87988 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Proposed Rules 

NAAQS in separate rulemakings, and 

will consider the emissions reductions 

associated with the Smog Check 

Contingency Measure at that time. We 

will accept comments from the public 

on this proposal until January 19, 2024. 

If finalized as proposed, this action 

would add the Smog Check Contingency 

Measure and the related statutory 

provision to the federally-enforceable 

California SIP. 

III. Incorporation by Reference 

In this action, 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 

California Health & Safety Code section 

44011(a)(4)(A) and (B), which 

authorizes CARB to narrow the newer 

model vehicle Smog Check inspection 

exemption. 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 CAA, the Administrator is 

required to approve a SIP submission 

that complies with the relevant 

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 CAA. 

Accordingly, this proposed action 

merely proposes to approve a state 

measure 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 CAA. 

In addition, 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). 

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.’’ 

CARB evaluated environmental 

justice considerations as part of its SIP 

submission given that the CAA and 

applicable implementing regulations 

neither prohibit nor require such an 

evaluation. The EPA reviewed and 

considered the air agency’s evaluation 

of environmental justice considerations 

of this action, as is described above in 

the section titled, ‘‘Environmental 

Justice Considerations’’ as part of the 

EPA’s review. Due to the nature of the 

action being taken here, this proposed 

action is expected to have a neutral to 

positive impact on the air quality of the 

affected areas. In addition, 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen oxides, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: December 12, 2023. 

Martha Guzman Aceves, 

Regional Administrator, Region IX. 

[FR Doc. 2023–27688 Filed 12–19–23; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2023–0477; FRL–11532– 

01–R9] 

Clean Air Plans; Contingency 

Measures for the Fine Particulate 

Matter Standards; San Joaquin Valley, 

California 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

two state implementation plan (SIP) 

submissions under the Clean Air Act 

(CAA) that address the contingency 

measures requirements for the 1997 

annual, 2006 24-hour, and 2012 annual 

fine particulate matter (PM2.5) national 

ambient air quality standards (NAAQS 

or ‘‘standards’’) for the San Joaquin 

Valley PM2.5 nonattainment area. The 

two SIP submissions include the area’s 

contingency measure plan element and 

two specific contingency measures that 

would apply to residential wood 

burning heaters and fireplaces and nonagricultural, rural open areas. A third 

contingency measure, applicable to 

light-duty on-road motor vehicles, is the 

subject of a separate action by the EPA, 

but the related emissions reductions 

from the third measure are accounted 

for in this proposed rule. The EPA is 

proposing approval of the SIP 

submissions because the Agency has 


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1 62 FR 38652 (July 18, 1997) and 40 CFR 50.7. 

2 71 FR 61144 (October 17, 2006) and 40 CFR 

50.13. 

determined that they are in accordance 

with the applicable requirements for 

such SIP submissions under the CAA 

and EPA implementation regulations for 

the PM2.5 NAAQS. The proposed 

approval, if finalized, would incorporate 

the two contingency measures into the 

federally enforceable SIP. The EPA will 

accept comments on this proposed rule 

during a 30-day public comment period. 

DATES: Comments must be received by 

January 19, 2024. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09– 

OAR–2023–0477 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 (e.g., audio or video) must 

be accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

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

other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

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

commenting-epa-dockets. If you need 

assistance in a language other than 

English or if you are a person with a 

disability 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: Rory 

Mays, Planning and Analysis Branch 

(AIR–2), Air and Radiation Division, 

EPA Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105. By phone: 

(415) 972–3227 or by email at 

mays.rory@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to the EPA. 

Table of Contents 

I. Background for Proposed Action 

A. Standards, Designations, Classifications, 

and Plans 

B. Findings and Contingency Measure 

Disapprovals 

II. Summary of SIP Submissions and 

Evaluation for Compliance With SIP 

Revision Procedural Requirements 

A. Summary of SIP Submissions 

B. Evaluation for Compliance With SIP 

Revision Procedural Requirements 

III. Contingency Measure Requirements, 

Guidance, and Legal Precedent 

A. Statutory and Regulatory Requirements 

B. Draft Revised Contingency Measure 

Guidance 

IV. EPA Review of San Joaquin Valley 

Contingency Measures 

A. Residential Wood Burning Contingency 

Measure 

1. Background and Regulatory History 

2. Summary of State Submission 

3. EPA Evaluation 

B. Rural Open Areas Contingency Measure 

1. Background and Regulatory History 

2. Summary of State Submission 

3. EPA Evaluation 

C. Smog Check Contingency Measure 

V. EPA Review of San Joaquin Valley PM2.5

Contingency Measure Plan Element 

A. Background and Regulatory History 

B. Summary of State Submission 

1. General Considerations 

2. Contingency Measure Feasibility 

Analyses 

3. Conclusion 

C. EPA Evaluation 

1. General Considerations 

2. Contingency Measure Feasibility 

Analyses 

3. Conclusion 

VI. Environmental Justice Considerations 

VII. Proposed Action and Request for Public 

Comment 

VIII. Incorporation by Reference 

IX. Statutory and Executive Order Reviews 

I. Background for Proposed Action 

A. Standards, Designations, 

Classifications, and Plans 

Under section 109 of the Clean Air 

Act (CAA or ‘‘Act’’), the EPA has 

established national ambient air quality 

standards (NAAQS or ‘‘standards’’) for 

certain pervasive air pollutants (referred 

to as ‘‘criteria pollutants’’) and conducts 

periodic reviews of the NAAQS to 

determine whether they should be 

revised or whether new NAAQS should 

be established. To date, the EPA has 

established NAAQS for particulate 

matter, ozone, carbon monoxide, 

nitrogen dioxide, sulfur dioxide and 

lead. Under CAA section 110, states 

have primary responsibility for meeting 

the NAAQS within the state, and must 

submit an implementation plan that 

specifies the manner in which the state 

will attain and maintain the NAAQS. 

These implementation plans are referred 

to as ‘‘state implementation plans’’ or 

‘‘SIPs.’’ 

Periodically, states must make SIP 

submissions of different types to meet 

additional CAA requirements. For 

example, after the EPA promulgates a 

new or revised NAAQS, under CAA 

section 110(a)(1) and (2), states are 

required to adopt and submit to the EPA 

a state implementation plan that 

provides for implementation, 

maintenance, and enforcement of the 

NAAQS. Such plans are referred to as 

‘‘infrastructure SIPs.’’ Similarly, after 

the EPA promulgates designations for a 

new or revised NAAQS, states with 

designated nonattainment areas must 

make SIP submissions that meet 

additional requirements for such 

nonattainment areas, under CAA section 

172(c) and, in the case of the PM2.5

NAAQS, CAA sections 188 and 189. 

This type of SIP submission is referred 

to as an ‘‘attainment plan.’’ 

Under CAA section 110(k), the EPA is 

charged with evaluation of each SIP 

submission submitted by states for 

compliance with applicable CAA 

requirements, and for approval or 

disapproval (in whole or in part) of the 

submission. The EPA evaluates SIP 

submissions and takes action to 

approve, disapprove, or conditionally 

approve them through notice-andcomment rulemaking published in the 

Federal Register. Where appropriate, 

the EPA may act on specific parts of a 

SIP submission in separate rulemaking 

actions. 

In 1997, the EPA promulgated new 

NAAQS for fine particulate matter, 

using particles with an aerodynamic 

diameter less than or equal to a nominal 

2.5 micrometers (‘‘PM2.5’’) as the 

indicator.1 The EPA established primary 

and secondary annual and 24-hour 

standards for PM2.5. The EPA set the 

1997 annual PM2.5 NAAQS, both 

primary and secondary standards, at 

15.0 micrograms per cubic meter (mg/ 

m3), based on a 3-year average of annual 

mean PM2.5 concentrations. The EPA set 

the 1997 24-hour PM2.5 NAAQS, both 

primary and secondary standards, at 65 

mg/m3, based on the 3-year average of 

the 98th percentile of 24-hour PM2.5

concentrations. Collectively, we refer 

herein to the 1997 24-hour and annual 

PM2.5 NAAQS as the ‘‘1997 PM2.5

NAAQS.’’ In 2006, the EPA promulgated 

a new, more stringent 24-hour NAAQS 

for PM2.5 by lowering the primary and 

secondary standards level from 65 mg/ 

m3 to 35 mg/m3 (referred to herein as the 

‘‘2006 24-hour PM2.5 NAAQS’’).2 In 

2012, the EPA promulgated a new, more 

stringent annual NAAQS for PM2.5 by 

lowering the primary standards level 

from 15.0 mg/m3 to 12.0 mg/m3 (herein 

referred to as the ‘‘2012 annual PM2.5


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3 78 FR 3086 (January 15, 2013) and 40 CFR 

50.18. 4 78 FR 3086, 3088. 

5EPA, Air Quality Criteria for Particulate Matter, 

No. EPA/600/P–99/002aF and EPA/600/P–99/ 

002bF, October 2004. 

6For a precise description of the geographic 

boundaries of the San Joaquin Valley nonattainment 

area, see 40 CFR 81.305. 

7 70 FR 944 (January 5, 2005), codified at 40 CFR 

81.305. 

8 In Natural Resources Defense Council v. EPA, 

706 F.3d 428 (D.C. Cir. 2013), the U.S. Court of 

Appeals for D.C. Circuit concluded that the EPA 

erred in implementing the 1997 PM2.5 NAAQS 

solely pursuant to the general implementation 

requirements of subpart 1, without also considering 

the requirements specific to PM10 nonattainment 

areas in subpart 4, part D of title I of the CAA. 

9 79 FR 31566 (June 2, 2014). 

10 80 FR 18528 (April 7, 2015). 

11 81 FR 84481 (November 23, 2016). 

12 Id. at 84482. 

13 74 FR 58688 (November 13, 2009). 

14 79 FR 31566. 

15 81 FR 2993 (January 20, 2016). 

16 Id. at 3000. 

17 80 FR 2206 (January 15, 2015). 

18 81 FR 58010 (August 24, 2016); codified at 40 

CFR part 51, subpart Z. 

19 40 CFR 51.1003(a). 

NAAQS’’).3 Each iteration of the PM2.5

NAAQS remains in effect, and states 

with designated nonattainment areas for 

each of them are obligated to meet 

applicable attainment plan requirements 

for them. 

The EPA established each of these 

NAAQS after considering substantial 

evidence from numerous health studies 

demonstrating that serious health effects 

are associated with exposures to PM2.5

concentrations above these levels. 

Epidemiological studies have shown 

statistically significant correlations 

between elevated PM2.5 levels and 

premature mortality. Other important 

health effects associated with PM2.5

exposure include aggravation of 

respiratory and cardiovascular disease 

(as indicated by increased hospital 

admissions, emergency room visits, 

absences from school or work, and 

restricted activity days), changes in lung 

function, and increased respiratory 

symptoms. Individuals particularly 

sensitive to PM2.5 exposure include 

older adults, people with heart and lung 

disease, and children.4 PM2.5 can be 

particles emitted by sources directly 

into the atmosphere as a solid or liquid 

particle (‘‘primary PM2.5’’ or ‘‘direct 

PM2.5’’), or can be particles that form in 

the atmosphere as a result of various 

chemical reactions involving PM2.5

precursor emissions emitted by sources 

(‘‘secondary PM2.5’’). The EPA has 

identified the precursors of PM2.5 to be 

oxides of nitrogen (‘‘NOX’’), sulfur 

oxides (‘‘SOX’’), volatile organic 

compounds (VOCs), and ammonia.5

Following promulgation of a new or 

revised NAAQS, the EPA is required 

under CAA section 107(d) to designate 

areas throughout the Nation as attaining 

or not attaining the NAAQS. As noted 

previously, for areas the EPA has 

designated nonattainment, states are 

required under the CAA to submit 

attainment plan SIP submissions. These 

SIP submissions must provide for, 

among other elements, reasonable 

further progress (RFP) towards 

attainment of the NAAQS, attainment of 

the NAAQS no later than the applicable 

attainment date, and implementation of 

contingency measures to take effect if 

the state fails to meet RFP or to attain 

the NAAQS by the applicable 

attainment date. 

The San Joaquin Valley is located in 

the southern half of California’s Central 

Valley and includes all of San Joaquin, 

Stanislaus, Merced, Madera, Fresno, 

Tulare, and Kings Counties, and the 

valley portion of Kern County.6 The area 

is home to four million people and is 

the Nation’s leading agricultural region. 

Stretching over 250 miles from north to 

south and averaging 80 miles wide, it is 

partially enclosed by the Coast 

Mountain range to the west, the 

Tehachapi Mountains to the south, and 

the Sierra Nevada range to the east. In 

2005, the EPA designated the San 

Joaquin Valley as nonattainment for the 

1997 annual PM2.5 NAAQS and 

nonattainment for the 1997 24-hour 

PM2.5 NAAQS.7

The local air district with primary 

responsibility for developing attainment 

plan SIP submissions for the PM2.5

NAAQS in this area is the San Joaquin 

Valley Unified Air Pollution Control 

District (SJVUAPCD or ‘‘District’’). Once 

the District adopts the regional plan, the 

District submits the plan to the 

California Air Resources Board (CARB) 

for adoption as part of the California 

SIP. CARB is the State agency 

responsible for adopting and revising 

the California SIP and for submitting the 

SIP and SIP revisions to the EPA. 

Generally speaking, under California 

law, CARB is responsible for regulation 

of mobile sources while the local air 

districts are responsible for regulation of 

stationary sources. 

Originally, the EPA designated areas 

for the 1997 annual and 24-hour PM2.5

NAAQS under subpart 1 (of part D of 

title I of the CAA), i.e., without 

specifying the classifications of 

nonattainment required by subpart 4. 

Later, in response to a court decision,8

the EPA classified nonattainment areas 

for the 1997 annual and 24-hour PM2.5

NAAQS, consistent with the 

classifications set forth in subpart 4. 

With respect to San Joaquin Valley, in 

2014, the EPA classified the San Joaquin 

Valley as a ‘‘Moderate’’ nonattainment 

area,9 and then in 2015, reclassified the 

area as a ‘‘Serious’’ nonattainment area 

for the 1997 annual and 24-hour PM2.5

NAAQS.10

In 2016, the EPA determined that the 

San Joaquin Valley had failed to attain 

the 1997 annual and 24-hour PM2.5

NAAQS by the applicable ‘‘Serious’’ 

area attainment date.11 As a result, the 

State of California was required, under 

CAA section 189(d), to submit a new 

SIP submission that, among other 

elements, provides for expeditious 

attainment of the 1997 annual and 24- 

hour PM2.5 NAAQS and for a minimum 

five percent annual reduction in the 

emissions of direct PM2.5 or a PM2.5 plan 

precursor pollutant in the San Joaquin 

Valley (herein, referred to as a ‘‘Five 

Percent Plan’’). The Five Percent Plan 

for the 1997 annual and 24-hour PM2.5

NAAQS was due no later than 

December 31, 2016.12

With respect to the 2006 24-hour 

PM2.5 NAAQS, the EPA initially 

designated San Joaquin Valley as 

nonattainment under subpart 1 (i.e., 

without classification) 13 but, in 2014, in 

response to the court decision referred 

to previously, the EPA classified the 

area as Moderate.14 In 2016, the EPA 

reclassified San Joaquin Valley as a 

Serious nonattainment area for the 2006 

24-hour PM2.5 NAAQS based on the 

EPA’s determination that the area could 

not practicably attain these NAAQS by 

the applicable attainment date of 

December 31, 2015.15 The EPA 

established an August 21, 2017 deadline 

for California to adopt and submit a SIP 

submission addressing the Serious 

nonattainment area requirements for the 

2006 24-hour PM2.5 NAAQS.16

With respect to the 2012 annual PM2.5

NAAQS, the EPA designated San 

Joaquin Valley as a Moderate 

nonattainment area in 2015.17 Under 

CAA section 189 and the EPA’s PM2.5

SIP Requirements Rule,18 the deadline 

for the state to submit an attainment 

plan SIP submission addressing the 

Moderate nonattainment area 

requirements for the 2012 annual PM2.5

NAAQS is 18 months from the effective 

date of the designation of the area.19 The 

effective date of the designation of the 

San Joaquin Valley as a Moderate 

nonattainment area for the 2012 annual 

PM2.5 NAAQS was April 15, 2015, and 

thus, the deadline for a SIP submission 

addressing the Moderate area 

requirements was October 15, 2016. 


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20 83 FR 62720 (December 6, 2018). 

21The finding of failure to submit also started an 

18-month new source review (NSR) offset sanction 

clock and a 24-month highway sanction clock for 

the State of California. CAA section 179(a) and 40 

CFR 52.31. 

22 88 FR 53431 (August 8, 2023). 

23The SIP revisions submitted on May 10, 2019, 

include the ‘‘2016 Moderate Area Plan for the 2012 

PM2.5 Standard’’ (‘‘2016 PM2.5 Plan’’) and the ‘‘2018 

Plan for the 1997, 2006, and 2012 PM2.5 Standards’’ 

(‘‘2018 PM2.5 Plan’’), which incorporates by 

reference the ‘‘San Joaquin Valley Supplement to 

the 2016 State Strategy for the State Implementation 

Plan’’ (‘‘Valley State SIP Strategy’’). On February 11, 

2020, CARB submitted a revised version of 

Appendix H (‘‘RFP, Quantitative Milestones, and 

Contingency’’) that replaces the version submitted 

with the 2018 PM2.5 Plan on May 10, 2019. The EPA 

found the SIP submissions complete in a letter 

dated June 24, 2020, from Elizabeth J. Adams, 

Director, EPA Region IX, to Richard W. Corey, 

Executive Officer, CARB. The EPA’s completeness 

determination terminated the NSR offsets and 

highway sanctions started by the December 6, 2018 

finding of failure to submit but did not affect the 

FIP obligation. 

24The SIP revision submitted on November 8, 

2021, is titled ‘‘Attainment Plan Revision for the 

1997 Annual PM2.5 Standard’’ (‘‘15 mg/m3 SIP 

Revision’’). 

25 85 FR 44192 (July 22, 2020). 

26 86 FR 67343 (November 26, 2021). 

27 Id. 

28 86 FR 67329 (November 26, 2021). 

29 87 FR 4503 (January 28, 2022). 

30 Id. 31 88 FR 45276 (July 14, 2023). 32EPA, ‘‘Air Quality State Implementation Plans; 

Approvals and Promulgations: California; 1997 

Annual Fine Particulate Matter Serious and Clean 

Air Act Section 189(d) Nonattainment Area 

Requirements; San Joaquin Valley, CA,’’ Final rule, 

signed December 5, 2023. 33 In this context, ‘‘surplus’’ refers to emissions 

reductions not otherwise relied upon for RFP or 

attainment demonstrations. 34See 86 FR 38652, 38668–38669 (July 22, 2021); 

86 FR 49100, 49123–49124 and 49132–49133 

(September 1, 2021). 35See 86 FR 38652, 38669–38670 (proposed 

disapproval of the contingency measure element for 

Continued 

B. Findings and Contingency Measure 

Disapprovals 

In the wake of these EPA actions, 

CARB and the District worked together 

to prepare a comprehensive SIP 

submission to address the 

nonattainment area requirements for the 

1997, 2006, and 2012 PM2.5 NAAQS for 

San Joaquin Valley, but did not meet the 

various SIP submission deadlines. In 

late 2018, the EPA issued a finding of 

failure to submit to the State for the 

required attainment plan SIP 

submissions for the 1997 annual and 24- 

hour PM2.5 NAAQS, the 2006 24-hour 

PM2.5 NAAQS, and the 2012 annual 

PM2.5 NAAQS for the San Joaquin 

Valley.20 The EPA’s finding of failure to 

submit was effective January 7, 2019. 

Under CAA section 110(c), the EPA is 

obligated to promulgate a Federal 

Implementation Plan (FIP) within two 

years of a finding that a state has failed 

to make a required SIP submission, 

unless the state submits a SIP 

submission that corrects the deficiency, 

and the EPA approves that SIP 

submission, before the EPA promulgates 

such FIP.21 In this case, the finding of 

failure to submit established a deadline 

of January 7, 2021, for the EPA to 

promulgate a FIP to address all 

applicable attainment plan requirements 

for the 1997 annual and 24-hour PM2.5

NAAQS, the 2006 24-hour PM2.5

NAAQS, and 2012 annual PM2.5

NAAQS for San Joaquin Valley, for 

which the EPA had not received and 

approved an adequate SIP submission 

from the State. 

To address a portion of current FIP 

obligation, the EPA recently proposed a 

FIP to address the contingency measures 

requirements for the San Joaquin Valley 

for the 1997 annual, 2006 24-hour, and 

2012 annual PM2.5 NAAQS.22 In short, 

the proposed contingency measure FIP 

includes two specific contingency 

measures, one of which would extend 

certain wood-burning curtailment 

restrictions Valley-wide and another 

which would extend certain fugitive 

dust requirements to certain open areas 

that are not currently subject to control 

requirements. 

On May 10, 2019, CARB submitted 

two SIP submissions to address the 

nonattainment area requirements for all 

four of the relevant PM2.5 NAAQS for 

the San Joaquin Valley, including the 

contingency measure requirement.23 On 

November 8, 2021, CARB submitted a 

third SIP submission to amend the 

portions of the May 10, 2019 SIP 

submissions that pertain to the 1997 

annual PM2.5 NAAQS.24 As discussed in 

the following paragraph, the EPA has 

previously taken a series of actions on 

these SIP submissions to address 

different nonattainment area 

requirements for each of the NAAQS. In 

this proposed action, we are focused 

only on the contingency measure 

requirements. 

In 2020, the EPA approved the 

portion of the SIP submissions related to 

the 2006 24-hour PM2.5 NAAQS, but 

deferred action on the contingency 

measure element.25 In 2021, the EPA 

approved the portion of the SIP 

submissions related to the Moderate 

area requirements for the 2012 annual 

PM2.5 NAAQS except for the 

contingency measure element, which 

the EPA disapproved.26 The EPA also 

disapproved the previously-deferred 

contingency measure element for the 

2006 24-hour PM2.5 NAAQS.27 In 

another 2021 action, the EPA 

disapproved the portion of the SIP 

submissions related to the 1997 annual 

PM2.5 NAAQS except for the emissions 

inventory, which the Agency 

approved.28 In 2022, the EPA approved 

the portion of the SIP submission 

related to the 1997 24-hour PM2.5

NAAQS, with the exception of the 

contingency measure element.29 In our 

action on the SIP submission related to 

the 1997 24-hour PM2.5 NAAQS, we 

disapproved the contingency measure 

element, but also found that the 

contingency measure requirement was 

moot for that particular PM2.5 NAAQS 

because of the EPA’s concurrent 

determination of attainment by the 

applicable attainment date for San 

Joaquin Valley for the 1997 24-hour 

PM2.5 NAAQS.30

In July 2023, the EPA proposed 

approval of the portions of the three SIP 

submissions that pertain to the 1997 

annual PM2.5 NAAQS in the San Joaquin 

Valley nonattainment area.31 More 

recently, we took action to finalize our 

approval of the SIP submissions for the 

1997 annual PM2.5 NAAQS, as 

proposed; however, our recent action on 

various elements of the San Joaquin 

Valley PM2.5 plan for the 1997 annual 

PM2.5 NAAQS did not address the 

contingency measures requirements for 

that particular PM2.5 NAAQS.32

With respect to contingency measure 

elements, the State’s May 10, 2019 PM2.5

SIP submissions for San Joaquin Valley 

relied upon contingency provisions 

included in District Rule 4901 (‘‘Wood 

Burning Fireplaces and Wood Burning 

Heaters’’), specifically section 5.7.3 of 

the rule, and a demonstration that the 

emissions reductions from the 

contingency measure would be 

sufficient to meet the contingency 

measure SIP requirements of CAA 

section 172(c)(9) if the reductions were 

viewed together with ‘‘surplus’’ 33

emissions reductions from alreadyimplemented measures.34 We 

disapproved the contingency measure 

elements for San Joaquin Valley for the 

1997 annual, 2006 24-hour, and 2012 

annual PM2.5 NAAQS because the 

contingency provision (i.e., section 

5.7.3) in Rule 4901 did not address the 

potential for State failures to meet RFP, 

to meet a quantitative milestone, or to 

submit a quantitative milestone report. 

In addition, the contingency measure 

provision of Rule 4901 was not 

structured to achieve any additional 

emissions reductions if the EPA were to 

find that the monitoring locations in the 

‘‘hot spot’’ counties (i.e., Fresno, Kern, 

or Madera) are the only counties in the 

San Joaquin Valley that are violating the 

PM2.5 NAAQS as of the attainment 

date.35 In addition, the contingency 


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the 1997 annual PM2.5 NAAQS); and 86 FR 49100, 

49124–49125 (proposed disapproval of the 

contingency measure element for the 2012 annual 

PM2.5 NAAQS) and 49133–49134 (proposed 

disapproval of the contingency measure element for 

the 2006 24-hour PM2.5 NAAQS) (September 1, 

2021). The proposed disapprovals were finalized at 

86 FR 67329 (1997 annual PM2.5 NAAQS); 86 FR 

67343 (2012 annual PM2.5 NAAQS and 2006 24- 

hour PM2.5 NAAQS). 

36 Id. 

37 81 FR 58010, 58066. See also 57 FR 13498, 

13511, 13543–13544 (April 16, 1992), and 59 FR 

41998, 42014–42015 (August 16, 1994). 

38 86 FR 67329, 67341 (1997 annual PM2.5

NAAQS); 86 FR 67343, 67346–67347 (2012 annual 

PM2.5 NAAQS and 2006 24-hour PM2.5 NAAQS). 

39CARB adopted the SJV PM2.5 Contingency 

Measure SIP and Residential Wood Burning 

Contingency Measure as SIP revisions on June 7, 

2023, through Executive Order S–23–010 and 

submitted the SIP revisions to the EPA 

electronically on June 8, 2023, as attachments to a 

letter dated June 7, 2023, from Steven S. Cliff, 

Ph.D., Executive Officer, CARB to Martha Guzman, 

Regional Administrator, EPA Region IX. 

40 In addition, see EPA Region IX SIP 

Completeness Checklist, October 13, 2023. 

41SJV PM2.5 Contingency Measure SIP, pp. 31–32. 

42CARB adopted the Rural Open Areas 

Contingency Measure as a SIP revision on October 

13, 2023, through Executive Order S–23–014 and 

submitted the SIP revision to the EPA electronically 

on October 16, 2023, as an attachment to a letter 

dated October 13, 2023, from Steven S. Cliff, Ph.D., 

Executive Officer, CARB to Martha Guzman, 

Regional Administrator, EPA Region IX. 

43EPA Region IX SIP Completeness Checklist, 

October 18, 2023. 

44 In addition to establishing procedural 

requirements for SIP revisions, CAA section 110(l) 

prohibits the EPA from approving any SIP revision 

that would interfere with any applicable 

requirement for reasonable further progress (RFP) or 

attainment or any other applicable requirement of 

the CAA. In this instance, the Residential Wood 

Burning Contingency Measure and the Rural Open 

Areas Contingency Measure would provide 

emissions reductions beyond those needed for RFP 

and attainment of the NAAQS in San Joaquin 

Valley and, thus, would not interfere with the RFP 

and attainment demonstrations for the area. 

measure elements did not provide 

sufficient justification as to why the one 

adopted contingency measure (in Rule 

4901) would suffice to meet the CAA 

requirements for contingency measures 

for the PM2.5 NAAQS for San Joaquin 

Valley notwithstanding the fact that the 

one measure would not achieve one 

year’s worth of RFP, as recommended in 

longstanding EPA guidance.36 37

In our final rules disapproving the 

contingency measure elements for San 

Joaquin Valley for the 1997 annual, 

2006 24-hour, and 2012 annual PM2.5

NAAQS, we indicated that the 

disapprovals would begin an 18-month 

clock for imposition of the offset 

sanction in CAA section 179(b)(2) and a 

24-month clock for imposition of the 

highway funding sanction in CAA 

section 179(b)(1) unless the State 

submits, and the EPA approves, a SIP 

revision that corrects the deficiencies 

that we identified in our final actions 

prior to implementation of the 

sanctions.38

II. Summary of SIP Submissions and 

Evaluation for Compliance With SIP 

Revision Procedural Requirements 

A. Summary of SIP Submissions 

On June 8, 2023, CARB submitted the 

‘‘PM2.5 Contingency Measure State 

Implementation Plan Revision (May 18, 

2023)’’ (herein referred to as the ‘‘SJV 

PM2.5 Contingency Measure SIP’’) to the 

EPA as a revision to the California SIP.39

Also on June 8, 2023, CARB submitted 

revisions to Rule 4901 that add PM2.5

NAAQS contingency provisions that we 

refer to herein as the ‘‘Residential Wood 

Burning Contingency Measure.’’ The 

District adopted the SJV PM2.5

Contingency Measure SIP and 

Residential Wood Burning Contingency 

Measure on May 18, 2023, and 

submitted them to CARB for adoption 

and submission to the EPA as SIP 

revisions. The District adopted the SJV 

PM2.5 Contingency Measure SIP and 

Residential Wood Burning Contingency 

Measure to correct the deficiencies 

identified by the EPA in the November 

26, 2021 disapprovals of the 

contingency measure elements for the 

1997 annual, 2006 24-hour, and 2012 

annual PM2.5 NAAQS and the 

previously adopted contingency 

provisions of Rule 4901. In this 

document, we are proposing action on 

both the SJV PM2.5 Contingency 

Measure SIP and the Residential Wood 

Burning Contingency Measure. 

The June 8, 2023 SIP submission 

includes the two specific SIP revisions 

(i.e., the SJV PM2.5 Contingency Measure 

SIP and the Residential Wood Burning 

Contingency Measure), as well as 

supporting material including the 

resolutions of adoption, CARB 

evaluation and completeness forms, and 

evidence of public notice and hearing. 

The SJV PM2.5 Contingency Measure SIP 

includes a general discussion of 

contingency measures and related 

requirements and guidance, context for 

this particular SIP revision, and 

feasibility analyses developed by the 

District and CARB to identify potential 

contingency measures for the PM2.5

NAAQS for the San Joaquin Valley. (In 

our evaluation of the latter, we refer to 

the State’s feasibility analyses herein as 

infeasibility demonstrations.) The SJV 

PM2.5 Contingency Measure SIP 

includes appendices that provide 

further detailed information and 

documentation for, among other things, 

the emissions reductions estimated for 

the Residential Wood Burning 

Contingency Measure. The District also 

attached excerpts from certain 

previously submitted SIPs to provide 

support for the conclusions drawn by 

the District and CARB with respect to 

the infeasibility of adopting additional 

contingency measures for the San 

Joaquin Valley. The June 8, 2023 SIP 

submission of the SJV PM2.5

Contingency Measure SIP and 

Residential Wood Burning Contingency 

Measure was deemed administratively 

complete by operation of law on 

December 8, 2023, consistent with CAA 

section 110(k)(1).40

Through adoption of the SJV PM2.5

Contingency Measure SIP, the District 

committed to evaluating revisions to a 

specific fugitive dust rule, District Rule 

8051 (‘‘Open Areas’’), for potential as a 

second contingency measure for the 

PM2.5 NAAQS for the SJV.41 On 

September 21, 2023, the District 

adopted revisions to Rule 8051 to add 

contingency provisions that we refer to 

herein as the ‘‘Rural Open Areas 

Contingency Measure.’’ The District 

adopted the Rural Open Areas 

Contingency Measure to supplement the 

SJV PM2.5 Contingency Measure SIP by 

providing additional emissions 

reductions for the San Joaquin Valley if 

triggered by one of the contingency 

events. On October 16, 2023, CARB 

submitted the Rural Open Areas 

Contingency Measure to the EPA as a 

revision to the California SIP.42 In this 

document, we are also proposing action 

on the Rural Open Areas Contingency 

Measure. 

The October 16, 2023 SIP submission 

includes the SIP revision itself (i.e., the 

Rural Open Areas Contingency 

Measure) as well as supporting material 

including the resolutions of adoption, 

CARB evaluation and completeness 

forms, and evidence of public notice 

and hearing. The EPA has reviewed the 

October 16, 2023 SIP submission of the 

Rural Open Areas Contingency Measure 

and finds it to be administratively 

complete for the purposes of CAA 

section 110(k)(1), effective upon 

publication of this proposed rule.43

B. Evaluation for Compliance With SIP 

Revision Procedural Requirements 

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.44


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45 57 FR 13498 (April 16, 1992). 

46 57 FR 18070 (April 28, 1992). 

47 59 FR 41998 (August 16, 1994). 

48 81 FR 58010. 

49 40 CFR 51.1014(a). 

50 81 FR 58010, 58066 and General Preamble 

Addendum, 42015. 

51 81 FR 58010, 58066. See also General Preamble 

13512, 13543–13544, and General Preamble 

Addendum, 42014–42015. 

52 General Preamble, 13511. 

53 81 FR 58010, 58066. See also General 

Preamble, 13511, 13543–13544, and General 

Preamble Addendum, 42014–42015. 

54 81 FR 58010, 58066. 

55 81 FR 58010, 58067. 

The District adopted the SJV PM2.5

Contingency Measure SIP and the 

Residential Wood Burning Contingency 

Measure on May 18, 2023, through 

Resolution No. 2023–5–7, following a 

public hearing held on the same day. 

Prior to adoption, the District published 

notice of the May 18, 2023 public 

hearing in newspapers of general 

circulation in each of the eight counties 

that comprise the San Joaquin Valley, 

and provided more than 30 days for 

submission of written comments. CARB 

subsequently adopted the SJV PM2.5

Contingency Measure SIP and the 

Residential Wood Burning Contingency 

Measure as a revision to the SIP on June 

7, 2023, through Executive Order S–23– 

010. CARB then submitted the SJV PM2.5

Contingency Measure SIP and the 

Residential Wood Burning Contingency 

Measure to the EPA on June 8, 2023, as 

an attachment to a transmittal letter 

dated June 7, 2023. 

The District adopted the Rural Open 

Areas Contingency Measure on 

September 21, 2023, through Resolution 

No. 2023–9–9, following a public 

hearing held on the same day. Prior to 

adoption, the District published notice 

of the September 21, 2023 public 

hearing in newspapers of general 

circulation in each of the eight counties 

that comprise the San Joaquin Valley, 

and provided more than 30 days for 

submission of written comments. CARB 

subsequently adopted the Rural Open 

Areas Contingency Measure as a 

revision to the SIP on October 13, 2023, 

through Executive Order S–23–014. 

CARB then submitted the Rural Open 

Areas Contingency Measure to the EPA 

on October 16, 2023, as an attachment 

to a transmittal letter dated October 13, 

2023. 

Based on the materials provided in 

the June 8, 2023 and October 16, 2023 

SIP submissions, we propose to find 

that the District and the CARB have met 

the procedural requirements for 

adoption and submission of SIP 

revisions under CAA section 110(l) and 

40 CFR 51.102. 

III. Contingency Measure 

Requirements, Guidance, and Legal 

Precedent 

The EPA first provided its views on 

the CAA’s requirements for particulate 

matter plans under part D, title I of the 

Act in the following guidance 

documents: (1) ‘‘State Implementation 

Plans; General Preamble for the 

Implementation of Title I of the Clean 

Air Act Amendments of 1990’’ 

(‘‘General Preamble’’); 45 (2) ‘‘State 

Implementation Plans; General 

Preamble for the Implementation of 

Title I of the Clean Air Act Amendments 

of 1990; Supplemental’’; 46 and (3) 

‘‘State Implementation Plans for Serious 

PM–10 Nonattainment Areas, and 

Attainment Date Waivers for PM–10 

Nonattainment Areas Generally; 

Addendum to the General Preamble for 

the Implementation of Title I of the 

Clean Air Act Amendments of 1990’’ 

(‘‘General Preamble Addendum’’).47

More recently, in the PM2.5 SIP 

Requirements Rule, the EPA established 

regulatory requirements and provided 

further interpretive guidance on the 

statutory SIP requirements that apply to 

areas designated nonattainment for all 

PM2.5 NAAQS.48

A. Statutory and Regulatory 

Requirements 

Under CAA section 172(c)(9), states 

required to make an attainment plan SIP 

submission must include contingency 

measures to be implemented if the area 

fails to meet RFP (‘‘RFP contingency 

measures’’) or fails to attain the NAAQS 

by the applicable attainment date 

(‘‘attainment contingency measures’’). 

Under the PM2.5 SIP Requirements Rule, 

states must include contingency 

measures that provide that the state will 

implement them following a 

determination by the EPA that the state 

has failed: (1) to meet any RFP 

requirement in the approved SIP; (2) to 

meet any quantitative milestone (QM) in 

the approved SIP; (3) to submit a 

required QM report; or (4) to attain the 

applicable PM2.5 NAAQS by the 

applicable attainment date.49

Contingency measures must be fully 

adopted rules or control measures that 

are ready to be implemented quickly 

upon failure to meet RFP or failure of 

the area to meet the relevant NAAQS by 

the applicable attainment date.50 In 

general, we expect all actions needed to 

effect full implementation of the 

measures to occur within 60 days after 

the EPA notifies the state of a failure to 

meet RFP or to attain.51 Moreover, we 

expect the additional emissions 

reductions from the contingency 

measures to be achieved within a year 

of the triggering event.52

The purpose of contingency measures 

is to continue progress in reducing 

emissions while a state revises its SIP to 

meet the missed RFP requirement or to 

correct ongoing nonattainment. Neither 

the CAA nor the EPA’s implementing 

regulations establish a specific level of 

emission reductions that 

implementation of contingency 

measures must achieve, but the EPA 

recommends that contingency measures 

should provide for emission reductions 

equivalent to approximately one year of 

reductions needed for RFP in the 

nonattainment area.53 For PM2.5 NAAQS 

SIP planning purposes, the EPA 

recommends that RFP should be 

calculated as the overall level of 

reductions needed to demonstrate 

attainment divided by the number of 

years from the base year to the 

attainment year.54 As part of the 

attainment plan SIP submission, the 

EPA expects states to explain the 

amount of anticipated emissions 

reductions that the contingency 

measures will achieve. In the event that 

a state is unable to identify and adopt 

contingency measures that will provide 

for approximately one year’s worth of 

emissions reductions, then EPA 

recommends that the state provide a 

reasoned justification why the smaller 

amount of emissions reductions is 

appropriate.55

To satisfy the contingency measure 

requirements of 40 CFR 51.1014, the 

contingency measures adopted as part of 

a PM2.5 NAAQS attainment plan must 

consist of control measures for the area 

that are not otherwise required to meet 

other attainment plan requirements 

(e.g., to meet reasonably available 

control measure (RACM)/reasonably 

available control technology (RACT) 

requirements). By definition, 

contingency measures are measures that 

are over and above what a state must 

adopt and impose to meet RFP and to 

provide for attainment by the applicable 

attainment date. 

Contingency measures serve the 

purpose of providing additional 

emission reductions during the period 

after a failure to meet RFP or failure to 

attain as the state prepares a new SIP 

submission to rectify the problem. 

Accordingly, contingency measures 

must provide such additional emission 

reductions during an appropriate period 

and must specify the timeframe within 

which their requirements would become 

effective following any of the EPA 

determinations specified in 40 CFR 

51.1014(a). 


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56Bahr v. EPA, 836 F.3d 1218, 1235–1237 (9th 

Cir. 2016). See also Sierra Club v. EPA, 21 F.4th 

815, 827–28 (D.C. Cir. 2021). 

57Assoc. of Irritated Residents v. EPA, 10 F.4th 

937, 946–47 (9th Cir. 2021) (‘‘AIR v. EPA’’ or 

‘‘AIR’’). 

58 88 FR 17571 (March 23, 2023). The Draft 

Revised Contingency Measure Guidance is available 

at https://www.epa.gov/air-quality-implementationplans/draft-contingency-measures-guidance. 59 Draft Revised Contingency Measure Guidance, 

p. 22. 

60 Draft Revised Contingency Measure Guidance, 

p. 29. 

61 Id. 

In addition, to comply with CAA 

section 172(c)(9), contingency measures 

must be both conditional and 

prospective, so that they will go into 

effect and achieve emission reductions 

only in the event of a future triggering 

event such as a failure to meet RFP or 

a failure to attain. In a 2016 decision 

called Bahr v. EPA,56 the Ninth Circuit 

Court of Appeals held that CAA section 

172(c)(9) does not allow EPA approval 

of already-implemented control 

measures as contingency measures. 

Thus, already-implemented measures 

cannot serve as contingency measures 

under CAA section 172(c)(9). For 

purposes of the PM2.5 NAAQS, a state 

must develop, adopt, and submit one or 

more contingency measures to be 

triggered upon a failure to meet any RFP 

requirement, failure to meet a 

quantitative milestone requirement, or 

failure to attain the NAAQS by the 

applicable attainment date, regardless of 

the extent to which alreadyimplemented measures would achieve 

surplus emission reductions beyond 

those necessary to meet RFP or 

quantitative milestone requirements and 

beyond those predicted to achieve 

attainment of the NAAQS. 

In a recent decision on the EPA’s 

approval of a SIP contingency measure 

element for the ozone NAAQS, the 

Ninth Circuit Court of Appeals held 

that, under the EPA’s current guidance, 

the surplus emissions reductions from 

already-implemented measures cannot 

be relied upon to justify the approval of 

a contingency measure that would 

achieve far less than one year’s worth of 

RFP as sufficient by itself to meet the 

contingency measure requirements of 

CAA sections 172(c)(9) and 182(c)(9) for 

the nonattainment area.57

B. Draft Revised Contingency Measure 

Guidance 

In March 2023, the EPA published 

notice of availability announcing a new 

draft guidance addressing the 

contingency measures requirement of 

section 172(c)(9), entitled ‘‘Draft: 

Guidance on the Preparation of State 

Implementation Plan Provisions that 

Address the Nonattainment Area 

Contingency Measure Requirements for 

Ozone and Particulate Matter (DRAFT— 

3/17/23—Public Review Version)’’ 

(herein referred to as the ‘‘Draft Revised 

Contingency Measure Guidance’’) and 

opportunity for public comment.58 The 

principal differences between the draft 

revised guidance and existing guidance 

on contingency measures relate to the 

EPA’s recommendations concerning the 

specific amount of emission reductions 

that implementation of contingency 

measures should achieve, and the 

timing for when the emissions 

reductions from the contingency 

measures should occur. The Draft 

Revised Contingency Measure Guidance 

also provides recommended procedures 

for developing a demonstration, if 

applicable, that the area lacks sufficient 

feasible measures to achieve one year’s 

worth of reductions, building on 

existing guidance that the state provide 

a reasoned justification why the smaller 

amount of emissions reductions is 

appropriate. 

Under the Draft Revised Contingency 

Measure Guidance, the recommended 

level of emissions reductions that 

contingency measures should achieve 

would represent one year’s worth of 

‘‘progress’’ as opposed to one year’s 

worth of RFP.59 One year’s worth of 

‘‘progress’’ is calculated by determining 

the average annual reductions between 

the base year emissions inventory and 

the projected attainment year emissions 

inventory, determining what percentage 

of the base year emissions inventory this 

amount represents, then applying that 

percentage to the projected attainment 

year emissions inventory to determine 

the amount of reductions needed to 

ensure ongoing progress if contingency 

measures are triggered. 

With respect to the time period within 

which reductions from contingency 

measures should occur, the EPA 

previously recommended that 

contingency measures take effect within 

60 days of being triggered, and that the 

resulting emission reductions generally 

occur within one year of the triggering 

event. Under the Draft Revised 

Contingency Measure Guidance, in 

instances where there are insufficient 

contingency measures available to 

achieve the recommended amount of 

emissions reductions within one year of 

the triggering event, the EPA believes 

that contingency measures that provide 

reductions within up to two years of the 

triggering event would be appropriate to 

consider towards achieving the 

recommended amount of emissions 

reductions. The Draft Revised 

Contingency Measure Guidance does 

not alter the 60-day recommendation for 

the contingency measures to take initial 

effect. 

If, after adequately evaluating 

additional control measures, the state is 

unable to identify contingency measures 

that would provide approximately one 

year’s worth of emissions reductions, 

the Draft Revised Contingency Measure 

Guidance recommends that the state 

should provide a reasoned justification 

(referred to herein as an ‘‘infeasibility 

demonstration’’) that explains and 

documents how it has evaluated all 

existing and potential control measures 

relevant to the appropriate source 

categories and pollutants in the 

nonattainment area and has reached 

reasonable conclusions regarding 

whether such measures are feasible.60

As explained in the Draft Revised 

Contingency Measure Guidance, while 

the EPA notes that CAA section 

172(c)(9) and section 182(c)(9) do not 

explicitly provide for consideration of 

whether specific measures are feasible, 

the Agency believes that it is reasonable 

to infer that the statute does not require 

control measures regardless of any 

technological or cost constraints 

whatsoever.61 It is more reasonable to 

interpret the contingency measure 

requirement not to require air agencies 

to adopt and impose infeasible 

measures. The statutory provisions 

applicable to other nonattainment area 

plan control measure requirements, 

including RACM/RACT (for ozone and 

PM), best available control measure 

(BACM)/best available control 

technology (BACT) (for PM), and most 

stringent measures (MSM) (for PM), 

allow air agencies to exclude certain 

control measures that are deemed 

unreasonable or infeasible (depending 

on the requirement). For example, the 

MSM provision in CAA section 188(e) 

requires plans to include ‘‘the most 

stringent measures that are included in 

the implementation plan of any state or 

are achieved in practice in any state, 

and can feasibly be implemented in the 

area.’’ The EPA considers it reasonable 

to conclude that Congress similarly did 

not expect air agencies to satisfy the 

contingency measure requirement with 

infeasible measures. Thus, the EPA 

anticipates that a demonstrated lack of 

feasible measures would be a reasoned 

justification for adopting contingency 

measures that only achieve a lesser 

amount of emission reductions. 


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62CARB, ‘‘California Smog Check Contingency 

Measure State Implementation Plan Revision,’’ 

release date September 15, 2023, (‘‘Smog Check 

Contingency Measure’’). 

63EPA, ‘‘Air Plan Revision; California; Motor 

Vehicle Inspection and Maintenance Program 

Contingency Measure,’’ Proposed rule, published in 

this Federal Register. 

64 In order to be registered, a device must either 

be certified under the NSPS at time of purchase or 

installation and at least as stringent as Phase II 

requirements or be a pellet-fueled wood burning 

heater exempt from EPA certification requirements 

at the time of purchase or installation (Rule 4901, 

section 5.9.1). The rule includes requirements for 

documentation and inspection to verify compliance 

with these standards (Rule 4901, sections 5.9.2 and 

5.10). 

65Rule 4901, section 5.7.1. 

66Rule 4901, section 5.7.2. 

67Rule 4901, section 5.7.4. 

68Email dated October 9, 2019, from Jon Klassen, 

SJVUAPCD to Meredith Kurpius, EPA Region IX, 

Subject: ‘‘RE: Info to support Rule 4901.’’ 

69 2018 PM2.5 Plan, Appendix J, 60. 

70 86 FR 67329, 67338 (for the 1997 annual PM2.5

NAAQS) and 86 FR 67343, 67345 (for the 2006 24- 

hour PM2.5 NAAQS and 2012 annual PM2.5

NAAQS). 

IV. EPA Review of San Joaquin Valley 

Contingency Measures 

We provide our review of two specific 

contingency measures—the Residential 

Wood Burning Contingency Measure 

and the Rural Open Areas Contingency 

Measure—in sections IV.A and IV.B of 

this document, respectively. As noted 

previously, we are reviewing and 

proposing approval of a third 

contingency measure, the Smog Check 

Contingency Measure,62 in a separate 

rulemaking; 63 however, we provide a 

summary of the Smog Check 

Contingency Measure in section IV.C for 

informational purposes. Because we are 

proposing approval of the contingency 

measures, we take into account the 

measures’ anticipated emission 

reductions in our evaluation of the SJV 

PM2.5 Contingency Measure SIP, which 

we present in section V of this proposed 

rule. 

A. Residential Wood Burning 

Contingency Measure 

1. Background and Regulatory History 

Residential wood burning includes 

wood-burning heaters (i.e., woodstoves, 

pellet stoves, and wood-burning 

fireplace inserts), which are used 

primarily for heat generation, and woodburning fireplaces, which are used 

primarily for aesthetic purposes. All of 

these devices emit direct PM2.5 and 

NOX. However, wood-burning heaters, 

that are certified under the EPA’s New 

Source Performance Standards (NSPS) 

emit lower levels of PM2.5 compared to 

wood-burning fireplaces and noncertified heaters when properly 

installed, operated, and maintained. 

Residential wood-burning is included 

within the ‘‘Residential Fuel 

Combustion’’ emissions inventory 

category within the 2018 PM2.5 Plan’s 

emissions inventories. In the 2018 PM2.5

Plan, the District estimates emissions of 

2.82 tons per day (tpd) of PM2.5 and 0.42 

tpd NOX (annual average) specifically 

from residential wood burning for each 

year from 2017 onward. However, these 

estimates do not account for the effect 

of 2019 amendments to Rule 4901, 

discussed in the following section of 

this document. 

Rule 4901 (‘‘Wood Burning Fireplaces 

and Wood Burning Heaters’’) establishes 

requirements for the sale/transfer, 

operation, and installation of woodburning devices and on the advertising 

of wood for sale intended for burning in 

a wood-burning fireplace, wood-burning 

heater, or outdoor wood-burning device 

within the San Joaquin Valley. One of 

the most effective ways to reduce 

wintertime smoke is a curtailment 

program that restricts use of woodburning heaters and fireplaces on days 

that are conducive to buildup of PM 

concentrations (i.e., days where ambient 

PM2.5 and/or PM10 concentrations are 

forecast to be above a particular level, 

known as a ‘‘curtailment threshold’’). 

Rule 4901 includes a tiered 

mandatory curtailment program that 

establishes different curtailment 

thresholds based on the type of devices 

(i.e., registered clean-burning devices 64

vs. unregistered devices) and different 

counties (i.e., hot spot vs. non-hot spot). 

During a Level One Episodic Wood 

Burning Curtailment, operation of 

wood-burning fireplaces and other 

unregistered wood-burning heaters or 

devices is prohibited, but properly 

operated, registered wood-burning 

heaters may be used.65 During a Level 

Two Episodic Wood Burning 

Curtailment, operation of any woodburning device is prohibited.66

However, the rule includes an 

exemption from the curtailment 

provisions for (1) locations where piped 

natural gas service is not available and 

(2) residences for which a wood-burning 

fireplace or wood-burning heater is the 

sole available source of heat.67

In order to implement the curtailment 

program under Rule 4901, the District 

develops daily air quality forecasts, 

based on EPA and CARB guidance, 

which include a projection of the 

maximum PM2.5 concentration in each 

county for the following day.68 District 

staff then compare this maximum 

county PM2.5 concentration forecast 

with the curtailment thresholds in Rule 

4901. If a county’s PM2.5 forecast 

exceeds the applicable threshold, then 

the District’s Air Pollution Control 

Officer declares a curtailment for the 

county for the following day. 

In 2019, the District lowered the 

curtailment thresholds in Madera, 

Fresno, and Kern counties, which the 

District identified as ‘‘hot spot’’ 

counties, because they were ‘‘either new 

areas of gas utility or areas deemed to 

have persistently poor air quality.’’ 69

Table 1 presents the residential 

curtailment thresholds in Rule 4901, as 

revised in 2019. 

TABLE 1—RESIDENTIAL WOOD BURNING CURTAILMENT THRESHOLDS IN RULE 4901 

[As amended in 2019] 

Episodic wood burning curtailment levels Hot spot counties 

(Madera, Fresno, and Kern) 

Non-hot spot counties 

(San Joaquin, Stanislaus, Merced, 

Kings, and Tulare) 

Level One (No Burning Unless Registered) ........................................... 12 μg/m3 ........................................ 20 μg/m3. 

Level Two (No Burning for All) ................................................................ 35 μg/m3 ........................................ 65 μg/m3. 

The 2019 revision by the District also 

added a provision to the rule to operate 

as a contingency measure, which would 

lower the curtailment thresholds for any 

county that failed to attain the 

applicable standards to levels consistent 

with current thresholds for hot spot 

counties. However, the EPA 

disapproved this provision because it 

did not meet all of the CAA 

requirements for contingency 

measures.70 Specifically, it did not 

address three of the four required 

triggers for contingency measures in 40 

CFR 51.1014(a) and was not structured 

to achieve any additional emissions 

reductions if the EPA found that the 

monitoring locations in the ‘‘hot spot’’ 


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71 Id. See also 86 FR 38652, 38669 (proposed rule 

on contingency measures element for the 1997 

annual PM2.5 NAAQS) and 86 FR 49100, 49125 and 

49133–49134 (proposed rule on contingency 

measures element for the 2012 annual PM2.5

NAAQS and 2006 24-hour PM2.5 NAAQS, 

respectively). 

72 86 FR 67329, 67338. 

73SJV PM2.5 Contingency Measure SIP, p. C–15. 

74EPA, ‘‘Air Quality State Implementation Plans; 

Approvals and Promulgations: California; 1997 

Annual Fine Particulate Matter Serious and Clean 

Air Act Section 189(d) Nonattainment Area 

Requirements; San Joaquin Valley, CA,’’ Final rule, 

signed December 5, 2023. 

75See, e.g., 86 FR 38652, 38669. 76 85 FR 44192 and 86 FR 67343. 

counties (i.e., Fresno, Kern, or Madera) 

were the only counties in the San 

Joaquin Valley that are violating the 

applicable PM2.5 NAAQS as of the 

attainment date.71 In addition, with 

respect to the 1997 annual PM2.5

NAAQS in particular, the EPA also 

disapproved the contingency provision 

in Rule 4901 because the EPA was 

concurrently disapproving the RFP and 

attainment demonstrations and, thus, 

was unable to determine whether the 

emissions reductions from the 

contingency provision were in fact 

surplus to the reductions that would be 

needed to provide for RFP and 

attainment for the 1997 annual PM2.5

NAAQS in the SJV.72 Accordingly, the 

SIP-approved version of Rule 4901 does 

not include any contingency provision. 

2. Summary of State Submission 

On May 18, 2023, the District 

amended the contingency measure in 

section 5.7.3 of Rule 4901, and CARB 

submitted the amended rule as part of 

the June 8, 2023 SIP Submission. The 

contingency measure would be triggered 

by a final determination by the EPA that 

the District failed to meet one or more 

of the following triggering events for the 

applicable PM2.5 NAAQS: 

(1) Any Reasonable Further Progress 

requirement; 

(2) Any quantitative milestone; 

(3) Submission of a quantitative 

milestone report; or 

(4) Attainment of the applicable PM2.5

NAAQS by the applicable attainment 

date. 

Following the first such triggering 

event, the measure would lower the 

thresholds for the non-hot spot counties 

to the current thresholds for hot spot 

counties (i.e., from 20 mg/m3 to 12 mg/ 

m3 for unregistered devices; and from 

65 mg/m3 to 35 mg/m3 for registered 

devices). Following the second such 

event, the measure would further lower 

the threshold for unregistered devices in 

all counties of the San Joaquin Valley 

from 12 mg/m3 to 11 mg/m3. 

The District estimates that the 

Residential Wood Burning Contingency 

Measure for the first triggering event 

would achieve annual average 

emissions reductions of 0.5793 tpd 

direct PM2.5 and 0.0817 tpd NOX in the 

SJV and the second triggering event 

would achieve additional reductions of 

0.1078 tpd direct PM2.5 and 0.0148 tpd 

NOX.73

3. EPA Evaluation 

Through the revisions adopted by the 

District to Rule 4901 on May 18, 2023, 

the District has corrected the 

deficiencies in the contingency 

provision of Rule 4901 that we 

identified in our November 26, 2021 

final actions. Namely, the contingency 

provision in the rule (section 5.7.3) has 

been revised to address all the 

determinations for which contingency 

measures are required under 40 CFR 

51.1014(a) and has been revised to 

achieve emissions reductions under all 

circumstances, i.e., if triggered by one of 

the specific EPA determinations. In 

addition, we find that the contingency 

provision in section 5.7.3 of Rule 4901 

is surplus to the RFP and attainment 

demonstrations for the annual 1997 

PM2.5 NAAQS based on the conclusions 

in our recent final action approving the 

RFP and attainment demonstrations in 

the State’s 15 mg/m3 SIP Revision.74

In our previous actions, we found that 

the contingency provision in Rule 4901 

met the other specific criteria used to 

evaluate contingency measures.75

Specifically, the contingency provision 

in Rule 4901 (the Residential Wood 

Burning Contingency Measure) is 

structured to be both conditional and 

prospective, to be implemented quickly 

following a triggering event (i.e., within 

60 days) and to be implemented without 

significant further action by the State or 

the EPA. The revisions to section 5.7.3 

of Rule 4901 that were adopted on May 

18, 2023 do not affect those features of 

the contingency provision, and thus we 

propose to re-affirm those findings in 

this proposed rule. 

We also note that the contingency 

provisions do not require the 

replacement or installation of an 

emissions control device and can 

therefore achieve emission reductions 

upon the rule taking effect. For example, 

if the EPA were to determine that the 

San Joaquin Valley failed to attain a 

given PM2.5 NAAQS, effective in July of 

a given year, the more stringent 

curtailment thresholds would take effect 

in September of that year, prior to the 

seasonal start of the No Burn Day 

program on November 1st. Thus, the 

emission reductions from the 

Residential Wood Burning Contingency 

Measure would be achieved within one 

year of the triggering event. Based on 

our review of the contingency 

provisions, as revised, we propose to reaffirm those findings. 

Contingency measures must also be 

designed to provide emissions 

reductions (if triggered) that are not 

otherwise required to meet other 

attainment plan requirements and not 

relied upon to demonstrate RFP and 

attainment. In this regard, we note that 

none of the SJV plans for the 1997 

annual, 2006 24-hour, and 2012 annual 

PM2.5 NAAQS relied upon the 

contingency provision in Rule 4901 to 

meet any plan element (other than the 

contingency measure element) and that 

none of the plans relied on the related 

emissions reductions from the 

contingency provision to provide for 

RFP or attainment. Based on our 

previous approvals of the San Joaquin 

Valley plans for the 2006 24-hour PM2.5

NAAQS in 2020 and 2012 annual PM2.5

NAAQS in 2021,76 and the recent 

approval of the San Joaquin Valley plan 

for the 1997 annual PM2.5 NAAQS, 

including the various plan elements 

such as the BACM, RFP, and attainment 

demonstrations, we find that the 

Residential Wood Burning Contingency 

Measure is not otherwise required for 

these PM2.5 NAAQS and that the 

associated emissions reductions would 

be surplus to the PM2.5-related RFP and 

attainment needs of the San Joaquin 

Valley. 

Therefore, for the reasons provided in 

the preceding paragraphs, we propose to 

approve Rule 4901, as revised, because 

we find that the Residential Wood 

Burning Contingency Measure set forth 

in section 5.7.3 of the rule now meets 

all the applicable requirements for a 

contingency measure for the San 

Joaquin Valley for the 1997 annual, 

2006 24-hour, and 2012 annual PM2.5

NAAQS. 

Lastly, we reviewed the emissions 

reduction estimates for the Residential 

Wood Burning Contingency Measure 

that were prepared by the District and 

included in Appendix C (‘‘Emission 

Reduction Analysis for Rule 4901’’) of 

the SJV PM2.5 Contingency Measure SIP 

and find the estimates to be reasonable 

and adequately documented. As 

described in Appendix C of the SJV 

PM2.5 Contingency Measure SIP, the 

District has estimated the reductions 

from the two triggering events provided 

for in the Residential Wood Burning 

Contingency Measure by taking into 

account many different factors, such as 

the number of fireplaces and wood 

stoves in the individual counties within 


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77Regulation VIII includes eight rules. Rule 8011 

(‘‘General Requirements’’) provides definitions and 

the general requirements on which the seven other 

rules rely. In turn, those seven rules apply to 

different sources of fugitive windblown dust based 

on activity type. They include Rule 8021 

(‘‘Construction, Demolition, Excavation, Extraction, 

and Other Earthmoving Activities’’), Rule 8031 

(‘‘Bulk Materials’’), Rule 8041 (‘‘Carryout and 

Trackout’’), Rule 8051 (‘‘Open Areas’’), Rule 8061 

(‘‘Paved and Unpaved Roads’’), Rule 8071 (Unpaved 

Vehicle/Equipment Traffic Area’’), and Rule 8081 

(‘‘Agricultural Sources’’). In this proposed rule, the 

EPA proposes to approve Rule 8051, as amended to 

include a contingency provision, as a revision to the 

California SIP. 

78 67 FR 15345, 15346–15447 (April 1, 2002) 

(proposed rule on 2001 version of Regulation VIII). 

79 71 FR 8461 (February 17, 2006). 

80See, e.g., 85 FR 17382, 17431 (March 27, 2020) 

(proposal on BACM/BACT and MSM for the 2006 

24-hour PM2.5 NAAQS); and EPA Region IX, 

‘‘Technical Support Document, EPA Evaluation of 

BACM/MSM, San Joaquin Valley PM2.5 Plan for the 

2006 PM2.5 NAAQS,’’ February 2020. 

81Rule 8051, section 2.1. 82 VDE is Visible Dust Emissions. 

the San Joaquin Valley, the different 

types of wood stoves (registered and 

unregistered, certified and uncertified), 

and the number of additional 

curtailment days under various 

scenarios, among other factors. Taking 

into account these various factors, the 

District estimates the Residential Wood 

Burning Contingency Measure would 

achieve annual average emissions 

reductions of 0.5793 tpd direct PM2.5

and 0.0817 tpd NOX in the SJV 

following the first triggering event and 

additional reductions of 0.1078 tpd 

direct PM2.5 and 0.0148 tpd NOX

following the second triggering event. 

Because we are proposing to find that 

the Residential Wood Burning 

Contingency Measure meets the 

requirements for individual contingency 

measures, the associated emissions 

reductions can be taken into account by 

the EPA when determining whether 

CARB and the District have met the 

requirements for the San Joaquin Valley 

as a whole with respect to the 

contingency measure SIP requirements 

of CAA section 172(c)(9) and 40 CFR 

51.1014 for PM2.5 nonattainment areas. 

Section V of this document presents our 

evaluation of the SJV PM2.5 Contingency 

Measure SIP for compliance with these 

requirements for the San Joaquin Valley 

for the 1997 annual, 2006 24-hour, and 

2012 annual PM2.5 NAAQS, and, as part 

of that evaluation, we have taken into 

account the District’s estimates of 

emissions reductions from the 

Residential Wood Burning Contingency 

Measure. 

B. Rural Open Areas Contingency 

Measure 

1. Background and Regulatory History 

In areas where there is open, 

uncovered land, a natural crust will 

form and minimize dust emissions. 

However, activities such as earthmoving 

activities, material dumping, weed 

abatement, and vehicle traffic will 

disturb otherwise naturally stable land 

and allow windblown fugitive dust 

emissions to occur. 

The District adopted fugitive dust 

control requirements in Regulation VIII 

(containing the 8000 series rules) on 

November 15, 2001, to address RACM/ 

RACT and BACM/BACT attainment 

plan requirements for the 1987 p.m.10

NAAQS.77 The EPA found that new 

provisions in Regulation VIII 

‘‘significantly strengthened’’ the prior 

existing rules by tightening standards, 

covering more activities, and adding 

more requirements to control dustproducing activities.78 Subsequently, 

the District adopted amendments to 

Regulation VIII on August 19, 2004, and 

September 16, 2004, that the EPA 

approved into the San Joaquin Valley 

portion of the California SIP in 2006.79

More recently the EPA has reviewed 

Regulation VIII for RACM/RACT, 

BACM/BACT, and MSM requirements 

in acting on the San Joaquin Valley plan 

for the 2006 24-hour PM2.5 NAAQS.80

Among the rules of Regulation VIII, 

Rule 8051 (‘‘Open Areas’’) applies to 

vacant portions of residential and 

commercial lots and contiguous parcels 

and the 2004 amendments added 

applicability thresholds for rural and 

urban areas required to meet both the 

conditions for a stabilized surface 

(defined in Rule 8011) and a 20% 

opacity standard. Rule 8051 applies to 

any open area having 0.5 acres or more 

within urban areas, or 3.0 acres or more 

within rural areas, that contains at least 

1,000 square feet of disturbed surface 

area.81 In addition, under Rule 8051, 

upon evidence of vehicle trespass, 

owners/operators must apply a 

measure(s) that effectively prevents 

access to the lot. Rule 8051 does not 

apply to agricultural areas, which are 

subject to other fugitive dust controls 

such as those under Rule 4550 

(‘‘Conservation Management Practices’’) 

and Rule 8081 (‘‘Agricultural Sources’’). 

2. Summary of State Submission 

On September 21, 2023, the District 

adopted a new contingency measure in 

section 7.0 of District Rule 8051 

(referred to herein as the ‘‘Rural Open 

Areas Contingency Measure’’), and 

CARB submitted Rule 8051, as 

amended, to include the Rural Open 

Areas Contingency Measure, as a 

supplement to the SJV PM2.5

Contingency Measure SIP. The Rural 

Open Areas Contingency Measure 

would be triggered by a final 

determination by the EPA that the 

District failed to meet one or more of the 

following triggering events for the 

applicable PM2.5 NAAQS: 

(1) Any Reasonable Further Progress 

requirement; 

(2) Any quantitative milestone; 

(3) Submission of a quantitative 

milestone report; or 

(4) Attainment of the applicable PM2.5

NAAQS by the applicable attainment 

date. 

The Rural Open Areas Contingency 

Measure would lower the applicability 

threshold for rural open areas from 3.0 

acres to 1.0 acres, thereby reducing 

windblown fugitive dust, including the 

direct PM2.5 portion of such dust 

emissions. The State estimates that the 

newly subject total acreage would be 

18,816 acres. The Rural Open Areas 

Contingency Measure would be effective 

60 days after an EPA determination 

under 40 CFR 51.1014(a) that triggers 

contingency measures. At such time, 

Rule 8051 would require any rural open 

area having 1.0 acre or more and 

containing at least 1,000 square feet of 

disturbed surface area (notwithstanding 

exemptions in section 4.0 of the rule) to 

meet section 5.0 of the rule, which 

requires that: 

Whenever open areas are disturbed or 

vehicles are used in open areas, an owner/ 

operator shall implement one or a 

combination of control measures indicated in 

Table 8051–1 to comply with the conditions 

of a stabilized surface at all times and to limit 

VDE to 20% opacity. In addition to the 

requirements of this rule, a person shall 

comply with all other applicable 

requirements of Regulation VIII.82

Table 8051–1 contains the following 

control measures for open areas: 

A. Open Areas: 

Implement, apply, maintain, and reapply if 

necessary, at least one or a combination of 

the following control measures to comply at 

all times with the conditions for a stabilized 

surface and limit VDE to 20% opacity as 

defined in Rule 8011: 

A1. Apply and maintain water or dust 

suppressant(s) to all unvegetated areas; and/ 

or 

A2. Establish vegetation on all previously 

disturbed areas; and/or 

A3. Pave, apply and maintain gravel, or 

apply and maintain chemical/organic 

stabilizers/suppressant(s). 

B. Vehicle Use in Open Areas: 

Upon evidence of trespass, prevent 

unauthorized vehicle access by: 

Posting ‘No Trespassing’ signs or installing 

physical barriers such as fences, gates, posts, 

and/or other appropriate barriers to 

effectively prevent access to the area. 

The Rural Open Areas Contingency 

Measure is narrowed by the addition of 


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83SJVUAPCD, Final Draft Staff Report, ‘‘Proposed 

Amendments to Rule 8051 (Open Areas),’’ 

September 21, 2023, p. B–7. 

84EPA Region IX, ‘‘Technical Support Document 

for EPA’s Rulemaking for the California State 

Implementation Plan, San Joaquin Valley Air 

Pollution Control District Rule 8051 (‘Open 

Areas’),’’ December 2023. 

85As noted previously, the RACM and BACM 

demonstrations that the EPA has approved for the 

1997 annual, 2006 24-hour, and the 2012 annual 

PM2.5 NAAQS included review of Regulation VIII, 

including Rule 8051. See 85 FR 44192, 86 FR 

67343, and EPA, ‘‘Air Quality State Implementation 

Plans; Approvals and Promulgations: California; 

1997 Annual Fine Particulate Matter Serious and 

Clean Air Act Section 189(d) Nonattainment Area 

Requirements; San Joaquin Valley, CA,’’ Final rule, 

signed December 5, 2023. 

86SJVUAPCD, Final Draft Staff Report, ‘‘Proposed 

Amendments to Rule 8051 (Open Areas),’’ 

September 21, 2023, p. B–7. The District’s estimate 

compares favorably with the EPA’s own estimate of 

0.01 tpd for essentially the same contingency 

measure in EPA’s proposed PM2.5 contingency 

measure FIP for San Joaquin Valley. 88 FR 53431, 

53444. 

87Smog Check Contingency Measure, section 4. 

The Smog Check Contingency Measure is structured 

to further narrow the newer vehicle exemption by 

another year upon a second triggering event. 

a new exemption in section 4.2 of Rule 

8051 that exempts owners or operators 

of rural parcels between 1.0 acres to 3.0 

acres that implement fire prevention 

activities required by a Federal, State, or 

local agency by mowing or cutting (if 

three inches or more of stubble remains 

after moving or cutting) or discing (if no 

more than two passes are made). 

The District estimates that the Rural 

Open Burning Contingency Measure 

would achieve annual average 

emissions reductions of 0.008 tpd direct 

PM2.5.83

3. EPA Evaluation 

As discussed further in the EPA’s 

technical support document that 

documents our evaluation of amended 

Rule 8051,84 we find that the Rural 

Open Areas Contingency Measure now 

included as section 7.0 of Rule 8051 

meets the applicable requirements for 

contingency measures. First, we note 

that the expansion of the control 

requirements to rural parcels between 

one (1.0) to three (3.0) acres under 

section 7.0 of Rule 8051 is conditional 

and prospective by design and is not 

required to meet existing control 

requirements (i.e., RACM or BACM) 85

nor relied upon by the area as part of the 

area’s PM2.5 RFP or attainment 

demonstrations. Moreover, the 

exemption for owners or operators of 

certain rural parcels of 1.0 to 3.0 acres 

in size from the requirements of the rule 

that would otherwise be included if the 

Rural Open Areas Contingency Measure 

were triggered is narrowly drawn and 

limited such that the exemption will 

have essentially no impact on the 

emissions reductions expected from 

implementation of the Rural Open Areas 

Contingency Measure. This is because 

the exemption applies only to owners 

and operators acting in response to a 

Federal, State, or local agency that is 

requiring implementation of fire 

prevention activities and is further 

limited by specifying the methods that 

must be followed to be covered by the 

exemption. 

Second, the Rural Open Areas 

Contingency Measure includes a trigger 

mechanism (‘‘. . . final determination 

by EPA that the District has failed to 

meet any of the following elements for 

any of the PM2.5 NAAQS . . .’’) that 

addresses all of the specific types of 

determinations listed in 40 CFR 

51.1014(a). Third, the Rural Open Areas 

Contingency Measure specifies a 

schedule for timely implementation 

(‘‘Upon 60 days after the issuance of a 

final determination . . .’’). While the 

extension of the control requirements to 

rural parcels between 1.0 to 3.0 acres 

under section 7.0 is self-executing (i.e., 

does not require additional rulemaking), 

the District will need as a practical 

matter to provide notice to the affected 

owners/operators that the contingency 

measure has been triggered. However, 

we do not find that providing such 

notice constitutes ‘‘further action’’ by 

the state for the purposes of CAA 

section 172(c)(9). Lastly, given the 

nature of the controls required under 

Rule 8051 (such as watering, 

establishing vegetation, applying gravel, 

or fencing (if needed)), we find that the 

associated emissions reductions from 

implementation of the Rural Open Areas 

Contingency Measure can be achieved 

within a year of the triggering event. 

Therefore, for the reasons provided in 

the preceding paragraphs, we propose to 

approve Rule 8051, as revised, because 

we find that the Rural Open Areas 

Contingency Measure meets all the 

applicable requirements for a 

contingency measure for the San 

Joaquin Valley for the 1997 annual, 

2006 24-hour, and 2012 annual PM2.5

NAAQS. 

We have also reviewed the emissions 

reduction estimates for the Rural Open 

Areas Contingency Measure that were 

prepared by the District and included in 

Appendix B (‘‘Emission Reduction and 

Cost Effectiveness Analysis for Proposed 

Amendments to Rule 8051 (Open 

Areas)’’) of the Final Draft Staff Report 

and find the estimates to be reasonable 

and adequately documented. As 

documented in Appendix B of the Final 

Draft Staff Report, the District took into 

account county-specific parcel size data, 

among other relevant factors to develop 

the emissions reduction estimate of 

0.008 tpd of direct PM2.5 for the Rural 

Open Areas Contingency Measure.86

Because we are proposing to find that 

the Rural Open Areas Contingency 

Measure meets the requirements for 

individual contingency measures, the 

associated emissions reductions can be 

taken into account by the EPA when 

determining whether CARB and District 

have met the requirements for the San 

Joaquin Valley as a whole with respect 

to the contingency measure 

requirements of CAA section 172(c)(9) 

and 40 CFR 51.1014 for PM2.5

nonattainment areas. Section V of this 

document presents our evaluation of the 

SJV PM2.5 Contingency Measure SIP for 

compliance with these requirements for 

the San Joaquin Valley for the 1997 

annual, 2006 24-hour, and 2012 annual 

PM2.5 NAAQS, and, as part of that 

evaluation, we have taken into account 

the District’s estimates of emissions 

reductions from the Rural Open Areas 

Contingency Measure. 

C. Smog Check Contingency Measure 

The general purpose of motor vehicle 

inspection and maintenance (I/M) 

programs is to reduce emissions from 

in-use motor vehicles in need of repairs 

and thereby contribute to state and local 

efforts to improve air quality and to 

attain the NAAQS. California has 

operated an I/M program, also known as 

the ‘‘Smog Check’’ program, in certain 

areas of the state for over 30 years. 

Under the current California Smog 

Check program, certain vehicles are 

exempt from the biennial inspection 

requirement, including vehicles eight or 

fewer model years old. 

On November 13, 2023, CARB 

submitted a third contingency measure 

for San Joaquin Valley for the PM2.5

NAAQS, which we refer to herein as the 

Smog Check Contingency Measure. 

Under the Smog Check Contingency 

Measure, CARB would, within 30 days 

of the effective date of an EPA 

determination that an applicable 

triggering event has occurred for San 

Joaquin Valley for the PM2.5 NAAQS, 

transmit a letter to the California Bureau 

of Automotive Repair and Department 

of Motor Vehicles that, in effect, would 

narrow the newer vehicle exemption 

from eight or fewer model years old to 

seven or fewer model years old 

throughout the San Joaquin Valley.87

CARB estimates that the Smog Check 

Contingency Measure would, after the 

first triggering event and adjusting 

slightly for the effect on foregone 

emission reductions from Carl Moyer 


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88The Carl Moyer Program distributes incentive 

grants to fund the incremental cost of cleaner-thanrequired engines, equipment, and other technology. 

The slight adjustment to emission reductions 

mentioned results from a decrease in funding to the 

Carl Moyer program. If the contingency measure 

were triggered, fewer vehicles would be exempt 

from the Smog Check program, and thus fewer 

vehicles would be subject to the Smog Check 

abatement fee (which is only assessed on vehicles 

exempted from Smog Check testing). That fee 

provides funding to the Carl Moyer Program. For 

more information on the program, see https://

ww2.arb.ca.gov/carl-moyer-program-apply. 

89Smog Check Contingency Measure, Table 28 

and Table 31. 

90 86 FR 38652, 38669–38670; and 86 FR 49100, 

49124–49125 and 49133–49134. 

91 In AIR v. EPA, the Ninth Circuit held that, 

under the EPA’s current guidance, the surplus 

emissions reductions from already-implemented 

measures cannot be relied upon to justify the 

approval of a contingency measure that would 

achieve far less than one year’s worth of RFP as 

sufficient by itself to meet the contingency measure 

requirements of CAA sections 172(c)(9) and 

182(c)(9) for the nonattainment area. 10 F.4th at 

946–47. 92SJV PM2.5 Contingency Measure SIP, p. 5. 

funding,88 achieve annual average 

emission reductions of 0.113 tpd NOX

for the 1997 annual PM2.5 NAAQS, 

0.116 tpd NOX for the 2006 24-hour 

PM2.5 NAAQS, and 0.083 tpd NOX for 

the 2012 annual PM2.5 NAAQS in the 

San Joaquin Valley.89

In a separate proposed rule published 

in this Federal Register, we are 

proposing to approve the Smog Check 

Contingency Measure and, therefore, its 

associated emissions reductions can be 

taken into account by the EPA when 

determining whether the State and 

District have met the contingency 

measure requirements of CAA section 

172(c)(9) and 40 CFR 51.1014 for PM2.5

nonattainment areas for the San Joaquin 

Valley as a whole. Section V of this 

document presents our evaluation of the 

SJV PM2.5 Contingency Measure SIP for 

compliance with these requirements for 

the San Joaquin Valley for the 1997 

annual, 2006 24-hour, and 2012 annual 

PM2.5 NAAQS, and as part of that 

evaluation, we have taken into account 

CARB’s estimates of emissions 

reductions from the Smog Check 

Contingency Measure. 

V. EPA Review of San Joaquin Valley 

PM2.5 Contingency Measure Plan 

Element 

A. Background and Regulatory History 

In light of the nonattainment 

designation for San Joaquin Valley for 

the PM2.5 NAAQS, the State of 

California was required under CAA 

section 172(c)(9) and 40 CFR 51.1014 to 

adopt and submit a SIP revision 

providing for implementation of 

contingency measures to take effect in 

the San Joaquin Valley if the EPA 

determines that the area has failed to 

meet an RFP requirement, failed to 

submit a quantitative milestone report, 

failed to meet a quantitative milestone, 

or failed to attain the PM2.5 NAAQS by 

the applicable attainment date. 

In 2019, as discussed in section I.B of 

this document, CARB submitted a SIP 

revision that included contingency 

measure plan elements for San Joaquin 

Valley for the 1997 annual and 24-hour, 

2006 24-hour, and 2012 annual PM2.5

NAAQS. The contingency measure plan 

elements relied on an earlier version of 

the Residential Wood Burning 

Contingency Measure and justified 

reliance on that single measure 

notwithstanding the fact that the 

measure alone would not achieve 

emissions reductions equivalent to one 

year’s worth of RFP by reference to 

larger planning context for the area and 

related surplus emissions reductions 

expected to be achieved from alreadyimplemented control measures. 

In 2021, the EPA disapproved the 

contingency measure plan elements for 

the applicable PM2.5 NAAQS because 

the plan elements did not include a 

contingency measure that addressed all 

four triggering events for the PM2.5

NAAQS under 40 CFR 51.1014; that 

would ensure that emissions reductions 

would be achieved, once triggered; or, 

for the 1997 annual PM2.5 NAAQS, that 

would be surplus to the area’s needs for 

RFP and attainment.90 We proposed 

disapproval of the contingency measure 

elements before the Ninth Circuit’s 

Assoc. of Irritated Residents (AIR) v. 

EPA decision 91 was published and, 

thus, did not identify the contingency 

measure elements’ reliance on surplus 

emissions reductions from alreadyimplemented measures (to justify 

adoption of a single contingency 

measure which would not, on its own, 

achieve one year’s worth of RFP) as a 

specific deficiency. 

B. Summary of State Submission 

In response to the disapprovals of the 

previous contingency measure elements, 

the District and CARB prepared the SJV 

PM2.5 Contingency Measure SIP, which 

CARB adopted as part of the California 

SIP and submitted for EPA approval on 

June 8, 2023. In the SJV PM2.5

Contingency Measure SIP, the District 

and CARB present their evaluation of 

potential contingency measures, 

amendments to the previous 

contingency provisions in the District’s 

residential wood burning rule (i.e., the 

Residential Wood Burning Contingency 

Measure), a commitment to evaluate 

potential contingency provisions for 

Rule 8051 (‘‘Open Areas’’), analysis of 

one year’s worth of emission reductions, 

and infeasibility demonstrations for 

rejecting other potential contingency 

measures. In light of the AIR v. EPA 

decision, the District and CARB do not 

justify the selection of the contingency 

measures on the basis of surplus 

emissions reductions from alreadyimplemented measures, as had been the 

case previously, but rather ‘‘due to a 

scarcity of available, qualifying 

measures,’’ and the time period in 

which emission reductions should 

occur.92 Subsequent to the submission 

of the SJV PM2.5 Contingency Measure 

SIP, the District and CARB have 

supplemented the contingency measure 

elements for the applicable PM2.5

NAAQS with the adoption and 

submission of two additional 

contingency measures—the Rural Open 

Areas Contingency Measure and the 

Smog Check Contingency Measure. 

1. General Considerations 

‘‘General Considerations,’’ for the 

purposes of this proposed action, 

includes identification of the relevant 

pollutants, the use of contingency 

measures for more than one triggering 

event and for more than one NAAQS, 

and the magnitude of emissions 

reductions. Contingency measure 

feasibility analyses are addressed in a 

separate subsection. 

a. PM2.5 and PM2.5 Precursors 

CARB and the District have 

concluded, based on CARB modeling, 

that sulfur oxides (SOX), volatile organic 

compounds (VOCs), and ammonia are 

not significant precursors for PM2.5

formation in the San Joaquin Valley. 

Therefore, their contingency measure 

submissions address sources of direct 

PM2.5 and NOX emissions. 

b. Using Same Contingency Measures 

for More Than One Triggering Event, 

NAAQS 

The contingency measures that CARB 

and the District rely upon in the SJV 

PM2.5 Contingency Measure SIP are not 

limited to one PM2.5 NAAQS, but rather 

cover all three of the 1997 annual, 2006 

24-hour, and 2012 annual PM2.5 NAAQS 

(i.e., the same set of contingency 

measures has been submitted to address 

the contingency measure requirements 

for more than one PM2.5 NAAQS). 

c. Magnitude of Emissions Reductions 

To evaluate the sufficiency of the 

Residential Wood Burning Contingency 

Measure with respect to the magnitude 

of emissions reductions that the 

contingency measures should achieve, 

the SJV PM2.5 Contingency Measure SIP 


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93SJV PM2.5 Contingency Measure SIP, pp. 5–6; 

see ‘‘Step 1b’’ emissions estimates in the ‘‘Step 1’’ 

table for one year’s worth of RFP. 

94SJV PM2.5 Contingency Measure SIP, pp. 5–6; 

see the ‘‘Step 3’’ table for one year’s worth of 

progress. 

95SJV PM2.5 Contingency Measure SIP, Table 17. 

96SJV PM2.5 Contingency Measure SIP, pp. 73–74. 

97CARB and SJVUAPCD, ‘‘Progress Report and 

Technical Submittal for the 2012 PM2.5 Standard 

San Joaquin Valley,’’ October 19, 2021 (‘‘2021 

Progress Report’’). See pages 34–38 for the State’s 

‘‘PM2.5 Precursor Sensitivity Modeling Analysis and 

Trading Ratios.’’ Transmitted to the EPA by letter 

dated October 20, 2021, from Richard W. Corey, 

Executive Officer, CARB, to Deborah Jordan, Acting 

Regional Administrator, EPA Region IX. 

98 2021 Progress Report, p. 34. 

99See Appendix K (‘‘Modeling Attainment 

Demonstration’’) of the 2018 PM2.5 Plan, including 

Table 14 (annual average modeled emissions 

inventory) and Table 49 (precursor sensitivity 

analysis for annual average ambient PM2.5

concentration in 2024). 

100At the time, the modeled 2025 PM2.5

concentrations corresponded to the attainment year 

in the State’s Serious area plan for the 2012 annual 

PM2.5 NAAQS, which was later withdrawn on 

October 27, 2022. Letter dated October 27, 2022, 

from Steven S. Cliff, Executive Officer, CARB, to 

Martha Guzman, Regional Administrator, EPA 

Region IX. 

101SJV PM2.5 Contingency Measure SIP, p. 74. 

102SJV PM2.5 Contingency Measure SIP, section 

4.1 (‘‘Stringency of District’s Regulatory Program’’). 

See also 87 FR 20036 (April 6, 2022) (proposed rule 

for the interstate transport FIP for the 2015 ozone 

NAAQS); and 88 FR 36654 (June 5, 2023) (final rule 

for interstate transport FIP for the 2015 ozone 

NAAQS). 

includes calculations of one year’s 

worth of RFP for the relevant PM2.5

NAAQS for the San Joaquin Valley. To 

do this, the District calculated the 

change in annual average emission 

reductions from the base year to the 

attainment year for the 1997 annual 

PM2.5 NAAQS (from 2013 to 2023) and 

2006 24-hour PM2.5 NAAQS (from 2013 

to 2024), and the outermost Moderate 

area RFP year for the 2012 annual PM2.5

NAAQS (from 2013 to 2022), and 

divided those by the number of years 

between the base year and applicable 

attainment or RFP year. The State’s 

estimates of one year’s worth of RFP in 

the SJV PM2.5 Contingency Measure SIP 

are as follows: 0.44 tpd direct PM2.5 and 

16.7 tpd NOX (for the 1997 annual PM2.5

NAAQS); 0.58 tpd direct PM2.5 and 18.4 

tpd NOX (for the 2006 24-hour PM2.5

NAAQS); and 0.46 tpd direct PM2.5 and 

15.3 tpd NOX (for the 2012 annual PM2.5

NAAQS).93

Per the EPA’s Draft Revised 

Contingency Measure Guidance, the SJV 

PM2.5 Contingency Measure SIP also 

includes estimates of one year’s worth 

of progress that were made by 

calculating one year’s worth of RFP as 

a percentage of the base year emissions 

inventory and applying that percentage 

to the attainment year emissions 

inventory for the 1997 annual and 2006 

24-hour PM2.5 NAAQS, and to the 

outermost Moderate area RFP year for 

the 2012 annual PM2.5 NAAQS. The 

estimates of one year’s worth of progress 

in the SJV PM2.5 Contingency Measure 

SIP are as follows: 0.41 tpd direct PM2.5

and 7.91 tpd NOX (for the 1997 annual 

PM2.5 NAAQS); 0.52 tpd direct PM2.5

and 6.66 tpd NOX (for the 2006 24-hour 

PM2.5 NAAQS); and 0.43 tpd direct 

PM2.5 and 8.65 tpd NOX (for the 2012 

annual PM2.5 NAAQS).94

CARB and the District present their 

comparison of emission reductions from 

the Residential Wood Burning 

Contingency Measure to those needed 

for one year’s worth of progress in Table 

17 of the SJV PM2.5 Contingency 

Measure SIP.95 They conclude that this 

contingency measure would achieve 

emission reductions of 0.69 tpd direct 

PM2.5 and 0.1 tpd NOX (including 

reductions following both first and 

second triggering events) and that such 

reductions would exceed those needed 

for one year’s worth of progress for 

direct PM2.5 but would fall short of 

those needed for one year’s worth of 

progress for NOX. 

Noting the direct PM2.5 surplus, CARB 

and the District then trade the surplus 

direct PM2.5 emission reductions at a 

ratio of 6:1 (i.e., 6 tpd NOX for each 

excess 1 tpd direct PM2.5),96 based on 

analyses in their 2021 ‘‘Progress Report 

and Technical Submittal for the 2012 

PM2.5 Standard San Joaquin Valley’’ 

(‘‘2021 Progress Report’’).97 CARB and 

the District note that direct PM2.5

emission reductions are a more efficient 

and cost-effective way to reduce 

ambient PM2.5 in the San Joaquin Valley 

than NOX emission reductions.98 The 

report presented analysis of the relative 

effect of reducing 30% direct PM2.5

(annual average) emissions versus 30% 

NOX (annual average) emissions on 

ambient annual average PM2.5

concentrations (as modeled for 2024) at 

each regulatory monitoring site in the 

San Joaquin Valley using data from the 

precursor sensitivity analyses in the 

2018 PM2.5 Plan.99 CARB and the 

District examined several methods for 

calculating the ratio based on varying 

combinations of monitoring sites. They 

concluded that 6:1 was a conservative 

ratio as it was less than the average ratio 

for the two sites with the highest 

modeled (annual average) ambient PM2.5

concentrations in 2025 (6.1:1), the 

average ratio of sites with modeled 2025 

concentrations over 11.00 mg/m3 (6.4:1), 

and the average ratio of sites with a 

2020 design value over 12 mg/m3

(6.6:1).100 They also conclude that a 

ratio of 6:1 would be conservative as it 

was less than the 8.1:1 ratio for the 

modeled design value for the 

Bakersfield-Planz site (i.e., the site with 

the highest modeled 2025 

concentration). 

Applying this 6:1 trading ratio, CARB 

and the District estimate that, after 

achieving the full one year’s worth of 

progress for direct PM2.5 emission 

reductions, the shortfall of NOX

emissions for one year’s worth of 

progress would be as follows: 6.13 tpd 

(compared to 7.91 tpd for the 1997 

annual PM2.5 NAAQS), 5.54 tpd 

(compared to 6.66 tpd for the 2006 24- 

hour PM2.5 NAAQS), and 6.99 tpd 

(compared to 8.65 tpd for the 2012 

annual PM2.5 NAAQS).101 The NOX

equivalent emissions reductions equate 

to a range of 17% to 23% of one year’s 

worth of progress for NOX. 

In light of the shortfall of NOX

emissions reductions, the SJV PM2.5

Contingency Measure SIP includes 

feasibility analyses by the District for 

stationary and area sources and by 

CARB for mobile sources to justify the 

reliance on a contingency measure that 

would not provide for one year’s worth 

of progress (i.e., for NOX). We 

summarize the feasibility analyses 

prepared by the District and CARB in 

the following section of this document. 

2. Contingency Measure Feasibility 

Analyses 

The District states that it has already 

implemented rules for sources that meet 

or go beyond federal requirements and 

that few measures remain to explore as 

contingency measures. The District 

describes the relative stringency of their 

stationary and area source measures by 

noting the EPA’s 2020 approval of the 

State’s demonstration of BACM and 

MSM for the 2006 24-hour PM2.5

NAAQS; highlights the District’s tighter 

limits for certain industrial sources 

compared to the EPA’s national 

emission limits to address the interstate 

transport of air pollution; and describes 

the numerous regulatory measures and 

incentive-based measures adopted since 

and in fulfillment of the 2018 PM2.5

Plan.102

More specifically, the District 

analyzed the wide range of stationary 

and area sources for contingency 

measure opportunities, including 

identification of potential control 

measures, analysis of the technological 

and economic feasibility of such 

measures, assessment of the time 

required to develop and implement 

such measures within 60 days and 

achieve emission reductions within one 

to two years, and discussion of whether 

the District could adopt such measures 


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103CARB, ‘‘2022 State Strategy for the State 

Implementation Plan,’’ adopted September 22, 

2022, Chapter 5 (‘‘State SIP Measures’’). 

104Executive Department, State of California, 

Executive Order N–79–20, September 23, 2020. 

105SJV PM2.5 Contingency Measure SIP, p. 74. As 

noted previously, the SJV PM2.5 Contingency 

Measure SIP has been supplemented with two 

additional contingency measures (i.e., the Rural 

Open Areas Contingency Measure and the Smog 

Check Contingency Measure). 

and secure EPA approval prior to the 

EPA promulgating a contingency 

measure FIP for PM2.5 in the San 

Joaquin Valley. For the potential control 

measures identified through this 

process, the District further analyzed 

possible contingency measures for wood 

burning fireplaces and wood burning 

heaters, rural open areas, commercial 

charbroiling, almond harvesting, and oil 

and gas production combustion 

equipment. Based on this analysis, the 

District adopted the Residential Wood 

Burning Contingency Measure and 

concluded that the other possible 

contingency measures were infeasible or 

untimely but committed to further 

evaluate the rural open areas rule as a 

potential contingency measure. 

Subsequently, the District fulfilled the 

Agency’s commitment to further 

evaluate the rural open areas rule and 

adopted the Rural Open Areas 

Contingency Measure to supplement the 

SJV PM2.5 Contingency Measure SIP. 

In turn, CARB states that its mobile 

source control programs often set the 

standard for other states to follow and 

that more than half of mobile source 

NOX emissions in the San Joaquin 

Valley are from primarily federally 

regulated sources, which limit 

opportunities for contingency measures 

that would achieve one year’s worth of 

progress in emission reductions. CARB 

further notes that a relatively limited 

portion (of NOX) emissions are regulated 

by local air districts in California and 

that, even if discounting the emission 

reductions needed for contingency 

measures by primarily federally 

regulated emission sources, additional 

control measures to achieve the one 

year’s worth of emission reductions are 

scarce or nonexistent. 

CARB states that if such measures 

were identified, they would be adopted 

to improve air quality and help attain 

the NAAQS, rather than held in reserve 

as contingency measures, and that 

control measures to achieve large 

emission reductions often take longer 

than two years to implement—beyond 

the one- to two-year timeframe for 

achieving emission reductions for 

contingency purposes. For example, 

CARB states that the three largest NOX

reduction measures committed to in the 

2022 State SIP Strategy 103 rely on 

accelerated turnover of engines and 

trucks and shifting to zero-emission 

equipment, which is limited by 

infrastructure and equipment options. 

CARB further states that a central 

difficulty in considering contingency 

measures is that CARB has already 

committed to zero emission standards 

where feasible and as expeditiously as 

possible to fulfill goals established in 

California Executive Order N–79–20 for 

mobile sources ranging from light-duty 

cars by 2035 to heavy-duty trucks by 

2045.104

More specifically, CARB analyzed all 

sources under its authority to identify 

potential contingency measures using 

three criteria, per CAA requirements, 

court decisions, and the EPA’s Draft 

Revised Contingency Measure 

Guidance. First, CARB assessed whether 

the measure could be implemented 

within 60 days of a triggering event and 

emission reductions achieved within 

one to two years. Second, CARB 

assessed the technological and 

economic feasibility of implementing 

the measure, particularly within the 

one- to two-year timeframe. Third, 

CARB evaluated whether it could adopt 

the measure and secure EPA approval 

by the September 30, 2024 consent 

decree deadline for the EPA to 

promulgate a FIP or alternatively 

approve contingency measure SIP 

submissions meeting the contingency 

measure requirements. 

Regarding mobile source contingency 

measures, CARB describes several 

challenges that limit the control 

measure options that would meet 

contingency measure requirements. For 

new engine standards, CARB states that 

engine manufacturers need lead time to 

‘‘design, plan, certify, manufacture, and 

deploy cleaner engines.’’ For fleet 

regulations, CARB states that 

manufacturing must be mature to 

provide sufficient supply and that 

owners and operators must ‘‘plan, 

purchase, and deploy new, often zeroemission, equipment’’ that may involve 

changes to business operations and 

infrastructure. Based on the time 

required for implementing such 

measures, CARB concludes that new 

engine standards and fleet regulations 

are not appropriate for contingency 

measures. 

Furthermore, CARB states that its 

regulations are technology-forcing, 

which requires time for industry to 

plan, develop, and implement new 

technologies, and that it is driving 

mobile sources to zero-emissions where 

feasible to achieve criteria, air toxic, and 

climate pollutant goals. Similarly, CARB 

argues that the technology-forcing and 

zero-emission-based nature of its mobile 

source regulations reduce or eliminate 

opportunities for contingency measure 

emission reductions. Lastly, CARB 

states that its full rulemaking process for 

most mobile source measures takes 

about five years to develop and adopt, 

which would not be possible prior to 

the September 30, 2024 consent decree 

deadline for the EPA to promulgate a 

FIP, or approve contingency measure 

SIP submissions meeting the 

contingency measure requirements. 

CARB concludes that there are no 

feasible mobile source contingency 

measures for the 1997 annual, 2006 24- 

hour, and 2012 annual PM2.5 NAAQS 

(as of the April 2023 public notice for 

the SJV PM2.5 Contingency Measure SIP) 

yet continued to assess opportunities for 

feasible contingency measures. Per a 

June 2023 commitment letter by CARB’s 

Executive Officer, and as further 

described in section IV.C of this 

proposed rule, CARB has since 

completed the development of and 

adopted the state-wide Smog Check 

Contingency Measure that complements 

the District contingency measures for 

residential wood burning and rural open 

areas. 

3. Conclusion 

Based on achieving the full one year’s 

worth of progress for direct PM2.5

emission reductions, a portion of one 

year’s worth of progress for NOX

emission reductions, and their 

contingency measure feasibility 

analyses, CARB and the District 

conclude that the SJV PM2.5

Contingency Measure SIP, and related 

infeasibility demonstrations, and the 

Residential Wood Burning Contingency 

Measure fulfill the contingency measure 

requirements for the PM2.5 NAAQS.105

C. EPA Evaluation 

We propose to find that CARB and the 

District have corrected the specific 

deficiencies that we identified in the 

previously submitted contingency 

measure elements for the applicable 

PM2.5 NAAQS and that were the bases 

for our previous disapprovals of the 

contingency measure element. Our 

proposed conclusion in this regard 

recognizes that the revised contingency 

measure plan elements for the 

applicable PM2.5 NAAQS (SJV PM2.5

Contingency Measure SIP) now includes 

contingency measures (Residential 

Wood Burning Contingency Measure, 

Rural Open Areas Contingency Measure, 

and the Smog Check Contingency 

Measure) that address all four triggering 

events for the PM2.5 NAAQS under 40 


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106With respect to the contingency measures 

being surplus to the RFP and attainment needs of 

the San Joaquin Valley for the 1997 annual PM2.5

NAAQS, we are relying on the recent approval of 

the RFP and attainment demonstrations in the 

State’s 15 mg/m3 SIP Revision. 

107See generally 40 CFR 51.1009(a) and 40 CFR 

51.1010(a). 

108 40 CFR 51.1000. 

109 40 CFR 51.1006(a). 

110 40 CFR 51.1006(a)(1)(iii). 

111 40 CFR 51.1009(a)(4)(i). 

112See, e.g., SJV PM2.5 Contingency Measure SIP, 

Appendix G (Appendix C from the 2018 PM2.5

Plan), p. C–12. 

113EPA, ‘‘Air Quality State Implementation Plans; 

Approvals and Promulgations: California; 1997 

Annual Fine Particulate Matter Serious and Clean 

Air Act Section 189(d) Nonattainment Area 

Requirements; San Joaquin Valley, CA,’’ Final rule, 

signed December 5, 2023; 85 FR 17382, 17390– 

17396, finalized at 85 FR 44192; 86 FR 49100, 

49107–49112, finalized at 86 FR 67343. 

114 85 FR 17382, 17390–17396, finalized at 85 FR 

44192. 

115 Medical Advocates for Healthy Air v. EPA, No. 

20–72780, Memorandum, Dkt. #58–1 (9th Cir. Apr. 

13, 2022). 

116 40 CFR 51.1014(a). 

117 40 CFR 51.1014(a). 

CFR 51.1014, that have been structured 

to ensure emissions reductions, once 

triggered, and that are surplus to the 

RFP and attainment needs of the San 

Joaquin Valley for the 1997 annual 

PM2.5 NAAQS.106

1. General Considerations 

As stated previously, ‘‘General 

Considerations,’’ for the purposes of this 

proposed action, includes identification 

of the relevant pollutants, the use of 

contingency measures for more than one 

triggering event and for more than one 

NAAQS, and the magnitude of 

emissions reductions. We present our 

evaluation of the State’s contingency 

measure feasibility analyses in a 

separate subsection. 

a. PM2.5 and PM2.5 Plan Precursors 

Under the CAA, states are required to 

regulate not only direct emissions of 

PM2.5 in an attainment plan, but also all 

PM2.5 precursors. Under the EPA’s PM2.5

SIP Requirements Rule, states must 

identify, adopt, and implement control 

measures, including control 

technologies, on sources of direct PM2.5

emissions and sources of emissions of 

PM2.5 plan precursors located in PM2.5

nonattainment areas.107 PM2.5 plan 

precursors are those PM2.5 precursors 

(which are sulfur dioxide (SO2), NOX, 

VOCs, and ammonia) that the state must 

regulate in the applicable attainment 

plan.108 A state may elect to submit to 

the EPA precursor demonstrations for a 

specific nonattainment area in order to 

establish that regulation of one or more 

precursors is not necessary for 

attainment in the nonattainment area at 

issue.109 If the EPA approves a 

comprehensive precursor demonstration 

that shows that emissions of a particular 

precursor does not contribute 

significantly to PM2.5 levels that exceed 

the NAAQS in an area, then the state is 

not required to control emissions of the 

relevant precursor from existing sources 

in the current attainment plan.110

Accordingly, the state would not need 

to address the precursor in order to meet 

attainment plan requirements, including 

RFP, in QMs and associated QM reports, 

or be required to adopt contingency 

measures to reduce the precursor at 

issue.111

For the San Joaquin Valley, as noted 

in section V.B.1 of this proposed rule, 

CARB and the District have concluded, 

based on CARB modeling, that SOX, 

VOCs, and ammonia are not significant 

precursors for PM2.5 formation in the 

San Joaquin Valley.112 The EPA has 

considered, and approved, the State’s 

precursor demonstrations with respect 

to the 1997 annual, 2006 24-hour, and 

the 2012 annual PM2.5 NAAQS in taking 

action on the SIP submissions 

applicable to each NAAQS.113

Therefore, we agree with CARB and the 

District that the contingency measure 

submissions for the 1997 annual, 2006 

24-hour, and 2012 annual PM2.5 NAAQS 

must address sources of direct PM2.5 and 

NOX emissions but do not need to 

address sources of SOX, VOCs, or 

ammonia. 

For the 2006 24-hour PM2.5 NAAQS, 

the EPA approved the comprehensive 

precursor demonstration that 

established that SO2, VOCs, and 

ammonia emissions do not contribute 

significantly to PM2.5 levels that exceed 

the 2006 24-hour PM2.5 NAAQS in the 

San Joaquin Valley.114 In 2020, a 

petition for review before the Ninth 

Circuit Court of Appeals challenged the 

EPA’s approval of the portions of the 

2019 SIP submissions related to the 

2006 24-hour PM2.5 NAAQS. In 2021, 

the Court vacated the approval of 

aggregate commitments to the extent 

such commitments relied on 

inadequately funded incentive-based 

control measures and remanded to the 

EPA for further consideration of the 

aggregate commitments, and for further 

proceedings consistent with the 

decision, but denied the petition in all 

other respects.115 The EPA’s approval of 

the comprehensive precursor 

demonstration was not the subject of the 

court challenge. In light of the current 

circumstances surrounding these 

precursor demonstrations, the EPA 

agrees that direct PM2.5 and NOX are the 

appropriate pollutants for which 

contingency measures are required in 

the San Joaquin Valley for the 2006 24- 

hour PM2.5 NAAQS. 

b. Using Same Contingency Measures 

for More Than One Triggering Event, 

NAAQS 

Under CAA section 172(c)(9), SIPs 

must provide for the implementation of 

specific contingency measures if the 

area fails to meet RFP or to attain the 

NAAQS by the applicable attainment 

date. For PM2.5, there are four potential 

triggering events: failure to meet any 

RFP requirement, failure to submit a 

QM report, failure to meet a QM, and 

failure to attain the NAAQS by the 

applicable attainment date.116

To meet the contingency measure 

requirement, states may adopt different 

measures for different triggering events 

but are not required to do so. If the state 

adopts the same set of contingency 

measures for all the triggering events, 

however, then the contingency 

measures may all be implemented by 

earlier-occurring triggering events 

leaving no contingency measures for 

potential later-occuring events. In that 

case, if a state has no remaining 

approved contingency measures, then 

the EPA believes that states must adopt 

and submit additional contingency 

measures to be available for potential 

later-occuring triggering events. The 

potential for states to have used all 

approved contingency measures, and 

thus to lack contingency measures for 

potential later-triggering events is 

compounded by the reliance on the 

same set of contingency measures for 

more than one iteration of the PM2.5

NAAQS. Accordingly, while the EPA 

might approve a SIP that relies on the 

same contingency measures for multiple 

potential triggering events, a SIP that 

does so may be subject to the need for 

future revision each time a triggering 

event occurs. 

As noted previously, CARB and the 

District have submitted three 

contingency measures, each of which 

covers all three of the 1997 annual, 2006 

24-hour, and 2012 annual PM2.5 NAAQS 

(i.e., the same set of contingency 

measures has been submitted to address 

the contingency measure requirements 

for more than one PM2.5 NAAQS). In 

addition, each of the contingency 

measures addresses each of the four 

potential triggering events: failure to 

meet any RFP requirement, failure to 

submit a QM report, failure to meet a 

QM, and failure to attain the NAAQS by 

the applicable attainment date.117 As 

noted previously, states may adopt 

different measures for different 

triggering events and different NAAQS, 

but we do not believe that states are 


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118We note that the contingency provisions in 

Rule 8051 would be fully implemented following a 

first triggering event. 

119With respect to the 2012 PM2.5 NAAQS, we 

agree with the calculation of one year’s worth of 

progress in the SJV PM2.5 Contingency Measure SIP 

that is based on the outermost RFP milestone year, 

rather than the attainment year, because, as an area 

for which an impracticability demonstration has 

been approved, the attainment year has not yet been 

established. 

120See Appendix K (‘‘Modeling Attainment 

Demonstration’’) of the 2018 PM2.5 Plan, including 

Table 14 (annual average modeled emissions 

inventory) and Table 49 (precursor sensitivity 

analysis for annual average ambient PM2.5

concentration in 2024). 

121 2021 Progress Report, Table 7 (‘‘Base and 

Projected 2025 Annual Average Design Values Used 

to Select/Prioritize Sites for Calculating an Average 

Trading Ratio’’). At the time, the modeled 2025 

concentrations corresponded to the attainment year 

in the State’s Serious area plan for the 2012 annual 

PM2.5 NAAQS, which was later withdrawn on 

October 27, 2022. 

required to do so, and thus, we find that 

the State’s reliance on the same set of 

contingency measures for more than one 

triggering event and more than one 

NAAQS to be acceptable. 

In this instance, two of the three 

contingency measures—the Residential 

Wood Burning Contingency Measure 

and the Smog Check Contingency 

Measure—include provisions that 

would separately be implemented after 

a second triggering event.118 Under 

section 5.7.3 of Rule 4901, upon a first 

triggering event, the No Burn (i.e., 

curtailment) thresholds for the five nonhot spot counties (Kings, Merced, San 

Joaquin, Stanislaus, and Tulare) would 

be lowered to match the tighter No Burn 

thresholds for the three hot spot 

counties (Fresno, Madera, and Kern) 

(i.e., to 35 mg/m3 for registered devices 

and to 12 mg/m3 for unregistered 

devices). Upon a subsequent triggering 

event (i.e., in response to a separate, 

later determination by the EPA), the No 

Burn threshold for unregistered 

fireplaces and woodstoves for all eight 

counties would be lowered from 12 mg/ 

m3 to 11 mg/m3. 

Similarly, under the Smog Check 

Contingency Measure, upon a first 

triggering event, the Smog Check 

exemption would be lowered from eight 

or fewer model years old to seven or 

fewer model years old. Upon a 

subsequent triggering event (i.e., in 

response to a separate, later 

determination by the EPA), the Smog 

Check exemption would be lowered 

from seven or fewer model years old to 

six or fewer model years old. 

Therefore, after a first triggering event, 

the State would have two remaining 

SIP-approved contingency measures 

that are not yet triggered as it develops 

a SIP revision to meet the missed RFP 

requirement or to correct ongoing 

nonattainment. The EPA believes that 

the State would need to assess whether 

those two remaining contingency 

measures were sufficient to meet the 

contingency measure requirements in 

that future time and, if necessary, adopt 

and submit additional contingency 

measures to be available for potential 

later-occuring triggering events. 

c. Magnitude of Emissions Reductions 

As noted previously, neither the CAA 

nor the EPA’s implementing regulations 

establish a specific level of emission 

reductions that implementation of 

contingency measures must achieve, but 

the EPA has recommended in existing 

guidance that contingency measures 

should provide for emission reductions 

equivalent to approximately one year of 

reductions needed for RFP in the 

nonattainment area. 

Using the longstanding approach, 

contingency measures should provide 

for emissions reductions of 

approximately one year’s worth of RFP 

for each of the relevant PM2.5 NAAQS. 

Under the approach described in the 

EPA’s Draft Revised Contingency 

Measure Guidance, the EPA has 

suggested that contingency measures 

provide for emissions reductions of 

approximately one year’s worth of 

progress for each of the relevant PM2.5

NAAQS rather than one year’s worth of 

RFP. 

We have reviewed the calculations in 

the SJV PM2.5 Contingency Measure SIP, 

as summarized in section V.B.1 of this 

proposed rule, and find that the State 

properly calculated one year’s worth of 

RFP (as an interim step in calculating 

one year’s worth of progress) and one 

year’s worth of progress for each of the 

relevant PM2.5 NAAQS in the San 

Joaquin Valley.119 We have also 

reviewed the calculations in the SJV 

PM2.5 Contingency Measure SIP used to 

compare the emissions reductions from 

the Residential Wood Burning 

Contingency Measure with one year’s 

worth of progress and generally find 

them to be acceptable with the 

exception that the calculation includes 

the emissions reductions from both 

triggering events in the evaluation. Only 

the emissions reductions from the first 

trigger should be used because there is 

no assurance that the additional 

emissions reductions from the second 

triggering event will provide emissions 

reductions in the year or two following 

the first triggering event. 

We recognize that the calculations in 

the SJV PM2.5 Contingency Measure SIP 

relied upon an interpollutant trading 

ratio of 6:1 (i.e., 6 tpd NOX for each 

excess 1 tpd direct PM2.5) to convert 

‘‘excess’’ PM2.5 emissions reductions to 

equivalent NOX emissions reductions. 

The technical basis of the interpollutant 

trading ratio of 6:1 was provided in the 

State’s 2021 Progress Report to the EPA 

to support the State’s Serious area 

attainment demonstration for the 2012 

annual PM2.5 NAAQS. Specifically, the 

State analyzed the relative effect of 

reducing 30% direct PM2.5 (annual 

average) emissions versus 30% NOX

(annual average) emissions on ambient 

annual average PM2.5 concentrations (as 

modeled for 2024) at each regulatory 

monitoring site in the San Joaquin 

Valley using data from the precursor 

sensitivity analyses in the 2018 PM2.5

Plan.120 While the 2021 Progress Report 

was nominally for only the 2012 annual 

PM2.5 NAAQS and corresponded to the 

modeled 2025 attainment year in the 

State’s Serious area plan for the 2012 

annual PM2.5 NAAQS (later withdrawn 

on October 27, 2022), we note that the 

control strategy in the 2018 PM2.5 Plan 

was built upon annual average 

emissions inventories (e.g., for 

demonstrating RFP) and applied in 

common to the 1997, 2006, and 2012 

PM2.5 NAAQS. Later, the 15 mg/m3 SIP 

Revision for the 1997 annual PM2.5

NAAQS retained the annual average 

emissions inventory basis for the control 

strategy to attain that NAAQS and 

continued to rely on the State’s 

precursor sensitivity analyses. In other 

words, there is a common foundation on 

which CARB and the District selected 

the 6:1 ratio. 

As previously discussed, CARB and 

the District examined several methods 

for calculating the ratio based on 

varying combinations of monitoring 

sites. They concluded that 6:1 was a 

conservative ratio as it was less than the 

average ratio for the two sites (in Fresno 

and Kern Counties) with the highest 

modeled (annual average) ambient PM2.5

concentrations in 2025 (6.1:1), the 

average ratio of the six sites (in Fresno, 

Kern, Stanislaus, and Tulare Counties) 

with modeled 2025 concentrations over 

11.00 mg/m3 (6.4:1), and the average 

ratio of the six sites (in Fresno, Kern, 

Kings, and Tulare Counties) with a 2020 

design value over 12 mg/m3 (6.6:1).121

We have reviewed the State’s 

technical basis for the 6:1 interpollutant 

trading ratio and find that it is a 

reasonable ratio for purposes of 

estimating the NOX equivalent of excess 

direct PM2.5 emission reductions for 

purposes of contingency measures in 

the San Joaquin Valley for the 1997 

annual, 2006 24-hour, and 2012 annual 

PM2.5 NAAQS. First, the annual average 

emissions inventory and integrated 


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122We note that the interpollutant trading ratio of 

6:1 compares favorably with the interpollutant 

trading ratios that the EPA used recently in the 

Agency’s proposed San Joaquin Valley PM2.5

contingency measure FIP. We provide our 

evaluation of the interpollutant trading ratio in the 

SJV PM2.5 Contingency Measure SIP relative to the 

corresponding ratios in our proposed FIP in a 

Memorandum to File from Rory Mays and Scott 

Bohning, EPA Region IX, Subject: ‘‘Comparison of 

California and EPA Interpollutant Trading Ratios 

for Trading Excess Direct PM2.5 Emission 

Reductions to NOX Equivalent Emission Reductions 

for PM2.5 Contingency Measure Purposes in the San 

Joaquin Valley,’’ December 2023. 

123While this trading would not make up the 

entire shortfall in NOX emission reductions, it gives 

a sense for the magnitude of the relative ambient 

effect of the excess direct PM2.5 emission reductions 

towards meeting one year’s worth of RFP or one 

year’s worth of progress. 

nature of attainment planning for the 

three NAAQS provides a common 

emissions and control strategy basis for 

the ratios. Second, the ratios are based 

on whole emissions inventories (rather 

than, for example, only on-road 

emissions inventories that might be 

relevant to motor vehicle emission 

budgets) and modeling for a near-term 

year (2025), given that these 

contingency measures would be 

triggered no sooner than 2024. 

Third, by examining several methods 

that involve averaging across two to six 

sites, including two methods that 

include both hot spot and non-hot spot 

counties, the State provides robustness 

in the ratio (i.e., may better reflect the 

effect of emission reductions from the 

three contingency measures across sites 

in the San Joaquin Valley). The 

inclusion of non-hot spot counties in 

two of the averaging methods is 

important in that, upon a first triggering 

event, the Residential Wood Burning 

Contingency Measure—which is the 

contingency measure that would 

achieve emission reductions in excess of 

one year’s worth of direct PM2.5

emission reductions—would lower the 

No Burn (i.e., curtailment) thresholds 

for the five non-hot spot counties 

(Kings, Merced, San Joaquin, Stanislaus, 

and Tulare) to match the tighter No 

Burn thresholds for the three hot spot 

counties (Fresno, Madera, and Kern). 

Fourth, we agree with CARB and the 

District that the selected 6:1 ratio is 

conservative relative to the slightly 

higher average ratios of 6.1:1, 6.4:1, and 

6.6:1 from the methods that select sites 

with relatively high modeled 

concentrations, and relative to the ratio 

of 8.1:1 at the modeled 2025 high site 

of Bakersfield-Planz.122

The SJV PM2.5 Contingency Measure 

SIP calculated the emissions reductions 

only from the Residential Wood Burning 

Contingency Measure because that was 

the only adopted contingency measure 

at the time, but the District and CARB 

have since supplemented the 

submission with two additional 

contingency measures—the Rural Open 

Areas Contingency Measure and the 

Smog Check Contingency Measure. As 

described in sections IV.A and IV.B of 

this proposed rule, the EPA proposes to 

approve the Residential Wood Burning 

Continency Measure and the Rural 

Open Areas Contingency Measure and, 

in a separate rulemaking action, we are 

proposing to approve the Smog Check 

Contingency Measure. Table 2 

summarizes the estimated emissions 

reductions from these contingency 

measures, as evaluated by the EPA. 

TABLE 2—ANNUAL AVERAGE EMISSIONS REDUCTIONS FROM DISTRICT AND CARB CONTINGENCY MEASURES, tpd 

Contingency measure 

1997 Annual PM2.5

NAAQS 

2006 24-hour PM2.5

NAAQS 

2012 Annual PM2.5

NAAQS 

Direct 

PM2.5 NOX Direct PM2.5 NOX Direct PM2.5 NOX

District: Residential Wood Burning (first triggering event) ...................... 0.5793 0.0817 0.5793 0.0817 0.5793 0.0817 

District: Non-agricultural Rural Open Areas ............................................ 0.008 ................ 0.008 ................ 0.008 ................

CARB: Smog Check (first triggering event) ............................................. ................ 0.117 ................ 0.120 ................ 0.086 

CARB: Effect of Moyer Program funding decrease in the San Joaquin 

Valley if Smog Check Contingency Measure triggered ....................... ................ (0.004) ................ (0.004) ................ (0.003) 

Total .................................................................................................. 0.5873 0.1947 0.5873 0.1977 0.5873 0.1647 

Table 3 presents the estimated 

emissions reductions as percentages of 

one year’s worth of RFP and one year’s 

worth of progress both with and without 

trading between direct PM2.5 and NOX

emissions. As noted previously in this 

proposed rule, one year’s worth of RFP 

is the longstanding recommendation by 

the EPA to states regarding the 

magnitude of emissions reductions that 

contingency measures should be 

capable of achieving. One year’s worth 

of progress is the new recommendation 

described in the EPA’s Draft Revised 

Contingency Measure Guidance. In 

addition, we are proposing to approve 

the State’s trading ratio of 6:1 (i.e., 6 tpd 

NOX for each excess 1 tpd direct PM2.5) 

and to trade excess direct PM2.5

emission reductions, as evaluated by the 

EPA, to substitute for a portion of the 

shortfall in NOX emission reductions 

compared to one year’s worth of RFP 

and one year’s worth of progress.123 We 

apply this trading ratio in our 

calculations for all three PM2.5 NAAQS 

considered in this proposed rule. 

TABLE 3—EPA EVALUATION OF DISTRICT AND CARB CONTINGENCY MEASURES AS PERCENTAGE OF ONE YEAR’S WORTH

(OYW) OF RFP AND ONE YEAR’S WORTH OF PROGRESS

PM2.5 NAAQS Pollutant 

One year’s worth of RFP One year’s worth of progress 

Reductions 

target 

% OYW 

(no trading) 

% OYW 

(with trading) a

Reductions 

target 

% OYW 

(no trading) 

% OYW 

(with trading) a

1997 Annual .............. Direct PM2.5 ............. 0.44 132 100 0.41 142 100 

NOX ......................... 16.7 1.2 6.3 7.9 2.5 15.7 

2006 24-hour ............. Direct PM2.5 ............. 0.58 101 100 0.52 112 100 

NOX ......................... 18.4 1.1 1.3 6.7 3.0 8.8 

2012 Annual .............. Direct PM2.5 ............. 0.46 129 100 0.43 138 100 


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124Our summaries of the infeasibility 

demonstrations are found in section V.B.2 of this 

document. 

125EPA’s Draft Contingency Measure Guidance, 

section 4 (‘‘Reasoned Justification for Less Than 

[One Year’s Worth] of Progress’’). 

126SJV PM2.5 Contingency Measure SIP, pp. 9–11. 

TABLE 3—EPA EVALUATION OF DISTRICT AND CARB CONTINGENCY MEASURES AS PERCENTAGE OF ONE YEAR’S WORTH

(OYW) OF RFP AND ONE YEAR’S WORTH OF PROGRESS—Continued 

PM2.5 NAAQS Pollutant 

One year’s worth of RFP One year’s worth of progress 

Reductions 

target 

% OYW 

(no trading) 

% OYW 

(with trading) a

Reductions 

target 

% OYW 

(no trading) 

% OYW 

(with trading) a

NOX ......................... 15.3 1.1 6.3 8.7 1.9 13.1 

aThe EPA has calculated % OYW (With Trading) for NOX based on the 6:1 ratio presented in the SJV PM2.5 Contingency Measure SIP. 

As shown in Table 2, the sum of the 

emissions reductions from the three 

contingency measures is approximately 

0.5873 tpd direct PM2.5 and ranges from 

0.1647 tpd to 0.1977 tpd NOX, 

depending on the particular PM2.5

NAAQS. Without taking into account 

the substitution principle, these 

reductions would exceed one year’s 

worth of RFP for direct PM2.5 and 

provide a portion of one year’s worth of 

RFP for NOX for the 1997 annual PM2.5

NAAQS, 2006 24-hour PM2.5 NAAQS, 

and the 2012 annual PM2.5 NAAQS, as 

shown in Table 3. With respect to one 

year’s worth of progress, these 

reductions would similarly exceed one 

year’s worth of progress for direct PM2.5

and provide a portion of one year’s 

worth of progress for NOX for all three 

PM2.5 NAAQS, as shown in Table 3. 

Taking into account the substitution 

principle, under which, in this case, 

excess direct PM2.5 emissions are 

substituted for a shortfall in NOX

emissions, the reductions would 

amount to 100% of one year’s worth of 

RFP for direct PM2.5 and the following 

amounts of one year’s worth of RFP for 

NOX for each NAAQS: 1997 annual 

PM2.5 NAAQS (6.3%), 2006 24-hour 

PM2.5 NAAQS (1.3%), and 2012 annual 

PM2.5 NAAQS (6.3%). Similarly, the 

reductions would amount to 100% of 

one year’s worth of progress for direct 

PM2.5 and the following amounts of one 

year’s worth of progress for NOX for 

each NAAQS: 1997 annual PM2.5

NAAQS (15.7%), 2006 24-hour PM2.5

NAAQS (8.8%), and 2012 annual PM2.5

NAAQS (13.1%). 

While our estimates of the emissions 

from the contingency measures relative 

to one year’s worth of RFP or progress 

differ in some respects from those 

contained in the SJV PM2.5 Contingency 

Measure SIP, our conclusion is the same 

as the conclusion drawn by the District 

and CARB, namely, that the emissions 

reductions would provide for one year’s 

worth of RFP or progress for direct PM2.5

but would provide only a portion of one 

year’s worth of RFP or progress for NOX. 

Thus, we would expect the State to 

provide a ‘‘reasoned justification’’ to 

support approval of the contingency 

measures as meeting the requirements 

under CAA section 172(c)(9) and 40 

CFR 51.1014 for the nonattainment area 

even though the contingency measures 

would not provide for the magnitude of 

emissions reductions recommended by 

the EPA to comply with the 

requirements. The District and CARB 

have included their reasoned 

justifications in the form of feasibility 

analyses included as chapters 4 and 5 of 

the SJV PM2.5 Contingency Measure SIP, 

respectively. We provide our review of 

the feasibility analyses in the following 

section of this document. 

2. Contingency Measure Feasibility 

Analyses 

The EPA has reviewed the State’s 

infeasibility demonstrations for not 

adopting contingency measures beyond 

the residential wood burning, rural open 

areas, and Smog Check contingency 

measures, including both the process 

used by the State and its assessment 

specific to a wide range of stationary, 

area, and mobile source categories.124

Notably, in connection with the EPA’s 

proposed contingency measure FIP for 

the San Joaquin Valley, the EPA 

recently prepared a detailed evaluation 

of source categories and measures that 

we considered as potential additional 

contingency measures but determined to 

be infeasible or otherwise unsuitable for 

contingency measures. See ‘‘EPA Source 

Category and Control Measure 

Assessment and Reasoned Justification 

Technical Support Document, Proposed 

Contingency Measures Federal 

Implementation Plan for the Fine 

Particulate Matter Standards for San 

Joaquin Valley, California,’’ July 2023 

(‘‘EPA’s Reasoned Justification TSD’’). 

We have relied heavily on that TSD 

given its breadth and depth, as well as 

the expertise of EPA Region IX staff, to 

review the State’s infeasibility 

demonstration, understand where the 

State’s and the EPA’s analyses draw 

largely similar conclusions, and identify 

those source categories where the 

control measure analyses differ. As 

described in the following paragraphs, 

the EPA proposes to find that the State’s 

infeasibility demonstrations adequately 

justify the contingency measures 

selected by the State to meet the 

contingency measure requirement under 

CAA section 172(c)(9) and 40 CFR 

51.1014 for the San Joaquin Valley for 

the 1997 annual, 2006 24-hour, and 

2012 annual PM2.5 NAAQS. 

In terms of process, both CARB and 

the District identified and evaluated 

existing and potential control measures 

using components of the process 

recommended in the EPA’s Draft 

Revised Contingency Measures 

Guidance,125 even if not necessarily in 

the same sequence as those 

recommended by the EPA. As described 

in section V.B.2 of this proposed rule, 

for the wide range of stationary and area 

sources under its jurisdiction, the 

District described their ongoing 

stationary source regulatory efforts, 

identified potential control measures as 

candidate contingency measures, and 

analyzed the technological and/or 

economic feasibility of each candidate 

measure, including the feasibility of 

implementing such measures within 60 

days and achieving the resulting 

emission reductions within one to two 

years.126 The District also provided 

more in-depth analysis of potential 

control measures for five source 

categories, ultimately adopting 

measures for two source categories 

(wood burning fireplaces and wood 

burning heaters and rural open areas) 

and providing a reasoned justification 

for not adopting such measures for the 

other three source categories 

(commercial charbroiling, almond 

harvesting, and oil and gas production 

combustion equipment). We find that 

the District employed a reasonable 

process to identify and assess the 

feasibility and suitability of potential 

control measures as contingency 

measures for stationary and area sources 

in the San Joaquin Valley. 

Similarly, as described in section 

V.B.2 of this proposed rule, CARB 

identified potential mobile source 

control measures, assessed whether 


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127SJV PM2.5 Contingency Measure SIP, section 

5.3 (‘‘Measure Analysis’’); and Smog Check 

Contingency Measure, Appendix A (‘‘Infeasibility 

Analysis’’). 

128EPA’s Reasoned Justification TSD, pp. 143– 

144. 

129We note that the EPA’s Reasoned Justification 

TSD contains additional information that presents 

a comprehensive summary of the emissions 

inventories for direct PM2.5 and NOX in the San 

Joaquin Valley, as well as consideration of past 

recommendations of new control measures or 

improvements to existing control measures by the 

EPA and community and environmental groups 

(whether for purposes of RACM/RACT, BACM/ 

BACT, MSM, attainment and RFP demonstrations, 

or contingency measures). 

130SJV PM2.5 Contingency Measure SIP, pp. 12– 

25 and pp. 57–58. 

131 86 FR 67329 and 86 FR 67343. 

132SJV PM2.5 Contingency Measure SIP, section 

4.2 (‘‘District Feasibility Analysis’’). 

133SJV PM2.5 Contingency Measure SIP, 57. 

134We note that, in responding to comments 

received during the public review of the SJV PM2.5

Contingency Measure SIP and Residential Wood 

Burning Contingency Measure, the District states 

that, while there are limited opportunities for 

contingency measures, the District ‘‘will consider 

additional wood burning curtailments as part of 

control measure analyses for upcoming [SIPs].’’ SJV 

PM2.5 Contingency Measure SIP, Appendix J 

(‘‘Comments and Responses’’), p. J–4. See also 

EPA’s Reasoned Justification TSD, section G.1 

(‘‘Residential Fuel Combustion’’). 

135See, e.g., EPA’s Reasoned Justification TSD, 

pp. 9–22 (the EPA’s evaluation of contingency 

measures for boilers, steam generators, and process 

heaters). 

each candidate measure could be 

implemented within 60 days of a 

triggering event and emission 

reductions achieved within one to two 

years, and then analyzed their 

technological and/or economic 

feasibility.127 Regarding timing of 

emission reductions from mobile 

sources, CARB concludes that new 

engine standards and fleet regulations 

are not appropriate for contingency 

measures given the time needed for 

manufacturers to design, develop, and 

deploy cleaner engines or equipment at 

scale, especially for zero-emission 

equipment. 

As described in the EPA’s Reasoned 

Justification TSD,128 as a general matter, 

new mobile source engine or vehicle 

emission standards require significant 

lead time (more than two years) to allow 

manufacturers time to retool factories to 

produce compliant engines or vehicles. 

Retrofit or replacement requirements 

also require significant lead time to 

allow owners and operators to manage 

the process of retrofitting or replacing 

old engines or vehicles. Therefore, we 

agree with CARB that such mobile 

source control measures would not 

achieve emission reductions within one 

to two years of a contingency measure 

triggering event. Overall, we find that 

the CARB employed a reasonable 

process to identify and assess the 

feasibility and suitability of potential 

control measures as contingency 

measures for mobile sources in the San 

Joaquin Valley and in California more 

broadly.129

Beyond the analytical components 

employed by CARB and the District that 

mirror those recommended by the EPA, 

CARB and the District also evaluated 

whether they could develop, adopt, and 

secure EPA approval of SIP 

submissions, including additional 

contingency measures, meeting the 

contingency measure requirements, 

prior to the September 30, 2024 consent 

decree deadline for the EPA to 

promulgate a contingency measures FIP 

for San Joaquin Valley for the 1997 

annual, 2006 24-hour and 2012 PM2.5

NAAQS.130 The EPA finds that such 

considerations, while important in the 

broader context of environmental 

regulation and sanctions in the San 

Joaquin Valley, are not appropriate for 

evaluating the feasibility or suitability of 

potential control measures as 

contingency measures. Even absent final 

guidance from the EPA, states are 

required to adopt and submit 

contingency measures within the 

timelines established by the CAA in 

response to EPA actions, including 

disapproval of prior contingency 

measure submissions, as was the case 

here, effective December 27, 2021.131 In 

this instance, however, neither CARB 

nor the District relied upon the inability 

to adopt contingency measures and 

secure EPA approval by the consent 

decree deadline as the sole justification 

for not adopting additional contingency 

measures for any of the relevant source 

categories. 

In addition, in certain instances, the 

District states that the robust public 

process necessary to develop and adopt 

control measures would take more than 

two years,132 while CARB states that a 

state-wide regulatory measure typically 

needs five years to develop and 

adopt,133 and therefore fall outside the 

one to two-year timeframe 

recommended in the EPA’s Draft 

Revised Contingency Measures 

Guidance. While we certainly 

appreciate the importance of robust 

public process in developing control 

measures, inclusive of public process 

requirements in the CAA and the 

Administrative Procedures Act, the EPA 

finds that such timing considerations 

are not appropriate for assessing the 

feasibility of potential control measures 

as contingency measures. As previously 

noted, states are required to adopt and 

submit contingency measures within the 

timelines established by the CAA in 

response to EPA actions, including 

disapproval of prior contingency 

measure submissions. 

For each of the stationary and area 

source categories examined, the EPA 

agrees with the District’s determination 

that additional control measures cannot 

feasibly reduce emissions within one to 

two years. We first describe those source 

categories where we agree with the 

bases presented by the District. Then we 

discuss those source categories where 

the basis of the EPA’s conclusion differs 

from that of the District, even while the 

conclusion itself is the same—that the 

additional control measure evaluated 

cannot feasibly reduce emissions within 

one to two years. 

The District’s analyses and 

conclusions were substantially the same 

as those of the EPA for the following 

source categories: open burning and 

prescribed/hazard burning (Rules 4103 

and 4106), cotton gins (Rule 4204), fuel 

burning equipment (Rule 4301), flares 

(Rule 4311), lime kilns (Rule 4313; none 

operate in the San Joaquin Valley), solid 

fuel-fired boilers, steam generators, and 

process heaters (Rule 4352), glass 

melting furnaces (Rule 4354), asphalt 

paving and maintenance (Rule 4641; a 

VOC rule), internal combustion engines 

(Rule 4702), stationary gas turbines 

(Rule 4703), residential wood burning 

(Rule 4901, excluding the Residential 

Wood Burning Contingency Measure 

submitted as amendments to the rule), 

and fugitive dust (Regulation VIII, 

excluding the Rural Open Areas 

Contingency Measure submitted as 

amendments to Rule 8051).134

We note that the candidate control 

measures evaluated for certain sources, 

such as internal combustion engines, 

stationary gas turbines, boilers, steam 

generators, and process heaters, would 

require installation of costly and 

engineering-intensive devices (e.g., oxyfuel fired furnaces and natural gas 

furnaces equipped with selective 

catalytic reduction (SCR) for glass 

melting). As described in the EPA’s 

Reasoned Justification TSD, while these 

technologies may be available and 

feasible in some contexts, we found that 

it would be technologically infeasible 

for these measures to be implemented 

and achieve meaningful emission 

reductions within one to two years.135

Thus, we agree with the District’s 

determinations that such measures 

would be technologically infeasible in 

the context of contingency measures at 

this time. 

We note that the EPA’s Reasoned 

Justification TSD does not present an 

evaluation of potential contingency 

measures specifically related to District 

Rules 4301, 4309, and 4352 and, thus, 


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136SJV PM2.5 Contingency Measure SIP, pp. 13– 

14. 

137SJVUAPCD, ‘‘2022 Plan for the 2015 8-hour 

Ozone Standard,’’ adopted December 15, 2022. 

138SJV PM2.5 Contingency Measure SIP, p. 16. 

139SJVUAPCD, ‘‘Appendix C, Cost Effectiveness 

Analysis for Proposed Amendments to Rule 4352 

(Solid Fuel Fired Boilers, Steam Generators, and 

Process Heaters,’’ December 16, 2021. 

140SJV PM2.5 Contingency Measure SIP, 20–22. 

141For further discussion of these factors, see 

CARB, ‘‘2022 State Strategy for the State 

Implementation Plan,’’ adopted September 22, 

2022, pp. 101–103 (‘‘Proposed Measures: 

Residential and Commercial Buildings’’). 

142EPA’s Draft Revised Contingency Measures 

Guidance, pp. 35–38. 

143EPA’s Reasoned Justification TSD, pp. 43–51. 

144SJV PM2.5 Contingency Measure SIP, pp. 32– 

41. 

145EPA’s Reasoned Justification TSD, pp. 131– 

136. 

we provide our review and evaluation 

in this document. With respect to fuel 

burning equipment (Rule 4301), the SJV 

PM2.5 Contingency Measure SIP notes 

that the District has adopted more 

stringent NOX requirements for specific 

types of fuel burning equipment that 

supersede Rule 4301.136 Potential 

contingency measures for emission 

sources related to Rule 4301 are covered 

in the EPA’s evaluation of Rules 4306, 

4307, 4308, 4309, 4320, and 4352. Our 

assessments of Rules 4309 and 4352 are 

contained in the following paragraphs. 

With respect to dryers, dehydrators, 

and ovens (related to Rule 4309), the 

District considered controls such as low 

NOX burners and determined that such 

technology could not feasibly be 

implemented within the two-year 

timeframe for contingency measures for 

this category, includes further 

discussion in appendices F and G of the 

SJV PM2.5 Contingency Measure SIP 

(i.e., copies of the stationary and area 

source control evaluations for the 2022 

Ozone Plan 137 and the 2018 PM2.5 Plan, 

respectively), and states that, in certain 

applications (e.g., dehydrators for 

onions), may have an adverse effect on 

food product quality.138 We have 

reviewed the District’s infeasibility 

demonstration and agree that emissions 

reductions for this category could not 

feasibly be achieved within one to two 

years, and are therefore not suitable for 

contingency measures. As discussed in 

Appendix F of the SJV PM2.5

Contingency Measure SIP, South Coast 

Air Quality Management District 

(AQMD) has recently revised and 

divided its rules for comparable sources, 

including amendments to NOX limits, 

that are difficult to compare to Rule 

4309 given their distinct applicability 

and provisions (e.g., whether limits are 

differentiated by operating temperature). 

The EPA recommends that the District 

continue to evaluate dryers, 

dehydrators, and ovens for 

opportunities to further reduce NOX

emissions (and, as applicable, PM2.5

emissions) in developing subsequent 

plans. 

With respect to Rule 4352, the State’s 

submittal notes that the District adopted 

amendments to Rule 4352 in December 

2021, and District analysis associated 

with the 2021 amendments to Rule 4352 

found that all control alternatives that 

would further reduce emissions require 

technology that had prohibitively high 

capital costs and were not cost 

effective,139 and have not been widely 

implemented at facilities subject to Rule 

4352. Given these reasons and given 

that the emission limits included in the 

2021 amendments to Rule 4352 are 

lower than those of other districts’ rules, 

we agree with the District’s conclusion 

with respect to Rule 4352. 

For several other source categories, 

the EPA finds that the contingency 

measure analyses by the District and the 

EPA differ in certain respects that 

warrant further discussion. 

Notwithstanding these differences, both 

the District’s analyses and the EPA’s 

analyses supporting our recent 

contingency measure FIP proposal 

support the conclusion that the 

measures evaluated cannot feasibly 

reduce emissions within one to two 

years. We discuss each of these cases in 

the paragraphs that follow. 

With respect to residential water 

heaters (Rule 4902) and residential 

furnaces (Rule 4905), the District 

evaluated a contingency measure option 

to adopt electrification requirements 

(i.e., requiring newly purchased 

furnaces and water heaters to be zeroemission units) earlier than a 

commitment by CARB to develop a 

state-wide building electrification 

measure that would achieve emission 

reductions starting in 2030.140 The 

District deemed this contingency 

measure option infeasible, citing the 

lead time necessary for manufacturers to 

design and produce electric units, the 

need for collaboration with energy and 

building code regulators, consistency 

with State and local efforts, 

consideration of housing cost and 

affordability impacts, and equity 

considerations for low-income and 

environmental justice communities.141

While we note that certain aspects of 

these factors do not necessarily align 

with the feasibility criteria outlined in 

the EPA’s Draft Revised Contingency 

Measures Guidance,142 the EPA 

determined that the building 

electrification contingency measure 

option would not be feasible because we 

expect that it would result in negligible 

emissions reductions within two years 

after trigger,143 consistent with the 

District’s suggestion that the attritionbased nature of implementation of this 

contingency measure option deem the 

measure infeasible. The EPA also 

recommended that the District consider 

developing control measures or 

programs that would incentivize the 

early replacement of existing gas space 

and water heaters with electric 

appliances, as such actions could 

significantly reduce emissions from this 

significant source category in the longerterm future. 

With respect to commercial 

charbroiling (Rule 4692), the District 

noted that particulate matter control 

devices are required to be installed and 

operated on chain-driven commercial 

charbroilers under Rule 4692. The 

District evaluated a contingency 

measure option involving the 

requirement of particulate matter 

controls on underfired charbroilers. The 

District’s evaluation includes a detailed 

cost analysis, concluding that 

underfired charbroiler contingency 

measure option is infeasible based on 

high costs of installation and 

maintenance, technological infeasibility 

considerations, lack of availability of 

specialized staff at restaurants, control 

equipment fire safety certification 

concerns, and the lack of demonstrated 

controls in areas that have adopted 

underfired charbroiling control 

measures.144 The District also described 

ongoing and upcoming efforts to 

advance underfired charbroiler 

emissions control technology and 

demonstrate its performance in practice. 

The EPA’s evaluation did not present 

cost information to conclude that an 

underfired charbroiling contingency 

measure would be economically 

infeasible, and we did not include the 

same considerations regarding lack of 

availability of specialized staff at 

restaurants and other technological 

feasibility concerns presented by the 

District. However, the EPA determined 

that an underfired charbroiling 

contingency measure would be 

infeasible based on fire safety 

certification concerns and lack of 

demonstrated implementation of 

controls.145 In addition to 

recommending that the District and 

CARB collaborate with control 

technology manufacturers and industry 

to develop effective methods for 

reducing the commercial cooking 

industry’s impact on public health, the 

EPA strongly encouraged the District to 

expand its Restaurant Charbroiler 


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146SJV PM2.5 Contingency Measure SIP, pp. 23– 

24. 

147See, e.g., SJVUAPCD, ‘‘Public Workshop for 

Potential Amendments to District Rule 4550 

(Conservation Management Practices),’’ November 

7, 2022 (workshop presentation). 

148EPA’s Draft Revised Contingency Measure 

Guidance, p. 32. 

149EPA’s Reasoned Justification TSD, pp. 86–90. 

150SJV PM2.5 Contingency Measure SIP, pp. 41– 

43. 

151EPA’s Reasoned Justification TSD, chapter V. 

152EPA’s Reasoned Justification TSD, p. 95. 

153SJV PM2.5 Contingency Measure SIP, pp. 44– 

47. 

154SJV PM2.5 Contingency Measure SIP, pp. 47– 

49. 

155SJV PM2.5 Contingency Measure SIP, p. 49. 

156See also, EPA Region IX, ‘‘Technical Support 

Document for EPA’s Notice of Proposed 

Rulemaking for the California State Implementation 

Plan, San Joaquin Valley Unified Air Pollution 

Control District’s Rule 4320, Advanced Emission 

Reduction Options for Boilers, Steam Generators, 

and Process Heaters Greater than 5.0 MMBtu/hr),’’ 

August 19, 2010, p. 8. 

157SJV PM2.5 Contingency Measure SIP, pp. 14– 

16. 

158EPA’s Reasoned Justification TSD, pp. 9–22. 

159EPA’s Reasoned Justification TSD, section H 

(‘‘Mobile Sources’’). 

Technology Partnership program 

beyond hot spot counties. 

With respect to conservation 

management practices (Rule 4550), the 

District describes its commitment in the 

2018 PM2.5 Plan to evaluate emission 

reduction opportunities for sources in 

this category (e.g., emission reductions 

from fallowed lands and promotion of 

selection of conservation tillage as a 

conservation management practice 

[CMP]), explaining that rule 

development is ongoing and describing 

Rule 4550 as an ‘‘on-the-way’’ 

measure.146 We acknowledge the 

ongoing efforts by the District to pursue 

emission reductions from these 

sources,147 although we note that the 

District’s use of the ‘‘on-the-way’’ term 

differs from its usage in the Draft 

Revised Contingency Measures 

Guidance, where the EPA defines ‘‘onthe-way’’ measures as ‘‘the control 

measures in the nonattainment plan that 

will be implemented during the 

upcoming planning period’’ (i.e., 

adopted measures whose 

implementation is forthcoming in the 

near-term).148 However, the EPA 

conducted its own evaluation of Rule 

4550, finding that Rule 4550 contains 

conservation management practice 

options that are comparable with the 

rules identified in other jurisdictions 

and generally contain the same control 

measures required in other 

jurisdictions.149

The District also presented an 

evaluation of dust emissions from 

almond harvesting, concluding that a 

contingency measure requiring the 

replacement of conventional harvesting 

technology with low dust harvesting 

technology would be infeasible based on 

long lead times needed to meet 

significant increased demand generated 

by such a measure, prohibitively high 

cost of equipment, and the need to 

conduct additional research to better 

understand the changing landscape in 

harvesting techniques and associated 

emissions.150 The EPA’s evaluation 

determined that such a measure would 

be infeasible based only on the timing 

of emissions reductions; while the EPA 

presented cost effectiveness information 

for low dust almond harvesters,151 the 

EPA did not determine that a low dust 

harvester replacement contingency 

measure would be economically 

infeasible, nor did we determine that 

any work needed to understand the 

emissions profile of low dust nut 

harvesters would disqualify a potential 

low dust harvester replacement 

contingency measure.152

With respect to oil and gas production 

combustion equipment (related to 

District Rules 4306 and 4320), the 

District evaluated numerous control 

options including direct control of PM2.5

(e.g., electrostatic precipitators or 

venturi scrubbers), electrification of 

oilfield steam generators, and solar 

powered oilfield steam generators.153

For each of these options, the District 

provided technological and/or economic 

feasibility considerations deeming each 

option infeasible as a contingency 

measure. The District also evaluated 

lower emission limits for boilers and 

steam generators.154 In this evaluation, 

the District explained that the EPA has 

determined that Rule 4306 meets MSM 

requirements and that Rule 4320 goes 

beyond MSM by establishing even lower 

emissions limits. The District noted that 

equipment operators are already in the 

process of investing in and installing 

technology to meet the recently 

amended Rule 4320 limits and suggests 

that the time needed to plan and 

prepare for installation of control 

equipment to meet lower limits would 

exceed the one- to two-year timeline for 

a contingency measure to achieve 

emissions reductions. The District also 

claims numerous technological 

feasibility considerations associated 

with lowering emission limits for this 

category. While the District describes a 

‘‘lack of EPA recognized SIP-creditable 

emissions reductions from Rule 4320’’ 

due to the technology advancing nature 

of Rule 4320,155 the EPA would 

recognize SIP-creditable emission 

reductions for this category if provided 

with the appropriate information such 

as records of the number of units 

complying with Rule 4320 NOX

emission limits and their associated 

emissions.156

The EPA’s evaluation focused on 

lowering emission limits for boilers and 

steam generators, including 

identification of lower emission limits 

adopted by the South Coast AQMD for 

oilfield steam generators than those 

adopted in Rule 4306. While the EPA’s 

evaluation does not claim that control 

requirements required to meet the lower 

limits would be technologically 

infeasible altogether (in light of the 

lower limits adopted by South Coast 

AQMD), we determined that it would be 

technologically infeasible to meet the 

lower limits within the two-year 

timeframe for contingency measures due 

to the likely requirement that affected 

units would need to install SCR to meet 

the lower limits. 

The District also included evaluations 

for boilers, steam generators, and 

process heaters in general covered by 

District Rules 4307 and 4308.157 The 

District’s assessments for these rules 

focus on economic and technological 

feasibility, citing dollar per ton cost 

effectiveness values for numerous 

control options and adding 

technological feasibility concerns for 

SCONOx/EMx units. The EPA’s 

evaluation for boilers in general does 

not provide cost effectiveness values to 

suggest that lower emission limits for 

boilers, steam generators, and process 

heaters are economically infeasible. 

However, as described in the EPA’s 

evaluation, we expect that units 

required to meet lower limits than those 

already adopted in Rules 4307 and 4308 

would require installation of SCR, 

which cannot be feasibly achieved 

within the two-year timeframe for 

contingency measures.158

Similar to our evaluation of the 

District’s feasibility analysis, we have 

evaluated CARB’s feasibility analysis, in 

part, by comparing the bases and 

conclusions of the State’s analysis 

against those presented in the EPA’s 

Reasoned Justification TSD.159 Both 

CARB and the EPA note the importance 

of mobile source emissions in the San 

Joaquin Valley, particularly given that 

the large majority of NOX emissions are 

from mobile sources, and describe the 

breadth of control measures considered 

by CARB to reduce direct PM2.5 and 

NOX emissions for broader CAA 

purposes in the San Joaquin Valley. 

These include new vehicle and engine 

emission standards, for both on-road 

and non-road applications, which 

generally apply to manufacturers and 


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160EPA’s Reasoned Justification TSD, pp. 139– 

142. See also, SJV PM2.5 Contingency Measure SIP, 

pp. 53–56; and Smog Check Contingency Measure, 

pp. 8–10. 

161There were three measures that CARB 

indicated as technologically feasible. One is the 

Smog Check Contingency Measure that CARB has 

adopted and submitted to the EPA. A second was 

a different Smog Check measure that would add 

requirements for only high mileage vehicles; 

however, CARB found that the compliance burden 

would disproportionately fall on low-income 

populations and disadvantaged communities. SJV 

PM2.5 Contingency Measures SIP, p. 59. The third 

was to increase the testing frequency under the 

Heavy-Duty I/M program; however, CARB found 

that the compliance burden would 

disproportionately fall on small businesses and 

low-income populations. SJV PM2.5 Contingency 

Measure SIP, p. 62 and Appendix A, p. 49. In the 

latter two cases, CARB also found that, even if the 

measure were technologically feasible, the measures 

could not be effectuated within the timeframe 

necessary for contingency measures. 

162EPA’s Reasoned Justification TSD, pp. 138– 

144. 

163EPA’s Reasoned Justification TSD, section 

IV.E. In addition, CARB noted in its comment letter 

on the EPA’s proposed contingency measure FIP 

that, under the I/M measure evaluated by the EPA, 

50% of the vehicles that would be newly subject to 

Enhanced I/M would be in disadvantaged 

communities whereas only 35% of San Joaquin 

Valley population live in such disadvantaged 

communities. Letter dated September 22, 2023, 

from Steven S. Cliff, Ph.D., Executive Officer, CARB 

to Martha Guzman, Regional Administrator, EPA 

Region IX. In other words, the compliance burden 

would disproportionately fall on low-income 

populations and disadvantaged communities. 

164EPA’s Reasoned Justification TSD, section 

IV.B. 

165EPA’s Reasoned Justification TSD, pp. 144– 

146. 

166 59 FR 7629 (February 16, 1994). 167EJSCREEN provides a nationally consistent 

dataset and approach for combining environmental 

and demographic indicators. EJSCREEN is available 

at https://www.epa.gov/ejscreen/what-ejscreen. The 

EPA used EJSCREEN to obtain environmental and 

demographic indicators representing each of the 

eight counties in the San Joaquin Valley. We note 

that the indicators for Kern County are for the entire 

county. While the indicators might have slightly 

different numbers for the San Joaquin Valley 

portion of the county, most of the county’s 

population is in the San Joaquin Valley portion, and 

thus the differences would be small. These 

indicators are included in EJSCREEN reports that 

are available in the rulemaking docket for this 

action. 

achieve emission reductions through 

vehicle turnover; retrofit or replacement 

requirements for existing vehicles and 

fleets; and inspection and maintenance 

(I/M) program requirements, such as 

those implemented under California’s 

Smog Check program for light-duty 

passenger cars and trucks, and those 

entering implementation under 

California’s Heavy-Duty I/M program. 

We agree that the adopted measures and 

on-going development of mobile sources 

measures by CARB, including zeroemission standards, further constrain 

the opportunities for additional 

emission reductions via contingency 

measures.160

With respect to contingency measure 

requirements, CARB examined potential 

controls across the wide range of mobile 

source categories, including on-road 

light-duty passenger cars, trucks, and 

motorcycles; medium- and heavy-duty 

trucks and buses and transportation 

refrigeration units; commercial harbor 

craft, recreational boats, and ocean 

going vessels; off-road industrial, 

construction, and mining equipment; 

airport ground equipment, port and rail 

operations, and locomotives; lawn and 

garden equipment; and space and water 

heaters. The potential controls 

considered include pulling forward 

compliance dates and/or phase-in 

requirements; setting more stringent 

standards (often atop recently tightened 

standards) through mechanisms such as 

emission standards, emissions caps, 

thresholds for compliance, testing 

frequency, making optional standards 

required, or percentage of sales 

requirements; and removing exemptions 

and/or compliance options. In virtually 

all cases, CARB found that control 

measures beyond those already adopted 

or in development to fulfill 

commitments (e.g., under the 2022 State 

SIP Strategy) were not technologically 

feasible.161 In all cases (except the 

adopted Smog Check Contingency 

Measure), CARB found that the 

measures were not suitable for 

contingency measures due to lead time 

to develop, certify, adopt, and/or 

implement measures that could not be 

implemented within 60 days of a 

triggering event and achieve emission 

reductions within one year of the 

triggering event. 

We have reviewed CARB’s specific 

control measure analyses and agree that 

such potential control measures are not 

feasible within the timeframe necessary 

for contingency measures and, in many 

cases, are not technologically feasible to 

the extent that they build upon on-thebooks and on-the-way measures that are 

technology- or market-forcing. 

Consistent with our evaluation 

presented in the EPA’s Reasoned 

Justification TSD,162 the EPA has not 

identified any engine or vehicle 

emission standards for consideration as 

contingency measures. Beyond the wide 

range of source types and control 

approaches examined by CARB, the 

EPA also examined a handful of 

potential additional controls and 

concluded that they too were not 

suitable as contingency measures, 

including expansion of Enhanced I/M 

requirements to areas currently subject 

to Basic I/M or Partial Enhanced I/M 

requirements in the San Joaquin 

Valley,163 provisions to expand the 

applicability of and add requirements to 

District Rule 9510 (‘‘Indirect Source 

Review’’),164 and additional 

transportation control measures.165

Therefore, we propose to find that 

CARB’s infeasibility demonstration 

adequately justifies the contingency 

measures selected by CARB for the San 

Joaquin Valley for the 1997 annual, 

2006 24-hour and 2012 annual PM2.5

NAAQS. 

3. Conclusion 

Based on our review and proposed 

approval of the three contingency 

measures submitted by the State that 

would achieve the full one year’s worth 

of emission reductions for direct PM2.5

and a portion of one year’s worth of 

emission reductions for NOX (whether 

using the longstanding RFP method or 

the new progress method) and our 

review of and proposed finding that the 

State’s infeasibility demonstrations 

adequately justify the selection of the 

three contingency measures, we propose 

to approve the SJV PM2.5 Contingency 

Measures SIP, the Residential Wood 

Burning Contingency Measure, the 

Rural Open Areas Contingency Measure, 

and the Smog Check Contingency 

Measure (as applied to the San Joaquin 

Valley) as meeting the contingency 

measure requirements of CAA section 

172(c)(9) and 40 CFR 51.1014 for the 

1997 annual, 2006 24-hour, and 2012 

annual PM2.5 NAAQS in the San Joaquin 

Valley. 

VI. Environmental Justice 

Considerations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) requires that federal 

agencies, to the greatest extent 

practicable and permitted by law, 

identify and address disproportionately 

high and adverse human health or 

environmental effects of their actions on 

minority and low-income 

populations.166 To identify 

environmental burdens and susceptible 

populations in underserved 

communities in the San Joaquin Valley 

nonattainment area and to better 

understand the context of our proposed 

action on these communities, we 

conducted a screening-level analysis for 

PM2.5 in the San Joaquin Valley using 

the EPA’s environmental justice (EJ) 

screening and mapping tool 

(‘‘EJSCREEN’’).167 The results of this 

analysis are being provided for 

informational and transparency 

purposes. 

Our screening-level analysis indicates 

that all eight counties in the San Joaquin 


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168EPA Region IX, ‘‘EJSCREEN Analysis for the 

Eight Counties of the San Joaquin Valley 

Nonattainment Area,’’ August 2022. 

169By comparison, the eight counties score above 

the State average for the EJSCREEN ‘‘Demographic 

Index’’ (i.e., ranging from 52% in Stanislaus County 

to 71% in Tulare County, compared to 47% in 

California). 

170EJSCREEN reports environmental indicators 

(e.g., air toxics cancer risk, Pb paint exposure, and 

traffic proximity and volume) and demographic 

indicators (e.g., people of color, low income, and 

linguistically isolated populations). The score for a 

particular indicator measures how the community 

of interest compares with the state, the EPA region, 

or the national average. For example, if a given 

location is at the 95th percentile nationwide, this 

means that only five percent of the U.S. population 

has a higher value than the average person in the 

location being analyzed. EJSCREEN also reports EJ 

indexes, which are combinations of a single 

environmental indicator with the EJSCREEN 

Demographic Index. For additional information 

about environmental and demographic indicators 

and EJ indexes reported by EJSCREEN, see EPA, 

‘‘EJSCREEN Environmental Justice Mapping and 

Screening Tool—EJSCREEN Technical 

Documentation,’’ section 2 (September 2019). 

171By comparison, two counties score at or above 

the 97th percentile in California for the PM2.5 index 

and five counties score at or above the 80th 

percentile in California for the PM2.5 EJ index 

(rather than seven of eight counties that score at or 

above the 90th percentile nationally). 

172Notably, Tulare County scores above the 90th 

percentile on six of the 12 EJ indices in the EPA’s 

EJSCREEN analysis, including the PM2.5 EJ Index, 

which is the highest count among all San Joaquin 

Valley counties. 

173For example, the certified 2020–2022 PM2.5

design value for Visalia (AQS Site ID 061072003) 

is 18.4 mg/m3 for the 2012 annual PM2.5 NAAQS 

and 65 mg/m3 for the 2006 24-hour PM2.5 NAAQS. 

EPA design value workbook dated May 23, 2023, 

‘‘PM25_DesignValues_2020_2022_FINAL_05_23_

23.xlsx,’’ worksheets ‘‘Table5a. Site Status Ann’’ 

and ‘‘Table5b.Site Status 24hr.’’ The certified 

design value includes all available data; no data 

flagged for exceptional events have been excluded. 

The EPA’s Air Quality System (AQS) contains 

ambient air pollution data collected by federal, 

state, local, and tribal air pollution control agencies 

from thousands of monitors. More information is 

available at https://www.epa.gov/aqs. 

174For example, the certified 2020–2022 PM2.5

design value for Bakersfield-Airport (Planz) (AQS 

Site ID 060290016) is 18.8 mg/m3 for the 2012 

annual PM2.5 NAAQS and 61 mg/m3 for the 2006 24- 

hour PM2.5 NAAQS. EPA design value workbook 

dated May 23, 2023, ‘‘PM25_DesignValues_2020_

2022_FINAL_05_23_23.xlsx,’’ worksheets ‘‘Table5a. 

Site Status Ann’’ and ‘‘Table5b.Site Status 24hr.’’ 

The certified design value includes all available 

data; no data flagged for exceptional events have 

been excluded. 

175For further discussion of the land use and 

emission factors for open areas in the San Joaquin 

Valley, see EPA Region IX, ‘‘Technical Support 

Document, Proposed Contingency Measures Federal 

Implementation Plan for the Fine Particulate Matter 

Standards for San Joaquin Valley, California,’’ July 

2023, section III.E. 

Valley score above the national average 

for the EJSCREEN ‘‘Demographic Index’’ 

(i.e., ranging from 48% in Stanislaus 

County to 61% in Tulare County, 

compared to 36% nationally).168 169 The 

Demographic Index is the average of an 

area’s percent minority and percent low 

income populations, i.e., the two 

populations explicitly named in 

Executive Order 12898.170 All eight 

counties also score above the national 

average for demographic indices of 

‘‘linguistically isolated population’’ and 

‘‘population with less than high school 

education.’’ 

With respect to pollution, all eight 

counties (Fresno, Kern, Kings, Madera, 

Merced, San Joaquin, Stanislaus, and 

Tulare) score at or above the 97th 

percentile nationally for the PM2.5 index 

and seven of the eight counties in the 

San Joaquin Valley score at or above the 

90th percentile nationally for the PM2.5

EJ index (i.e., each county except 

Stanislaus County, which scores at the 

87th percentile nationally), which is a 

combination of the Demographic Index 

and the PM2.5 index.171 Most counties 

also scored above the 80th percentile for 

each of 11 additional EJ indices 

included in the EPA’s EJSCREEN 

analysis. In addition, several counties 

scored above the 90th percentile for 

certain EJ indices, including, for 

example, the Ozone EJ Index (Fresno, 

Kern, Madera, Merced, and Tulare 

Counties), the National Air Toxics 

Assessment (NATA) Respiratory Hazard 

EJ Index (Madera and Tulare Counties), 

and the Wastewater Discharge Indicator 

EJ Index (Merced, San Joaquin, 

Stanislaus, and Tulare Counties).172

We have considered the geographic 

scope of each of the contingency 

measures that the EPA proposes to 

approve herein on PM2.5 concentrations 

in each county of the San Joaquin 

Valley, as well as other environmental 

considerations that pertain to applicable 

pollutant (i.e., combustion PM2.5, dust 

PM2.5, or NOX) and the applicable 

source category or categories. 

For residential wood burning, upon a 

first triggering event, the Rule 4901 

contingency measure would lower the 

No Burn (i.e., curtailment) thresholds 

for the five non-hot spot counties 

(Kings, Merced, San Joaquin, Stanislaus, 

and Tulare) to match the tighter No 

Burn thresholds for the three hot spot 

counties (Fresno, Madera, and Kern). A 

prominent effect of this change would 

be to provide similar protections to 

people in the two southern-most nonhot spot counties that record among the 

highest year-to-year PM2.5 design values 

in the San Joaquin Valley (i.e., Kings 

County, including Corcoran and 

Hanford monitoring sites, and Tulare 

County, including Visalia monitoring 

site).173 Were No Burn days to be called 

in Kings or Tulare County according to 

the more stringent thresholds, we also 

anticipate there would be smaller but 

still beneficial effect in the adjacent 

Fresno or Kern Counties, depending on 

the meteorology of the day. Upon a 

second triggering event, the Rule 4901 

contingency measure would further 

lower the curtailment threshold for 

unregistered devices in all eight 

counties of the San Joaquin Valley. This 

would provide further protections to 

people throughout the area, including 

both hot-spot and non-hot spot counties, 

including those that record among the 

highest year-to-year PM2.5 design values 

in the San Joaquin Valley.174

Where these direct PM2.5 emission 

reductions from combustion occur, we 

also note that they do not require further 

chemical transformation in the 

atmosphere to form PM2.5 (i.e., the 

benefit is immediate) and, as they 

include fine particulate matter under 

one micron and toxic air chemicals, the 

reduction of such sub-micron particles 

would similarly reduce exposure of all 

residents in these areas, including 

minority and low-income populations to 

these environmental stressors. These 

reductions would also specifically 

reduce emissions on the winter days 

with the highest ambient PM2.5 levels. 

For open areas, the Rule 8051 

contingency measure, if triggered, 

would lower the applicability threshold 

for the rural open area requirements of 

Rule 8051 (i.e., for parcels having at 

least 1,000 square feet of disturbed soil) 

from 3.0 acres to 1.0 acre. Based on our 

analysis of land use to date, such rural 

open areas are found in all counties of 

the San Joaquin Valley, though with 

some variation from county to county 

consistent with overall land use types 

(e.g., San Joaquin County has the 

smallest proportion of rural open areas, 

while Madera County has the highest 

proportion of rural open areas). 

Furthermore, there is variation in the 

number of rural open areas that would 

be newly subject to the rule, i.e., those 

between 1.0 to 3.0 acres in size (e.g., 

Kern County has the most total rural 

open area acreage from parcels between 

1.0 to 3.0 acres in size, while Tulare 

County has the least). Given the overall 

land use and emission factors,175 and 

assuming roughly equal levels of 

activity in each county (i.e., soil 

disturbances over 1,000 square feet), we 

anticipate that the proposed 

contingency measure would provide air 

quality benefits in all counties of the 

San Joaquin Valley, with most air 

quality benefits occuring in Fresno, 

Kern, Kings, and Madera Counties. 

Given that Rule 8051 for open areas 

was originally introduced as a PM10

control measure, we anticipate that the 

proposed measure would provide cobenefits to limiting PM10 levels in the 

San Joaquin Valley, with the same 


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Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Proposed Rules 88011 

176We also note that environmental and 

community groups have recommended that fugitive 

dust sources in the San Joaquin Valley be subject 

to specific requirements rather than having the 

option to select from a menu of control 

requirements in Rule 8011 (where the definition for 

open areas is found). Letter dated May 18, 2022, 

from Tom Frantz, Association of Irritated Residents, 

et al., to Michael S. Regan, EPA Administrator, 

Attachment B, 7. The proposed measure would not 

alter the existing structure but rather tighten the 

applicability threshold for rural open areas. 

177EPA, ‘‘Air Plan Revision; California; Motor 

Vehicle Inspection and Maintenance Program 

Contingency Measure,’’ Proposed rule, published in 

this Federal Register. 

geographical distribution as discussed 

herein for direct PM2.5 emission 

reductions.176

Lastly, we anticipate that the Smog 

Check Contingency Measure (discussed 

in more detail in our separate proposed 

rule),177 if triggered, would reduce NOX

and VOC emissions from light-duty 

vehicles throughout the San Joaquin 

Valley. Such emission reductions would 

provide air quality benefits in all 

counties of the San Joaquin Valley and 

especially along roadways with the 

highest vehicle miles traveled, 

including the major freeways (e.g., 

California Highway 99) and urban areas 

(e.g., Bakersfield, Fresno, Stockton, 

Visalia) that intersect minority 

populations and low-income 

populations throughout the San Joaquin 

Valley. 

VII. Proposed Action and Request for 

Public Comment 

For the reasons described in sections 

IV and V of this document, and under 

CAA section 110(k)(3), the EPA 

proposes to approve two SIP revisions 

submitted by CARB on June 8, 2023, 

and October 16, 2023, for the San 

Joaquin Valley to address the 

contingency measure SIP requirements 

for San Joaquin Valley for the 1997 

annual, 2006 24-hour, and 2012 annual 

PM2.5 NAAQS. The SIP submissions 

include the contingency measure plan 

element for San Joaquin Valley for the 

relevant PM2.5 NAAQS (referred to 

herein as the ‘‘SJV PM2.5 Contingency 

Measure SIP’’) and two specific 

contingency measures, referred to 

herein as the Residential Wood Burning 

Contingency Measure and the Rural 

Open Areas Contingency Measure. We 

are proposing to approve the SJV PM2.5

Contingency Measure SIP as meeting the 

applicable requirements of CAA section 

172(c)(9) and 40 CFR 51.1014 for San 

Joaquin Valley for the applicable PM2.5

NAAQS based on the infeasibility 

demonstrations that are provided in the 

submission and based on our proposed 

approval of the contingency measures. 

The Residential Wood Burning 

Contingency Measure and the Rural 

Open Areas Contingency Measure are 

included in amendments to SJVUAPCD 

Rule 4901 (‘‘Wood Burning Fireplaces 

and Wood Burning Heaters’’) and Rule 

8051 (‘‘Open Areas’’), respectively. We 

are proposing to approve the two 

specific contingency measures because 

they meet the requirements under CAA 

section 172(c)(9) and 40 CFR 51.1014 for 

such measures. We will accept 

comments from the public on this 

proposal until January 19, 2024. 

If we finalize this action as proposed, 

our action will resolve the disapproval 

of the contingency measure plan 

elements for San Joaquin Valley for the 

1997 annual, 2006 24-hour, and 2012 

annual PM2.5 NAAQS, and our action 

will be codified through revisions to 40 

CFR 52.220, ‘‘Identification of plan—in 

part’’ and 40 CFR 52.237, ‘‘Part D 

Disapproval.’’ In conjunction with our 

final approval into the SIP of the 

submitted amended versions of 

SJVUAPCD Rules 4901 and 8051, we 

would remove from the SIP the 

previously approved versions of 

SJVUAPCD Rules 4901 and 8051. Lastly, 

if we finalize our action as proposed, 

our FIP obligation arising from our 

December 6, 2018 finding of failure to 

submit will be terminated, and thus, we 

will no longer be obligated to finalize 

our August 8, 2023 proposed 

contingency measure FIP for San 

Joaquin Valley. 

VIII. Incorporation by Reference 

In this rulemaking, 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 SJVUAPCD 

Rule 4901 (‘‘Wood Burning Fireplaces 

and Wood Burning Heaters’’), amended 

May 18, 2023, and Rule 8051 (‘‘Open 

Areas’’), amended September 21, 2023, 

identified and discussed in sections 

IV.A and IV.B of this preamble and that 

include revisions to meet the 

contingency measure requirements 

under part D of title I of the CAA. 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). 

IX. 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 a state plan 

and related measures 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) 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 subject to Executive Order 

13045 (62 FR 19885, April 23, 1997) 

because it proposes to approve a state 

program; 

• 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. 

In addition, 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 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). 

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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
88012 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Proposed Rules 

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 EPA performed an environmental 

justice analysis, as is described in 

section VI of this proposed rule, titled 

‘‘Environmental Justice 

Considerations.’’ The analysis was done 

for the purpose of providing additional 

context and information about this 

rulemaking to the public, not as a basis 

of the action. Due to the nature of the 

action being taken here, this action is 

expected to have a neutral to positive 

impact on the air quality of the affected 

area. In addition, there is no information 

in the record upon which this decision 

is based inconsistent with the stated 

goal of E.O. 12898 of achieving 

environmental justice for people of 

color, low-income populations, and 

Indigenous peoples. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Ammonia, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

dioxide, Particulate matter, Reporting 

and recordkeeping requirements, Sulfur 

dioxide, Volatile organic compounds. 

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

Dated: December 12, 2023. 

Martha Guzman Aceves, 

Regional Administrator, Region IX. 

[FR Doc. 2023–27686 Filed 12–19–23; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R5–ES–2023–0179; 

FF09E21000 FXES1111090FEDR 245] 

RIN 1018–BH06 

Endangered and Threatened Wildlife 

and Plants; Endangered Species 

Status for West Virginia Spring 

Salamander and Designation of Critical 

Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

list the West Virginia spring salamander 

(Gyrinophilus subterraneus), an 

amphibian species from Greenbrier 

County, West Virginia, as an endangered 

species and to designate critical habitat 

under the Endangered Species Act of 

1973, as amended (Act). This 

determination also serves as our 12- 

month finding on a petition to list the 

West Virginia spring salamander. After 

a review of the best available scientific 

and commercial information, we find 

that listing the species is warranted. We 

also propose to designate critical habitat 

for the West Virginia spring salamander 

under the Act. In total, approximately 

3.5 kilometers (2.2 miles) in Greenbrier 

County, West Virginia, fall within the 

boundaries of the proposed critical 

habitat designation. We announce the 

availability of a draft economic analysis 

of the proposed designation of critical 

habitat for the West Virginia spring 

salamander. If we finalize this rule as 

proposed, it would extend the Act’s 

protections to the species and its 

designated critical habitat. 

DATES: We will accept comments 

received or postmarked on or before 

February 20, 2024. Comments submitted 

electronically using the Federal 

eRulemaking Portal (see ADDRESSES, 

below) must be received by 11:59 p.m. 

eastern time on the closing date. We 

must receive requests for a public 

hearing, in writing, at the address 

shown in FOR FURTHER INFORMATION

CONTACT by February 5, 2024. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: https:// 

www.regulations.gov. In the Search box, 

enter FWS–R5–ES–2023–0179, which is 

the docket number for this rulemaking. 

Then, click on the Search button. On the 

resulting page, in the panel on the left 

side of the screen, under the Document 

Type heading, check the Proposed Rule 

box to locate this document. You may 

submit a comment by clicking on 

‘‘Comment.’’ 

(2) By hard copy: Submit by U.S. mail 

to: Public Comments Processing, Attn: 

FWS–R5–ES–2023–0179, U.S. Fish and 

Wildlife Service, MS: PRB/3W, 5275 

Leesburg Pike, Falls Church, VA 22041– 

3803. 

We request that you send comments 

only by the methods described above. 

We will post all comments on https:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Availability of supporting materials: 

Supporting materials, such as the 

species status assessment report, are 

available on the Service’s website at 

https://www.fws.gov/office/westvirginia-ecological-services, at https:// 

www.regulations.gov at Docket No. 

FWS–R5–ES–2023–0179, or both. For 

the proposed critical habitat 

designation, the coordinates or plot 

points or both from which the maps are 

generated are included in the decision 

file for this critical habitat designation 

and are available at https:// 

www.regulations.gov at Docket No. 

FWS–R5–ES–2023–0179 and on the 

Service’s website at https:// 

www.fws.gov/office/west-virginiaecological-services. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Norris, Field Supervisor, U.S. 

Fish and Wildlife Service, West Virginia 

Ecological Services Field Office, 6263 

Appalachian Highway, Davis, WV 

26260; telephone 304–866–3858. 

Individuals in the United States who are 

deaf, deafblind, hard of hearing, or have 

a speech disability may dial 711 (TTY, 

TDD, or TeleBraille) to access 

telecommunications relay services. 

Individuals outside the United States 

should use the relay services offered 

within their country to make 

international calls to the point-ofcontact in the United States. Please see 

Docket No. FWS–R5–ES–2023–0179 on 

https://www.regulations.gov for a 

document that summarizes this 

proposed rule. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act (16 U.S.C. 1531 et seq.), a 

species warrants listing if it meets the 

definition of an endangered species (in 

danger of extinction throughout all or a 

significant portion of its range) or a 

threatened species (likely to become an 


ddrumheller on DSK120RN23PROD with PROPOSALS1