70616 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Proposed Rules 

Venture designated representative, the 

on-site project manager by telephone 

number 785–953–1465 or on Marine 

Band Radio VHF–FM channels 13 and 

16 from the pusher tug Miss Stacy to 

request permission. If permission is 

granted, mariners must proceed at their 

own risk and strictly observe any and all 

instructions provided by the COTP, 

Skanska-Corman-McLean, Joint Venture, 

or designated representative to the 

mariner regarding the conditions of 

entry to and exit from any area of the 

safety zone. The COTP or the COTP’s 

representative can be contacted by 

telephone number 410–576–2693 or on 

Marine Band Radio VHF–FM channel 

16 (156.8 MHz). 

(3) The Coast Guard will publish a 

notice in the Fifth Coast Guard District 

Local Notice to Mariners and issue 

marine information broadcasts on VHF– 

FM marine band radio announcing 

specific enforcement dates and times. 

(d) Enforcement officials. The U.S. 

Coast Guard may be assisted in the 

patrol and enforcement of the safety 

zone by Federal, State, and local 

agencies. 

(e) Enforcement period. This section 

will be subject to enforcement from 

12:01 a.m. on November 08, 2023, to 

11:59 p.m. on January 30, 2023. 

Dated: October 05, 2023. 

David E. O’Connell, 

Captain, U.S. Coast Guard, Captain of the 

Port Maryland-National Capital Region. 

[FR Doc. 2023–22545 Filed 10–11–23; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 2 and 51 

[EPA–HQ–OAR–2004–0489; FRL–8604–04– 

OAR] 

Revisions to the Air Emissions 

Reporting Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule; extension of 

comment period. 

SUMMARY: The Environmental Protection 

Agency (EPA) is extending the comment 

period for the proposed revisions to the 

Air Emissions Reporting Requirements 

(AERR), published in the Federal 

Register on August 9, 2023. The current 

comment period for the proposed rule is 

set to end on October 18, 2023. EPA has 

received numerous requests to extend 

the comment period given the 

complexity and length of the proposed 

rulemaking. The EPA is extending the 

comment period for the proposed action 

to November 17, 2023. The EPA is also 

extending the comment period for the 

associated Information Collection 

Request (ICR), number 2170.09, for the 

proposed AERR to November 17, 2023. 

DATES: The comment period for the 

proposed rule and ICR published on 

August 9, 2023, at 88 FR 54118 is 

extended. Comments must be received 

on or before November 17, 2023. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2004–0489, by one of the 

following methods: 

• www.regulations.gov: Follow the 

online instructions for submitting 

comments. 

• Email: a-and-r-docket@epa.gov. 

Fax: (202) 566–9744. 

• Mail: Air Emissions Reporting 

Requirements Rule, Docket No. EPA– 

HQ–OAR–2004–0489, Environmental 

Protection Agency, Mailcode: 2822T, 

1200 Pennsylvania Ave. NW, 

Washington, DC 20460. Please include 

two copies. 

• Hand Delivery: Docket No. EPA– 

HQ–OAR–2004–0489, EPA Docket 

Center, Public Reading Room, EPA 

West, Room 3334, 1301 Constitution 

Ave. NW, Washington, DC 20460. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: All submissions received 

must include the Docket ID No. for this 

rulemaking. Comments received may be 

posted without change to https://

www.regulations.gov/, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Marc Houyoux, Office of Air Quality 

Planning and Standards, Air Quality 

Assessment Division, Emission 

Inventory and Analysis Group (C339– 

02), U.S. Environmental Protection 

Agency, Research Triangle Park, NC 

27711; telephone number: (919) 541– 

3649; email: NEI_Help@epa.gov (and 

include ‘‘AERR’’ on the subject line). 

SUPPLEMENTARY INFORMATION: On 

Wednesday, August 9, 2023, the EPA 

published proposed revisions to the Air 

Emissions Reporting Requirements 

along with an associated ICR in the 

Federal Register. The comment period 

for the proposed AERR was for 70 days, 

ending on October 18, 2023. On 

September 14, 2023, the EPA reopened 

the comment period for the ICR (88 FR 

63046). The EPA received numerous 

comments requesting that the Agency 

extend the comment period for the 

proposed AERR. To ensure the public 

has sufficient time to review the 

proposed AERR and the associated ICR, 

the EPA is extending the comment 

periods for both by 30 days, ending on 

November 17, 2023. 

Dated: October 5, 2023. 

Richard A. Wayland, 

Director, Air Quality Assessment Division, 

Office of Air Quality and Planning Standards. 

[FR Doc. 2023–22530 Filed 10–11–23; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2023–0494; FRL–11442– 

01–R9] 

Air Plan Approval; California; South 

Coast Air Quality Management District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

revision to the South Coast Air Quality 

Management District (SCAQMD or ‘‘the 

District’’) portion of the California State 

Implementation Plan (SIP) as SIP 

strengthening. This revision concerns 

emissions of oxides of nitrogen (NOX) 

and particulate matter (PM) from 

indirect sources associated with 

warehouses. The EPA is proposing to 

approve SCAQMD Rule 2305, 

‘‘Warehouse Indirect Source Rule— 

Warehouse Actions and Investments to 

Reduce Emissions (WAIRE) Program,’’ 

to regulate these emission sources under 

the Clean Air Act (CAA or the Act). The 

EPA is taking comments on this 

proposal and plans to follow with a 

final action. 

DATES: Comments must be received on 

or before November 13, 2023. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09– 

OAR–2023–0494 at https://

www.regulations.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. The EPA may publish 

any comment received to its public 

docket. Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Proposed Rules 70617 

1SCAQMD, Final Staff Report, ‘‘Proposed Rule 

2305—Warehouse Indirect Source Rule— 

Warehouse Actions and Investments to Reduce 

Emissions (WAIRE) Program and Proposed Rule 

316—Fees for Rule 2305’’, May 2021, ‘‘SCAQMD 

Final Staff Report’’, 12. 

2SCAQMD Final Staff Report, 13. 

3 Id. 

4SCAQMD, Final 2016 Air Quality Management 

Plan, March 2017, pages 4–25, 4–28, and 4–29. The 

2016 South Coast AQMP designates the warehouse 

measure as MOB–03 (‘‘Emission Reductions at 

Warehouse Distribution Centers’’). 

5 84 FR 3305 (February 12, 2019), corrected at 84 

FR 19680 (May 3, 2019) (2006 PM2.5 NAAQS); 84 

FR 52005 (October 1, 2019) (1-hour, 1997 and 2008 

Ozone NAAQS in South Coast); 85 FR 71269 

(November 9, 2020) (2012 PM2.5 NAAQS); and 85 

FR 57714 (September 16, 2020) (2008 Ozone 

NAAQS in Coachella Valley). 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. If you need 

assistance in a language other than 

English or if you are a person with 

disabilities who needs a reasonable 

accommodation at no cost to you, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: La 

Kenya Evans-Hopper, EPA Region IX, 75 

Hawthorne St., San Francisco, CA 

94105. By phone: (415) 972–3245 or by 

email at evanshopper.lakenya@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to the EPA. 

Table of Contents 

I. The State’s Submittal 

A. What rule did the State submit? 

B. Are there other versions of this rule? 

C. What is the purpose of the rule? 

D. What requirements does the rule 

establish? 

II. The EPA’s Evaluation and Action 

A. How is the EPA evaluating the rule? 

B. Does the rule meet the evaluation 

criteria? 

C. Public comment and proposed action 

III. Incorporation by Reference 

IV. Statutory and Executive Order Reviews 

I. The State’s Submittal 

A. What rule did the State submit? 

Table 1 lists the rule addressed by this 

proposal with the dates that it was 

adopted by the local air agency and 

submitted by the California Air 

Resources Board (CARB). 

TABLE 1—SUBMITTED RULE

Local agency Rule # Rule title Amended Submitted 

SCAQMD .................... 2305 Warehouse Indirect Source Rule—Warehouse Actions and Investments to Reduce Emissions (WAIRE) Program.05/07/2021 08/13/2021 

On February 13, 2022, the submittal 

for SCAQMD Rule 2305 was deemed 

complete by operation of law with 

respect to the completeness criteria in 

40 CFR part 51, appendix V, which 

must be met before formal EPA review. 

B. Are there other versions of this rule? 

SCAQMD Rule 2305 is a new rule. 

There are no previously approved 

versions of the rule in the applicable 

SIP. 

C. What is the purpose of the rule? 

Emissions of NOX contribute to the 

production of ground-level ozone, smog 

and PM, which harm human health and 

the environment. Emissions of PM, 

including PM equal to or less than 2.5 

microns in diameter (PM2.5) and PM 

equal to or less than 10 microns in 

diameter (PM10), contribute to effects 

that are harmful to human health and 

the environment, including premature 

mortality, aggravation of respiratory and 

cardiovascular disease, decreased lung 

function, visibility impairment, and 

damage to vegetation and ecosystems. 

Section 110(a) of the CAA requires 

States to submit regulations that control 

NOX and PM emissions for purposes of 

attainment and maintenance of the 

National Ambient Air Quality Standards 

(NAAQS) and to meet other CAA 

requirements. 

The purpose of SCAQMD Rule 2305 

is to reduce local and area-wide 

emissions of NOX and PM, by 

facilitating emission reductions 

associated with warehouses and the 

mobile sources attracted to warehouses 

in order to assist in meeting State and 

Federal air quality standards for ozone 

and PM2.5. Mobile sources of emissions 

associated with warehouses include the 

trucks that deliver goods to and from the 

facilities, yard trucks, transport 

refrigeration units (TRUs) located on 

trucks and trailers, and passenger 

vehicle trips associated with employees 

and visitors.1 Most of these vehicles are 

diesel powered, except for passenger 

vehicles which are typically gasoline 

powered. Heavy-duty trucks contribute 

roughly 90% of the overall mobile 

source inventory of NOX emissions from 

warehouse operations, followed in order 

of importance from an emissions 

standpoint by TRUs, passenger vehicles, 

and then yard trucks.2 Additional 

emissions sources can include onsite 

stationary equipment (e.g., diesel 

backup generators or manufacturing 

equipment).3 The rule applies within 

the jurisdiction of the SCAQMD, which 

includes all of Orange County, the nondesert portions of Los Angeles and San 

Bernardino counties, and all of 

Riverside County (except for the Palo 

Verde Valley in far eastern Riverside 

County). 

Also, through adoption of the 2016 

South Coast Air Quality Management 

Plan (AQMP), the SCAQMD committed 

to assess and identify potential actions 

to further reduce emissions associated 

with emission sources operating in and 

out of warehouse distribution centers,4

and the SCAQMD adopted Rule 2305 to 

fulfill that commitment. The purpose of 

the 2016 South Coast AQMP is to 

establish a path toward the goal of 

attainment for ozone and PM2.5 NAAQS 

in the nonattainment areas subject to 

SCAQMD jurisdiction. 

The EPA has taken several actions on 

the 2016 South Coast AQMP. With 

certain exceptions not relevant here, the 

EPA approved portions of the 2016 

South Coast AQMP addressing the 

Serious Area requirements for the 2006 

24-hour PM2.5 NAAQS in the South 

Coast Air Basin (‘‘South Coast’’); the 

portions of the 2016 South Coast AQMP 

updating the control strategies and 

attainment demonstrations for the 1- 

hour and 1997 8-hour ozone NAAQS, 

and addressing the 2008 8-hour ozone 

NAAQS in the South Coast; the portions 

of the 2016 South Coast AQMP 

addressing the Moderate Area 

requirements for the 2012 annual PM2.5

NAAQS in the South Coast; and the 

portions of the 2016 South Coast AQMP 

addressing the Severe Area 

requirements for the 2008 8-hour ozone 

NAAQS in Coachella Valley.5 In so 

doing, the EPA approved the 

SCAQMD’s Stationary and Mobile 


ddrumheller on DSK120RN23PROD with PROPOSALS1
70618 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Proposed Rules 

6SCAQMD Rule 2305(d)(1)(A) and Tables 1 and 

2. 

7SCAQMD Rule 2305(d)(1)(B). 

8SCAQMD Final Staff Report, 27, 35. As 

explained in footnote 44 of the SCAQMD Final Staff 

Report, the SCAQMD adopted WATTs as the 

parameter for determining the WPCO for 

warehouses rather than emissions or vehicle miles 

travelled (VMT). SCAQMD decided against a 

parameter like emissions or VMT to reduce the 

administrative burden on warehouse operators and 

the SCAQMD compliance staff. Also, the SCAQMD 

notes that motor carriers had expressed concern 

that they do not want to reveal where or how far 

they travel to warehouse operators or SCAQMD in 

order to keep their clients private. 

9 In Rule 2305(c)(33), the term ‘‘warehousing 

activities’’ is defined as meaning operations at a 

warehouse related to the storage and distribution of 

goods, including but not limited to the storage, 

labelling, sorting, consolidation and 

deconsolidation of products into different size 

packages. Supporting office administration, 

maintenance, manufacturing areas, or retail sales 

areas open to the general public, within the same 

warehouse building, that are physically separate 

from the warehouse area, are not considered 

warehousing activities for the purpose of the rule. 

10The exemptions are set forth in SCAQMD Rule 

2305(g). 

11Executive Officer refers to the Executive Officer 

or designee of the SCAQMD. The Executive Officer 

is the Air Pollution Control Officer for the 

SCAQMD. 12For example, if a warehouse operator purchases 

a zero-emission truck and anticipates using this 

same truck to earn WAIRE Points, but a malfunction 

in the powertrain due to an equipment 

manufacturer defect (e.g., malfunctioning electric 

motor, fuel cell stack, etc.) results in an inability to 

use the equipment, then the operator may apply for 

relief for the WAIRE Points that would have be 

earned. The exemption would be granted if the 

vehicle or equipment is shown to be due to a 

manufacturer defect or an installation defect. 

SCAQMD Final Staff Report, 37. 

13SCAQMD Rule 2305, Table 3. 

14SCAQMD Rule 2305(d)(1) and (2). 

15SCAQMD Rule 2305, Table 3. 

16NZE and ZE truck visits can come from the 

warehouse operator’s own fleet or by any other 

third-party fleet (whether contracted by the 

warehouse operator or not). See SCAQMD Final 

Staff Report, at 99. The term ‘‘truck visits’’ refers to 

the round-trip a truck takes to and from a 

warehouse. For example, 520 ‘‘truck visits’’ is the 

same as 1,040 one-way ‘‘truck trips’’ as explained 

in the SCAQMD Final Staff Report, 30. 

Source Control Measures, including the 

facility-based mobile source measures 

such as the Emission Reductions at 

Warehouse Distributions Center 

measure. The 2016 South Coast AQMP 

includes enforceable commitments by 

the SCAQMD to achieve certain 

aggregate emissions reductions by 

certain years through adoption and 

implementation of the SCAQMD’s 

Stationary and Mobile Source Control 

Measures. 

D. What requirements does the rule 

establish? 

Rule 2305 applies to owners and 

operators of warehouses located in the 

SCAQMD with greater than 100,000 

square feet of indoor floor space in a 

single building and who operate at least 

50,000 square feet of the warehouse for 

warehousing activities. Warehouse 

operators are required either to earn 

points, as discussed below, from 

emission reducing activities, or to pay a 

mitigation fee. Warehouse facility 

owners or warehouse land owners may 

opt in to earn Warehouse Actions and 

Investments to Reduce Emissions Points 

(‘‘WAIRE Points’’) and transfer these 

points to a warehouse operator at the 

same site. Both warehouse facility 

owners and operators must comply with 

certain recordkeeping and reporting 

requirements under the rule. Warehouse 

facility owners were required to submit 

initial Warehouse Operations 

Notifications to the SCAQMD by 

September 1, 2021, and then again 

within certain prescribed periods 

thereafter if certain conditions occur. 

Warehouse operators are also required 

to submit their Initial Site Information 

Reports (ISIR) and Annual WAIRE 

Reports to the SCAQMD. All of the 

notifications and reports are to be 

submitted through the WAIRE Program 

Online Portal (WAIRE POP). In 

addition, records which document the 

accuracy and validity of all information 

submitted to the SCAQMD as required 

by the rule must be kept by the 

warehouse owner, or operator as 

applicable, for a minimum of seven 

years from the reporting deadline. 

Records must be made available upon 

request to the SCAQMD during normal 

business hours. 

The principal substantive requirement 

in the rule is the requirement that each 

warehouse operator meet an annual 

compliance obligation by earning 

WAIRE Points. The annual compliance 

obligation, referred to as the WAIRE 

Points Compliance Obligation (WPCO), 

for each warehouse operator is 

calculated based on Weighted Annual 

Truck Trips (WATTs) multiplied by a 

stringency factor (0.0025 points per 

WATT) and an annual variable (which 

accounts for the phased implementation 

of the rule).6 WATT reflects all trips in 

a given year by trucks with gross vehicle 

weight ratings (GVWR) greater than 

8,500 pounds but multiplies trips by 

trucks with GVWRs greater than 33,000 

pounds (‘‘Class 8’’ trucks) by 2.5.7 The 

WATTs parameter serves as a proxy for 

overall warehouse activity and 

emissions.8 A warehouse owner may 

earn WAIRE Points and may transfer 

them to any warehouse operator at the 

site where the WAIRE Points were 

earned within a three-year period. 

The requirement to earn WAIRE 

points to meet a WPCO does not apply 

to warehouse operators who use less 

than 50,000 square feet for warehousing 

activities of a warehouse that is greater 

than or equal to 100,000 square feet.9

This exemption does not apply if the 

same parent company owns or controls 

multiple operators in the same building 

who collectively use more than 50,000 

square feet of space for warehousing 

activity.10 A warehouse operator with a 

WPCO that is less than 10 in any 

compliance period also is exempt from 

earning WAIRE Points for that 

compliance period. In both cases, 

certain recordkeeping and reporting 

requirements (as stated above) under the 

rule continue to apply. 

In situations where investments or 

actions that were completed by a 

warehouse owner or operator perform 

significantly lower than anticipated due 

to unforeseen circumstances beyond the 

control of the warehouse owners or 

operators resulting in lower than 

anticipated earned WAIRE Points, the 

warehouse owner or operator may apply 

to the Executive Officer 11 for a partial 

or complete exemption.12 This 

application must specify what portion 

of the WPCO that the malfunctioning 

equipment would have satisfied, and all 

relevant details on why the anticipated 

action was unable to earn the expected 

WAIRE Points. The Executive Officer 

will use the following criteria to grant 

a partial or complete exemption: (a) 

there is a manufacturing defect or an 

installation defect when using 

manufacturer-approved methods, and 

(b) the warehouse operator can 

demonstrate that despite good faith 

efforts for repairs on the vehicle or 

equipment, through either the warranty 

or other manufacturer and/or installerapproved methods, the repairs were not 

completed in a timely manner. 

Warehouse owners (who opt in) and 

operators are required to earn WAIRE 

Points either: through the completion of 

specified actions from the list of actions 

in the WAIRE Menu,13 completion of 

actions in an approved custom plan, 

through payment of a mitigation fee, or 

through a combination of these three 

options.14 The WAIRE Points provision 

within Rule 2305 includes a WAIRE 

Menu with a list of specific actions that 

a warehouse owner or operator may take 

to earn points to meet the annual 

WPCO.15 The menu includes nine 

different types of actions or investments 

that qualify for points: (i) acquire Zero 

Emission (ZE)/Near-Zero Emission 

(NZE) Trucks, (ii) number of ZE/NZE 

Truck Visits,16 (iii) acquire ZE Yard 

Truck, (iv) use ZE Yard Truck, (v) install 

onsite ZE charging or fueling 

infrastructure, (vi) use onsite ZE 

charging or fueling infrastructure, (vii) 

install and energize onsite solar panels, 

(viii) use onsite solar panels, and (ix) 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Proposed Rules 70619 

17SCAQMD Final Staff Report, 111. 

18SCAQMD, Annual Report for the Warehouse 

Actions and Investments to Reduce Emissions 

(WAIRE) Program, January 2023, 16. The report 

represents 47% of warehouses in the SCAQMD. The 

average WPCO estimate of 80 points reflects 

SCAQMD’s anticipated aggregate WPCO of 

approximately 30,000 divided by 380, the number 

of Phase I warehouses for which Initial Site 

Information Reports (ISIR) were submitted in time 

for the report. The 30,000 aggregate point value 

reflects a 0.33 annual variable for the first 

compliance period for Phase I warehouses. 

19Rule 2305, table 2 (‘‘Annual Variable’’). 

20SCAQMD Rule 2305(d)(4). 

21SCAQMD Final Staff Report, 86. A copy of the 

current version of the SCAQMD’s WAIRE 

Implementation Guidelines, version 1.1, is included 

in the docket for this rulemaking. 

22SCAQMD Rule 2305(d)(5). 

23SCAQMD, Resolution 21–9, signed June 4, 

2021, 6. 

24SCAQMD Final Staff Report, 40. 

25Source Receptor Areas (SRAs) are shown in a 

SCAQMD-prepared map titled ‘‘General Forecast 

Areas & Air Monitoring Areas’’. 

26SCAQMD Final Staff Report, 40. 

27SCAQMD, Annual Report for the Warehouse 

Actions and Investments to Reduce Emissions 

(WAIRE) Program, January 2023, 15. 

28 Id. 

29SCAQMD Final Staff Report, Tables 15 and 16. 

30SCAQMD Final Staff Report, 62. 

install MERV 16 or greater filters or 

filter systems in residences, schools, 

daycares, hospitals, or community 

centers. 

Rule 2305 specifies the number of 

points for the different types of actions 

or investments, ranging from 1 point 

(per 165,000 kilowatt-hours) from the 

use of onsite solar panels to 1,680 points 

for installation of a 700-kilogram-perday hydrogen (H2) fueling station. 

SCAQMD assigned WAIRE Points to the 

different types of actions or investments 

based on three key parameters: cost, 

regional emissions reductions, and local 

emissions reduction.17 For example, 

under Rule 2305, acquiring a new class 

8 ZE/NZE truck in the warehouse 

operator fleet would be worth 126 

points. Similarly, 365 visits by class 8 

ZE/NZE trucks to a warehouse would be 

worth 51 points during a given annual 

compliance period. 

Based on the most current 

information contained in the first 

Annual Report for the WAIRE Program, 

the average WPCO per warehouse 

operator was rounded to 80 points for 

the 2022 compliance period.18 The same 

number of WATTs in 2023 and 2024 

(and beyond) for the same warehouse 

operators would result in an average 

WPCO of 160 points and 240 points, 

respectively, taking into account the 

annual variable under Phase I (which 

applies to warehouses equal to or 

greater than 250,000 square feet) for 

those years.19

Under the rule, the Custom WAIRE 

Plan is a second option that allows 

warehouse owners or operators to earn 

WAIRE Points through a customized 

plan specific for a warehouse facility.20

Custom WAIRE Plan applications must 

demonstrate how the proposed action 

will earn WAIRE Points based on the 

incremental cost of the action, the NOX

emission reductions from the action, 

and the diesel PM (DPM) emission 

reductions from the action, relative to 

baseline conditions. Custom WAIRE 

Plans may not include actions that are 

included in the WAIRE Menu on Table 

3 of Rule 2305. The methodology to 

determine the total WAIRE Points for an 

action in a Custom WAIRE Plan 

application must be consistent with 

methods in the WAIRE Program 

Implementation Guidelines.21 Any 

WAIRE Points earned from a Custom 

WAIRE Plan for emission reductions 

must be quantifiable, verifiable, and real 

as determined by the Executive Officer 

and consistent with the WAIRE 

Implementation Guidelines. 

Warehouse owners or operators have 

a third option to meet the annual 

compliance obligation that involves 

payment of a mitigation fee in the 

amount of $1,000 for each WAIRE 

Point.22 The mitigation fee is an option 

for warehouse operators to fulfill all or 

a portion of their WPCO. In adopting 

Rule 2305, the SCAQMD Governing 

Board directed the Executive Officer to 

develop the WAIRE Mitigation Program 

with funds generated from mitigation 

fee payments.23 Any solicitations for 

requests for funding, or funding 

allocations that would be spent from the 

WAIRE Mitigation Program, must be 

approved by the SCAQMD Governing 

Board in a public meeting.24 In adopting 

the Rule 2305, the Board also specified 

that proposed solicitations and project 

awards must be presented to the 

Governing Board no less frequently than 

on an annual basis. The Board directed 

the Executive Officer to track mitigation 

fees paid by warehouse operators 

according to the Source Receptor Area 

(SRA) 25 and county in which they are 

located to achieve or facilitate emission 

reductions in the same SRAs and 

counties in which the mitigation fees 

were paid. As adopted by the Board, if 

sufficient projects are not identified in 

each individual SRA relative to the 

available funding, then funds may be 

directed either to an adjacent SRA in the 

same county or held for a subsequent 

funding. The SCAQMD states that the 

mitigation fees collected from Rule 2305 

will go towards the purchase of NZE 

and ZE trucks, installation of ZE 

charging and/or hydrogen fueling 

infrastructure.26 Funds may also be 

combined with other incentive 

programs, such as Carl Moyer and 

Proposition 1B, as allowable on a caseby-case basis. 

As noted above, warehouse operators 

have three basic options, or any 

combination of these options, through 

which to earn or obtain points sufficient 

to meet their WPCO. Warehouse owners 

may also earn WAIRE Points using the 

same methods or options available to 

warehouse operators and may transfer 

these WAIRE Points to any warehouse 

operator at the site where the WAIRE 

Points were earned within a three-year 

period. 

In the SCAQMD’s first Annual Report 

for the WAIRE Program, the SCAQMD 

compiled information from 380 ISIR’s 

that had been submitted by warehouse 

operators through September 30, 2022. 

The first Annual Report suggests that 

warehouse operators expect to meet 

their WPCOs, at least in the early years 

of the program, primarily through ZE 

hostler usage, (i.e., yard tractors that 

move trailers and containers around 

warehouse facilities; approximately 

40% of the anticipated WAIRE points 

based on the ISIRs received), NZE Class 

8 Truck Visits (approximately 27%), 

and ZE hostler acquisition 

(approximately 8%).27 The submitted 

ISIRs also suggest that, in addition to 

taking actions from the WAIRE Menu, 

warehouse operators anticipate earning 

about 5,500 points through mitigation 

fees, representing about 3% of total 

points earned, and about $5.5 million.28

The SCAQMD developed emissions 

reduction estimates for various 

scenarios representing different 

compliance approaches to Rule 2305.29

The estimates of reductions in 

emissions of NOX and DPM vary widely 

among the scenarios and from year to 

year but represent positive emission 

reductions beyond those that are 

expected by the SCAQMD to occur due 

to CARB regulations (such as CARB’s 

Advanced Clean Trucks, Low NOX

Omnibus, and Heavy Duty Inspection 

and Maintenance (I/M) regulations).30

Lastly, the rule includes 

recordkeeping and reporting 

requirements. The three types of reports 

that are due under Rule 2305 include: 

(1) the Warehouse Operations 

Notification (WON), which is the 

responsibility of the warehouse owner, 

(2) the ISIR, and (3) the Annual WAIRE 

Report, both of which are the 

responsibility of warehouse operators. 

The rule also specifies a sunset date 

after the EPA finds that all air basins 

within the SCAQMD have attained the 


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31SCAQMD Rule 2305(e) and (h). 

32CAA section 193, which prohibits any pre-1990 

SIP control requirement relating to nonattainment 

pollutants in nonattainment areas from being 

modified unless the SIP is revised to insure 

equivalent or greater emission reductions of such 

air pollutants, does not apply to the SCAQMD Rule 

2305 because, as a new rule, it does not represent 

a pre-1990 SIP control requirement. 

33 40 CFR 81.305. In addition, a portion of Los 

Angeles County is designated nonattainment for the 

lead NAAQS, but SCAQMD Rule 2305 does not 

affect lead emissions, and thus, the lead NAAQS is 

not germane to our proposed action and is not 

discussed further. 

34The EPA recently finalized a reclassification 

requested by CARB for Coachella Valley from 

Severe to Extreme for the 2008 ozone NAAQS. 88 

FR 14291 (March 8, 2023). 

35CAA section 110(a)(5)(A)(i); National 

Association of Home Builders v. San Joaquin Valley 

Unified Air Pollution Control District, 627 F.3d 730, 

737–38 (9th Cir. 2010) (‘‘NAHB v. SJVUAPCD’’) 

(‘‘Congress added section 110(a)(5) to the Act in 

1977 after the EPA had tried to force the states to 

regulate indirect sources of pollution. When the 

states had not regulated indirect sources to the 

EPA’s satisfaction, the EPA began to promulgate its 

own rules for indirect sources. The EPA’s move 

‘drew heavy criticism because [it] represented a 

significant federal intrusion into the traditionally 

local domain of land use control.’ In response to the 

EPA’s actions, a 1977 amendment to the Act 

‘severely limit[ed] the EPA’s authority’ over indirect 

sources, but ‘left largely to the states’ the matter of 

‘whether and how to regulate’ indirect sources.’’ 

(Internal citations omitted)). 

36 General authority is found in CH&SC sections 

40000 and 40001. 

2015 ozone NAAQS and that CARB 

finds that all air basins within the 

SCAQMD have attained the California 

ozone ambient air quality standard 

(which is numerically the same as the 

2015 ozone NAAQS).31

II. The EPA’s Evaluation and Action 

A. How is the EPA evaluating the rule? 

The EPA has evaluated SCAQMD 

Rule 2305 against the applicable 

procedural and substantive 

requirements of the CAA for SIPs and 

SIP revisions and has concluded that, 

with certain exceptions discussed 

below, Rule 2305 meets the applicable 

requirements and would strengthen the 

SIP. Generally, SIPs must include 

enforceable emission limitations and 

other control measures, means, or 

techniques, as well as schedules and 

timetables for compliance, as may be 

necessary to meet the requirements of 

the Act (see CAA section 110(a)(2)(A)); 

must provide necessary assurances that 

the State will have adequate personnel, 

funding, and authority under State law 

to carry out such SIP (and is not 

prohibited by any provision of Federal 

or State law from carrying out such SIP) 

(see CAA section 110(a)(2)(E)); must be 

adopted by a State after reasonable 

notice and public hearing (see CAA 

section 110(a)(1); section 110(a)(2); 

section 110(l)); and must not interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress, or any other applicable 

requirement of the Act (see CAA section 

110(l)).32

The SCAQMD jurisdiction covers all 

the South Coast Air Basin, and portions 

of the Salton Sea and Mojave Desert Air 

Basins, and includes air quality 

planning areas that are designated as 

nonattainment for the 1-hour ozone 

NAAQS and the 1997, 2008 and 2015 8- 

hour ozone NAAQS (South Coast and 

Coachella Valley areas); the 1997 24- 

hour and annual PM2.5 NAAQS, the 

2006 24-hour PM2.5 NAAQS and the 

2012 annual PM2.5 NAAQS (South Coast 

area), and the 1987 24-hour PM10

NAAQS (Coachella Valley area).33 The 

South Coast Air Basin is currently 

classified as an Extreme nonattainment 

area for the 1-hour ozone NAAQS and 

the 1997, 2008, and 2015 8-hour ozone 

NAAQS, as a Moderate nonattainment 

area for the 1997 annual and 24-hour 

PM2.5 NAAQS, and as a Serious 

nonattainment area for the 2006 24-hour 

and 2012 annual PM2.5 NAAQS. The 

Coachella Valley portion of the Salton 

Sea Air Basin is classified as a Severe 

nonattainment area for the 1-hour ozone 

NAAQS, as an Extreme nonattainment 

area for the 1997 and 2008 8-hour ozone 

NAAQS,34 as a Severe nonattainment 

area for the 2015 8-hour ozone NAAQS; 

and as a Serious nonattainment area for 

the 1987 24-hour PM10 NAAQS. 

CAA section 172(c)(1) requires States 

with ozone nonattainment areas to 

implement all reasonably available 

control measures (RACM), including 

such reductions in emissions from 

existing sources in the area as may be 

obtained through the adoption, at a 

minimum, of reasonably available 

control technology (RACT), as 

expeditiously as practicable. CAA 

sections 182(b)(2) and 182(f) specify that 

implementation of RACT under CAA 

section 172(c)(1) is required for all 

major stationary sources of NOX in the 

area. In addition, the CAA requires 

States with Serious PM10 and PM2.5

NAAQS nonattainment areas to 

implement Best Available Control 

Measures (BACM), including Best 

Available Control Technology (BACT) 

(see CAA section 189(b)(1)(B)). As noted 

above, SCAQMD includes both Extreme 

and Severe ozone nonattainment areas 

and Moderate and Serious PM 

nonattainment areas. 

With respect to rule stringency, the 

EPA is prohibited by the CAA from 

requiring States and local air agencies to 

submit indirect source review (ISR) 

programs as a condition to approving a 

SIP.35 Because the EPA cannot require 

a State or local air agency to adopt and 

implement an ISR program, the EPA 

reasons that it likewise cannot require 

that such a program meet any particular 

level of stringency otherwise required to 

meet SIP requirements, such as 

attainment plan requirements for the 

ozone or PM NAAQS. Therefore, the 

EPA is not evaluating SCAQMD Rule 

2305 for compliance with the RACM/ 

RACT or BACM/BACT requirements. 

B. Does the rule meet the evaluation 

criteria? 

1. Did the State provide for reasonable 

public notice and hearing prior to 

adoption? 

Under CAA section 110(l), SIP 

revisions must be adopted by the State, 

and the State must provide for 

reasonable public notice and hearing 

prior to adoption. Pursuant to 40 CFR 

51.102, States must provide at least 30- 

days’ notice of any public hearing to be 

held on a proposed SIP revision. States 

must provide the opportunity to submit 

written comments and allow the public 

the opportunity to request a public 

hearing within that period. Rule 2305 

was adopted by SCAQMD on May 7, 

2021, through Resolution 21–9, 

following a public hearing held on the 

same day. Prior to adoption, the 

SCAQMD published notice of the May 

7, 2021 public hearing on March 31, 

2021, and provided more than 30 days 

for submission of written comments. 

The CARB subsequently adopted the 

rule as a revision to the SIP on August 

13, 2021, through Executive Order 

S–21–012. The CARB then submitted 

SCAQMD Rule 2305 to the EPA on 

August 13, 2021, as an attachment to a 

letter with the same date. Various other 

materials comprising the SIP 

submission package were submitted as 

well, including copies of public 

comments received during the comment 

period, District responses to comments, 

and environmental and socioeconomic 

impact assessments. 

Based on the materials provided in 

the August 13, 2021 SIP submission 

summarized above, we propose to find 

that the District and the CARB have met 

the procedural requirements for 

adoption and submission of SIPs and 

SIP revisions under CAA section 110(l) 

and 40 CFR 51.102. 

2. Does the State have adequate legal 

authority to implement the rule? 

The SCAQMD has been granted both 

general and specific authority under the 

California Health & Safety Code 

(CH&SC) to adopt and implement Rule 

2305.36 Specific authority is found in 

CH&SC section 40440 (‘‘Rules and 


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37Robert Swanson, Deputy Attorney General, 

California Department of Justice, letter to Ellen 

Peter, Chief Counsel, CARB, dated May 6, 2021, 

included as an enclosure to Ellen M. Peter, Chief 

Counsel, CARB, letter to Wayne Nastri, Executive 

Officer, SCAQMD, dated May 6, 2021. 38 Id. at 12–14. 39 Id. at 12. 40 Id. at 12–14. 41California Trucking Association v. South Coast 

Air Quality Management District, C.D. Cal., Docket 

#21–cv–06341 (CTA). 

42For instance, the EPA may re-propose action or 

supplement the proposed action depending upon 

the implications of the decision on the District’s 

authority to implement and enforce the rule, among 

other considerations. If an adverse decision were to 

be issued after the EPA approves Rule 2305, then 

the EPA would consider withdrawal of the 

approval, again, depending upon the implications 

of the decision on the District’s authority to 

implement and enforce the rule, among other 

considerations. 

43CAA section 110(a)(5)(C). The term ‘‘indirect 

source’’ as defined in the CAA includes parking 

lots, and parking garages, and other facilities subject 

to any measure for management of parking supply, 

including regulation of existing off-street parking 

but such term does not include new or existing onstreet parking. ‘‘Indirect source’’ does not include 

direct emissions sources or facilities at, within, or 

associated with, any indirect source. 

44CAA section 110(a)(5)(D). Indirect source 

review programs are not considered ‘‘transportation 

control measures.’’ CAA section 110(a)(5)(E). 

45SJVUAPCD Rule 9510 (‘‘Indirect Source 

Review (ISR)’’), approved by the EPA at 76 FR 

Continued 

regulations’’), which authorizes the 

SCAQMD to provide for indirect source 

controls in those areas of the South 

Coast District in which there are highlevel, localized concentrations of 

pollutants. 

Moreover, the EPA knows of no 

obstacle under State or Federal law in 

the SCAQMD’s ability to implement 

Rule 2305. With respect to State law, the 

EPA notes that, during the rule 

development phase, certain commenters 

challenged the mitigation fee option in 

Rule 2305 on the grounds that it 

imposes an unlawful tax under State 

law. However, CARB’s August 13, 2021 

SIP submission package includes a legal 

analysis from the State Attorney 

General’s Office 37 that concludes that 

the mitigation fee is not an unlawful tax 

under the California Constitution 

because, as a compliance option, the fee 

is not compulsory.38 In explaining how 

the mitigation fee option is not 

compulsory, the State Attorney 

General’s Office letter notes that, under 

Rule 2305, ‘‘warehouse operators have 

numerous options to reduce their 

emissions or otherwise earn compliance 

points. If they elect not to take actions 

to reduce their emissions or 

environmental impacts, warehouse 

operators may comply by paying the inlieu fee. A ‘hallmark’ of a tax is that ‘it 

is compulsory.’ The in-lieu fee is not 

compulsory, so it is not a tax.’’ 39

(Internal citations omitted.) Also, even if 

viewed as compulsory, the Attorney 

General’s Office explains how the 

mitigation fee option falls under two 

exceptions to the meaning of ‘‘tax’’ 

under the relevant provisions of State 

law.40 The EPA proposes to find that the 

State Attorney General’s Office letter 

provides the necessary assurances that 

State law with respect to the mitigation 

fee option is not an obstacle to the 

SCAQMD’s ability to implement Rule 

2305. 

With respect to Federal law, the EPA 

is aware of an ongoing legal challenge 

by the California Trucking Association 

(CTA), among others, to the SCAQMD’s 

legal authority to implement Rule 2305 

in litigation to which the EPA is not a 

party.41 In the CTA case, plaintiff CTA 

and plaintiff-intervenor Airlines for 

America assert that implementation and 

enforcement of Rule 2305 by the 

SCAQMD is preempted under the CAA, 

the Airline Deregulation Act (ADA) and 

the Federal Aviation Administration 

Authorization Act (FAAAA or F4A). 

Based on the information currently 

before the EPA at this time, the EPA 

proposes to find that Rule 2305 is not 

preempted under the CAA, ADA or the 

F4A. If the District Court were to issue 

a decision against the SCAQMD in the 

pending litigation before the EPA takes 

final action on Rule 2305 pursuant to 

this proposal, we will take that decision 

into account and evaluate appropriate 

action at that time.42

With respect to the CAA, the EPA’s 

evaluation of Rule 2305 indicates that 

the SCAQMD is authorized to adopt this 

program for inclusion into the California 

SIP. CAA section 110(a)(5) authorizes 

States to include any ISR program in 

their SIPs. Under CAA section 110(a)(5), 

the EPA may not require a State to adopt 

an ISR program as part of its SIP, but the 

EPA may approve an ISR program that 

a State chooses to adopt and submit for 

inclusion into its approved SIP. In this 

context, ‘‘indirect source’’ means a 

facility, building, structure, installation, 

real property, road, or highway that 

attracts, or may attract, mobile sources 

of pollution.43 ‘‘Indirect source review 

program’’ means the facility-by-facility 

review of indirect sources of air 

pollution, including such measures as 

are necessary to assure, or assist in 

assuring, that a new or modified 

indirect source will not attract mobile 

sources of air pollution, the emissions 

from which would cause or contribute 

to air pollution concentrations— 

• Exceeding any national primary 

ambient air quality standard for a 

mobile source-related air pollutant after 

the primary standard attainment date; or 

• Preventing maintenance of any such 

standard after such date.44

Rule 2305 involves the facility-byfacility review of existing and new 

warehouses, which are facilities that 

attract mobile sources of air pollution. 

Based on this review, the rule provides 

a list of specific measures that, when 

implemented by the warehouse 

operator, will reduce or offset the 

related mobile source emissions that 

contribute to the exceedances of the 

NAAQS for PM2.5 and ozone in areas 

under SCAQMD jurisdiction. The rule 

also provides options to allow the 

operator of the warehouse to develop a 

custom WAIRE plan or pay a mitigation 

fee or a combination of these options. 

More specifically, under Rule 2305, 

warehouse operators are required, on an 

annual basis, to earn or obtain WAIRE 

points sufficient to meet their WPCO, a 

value that reflects the WATTs 

associated with each warehouse. As 

noted previously, the WATTs parameter 

represents a calculated value that 

reflects the number of truck trips to and 

from a warehouse in a given year and 

serves as a proxy for overall warehouse 

activity and emissions. 

To earn or obtain WAIRE points, 

warehouse owners and operators have 

the option of: (i) taking various types of 

actions or making variety types of 

investments specified in the WAIRE 

menu; (ii) following an approved 

Custom WAIRE Plan; (iii) paying a 

mitigation fee; (iv) or any combination 

of such options (see section I.D of this 

document). The SCAQMD anticipates 

that the same types of actions and 

investments that are specified in Rule 

2305 will also occur under the WAIRE 

Mitigation Program funded by the 

mitigation fee option under the rule (see 

section I.D of this document). As such, 

Rule 2305 is designed to reduce, offset, 

or mitigate the emissions generated by 

mobile sources attracted to warehouses 

in the SCAQMD. This includes the 

associated contribution to area-wide 

exceedances of the NAAQS and to the 

local pollutant burden on communities 

in the vicinities of warehouses. 

Rule 2305 is similar to the ISR review 

program previously adopted by the San 

Joaquin Valley Unified Air Pollution 

Control District (SJVUAPCD) to reduce 

or offset emissions of NOX and PM in 

the San Joaquin Valley from the 

construction-phase and operationalphase of development projects through 

design features, on-site measures, and 

through off-site measures paid through 

implementation of an in-lieu mitigation 

fee.45 The SJVUAPCD ISR program was 


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26609 (May 9, 2011), and approved as amended at 

86 FR 33542 (June 25, 2021). 

46NAHB v. SJVUAPCD, 627 F.3d 730, 734 (9th 

Cir. 2010); at 739: ‘‘The Act, by allowing states to 

regulate indirect sources of pollution, necessarily 

contemplates imputing mobile sources of pollution 

to an indirect source as a whole. If an indirect 

source review program could not attribute the 

emissions from mobile sources, while they are 

stationed at an indirect source, to the indirect 

source as a whole, states could not adopt any 

indirect source review program. What allows Rule 

9510 to qualify as an indirect source review 

program under section 110(a)(5) is precisely what 

allows the Rule to avoid preemption under section 

209(e)(2): its site-based regulation of emissions. In 

this way, the two sections do not conflict, but rather 

fit together neatly like two interlocking puzzle 

pieces.’’ 

47CAA section 110(a)(5)(D). 

48Final SCAQMD Staff Report, Master Responses, 

157–158. 

49Engine Manufacturers Ass’n v. South Coast Air 

Quality Management District, 541 U.S. 246, 253– 

255 (2004). 

50NAHB v. SJVUAPCD, 627 F.3d 730, 737. 

51 Id., 739. 

52 ‘‘Rule 9510 escapes preemption because its 

regulation of construction equipment is indirect. 

Rule 9510 does not measure emissions by fleets or 

groups of vehicles; it measures emissions on a 

‘‘facility-by-facility’’ basis. 42 U.S.C. 7410(a)(5)(D). 

Its unit of measurement is the indirect source, not 

the fleet. It regulates development sites directly, but 

as the term ‘‘indirect source’’ implies, it regulates 

upheld by the Ninth Circuit in a 

challenge that claimed that the program 

was characterized as an ISR program but 

was in reality a rule regulating 

emissions from nonroad equipment in 

violation of CAA section 209(e).46

Commenters, objecting to Rule 2305 

during its adoption, contended that an 

ISR program, for the purposes of CAA 

section 110(a)(5), is limited to new or 

modified indirect sources and that, 

therefore, Rule 2305 is not authorized 

under the CAA, at least as it applies to 

existing warehouses. This contention is 

based on the clause in the definition of 

the term ‘‘indirect source review 

program’’ describing such programs as 

‘‘including such measures as are 

necessary to assure, or assist in assuring, 

that a new or modified indirect source 

will not attract mobile sources of air 

pollution.’’ 47

In its own rulemaking process, the 

SCAQMD responded to this issue by 

noting that the SCAQMD’s authority 

derives from State law, not Federal law. 

State law does not limit the authority of 

the SCAQMD to regulating only new or 

modified (as opposed to existing) 

indirect sources.48 The SCAQMD also 

noted that CAA section 110(a)(5) does 

not prescribe limits on State authority 

but rather prescribes certain limits on 

the EPA. Finally, the SCAQMD stated 

that it has authority under CAA section 

116 for this type of provision. 

In reviewing Rule 2035, the EPA has 

specifically evaluated whether it is 

consistent with the requirements of 

CAA section 110(a)(5). When taking 

action on any SIP submission, the EPA 

must evaluate whether the SIP 

provisions as issue meet applicable 

statutory and regulatory requirements. 

The EPA acknowledges that there are 

ambiguities in the language of section 

110(a)(5). For example, section 

110(a)(5)(D) superficially appears to 

define the term ‘‘indirect source review 

program’’ in terms of ‘‘new or modified’’ 

indirect sources. That provision in 

relevant part defines an indirect source 

program as one ‘‘including’’ such 

measures at new or modified sources. 

The EPA does not, however, interpret 

this definition to restrict States from 

having such programs that extend to 

existing sources if they elect to do so. 

Instead, the use of ‘‘including’’ 

preceding the reference to ‘‘new or 

modified indirect source’’ indicates that 

regulation of new or modified indirect 

sources is illustrative of the scope of 

this provision, not limiting. 

Other provisions support this 

interpretation. Section 110(a)(5)(C) 

defines the term ‘‘indirect source’’ itself 

to include many things such as a 

building ‘‘which attracts, or may attract, 

mobile sources of pollution.’’ This 

definition could encompass both 

existing and future structures. By 

contrast, with respect to parking, section 

110(a)(5)(C) expressly states that an 

indirect source program can include 

‘‘existing off-street parking’’ but not 

‘‘new or existing on-street parking.’’ If 

such an ‘‘indirect source program’’ 

could apply to existing off-street 

parking, then it is unclear why this 

conceptually would not extend to other 

existing sources such as existing 

buildings, notwithstanding the reference 

to new or modified sources in the 

definition of ‘‘indirect source program.’’ 

At most, there is a small degree of 

ambiguity with respect to whether 

Congress actually intended the 

definition of ‘‘indirect source program’’ 

to function as a restriction on the EPA’s 

authority to approve a State indirect 

source program that extends to existing 

buildings into the State’s SIP. The EPA 

does not consider such a restrictive 

reading of the provision to be reasonable 

or logical, absent a clearer prohibition. 

As further support for this 

interpretation, the EPA notes that CAA 

section 116 explicitly provides that 

States retain authority to regulate more 

stringently in SIP provisions than 

otherwise required by Federal law, 

except where preempted from doing so. 

Even if Congress anticipated that States 

might typically elect to adopt such 

programs that would include new or 

modified sources, Congress did not 

explicitly appear to preclude States 

from adopting indirect source programs 

that extend to existing sources as well, 

except with respect to ‘‘new or existing 

on street parking.’’ In other words, by 

defining the term ‘‘indirect source 

program’’ in CAA section 110(a)(5)(D), 

Congress was not diminishing existing 

State authority under CAA section 116 

to adopt such programs that apply to 

existing sources, such as existing 

warehouses, if they elect to do so. Thus, 

the EPA concludes that the State is not 

precluded from regulating both existing 

and new warehouses in Rule 2305, and 

thus this poses no issue with respect to 

the EPA proposing approval of the rule 

into the SIP. 

During the rule development process, 

the SCAQMD received comments 

objecting to Rule 2305 on the grounds 

that the rule, while structured as an ISR 

program, represents a de facto purchase 

mandate for ZE or NZE trucks and is 

thus preempted under CAA section 

209(a). These adverse comments cited to 

the Supreme Court decision in Engine 

Mfrs. Ass’n v. S. Coast Air Quality 

Mgmt. Dist, 541 U.S. 246 (2004) (EMA). 

In EMA, the Supreme Court held that a 

‘‘standard’’ under CAA section 209(a), 

which the Court described as ‘‘a 

requirement that a vehicle or engine not 

emit more than a certain amount of 

pollutant, be equipped with a certain 

type of pollution-control device, or have 

some other design feature related to the 

control of emissions,’’ is preempted 

under Section 209(a) whether applied to 

manufacturers through a sales mandate 

or to buyers through a purchase 

mandate.49

As noted above, the question of 

whether an ISR program is preempted 

under Section 209 of the CAA was 

squarely addressed by the Ninth Circuit 

in NAHB v. SJVUAPCD. The EPA agrees 

with the Ninth Circuit’s interpretation 

of the statute on this point and proposes 

to find that Rule 2305 is similar in 

relevant respects to the ISR program the 

Court determined in NAHB was not 

preempted. Most critically, Rule 2305 

regulates at the level of the indirect 

source, and not at the level of mobile 

sources the indirect source may attract. 

In Rule 2305 ‘‘[t]the ‘baseline’ amount of 

emissions, and the required reduction in 

emissions from that baseline, are both 

calculated in terms of the [indirect 

source site] as a whole.’’ 50 This ‘‘sitebased’’ approach to regulating emissions 

‘‘is precisely what allows the Rule to 

avoid preemption under section 

209(e)(2).’’ 51 That Rule 2305 is properly 

characterized as an ISR program under 

Section 110(a)(5) distinguishes it from 

the vehicle purchase mandate at issue in 

the Supreme Court EMA case.52


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mobile emissions only indirectly. For that reason, 

the fleet-based regulations [that were at issue in 

EMA] are not analogous to Rule 9510.’’ NAHB v. 

SJVUAPCD, 627 F.3d 740. 

53 ‘‘[I]n the TSD, EPA evaluates the potential for 

Rule 9510, as an ISR rule otherwise authorized 

under CAA section 110(a)(5), to nevertheless run 

afoul of CAA section 209(e), and in so doing, EPA 

identified two ways that an ISR rule that on its face 

is authorized under CAA section 110(a)(5) could 

nonetheless be preempted. First, the ISR rule could 

be preempted if the rule in practice as applied acts 

to compel the manufacturer or user of a nonroad 

engine or vehicle to change the emission control 

design of the engine or vehicle, or second, an ISR 

rule could be preempted if it creates incentives so 

onerous as to be in effect a purchase mandate.’’ 76 

FR 26609, 26611 (May 9, 2011). 

54SCAQMD Final Staff Report, 160. 

55SCAQMD’s Final Socioeconomic Impact 

Assessment for Proposed Rule 2305—Warehouse 

Indirect Source Rule—Warehouse Actions and 

Investments to Reduce Emissions (WAIRE) Program 

and Proposed Rule 316—Fees for Rule 2305 (May 

2021), particularly pages ES–5—ES–7, and table 18, 

indicates that the ZE/NEZ non-acquisition (or 

contracting) scenarios are generally 4 to 5 times 

more costly (in terms of average annual dollars per 

square foot) than the ZE/NZE acquisition (or 

contracting) scenarios so as to incentive acquisition 

and use of ZE/NZE trucks over the non-acquisition 

options. However, the scenarios were developed to 

identify the widest range of possible costs assuming 

that warehouse owners and operators would only 

comply with a single scenario approach from 2022 

through 2031. The EPA expects warehouse 

operators will select multiple points-earning actions 

or investments along with mitigation fees to meet 

the annual compliance obligation, and that the 

selection will change over the years in light of the 

ever-changing circumstances of individual 

businesses and the composition of vehicle fleets. 

56 49 U.S.C. 41713(b). 57 49 U.S.C. 14501(c)(1). 

58These concepts are discussed in detail in an 

EPA memorandum dated from September 23,1987, 

from J. Craig Potter, EPA Assistant Administrator 

for Air and Radiation, et al., to Addressees, Subject: 

‘‘Review of State Implementation Plans and 

Revisions for Enforceability and Legal Sufficiency.’’ 59 13 CCR 2023. 

60 13 CCR 2023.1. 

61The definitions in Rule 2305 of ‘‘Near ZeroEmission’’ truck and ‘‘Zero-Emission’’ truck cite to 

13 CCR 1956.8 and 1963, respectively. 

The EPA has previously 

acknowledged the possibility that a rule 

styled as an ISR program may in effect 

be a regulation of direct sources, 

including motor vehicles or nonroad 

sources. In other words, the EPA is not 

obligated merely to accept at face value 

a State or local authority’s 

characterization, but may consider how 

the program will work in practice. In its 

2011 final approval action on the 

SJVUAPCD ISR, the EPA noted factors 

that might indicate a rule ostensibly 

measuring emissions from a site was a 

de facto regulation of nonroad 

engines.53 As explained below, Rule 

2305 lacks the indicia of a de facto 

regulation of either motor vehicles or 

nonroad vehicles or engines. 

As explained in section I.D above, 

Rule 2305 applies to warehouse 

operators and provides multiple options 

for meeting the annual WPCO. As noted 

by the SCAQMD in response to 

comments on proposed Rule 2305, ‘‘the 

WPCO is not based on truck emissions; 

it is based on truck trips. The proposed 

rule uses truck trips as a proxy for total 

warehouse emissions when setting the 

compliance obligation because the 

number of truck visits is representative 

of the total activity at, and emissions 

associated with, a warehouse.’’ 54 The 

various options available (WAIRE 

Menu, Custom WAIRE Plan, or 

Mitigation Fee) to warehouse operators 

that do not involve acquisition of, or 

contracting for, ZE or NZE trucks to earn 

WAIRE Points support a conclusion that 

in Rule 2305, the SCAQMD has not 

adopted or attempted to enforce any 

standard relating to the control of 

emissions from new motor vehicles or 

new motor vehicle engines for the 

purposes of CAA section 209(a).55

Commenters objecting to the 

SCAQMD’s adoption of Rule 2305 

contended that the requirements are 

preempted under the ADA and F4A. 

Under the ADA, with certain exceptions 

not applicable here, a State or political 

subdivision of a State may not enact or 

enforce a law, regulation, or other 

provision having the force and effect of 

law related to a price, route, or service 

of an air carrier or carrier affiliated with 

a direct air carrier through common 

controlling ownership when such 

carrier is transporting property by 

aircraft or by motor vehicle (whether or 

not such property has had or will have 

a prior or subsequent air movement).56

The F4A extends the same preemptive 

language to any motor carrier (‘‘common 

carrier’’) or any motor private carrier, 

broker, or freight forwarder with respect 

to the transportation of property.57 Rule 

2305 applies to owners and operators of 

warehouses greater than 100,000 square 

feet of indoor floor space in a single 

building, and both air carriers and 

common carriers are subject to the 

requirements of Rule 2305 because both 

types of carriers own or operate such 

warehouses in the SCAQMD. 

The EPA does not consider the 

requirements under Rule 2305 as 

relating directly to the ‘‘price, route, or 

service’’ of any air carrier or common 

carrier but do recognize that an indirect 

effect on price is a foreseeable 

consequence of the additional costs 

borne by warehouse owners or operators 

to comply with the annual WAIRE 

points compliance obligation. However, 

the EPA proposes to find that Rule 2305 

is not preempted under either the ADA 

or F4A because any price effect is 

indirect and remote. Moreover, the 

District is acting under its delegated 

police powers to protect public health 

in a way that is explicitly authorized 

under CAA section 110(a)(5) and CAA 

section 116. Any incremental increase 

in price for delivery services due to 

compliance with Rule 2305 internalizes 

costs otherwise borne by the public, 

particularly members of the public 

living and working in the vicinities of 

warehouses, through the types of health 

effects associated with elevated 

concentrations of PM. 

3. Is the rule enforceable as required 

under CAA section 110(a)(2)? 

The EPA has evaluated the 

enforceability of Rule 2305 with respect 

to applicability and exemptions; 

standard of conduct; compliance dates; 

sunset provisions; discretionary 

provisions; and test methods, 

recordkeeping and reporting,58 and the 

EPA believes, for the reasons given 

below, that the regulation is generally 

enforceable for the purposes of CAA 

section 110(a)(2) but with certain 

deficiencies. 

First, with respect to applicability, the 

EPA generally finds that Rule 2305 is 

sufficiently clear as to which entities are 

subject to the requirements in the 

regulation and which entities are 

exempt.59 The EPA finds that Rule 2305 

is sufficiently specific so that the 

persons affected by the regulation are 

fairly on notice as to what the 

requirements and related compliance 

dates are.60 To a large extent, the EPA 

has already described the substantive 

requirements and compliance dates set 

forth in Rule 2305 in section I.D of this 

document. The EPA notes, however, 

that two definitions in Rule 2305 cite to 

sections of the California Code of 

Regulations (CCR), and thus, the two 

definitions in Rule 2305 would be 

ambiguous for the purposes of 

enforcement of the SIP unless the CCR 

sections on which Rule 2305 relies are 

submitted and approved into the SIP.61

The CCR sections on which Rule 2305 

relies are included in two new CARB 

mobile source regulations that the EPA 

anticipates that CARB will submit to the 

EPA for approval as part of the 

California SIP. If these two CCR sections 

are submitted and the EPA subsequently 

approves them into the SIP, then Rule 

2305 will avoid this particular potential 

ambiguity and the related implications 

for enforceability. 

Second, with respect to compliance 

dates, the EPA notes that all warehouses 

subject to the rule will be required to 

meet their WAIRE points annual 

compliance obligation requirements 

beginning with calendar year 2024. This 

is consistent with achieving emission 

reductions in advance of the July 20, 


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62See 85 FR 57733 (September 16, 2020) and 40 

CFR 51.1004(a)(3) (2006 24-hour PM2.5 NAAQS); 

and 85 FR 71264 (November 9, 2020) and 40 CFR 

51.1004(a)(2) (2012 annual PM2.5 NAAQS). 

63SCAQMD Rule 2305(h). 

64SCAQMD Rule 2305(d)(4)(A)(iii) and (d)(4)(D). 

65 13 CCR 2023.8 and 2023.9. 

66SCAQMD Resolution 21–9, 7. 

67Association of Irritated Residents v. EPA, 10 

F.4th 937 (9th Cir. 2021). 

2032 attainment deadline for the South 

Coast Air Basin and Coachella Valley 

Extreme nonattainment areas for the 

2008 ozone NAAQS. By extension, Rule 

2305 compliance dates are compatible 

with the applicable attainment 

deadlines for the 2015 ozone NAAQS: 

August 3, 2033, for the Coachella Valley 

‘‘Severe’’ nonattainment area; and 

August 3, 2038, for the South Coast Air 

Basin ‘‘Extreme’’ nonattainment area. 

The compliance dates in Rule 2305 are 

also consistent with providing emission 

reductions in advance of the applicable 

attainment deadlines in the South Coast 

of October 16, 2025 for the 2006 24-hour 

PM2.5 NAAQS and December 31, 2025 

for the 2012 annual PM2.5 NAAQS.62

Third, Rule 2305 includes a sunset 

provision.63 Specifically, Rule 2305 

provides that the WAIRE points annual 

compliance obligation requirements 

expire in the year following the 

determinations by the EPA that the 

South Coast Air Basin and Coachella 

Valley have attained the 2015 ozone 

NAAQS and the determinations by 

CARB that the South Coast Air Basin 

and Coachella Valley have attained the 

State ambient air quality standard for 

ozone (which is numerically the same as 

the 2015 ozone NAAQS). Generally, the 

EPA finds sunset provisions in SIP rules 

to be a deficiency that must be 

addressed for full approval because of 

the potential to interfere with 

reasonable further progress (RFP) or 

attainment of the NAAQS, and potential 

inconsistency with CAA section 110(l) 

requirements through purported 

elimination of existing control 

requirements without a sufficient 

demonstration at that future date. In this 

instance, we are not crediting Rule 2305 

at this time with a specific level of 

emissions reductions for RFP or 

attainment demonstration purposes. 

This does not mean that the rule would 

not achieve emissions reductions in 

practice over the near-term and well 

into the future and, therefore, does not 

mean that sunsetting the rule would not 

result in foregone emissions reductions 

that would be relevant for both the 

ozone and PM2.5 NAAQS at that future 

time. We recommend that SCAQMD 

amend Rule 2305 to eliminate the 

sunset clause. The SCAQMD is free to 

rescind the rule at any time, but a future 

rescission of Rule 2305 must be 

effectuated though adoption and 

submission of the rescission as a SIP 

revision to the EPA for review and 

action under CAA section 110(k), and 

consistent with CAA section 110(l), at 

that time. 

The EPA notes that Rule 2305 

includes provisions that allow for 

discretion on the part of the SCAQMD’s 

Executive Officer. Such ‘‘director’s 

discretion’’ provisions can undermine 

enforceability of a SIP regulation, and 

thus prevent full approval by EPA. In 

the case of Rule 2305, it allows for 

director’s discretion in connection with 

the determination of whether WAIRE 

Points from a Custom WAIRE Plan are 

quantifiable, verifiable, and real and the 

determination of whether the warehouse 

owner or operator is making adequate 

progress to complete an approved 

Custom WAIRE Plan.64 Inclusion of 

such provisions that in effect give a 

State official, unilateral, and unbounded 

authority to make decisions concerning 

whether a regulated entity is, or is not, 

in compliance that bind the EPA or 

other parties are inconsistent with basic 

SIP requirements. 

Lastly, Rule 2305 includes 

recordkeeping and reporting 

requirements that are sufficient to 

ensure compliance with the applicable 

requirements.65 The EPA notes that, in 

adopting Rule 2305, the SCAQMD 

Board directed the Executive Officer to 

develop an online portal for the purpose 

of submitting required reports and 

documents as required by Rule 2305. 

The online portal (WAIRE POP) will 

provide the public information about 

how warehouse operators and owners 

are complying with Rule 2305 and how 

WAIRE Mitigation Program funds are 

spent.66 The SCAQMD has since 

developed a WAIRE program tab under 

Rules & Compliance portion of the 

District’s website. It includes a portal to 

the WAIRE POP for warehouse 

operators to submit reports and includes 

general information on the program 

such as the implementation guidelines, 

applications, guidance, and analytical 

tools, among other things. 

4. Does the rule interfere with 

reasonable further progress (RFP) and 

attainment or any other applicable 

requirement of the Act? 

The SCAQMD adopted Rule 2305 in 

part to meet a commitment in the 2016 

South Coast AQMP to assess and 

identify potential actions to further 

reduce emissions associated with 

emission sources operating in and out of 

warehouse distribution centers. While 

the EPA is not proposing to credit Rule 

2305 with achieving a specific amount 

of emissions reductions, the EPA’s 

evaluation of Rule 2305 indicates that 

the rule will achieve additional 

emission reductions. These additional 

reductions will incrementally contribute 

to the overall reductions needed to 

attain the NAAQS in the South Coast 

Air Basin and Coachella Valley air 

quality planning areas. 

However, as discussed previously, we 

find that the sunset clause in Rule 2305 

could interfere with attainment or 

reasonable further progress by foregoing 

emissions reductions that may be 

needed for attainment or maintenance of 

the NAAQS. Thus, the EPA 

recommends that the SCAQMD remove 

the sunset clause and follow the normal 

course of action in rescinding rules from 

the SIP, i.e., through a SIP revision and 

EPA approval under CAA section 110(k) 

and section 110(l). 

5. Will the State have adequate 

personnel and funding for the rule? 

The SCAQMD adopted a specific rule, 

Rule 316 (‘‘Fees for Rule 2305’’), for the 

purpose of recovering the SCAQMD’s 

costs associated with implementing 

Rule 2305. In light of the adoption of 

Rule 316, the EPA finds that the 

SCAQMD will have adequate personnel 

and funding to implement Rule 2305. 

6. EPA’s Rule Evaluation Conclusion 

Based on the above discussion, the 

EPA believes Rule 2305 is consistent 

with the relevant CAA requirements, 

policies, and guidance, except as 

otherwise noted. As an ISR program 

under CAA section 110(a)(5), Rule 2305 

is not a required submission. The EPA 

proposes to find that the District has the 

authority to implement and enforce 

Rule 2305 and is not prohibited from 

doing so by any State or Federal law. 

While Rule 2305, as stated previously, 

will reduce emissions associated with 

warehouses, the EPA proposes to find 

that the rule is not fully enforceable, 

and that the amount of associated 

emissions reductions is not sufficiently 

quantifiable for credit at the present 

time. The EPA proposes to find that 

Rule 2305 is SIP-strengthening and 

proposes to approve it on this basis. A 

recent decision by the Ninth Circuit 

upheld the EPA’s approval of a SIP 

submission for the San Joaquin Valley 

on SIP strengthening grounds.67 In that 

case, like our proposed action on Rule 

2305, the EPA deemed the SIP provision 

at issue not fully enforceable and 

accordingly granted no SIP credit for 


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68SCAQMD Final Staff Report, 9 and 10. 

emissions reductions from the 

provision. 

C. Public Comment and Proposed 

Action 

As authorized in section 110(k)(3) of 

the Act, the EPA proposes to approve 

the submitted rule. The EPA concludes 

that, while SCAQMD Rule 2305 does 

not meet all the evaluation criteria for 

enforceability, we are proposing 

approval because the submitted rule is 

not a required SIP element and would 

strengthen the SIP. In light of the 

deficiencies identified above, however, 

the EPA concludes that the submitted 

rule should not be credited in any 

attainment and rate of progress/ 

reasonable further progress 

demonstrations. 

We will accept comments from the 

public on the proposed action, the 

rationale and basis for the proposed 

action, and other relevant matters until 

November 13, 2023. If the EPA takes 

final action to approve the submitted 

rule, the final action will incorporate 

this rule into the federally enforceable 

SIP. 

III. Incorporation by Reference 

In this rule, the EPA is proposing to 

include in a final EPA rule regulatory 

text that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, the EPA is 

proposing to incorporate by reference 

SCAQMD Rule 2305, adopted on May 7, 

2021, that establishes an ISR program 

for certain warehouse owners and 

operators, as described in section I of 

this preamble. The EPA has made, and 

will continue to make, these materials 

available through https://

www.regulations.gov and at the EPA 

Region IX Office (please contact the 

person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble for more information). 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, 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 proposed action 

merely proposes to approve State law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by State law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993), 13563 (76 FR 3821, 

January 21, 2011) and 14094 (88 FR 

21879, April 11, 2023); 

• 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); and 

• 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. 

Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

Feb. 16, 1994) directs Federal agencies 

to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on minority populations 

and low-income populations to the 

greatest extent practicable and 

permitted by law. The EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ The EPA 

further defines the term fair treatment to 

mean that ‘‘no group of people should 

bear a disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ 

The SCAQMD did not evaluate 

environmental justice considerations as 

part of its SIP submittal; the CAA and 

applicable implementing regulations 

neither prohibit nor require such an 

evaluation. However, the Community 

Steering Committees for four 

environmental justice communities 

admitted into the State’s AB 617 

program in the affected area requested 

development of a warehouse ISR rule 

due to concerns regarding air pollution 

impacts from trucks and DPM.68 The 

EPA did not perform an EJ analysis and 

did not consider EJ in this action. Due 

to the nature of the action being 

proposed here, this proposed action is 

expected to have a neutral to positive 

impact on the air quality of the affected 

area. Consideration of EJ is not required 

as part of this action, and there is no 

information in the record inconsistent 

with the stated goal of E.O. 12898 of 

achieving environmental justice for 

people of color, low-income 

populations, and Indigenous peoples. 

Lastly, the SIP is not approved to 

apply on any Indian reservation land or 

in any other area where the EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the proposed rule does 

not have tribal implications and will not 

impose substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements. 

Dated: October 5, 2023. 

Martha Guzman Aceves, 

Regional Administrator, Region IX. 

[FR Doc. 2023–22518 Filed 10–11–23; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 152 

[EPA–HQ–OPP–2023–0420; FRL–10637–01– 

OCSPP] 

RIN 2070–AL13 

Pesticides; Review of Requirements 

Applicable to Treated Seed and 

Treated Paint Products; Request for 

Information and Comments 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Advanced notice of proposed 

rulemaking. 

SUMMARY: The Environmental Protection 

Agency (EPA) is soliciting public 


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