73568 Federal Register / Vol. 89, No. 176 / Wednesday, September 11, 2024 / Rules and Regulations 

1 88 FR 70616, 70617 (October 12, 2023). 

2SCAQMD, Final 2016 Air Quality Management 

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

2016 South Coast AQMP designates the warehouse 

measure as MOB–03 (‘‘Emission Reductions at 

Warehouse Distribution Centers’’). 

3 84 FR 52005 (October 1, 2019). 

downstream clinical genetic tests the 

impact of the bioinformatics software 

change on the whole exome sequencing 

constituent system genetic data output 

so they may implement appropriate 

corresponding actions. 

Dated: September 6, 2024. 

Lauren K. Roth, 

Associate Commissioner for Policy. 

[FR Doc. 2024–20550 Filed 9–10–24; 8:45 am] 

BILLING CODE 4164–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

Income Taxes 

CFR Correction 

This rule is being published by the 

Office of the Federal Register to correct 

an editorial or technical error that 

appeared in the most recent annual 

revision of the Code of Federal 

Regulations. 

In Title 26 of the Code of Federal 

Regulations, Part 1 (§§ 1.410 to 1.440), 

revised as of April 1, 2024, in section 

1.430(h)(2)–1, remove paragraph (ii) 

immediately following paragraph (b)(2). 

[FR Doc. 2024–20701 Filed 9–10–24; 8:45 am] 

BILLING CODE 0099–10–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2023–0494; FRL–11442– 

02–R9] 

Air Plan Approval; California; South 

Coast Air Quality Management District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action on 

a revision to the South Coast Air Quality 

Management District (SCAQMD or ‘‘the 

District’’) portion of the California State 

Implementation Plan (SIP). This 

revision concerns the regulation of 

emissions of oxides of nitrogen (NOX) 

and particulate matter (PM) associated 

with warehouses as indirect sources that 

attract or may attract mobile source 

emissions. The EPA is approving 

SCAQMD Rule 2305, ‘‘Warehouse 

Indirect Source Rule—Warehouse 

Actions and Investments to Reduce 

Emissions (WAIRE) Program,’’ to 

regulate these emission sources under 

the Clean Air Act (CAA or ‘‘the Act’’) as 

a SIP strengthening. 

DATES: This rule is effective October 11, 

2024. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–R09–OAR–2023–0494. All 

documents in the docket are listed on 

the https://www.regulations.gov 

website. Although listed in the index, 

some information is not publicly 

available, e.g., Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available through https://

www.regulations.gov, or please contact 

the person identified in the FOR FURTHER

INFORMATION CONTACT section for 

additional availability information. 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: La 

Kenya Evans-Hopper, EPA Region IX, 75 

Hawthorne St., San Francisco, CA 

94105; phone: (415) 972–3245; email: 

evanshopper.lakenya@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to the EPA. 

Table of Contents 

I. Proposed Action 

II. Public Comments and EPA Responses 

III. EPA Action 

IV. Incorporation by Reference 

V. Statutory and Executive Order Reviews 

I. Proposed Action 

On October 12, 2023 (88 FR 70616) 

(‘‘proposed rule’’), the EPA proposed to 

approve SCAQMD Rule 2305 as a 

revision to the SCAQMD portion of the 

California SIP. Table 1 lists the 

SCAQMD rule addressed by the 

proposed rule with the dates that it was 

adopted by the SCAQMD and submitted 

by the California Air Resources Board 

(CARB). 

TABLE 1—SUBMITTED RULE 

Local agency Rule No. Rule title Adopted Submitted 

SCAQMD ................................ 2305 Warehouse Indirect Source Rule—Warehouse Actions and 

Investments to Reduce Emissions (WAIRE) Program.

05/07/2021 08/13/2021 

As described in the proposed rule, the 

purpose of SCAQMD Rule 2305 is to 

reduce local and regional emissions of 

NOX and PM, and to facilitate local and 

regional emission reductions associated 

with warehouses and the mobile sources 

attracted to warehouses in the 

SCAQMD, to meet State and Federal air 

quality standards for ozone and fine PM 

(PM2.5).1 The rule applies within the 

jurisdiction of the SCAQMD, which 

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

Bernardino counties, and all of 

Riverside County (except for the Palo 

Verde Valley in far eastern Riverside 

County). 

Through the adoption of the 2016 

South Coast Air Quality Management 

Plan (AQMP), the SCAQMD adopted 

certain ‘‘facility-based mobile source 

measures,’’ including a measure under 

which the SCAQMD committed to 

assess and identify potential actions to 

further reduce emissions from emission 

sources associated with warehouse 

distribution centers.2 In 2019, the EPA 

approved the ozone portions of the 2016 

South Coast AQMP, including the 

commitment to develop facility-based 

mobile source measures, including the 

measure focused on warehouse 

distribution centers.3 The 2016 AQMP 

does not include an emission reduction 

estimate for the facility-based mobile 

source measure related to warehouses. 

In 2021, after assessing potential actions 

to further reduce emissions associated 


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4 88 FR 70616, 70618–70620. 

5More specifically, warehouse owners are 

required to submit Warehouse Operations 

Notifications (WONs), and warehouse operators are 

required to submit Initial Site Information Reports 

(ISIRs) and Annual WAIRE Reports (AWRs) to 

SCAQMD. The warehouse owner may choose to 

comply with the requirement to submit ISIRs or 

AWRs on behalf of the warehouse operator or may 

be required to submit the reports if they are also the 

warehouse operator. 

6Under SCAQMD Rule 2305, warehouse 

operators are required to earn WAIRE points. 

Warehouse owners may choose to earn WAIRE 

points on behalf of the warehouse operator. 

7SCAQMD Rule 2305(d)(1)(A) and Tables 1 and 

2. 

8SCAQMD Rule 2305, Table 3. 

9SCAQMD Rule 2305(d)(1) and (2). 

10 88 FR 70616, 70620–70625. 

11California Trucking Association v. South Coast 

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

#21–cv–06341 (‘‘CTA v. SCAQMD’’). 

12At the time of publication of the proposed rule, 

the legal challenge to SCAQMD Rule 2305 in the 

U.S. District Court had not yet been resolved, and 

because the Court had not ruled against the 

SCAQMD, and because there was no injunction in 

place, there were no known legal obstacles that 

would have precluded EPA’s own analysis and 

preliminary finding that the SCAQMD has adequate 

legal authority to implement the rule. Since 

publication of the proposed rule, the legal challenge 

has been resolved in SCAQMD’s favor and against 

the claims of preemption. 

13The proposed rule identified three specific 

types of deficiencies related to enforceability: two 

ambiguous definitions, the sunset clause and two 

instances of unbounded director’s discretion. 

14CTA v. SCAQMD, Order Re: Plaintiff’s Motion 

for Summary Judgment as to Plaintiff’s Complaint 

for Declaratory Judgment and Injunctive Relief (Dkt. 

65); and Plaintiff-Intervenor Airlines for America’s 

Motion for Summary Judgment (Dkt, 73), Dkt. 162, 

December 14, 2023. 

15CTA v. SCAQMD, Judgment, Dkt. 168, January 

18, 2024. https://docs.justia.com/cases/federal/ 

district-courts/california/cacdce/2:2021cv06341/ 

827779/168. 

16CTA v. SCAQMD, Order Re Joint Stipulation 

and Consent Motion to Dismiss with Prejudice (Dkt. 

166), Dkt. 167, January 18, 2024. 

with warehouse distribution centers, the 

SCAQMD adopted Rule 2305 to fulfill 

the commitment from the AQMP. 

In the proposed rule, the EPA 

described the requirements established 

by SCAQMD Rule 2305.4 Rule 2305 

applies to owners and operators of 

warehouses located in the SCAQMD 

with greater than 100,000 square feet of 

indoor floor space in a single building 

and who operate at least 50,000 square 

feet of the warehouse for warehousing 

activities. Warehouse operators are 

required either to earn points from 

specified emission reduction activities 

or to pay a mitigation fee. The points 

that warehouse operators earn are 

referred to as Warehouse Actions and 

Investments to Reduce Emissions Points 

(WAIRE Points). Warehouse facility 

owners or warehouse landowners may 

elect to opt in to earn WAIRE Points and 

transfer these points to a warehouse 

operator at the same site. Both 

warehouse facility owners and operators 

must comply with certain recordkeeping 

and reporting requirements under the 

rule.5

The principal substantive requirement 

in SCAQMD Rule 2305 is the 

requirement that each warehouse 

operator, or owner that opts in,6 meet an 

annual compliance obligation by 

earning WAIRE Points. The annual 

compliance obligation, referred to as the 

WAIRE Points Compliance Obligation 

(WPCO), for each warehouse operator, 

or owner who opts in, is calculated 

based on Weighted Annual Truck Trips 

(WATTs) multiplied by a stringency 

factor (0.0025 points per WATT) and an 

annual variable (which accounts for the 

phased implementation of the rule).7

Warehouse operators, or owners who 

opt in, are required to earn WAIRE 

Points either: through the completion of 

specified actions from the list of actions 

in the WAIRE Menu,8 through 

completion of actions in an approved 

custom plan, through payment of a 

mitigation fee, or through a combination 

of these three options.9

In the proposed rule, the EPA 

described how it evaluated SCAQMD 

Rule 2305 and the basis for the EPA’s 

preliminary conclusion that Rule 2305 

generally meets all applicable CAA 

requirements with certain exceptions.10

In support of our proposed action, the 

EPA preliminarily determined that: 

• The SCAQMD and CARB met the 

procedural requirements for adoption 

and submission of SIPs and SIP 

revisions under CAA sections 110(a)(1), 

110(a)(2), 110(l) and 40 CFR 51.102; 

• The SCAQMD has adequate legal 

authority to implement Rule 2305 under 

State law, and that SCAQMD’s 

implementation of Rule 2305 would not 

be preempted or prohibited by any State 

or Federal law. The EPA noted that the 

SCAQMD’s legal authority was the 

subject of litigation in the U.S. District 

Court 11 at the time of the proposal; 12

• SCAQMD Rule 2305 generally 

includes the elements necessary to 

provide for legal and practical 

enforceability. This includes clear 

applicability, recordkeeping, reporting, 

and exemption requirements that are 

sufficiently specific so that the persons 

affected by the regulation are fairly on 

notice as to what the requirements and 

related compliance dates are. However, 

SCAQMD Rule 2305 has certain 

deficiencies related to enforceability 13

that are the basis for the proposed 

approval as SIP-strengthening rather 

than a full approval; 

• Although the EPA did not find a 

sufficient basis to credit Rule 2305 with 

achieving a specific amount of 

emissions reductions, the EPA expects 

that SCAQMD Rule 2305 will achieve 

additional emission reductions that will 

incrementally contribute to the overall 

reductions needed to attain the Ozone 

and PM2.5 NAAQS in the South Coast 

Air Basin and Coachella Valley; 

• The sunset clause in Rule 2305 

purports to permit SCAQMD to remove 

the requirement from the EPA-approved 

SIP without the process required by 

section 110(l) at that time to support 

such removal. Failure to follow that 

process could interfere with attainment 

or reasonable further progress by 

foregoing emissions reductions needed 

for attainment or maintenance of the 

NAAQS at that future point in time; and 

• In light of adoption of SCAQMD 

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

SCAQMD will have adequate personnel 

and funding to implement Rule 2305. 

For additional details on the SIP 

submission itself and the EPA’s 

proposed action and related rationale, 

please see our proposed rule. 

In this final rule, for the reasons given 

in the proposed rule and in the 

responses to comments provided in 

section II of this document, we are 

affirming the preliminary findings from 

the proposed rule that are listed in the 

previous paragraphs and are taking final 

action to approve Rule 2305 as a SIPstrengthening measure of the SCAQMD 

portion of the California SIP. 

Since publication of the proposed 

rule, the U.S. District Court resolved the 

challenges to the SCAQMD’s legal 

authority to enforce Rule 2305 in a case 

we refer to as ‘‘CTA v. SCAQMD’’ that 

was brought by the California Trucking 

Association (CTA or ‘‘Plaintiff’’) and 

Airlines for America (A4A or ‘‘PlaintiffIntervenor’’) and that was grounded in 

alleged preemption under the CAA, the 

Airline Deregulation Act (ADA), and the 

Federal Aviation Administration 

Authorization Act (FAAAA). More 

specifically, in December 2023, the U.S. 

District Court denied motions for 

summary judgment filed by CTA and 

A4A and granted summary judgment to 

the SCAQMD with respect to the claims 

brought under the CAA, ADA, and 

FAAAA.14 In January 2024, the Court 

entered judgment in favor of the 

SCAQMD and dismissed on the merits 

the claims brought under the CAA, 

ADA, and FAAAA.15 In a separate 

order, based on a joint stipulation of the 

parties, the Court also dismissed with 

prejudice CTA’s and A4A’s remaining 

State law claims that had been included 

in the complaints.16 The time to file a 

notice of appeal of the judgment expired 


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17CTA v. SCAQMD, Defendents’ Request for 

Publication of Order Denying Plaintiff and PlaintiffIntervenor’s Motion for Summary Judgement, Dkt. 

169, March 5, 2024. 

18Supportive comment letters were submitted by 

the CARB, Clean Energy, Consumer Reports, a 

group of environmental and community groups, 

and certain members of Congress. 

19SCAQMD and the Center for Community 

Action and Environmental Justice (CCAEJ) 

submitted letters that generally support the 

proposed action but also include comments that 

object to certain aspects of the proposed action or 

rationale. SCAQMD also submitted a late comment 

that addresses some of the objections raised by 

CCAEJ, and SCAQMD’s outside counsel in the CTA 

v. SCAQMD case submitted a late comment 

consisting of the Court’s order denying the 

plaintiff’s and plaintiff-intervenor’s motions for 

summary judgment and granting summary 

judgment for the defendants. 

20Airlines for America (A4A), a group of trucking 

and business associations (collectively referred to 

herein as ‘‘California Trucking Association’’ or 

‘‘CTA’’), the Port of Long Beach (POLB), 

International Warehouse Logistics Association 

(IWLA), a representative of a third-party warehouse 

business (‘‘BAR Logistics’’), and a private citizen 

(‘‘Private Citizen’’) submitted comments that 

oppose EPA’s proposed action. 

21A private citizen submitted a comment that 

refers generally to the poor air quality conditions 

found in California but does not provide comments 

that directly relate to our proposed action. 22 88 FR 70616, 70624. 

23Memorandum dated September 23, 1987, from 

J. Craig Potter (EPA) to Addressees, Subject: 

‘‘Review of State Implementation Plans and 

Revisions for Enforceability and Legal Sufficiency,’’ 

subsection titled ‘‘Effect of Changed Conditions.’’ 

on February 20, 2024, and neither CTA 

nor A4A filed a notice of appeal.17

II. Public Comments and EPA 

Responses 

The EPA’s proposed rule provided a 

30-day public comment period. The 

EPA received a total of 14 comment 

letters or submissions in response to the 

proposed rule. Five comment letters 

were supportive of our proposed 

action.18 Two comment letters were 

generally supportive but include 

objections to certain aspects of our 

proposed action or rationale.19 Six 

comment letters or submissions 

opposed our proposed action,20 and one 

submission is not germane to our 

action.21 All the comment letters or 

submissions can be found in the docket 

for this rulemaking. In the sections that 

follow, we summarize the significant 

adverse comments that oppose or object 

to certain aspects of our proposed action 

or rationale and provide our responses. 

A. SCAQMD Comments and EPA 

Responses 

SCAQMD Comment #1: The SCAQMD 

requests the EPA to clarify that Rule 

2305, proposed as SIP strengthening 

without SIP credit, is fully federally 

enforceable. 

EPA Response to SCAQMD Comment 

#1: The EPA agrees that SCAQMD Rule 

2305 will be federally enforceable, upon 

EPA approval of the rule as part of the 

SIP. In our proposed rule, the EPA 

indicated that we had preliminarily 

found that the rule would not be ‘‘fully 

enforceable,’’ based on certain 

deficiencies that we had identified in 

Rule 2305, such as certain ambiguous 

definitions, instances of impermissible 

director’s discretion, and the sunset 

clause. The EPA noted that these 

specific deficiencies related to 

enforceability warrant a SIPstrengthening approval, rather than a 

full approval, and preclude the Agency 

from assigning SIP credit for the 

reductions resulting from Rule 2305 

until the deficiencies are resolved. The 

EPA did not mean to suggest that Rule 

2305 would not be federally enforceable 

by the SCAQMD, the EPA, and citizens 

pursuant to CAA section 304 once the 

EPA approves it as part of the SIP. 

Rather, we were referring to features of 

Rule 2305, such as the absence of 

necessary definitions, that may interfere 

with enforcement under certain 

circumstances, as discussed in more 

detail in EPA responses to SCAQMD 

Comments #2, #3 and #4. 

SCAQMD Comment #2: The SCAQMD 

requested clarification of the EPA’s 

statements in the proposal concerning 

the sunset clause in Section (h) of Rule 

2305. SCAQMD asserts that Rule 2305’s 

‘‘sunset clause’’ does not render the rule 

unenforceable prior to the time when 

the clause is invoked and the Rule’s 

requirements expire. In addition, the 

SCAQMD disagrees with the EPA’s 

finding that the sunset clause could 

interfere with attainment or reasonable 

further progress of the NAAQS under 

CAA section 110(l). The SCAQMD 

asserts that the sunset clause would 

never go into effect without an analysis 

by the SCAQMD of the potential need 

for the rule for attainment of a new 

standard or for maintenance of an 

existing standard. The Executive Officer 

will then give a recommendation to the 

SCAQMD’s Board on whether to retain 

or remove the sunset clause. 

EPA Response to SCAQMD Comment 

#2: In the EPA’s proposed rule, we 

identified the sunset clause in Rule 

2305 as a deficiency related to 

enforceability and as a feature of the 

rule that could interfere with attainment 

or reasonable further progress by 

foregoing emissions reductions that may 

be needed for attainment or 

maintenance of the NAAQS.22 The EPA 

affirms those statements in this final 

rule. However, the EPA is clarifying that 

its concern is not that the sunset clause 

implicates enforceability prior to the 

time the District invokes the sunset 

clause and the requirements of the rule 

expire. We understand that, until 

invoked, the sunset clause has no effect 

on enforceability. However, after it is 

invoked, the rule is no longer 

enforceable at all; hence, our concern in 

terms of enforceability. In this context, 

our use of the term ‘‘fully enforceable’’ 

refers to enforceability of a rule as an 

enforceable SIP requirement unless and 

until the EPA were to approve a SIP 

revision removing the provision from 

the SIP, in compliance with the 

procedural and substantive 

requirements applicable to such a SIP 

revision. For example, any future 

elimination of Rule 2305 from the SIP 

would have to entail an analysis under 

section 110(l) at that future point in 

time to assure that its removal would 

not interfere with attainment or 

reasonable further progress 

requirements for any relevant NAAQS 

or be inconsistent with any applicable 

requirements of the CAA at that future 

time. The EPA cannot approve a SIP 

provision with a sunset clause that 

would sidestep the applicable 

procedural and substantive 

requirements of the CAA and purport to 

predetermine such an outcome. The 

current sunset clause in Rule 2305 does 

not provide for that required process.23

The SCAQMD also asked for 

clarification with respect to the EPA’s 

concern that the sunset clause is a 

feature of the rule that could interfere 

with attainment or reasonable further 

progress because SCAQMD could 

potentially invoke it at a time when the 

emissions reductions associated with 

the rule would still be needed for such 

purposes for one or more NAAQS at that 

future point in time. To find the sunset 

clause acceptable at this time for this 

rulemaking, the EPA would need to 

determine that the sunset clause would 

not interfere with attainment or 

reasonable further progress or any other 

requirement of the CAA when, 

sometime in the future, it is invoked. 

But the EPA has no basis to make such 

a determination at the present time 

because we have no basis for knowing 

the precise conditions relative to CAA 

requirements that will exist in the South 

Coast Air Basin in the future when the 

District may seek to invoke the sunset 

clause. The EPA acknowledges the 

internal safeguards that SCAQMD has 

imposed upon itself in the sunset clause 

to prevent such interference. But we 

conclude that unilateral action on the 

part of the SCAQMD itself as 

contemplated in the sunset clause does 

not suffice to meet procedural and 

substantive requirements that would be 


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24 88 FR 70616, 70619. 

25A potential remedy would be to remove ‘‘as 

determined by the Executive Officer’’ from the 

provision and add definitions in Rule 2305 for the 

terms ‘‘quantifiable,’’ ‘‘verifiable,’’ and ‘‘real.’’ Also, 

both Sections (d)(4)(A)(ii) and (d)(4)(A)(iii) in Rule 

2305 rely on the WAIRE Program Implementation 

Guidelines to determine the WAIRE Points for a 

given action under a Custom WAIRE Plan. As such, 

to fully address the issue of insufficiently bounded 

director’s discretion in Rule 2305, the SCAQMD 

should adopt and submit the WAIRE Program 

Implementation Guidelines to the EPA as a SIP 

revision. 

applicable to a revision of the SIP to 

eliminate Rule 2305, including a 

determination that rescission of the rule 

would not interfere with attainment or 

reasonable further progress of the 

NAAQS at that future point in time. To 

resolve this issue, the SCAQMD must 

remove the sunset clause and then, in 

the future, if the SCAQMD chooses to 

rescind Rule 2305, follow the normal 

course of action in rescinding rules from 

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

EPA approval in accordance with 

applicable procedural and substantive 

requirements, including CAA section 

110(k) and section 110(l). 

SCAQMD Comment #3: The SCAQMD 

does not agree with the proposed rule 

with respect to where the EPA finds that 

instances of director’s discretion in the 

Custom WAIRE Plan option may impair 

enforceability of the rule. The SCAQMD 

contends that Rule 2305 does not grant 

the District’s Executive Officer 

‘‘unilateral and unbounded’’ discretion 

to determine Rule compliance. The 

SCAQMD states that Rule 2305 sets 

forth detailed, objective requirements 

for all aspects of Custom WAIRE Plans, 

including the contents of the 

application for such a plan, the 

District’s review and approval of the 

application, and the tracking of the 

applicant’s progress in completing the 

actions approved as part of the Custom 

WAIRE Plan. 

The SCAQMD stated that Rule 2305 

includes provisions that authorize the 

Executive Officer to make only two 

limited determinations regarding 

Custom WAIRE Plans. The SCAQMD 

contends that in neither case is the 

Executive Officer’s discretion 

‘‘unilateral and unbounded.’’ First, in 

directing the Executive Officer to assess 

whether the emissions reductions 

associated with a Custom WAIRE Plan 

are ‘‘quantifiable, verifiable, and real,’’ 

the SCAQMD states that the Rule 

articulates well-understood criteria of 

the kind that the EPA has already 

approved for inclusion in the SIP many 

times before. The SCAQMD also notes 

that, under Section (d)(4)(B)(v), it also 

must make Custom WAIRE Plans 

available for public review for 30 days 

before the Executive Officer can approve 

them, during which time interested 

parties, including the EPA, can 

comment on whether a proposed plan 

satisfies the Rule’s criteria. 

Second, the SCAQMD notes that the 

provision of Rule 2305 that directs the 

Executive Officer to determine whether 

a warehouse operator is ‘‘making 

adequate progress’’ to complete an 

approved Custom WAIRE Plan also 

requires that the District provide 30 

days’ notice to the owner or operator 

and an explanation of any deficiencies 

in implementation before the District 

can rescind the Custom WAIRE Plan. If 

the warehouse operator or owner 

ultimately withdraws the Custom 

WAIRE Plan, the warehouse operator 

must comply with Rule 2305 via the 

WAIRE Menu or the mitigation fee 

options, neither of which involves 

Executive Officer discretion. Thus, the 

SCAQMD contends that any exercise of 

discretion in this instance can only 

serve to protect air quality by requiring 

the warehouse operator to comply with 

other options; it would not grant the 

operator any flexibility not provided 

expressly in Rule 2305. In short, in 

SCAQMD’s view, nothing about the 

Custom WAIRE Plan provisions impairs 

the Federal enforceability of the Rule. 

EPA Response to SCAQMD Comment 

#3: In EPA’s proposed rule, we 

identified two specific instances of 

director’s discretion provisions in 

connection with the Custom WAIRE 

Plan option under Rule 2305 and 

preliminarily concluded that these 

provisions are impermissible because 

they would give unbounded authority to 

SCAQMD to make changes that the EPA 

cannot evaluate the impact of and 

because they may impair enforceability 

of the rule.24 The EPA has reviewed the 

SCAQMD’s comment on this issue and 

the related citations provided by the 

SCAQMD. The EPA’s evaluation of 

these comments has caused the agency 

to revise its view of one of the two 

provisions and also identified an 

additional potential impermissible 

director’s discretion provision within 

Rule 2305. 

Based on that review, for reasons 

given below, we affirm our finding that 

the Executive Officer’s discretion to 

determine whether WAIRE Points from 

a Custom WAIRE Plan are ‘‘quantifiable, 

verifiable, and real’’ is insufficiently 

bounded, but we now agree that the 

Executive Officer’s discretion to 

determine whether a warehouse owner 

or operator is making adequate progress 

to complete an approved Custom 

WAIRE Plan is appropriately bounded 

in a way that the EPA can approve. 

First, with respect to the Executive 

Officer’s discretion to determine 

whether WAIRE Points from a Custom 

WAIRE Plan are ‘‘quantifiable, 

verifiable, and real,’’ we note that the 

language in Rule 2305(d)(4)(A)(iii) gives 

the Executive Officer of SCAQMD the 

sole authority to determine whether 

emissions reductions are valid, does not 

impose specific standards or parameters 

for such a determination, and thus 

potentially impedes the EPA and the 

public from enforcing this provision in 

the event either were to disagree with 

the District’s conclusion about the 

validity of the emission reductions.25

We acknowledge Section (d)(4)(B)(v) of 

Rule 2305 as providing for public 

review of Custom WAIRE Plan 

applications prior to the SCAQMD 

approval, but we do not find the public 

process provided on individual 

applications to be a substitute for 

provisions in the rule that limit the 

Executive Officer’s exercise of 

discretion within adequate specific 

boundaries. Moreover, without such 

boundaries and without an analysis of 

the potential impacts that exercise of 

this discretion could have, the EPA 

cannot evaluate the consequences of 

this director’s discretion feature of Rule 

2305 and what that could mean in terms 

of stringency, emission reduction credit, 

and other important considerations for 

approval of a SIP provision. Thus, this 

provision contains impermissible 

director’s discretion that is inconsistent 

with CAA requirements. 

In its comments, the SCAQMD 

asserted that the terms ‘‘quantifiable, 

verifiable, and real’’ are, ‘‘wellunderstood criteria of the kind that EPA 

has already approved for inclusion in 

the SIP many times before’’ and cites 

SCAQMD Rule 1309, ‘‘Emission 

Reduction Credits,’’ Bay Area AQMD 

Rule 2–2–605.1, ‘‘New Source Review,’’ 

and San Joaquin Valley UAPCD Rule 

2201, ‘‘New and Modified Stationary 

Source Review Rule.’’ These rules 

pertain to the pre-construction New 

Source Review (NSR) permitting 

program that generally requires that 

offsets needed under the program are 

real, quantifiable, surplus, permanent, 

and federally enforceable. However, for 

example, SCAQMD’s definitions rule for 

its NSR program, Rule 1302, defines 

‘‘quantifiable emissions,’’ ‘‘permanent,’’ 

and ‘‘federally enforceable.’’ These 

definitions are not applicable to 

SCAQMD Rule 2305, and, notably, 

‘‘verifiable’’ is not a term commonly 

used in the NSR program. Thus, the 

EPA disagrees that the ostensible 

understood meaning of these terms 

negates the director’s discretion 

concerns about Section (d)(4)(A)(iii). 


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26 88 FR 70616, 70618. 

27El Comite ́ Para el Bienestar de Earlimart v. 

Warmerdam, 539 F.3d 1062 (9th Cir. 2008) (CAA 

enforcement by citizen group of requirements 

precluded because, while cited in connection with 

the EPA’s approval of the SIP, the specific 

requirements were not incorporated into SIP). 

28 88 FR 70616, 70623. On August 8, 2023, CARB 

submitted the Advanced Clean Trucks Regulation, 

which includes one of the two CCR sections, 13 

CCR section 1963, to the EPA for approval as a SIP 

revision. 

The provision would authorize the 

Executive Officer unilaterally to make 

key determinations that would bind the 

EPA and other parties and potentially 

interfere with enforcement of the 

requirements of Rule 2305. 

Second, with respect to the Executive 

Officer’s discretion to determine that a 

warehouse facility owner or operator is 

not making adequate progress to 

complete an approved Custom WAIRE 

Plan as provided in Rule 2305(d)(4)(D), 

after consideration of SCAQMD’s 

comments on the proposal we find that 

this is not an impermissible director’s 

discretion provision. Based upon 

additional explanation in SCAQMD’s 

comments, we now agree that the 

discretion within this specific provision 

is sufficiently bounded and that the 

consequences of exercise of the 

authority can be adequately understood 

and evaluated by the EPA at the time of 

this approval. SCAQMD has explained 

that the scope of this discretion is 

limited to the issue of whether or not 

the regulated party has made sufficient 

progress to complete a Custom WAIRE 

Plan. Although there are no specific 

regulatory definitions or other 

guideposts to specify what would 

constitute sufficient progress, the EPA 

concludes that in this instance the scope 

of discretion is itself limited in a way 

that does not functionally authorize 

SCAQMD to revise Rule 2305 without 

meeting proper procedural requirements 

or interfere with potential enforcement 

of the requirements of Rule 2305. In the 

event that the Executive Officer were to 

conclude that a warehouse facility 

owner or operator is not making 

adequate progress to complete an 

approved Custom WAIRE Plan (‘‘Plan’’) 

and rescinds approval of the Plan, then 

the warehouse owner or operator must 

still comply with Rule 2305 under the 

remaining options provided in the rule. 

Thus, at the time of this approval the 

EPA can evaluate the boundaries on the 

exercise of discretion and can anticipate 

what the potential impacts would be on 

Rule 2305 were the Executive Officer to 

exercise this particular form of 

discretion. 

Further, we note that, under Section 

(d)(4)(E), Rule 2305 provides that, if the 

expected WAIRE Points from an 

approved Custom WAIRE Plan are not 

earned during the applicable 

compliance period, the warehouse 

facility owner or operator whose 

Custom WAIRE Plan was approved shall 

be in violation of this rule unless the 

owner or operator demonstrates that 

they have met their Warehouse Points 

Compliance Obligation by the date that 

they submit their Annual WAIRE Report 

using WAIRE Points earned through 

completion of actions listed in the 

WAIRE menu or through mitigation 

fees. Thus, Rule 2305 provides for 

consequences for failure to complete an 

approved Custom WAIRE Plan even if 

the Executive Officer fails to exercise 

discretion where warranted to make the 

determination under Section (d)(4)(D) of 

Rule 2305 that a warehouse facility or 

land owner or operator is not making 

adequate progress. 

Finally, the EPA’s review of Rule 

2305 in light of SCAQMD’s comments 

concerning the director’s discretion 

issue caused us to examine the 

provisions of the rule again more 

closely. In the proposal, we had noted 

that Section (g)(3) provides that the 

Executive Officer can grant full or 

partial exemptions from compliance 

with the WAIRE Points requirements of 

Rule 2305 under certain 

circumstances.26 In the event of 

unforeseen circumstances that are 

beyond the control of the owner or 

operator, the owner or operator may 

apply for a partial or full exemption. 

Although Section (g)(3) imposes some 

boundaries on this authority, it would 

nevertheless operate to allow the 

Executive Officer unilaterally to excuse 

violations of Rule 2305. 

The State and District have adopted 

Rule 2305 applicable to owners or 

operators of warehouses to achieve 

emission reductions to help provide for 

attainment and maintenance of the 

NAAQS. To the extent that Rule 2305 is 

a SIP emission limitation, it must meet 

the definition of that term in CAA 

section 302(k), which provides that it 

must be continuous. If a SIP provision 

is an emission limitation, to be 

continuous it could not include an 

exemption for malfunctions, such as 

that provided in Section (g)(3), 

including ad hoc exemptions that the 

Executive Officer might grant through 

exercise of director’s discretion. Such 

exemption decisions would be binding 

on other parties and thus impede 

potential enforcement actions by the 

EPA or others that may not agree with 

the decision of the Executive Officer, 

thereby interfering with enforcement by 

the EPA and other parties and imposing 

the enforcement discretion decisions of 

the Executive Officer on the EPA and 

other parties. 

SCAQMD Comment #4: The SCAQMD 

acknowledges that the definitions in 

Rule 2305 for the terms ‘‘Near-Zero 

Emission (NZE) Trucks’’ and ‘‘ZeroEmission (ZE) Trucks’’ rely on sections 

of the California Code of Regulations 

(CCR) that are not part of the SIP but 

disagrees that such reliance may make 

the terms ambiguous, which in turn may 

have implications for enforceability. 

EPA Response to SCAQMD Comment 

#4: In EPA’s proposed rule, the EPA 

noted that two critical definitions in 

Rule 2305 rely on cross-references to 

CCR sections that are not approved as 

part of the SIP, and thus, the definitions 

could be ambiguous for the purposes of 

enforcement of the SIP. As a basic 

principle, the EPA believes that all SIP 

provisions should be clear and 

unambiguous to assure that regulated 

entities, regulators, and courts can have 

a common understanding of the 

requirements. Failure to incorporate 

into the SIP definitions of key terms can 

lead to unintended and unnecessary 

ambiguities in a SIP provision that may 

only come to light later. It is possible 

that, in an enforcement proceeding for 

SIP requirements, a court may judicially 

notice CCR sections that are not part of 

the SIP but that a SIP rule crossreferences, to interpret the terms at 

issue. However, case law warrants 

caution in the context of reliance on 

out-of-SIP materials in a SIP 

enforcement proceeding.27

The EPA acknowledges that the 

existing cross references to CCR 

provisions outside Rule 2305 do provide 

definitions of these terms, but this fact 

also raises a different issue. Because the 

CCR sections at issue are not part of the 

approved SIP, the EPA is concerned that 

CARB could revise these defined terms 

outside of the statutory SIP revision 

process thereby potentially amending 

Rule 2305 (through the cross-reference 

to the CCR sections) unilaterally also 

outside of the SIP revision process. 

Inclusion of necessary definitions 

within the SIP provision itself, or 

otherwise submitting them for inclusion 

in the SIP, obviates these potential 

problems. Thus, the EPA affirms our 

statements in the proposed rule as to 

these two definitions. However, the EPA 

anticipates that CARB will be 

submitting the CCR definitional sections 

on which Rule 2305 relies for inclusion 

into the SIP and that the issue will be 

resolved upon the EPA’s approval of the 

definitions as part of the SIP.28

SCAQMD Comment #5: The SCAQMD 

comments that the proposed rule 

incorrectly describes the WAIRE 

Program Online Portal (POP) as 


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29The California Public Records Act is a State law 

that provides the public the right to inspect and the 

right to promptly obtain copies of ‘‘public records.’’ 

The California Public Records Act does not provide 

for creation or preparation of a record that does not 

exist at the time of the request. The California 

Public Records Act can be found at California 

Government Code sections 7920–7931. 

30 In this instance, SCAQMD Rule 2305 was 

submitted to the EPA as a SIP revision on August 

13, 2021, and was deemed complete by operation 

of law on February 13, 2022. In July 2023, we were 

sued for failure to take action within the prescribed 

period. See Center for Community Action and 

Environmental Justice v. EPA, 23-cv-03571, U.S. 

District Court, Northern District of California. 

31See CAA section 110(a)(2)(E). 

32 88 FR 70616, 70620–70623. 

33As noted previously in this document, in 

December 2023, the U.S. District Court denied 

motions for summary judgment filed by CTA and 

A4A and granted summary judgment to the 

SCAQMD with respect to the claims brought under 

the CAA, ADA, and FAAAA. Subsequently, the 

Court has entered judgment in favor of the 

SCAQMD and dismissed on the merits the claims 

brought under the CAA, ADA, and FAAAA, and by 

separate order, the Court also dismissed with 

prejudice CTA’s and A4A’s remaining State law 

claims that had been included in the complaint. No 

appeal was filed in this case. 

34 88 FR 70616, 70622–70623. 

providing the public information about 

how warehouse operators and owners 

are complying with Rule 2305 and how 

WAIRE Mitigation Program funds are 

spent. SCAQMD clarifies that the 

function and purpose of the WAIRE 

POP is to collect information from 

regulated entities (warehouse owners 

and operators), not to provide or 

distribute information about the WAIRE 

Program to the public. The SCAQMD 

indicates that it has created a separate 

web page to provide information on the 

WAIRE Program to the public. That page 

hosts links to various resources related 

to the WAIRE Program, including the 

WAIRE Program’s annual report. The 

SCAQMD indicates that it is evaluating 

a proposal to include additional WAIRE 

Program data, including aggregated 

information about compliance 

obligations and completed compliance 

actions, in its Facility Information Detail 

(‘‘FIND’’) tool. 

EPA Response to SCAQMD Comment 

#5: The EPA appreciates the 

clarification by the SCAQMD regarding 

the function and purpose of the WAIRE 

POP. The EPA understands that a 

separate web page created by the 

SCAQMD provides the public with 

certain information about the WAIRE 

program. In addition, the public may 

request access to WAIRE data not 

available on-line from SCAQMD, such 

as the periodic reports that warehouse 

owners and operators are required to 

submit to the SCAQMD under Rule 

2305, through the California Public 

Records Act requests under State law.29

While there is no CAA requirement that 

such data be made available on-line, the 

EPA notes that making such data 

available on-line would allow the public 

to access the information in a more 

timely manner than making a request 

under the California Public Records Act. 

B. The Port of Long Beach (POLB) 

Comments and EPA Responses 

POLB Comment #1: Referring to the 

CTA v. SCAQMD case, the POLB asserts 

that it is improper for the EPA to issue 

a rule interpreting SCAQMD’s legal 

authority to adopt and implement an 

indirect source review (ISR) rule while 

a legal action brought by CTA 

concerning the validity of the rule is 

pending. The POLB contends that the 

EPA should defer taking action until the 

judiciary resolves the pending litigation. 

EPA Response to POLB Comment #1: 

The EPA disagrees that it is improper 

for us to take action on a SIP submission 

in a situation where the State or local 

rules submitted for approval into the 

SIP are subject to a pending legal 

challenge. First, CAA section 110(k) 

requires the EPA to take action on 

submissions no later than 12 months 

after the EPA finds the submission 

complete or it becomes complete by 

operation of law. If the EPA does not act 

within the prescribed period, the EPA 

may be subject to a deadline lawsuit to 

compel that action. The CAA does not 

provide additional time for EPA action 

on a submission merely because there is 

a pending legal challenge related to 

some aspect of the SIP submission.30

More importantly, however, EPA 

separately considered the legal authority 

issue involved in the then pending 

litigation to which the commenter 

referred. Pursuant to CAA section 

110(a)(2)(E), a necessary part of the 

EPA’s evaluation of a SIP submission is 

whether the submission includes 

necessary assurances that the State (or 

District, in this case) has adequate 

authority under State law to carry out 

such SIP submission and is not 

prohibited by any provision of Federal 

or State law from doing so.31 For this 

rulemaking action, the EPA needed to 

address the issue of whether the State 

and District have adequate legal 

authority under State law to implement 

SCAQMD Rule 2305, and whether the 

State or District was prohibited by any 

Federal or State law from implementing 

Rule 2305, as part of the basis for 

proposing approval or disapproval of 

SCAQMD Rule 2305 under CAA section 

110(k). The mere fact of a pending 

judicial challenge does not impede EPA 

from making a determination that the 

State and District have provided 

necessary assurances that they have 

adequate authority. The EPA set forth its 

evaluation of the State and District’s 

explanation of their authority for Rule 

2305 in the proposal rule.32

Lastly, the EPA notes that, in any 

event, the CTA v. SCAQMD case to 

which the POLB refers has been 

resolved in favor of the SCAQMD, and 

we have taken the Court’s actions into 

account in finalizing approval of 

SCAQMD Rule 2305 as a revision to the 

California SIP.33 In short, the court’s 

actions confirmed the EPA’s view that 

the State and district are not prohibited 

by any Federal law from carrying out 

Rule 2305 and thus have provided the 

necessary assurances of adequate legal 

authority for Rule 2305 for the purposes 

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

POLB Comment #2: The POLB objects 

to the EPA’s evaluation in the proposed 

rule of the legal authority of the 

SCAQMD to implement Rule 2305 and 

asserts that SCAQMD Rule 2305 is 

preempted because, although styled as 

an ISR rule, it directly regulates mobile 

sources and ‘‘compels the manufacturer 

or user to change emission control 

design of mobile sources or creates 

incentives so onerous as to in effect be 

a purchase mandate.’’ The POLB states 

that Rule 2305 does both of these and 

is, therefore, preempted by the CAA. 

EPA Response to POLB Comment #2: 

As to the issue of whether SCAQMD 

Rule 2305 represents a legitimate ISR 

rule as authorized by CAA section 

110(a)(5), we considered whether Rule 

2305 represents a de facto purchase 

requirement for ZE or NZE trucks and 

thus whether it might be preempted 

under CAA section 209(a).34 In the 

EPA’s proposed rule, we preliminarily 

concluded that, in adopting Rule 2305, 

the SCAQMD has not adopted or 

attempted to enforce any standard 

relating to the control of emissions from 

new motor vehicles or new motor 

vehicle engines preempted by CAA 

section 209(a). 

The EPA based its preliminary 

conclusion, in part, on the similarities 

between SCAQMD Rule 2305 and the 

ISR rule at issue in the National 

Association of Home Builders v. San 

Joaquin Valley Unified Air Pollution 

Control District, 627 F.3d 730 (9th Cir. 

2010) (NAHB v. SJVUAPCD) case, 

including the design of Rule 2305 to 

regulate at the level of the indirect 

source, not at the level of mobile 

sources the indirect source may attract. 

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

of emissions, and the required reduction 

in emissions from that baseline, are both 

calculated in terms of the [indirect 


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35 88 FR 70616, 70622, citing NAHB v. 

SJVUAPCD, 627 F.3d 730, 737. 

36 88 FR 70616, 70622, citing NAHB v. 

SJVUAPCD, 627 F.3d 730, 739. 

37Engine Manufacturers Ass’n v. South Coast Air 

Quality Management District, 541 U.S. 24655 (2004) 

(‘‘EMA’’). In EMA, the Supreme Court held that a 

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

Court described as ‘‘a requirement that a vehicle or 

engine not emit more than a certain amount of 

pollutant, be equipped with a certain type of 

pollution-control device, or have some other design 

feature related to the control of emissions,’’ is 

preempted under Section 209(a) whether applied to 

manufacturers through a sales mandate or to buyers 

through a purchase mandate. EMA, at 253–255. 

38CTA v. SCAQMD, Judgment, Dkt. 168, January 

18, 2024. 

39CTA v. SCAQMD, Order Re: Plaintiff’s Motion 

for Summary Judgment as to Plaintiff’s Complaint 

for Declaratory Judgment and Injunctive Relief (Dkt. 

65); and Plaintiff-Intervenor Airlines for America’s 

Motion for Summary Judgment (Dkt, 73), Dkt. 162, 

December 14, 2023), pp. 19–29. 40 88 FR 70616, 70622. 

41 627 F.3d at 738 (citing Sierra Club v. Larson, 

2 F.3d 462, 467 (1st Cir. 1993)). 

42 88 FR 70616, 70622. 

source site] as a whole.’’ 35 This ‘‘sitebased’’ approach to regulating emissions 

‘‘is precisely what allows the Rule to 

avoid preemption under section 

209(e)(2).’’ 36 That Rule 2305 is properly 

characterized as an ISR program under 

CAA section 110(a)(5) distinguishes it 

from the vehicle purchase mandate at 

issue in the Supreme Court EMA case.37

In addition, the EPA considered that 

Rule 2305 lacks the indicia of a de facto 

regulation of either motor vehicles or 

nonroad vehicles or engines. As 

explained further in the proposed rule, 

Rule 2305 applies to warehouse 

operators and provides multiple options 

for meeting the annual WPCO, a metric 

that is based not on truck emissions but 

on truck trips. The number of truck 

visits is used in Rule 2305 because it is 

representative of the total activity at, 

and emissions associated with, a 

warehouse. The various options 

available (WAIRE Menu, Custom 

WAIRE Plan, or Mitigation Fee) to 

warehouse operators that do not involve 

acquisition of, or contracting for, ZE or 

NZE trucks to earn WAIRE Points 

further support a conclusion that in 

Rule 2305, the SCAQMD has not 

adopted or attempted to enforce any 

standard relating to the control of 

emissions from new motor vehicles or 

new motor vehicle engines preempted 

by CAA section 209(a). 

Regardless of the commenter’s 

assertions about alleged preemption, in 

the months following publication of the 

proposed rule, the U.S. District Court 

entered judgment in favor of the 

SCAQMD in the CTA v. SCAQMD case 

and dismissed on the merits the claims 

brought against SCAQMD’s adoption of 

Rule 2305 under the CAA, ADA and 

FAAAA.38 For this final rule, we have 

reviewed the decision 39 of the District 

Court and find that it supports our 

preliminary conclusion set forth in the 

proposed rule that the SCAQMD is not 

prohibited from implementing Rule 

2305 under the CAA. Moreover, we are 

aware of no other legal challenge to Rule 

2305 that might prevent SCAQMD from 

carrying out Rule 2305. Therefore, the 

EPA affirms in this final rule our 

conclusion that, in adopting Rule 2305, 

the SCAQMD has not adopted or 

attempted to enforce any standard 

relating to the control of emissions from 

new motor vehicles or new motor 

vehicle engines preempted by CAA 

section 209(a). 

POLB Comment #3: The POLB further 

asserts that the EPA’s reliance on the 

decision in National Association of 

Home Builders v. San Joaquin Valley 

Unified Air Pollution Control District, 

627 F.3d 730, 737–738 (9th Cir. 2010) is 

misplaced because the ISR regulation at 

issue in that case applied to new 

sources whereas SCAQMD Rule 2305 

applies to both new and existing 

warehouses. Moreover, the POLB states 

that the omission of the word ‘‘existing’’ 

in CAA section 110(a)(5)(D) indicates 

that Congress intended to exclude 

existing sources from ISR. 

EPA’s Response to POLB Comment 

#3: With respect to the issue of whether 

ISR programs as described in CAA 

section 110(a)(5) may apply to existing 

as well as new or modified indirect 

sources, the EPA first notes that the EPA 

did not rely on the decision in NAHB 

v. SJVUAPCD in evaluating this 

particular issue. Instead, in the 

proposed rule, the EPA discussed how 

the Agency considered this particular 

issue by evaluating the statutory 

language in CAA sections 110(a)(5)(D), 

(E) and 116.40 More specifically, the 

EPA acknowledged that the language of 

CAA section 110(a)(5) does not 

explicitly answer the question whether 

States may include both existing and 

new sources and cited, as an example, 

the statutory language in CAA section 

110(a)(5)(D) cited by the POLB. 

As explained in the preamble to the 

proposed rule, CAA section 110(a)(5)(D) 

in relevant part defines an indirect 

source review program as one 

‘‘including’’ such measures as new or 

modified sources. The EPA does not, 

however, read this definition to restrict 

States from having such programs that 

extend to existing sources if they elect 

to do so. Instead, the use of the term 

‘‘including’’ preceding the reference to 

‘‘new or modified indirect source’’ 

indicates that regulation of new or 

modified indirect sources is illustrative 

of the scope of this provision, not 

limiting. The EPA also noted the 

statutory language in CAA section 

110(a)(5)(C), which defines ‘‘indirect 

source’’ more broadly to encompass 

both existing and new sources, and CAA 

section 116, which explicitly provides 

that States retain authority to regulate 

more stringently in SIP provisions than 

otherwise required by Federal law, 

except where preempted from doing so. 

The EPA continues to find that the best 

reading of this language is that States 

may include existing sources as a 

permissible category within a CAA 

indirect source program. The POLB does 

not address the EPA’s discussion of 

either CAA section 110(a)(5)(D) or CAA 

section 116 in its comments. 

Moreover, as the Ninth Circuit 

observed in NAHB, the purpose of 

Congress’s enactment of the indirect 

source review provisions in section 

110(a)(5) was ‘‘to return power to states 

and localities’’ over indirect source 

programs.41 This purpose further 

corroborates EPA’s view that the best 

reading of the Act does not preclude a 

State’s ability to adopt an indirect 

source review program that covers 

existing sources. 

In the EPA’s proposed rule, upon its 

review of CAA section 110(a)(5), the 

EPA acknowledged that the statutory 

language does not clearly indicate 

whether Congress actually intended the 

definition of ‘‘indirect source program’’ 

to function as a restriction on the ability 

of States to adopt an indirect source 

program that extends to existing sources 

as well as new or modified sources and 

for the EPA to have authority to in turn 

approve such a program into the State’s 

SIP. The EPA indicated that the EPA did 

not consider such a restrictive reading 

of the provision to be reasonable or 

logical, absent a clearer prohibition.42

That is, read in light of the abovedescribed statutory context and 

purpose, the best reading of the statute 

is that States may establish indirect 

source programs for new and modified 

sources, as well as existing sources. 

POLB Comment #4: The POLB also 

states that the EPA does not have the 

experience or expertise to interpret the 

ADA or the FAAAA, and its opinion 

regarding preemption concerning these 

laws is outside the EPA’s purview. 

EPA’s Response to POLB Comment 

#4: Under CAA section 110(a)(2)(E), the 

EPA must evaluate SIP submissions to 

ensure that the State has provided 

necessary assurances that the State (or 

District, in this case) is not prohibited 

by any provision of State or Federal law 

from carrying out the SIP or SIP revision 

(in this case, Rule 2305). The SIP 


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43CTA v. SCAQMD, Judgment, Dkt. 168, January 

18, 2024. 

44CTA v. SCAQMD, Order Re: Plaintiff’s Motion 

for Summary Judgment as to Plaintiff’s Complaint 

for Declaratory Judgment and Injunctive Relief (Dkt. 

65); and Plaintiff-Intervenor Airlines for America’s 

Motion for Summary Judgment (Dkt, 73), Dkt. 162, 

December 14, 2023), pp. 29–34. 

45West Virginia v. EPA, 597 U.S. 697 (2022). 

46 Id., at 700, citing FDA v. Brown & Williamson 

Tobacco Corp., 529 U.S. 120, 159–160 (2000). 

47 Id., citing Utility Air Regulatory Group v. EPA, 

573 U.S. 302, 324 (2014). 

48See CTA v. SCAQMD, Order Re: Plaintiff’s 

Motion for Summary Judgment as to Plaintiff’s 

Complaint for Declaratory Judgment and Injunctive 

Relief (Dkt. 65); and Plaintiff-Intervenor Airlines for 

America’s Motion for Summary Judgment (Dkt, 73), 

Dkt. 162, December 14, 2023), at 34 (‘‘Even if this 

argument has not been waived, the major questions 

doctrine, as applied by the Supreme Court, applies 

to the balance of power between Congress and 

Federal agencies, not the balance of power between 

the Federal Government and the States. Moreover, 

the premise for the major questions doctrine 

suggests that Congress could not effectively 

preempt the States’ traditional authority to regulate 

indirect sources of air pollution unless it used clear 

language to that effect.’’). 

49Our conclusion is further supported by the 

decision in the CTA v. SCAQMD case. See, CTA v. 

SCAQMD, Order Re: Plaintiff’s Motion for Summary 

Judgment as to Plaintiff’s Complaint for Declaratory 

Judgment and Injunctive Relief (Dkt. 65); and 

Plaintiff-Intervenor Airlines for America’s Motion 

for Summary Judgment (Dkt, 73), Dkt. 162, 

December 14, 2023, p. 28 (‘‘Nothing in the text, 

structure, or purpose of the indirect-source-review 

provision suggests that this phrase limits indirect 

source reviews to those based on new and modified 

indirect sources’’). 

50Letter dated May 6, 2021, from Robert 

Swanson, Deputy Attorney General, California 

Department of Justice, to Ellen Peter, Chief Counsel, 

CARB, included as an enclosure to a letter dated 

May 6, 2021, from Ellen M. Peter, to Wayne Nastri, 

Executive Officer, SCAQMD. 

51See 88 FR 70616, 70621. The POLB notes that 

the decision in National Association of Home 

Builders v. San Joaquin Valley Unified Air Pollution 

Control District, 627 F.3d 730 (9th Cir. 2010) 

(‘‘NAHB v. SJVUAPCD’’) was decided before 

Proposition 26 amended the State Constitution to 

provide for voter approval of certain levies or 

charges as a tax except for certain enumerated 

exceptions. The EPA’s evaluation of the issue of 

whether the mitigation fee represents an unlawful 

tax under State law does not rely on the decision 

in NAHB v. SJVUAPCD but relies instead on the 

legal analysis from the State Attorney General’s 

Office. 

52Letter dated May 6, 2021, from Robert 

Swanson, Deputy Attorney General, California 

Continued 

submission for SCAQMD Rule 2305 

includes the District’s documentation of 

comments submitted during the 

District’s rule adoption process and the 

District’s responses to those comments. 

Through the EPA’s review of this 

material, the EPA was made aware of 

the claims regarding possible 

preemption under the ADA or FAAAA, 

and thus, in accordance with section 

110(a)(2)(E), we made a preliminary 

judgment about possible preemption (in 

the context of assuring that no Federal 

or State law prevented the carrying out 

of the SIP) to provide an appropriate 

basis to propose approval of SCAQMD 

Rule 2305 under CAA section 110(k). 

Regardless of the commenter’s 

assertions about alleged preemption, in 

the months following publication of the 

proposed rule, the U.S. District Court 

entered judgment in favor of the 

SCAQMD in the CTA v. SCAQMD case 

and dismissed on the merits the claims 

brought against SCAQMD’s adoption of 

Rule 2305 under the CAA, ADA and 

FAAAA.43 For this final rule, we have 

reviewed the decision 44 of the District 

Court and find that it supports our 

preliminary conclusion set forth in the 

proposed rule that the SCAQMD is not 

prohibited from implementing Rule 

2305 under the ADA or FAAAA for the 

purpose of CAA section 110(a)(2)(E). 

Moreover, we are aware of no other legal 

challenge to Rule 2305 that might 

prevent SCAQMD from carrying out 

Rule 2305. Lastly, we note that we 

consulted with the U.S. Department of 

Transportation on our responses to 

comments related to ADA and FAAAA 

preemption in this final rule. Therefore, 

the EPA affirms in this final rule the 

conclusion that the SCAQMD is not 

prohibited from implementing Rule 

2305 under the ADA or FAAAA. 

POLB Comment #5: Citing the 

Supreme Court’s decision in West 

Virginia v. EPA,45 the POLB also states 

that the EPA’s view that SCAQMD Rule 

2305 should be upheld absent a ‘‘clearer 

prohibition’’ in the CAA conflicts with 

the ‘‘major questions doctrine’’ in which 

an executive agency cannot regulate 

unless it can ‘‘point to clear 

congressional authorization’’ to do so. 

EPA’s Response to POLB Comment 

#5: The POLB raises this particular 

objection to the EPA’s proposed 

approval in a single sentence and fails 

to elaborate on how the EPA’s action 

conflicts with the major questions 

doctrine. In any event, the EPA does not 

believe the major questions doctrine is 

applicable here. 

The major questions doctrine 

provides that in extraordinary cases 

involving statutes that confer authority 

upon an administrative agency, the 

‘‘history and the breadth of the authority 

that [the Agency] has asserted,’’ and the 

‘‘economic and political significance’’ of 

that assertion, provide a ‘‘reason to 

hesitate before concluding that 

Congress’’ meant to confer such 

authority.46 In such cases, the agency 

must point to ‘‘clear congressional 

authorization’’ for the authority it 

claims.47 As an initial matter, the 

POLB’s comment fails to address with 

specificity why it believes the major 

questions doctrine applies at all. For 

example, the POLB’s comment does not 

speak to the economic or political 

significance that would result from the 

approval of Rule 2305 into the SIP, 

much less allege that such impacts rise 

to a level that could implicate the major 

questions doctrine. Nor does the POLB 

explain how the EPA’s approval of a 

local government rule in a SIP that 

meets the requirements of the CAA 

amounts to a transformative expansion 

of Federal regulatory authority. The 

absence of these factors refutes the idea 

that the major questions doctrine is 

implicated by this final rule. The 

interpretation of CAA section 110(a)(5) 

set forth in the proposed rule and again 

in this final rule does not broaden EPA’s 

authority to any degree. Rather, the 

conclusion that Rule 2305 is an ISR 

program entails only that the SCAQMD 

may exercise its traditional police 

powers in this area.48

In any case, Congress has spoken 

clearly regarding this issue. As 

explained above, the text of section 

110(a)(5), in light of statutory context, 

purpose, and history, indicates that 

Congress may approve State indirect 

source review programs that extend to 

existing sources. For the reasons set 

forth here and in the proposed rule, the 

EPA affirms the conclusion that the 

District is not precluded from regulating 

both existing and new warehouses in 

Rule 2305, and thus, this poses no 

impediment to approving the rule into 

the SIP.49

POLB Comment #6: The POLB asserts 

that SCAQMD Rule 2305’s mitigation 

fee is an unlawful tax under State of 

California’s Proposition 26. Proposition 

26 amended the State Constitution to 

state that ‘‘levy, charge, or exaction of 

any kind imposed by a local 

government’’ is a tax except for certain 

exceptions. The POLB asserts that the 

mitigation fee in Rule 2305 does not fall 

under any of the exceptions and is 

intended to generate revenue rather than 

recoup costs associated with a 

regulatory program and is therefore 

unlawful unless the District secures 

voter approval. 

EPA’s Response to POLB Comment 

#6: As to the issue of whether Rule 

2305’s mitigation fee is an unlawful tax 

under State law, the EPA relied upon a 

legal analysis from the State Attorney 

General’s Office 50 that was submitted as 

part of the SIP submission package and 

that concludes that the mitigation fee is 

not an unlawful tax under the California 

Constitution because, as a compliance 

option, the fee is not compulsory.51 The 

legal analysis from the State Attorney 

General’s Office specifically addresses 

the issues raised by Proposition 26.52


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Department of Justice, to Ellen Peter, Chief Counsel, 

CARB, included as an enclosure to a letter dated 

May 6, 2021 from Ellen M. Peter, to Wayne Nastri, 

Executive Officer, SCAQMD, pp. 12–14. 

53As noted previously in this document, in the 

CTA v. SCAQMD case, the Court dismissed with 

prejudice CTA’s and A4A’s remaining State law 

claims that had been included in the complaints. 

The State law claims that were dismissed include 

claims that Rule 2305 mitigation fees constituted an 

unlawful tax under State law. 54SCAQMD Rule 2305(a). 

55 88 FR 70616, 70623, 70625. 

56 88 FR 70616, 70624. 

57EPA Region IX, New Release titled ‘‘EPA 

Proposes Approval of Groundbreaking Rule to 

Reduce Southern California Air Pollution Driven by 

Warehouse Operations,’’ October 12, 2023. 

The POLB does not acknowledge the 

EPA’s reliance on the legal analysis 

from the State Attorney General’s Office 

or address the rationale presented 

therein for the conclusion that the 

mitigation fee is not an unlawful tax 

under State law.53

POLB Comment #7: The POLB asserts 

that sources controlled by SCAQMD 

Rule 2305 will be, and are, controlled by 

rules adopted by other agencies. To 

support this assertion, the POLB notes 

that emissions from heavy-duty trucks 

are currently heavily regulated by 

CARB. In addition, the POLB states that 

a newly-adopted CARB regulation, the 

Advanced Clean Fleets Regulation, will 

result in the turnover of trucks with 

combustion engines to trucks with zero 

emissions powertrains throughout the 

State. Trucks traveling between 

warehouses, ports, or intermodal 

railyards (such as drayage trucks) must 

be retired once they meet their statutory 

life beginning on January 1, 2025, and 

all drayage trucks must be ZE by 2035. 

Non-drayage trucks maybe covered by 

the High Priority Fleets portion of the 

regulation that results in the transition 

to ZE fleet by 2042. The Advanced 

Clean Fleet Regulation will result in a 

transformational shift in the on-road 

transportation sector towards zero 

emission by 2036. 

EPA Response to POLB Comment #7: 

SCAQMD Rule 2305 applies to owners 

and operators of warehouses located in 

the SCAQMD with greater than 100,000 

square feet of indoor floor space in a 

single building and who operate at least 

50,000 square feet of the warehouse for 

warehousing activities. Thus, contrary 

to POLB’s assertions, the sources 

controlled by SCAQMD Rule 2305, i.e., 

warehouses, are not the sources 

controlled by CARB or district 

regulations referred to by the 

commenter. The EPA does recognize 

that CARB has adopted regulations that 

establish emission limits and other 

requirements related to control of 

emissions from new heavy-duty trucks, 

including CARB’s Advanced Clean 

Fleets Regulation. In developing 

SCAQMD Rule 2305, the SCAQMD was 

also aware of CARB’s regulatory efforts 

and designed Rule 2305 to enhance 

those efforts by accelerating emission 

reductions in the South Coast Air Basin 

that would otherwise occur over a 

longer period under CARB’s rules. 

SCAQMD Rule 2305 focuses the 

reductions in areas disproportionately 

affected by emissions from indirect 

sources associated with warehouses. In 

addition, the SCAQMD adopted Rule 

2305 to fulfill a commitment in the 2016 

South Coast AQMP to assess and 

identify actions to further reduce 

emissions associated with emission 

sources operating in and out of 

warehouse distribution centers. 

The EPA understands the POLB’s 

comment to imply that SCAQMD Rule 

2305 is unnecessary given the rules 

adopted by other agencies that will 

result, over time, in reductions in 

emissions from heavy-duty trucks. 

However, the SCAQMD adopted Rule 

2305 to accelerate the emissions 

reductions within the District to focus 

the reductions in the areas most affected 

by indirect source emissions associated 

with warehouses and to fulfill a 

commitment made by the SCAQMD in 

connection with the 2016 South Coast 

AQMP. Finally, the EPA notes that CAA 

section 110(a)(5) provides States with 

specific authority to adopt ISR rules that 

by design provide another means to 

achieve greater emission reductions, 

notwithstanding that there may be other 

regulatory requirements applicable to 

the mobile sources that are associated 

with the regulated entities under such 

an ISR rule. In this instance, the 

SCAQMD has availed itself of this 

authority and made the policy choice to 

adopt and implement a warehouse ISR 

rule. 

POLB Comment #8: The commenter 

states that the EPA’s finding that Rule 

2305 is not fully enforceable, without 

SIP credit, undermines the purpose of 

the rule to assist in meeting the State 

and Federal air quality standards for 

ozone and PM2.5. 

EPA Response to POLB Comment #8: 

The EPA disagrees that the 

determination that Rule 2305 is not 

fully enforceable due to certain 

deficiencies undermines the purpose of 

SCAQMD Rule 2305. The stated 

purpose of SCAQMD Rule 2305 is to 

reduce local and regional emissions of 

NOX and PM2.5, and to facilitate local 

and regional emission reductions 

associated with warehouses and the 

mobile sources attracted to warehouses, 

in order to assist in meeting State and 

Federal air quality standards for ozone 

and PM2.5.54 The issue of whether 

SCAQMD Rule 2305 qualifies at the 

present time for SIP credit through 

approval by EPA of a specific amount of 

emissions reductions attributable to the 

rule is different from whether SCAQMD 

Rule 2305 assists in meeting State 

ambient air quality standards and the 

NAAQS for ozone and PM2.5. 

As explained in the proposed rule, the 

EPA has concluded that SCAQMD Rule 

2305 is generally enforceable for the 

purposes of CAA section 110(a)(2)(A), 

but with certain deficiencies that 

prevent the EPA from approving a 

specific amount of emissions reductions 

from the rule in any attainment or rate 

of progress/reasonable further progress 

demonstrations.55 Although the EPA is 

not crediting Rule 2305 with achieving 

a specific amount of emissions 

reductions at this time, the EPA’s 

evaluation of Rule 2305 indicates that 

the rule will in fact achieve additional 

emission reductions that are needed in 

the area for purposes of the ozone and 

PM2.5 NAAQS.56 The EPA noted that 

these additional reductions will 

incrementally contribute to the overall 

reductions needed to attain the NAAQS 

in the South Coast Air Basin and 

Coachella Valley air quality planning 

areas. The EPA also anticipates that 

SCAQMD will take action to resolve the 

identified deficiencies in Rule 2305 so 

that the EPA may provide SIP credit for 

it. 

C. A4A Comments and EPA Responses 

A4A Comment #1: Citing the 

proposed approval of Rule 2305 and a 

news release issued at the time the 

proposal was signed, A4A expresses 

concern that the EPA may have 

predetermined the outcome of its 

proposed action on SCAQMD Rule 2305 

before considering public comments. 

A4A asserts that the EPA must follow 

due process and the law by 

meaningfully considering the comments 

it receives—including the arguments as 

to which Federal law preempts Rule 

2305. 

EPA Response to A4A Comment #1: 

The EPA disagrees that the news release 

cited by the commenter indicated that 

the Agency had predetermined the 

outcome of this rulemaking.57 A proper 

reading of the entire statement by the 

Region IX Regional Administrator 

reveals only her recognition of the need 

for additional emissions reductions in 

the South Coast Air Basin and Coachella 

Valley, especially in communities with 

minority populations and low-income 

populations that continue to experience 

relatively higher concentrations of 

pollutants. The statement does not 


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58CTA v. SCAQMD, Judgment, Dkt. 168, January 

18, 2024. In addition, the Court dismissed with 

prejudice CTA’s and A4A’s remaining State law 

claims that had been included in the complaints— 

see CTA v. SCAQMD, Order Re Joint Stipulation 

and Consent Motion to Dismiss with Prejudice (Dkt. 

166), Dkt. 167, January 18, 2024. 

59CTA v. SCAQMD, Defendants’ Request for 

Publication of Order Denying Plaintiff and PlaintiffIntervenor’s Motions for Summary Judgment, Dkt. 

169, March 5, 2024. 

60 88 FR 70616, 70623. 

61CTA v. SCAQMD, Order Re: Plaintiff’s Motion 

for Summary Judgment as to Plaintiff’s Complaint 

for Declaratory Judgment and Injunctive Relief (Dkt. 

65); and Plaintiff-Intervenor Airlines for America’s 

Motion for Summary Judgment (Dkt, 73), Dkt. 162, 

December 14, 2023, p. 33. 

62 Id., citing S.C. Johnson & Son, Inc. v. Transp. 

Corp. of America, Inc., 697 F.3d 544, 558 (7th Cir. 

2012). 

63 Id., p. 33. 

64 Id., p. 34. 

65CTA v. SCAQMD, Order Re: Plaintiff’s Motion 

for Summary Judgment as to Plaintiff’s Complaint 

for Declaratory Judgment and Injunctive Relief (Dkt. 

65); and Plaintiff-Intervenor Airlines for America’s 

Motion for Summary Judgment (Dkt, 73), Dkt. 162, 

December 14, 2023), pp. 29–34. 

suggest that the EPA would approve 

Rule 2305 regardless of the comments 

submitted in response to our proposed 

approval, and in a later paragraph, the 

news release notes that ‘‘if finalized as 

proposed,’’ Rule 2305 will become 

federally enforceable. The phrase ‘‘if 

finalized as proposed’’ conveys the 

possibility that the EPA may not finalize 

approval, as proposed, for example, in 

response to adverse comments the 

Agency receives on the proposal. 

Moreover, the EPA has fully evaluated 

the comments submitted on the 

proposed action and taken those into 

account, as evidenced in this final rule. 

A4A Comment #2: The A4A conveys 

concern that the EPA has proposed to 

find that SCAQMD Rule 2305 is not 

preempted under the CAA, ADA and 

FAAAA notwithstanding an ongoing 

legal challenge to Rule 2305 grounded 

in preemption claims under those same 

statutes. The A4A is also concerned 

about the EPA’s statements regarding 

possible actions the Agency might or 

might not take in the wake of a decision 

in the litigation finding Rule 2305 to be 

preempted but issued after final EPA 

approval of the rule. 

EPA Response to A4A Comment #2: 

The EPA disagrees with the 

commenter’s characterization of the 

Agency’s evaluation of the SCAQMD’s 

authority to adopt Rule 2305 and the 

Agency’s evaluation of its own 

obligations to consider SCAQMD’s 

authority in accordance with CAA 

section 110(a)(2)(E). The EPA fully 

considered these questions as explained 

in the proposal notice for this action. 

The commenter also took issue with the 

EPA’s acknowledgement of the then 

ongoing litigation concerning claims of 

preemption and in particular with the 

EPA’s statements that were the court to 

conclude that SCAQMD was preempted 

or otherwise precluded from adopting or 

implementing Rule 2305 the Agency 

would take that into account as 

appropriate. This did not indicate that 

the EPA was ‘‘rendering a verdict 

without a record.’’ This reflected a frank 

acknowledgement that a court decision 

contrary to the EPA’s own analysis 

would of course require the agency to 

revisit that issue, as appropriate. 

More importantly, as noted 

previously, since publication of the 

proposed rule, the U.S. District Court 

has addressed the challenges to the 

SCAQMD’s legal authority to enforce 

Rule 2305, that were brought by CTA 

and A4A and that are grounded in 

preemption under the CAA, ADA, and 

the FAAAA, and dismissed on the 

merits the claims brought under those 

statutes.58 Neither CTA nor A4A have 

filed a notice of appeal.59 The EPA has 

taken the Court’s decision into account 

in this final rule, and because we are 

taking final action after resolution of the 

legal challenges, the A4A’s comment 

concerning actions that the EPA might 

or might not take if the decision were to 

be issued after final EPA action on Rule 

2305 is moot. 

A4A Comment #3: The A4A contends 

that the ADA preempts Rule 2305 

because Rule 2305 impacts the price, 

route, or service of air carriers and that 

its ADA arguments apply equally to the 

FAAAA. To support these contentions, 

the A4A presents a review of relevant 

case law and its evaluation of Rule 2305 

in light of the law and relevant case 

holdings. Further, the A4A objects to 

the EPA’s preliminary conclusion to the 

contrary to be superficial and 

unsubstantiated. 

EPA Response to A4A Comment #3: 

The EPA disagrees that the ADA or the 

FAAAA preempt Rule 2305. In the 

proposed rule, the EPA indicated that 

we do not consider the requirements 

under Rule 2305 as relating directly to 

the ‘‘price, route, or service’ ’’ of any air 

carrier or common carrier. But we 

recognized that an indirect effect on 

price is a foreseeable consequence of the 

additional costs borne by warehouse 

owners or operators to comply with the 

annual WPCO.60 We preliminarily 

concluded that Rule 2305 is not 

preempted under either the ADA or F4A 

because any price effect is indirect and 

remote. Our preliminary conclusion in 

this regard was based on our review of 

the SCAQMD’s Final Staff Report for 

Rule 2305, which was included in the 

SIP submission and includes the 

SCAQMD’s responses to comments 

submitted during the District’s 

rulemaking process that raise 

preemption objections to Rule 2305 

under the ADA and FAAAA, and the 

filings in the CTA v. SCAQMD case. 

Moreover, we took into consideration 

that, in adopting Rule 2305, the District 

is acting under its delegated police 

powers to protect public health in a way 

that is explicitly authorized under CAA 

section 110(a)(5) and CAA section 116, 

and that acting in that capacity weighs 

against a finding of preemption under 

the ADA and FAAAA. 

In the CTA v. SCAQMD case, the 

Court considered the same arguments 

related to ADA and FAAAA preemption 

that A4A includes in its comments on 

our proposed rule. After considering the 

arguments and related case law, the 

Court observed that Rule 2305 contains 

no express reference to the services, 

rates, or routes of air carriers and is thus 

not expressly preempted. The Court 

concluded that the A4A had not shown 

that the effect of Rule 2305 on the 

integrated air delivery system is more 

than ‘‘tenuous, remote and 

peripheral.’’ 61

To reach this conclusion, the Court 

considered the general applicability of 

Rule 2305. The court noted that Rule 

2305 ‘‘operate[s] one or more steps away 

from the moment at which the firm 

offers its customer a service for a 

particular price;’’ 62 does not affect any 

air carrier’s routes because it treats all 

truck visits the same, no matter which 

course of travel the air carrier chooses 

for these trucks; does not bind an air 

carrier to offer particular services and 

does not control the prices, schedules, 

origins and destinations offered by air 

carriers to their customers beyond 

affecting the compliance costs of those 

air carriers.63 Lastly, the Court noted 

that the ADA and FAAAA were enacted 

to ensure that airlines would be 

operated as private businesses rather 

than public utilities and that A4A had 

made no showing that Rule 2305 would 

materially alter this plan.64

For this final rule, we have reviewed 

the decision 65 of the District Court and 

find that it supports our preliminary 

conclusion set forth in the proposed 

rule that the SCAQMD is not prohibited 

from implementing Rule 2305 under the 

ADA or FAAAA, for the purposes of 

CAA section 110(a)(2)(E). Moreover, we 

are aware of no other legal challenge to 

Rule 2305 that might prevent SCAQMD 

from carrying out Rule 2305. Lastly, we 

note that we consulted with the U.S. 

Department of Transportation on our 

responses to comments related to ADA 


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66See, e.g. CAA sections 108(f), 177, 182, 209. 

67Engine Manufacturers Association v. South 

Coast Air Quality Management District, 541 U.S. 

246, 253–55 (2004) (‘‘EMA’’). 

68 88 FR 70616, 70622–70623. 

69 88 FR 70616, 70623. 

70 88 FR 70616, 70623, footnote #55. 

and FAAAA preemption in this final 

rule. Therefore, the EPA affirms in this 

final rule the conclusion that the 

SCAQMD is not prohibited from 

implementing Rule 2305 under the ADA 

or FAAA and concludes that neither the 

ADA nor the FAAAA present an 

obstacle to the District in carrying out 

Rule 2305 for the purposes of CAA 

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

A4A Comment #4: Citing statements 

by the District, A4A asserts that, in 

adopting Rule 2305, the SCAQMD is 

seeking to regulate diesel truck 

emissions. 

EPA Response to A4A Comment #4: 

The EPA presumes A4A’s comment is 

intended to imply that the District’s true 

purpose in adopting Rule 2305 is to 

adopt and enforce vehicle standards that 

are preempted under CAA section 

209(a). The EPA disagrees and finds that 

Rule 2305 is structured as a valid ISR 

rule that involves a facility-by-facility 

review and that takes a site-based 

approach to encourage and incentivize 

actions to reduce emissions associated 

with warehouse operations. Those 

actions may include reducing truckrelated emissions, or emissions from 

other sources, that are associated with 

warehouse operations but does not 

constitute a mandate for purchase of ZE 

or NZE trucks (see EPA Response to 

POLB Comment #2). 

The EPA further notes that States 

retain significant authority under the 

Clean Air Act to regulate emissions 

associated with mobile sources, 

notwithstanding the CAA Title II 

preemption provisions. In addition to 

the indirect source review programs 

described in section 110(a)(5), the Act 

also identifies various other ways in 

which States can address and reduce 

mobile source emissions, such as 

transportation control measures, vehicle 

inspection and maintenance programs, 

in-use regulations, and emission 

standards.66

A4A Comment #5: The A4A states 

that the EPA should reject SCAQMD’s 

attempt to regulate vehicle emissions 

standards and decline to open the door 

to a patchwork of local restrictions that 

Congress intended to avoid in enacting 

the CAA’s mobile source provisions. 

EPA Response to A4A Comment #5: 

The EPA acknowledges that, in enacting 

section 209 of the CAA, Congress 

intended to avoid a patchwork of 

different State and local emissions 

standards for new vehicles and new 

vehicle engines that manufacturers 

would be required to meet. However, 

the EPA does not agree that, in Rule 

2305, the SCAQMD has adopted or 

attempted to enforce any standard 

relating to the control of emissions from 

new motor vehicles or new motor 

vehicle engines or from any nonroad 

vehicles or engines preempted by CAA 

sections 209(a) and 209(e) because, 

among other things, Rule 2305 does not 

apply to vehicle or engine 

manufacturers but, rather, to warehouse 

owners and operators. Moreover, 

warehouse owners or operators may 

comply with Rule 2305 through a 

variety of measures, not just through 

purchase of a ZE or NZE vehicle (also 

see EPA Response to POLB Comment 

#2). Thus, we do not believe that 

approval by the EPA of Rule 2305 as 

part of the California SIP will open the 

door to the patchwork of local vehicle 

or engine standards that Congress 

intended to avoid in enacting the mobile 

source provisions of the CAA. 

Moreover, we believe that ISR programs 

described in CAA section 110(a)(5) 

represent an important tool for the 

States and local air districts to address 

air quality problems, that the CAA 

preemption provisions under CAA 

section 209 should be read together with 

the ISR provisions in CAA section 110, 

and that, read together, CAA section 209 

does not necessarily preempt ISR 

programs that address emissions from 

mobile sources that are attracted to an 

indirect source. 

By contrast, the EPA notes that States 

have considerable discretion to adopt 

and submit SIP provisions to the EPA 

for evaluation and, if approved, 

inclusion into that State’s SIP. So long 

as the State has met all applicable 

statutory and regulatory requirements, 

the EPA will approve those provisions 

into the SIP in accordance with CAA 

section 110(k) and other applicable 

requirements. Among the approaches 

that a State has authority to elect to 

adopt is an ISR as contemplated in CAA 

section 110(a)(5). The mere fact that 

only some States may elect to adopt 

such a SIP provision, while others do 

not, also does not create an 

impermissible ‘‘patchwork’’ of 

requirements. It is a hallmark of the SIP 

program that States may follow different 

approaches to attaining and maintaining 

the NAAQS based on local facts and 

circumstances, so long as they meet 

applicable SIP requirements. 

A4A Comment #6: The A4A contends 

that SCAQMD Rule 2305 creates 

incentives sufficiently burdensome as to 

be, in effect, a purchase mandate and is 

thus, under the reasoning of Engine 

Mfrs. Ass’n v. SCAQMD,67 a mobile 

source emissions standard preempted 

under CAA section 209. The A4A 

acknowledges the decision in NAHB v. 

SJVUAPCD upholding an ISR rule 

against a CAA preemption challenge but 

distinguishes SCAQMD Rule 2305 from 

the SJVUAPCD ISR rule on three 

grounds. First, A4A cites language from 

the NAHB decision that ‘‘[a]n emissions 

limit calculated by reference to a fleet of 

engines or vehicles is as much a 

‘standard’ as an emissions limit 

calculated by reference to an individual 

engine or vehicle,’’ and argues that Rule 

2305, as a ‘‘fleet’’ standard rather than 

an ISR rule, is preempted under the 

CAA. Second, A4A asserts that Rule 

2305 is distinguishable because it 

mandates ZEV equipment or imposes 

penalties if ZEV equipment is not used. 

Third, A4A asserts that Rule 2305 is 

distinguishable because it does not 

allow regulated entities to retrofit 

existing equipment or switch fuels to 

achieve compliance, based upon which 

A4A further asserts ‘‘the only way to 

avoid punitive mitigation fees is to 

purchase ZEV/NZE vehicles.’’ 

EPA Response to A4A Comment #6: 

In the EPA’s proposed rule, we 

considered the issue of whether Rule 

2305, while structured as an ISR 

program, represents a de facto purchase 

mandate for ZE or NZE trucks and is 

thus preempted under CAA section 

209(a) under the principles of the EMA 

case.68 As explained in the proposed 

rule, we found that Rule 2305 lacks the 

indicia of a de facto regulation of either 

motor vehicles or nonroad vehicles or 

engines.69 In support of this preliminary 

finding, we noted the various options 

available (WAIRE Menu, Custom 

WAIRE Plan, or Mitigation Fee) to 

warehouse operators that do not involve 

acquisition of, or contracting for, ZE or 

NZE trucks to earn WAIRE Points. The 

EPA acknowledged in the proposed rule 

information from the SCAQMD’s final 

socioeconomic impact assessment for 

Rule 2305 that ZE/NZE non-acquisition 

(or contracting) scenarios are generally 4 

to 5 times more costly (in terms of 

average annual dollars per square foot) 

than the ZE/NZE acquisition (or 

contracting) scenarios so as to 

incentivize acquisition and use of ZE/ 

NZE trucks over the non-acquisition 

options.70 However, we also noted that 

the scenarios in the socioeconomic 

impact assessment were developed to 

identify the widest range of possible 

costs assuming that warehouse owners 

and operators would only comply with 

a single scenario approach from 2022 


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71See SCAQMD, Hybrid Mobile Source 

Committee Meeting, Agenda, March 15, 2024, p. 18. 

72See NAHB v. SJVUAPCD, 627 F.3d 730 at 740 

(9th Cir. 2010) (‘‘We agree that Rule 9510 escapes 

preemption not merely because Rule 9510 affects 

groups of construction equipment rather than 

individual engines or vehicles. An emissions limit 

calculated by reference to a fleet of engines or 

vehicles is as much a ‘‘standard’’ as an emissions 

limit calculated by reference to an individual 

engine or vehicle. Rather, Rule 9510 escapes 

preemption because its regulation of construction 

equipment is indirect. Rule 9510 does not measure 

emissions by fleets or groups of vehicles; it 

measures emissions on a ‘‘facility-by-facility’’ basis. 

42 U.S.C. 7410(a)(5)(D). Its unit of measurement is 

the indirect source, not the fleet. It regulates 

development sites directly, but as the term ‘‘indirect 

source’’ implies, it regulates mobile emissions only 

indirectly. For that reason, the fleet-based 

regulations are not analogous to Rule 9510.’’) 

73CTA v. SCAQMD, Order Re: Plaintiff’s Motion 

for Summary Judgment as to Plaintiff’s Complaint 

for Declaratory Judgment and Injunctive Relief (Dkt. 

65); and Plaintiff-Intervenor Airlines for America’s 

Motion for Summary Judgment (Dkt, 73), Dkt. 162, 

December 14, 2023, p. 24. 

74As to effects, the court notes that the District 

presented evidence that warehouses would not 

have to shutter their operations or relocate unless 

compliance costs exceeded approximately $1.50 per 

square foot per year, leading the court to observe: 

‘‘That none of the models predicted compliance 

costs exceeding that amount, suggests that the 

effects of the Rule were not sufficient to compel 

warehouse owners to purchase ZE or NZE trucks. 

Also, for a typical, 500,000 square foot warehouse, 

the compliance costs would be 0.5% on the low end 

to 3.2% on the high end of the warehouse’s existing 

annual operating costs. Dkt. 107–3 ¶ 135. These 

amounts are quite small, and do not show that the 

District has provided warehouse operators with a 

demand to purchase ZE or NZE trucks that cannot 

practically be refused.’’ Id., p. 26. 

through 2031. As a practical matter, the 

EPA expects warehouse operators will 

select multiple points-earning actions or 

investments along with mitigation fees 

to meet the annual compliance 

obligation. Recent data on compliance 

with Rule 2305 bears out this 

expectation. For Year 2023, for example, 

warehouse operators reported WAIRE 

Points primarily from hostler usage 

(53%), solar panel installation and 

usage (15%), and NZE truck usage 

(14%). Mitigation fee point purchases 

represented approximately 2% of the 

total reported WAIRE Points for 2023.71

Moreover, these selections may change 

over the years in light of the everchanging circumstances of individual 

businesses and the composition of 

vehicle fleets. As such, we find that 

Rule 2305 is not a de facto purchase 

mandate and is thus not preempted 

under CAA section 209(a) consistent 

with the EMA case. 

As part of our evaluation of this issue, 

we also compared Rule 2305 to 

SJVUAPCD Rule 9510, the ISR rule at 

issue in the NAHB v. SJVUAPCD case 

(i.e., SJVUAPCD Rule 9510), and 

preliminarily found that Rule 2305 is 

similar in relevant respects to the ISR 

program the Court determined in NAHB 

was not preempted. 

Most critically, we noted that Rule 

2305 regulates at the level of the 

indirect source, not at the level of 

mobile sources the indirect source may 

attract. In Rule 2305, the annual 

compliance obligation for any particular 

warehouse operator reflects the number 

and type of truck trips visiting the 

warehouse. It is reasonable to assume 

that other non-truck mobile sources 

attracted to or associated with the 

warehouse would be proportional to the 

number of truck trips. Therefore, the use 

of trucks trips in Rule 2305 as a proxy 

for all attracted mobile sources means 

that, contrary to the A4A’s contention 

otherwise, Rule 2305 is premised on a 

facility-by-facility review of all 

‘‘attracted’’ sources. This site-based 

approach to regulating emissions is 

precisely what allows Rule 2305 to 

avoid preemption under section 209(a) 

just as SJVUAPCD Rule 9510 avoids 

preemption under CAA section 

209(e)(2). 

A4A claims that the annual 

compliance obligation under Rule 2305 

(the WATT) represents a ‘‘fleet’’ 

standard under the CAA. However, the 

WATT is a facility-based metric in that 

it reflects truck visits to or from a 

warehouse and is a proxy for all mobile 

source emissions associated with 

warehouse operations. The truck visits 

to or from a warehouse do not represent 

the type of fleet that is implicated by 

CAA section 209. Fleet-based standards 

that may be subject to CAA section 209 

preemption relate to vehicle 

manufacturers, owners, or purchasers, 

not to operators or owners of facilities 

to which vehicles are attracted. The 

same was true for the SJVUAPCD rule 

at issue in NAHB v. SJVUAPCD.72

With respect to A4A’s assertion that 

Rule 2305 is distinguishable from Rule 

9510 because it mandates ZEV 

equipment or imposes penalties if ZEV 

equipment is not used, as further 

explained above, Rule 2305 does not 

mandate ZEV equipment or impose 

penalties if ZEV equipment is not used. 

Rather, Rule 2305 provides warehouse 

operators (and owners who opt in) 

various options (WAIRE Menu, Custom 

WAIRE Plan) for compliance that do not 

involve acquisition of, or contracting 

for, ZE or NZE trucks or paying the 

mitigation fee. 

We also disagree with A4A’s assertion 

that Rule 2305 does not allow regulated 

entities to retrofit existing equipment or 

switch fuels to achieve compliance. 

These specific types of actions could be 

used to earn WAIRE points under a 

Custom WAIRE Plan under Rule 2305 if 

they meet the requirements for such 

actions under SCAQMD Rule 

2305(d)(4). These compliance options, 

as well as others described herein, 

refute A4A’s contention that the only 

options for compliance are payment of 

mitigation fees or purchase of ZEV/NZV 

vehicles. 

Lastly, we note that the Court in CTA 

v. SCAQMD considered but rejected 

arguments that Rule 2305 is preempted 

because it relates to the control of 

emissions from vehicles and engines 

and is a ‘‘standard’’ because its purpose 

and effect is to mandate the purchase of 

ZE and NZE trucks.73 The Court also 

determined that neither the purpose nor 

the effect of Rule 2305 is to compel the 

purchase of ZE or NZE.74 As such, we 

find the Court’s decision as supportive 

of our preliminary conclusion in the 

proposed rule that, in Rule 2305, the 

SCAQMD has not adopted or attempted 

to enforce any standard relating to the 

control of emissions from new motor 

vehicles or new motor vehicle engines 

preempted by CAA section 209(a). We 

affirm that conclusion in this final 

action. 

A4A Comment #7: The A4A asserts 

that the CAA only permits the EPA to 

approve into SIPs ISR rules that apply 

to new or modified sources, not existing 

sources. In support of this assertion, the 

A4A contends, based on statements by 

the EPA published in 1973, that the EPA 

has historically interpreted ISR rules to 

refer to new or modified sources, rather 

than existing sources. The A4A also 

asserts that State law (i.e. California 

Health & Safety Code section 40440) 

limits the SCAQMD’s authority with 

respect to ISR rules to new or modified 

sources, and that State law preempts 

Rule 2305 because it constitutes a land 

use restriction. Lastly, the A4A asserts 

that CAA section 110 limits the EPA’s 

authority to approve ISRs only to the 

extent they regulate new or modified, 

and not existing, facilities. 

EPA Response to A4A Comment #7: 

First, we disagree that ISR programs as 

described in CAA section 110(a)(5) 

apply to new or modified sources 

exclusively and not to existing sources. 

Please see EPA Response to POLB 

Comment #3. Moreover, the statements 

made by the EPA in 1973 to which the 

A4A refers, come from a proposed rule 

in which the EPA proposes certain 

amendments to the EPA’s regulations 

establishing SIP content requirements 

that ‘‘would require, with respect not 

only to ‘stationary sources,’ in the 

traditional sense, but also certain other 

types of facilities, an assessment of both 

direct and indirect effects on air quality 

prior to their construction and 


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75 38 FR 9599 (April 18, 1973). 

76SCAQMD, Final Staff Report, pp. 16–17. 

77SCAQMD, Final Staff Report, Supplement to 

Agenda Item #27, Board Meeting of May 7, 2021, 

Supplement Number Two-Response to Letter from 

Airlines for America, dated May 4, 2021 

(Attachment A). 

78 88 FR 70616, 70622. 

79CTA v. SCAQMD, Order Re: Plaintiff’s Motion 

for Summary Judgment as to Plaintiff’s Complaint 

for Declaratory Judgment and Injunctive Relief (Dkt. 

65); and Plaintiff-Intervenor Airlines for America’s 

Motion for Summary Judgment (Dkt, 73), Dkt. 162, 

December 14, 2023, p. 28. 

modification and a determination as to 

whether there would be interference 

with maintenance of any national 

standard.’’ 75 In other words, the 

statements by the EPA in 1973 describe 

amendments that the Agency was 

proposing to extend certain SIP 

requirements with respect to new source 

review to certain indirect sources, but 

they do not speak to the issue of State 

authority to regulate existing indirect 

sources nor do they establish a longstanding interpretation by the EPA that 

ISR programs refer exclusively to new or 

modified indirect sources. Further, the 

1973 statements preceded Congress’s 

enactment of the indirect source 

provisions in section 110(a)(5) in 1977. 

The commenter fails to explain with 

specificity why a prior agency statement 

on a different topic governs the 

interpretation of a subsequently enacted 

statute. 

Second, the EPA disagrees that 

SCAQMD Rule 2305 is unenforceable 

under State law. In the EPA’s proposed 

rule, we considered the question of the 

SCAQMD’s authority to adopt Rule 2305 

and preliminarily concluded that 

SCAQMD has the authority to adopt the 

rule under California Health & Safety 

Code section 40440. This authorizes the 

SCAQMD to provide for indirect source 

controls in those areas of the District in 

which there are high-level, localized 

concentrations of pollutants or with 

respect to any new source that will have 

a significant effect on air quality in the 

South Coast Air Basin. 

In its Final Staff Report, the SCAQMD 

presents information concerning highlevel, localized concentrations of air 

pollutants in the vicinities of 

warehouses.76 Such information 

provides support for the SCAQMD’s 

authority to adopt Rule 2305 under 

California Health & Safety Code section 

40440. The A4A cites the same section 

of California code as disallowing Rule 

2305, but the A4A focuses solely on the 

second part of the authority granted in 

section 40440, which refers to new 

sources, whereas the statute provides 

two different bases for the authority, 

either of which is sufficient, and the 

EPA has simply relied on the first one, 

which does not distinguish between 

new or existing sources. 

Third, as to the A4A’s claim that 

SCAQMD Rule 2305 constitutes an 

unlawful land use restriction under 

State law, we note that the SCAQMD 

responded to similar comments made 

during the District’s rulemaking process. 

In its response to comments, the 

SCAQMD explained that Rule 2305 

‘‘does nothing to interfere with local 

governments’ ability allow, disallow, or 

control the use of land for warehouse 

purposes or dictate where warehouses 

may be built. Like every other air 

district rule, it merely limits emissions 

from particular sources—here, indirect 

sources.’’ 77 The A4A points to the 

truck-trip-based compliance obligation 

and the options set forth in Rule 2305 

(e.g., installation of changing 

equipment, solar panel systems, and use 

of such systems) to meet the obligation 

as ostensible evidence of the land use 

regulation character of Rule 2305. 

However, the A4A does not explain how 

the compliance obligation or the options 

for compliance set forth in the rule 

could interfere with local governments’ 

ability to control land use for warehouse 

purposes or dictate where warehouses 

may be built. 

Fourth, in the proposed rule, the EPA 

preliminarily concluded that the 

District’s decision to regulate both 

existing and new warehouses in Rule 

2305 is consistent with CAA section 

110(a)(5). As explained in the proposal, 

we considered this question in light of 

the definitions of the term ‘‘indirect 

source review program’’ in CAA section 

110(a)(5)(D) and ‘‘indirect source’’ in 

CAA section 110(a)(5)(C) and in light of 

CAA section 116, which explicitly 

provides that States retain authority to 

regulate more stringently in SIP 

provisions than otherwise required by 

Federal law, except where preempted 

from doing so.78 The A4A disagrees 

with EPA’s interpretation but did not 

provide a persuasive explanation based 

on the statutory language. 

Lastly, we note that the Court in CTA 

v. SCAQMD also considered this issue 

and found that ‘‘Nothing in the text, 

structure, or purpose of the indirectsource-review provision suggests that 

this phrase limits indirect source 

reviews to those based on new and 

modified indirect sources.’’ 79 The EPA 

has reached this same conclusion based 

on the text, structure, and purpose of 

CAA section 110(a)(5), and thus the 

court decision confirms the agency’s 

own view. 

In this final rule, for the reasons given 

in our proposed rule and in light of the 

Court’s decision, the EPA affirms our 

conclusion that the District’s choice to 

regulate both existing and new 

warehouses in Rule 2305 is consistent 

with CAA section 110(a)(5). 

A4A Comment #8: Citing CAA 

sections 110(a)(5)(B) and 110(c), the 

A4A asserts that the CAA authorizes 

only the EPA, and not the States, to 

adopt airport-related ISRs. As such, the 

A4A contends that Rule 2305 cannot 

regulate airport-based warehouses. 

Further, because the preemption 

principles of the ADA extend to an air 

carrier’s trucking operations, A4A 

contends that the prohibition on States’ 

authority to adopt airport-related ISRs 

extends to all airport-related 

warehouses. 

EPA Response to A4A Comment #8: 

CAA section 110(a)(5)(B) narrows the 

authority that the EPA would otherwise 

have to promulgate ISR programs as part 

of a Federal Implementation Plan (FIP) 

under CAA section 110(c) to a specific 

set of indirect sources, namely ‘‘only to 

federally assisted highways, airports, 

and other major federally assisted 

indirect sources and federally owned or 

operated indirect sources.’’ The use of 

the word ‘‘only’’ in CAA section 

110(a)(5)(B) refers to the types of 

indirect sources over which the EPA 

retains authority when promulgating a 

FIP and simply does not address what 

sources States may elect to regulate in 

an ISR. CAA section 110(a)(5)(B) does 

not speak to any limits on States in 

developing ISRs and thus it does not 

present an obstacle to the SCAQMD’s 

legal authority to carry out Rule 2305 

throughout the District or to the EPA’s 

approval of the rule as consistent with 

the requirements of CAA section 

110(a)(2)(E). Lastly, because the 

commenter’s premise is not supported 

by the CAA, the commenter’s extension 

of the premise to airport-related 

warehouses (i.e., those physically 

located off-airport) is also not 

supported. 

D. BAR Logistics Comments and EPA 

Responses 

BAR Logistics Comment #1: BAR 

Logistics contends that enforcement of 

Rule 2305 is premature at this point in 

time because of the relative 

unavailability of Class 8 electric trucks. 

EPA Response to BAR Logistics 

Comment #1: In reviewing SIP 

submissions, the EPA’s role is to 

approve State choices, provided that 

they meet the minimum criteria set in 

the CAA or any applicable EPA 

regulations. Thus, considerations such 

as whether a District rule may be 

economically or technologically 

challenging cannot form the basis for 


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80Union Electric Company v. EPA; 427 U.S. 246, 

265 (1976). 81SCAQMD, Final Staff Report, ‘‘Proposed Rule 

2305—Warehouse Indirect Source Rule— 

Warehouse Actions and Investments to Reduce 

Emissions (WAIRE) Program and Proposed Rule 

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

Final Staff Report’’, Appendix F, Master Response 

2d. 

82 Id. 

83 Id. 

84 Id. 

85Union Electric Company v. EPA; 427 U.S. 246, 

265 (1976). 

86 88 FR 70616, 70619, citing information from 

SCAQMD, Annual Report for the Warehouse 

Actions and Investments to Reduce Emissions 

(WAIRE) Program, January 2023, p. 15. 

87 Id. 

88SCAQMD, Hybrid Mobile Source Committee 

Meeting, Agenda, March 15, 2024, p. 18. 

89 88 FR 70616, 70623. 

90CTA v. SCAQMD, Order Re: Plaintiff’s Motion 

for Summary Judgment as to Plaintiff’s Complaint 

Continued 

EPA disapproval of a rule submitted by 

a State as part of a SIP.80

The EPA acknowledges the challenges 

for warehouse operators in meeting the 

requirements of Rule 2305. The EPA 

notes that warehouse operators have 

three basic options, or any combination 

of these options, through which to earn 

or obtain points sufficient to meet their 

WPCO and that all these options 

provide for points to be earned toward 

the WPCO from actions that do not 

involve ZE/NZE trucks. With respect to 

ZE/NZE trucks, in response to 

comments on proposed Rule 2305, the 

SCAQMD indicated that there are 

commercially available, or expected to 

be available, options to acquire or use 

ZE/NZE trucks within the first 

compliance year.81 At the time of 

adoption of Rule 2305, the SCAQMD 

had funded over 1,200 NZE trucks that 

are currently operating in the 

commercial sector.82 The SCAQMD also 

noted that NZE engines are available in 

two sizes, 8.9 and 11.9 liters, and are 

offered by major truck manufactures in 

different truck classes including Class 8 

long haul and/or drayage trucks. The ZE 

truck market is still growing with many 

major manufacturers announcing plans 

for commercialization of battery-electric 

and hydrogen fuel cell electric trucks.83

SCAQMD further noted that there are 

expected to be 62 models of medium 

duty (e.g., Class 4–7) ZE trucks 

commercially available during 2021.84

BAR Logistics Comment #2: As a 

third-party logistics (3PL) warehouse 

operator, BAR Logistics asserts that the 

company owns no trucks, and, thus, 

mitigation options under SCAQMD Rule 

2305 are extremely limited. BAR 

Logistics further contends that, as to 

3PLs, the mitigation fee functions as a 

tax and is unfairly imposed on 3PLs 

because companies with much greater 

resources and with trucks that transport 

goods to and from the warehouse are not 

subject to the requirements of Rule 

2305. BAR Logistics states that the tax 

3PLs will pay will go to larger 

companies from the WAIRE program, 

resulting in a ‘‘regressive tax.’’ 

EPA Response to BAR Logistics 

Comment #2: As noted in EPA Response 

to BAR Logistics Comment #1, in 

reviewing SIP submissions, the EPA’s 

role is to approve State choices, 

provided that they meet the minimum 

criteria set in the CAA or any applicable 

EPA regulations. Thus, considerations 

such as whether a District rule may be 

economically or technologically 

challenging cannot form the basis for 

EPA disapproval of a rule submitted by 

a State as part of a SIP.85

The EPA acknowledges the challenges 

for warehouse operators in meeting the 

requirements of Rule 2305 but notes that 

warehouse operators have options, as 

explained above, to earn or obtain 

WAIRE points to meet their WPCO from 

actions that do not involve ZE/NZE 

trucks. 

In addition, the EPA notes that, based 

on the SCAQMD’s first Annual Report 

for the WAIRE Program, warehouse 

operators intend to meet their 

obligations under Rule 2305 in various 

ways with only limited reliance on the 

mitigation fee option. As described in 

the proposed rule, the first Annual 

Report suggests that warehouse 

operators expect to meet their WPCOs, 

at least in the early years of the program, 

primarily through ZE hostler usage, (i.e., 

yard tractors that move trailers and 

containers around warehouse facilities; 

approximately 40% of the anticipated 

WAIRE points based on the Initial Site 

Information Report (ISIRs) received), 

NZE Class 8 Truck Visits 

(approximately 27%), and ZE hostler 

acquisition (approximately 8%).86 The 

submitted ISIRs also suggest that, in 

addition to taking actions from the 

WAIRE Menu, warehouse operators 

anticipate earning about 5,500 points 

through mitigation fees, representing 

about 3% of total points earned, of 

about $5.5 million.87 More recent data 

shows that, for Year 2023, warehouse 

operators reported WAIRE Points 

primarily from hostler usage (53%), 

solar panel installation and usage 

(15%), and NZE truck usage (14%).88

E. CTA Comments and EPA Responses 

CTA Comment #1: The CTA asserts 

that the EPA should defer action on 

Rule 2305 until Federal court 

examinations of SCAQMD legal 

authority are complete and resolved. 

EPA Response to CTA Comment #1: 

Please see EPA Response to POLB 

Comment #1. 

CTA Comment #2: The CTA contends 

that Rule 2305 is preempted by CAA 

section 209 because it establishes de 

facto emission standards for trucks 

because it is structured so as to make 

the acquisition of trucks that meet only 

certain emissions standards, and their 

associated infrastructure that is 

necessitated by truck acquisition, the 

only economically reasonable and the 

principal method of compliance. 

EPA Response to CTA Comment #2: 

The EPA disagrees that Rule 2305 

establishes de facto emissions standards 

for trucks. Please see EPA Response to 

POLB Comment #2 and EPA Response 

to A4A Comment #6. 

CTA Comment #3: The CTA contends 

that Rule 2305 is preempted by the ADA 

and the FAAAA because it will mandate 

changes to prices, routes, and services. 

The CTA states that the EPA has no 

basis or expertise upon which to rely 

with regard to either the interpretation 

or application of the ADA or the 

FAAAA and that the best source of 

definitive interpretation of the 

application of these Federal statutes is 

a Federal court. The CTA also contends 

that the EPA should have published a 

specific supplemental notice seeking 

additional public input on these specific 

questions for which it has no legal 

expertise. 

EPA Response to CTA Comment #3: 

The EPA disagrees that Rule 2305 is 

preempted by the ADA or the FAAAA. 

Please see the EPA Responses to POLB 

Comment #4 and A4A Comment #3. We 

also note that we consulted with the 

U.S. Department of Transportation on 

our responses to comments related to 

ADA and FAAAA preemption in this 

final rule. 

In our proposed rule, the EPA noted 

that we did not consider the 

requirements under Rule 2305 as 

relating directly to the price, route, or 

service of any air carrier or common 

carrier but recognized that an indirect 

effect on price is a foreseeable 

consequence of the additional costs 

borne by warehouse owners or operators 

to comply with the annual WPCO.89

Since publication of the proposed rule, 

the Court in the CTA v. SCAQMD case 

has concluded that Rule 2305 is not 

preempted under the ADA or the 

FAAAA, in part, based on the Court’s 

finding that the challengers to Rule 2305 

had failed to show that the effect of the 

Rule 2305 on price, route or service of 

any air carrier ‘‘is more than tenuous, 

remote and peripheral.’’ 90 In light of the 


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for Declaratory Judgment and Injunctive Relief (Dkt. 

65); and Plaintiff-Intervenor Airlines for America’s 

Motion for Summary Judgment (Dkt, 73), Dkt. 162, 

December 14, 2023, p. 33. 

91The CTA cites California Health & Safety Code 

section 40440. 

92 In relevant part, California Health & Safety 

Code section 40440 provides: ‘‘(a) The south coast 

district board shall adopt rules and regulations that 

carry out the plan and are not in conflict with State 

law and Federal laws and rules and regulations. 

Upon adoption and approval of subsequent 

revisions of the plan, these rules and regulations 

shall be amended, if necessary, to conform to the 

plan. (b) The rules and regulations adopted 

pursuant to subdivision (a) shall do all of the 

following: . . . (3) Consistent with Section 40414, 

provide for indirect source controls in those areas 

of the south coast district in which there are highlevel, localized concentrations of pollutants or with 

respect to any new source that will have a 

significant effect on air quality in the South Coast 

Air Basin.’’ 

93SCAQMD, Final Staff Report, pp. 16–17. 

94Letter dated May 6, 2021 from Robert Swanson, 

Deputy Attorney General, California Department of 

Justice, to Ellen Peter, Chief Counsel, CARB, 

included as an enclosure to a letter dated May 6, 

2021 from Ellen M. Peter, to Wayne Nastri, 

Executive Officer, SCAQMD. 

95 Id. 

96Also, as noted previously in this document, in 

the CTA v. SCAQMD case, the Court dismissed with 

prejudice CTA’s and A4A’s remaining State law 

claims that had been included in the complaints. 

The State law claims that were dismissed include 

claims that Rule 2305 mitigation fees constituted an 

unlawful tax under State law. 

97National Association of Home Builders v. San 

Joaquin Valley Unified Air Pollution Control 

District, 627 F.3d 730 (9th Cir. 2010) (‘‘NAHB v. 

SJVUAPCD’’). 

Court’s decision, the EPA affirms our 

preliminary conclusion that SCAQMD 

Rule 2305 is not preempted by the ADA 

or the FAAAA. Therefore, the SCAQMD 

is not prohibited under those statutes 

from carrying out Rule 2305, consistent 

with the SIP requirements under CAA 

section 110(a)(2)(E). Also, in light of the 

Court’s decision, the EPA considers to 

be moot the CTA’s suggestion to publish 

a supplemental notice to seek additional 

public input on whether Rule 2305 is 

preempted by the ADA or FAAAA. 

CTA Comment #4: The CTA asserts 

that Rule 2305 is unenforceable under 

State law, rendering SIP inclusion fatal. 

The CTA claims that Rule 2305 imposes 

an unlawful tax under State law. The 

CTA objects to the EPA’s reliance on 

legal analysis provided by the State 

Attorney General’s office and asserts 

that such reliance is not a sufficient 

basis for SIP approval. The CTA also 

contends that SCAQMD has adopted a 

rule for which it does not have authority 

under State law 91 because the rule 

applies to new and existing sources 

whereas the authority of SCAQMD to 

adopt ISR rules is limited to areas that 

have high-level, localized 

concentrations of pollutants or with 

respect to any new source that will have 

a significant effect on air quality in the 

South Coast Air Basin. 

EPA Response to CTA Comment #4: 

The EPA disagrees that SCAQMD Rule 

2305 is unenforceable under State law. 

In the EPA’s proposed rule, we 

considered the question of the 

SCAQMD’s authority to adopt Rule 2305 

and preliminarily concluded that 

SCAQMD has the authority to adopt the 

rule under California Health & Safety 

Code section 40440.92 This section 

authorizes the SCAQMD to provide for 

indirect source controls in those areas of 

the South Coast District that have highlevel, localized concentrations of 

pollutants or with respect to any new 

source that will have a significant effect 

on air quality in the South Coast Air 

Basin. 

In its Final Staff Report, the SCAQMD 

presents information concerning highlevel, localized concentrations of air 

pollutants in the vicinities of 

warehouses.93 Such information 

provides support for the SCAQMD’s 

authority to adopt Rule 2305 under 

California Health & Safety Code section 

40440. The CTA cites the same section 

of California code as disallowing Rule 

2305. The CTA focuses solely on the 

second part of the authority granted in 

section 40440, which refers to new 

sources, whereas the statute provides 

two different bases for the authority, 

either of which is sufficient, and the 

EPA has simply relied on the first one, 

which does not distinguish between 

new or existing sources. 

In the EPA’s proposed rule, with 

respect to the issue of whether the 

mitigation fee in Rule 2305 constitutes 

an unlawful tax under State law, we 

acknowledged comments to that effect 

that were submitted in the District’s 

rulemaking process but preliminarily 

found the mitigation fee under Rule 

2305 to be lawful under State law on the 

basis of legal analysis provided by the 

State Attorney General’s Office.94 In the 

context of the EPA’s actions on SIPs and 

SIP revisions, the EPA’s reliance on 

interpretations of State law from a 

State’s attorney general is generally 

appropriate given the role of a State 

Attorney General as the chief legal 

officer of the State. The EPA generally 

defers to interpretations of State law 

from State attorney generals in the 

absence of clear error where questions 

of State law arise in the context of SIP 

actions. We find no such error in the 

legal analysis provided by the State 

Attorney General’s Office in this 

instance. 

The CTA has pointed out no clear 

error in the legal analysis provided by 

the State Attorney General’s Office but 

suggests that the EPA should view the 

analysis differently because the analysis 

was provided as advocacy and 

justification for the adoption of Rule 

2305 and because CARB and the State 

of California have joined the CTA v. 

SCAQMD case as intervenors for the 

SCAQMD. However, the Attorney 

General’s Office prepared the legal 

analysis at the request of CARB on 

behalf of the SCAQMD, which had 

received a variety of questions 

concerning the legal authority of the 

SCAQMD to promulgate Rule 2305.95

Given these circumstances, the legal 

analysis appears to us to be nothing 

more than a routine and appropriate 

response by the State Attorney General’s 

Office to questions from State agencies 

concerning their authority under State 

law. The EPA also does not find CARB’s 

and the State of California’s subsequent 

participation in the CTA v. SCAQMD 

case as intervenors to defend the 

constitutionality of Rule 2305 to be 

relevant to our evaluation of Rule 2305 

as a revision to the California SIP. As 

such, the EPA finds no basis to question 

the legal analysis prepared by the State 

Attorney General’s Office. The EPA 

reaffirms our reliance on the State’s 

analysis as the basis for our conclusion 

that the mitigation fee in Rule 2305 does 

not constitute an unlawful tax under 

State law. In addition, the SCAQMD is 

not prohibited under State law from 

carrying out Rule 2305, including its 

mitigation fee option, consistent with 

the SIP requirements under CAA section 

110(a)(2)(E).96

CTA Comment #5: The CTA contends 

that the EPA does not consistently and 

clearly define ‘‘Indirect Source Rule’’ 

applications. To support this 

contention, the CTA notes SCAQMD 

Rule 2305 is not a legitimate ISR rule if 

one relies on the ISR rule at issue in 

National Association of Home Builders 

v. San Joaquin Valley Unified Air 

Pollution Control District (NAHB v. 

SJVUAPCD).97 Among the differences 

between the two rules, the CTA asserts 

that the ISR rule at issue in NAHB v. 

SJVUAPCD applies only to new sources 

of emissions, rather than new and 

existing sources of emissions, and is 

concerned with the development site as 

a whole, rather than being engine- or 

vehicle-based. Also, the CTA finds 

inconsistencies between the approach to 

reducing emissions under SCAQMD 

Rule 2305 and the description of ISR 

rules by CARB (that is cited by the EPA 

in a separate rulemaking) as rules that 

‘‘cap’’ emissions at an entire facility or 

otherwise seek to reduce emissions 

below a certain facility-wide level. 

EPA Response to CTA Comment #5: 

The EPA approved SJVUAPCD Rule 


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98The EPA approved SJVUAPCD Rule 9510 at 76 

FR 26609 (May 9, 2011), and again as amended at 

86 FR 33542 (June 25, 2021). 

99 88 FR 70616, 70622. 

100 88 FR 72461 (October 20, 2023). 

101Also, see the EPA’s response to comments on 

CARB’s request for authorization for CARB’s OceanGoing Vessels At-Berth Regulation at 88 FR 72461, 

at 72474–72475 (October 20, 2023) (Quoting CARB: 

‘‘Purpose of the Regulation is to achieve emissions 

reductions from each vessel visit. . . . While the 

Regulation does regulate ports and terminals, it 

does so only because regulating those entities has 

proven essential to ensuring each vessel visit is able 

to use an approved emission-reducing control 

technology.’’) 

102See Ca. Gov’t Code sections 7920.000– 

7931.000. 

9510 (‘‘Indirect Source Review (ISR)’’), 

i.e., the ISR rule at issue in NAHB v. 

SJVUAPCD, in part, by recognizing the 

rule as a type of rule that any State may 

include in its SIP but that the EPA may 

not require as a condition of approval of 

a SIP, under CAA section 110(a)(5).98 In 

so doing, however, we did not intend 

thereby to define the scope of ISR rules 

in general but rather to take action on 

the specific rule that was submitted to 

the Agency. Likewise, in our action on 

SCAQMD Rule 2305, the EPA finds that 

the rule is the type of rule that a State 

may include in its SIP under CAA 

section 110(a)(5), but, in doing so, we do 

not intend to define the scope of ISR 

rules in general but only to take action 

on the specific rule submitted to us. 

The EPA acknowledges differences 

between SJVUAPCD Rule 9510 and 

SCAQMD Rule 2305, but, contrary to 

the CTA’s assertion, both apply to sites 

or facilities, rather than to vehicles or 

engines. In the case of SJVUAPCD Rule 

9510, the rule applies to larger 

development projects (e.g., 50 

residential units or 2,000 square feet of 

commercial space at full buildout), and 

in the case of SCAQMD Rule 2305, the 

rule applies to larger warehouses (i.e., 

greater than 100,000 square feet of 

indoor floor space in a single building). 

Also, the issue of whether ISR rules can 

apply to existing as well as new or 

modified facilities was not raised in our 

action on SJVUAPCD Rule 9510. The 

EPA has explained, in our proposed 

rule, why we conclude that the District 

is not precluded, consistent with CAA 

section 110(a)(5), from regulating both 

existing and new warehouses in Rule 

2305.99 As such, our actions approving 

SJVUAPCD Rule 9510 and, in this 

document, approving SCAQMD Rule 

2305 are not inconsistent but simply 

reflect two different approaches to ISR 

programs that States may adopt, but are 

not required to adopt, as part of their 

SIPs under CAA section 110(a)(5). 

With respect to the purported 

inconsistency between SCAQMD Rule 

2305 and CARB’s description of ISR 

rules that is cited by the EPA in the 

Agency’s authorization of CARB’s 

amended Ocean-Going Vessels At-Berth 

Regulation,100 we note first that 

establishing an emissions cap may be a 

feature of an ISR rule, but it is not a 

required feature. Other than by defining 

the terms ‘‘indirect source’’ and 

‘‘indirect source review program’’ and 

by distinguishing an ISR program from 

a ‘‘transportation control measure,’’ 

CAA section 110(a)(5) does not 

prescribe any particular approach to ISR 

programs. Establishing a cap for 

emissions at an entire facility or 

reducing emissions below a certain 

facility-wide level are only two possible 

approaches in an ISR rule, but other 

approaches are possible as well. In the 

case of SCAQMD Rule 2305, the rule 

does not establish an emissions cap for 

warehouses and does not require 

emissions reductions below a certain 

level. Rather, Rule 2305 requires 

warehouse operators to earn points to 

meet an annual obligation based on a 

proxy for all mobile source emissions 

associated with warehouse operations, 

through completion of emissionsreducing actions or investments listed 

in Rule 2305, through such actions 

approved as part of a Custom WAIRE 

plan, or through paying the mitigation 

fee, approaches which are also 

consistent with CAA section 

110(a)(5).101 What these approaches 

have in common is that they are 

examples of the types of facility-byfacility reviews of indirect sources to 

which CAA section 110(a)(5) refers. 

F. Center for Community Action and 

Environmental Justice (CCAEJ) 

Comments and EPA Responses 

CCAEJ Comment #1: The CCAEJ 

expresses concerns that the SCAQMD 

will not disclose information necessary 

for the public to enforce SCAQMD Rule 

2305. The CCAEJ also expresses 

concerns that the SCAQMD has not 

developed a web portal for public access 

to that information, may withhold 

important compliance information as 

business confidential information, and 

may aggregate important compliance 

data. The CCAEJ notes SCAQMD’s 

disclosure of a high (55 percent) 

noncompliance rate with Rule 2305, 

which, in CCAEJ’s view, demonstrates 

the urgency of the EPA ensuring that the 

public can enforce Rule 2305. The 

CCAEJ requests that the EPA 

conditionally approve, or partially 

approve and partially disapprove (or 

take other appropriate action under 

CAA section 110(k)), SCAQMD Rule 

2305 to ensure that the SCAQMD 

amends Rule 2305 to address public 

disclosure of information to ensure that 

the public can enforce the rule. The 

CCAEJ also states that the EPA should 

require the SCAQMD to submit the 

program and parameters of the public’s 

access to WAIRE program compliance 

data for inclusion as part of the SIP. 

EPA Response to CCAEJ Comment #1: 

In EPA’s proposed rule, the EPA 

preliminarily concluded that Rule 2305 

includes recordkeeping and reporting 

requirements that are sufficient to 

ensure compliance with the applicable 

requirements. In support of this 

preliminary conclusion, the EPA 

incorrectly referred to two sections of 

the California Code of Regulations (13 

CCR 2023.8 and 13 CCR 2023.9). The 

correct references are to SCAQMD Rule 

2305(d)(7)(A) (Warehouse Operations 

Notification or WON), 2305(d)(7)(B) 

(Initial Site Information Report), and 

2305(d)(7)(C) (Annual WAIRE Report). 

Warehouse facility owners must submit 

WONs to the SCAQMD within certain 

time periods prescribed in Rule 2305. 

The obligation to submit Initial Site 

Information Reports to the SCAQMD 

falls on warehouse operators and the 

obligation to submit Annual WAIRE 

Reports falls on warehouse operators 

who are required to earn WAIRE Points, 

or warehouse facility, or landowners 

who earn WAIRE Points as applicable. 

Submission of these records, as stated 

by the SCAQMD, is through the WAIRE 

POP Portal. 

In comments submitted in response to 

EPA’s proposed rule, the SCAQMD 

indicates that it has created a separate 

web page to provide information on the 

WAIRE Program to the public. The 

SCAQMD also indicates that it is 

evaluating a proposal to include 

additional WAIRE Program data, 

including aggregated information about 

compliance obligations and completed 

compliance actions, in its Facility 

Information Detail (‘‘FIND’’) tool. The 

EPA supports the SCAQMD’s efforts to 

provide online access to the public of 

rule compliance information, but 

providing such access is not a CAA 

requirement. The rule compliance 

information that SCAQMD provides 

online to the public will serve to 

supplement and enhance the 

information available to the public 

through more traditional means such as 

requests made to the SCAQMD under 

the California Public Records Act.102

The EPA has no information at the 

present time that the SCAQMD’s review 

of public information requests under the 

California Public Records Act will 

substantially impair enforceability of 

the rule by the public, and the EPA 


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103See SCAQMD, Compliance Advisory, ‘‘Notice 

to All Warehouse Owners and Operators regarding 

Upcoming Enforcement Action and Potential Daily 

Penalties,’’ September 12, 2023; and SCAQMD’s list 

titled ‘‘Rule 2305 violations issued on 12/14/2023.’’ 

104Union Electric Company v. EPA; 427 U.S. 246, 

265 (1976). 

105SCAQMD, Final Staff Report, Appendix F, 

Master Response 5. The two economic studies are 

Industrial Economics, Inc. (IEc), ‘‘Assessment of 

Warehouse Relocations Associated with the South 

Coast Air Quality Management District Warehouse 

Indirect Source Rule,’’ December 23, 2020, and 

SCAQMD, ‘‘Final Socioeconomic Impact 

Assessment for Proposed Rule 2305—Warehouse 

Indirect Source Rule—Warehouse Actions and 

Investments to Reduce Emissions (WAIRE) Program 

and Proposed Rule 316—Fees for Rule 2305,’’ May 

2021. 106SCAQMD, Final Staff Report, Appendix F, 

Master Response 5. 107 Id. 

declines to speculate as to the outcome 

of future responses by SCAQMD to 

public information requests related to 

Rule 2305. Accordingly, the EPA 

believes that citizens can obtain the 

information necessary to determine 

compliance by individual facilities with 

SCAQMD Rule 2305 with or without 

online access to rule compliance 

information. 

As to the high noncompliance rate 

reported last year by the SCAQMD, the 

EPA is aware of this circumstance and 

agree with the CCAEJ on the importance 

of enforceability of Rule 2305 by the 

public, but the EPA also notes the 

specific actions SCAQMD has taken to 

improve compliance and to enforce the 

rule.103

Lastly, because the EPA concludes 

that Rule 2305 includes recordkeeping 

and reporting requirements that are 

sufficient to ensure compliance with the 

applicable requirements, we have no 

occasion to explore alternatives to full 

approval under CAA section 110(k), 

such as a partial approval/partial 

disapproval or a conditional approval, 

with respect to this issue, nor does the 

EPA believe that it will be necessary to 

require the SCAQMD to submit the 

program and parameters of the public’s 

access to WAIRE program compliance 

data for inclusion as part of the SIP. 

CCAEJ Comment #2: Citing the EPA’s 

proposed approval that states that the 

online portal (WAIRE POP) will provide 

the public information about how 

warehouse operators and owners are 

complying with Rule 2305 and how 

WAIRE Mitigation Program funds are 

spent, the CCAEJ notes that no such 

portal exists and that the District has not 

yet finalized what data would be made 

available on that portal. 

EPA Response to CCAEJ Comment #2: 

In comments submitted in response to 

the EPA’s proposed rule, the SCAQMD 

indicates that the EPA’s description of 

the WAIRE POP Portal in the proposed 

rule was not correct. The SCAQMD 

clarifies that the WAIRE POP Portal’s 

purpose is to only electronically collect 

information, reports, and fees from 

warehouse owners and operators 

annually. The WAIRE POP Portal does 

not distribute information about the 

WAIRE Program to the public. If the 

public would like to enforce Rule 2305, 

they can request the data from the 

SCAQMD. This is in compliance with 

40 CFR 51.211 which requires owners or 

operators of stationary sources to 

maintain records and periodically report 

these records to the State or District. 

The SCAQMD also indicates that it has 

created a separate web page to provide 

information on the WAIRE Program to 

the public. That page hosts links to 

various resources related to the WAIRE 

Program, including the WAIRE 

Program’s annual report as stated in 

EPA Response to CCAEJ Comment #1. 

G. International Warehouse Logistics 

Association (IWLA) Comments and EPA 

Responses 

IWLA Comment #1: The IWLA 

believes that Rule 2305 will have 

unintended consequences and an 

overall negative effect on California’s 

economy. The IWLA states that the 

mitigation fees accrued from the rule 

will raise the costs for California 

warehouse operators and increase the 

cost of living for Californians. The 

IWLA asserts that these increased costs 

will be regressive in nature and 

negatively impact lower-income 

communities. 

EPA Response to IWLA Comment #1: 

The EPA notes that the commenter does 

not challenge EPA’s conclusion that 

SCAQMD Rule 2305 generally meets all 

applicable CAA requirements but rather 

contends that rule will have unintended 

adverse economic and socioeconomic 

effects. However, in reviewing SIP 

submissions, the EPA’s role is to 

approve State choices, provided that 

they meet the minimum criteria set in 

the CAA or any applicable EPA 

regulations. Thus, considerations such 

as whether a District rule may be 

economically or technologically 

challenging cannot form the basis for 

EPA disapproval of a rule submitted by 

a State as part of a SIP.104

IWLA Comment #2: The IWLA asserts 

that the increased costs associated with 

Rule 2305 may cause some warehouse 

operators to relocate out of state and 

thereby increasing mobile source 

emissions as trucks travel from 

Southern California to new locations 

and decreasing employment 

opportunities. 

EPA Response to IWLA Comment #2: 

With respect to economic challenges 

arising from Rule 2305, please see EPA 

Response to IWLA Comment #1. Also, 

we note that the SCAQMD considered 

the potential for warehouse relocation 

effects due to Rule 2305 based on two 

economic studies and peer reviews of 

those studies.105 In response to 

comments on proposed Rule 2305, the 

SCAQMD stated that these studies fully 

analyze the range of potential economic 

impacts and conversely the monetized 

public health benefits of Rule 2305 (and 

its associated fee rule, Rule 316).106 The 

SCAQMD indicates that the studies 

conclude that the costs potentially 

imposed by Rule 2305 (and Rule 316) 

are not anticipated to cause warehouses 

to relocate outside of the region.107

IWLA Comment #3: The IWLA states 

that Rule 2305’s goal of reducing truck 

pollution is at the expense of the 

warehouse operator, not the truck 

operator. Moreover, the IWLA asserts 

that warehouse operators have no 

control over what types of trucks arrive 

at their facilities and that Rule 2305 

does not incentivize trucking companies 

to upgrade their fleets to ZE/NZE trucks 

and is, in the end, simply a tax on 

warehouse operators. 

EPA Response to IWLA Comment #3: 

With respect to economic or 

technological challenges arising from 

Rule 2305, please see EPA Response to 

IWLA Comment #1. 

Nonetheless, the EPA acknowledges 

the challenges for warehouse operators 

in meeting the requirements of Rule 

2305, but we note that warehouse 

operators have three basic options, or 

any combination of these options, 

through which to earn or obtain points 

sufficient to meet their WPCO and that 

all these options provide for points to be 

earned toward the WPCO from actions 

that do not involve ZE/NZE trucks or a 

combination of these options. 

In addition, the EPA notes that, based 

on the SCAQMD’s first Annual Report 

for the WAIRE Program, warehouse 

operators intend to meet their 

obligations under Rule 2305 in various 

ways with only limited reliance on the 

mitigation fee option as described in 

EPA’s Response to BAR Logistics 

Comment #2. 

IWLA Comment #4: The IWLA asserts 

that the SCAQMD has overreached its 

authority with Rule 2305 because, by 

statute, SCAQMD has jurisdiction over 

air pollutant emissions from stationary 

sources (i.e., warehouses) in the region, 

but through Rule 2305, the SCAQMD is 

attempting to regulate mobile sources 

(trucks) even though the California Air 

Resources Board has jurisdiction over 

mobile sources. 


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108 88 FR 70616, 70620–70621. 

109SCAQMD Resolution 21–9, adopted May 7, 

2021, pp. 6–7. 

110SCAQMD Final Staff Report, p. 74. 

111Union Electric Company v. EPA; 427 U.S. 246, 

265 (1976). 

112 88 FR 70616, 70619, citing information from 

SCAQMD, Annual Report for the Warehouse 

Actions and Investments to Reduce Emissions 

(WAIRE) Program, January 2023, p. 15. 

113SCAQMD, Hybrid Mobile Source Committee 

Meeting, Agenda, March 15, 2024, p. 18. 

114SCAQMD Rule 2305(d)(1)(A). 

115SCAQMD, Final Staff Report, Appendix F, 

Response to Comment 45–6. 

116 Id. 

117 Id. 

EPA Response to IWLA Comment #4: 

Rule 2305 does not directly regulate 

mobile sources but is instead directed 

towards warehouses, which are facilities 

that attract mobile source emissions. As 

such, the EPA finds Rule 2305 to be an 

ISR regulation, and, in the proposed 

rule, the EPA addressed the issue of 

SCAQMD’s authority under State law to 

adopt Rule 2305 by reference to 

California Health & Safety Code section 

40440 (‘‘Rules and regulations’’), which 

authorizes the SCAQMD to provide for 

indirect source controls in those areas of 

the South Coast District that have highlevel, localized concentrations of 

pollutants.108

IWLA Comment #5: The IWLA asserts 

that the SCAQMD has presented no plan 

on how the new revenues generated 

from Rule 2305 will be spent, and on 

this basis, the IWLA believes Rule 2305 

to be ‘‘arbitrary and capricious’’ under 

State law. 

EPA Response to IWLA Comment #5: 

The commenter has not identified the 

specific State law provision that would 

present an obstacle to the SCAQMD’s 

implementation of Rule 2305 due to the 

purported absence of a plan for 

spending mitigation fees collected by 

the Agency. The EPA notes that, in 

adopting Rule 2305, the SCAQMD 

Board directed the SCAQMD Executive 

Officer to develop the WAIRE 

Mitigation Program with funds 

generated from mitigation fee payments 

from Rule 2305.109 The SCAQMD Board 

has established certain parameters that 

will govern how funds generated from 

mitigation fee payments are to be spent, 

how funds are to be awarded, and where 

funds are to be spent. 

IWLA Comment #6: In addition to the 

hefty fees associated with Rule 2305, the 

IWLA asserts that there are many 

additional burdensome reporting 

requirements that will add substantial 

administrative fees to warehouse 

operations. 

EPA Response to IWLA Comment #6: 

The reporting requirements in SCAQMD 

Rule 2305 are important elements of the 

rule to document compliance with the 

requirements of the rule and to provide 

for enforceability of the rule by the 

District, the EPA, and citizens. The EPA 

notes that the SCAQMD expects the 

administrative costs associated with 

recordkeeping and reporting for Rule 

2305 to be similar to the administrative 

costs associated with CARB’s Advanced 

Clean Trucks Regulation, specifically for 

large entity reporting, which is 

estimated to be no more than 25 hours 

of work totaling $1,250 per year.110

IWLA Comment #7: The IWLA states 

that the WAIRE mitigation points 

system requires warehouses to mitigate 

external truck emissions through the use 

of more sustainable technology within 

their warehouse operation and 

infrastructure, but much of the 

technology is still in its nascent phase 

and is presently cost-prohibitive and 

unproven in the field, especially as it 

pertains to hydrogen technology and 

heavy-duty ZE/NZE trucks. 

EPA Response to IWLA Comment #7: 

In reviewing SIP submissions, the EPA’s 

role is to approve State choices, 

provided that they meet the minimum 

criteria set in the CAA or any applicable 

EPA regulations. Thus, considerations 

such as whether a District rule may be 

economically or technologically 

challenging cannot form the basis for 

EPA disapproval of a rule submitted by 

a State as part of a SIP.111

However, as noted in the EPA 

Response to BAR Logistics Comment #2, 

based on the SCAQMD’s first Annual 

Report for the WAIRE Program, 

warehouse operators intend to meet 

their obligations under Rule 2305 in 

various ways with only limited reliance 

on the mitigation fee option. The first 

Annual Report suggests that warehouse 

operators expect to meet their WPCOs, 

at least in the early years of the program, 

primarily through ZE hostler usage, (i.e., 

yard tractors that move trailers and 

containers around warehouse facilities; 

approximately 40% of the anticipated 

WAIRE points based on the Initial Site 

Information Report (ISIRs) received), 

NZE Class 8 Truck Visits 

(approximately 27%), and ZE hostler 

acquisition (approximately 8%).112

More recent data shows that, for Year 

2023, warehouse operators reported 

WAIRE Points primarily from hostler 

usage (53%), solar panel installation 

and usage (15%) and NZE truck usage 

(14%).113

IWLA Comment #8: The IWLA asserts 

that the stringency factor of 0.0025 

seems to be arbitrary, there does not 

seem to be any modeling or science 

behind how the number was derived, 

and the hypothetical emission 

reductions do not appear to be practical. 

Furthermore, the stringency factor in 

Rule 2305 can be increased at any time 

by the SCAQMD Board, at its sole 

discretion. 

EPA Response to IWLA Comment #8: 

Under SCAQMD Rule 2305, the 

stringency factor is used along with 

WATT and an annual variable to 

determine the annual WPCO for a 

warehouse operator.114 The stringency 

factor in Rule 2305 is 0.0025 WAIRE 

Points per WATT. 

During the District’s rulemaking 

process, the SCAQMD explained that 

the stringency factor was developed on 

the basis of an analysis of 18 WAIRE 

Menu compliance scenarios and 

additional supporting analysis in the 

Socioeconomic Impact Assessment, 

including a warehouse relocation 

study.115 The SCAQMD noted that there 

is no mathematical equation governing 

the entire process, nor is there an 

overarching governing equation 

required, and that the totality of the 

impact of Rule 2305 was considered for 

the stringency of 0.0025 WAIRE Points 

per WATT.116 According to the 

SCAQMD, the benefits of Rule 2305 at 

the recommended stringency include, 

but are not limited to: significant 

emission reductions of about 1.5 to 3 

tons per day of NOX, the encouragement 

of many facilitating measures to 

enhance emission reductions from other 

programs, public health benefits for 

most compliance scenarios that are 

about three times higher than the costs, 

costs on industry that are not out of line 

with normal cost increases that the 

industry experiences routinely in rent 

hikes, a market signal for the goods 

movement industry to encourage 

adoption NZE and ZE technologies on a 

more widespread basis than the 

unregulated market would provide— 

and much faster than CARB would 

require with its regulations, satisfying 

the requirements of control measure 

MOB–03 in the 2016 AQMP, satisfying 

the commitment in AB 617 Community 

Emission Reduction Plans, and reducing 

emissions for local communities located 

closest to warehouses who have 

experienced disproportionate 

environmental burdens just by living 

where they do.117

The SCAQMD Board could, in the 

future, consider increasing the 

stringency factor, but prior to adoption, 

the SCAQMD would be required to meet 

State procedural requirements for rule 

amendments that including providing 

notice to the public of the proposed 

amendments and the opportunity for 


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118Union Electric Company v. EPA; 427 U.S. 246, 

265 (1976). 

119SCAQMD Rule 2305, Table 1. 

120SCAQMD Rule 2305, Table 2. 

121CTA v. SCAQMD, Order Re: Plaintiff’s Motion 

for Summary Judgment as to Plaintiff’s Complaint 

for Declaratory Judgment and Injunctive Relief (Dkt. 

65); and Plaintiff-Intervenor Airlines for America’s 

Motion for Summary Judgment (Dkt, 73), Dkt. 162, 

December 14, 2023, p. 28. 

public comment. No such amendment 

would be federally enforceable unless 

and until the State submits, and the EPA 

approves, amended Rule 2305 as a 

revision to the SIP under CAA section 

110(k). 

IWLA Comment #9: The IWLA asserts 

that warehouses in SCAQMD coverage 

areas will be placed at a competitive 

disadvantage and beneficial cargo 

owners will look to divert their cargo to 

alternative areas in surrounding States 

or to alternative ports of entry to 

warehouse and distribute their goods. 

EPA Response to IWLA Comment #9: 

Please see EPA Response to IWLA 

Comment #2. 

IWLA Comment #10: The IWLA states 

that Rule 2305 does not adequately 

address why the SCAQMD or another 

air district cannot adopt even more 

expansive ISRs (e.g., what would stop 

SCAQMD from imposing an ISR on 

retailers based on vehicle traffic to their 

locations). 

EPA Response to IWLA Comment #10: 

This comment is beyond the scope of 

this rulemaking. The EPA will consider 

future ISRs for compliance with CAA 

requirements if and when such ISRs are 

submitted as revisions to the SIP. 

IWLA Comment #11: The IWLA asks 

that the EPA not approve SCAQMD 

Rule 2305 into the California SIP. 

EPA Response to IWLA Comment #11: 

Under CAA section 110(k), the EPA is 

obligated to approve, disapprove, or 

conditionally approve, in whole or in 

part, SIP revisions submitted to the 

Agency within a prescribed period. 

Thus, the EPA is obligated to take a final 

action on Rule 2305. In addition, the 

EPA notes that an EPA disapproval of 

Rule 2305 would not prevent the 

implementation of Rule 2305 within the 

SCAQMD because the rule would still 

be enforceable, under State law, 

regardless of the EPA’s action to 

approve or disapprove SCAQMD Rule 

2305 as a revision to the California SIP. 

The consequence of the EPA’s approval 

of Rule 2305 as a revision to the SIP is 

that the rule becomes federally 

enforceable. 

H. Private Citizen Comments and EPA 

Responses 

Private Citizen Comment #1: The 

private citizen states that the EPA is 

calling for SCAQMD Rule 2305 to go 

into effect and for the affected parties to 

conform to SCAQMD Rule 2305 by the 

2024 calendar year. This compliance 

deadline, contends the private citizen, 

will have a negative impact on 

warehouses, specifically the truck 

drivers that Rule 2305 will impact. The 

private citizen contends that it is 

unreasonable to require a warehouse to 

comply by the beginning of 2024 or pay 

a mitigation fee. 

EPA Response to Private Citizen 

Comment #1: The EPA notes that the 

commenter does not challenge EPA’s 

conclusion that SCAQMD Rule 2305 

generally meets all applicable CAA 

requirements but rather contends that 

rule will go into effect with insufficient 

time for warehouse operators to meet 

the requirements and will thereby result 

in negative economic effects. However, 

in reviewing SIP submissions, the EPA’s 

role is to approve State choices, 

provided that they meet the minimum 

criteria set in the Clean Air Act or any 

applicable EPA regulations. Thus, 

considerations such as whether a 

District rule may be economically or 

technologically challenging cannot form 

the basis for EPA disapproval of a rule 

submitted by a State as part of a SIP.118

Also, an EPA disapproval of Rule 

2305 would not prevent the 

implementation of Rule 2305 within the 

SCAQMD because the rule would still 

be enforceable, under State law, 

regardless of the EPA’s action to 

approve or disapprove SCAQMD Rule 

2305 as a revision to the California SIP. 

The timing of the EPA’s approval of 

Rule 2305 as a revision to the SIP does 

not affect the compliance deadlines set 

forth in the rule (and that already are in 

effect under State law) but, rather, 

affects when the rule becomes federally 

enforceable. 

Lastly, we note that Rule 2305 has 

been in effect since May 2021 and that 

the rule was designed to apply the 

requirements in three phases beginning 

with year 2022 with the largest 

warehouses (greater than or equal to 

250,000 square feet), then to year 2023 

for medium-sized warehouses (between 

150,000 and 250,000 square feet), and 

then to year 2024 for smaller 

warehouses (100,000 to 150,000 square 

feet).119 Within each phase, the 

requirements themselves are phased in 

through the use of an annual variable 

that begins with a 0.33 value in the first 

year, a 0.67 value in the second year, 

and a 1.0 value in the third and 

subsequent years.120 Again, the timing 

of the EPA’s action on SCAQMD Rule 

2305 under CAA section 110(k) has no 

effect on the compliance deadlines set 

forth in Rule 2305. 

Private Citizen Comment #2: The 

private citizen asserts that the proposed 

rule fails to adequately address the 

ambiguity in CAA section 110(a)(5) as to 

whether the term ‘‘indirect source 

review program’’ encompasses existing, 

as well as new or modified, facilities. 

The private citizen states that the 

ambiguity poses a problem for 

compliance with the new rule. Also, the 

private citizen states that the EPA’s 

proposed rule fails to address the 

ambiguity in a meaningful way, which, 

in turn, may lead to litigation and 

potential delay in achieving the 

emissions reductions that the rule is 

intended to achieve. 

EPA Response to Private Citizen 

Comment #2: With respect to the 

comment regarding the applicability of 

ISR programs to existing, and not just 

new or modified, indirect sources under 

CAA section 110(a)(5), please see EPA 

Response to POLB Comment #3. 

As to the issue of the purported 

ambiguity in CAA section 110(a)(5) 

affecting compliance with Rule 2305, 

we note that Rule 2305 unambiguously 

applies to both existing and new 

warehouses of a certain size, and thus, 

the purported ambiguity in CAA section 

110(a)(5) has no bearing on compliance 

with Rule 2305. 

Lastly, as to the potential for this 

issue to lead to litigation, the EPA notes 

that this particular issue was included 

among the issues raised in a legal 

challenge against the SCAQMD’s 

adoption of Rule 2305. In that case, the 

Court ruled in favor of the SCAQMD 

and, as to this issue, stated: ‘‘Nothing in 

the text, structure, or purpose of the 

indirect-source-review provision 

suggests that this phrase limits indirect 

source reviews to those based on new 

and modified indirect sources.’’ 121 The 

EPA finds that the Court’s decision and 

rationale provide further support to the 

EPA’s conclusion as to this particular 

issue. 

III. EPA Action 

No comments were submitted that 

change our assessment of the rule as 

described in our proposed action. 

Therefore, as authorized in section 

110(k)(3) of the Act, the EPA is 

approving SCAQMD Rule 2305 into the 

California SIP. The EPA concludes that, 

while SCAQMD Rule 2305 does not 

meet all the evaluation criteria for 

enforceability (i.e., certain definitions 

that cross-reference rules that are not 

part of the SIP, the sunset clause, and 

certain instances of unbounded 

director’s discretion), we are taking final 

action to approve it because it is not a 

required SIP element and would 


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Federal Register / Vol. 89, No. 176 / Wednesday, September 11, 2024 / Rules and Regulations 73587 

122SCAQMD Final Staff Report, pp. 9–10. 

123CARB, Community Air Protection Blueprint 

For Selecting Communities, Preparing Community 

Emissions Reduction Programs, Identifying 

Statewide Strategies, and Conducting Community 

Air Monitoring, October 2018, page 1. 

strengthen the SIP. In light of the 

deficiencies, however, the EPA 

concludes that the submitted rule 

should not be credited in any 

attainment and rate of progress/ 

reasonable further progress 

demonstrations. This final action 

incorporates SCAQMD Rule 2305 into 

the federally enforceable SIP. 

IV. Incorporation by Reference 

In this rule, the EPA is finalizing 

regulatory text that includes 

incorporation by reference. In 

accordance with requirements of 1 CFR 

51.5, the EPA is finalizing the 

incorporation by reference of SCAQMD 

Rule 2305, Warehouse Indirect Source 

Rule—Warehouse Actions and 

Investments to Reduce Emissions 

(WAIRE) Program, adopted on May 7, 

2021, that establishes an Indirect Source 

Review program for certain warehouse 

owners and operators within the 

SCAQMD. The EPA has made, and will 

continue to make, these documents 

available through 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). 

V. 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 action merely 

approves State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive 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 (Public Law 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 approves 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. 

Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

February 16, 1994) directs Federal 

agencies to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on communities with 

environmental justice (EJ) concerns to 

the greatest extent practicable and 

permitted by law. The EPA defines EJ as 

‘‘the fair treatment and meaningful 

involvement of all people regardless of 

race, color, national origin, or income 

with respect to the development, 

implementation, and enforcement of 

environmental laws, regulations, and 

policies.’’ The EPA further defines the 

term fair treatment to mean that ‘‘no 

group of people should bear a 

disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ 

The SCAQMD did not evaluate EJ 

considerations as part of its SIP 

submittal; the CAA and applicable 

implementing regulations neither 

prohibit nor require such an evaluation. 

However, the Community Steering 

Committees for four communities 

admitted into the State’s Community 

Air Protection Program, created by 

Assembly Bill 617, in the affected area 

requested development of a warehouse 

ISR rule due to concerns regarding air 

pollution impacts from trucks and 

diesel particulate matter.122 The focus of 

the Community Air Protection Program 

is to reduce exposure in communities 

most impacted by air pollution.123 The 

EPA did not perform an EJ analysis and 

did not consider EJ in this 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. 

Consideration of EJ is not required as 

part of this action, and there is no 

information in the record inconsistent 

with the stated goal of E.O. 12898 of 

achieving EJ for communities with EJ 

concerns. 

Lastly, the SIP is not approved to 

apply on any Indian reservation land or 

in any other area where the EPA or an 

Indian Tribe has demonstrated that a 

Tribe has jurisdiction. In those areas of 

Indian country, this action 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). 

This action is subject to the 

Congressional Review Act, and the EPA 

will submit a rule report to each House 

of the Congress and to the Comptroller 

General of the United States. This action 

is not a ‘‘major rule’’ as defined by 5 

U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by November 12, 

2024. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review, nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements. 

Dated: September 4, 2024. 

Martha Guzman Aceves, 

Regional Administrator, Region IX. 

For the reasons stated in the 

preamble, the Environmental Protection 

Agency amends part 52, chapter I, title 

40 of the Code of Federal Regulations as 

follows: 


lotter on DSK11XQN23PROD with RULES1
73588 Federal Register / Vol. 89, No. 176 / Wednesday, September 11, 2024 / Rules and Regulations 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.220 is amended by 

adding reserved paragraph (c)(615) and 

adding paragraph (c)(616) to read as 

follows: 

§ 52.220 Identification of plan—in part. 

* * * * * 

(c) * * * 

(615) [Reserved] 

(616) The following regulation was 

submitted on August 13, 2021, by the 

Governor’s designee. 

(i) Incorporation by reference. (A) 

South Coast Air Quality Management 

District. 

(1) Rule 2305, ‘‘Warehouse Indirect 

Source Rule—Warehouse Actions and 

Investments to Reduce Emissions 

(WAIRE) Program,’’ adopted on May 7, 

2021. 

(2) [Reserved] 

(B) [Reserved] 

(ii) [Reserved] 

* * * * * 

[FR Doc. 2024–20349 Filed 9–10–24; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 84 

[EPA–HQ–OAR–2024–0065; FRL–11597–01– 

OAR] 

RIN 2060–AW15 

Phasedown of Hydrofluorocarbons: 

Vacated Provisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The U.S. Environmental 

Protection Agency is taking final action 

to remove regulations from the Code of 

Federal Regulations that have been 

vacated by the United States Court of 

Appeals for the District of Columbia 

Circuit related to the prohibition of 

disposable cylinders and tracking of 

cylinders of hydrofluorocarbons. 

DATES: This final rule is effective on 

September 11, 2024. 

ADDRESSES: The U.S. Environmental 

Protection Agency (EPA) has established 

a docket for this action under Docket ID 

No. EPA–HQ–OAR–2024–0065. All 

documents in the docket are listed on 

the https://www.regulations.gov 

website. Although listed in the index, 

some information may not be publicly 

available, e.g., Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard-copy form. 

Publicly available docket materials are 

available electronically through http://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Connor Henderson, Stratospheric 

Protection Division and Office of Air 

and Radiation (6205A), Environmental 

Protection Agency, 1200 Pennsylvania 

Ave NW, Washington, DC 20460; 

telephone number: 202–564–2177; 

email address: Henderson.Connor@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Does this action apply to me? 

This action may be relevant for you if 

you produce, import, export, destroy, 

use as a feedstock or process agent, 

reclaim, or recycle HFCs. Potentially 

relevant categories, North American 

Industry Classification System (NAICS) 

codes, and examples of potentially 

relevant entities are included in table 1. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities that may 

be interested in this action. If you have 

questions regarding the relevance of this 

action to a particular entity, consult the 

person listed in the FOR FURTHER

INFORMATION CONTACT section. 

TABLE 1—NAICS CLASSIFICATION OF POTENTIALLY RELEVANT ENTITIES

NAICS Code NAICS industry description 

325120 ............................................ Industrial Gas Manufacturing. 

325199 ............................................ All Other Basic Organic Chemical Manufacturing. 

325211 ............................................ Plastics Material and Resin Manufacturing. 

325412 ............................................ Pharmaceutical Preparation Manufacturing. 

325414 ............................................ Biological Product (except Diagnostic) Manufacturing. 

325998 ............................................ All Other Miscellaneous Chemical Product and Preparation Manufacturing. 

326220 ............................................ Rubber and Plastics Hoses and Belting Manufacturing. 

326150 ............................................ Urethane and Other Foam Product. 

326299 ............................................ All Other Rubber Product Manufacturing. 

333415 ............................................ Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment 

Manufacturing. 

333511 ............................................ Industrial Mold Manufacturing. 

334413 ............................................ Semiconductor and Related Device Manufacturing. 

334419 ............................................ Other Electronic Component Manufacturing. 

334510 ............................................ Electromedical and Electrotherapeutic Apparatus Manufacturing. 

336212 ............................................ Truck Trailer Manufacturing. 

336214 ............................................ Travel Trailer and Camper Manufacturing. 

336411 ............................................ Aircraft Manufacturing. 

336611 ............................................ Ship Building and Repairing. 

336612 ............................................ Boat Building. 

339112 ............................................ Surgical and Medical Instrument Manufacturing. 

423720 ............................................ Plumbing and Heating Equipment and Supplies (Hydronics) Merchant Wholesalers.

423730 ............................................ Warm Air Heating and Air-Conditioning Equipment and Supplies Merchant Wholesalers. 

423740 ............................................ Refrigeration Equipment and Supplies Merchant Wholesalers. 

423830 ............................................ Industrial Machinery and Equipment Merchant Wholesalers. 

423840 ............................................ Industrial Supplies Merchant Wholesalers. 

423860 ............................................ Transportation Equipment and Supplies (except Motor Vehicle) Merchant Wholesalers. 

424690 ............................................ Other Chemical and Allied Products Merchant Wholesalers. 

488510 ............................................ Freight Transportation Arrangement. 

541380 ............................................ Testing Laboratories. 


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