District did not specifically identify any 

emission reductions from the EQIP as 

part of its contingency measure plan 

and because emission reductions from 

the Carl Moyer and Prop 1B projects 

identified in our proposed rule and the 

Proposal TSD provide sufficient 

emission reductions to meet the CAA 

contingency measure requirement for 

the 1997 PM2.5 NAAQS in the SJV. See 

Contingency Measure SIP at 7–9 and 

2013 Annual Demonstration Report at 

Table 5; see also Proposal TSD at 25–27, 

n. 13 and n. 17. Comments regarding the 

EQIP program are therefore outside the 

scope of this action. 

Comment 17: Citing the EPA’s 

discussion of voluntary and 

discretionary economic incentive 

programs in the proposed rule, the 

District states that the EPA has generally 

limited the amount of emission 

reduction credit allowed in a SIP for 

discretionary incentive programs to 

three percent of the total projected 

future year emission reductions 

required to attain the relevant NAAQS. 

The District states that ‘‘[t]his three 

percent cap does not affect this 

contingency measure demonstration and 

should be removed from the proposed 

rule, since EPA notes the amount of 

incentive-based emission reductions 

used in this contingency demonstration 

is less than two percent of the total 

projected emission reductions needed to 

attain the 1997 PM2.5 NAAQS in the 

Valley.’’ It further asserts that ‘‘the 

District should not be limited to a three 

percent limit for incentive-based 

reductions achieved through SIPcreditable processes, such as Rule 

9610.’’ In support of these assertions, 

the District quotes from the EPA’s stated 

rationale in the 2001 EIP Guidance (at 

pg. 139) for the recommended 3 percent 

cap on SIP credit for voluntary programs 

and the EPA’s statement that states 

‘‘may use the EIP guidance to 

implement programs which will 

generate emission reductions beyond 

the 3 percent limit, or when [the state 

has] already reached the 3 percent limit 

under the voluntary measures 

guidance.’’ Finally, the District notes 

that the 2001 EIP Guidance sets forth 

only non-binding policy and does not 

represent final EPA action on the 

requirements for EIPs. 

Response 17: With respect to 

voluntary mobile source emission 

reduction programs (VMEPs), the EPA 

has generally limited the amount of 

emission reductions allowed in a SIP to 

three percent (3%) of the total projected 

future year emission reductions 

required to attain the relevant NAAQS, 

and for any particular SIP submittal to 

demonstrate attainment or maintenance 

of the NAAQS or progress toward 

attainment (RFP), 3% of the specific 

statutory requirement. See 1997 VMEP 

at 5. Similarly, with respect to voluntary 

and emerging measures for stationary 

sources, the EPA has generally limited 

the amount of emission reductions 

allowed in a SIP to 6% of the total 

amount of emission reductions required 

for RFP, attainment, or maintenance 

demonstration purposes. See 2004 

Emerging and Voluntary Measures 

Policy at 9 and 2005 Bundled Measures 

Guidance at 8. These limits are 

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Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 29349 

‘‘presumptive’’ in that the EPA may 

approve emission reductions from 

voluntary or other nontraditional 

measures in excess of the presumptive 

limits where the State provides a clear 

and convincing justification for such 

higher amounts, which the EPA would 

review on a case-by-case basis. See id.; 

see also Response 12. 

It appears the District may have 

misunderstood the EPA’s intent in 

discussing this presumptive 3% limit on 

the emission reduction credit allowed in 

a SIP for VMEPs. In the proposed rule 

(78 FR 53113, 53118), we discussed the 

presumptive 3% limit both to provide 

context on the applicable EPA guidance 

to date and to indicate that the 

incentive-based emission reductions in 

the Contingency Measure SIP 

adequately address the EPA’s 

recommendations in the 1997 VMEP, as 

applicable (78 FR 53113, 53118 and 

53121). Our proposed rule made clear, 

however, that we were evaluating the 

Contingency Measure SIP in accordance 

with the fundamental integrity elements 

identified in several EPA guidance 

documents, as applied not only to 

VMEPs but also to discretionary 

‘‘financial mechanism EIPs.’’ See id. at 

53118 (citing both 2001 EIP Guidance 

and 1997 VMEP). Although we observed 

in the proposed rule that the NOX and 

direct PM2.5 emission reductions 

attributed to Carl Moyer Program and 

Prop 1B projects in the Contingency 

Measure SIP each amounted to less than 

2 percent of the total projected emission 

reductions needed to attain the 1997 

PM2.5 NAAQS in the SJV (78 FR 53113, 

53121), this factual observation was 

intended to provide additional support 

for our proposal and was not a 

necessary basis for our action. See 

Response 12. Our discussion of the 

presumptive 3% limit provides relevant 

context on the EPA’s guidance on 

voluntary and incentive programs to 

date, and we disagree with the District’s 

statement that this discussion should be 

excluded from the analyses supporting 

our rulemaking action. 

We agree, however, with the District’s 

suggestion that it is not necessarily 

limited to a 3% cap on the amount of 

SIP emission reduction credit allowed 

for incentive programs. As the District 

correctly notes, the 2001 EIP Guidance 

sets forth only non-binding policy and 

does not represent final EPA action on 

the requirements for EIPs. See 2001 EIP 

Guidance at 12. Likewise, the 

presumptive 3% limit on the SIP credit 

allowed for a VMEP under the 1997 

VMEP policy is also a non-binding 

policy recommendation. In addition, the 

2001 EIP Guidance explicitly provides 

that states may use it to implement 

programs which will generate emission 

reductions beyond the 3 percent limit, 

provided the state is directly 

responsible for ensuring that program 

elements are implemented. See 2001 EIP 

Guidance at 139. The EPA will review 

each SIP submitted by California that 

relies on emission reductions from 

incentive programs on a case-by-case 

basis in accordance with the applicable 

CAA requirements and, for any SIP that 

relies on incentive programs for 

emission reductions exceeding the 

EPA’s presumptive caps, the EPA will 

determine through notice-and-comment 

rulemaking whether the State has 

provided adequate justification for such 

higher amounts and whether the 

submission, as a whole, satisfies the 

requirements of the Act. Because the 

incentive-based emission reductions in 

the Contingency Measure SIP fall below 

the EPA’s recommended 3% limit, we 

do not need to decide in today’s action 

whether the State has provided 

adequate justification for higher 

amounts of emission reduction credit. 

Comment 18: The District disagrees in 

part with the EPA’s description of the 

effect of a ‘‘case-by-case determination’’ 

under the Carl Moyer Program and with 

the EPA’s statement that such 

determinations give the State broad 

discretion without EPA oversight or 

public process. First, the District states 

that case-by-case determinations are 

defined under Rule 9610 as ‘‘alternative 

procedures approved by ARB for 

specific projects, as authorized under 

the Carl Moyer Program Guidelines’’ 

and that these are not limited to 

‘‘determinations that provide for a 

longer project life.’’ Second, the District 

states that ‘‘all case-by-case 

determinations submitted for review to 

ARB are made available to the public 

via public Web posting at ARB’s Carl 

Moyer Program Web site, and [that] the 

District is required by the Carl Moyer 

Program Guidelines to keep a copy of 

the determination in the project file.’’ 

Third, the District states that under 

Section 3.2.2 of Rule 9610, no case-bycase determination may be used to 

quantify emission reductions under the 

rule unless each determination is 

reviewed through a public process and 

submitted to the EPA in accordance 

with Section 7.0. Finally, the District 

confirms the EPA’s understanding that 

emission reductions from projects 

subject to case-by-case determinations 

are not included in the 2013 Annual 

Demonstration Report but disagrees 

with the EPA’s statement in the 

proposed rule that such projects ‘‘are 

not eligible for SIP credit,’’ noting that 

the reason these are not included in the 

2013 Annual Demonstration Report is 

that they are ‘‘extremely rare and make 

up less than one percent of District 

administered incentive programs.’’ In 

conclusion, the District maintains that 

case-by-case determinations made in 

accordance with Rule 9610 should be 

eligible for SIP credit. 

Response 18: We do not dispute the 

District’s statement that ‘‘case-by-case 

determinations’’ under the Carl Moyer 

Program are not limited to 

determinations that allow for a longer 

project life and note the broad definition 

of the term ‘‘case-by-case 

determination’’ in Section 2.4 of Rule 

9610. We discussed case-by-case 

determinations in the proposed rule 

only to note that, although the portions 

of the three incentive program 

guidelines that we reviewed generally 

establish criteria consistent with the 

requirements of the Act, the provisions 

regarding case-by-case determinations 

in these portions of the guidelines do 

not adequately address the Act’s 

requirements for SIP emission reduction 

credit (78 FR 53113, 53120). We 

referenced, as an example, a provision 

in the 2011 Carl Moyer Program 

guideline entitled ‘‘Project Life’’ and 

noted that emission reductions from any 

project subject to a case-by-case 

determination under such a provision 

would not be eligible for SIP credit 

‘‘unless the District submits the 

individual determination for EPA 

review and approval through the SIP 

process’’ (78 FR 53113, 53120 

(referencing 2011 Carl Moyer Program 

guideline at Chapter 9, Section 

C.1(c)(5)). The purpose of this 

discussion was to make clear that the 

EPA is not, through this rulemaking, 

authorizing the District to rely on any 

project subject to a case-by-case 

determination under the referenced 

incentive program guidelines, nor is the 

EPA approving any such case-by-case 

determination. 

As the District correctly notes, Rule 

9610 specifically prohibits the District 

from using a case-by-case determination 

to quantify emission reductions under 

the rule ‘‘unless such determination is 

reviewed through a public process and 

submitted to EPA in accordance with 

Section 7.0.’’ Rule 9610, Section 3.2.2. 

Section 7.0 of the rule states, in relevant 

part, that ‘‘[e]ach SIP submission in 

which the District relies on [projections 

of SIP-creditable emission reductions] 

shall contain a demonstration that the 

applicable incentive program 

guideline(s) continues to provide for 

SIP-creditable emission 

reductions. . . .’’ Read together, these 

provisions require the District to submit 

any case-by-case determination that it 

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29350 Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 

50Total NOX and direct PM2.5 emissions in the 

SJV are projected to be 291 tpd and 63.3 tpd, 

respectively, in 2014. See 2011 Progress Report, 

Appendix C, Table C–1. 

intends to rely on for SIP credit to the 

EPA in a formal SIP submission, 

together with a demonstration that the 

determination and the project(s) subject 

to it provide for emission reductions 

that are surplus, quantifiable, 

enforceable, and permanent. See Rule 

9610, Section 7.0 (establishing 

requirements for SIP submissions) and 

Section 2.25 (defining ‘‘SIP-Creditable 

Emission Reduction’’). Upon the EPA’s 

approval of such a SIP consistent with 

CAA requirements, projects subject to 

the identified case-by-case 

determination would be eligible for SIP 

credit. 

In sum, case-by-case determinations 

under the Carl Moyer Program are not 

currently eligible for SIP credit but may 

become eligible for credit through the 

EPA’s approval of SIP submissions 

going forward. Should the District 

intend to rely on emission reductions 

from a project subject to a case-by-case 

determination to satisfy a SIP 

requirement, it may do so only 

following its submission of the 

determination to the EPA as part of a 

SIP that meets the requirements of Rule 

9610, Section 7.0 and the EPA’s 

approval of such SIP consistent with the 

requirements of the CAA. 

The EPA appreciates the District’s 

statement confirming that projects 

subject to case-by-case determinations 

are not included in the 2013 Annual 

Demonstration Report and is approving 

the incentive-based emission reductions 

in the Contingency Measure SIP based 

on our understanding that it does not 

rely on any case-by-case determination. 

C. General Comments 

Comment 19: Earthjustice urges the 

EPA not to approve the San Joaquin 

Valley contingency measures for the San 

Joaquin Valley’s PM2.5 SIP. Earthjustice 

argues that the Contingency Measure 

SIP ‘‘does not comply with the Clean 

Air Act and would leave Valley 

residents without meaningful air quality 

protections if and when the Valley fails 

to attain the 1997 PM2.5 standards.’’ 

Response 19: For the reasons 

discussed in our proposed rule and 

further explained in our responses to 

comments above, we have determined 

that the Contingency Measure SIP 

corrects the deficiency that prompted 

our partial disapproval of the SJV PM2.5

SIP and strengthens the SIP and are, 

therefore, approving it into the 

California SIP. 

We disagree with the claim that the 

approval of this Contingency Measure 

SIP would leave SJV residents ‘‘without 

meaningful air quality protections’’ 

should the SJV fail to meet the 1997 

PM2.5 standards by the applicable 

attainment date of April 5, 2015. The 

Contingency Measure SIP demonstrates 

that California has adopted measures 

that will achieve substantial emission 

reductions in and after 2015 that will 

provide significant on-going air quality 

benefits to SJV residents. Specifically, 

the Contingency Measure SIP shows 

that in calendar year 2015, adopted and 

implemented federal and State mobile 

source control measures will reduce 

NOX emissions by 21 tpd; State and 

local incentive grant funds will reduce 

NOX emissions by an additional 4.15 

tpd; and the SIP-approved contingency 

provision in the District’s residential 

woodburning rule, Rule 4901, will 

provide 3.1 tpd of direct PM2.5

reductions should we determine that the 

SJV has failed to attain the 1997 PM2.5

standards by the applicable attainment 

date of April 5, 2015 (78 FR 53113, 

53123). Compared to projected 2014 

levels of NOX and direct PM2.5

emissions in the SJV, these contingency 

measures will provide an additional 9 

percent reduction in NOX emissions and 

an additional 5 percent reduction in 

direct PM2.5 emissions in 2015.50

Comment 20: Earthjustice objects to 

the EPA’s statement that contingency 

measures must be implemented 

‘‘quickly without significant additional 

action by the state,’’ stating that the 

addition of ‘‘significant’’ in 40 CFR 

51.1012 was the result of a scrivener’s 

error and is not consistent with the 

plain statutory language of CAA section 

172(c)(9). Quoting from the preamble to 

the EPA’s 2007 PM2.5 Implementation 

Rule, Earthjustice notes that the EPA 

acknowledged this error in its adoption 

of the rule. 

Response 20: We agree that the 

inclusion of ‘‘significant’’ in 40 CFR 

51.1012 was in error and note the 

correction. 

Comment 21: Mr. Unger comments 

that the SJV area has not met the PM2.5

standards and that air quality has not 

improved much in the past few years. 

He also states that both the SJV’s 

citizens and the District are reluctant to 

do more to improve air quality. For 

these reasons, he urges the EPA to not 

approve the SIP for the 1997 annual and 

24-hour PM2.5 standards. He disagrees 

with our statement that ‘‘the State has 

most likely done all it can to correct the 

deficiency’’ given the continuing 

nonattainment in the San Joaquin 

Valley. He states that if the EPA were to 

impose sanctions on the SJV, it would 

encourage California to adopt controls 

sufficient to attain the standards. He 

includes a list of suggested measures in 

his comments. 

Response 21: In 2011, we approved all 

but one element of California’s SIP to 

attain the 1997 annual and 24-hour 

PM2.5 standards in the SJV (76 FR 

69896, November 9, 2011). Our action 

here is to approve the last outstanding 

element of that SIP, the contingency 

measures for failure to make RFP or 

attain. Our approval is based on our 

determination that the Contingency 

Measure SIP corrects the deficiency that 

prompted our 2011 disapproval of the 

contingency measure provisions in the 

SJV PM2.5 SIP. Although the commenter 

asserts generally that SJV citizens and 

the District are ‘‘reluctant’’ to do more 

to improve air quality, that the SJV area 

has not complied with the NAAQS for 

many years, and that the threat of 

sanctions might encourage further 

regulatory action, the commenter fails to 

identify any specific basis under the 

CAA for disapproving the Contingency 

Measure SIP. 

The purpose of contingency measures 

is to continue progress in reducing 

emissions while the SIP is being revised 

to meet a missed RFP milestone or 

correct continuing nonattainment. 

Should the EPA determine that the SJV 

has failed to attain the 1997 standards 

by the applicable attainment date (April 

5, 2015), the State and District will be 

required to implement these 

contingency measures and to revise the 

SIP to assure expeditious attainment 

consistent with applicable CAA 

requirements. 

We appreciate the list of control 

measures and will forward it to the 

District for its consideration during 

development of the next PM2.5 SIP for 

the Valley. 

III. Final Actions 

The EPA is approving the 

Contingency Measure SIP (adopted June 

20, 2013 and submitted July 3, 2013) 

based on the Agency’s conclusion that 

this SIP submission corrects the 

deficiency in the CAA section 172(c)(9) 

attainment contingency measures that 

was one of two bases for the EPA’s 

partial disapproval of the SJV PM2.5 SIP 

on November 9, 2011 (76 FR 69896). 

The EPA also finds that the CAA 

section 172(c)(9) RFP contingency 

measure requirement for the 2012 RFP 

milestone year is moot as applied to the 

SJV nonattainment area because the area 

has achieved its SIP-approved emission 

reduction benchmarks for the 2012 RFP 

milestone year. This finding corrects the 

deficiency in the CAA section 172(c)(9) 

RFP contingency measures that was the 

second of two bases for the EPA’s partial 

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Federal Register / Vol. 79, No. 99 / Thursday, May 22, 2014 / Rules and Regulations 29351 

disapproval of the SJV PM2.5 SIP on 

November 9, 2011 (76 FR 69896). 

Finally, the EPA is approving 

enforceable commitments by the District 

to monitor, assess, and report on actual 

NOX and direct PM2.5 emission 

reductions achieved through its 

implementation of specific Prop 1B and 

Carl Moyer Program grants and to 

remedy any identified emission 

reduction shortfall in a timely manner 

as found on page 3 of the SJVUPACD 

Governing Board Resolution No. 13–6– 

18, dated June 20, 2013. 

Today’s final actions lift the CAA 

section 179(b)(2) offset sanctions and 

terminate the CAA section 179(b)(1) 

highway funding sanction clock 

triggered by the 2011 partial disapproval 

of the SJV PM2.5 SIP. These actions also 

terminate the EPA’s obligation under 

CAA section 110(c) to promulgate a 

corrective Federal implementation plan 

within two years of the partial 

disapproval. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, the 

EPA’s role is to approve State choices, 

provided that they meet the criteria of 

the Clean Air Act. Accordingly, this 

action merely approves State law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by State law. For 

that reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• does not provide the EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because it does not 

apply in Indian country located in the 

State, and the EPA notes that it will not 

impose substantial direct costs on tribal 

governments or preempt tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this action 

and other required information to the 

U.S. Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by July 21, 2014. Filing a petition 

for reconsideration by the Administrator 

of this final rule does not affect the 

finality of this action for the purposes of 

judicial review nor does it extend the 

time within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements (see section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Incorporation by reference, 

Nitrogen dioxide, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides. 

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

Dated: April 28, 2014. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS. 

■ 1. The authority citation for Part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.220 is amended by 

adding paragraph (c)(438) to read as 

follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(438) The following plan was 

submitted on July 3, 2013, by the 

Governor’s Designee. 

(i) [Reserved] 

(ii) Additional materials. 

(A) San Joaquin Valley Unified Air 

Pollution Control District. 

(1) ‘‘Quantifying Contingency 

Reductions for the 2008 PM2.5 Plan’’ 

(dated June 20, 2013), adopted October 

7, 2011. 

(2) SJVUAPCD Governing Board 

Resolution No. 13–6–18, dated June 20, 

2013, ‘‘In the Matter of: Authorizing 

Submittal of the ‘Quantification of 

Contingency Reductions for the 2008 

PM2.5 Plan’ to EPA.’’ 

(3) Electronic mail, dated July 24, 

2013, from Samir Sheikh, SJVUAPCD, to 

Kerry Drake, EPA Region 9, ‘‘RE: Per our 

conversation earlier.’’ 

(B) State of California Air Resources 

Board. 

(1) CARB Executive Order 13–30, 

dated June 27, 2013, ‘‘San Joaquin 

Valley PM2.5 Contingency Measures 

Update.’’ 

[FR Doc. 2014–11681 Filed 5–21–14; 8:45 am] 

BILLING CODE 6560–50–P 

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