The EPA Region 9 Regional Administrator, Jared Blumenfeld signed the following final rule on April 28, 

2014, and the EPA is submitting it for publication in the Federal Register (FR). While we have taken 

steps to ensure the accuracy of this Internet version of the rule, it is not the official version of the rule for 

purposes of compliance. Please refer to the official version in a forthcoming FR publication, which will 

appear on the Government Printing Office's FDsys website (http://fdsys.gpo.gov/fdsys/

search/home.action) and on Regulations.gov (http://www.regulations.gov) in Docket No. EPA-R09-OAR2013-0534.

6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2013-0534; FRL- ]

Approval and Promulgation of Implementation Plans; California; San Joaquin Valley; 

Contingency Measures for the 1997 PM2.5 Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: The Environmental Protection Agency (EPA) is approving a State 

implementation plan (SIP) revision submitted by California that corrects deficiencies in the 

Clean Air Act (CAA) contingency measures for the 1997 annual and 24-hour national ambient 

air quality standards (NAAQS) for fine particulate matter (PM2.5) in the San Joaquin Valley

(SJV). Approval of this SIP revision lifts the CAA section 179(b)(2) offset sanctions and 

terminates the CAA section 179(b)(1) highway funding sanction clock triggered by the EPA’s 

partial disapproval of the SJV SIP for attainment of the 1997 PM2.5 NAAQS on November 9, 

2011.

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

PUBLICATION IN THE FEDERAL REGSITER].

ADDRESSES: You may inspect the supporting information for this action, identified by docket 

number EPA-R09-OAR-2013-0534, by one of the following methods:

1. Federal eRulemaking portal, http://www.regulations.gov, please follow the online instructions; 

or,
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

2

2. Visit our regional office at, U.S. Environmental Protection Agency Region 9, 75 Hawthorne 

Street, San Francisco, CA 94105-3901.

Docket: The index to the docket (docket number EPA-R09-OAR-2013-0534) for this action is 

available electronically at http://www.regulations.gov and in hard copy at EPA Region 9, 75 

Hawthorne Street, San Francisco, California. While documents in the docket are listed in the 

index, some information may be publicly available only at the hard copy location (e.g.,

voluminous records, large maps, copyrighted material), and some may not be publicly available 

in either location (e.g., Confidential Business Information). To inspect the hard copy materials, 

please schedule an appointment during normal business hours with the contact listed directly 

below.

FOR FURTHER INFORMATION CONTACT: Frances Wicher, EPA Region 9, (415) 972-

3957, wicher.frances@epa.gov.

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

refer to the EPA.

Table of Contents

I. Background Information

II. Public Comments and the EPA’s Responses

A. Comments regarding necessary types and quantities of contingency measure emission 

reductions

B. Comments regarding emission reductions from waiver measures and incentive grant 

programs

C. General Comments

III. Final Actions

IV. Statutory and Executive Order Reviews

I. Background Information
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

3

On November 9, 2011, the EPA partially approved and partially disapproved the San Joaquin 

Valley PM2.5 State Implementation Plan (“SJV PM2.5 SIP”) (76 FR 69896). The SJV PM2.5 SIP 

is California’s plan for attaining the 1997 PM2. 5 NAAQS in the San Joaquin Valley.

1 Our partial 

disapproval of the SJV PM2.5 SIP was based on our determination that its contingency measure 

provisions failed to meet the requirements of Clean Air Act (“CAA” or “the Act”) section 

172(c)(9), which require that the SIP for each PM2.5 nonattainment area contain contingency 

measures to be implemented if the area fails to make reasonable further progress (RFP) or to 

attain the NAAQS by the applicable attainment date. See 76 FR 41338, 41357 to 41359 (July 13, 

2011) (proposed partial approval and partial disapproval of SJV PM2.5 SIP) and 76 FR 69896, 

69918 to 69919 and 69924 (final partial approval and partial disapproval of SJV PM2.5 SIP). The

disapproval became effective on January 9, 2012, starting a sanctions clock for imposition of 

new source review offset sanctions 18 months after January 9, 2012, and highway sanctions 6 

months after the imposition of offset sanctions, pursuant to CAA section 179 and our regulations 

at 40 CFR 52.31.

On July 3, 2013, CARB submitted the Contingency Measure SIP as a revision to the 

California State Implementation Plan. The Contingency Measure SIP addresses the SIP 

deficiencies identified in the EPA’s 2011 partial disapproval of the SJV PM2.5 SIP by (1) 

confirming that the SJV area had met its 2012 RFP milestones and (2) expanding upon the 

attainment contingency measures in the SJV PM2.5 SIP to establish a contingency plan that 

achieves SIP-creditable emission reductions equivalent to approximately one year’s worth of 

RFP in 2015. See generally Contingency Measure SIP. Among these SIP-creditable emission 

 

1 For a more detailed description of the SJV PM2.5 SIP, see 76 FR 41338, 41339 to 41359 (July 

13, 2011).
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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reductions are reductions from a contingency provision in the District’s residential woodburning 

rule, Rule 4901, and reductions from the District’s implementation of two incentive grant 

programs: the Carl Moyer Memorial Air Quality Standards Attainment Program (“Carl Moyer 

Program”) and the Proposition 1B: Goods Movement Emission Reduction Program (“Prop 1B”). 

Id. at 4 and 6. A detailed description of the Contingency Measure SIP can be found at 78 FR 

53113, 53115 (August 28, 2013).

On August 28, 2013, we proposed to approve the Contingency Measure SIP as correcting the 

deficiency in the SJV PM2.5 SIP related to the attainment contingency measure requirement (78 

FR 53113). At the same time, we also proposed to find, based on documentation in the 

Contingency Measure SIP, that the RFP contingency measure requirement in CAA section 

172(c)(9) for the 2012 milestone year was moot because the SJV has achieved the emission 

reduction benchmarks for the 2012 RFP year. Our full evaluation of the Contingency Measure 

SIP and our rationale for finding that this SIP corrects the deficiencies in the SJV PM2.5 SIP can 

be found in the August 28, 2013 proposed rule. Based on our proposed approval of the 

Contingency Measure SIP, we also issued on August 28, 2013, an interim final determination 

that stayed the imposition of the offset sanctions that became effective in the SJV on July 9, 2013 

and tolled the sanctions clock for the imposition of the highway sanctions (78 FR 53038).

II. Public Comments and the EPA’s Responses

The EPA provided a 30-day period for the public to comment on our proposed rule. During 

this comment period, which ended on September 28, 2013, we received four public comments. A 

copy of these comment letters can be found in the docket. We provide our responses to these 

comments below.
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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A. Comments regarding necessary types and quantities of contingency measure emission 

reductions

Comment 1: Earthjustice cites the D.C Circuit Court of Appeals’ decision in Natural Resources 

Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013) (hereafter “NRDC”) to support its claim 

that the Contingency Measure SIP cannot be approved under the CAA. Specifically, Earthjustice 

argues that the EPA’s approval of the SJV PM2.5 SIP was built upon the EPA’s 2007 

implementation rule for the 1997 PM2.5 NAAQS (hereafter “2007 PM2.5 Implementation Rule”),2

which the NRDC court has since remanded for failure to comply with the requirements of 

subpart 4 of title I, part D of the CAA; that the SJV PM2.5 SIP and the reasonable further 

progress (RFP) projections therein likewise fail to satisfy the applicable requirements of subpart 

4; and that because the contingency measure obligation is based upon the RFP projections in the 

SJV PM2.5 SIP, the Contingency Measure SIP is also flawed. 

Earthjustice argues that the most significant defect in the SJV PM2.5 SIP is that it assumes the 

maximum available attainment deadline without implementing best available control measures 

(BACM) under CAA section 189(b)(1)(B), and that because of this erroneous attainment date the 

RFP trajectory in the SJV PM2.5 SIP provides for a 9-year attainment “glide path” that fails to 

comply with the CAA. Under subpart 4, Earthjustice argues, nonattainment areas relying on

reasonably available control measures have four years to attain and thus have a contingency 

measure obligation of 25 percent of the total reductions required for attainment, rather than the 

one-ninth of total reductions provided in the Contingency Measure SIP. Alternatively, 

Earthjustice argues that had the SJV qualified for an extended attainment deadline under CAA 

 

2

See “Clean Air Fine Particle Implementation Rule,” 72 FR 20586 (April 25, 2007), codified at 

40 CFR part 51, subpart Z.
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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section 188(b)(1), the District would have had to implement BACM, which would have provided

for steeper emission reductions than currently provided in the SJV PM2.5 SIP which is based on 

the implementation of reasonably available controls. 

Earthjustice further contends that because the SJV area has failed to attain the PM2.5 standard 

by the “moderate” area deadline in subpart 4, a new plan with new controls and an attainment 

horizon that is less than 9 years is required. Earthjustice states that this new plan must include 

new RFP targets and contingency measures, and that the calculation of these targets will require 

more than one-ninth of the total reductions required, because the interval between the baseline 

for the serious area plan and the attainment deadline will be less than nine years. Thus, according 

to Earthjustice, “no matter how the SJV chooses to comply with subpart 4, there is no scenario in 

which the RFP trajectory and therefore the quantity of emission reductions required for 

contingency measures will match those calculated in the [SJV PM2.5 SIP].” 

Response 1: As a threshold matter, to the extent the commenter is challenging our November 

2011 final action on the SJV PM2.5 SIP based on the D.C. Circuit’s January 2013 decision in 

NRDC, such a challenge may only be brought in the appropriate circuit court within specified 

timeframes under CAA section 307(b). Section 307(b)(1) provides, inter alia, that any petition 

for review of an EPA action in “approving or promulgating any implementation plan under 

[CAA section 110] * * * which is locally or regionally applicable may be filed only in the United 

States Court of Appeals for the appropriate circuit” and must be filed “within sixty days from the 

date notice of such promulgation, approval, or action appears in the Federal Register, except that 

if such petition is based solely on grounds arising after such sixtieth day, then any petition for 

review under this subsection shall be filed within sixty days after such grounds arise.” Our action 
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

7

today on the Contingency Measure SIP is not the appropriate forum for a challenge to our 

November 2011 final action on the SJV PM2.5 SIP. 

We nonetheless respond below to the substance of Earthjustice’s claims. In NRDC, the U.S. 

Court of Appeals for the D.C. Circuit remanded the EPA’s 2007 PM2.5 Implementation Rule,3

holding that the EPA erred in implementing the 1997 PM2.5 standards solely pursuant to the 

general implementation provisions of subpart 1 of part D, title I of the CAA, without also 

considering the particulate matter-specific provisions of subpart 4. The court directed the EPA to 

re-promulgate the rule pursuant to subpart 4 of part D, title I of the Clean Air Act but declined to 

impose a deadline by which the Agency must do so. See 706 F.3d 428, 437 and n. 10. This 

decision has no bearing on our action on the Contingency Measure SIP.

Earthjustice’s arguments rest on the premise that the NRDC decision necessarily invalidates 

our November 2011 final action on the SJV PM2.5 SIP (76 FR 69896, November 9, 2011) and 

therefore renders flawed any assessment of contingency measure obligations derived from that 

plan. Nothing in NRDC, however, indicates the court intended to automatically invalidate other 

EPA rulemakings that were based in whole or in part on the 2007 PM2.5 Implementation Rule.

Indeed, the D.C. Circuit remanded but did not vacate the 2007 PM2.5 Implementation Rule,4

citing in its opinion (at 706 F.3d at 437 n. 10) a prior decision in which it held that “it is 

appropriate to remand without vacatur in particular occasions where vacatur ‘would at least 

temporarily defeat...the enhanced protection of the environmental values covered by [the EPA 

 

3 The NRDC decision remanded both the 2007 PM2.5 Implementation Rule and a separate 

rulemaking to implement the New Source Review permitting requirements for the 1997 PM2.5

NAAQS. This latter rule is not at issue in this action. 

4 The 2007 PM2.5 Implementation Rule therefore remains “on the books” while the EPA effects 

the required changes through one or more national rulemakings consistent with the NRDC 

decision.
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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rule at issue].’” North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). Our November 

2011 final action on the SJV PM2.5 SIP included approval of District commitments to adopt and 

implement specific control measures on a fixed schedule and State and District commitments to 

achieve specific amounts of NOx, SOx and direct PM2.5 emission reductions by fixed dates. See

76 FR 69896, 69924 (November 9, 2011), codified at 40 CFR 52.220(c)(392) and (c)(395).

Absent an EPA rulemaking to withdraw or revise this final rule, which NRDC does not compel, 

our final action on the SJV PM2.5 SIP remains effective and these State and District 

commitments remain federally-enforceable requirements of the California SIP.5 We therefore 

disagree with the commenter’s assertion that the RFP projections in the SJV PM2.5 SIP render the 

Contingency Measure SIP flawed.

Additionally, we do not believe that the NRDC court’s January 4, 2013 decision should be 

interpreted so as to retroactively impose subpart 4 requirements on the state in the context of our 

action on this corrective SIP, as the timing and nature of the court’s decision compound the 

consequences of disapproval based on such retroactive application here.6 California submitted 

the various components of the SJV PM2.5 SIP (and revisions thereto) between June 2008 and July 

2011. On July 13, 2011, we proposed to approve all elements of the SJV PM2.5 SIP except for its 

 

5 To remove these commitments from the applicable SIP before the EPA has re-promulgated an 

implementation rule pursuant to subpart 4 consistent with the NRDC opinion would be to 

temporarily defeat the enhanced environmental protections provided by these federallyenforceable control obligations.

6

In rulemakings on individual areas subsequent to the NRDC decision, the EPA has explained in 

detail its view that the court’s recently announced interpretation should not be applied 

retroactively. See, e.g., 78 FR 20856 (April 8, 2013) (proposed redesignation of Indianapolis to 

attainment for 1997 annual PM2.5 standard) and 78 FR 41698 (July 11, 2013) (final redesignation 

of Indianapolis to attainment for 1997 annual PM2.5 standard). The U.S. District Court for the 

District of Colorado recently agreed with the EPA’s position that NRDC does not require 

retroactive application of Subpart 4 requirements. See Wildearth Guardians v. Gina McCarthy, 

Case No. 13-CV-1275-WJM-KMT (D. Colo., March 11, 2014) (dismissing plaintiff’s claim that

the EPA missed a non-discretionary deadline based on retroactive application of Subpart 4).
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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contingency measure provisions and described the specific deficiencies in the contingency 

measures that California would need to address in a corrective SIP submission in order to avoid 

mandatory sanctions (76 FR 41338, 41358 to 41359, 41361, July 13, 2011). We finalized this 

partial approval and partial disapproval action on November 9, 2011, effective January 9, 2012, 

starting a sanctions clock for imposition of offset sanctions 18 months after January 9, 2012 and 

highway sanctions 6 months later, pursuant to CAA section 179(b) and the EPA’s regulations at 

40 CFR 52.31 (76 FR 69896, 69924, November 9, 2011) (final rule partially approving and 

partially disapproving SJV PM2.5 SIP)).

7 We stated in the final rule that “[n]either sanction 

[would] be imposed under the CAA if California submits and we approve prior to the 

implementation of the sanctions, SIP revisions that correct the deficiencies identified in our 

proposed action.” Id. California reasonably relied upon this statement to develop a SIP 

submission addressing the deficiencies identified in the July 2011 proposed action – i.e., a SIP 

submission containing contingency measures that achieve emission reductions equivalent to one 

year’s worth of RFP, on a pollutant-specific basis, which are in excess of the emission reductions 

relied on for RFP and attainment in the SJV PM2.5 SIP (76 FR 41338, 41358 to 41359, 41361, 

July 13, 2011). 

Over a year later, on January 4, 2013, the D.C. Circuit issued its decision remanding the 

EPA’s 2007 PM2.5 Implementation Rule. By this time, just six months remained before 

mandatory offset sanctions would apply in the SJV under CAA section 179(b) unless the State 

submitted and we approved a SIP revision correcting the deficiencies that prompted the EPA’s 

 

7 The disapproval also triggered an obligation on the EPA under CAA section 110(c)(1) to 

promulgate a federal implementation plan to address the deficiency unless the State submits and 

the EPA approves a plan revision correcting the deficiency within two years (76 FR 69896, 

69924, November 9, 2011). 
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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disapproval. On June 20, 2013, the District adopted the Contingency Measure SIP, which it had 

developed to address the deficiencies identified in the 2011 action on the SJV PM2.5 SIP, and 

CARB submitted this corrective SIP on July 3, 2013.

8 We proposed to approve the Contingency 

Measure SIP on August 28, 2013 (78 FR 53113). Concurrently, we issued an interim final 

determination to stay offset sanctions and defer highway sanctions in the SJV area, based on our

“proposal to approve the State’s SIP revision as correcting the deficiency that initiated these 

sanctions” (78 FR 53038, August 28, 2013).

9 To disapprove this corrective SIP submission now, 

based on a retroactive application of subpart 4 requirements to the SJV PM2.5 SIP, would 

immediately subject the SJV area to offset sanctions and highway sanctions under the EPA’s 

sanction application sequencing rule in 40 CFR 52.31(d)(2)(ii).10 We believe it would be 

unreasonable to now disapprove this SIP submission, which corrects the deficiencies we had 

identified, and subject the SJV area to mandatory sanctions solely because the State did not 

address subpart 4 requirements of which it had no notice.11

 

8 Letter dated July 3, 2013, from Richard W. Corey, Executive Officer, California Air Resources 

Board, to Jared Blumenfeld, Regional Administrator, U.S. EPA Region 9, transmitting the San 

Joaquin Valley Air Pollution Control District’s “Quantification of Contingency Reductions for 

the 2008 PM2.5 Plan” (adopted June 20, 2013), with enclosures.

9 Under 40 CFR 52.31(d)(2)(ii), during the period between 18 and 24 months following the 

EPA’s disapproval of a plan submission, offset sanctions are stayed and highway sanctions 

deferred if the EPA proposes to approve a revised plan submitted by the State and issues an 

interim final determination that the revised plan “corrects the deficiency prompting the 

[disapproval].”

10 The offset sanction initially applied in the SJV area on July 9, 2013 (78 FR 53038, August 28, 

2013). Thus, under 40 CFR 52.31(d)(2)(ii), the offset sanction would reapply on the date the 

EPA issued a proposed or final disapproval and the highway sanction would apply immediately 

because more than 6 months have passed since initial application of the offset sanction.

11 As the U.S. District Court for the District of Colorado recently stated, “retroactive application 

of Subpart 4 to impose deadlines of which the States were not previously aware would be unfair 

and contrary to the state/federal balance outlined in the CAA.” See Wildearth Guardians v. Gina 

McCarthy, Case No. 13-CV-1275-WJM-KMT (D. Colo., March 11, 2014) at 12.
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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Moreover, it is not clear what RFP projections would result from the new subpart 4 plan that 

Earthjustice calls for and, consequently, it is impossible for the State to quantify a contingency 

measure obligation based on such a new plan before it is developed.12 It would be even more 

unreasonable to disapprove this corrective SIP submission on the basis of RFP trajectories that 

cannot currently be ascertained, particularly given the lengthy rulemakings that would be 

necessary for the State to develop a new plan under subpart 4 with new RFP targets and a new 

attainment deadline, and the likely economic hardship that would result from continued 

application of mandatory offset and highway sanctions during this time. The D.C. Circuit 

recognized the inequity of this type of retroactive impact in Sierra Club v. Whitman, 285 F.3d 63 

(D.C. Cir. 2002), where it upheld the district court’s ruling refusing to make retroactive the 

EPA’s determination that the St. Louis area did not meet its attainment deadline. In that case, 

petitioners urged the court to make the EPA’s nonattainment determination effective as of the 

date that the statute required, rather than the later date on which the EPA actually made the 

determination. The court rejected this view, stating that applying it “would likely impose large 

costs on the States, which would face fines and suits for not implementing air pollution 

prevention plans * * * even though they were not on notice at the time.” Id. at 68. Similarly, it 

would be unreasonable to penalize California by rejecting this corrective SIP on the basis of 

subpart 4 requirements of which the State was unaware when we partially disapproved the SJV 

 

12 As the EPA explained in the preamble to the 2007 PM2.5 Implementation Rule, contingency 

measures should provide for emission reductions equivalent to about one year of reductions 

needed for RFP, based on the overall level of reductions needed to demonstrate attainment 

divided by the number of years from the “base year” to the attainment year (72 FR 20586, 

20643, April 25, 2007). Thus, without first establishing the relevant base year, the attainment 

year, and the overall level of reductions needed to demonstrate attainment, and then considering 

whether available controls (whether RACM or BACM) might expedite the attainment date, it is 

impossible to determine the rate of emission reductions that would demonstrate RFP and the 

corresponding amount of emission reductions that would be equivalent to about one year of RFP.
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Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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PM2.5 SIP, particularly when relief from mandatory sanctions would not be available until after 

the State completes a lengthy rulemaking process to adopt an entirely new plan under subpart 4.

In separate rulemakings, the EPA has taken steps to respond to the NRDC decision by

addressing the applicable requirements of subpart 4 for areas designated nonattainment for the 

1997 PM2.5 NAAQS and/or the 2006 PM2.5 NAAQS. For example, the EPA recently completed a 

rulemaking to classify all PM2.5 nonattainment areas nationwide, including the San Joaquin 

Valley, as “moderate” nonattainment under subpart 4 and to establish a December 31, 2014 

deadline for the states to submit any additional SIP revisions that may be necessary to satisfy the 

requirements applicable to moderate nonattainment areas under CAA section 189(a). See 78 FR 

69806 (November 21, 2013) (proposed rule) and “Identification of Nonattainment Classification 

and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine 

Particle (PM2.5) National Ambient Air Quality Standard (NAAQS) and 2006 PM2.5 NAAQS,” 

signed April 25, 2014 (final rule, pre-publication copy). As explained in that rulemaking, the 

EPA recognizes that prior to the D.C. Circuit’s decision in NRDC, states have worked towards 

meeting the air quality goals of both the 1997 PM2.5 standards and the 2006 PM2.5 standards in 

accordance with EPA regulations and guidance derived from subpart 1, including the 

requirements of the 2007 PM2.5 Implementation Rule (78 FR 69806, 69809). Taking this history 

into account, the EPA concluded that a December 31, 2014 deadline would provide states a 

relatively brief but reasonable amount of time to ascertain whether and to what extent any 

additional SIP submissions would be needed to satisfy the applicable requirements of subpart 4 

in a particular nonattainment area and to develop, adopt and submit any such SIPs. See id. The 

EPA explicitly stated that this rulemaking “does not affect any action that the EPA has 
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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previously taken under section 110(k) of the Act on a SIP for a PM2.5 nonattainment area.” Id. at 

69810.

Accordingly, California is obligated to consider whether and to what extent any additional 

SIP submissions may be required to satisfy the applicable requirements of subpart 4 for the 1997 

and/or 2006 PM2.5 NAAQS in the SJV and to develop, adopt and submit any such SIPs, 

following reasonable notice and public hearings, no later than December 31, 2014. In the 

meantime, our November 2011 final action remains in effect and continues to provide the 

appropriate basis for calculating the required quantity of emission reductions in this corrective 

SIP. We believe it is appropriate to address the NRDC decision on a prospective rather than 

retrospective basis by maintaining the environmental benefits of air quality plans that the EPA 

has previously approved while working with state and local agencies to supplement these prior 

submissions as necessary going forward. Our approval of the Contingency Measure SIP today 

does not obviate the State’s obligation to submit these additional SIP revisions, consistent with 

the requirements of subpart 4, including additional contingency measures as necessary.

Comment 2: Earthjustice argues that the EPA cannot claim that the Contingency Measure SIP 

and the SJV PM2.5 SIP are consistent with the implementation rule remanded by the D.C. Circuit 

pending adoption of a new implementation rule. According to Earthjustice, subpart 4 is selfeffectuating and directly-enforceable and does not require EPA regulations in order for states to 

know their planning obligations. Additionally, Earthjustice states that the EPA has already 

adopted guidance interpreting subpart 4 in “State Implementation Plans; General Preamble for 

the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 13498, April 

16, 1992) (hereafter “General Preamble”) and in “State Implementation Plans for Serious PM-10 

Nonattainment Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas Generally; 
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act 

Amendments of 1990” (59 FR 41998, August 16, 1994) (hereafter “Addendum”). According to 

Earthjustice, the requirements of subpart 4 are plain on their face and well understood, and the 

NRDC holding means that these requirements have always applied to PM2.5 nonattainment plans 

notwithstanding the EPA’s efforts to avoid them.

Response 2: It appears Earthjustice is arguing that NRDC compels us to disapprove the 

Contingency Measure SIP based on a retroactive application of subpart 4 requirements to the 

underlying SJV PM2.5 SIP. We disagree with this assertion. As explained above, we do not 

believe it would be reasonable to disapprove this corrective SIP based on a finding that the 

underlying attainment and RFP demonstrations in the SJV PM2.5 SIP, which we fully approved 

in 2011, now fail to satisfy subpart 4 requirements of which the State had no notice. As discussed 

in our proposal (78 FR 53113, 53123), the Contingency Measure SIP corrects the deficiencies 

that prompted the partial disapproval of the SJV PM2.5 SIP in 2011. We believe our approval of 

this corrective SIP submission today is appropriate in light of the State’s reasonable reliance on 

the 2011 final action, the significant consequences of a disapproval based on retroactive 

application of subpart 4 requirements in this context, and the EPA’s separate rulemaking to 

establish reasonable timeframes for states to submit additional SIPs that may be required to 

satisfy the requirements of under subpart 4. See Response 1.

The commenter does not appear to challenge our position that the general contingency 

measure requirement in subpart 1 (CAA section 172(c)(9)) continues to govern our evaluation of 

and action on the Contingency Measure SIP.13 Under the EPA’s long-standing policy, which pre-

 

13 As explained in our proposed rule, subpart 4 of part D, title I of the Act contains no specific 

provision governing contingency measures for PM10 or PM2.5 nonattainment areas that 

supersedes the general contingency measure requirement for all nonattainment areas in CAA 
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Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

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15

dates the 2007 PM2.5 Implementation Rule by more than a decade, contingency measures in a 

SIP should consist of available control measures beyond those required in the control strategy to 

attain the standards or demonstrate RFP, provide SIP-creditable emission reductions equal to 

approximately one year of the emission reductions needed for RFP, and be implemented without 

further action by the State. See General Preamble at 13543 to 13544 (discussing contingency 

measures for moderate PM10 nonattainment areas); see also Addendum at 42014 to 42015 

(discussing contingency measures for serious PM10 nonattainment areas). We are approving the 

Contingency Measure SIP because it meets these criteria as applied to the SJV PM2.5 SIP and 

because it corrects the deficiencies that prompted the 2011 partial disapproval of that plan (78 

FR 53113, 53123).

Our approval of the Contingency Measure SIP today does not rest on a conclusion that 

compliance with the 2007 PM2.5 Implementation Rule remanded by the court suffices to satisfy 

CAA requirements pending adoption of a new implementation rule, nor does the EPA believe an 

implementation rule is necessary for states to know their planning obligations under subpart 4. 

Indeed, although the EPA has not yet issued a new or revised implementation rule consistent 

with the court’s directive in NRDC, the EPA has established a December 31, 2014 deadline for 

all states with PM2.5 nonattainment areas to submit any additional SIPs that may be required 

under subpart 4, following consultation as appropriate with EPA regional offices. See 

“Identification of Nonattainment Classification and Deadlines for Submission of State 

Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM2.5) National Ambient Air 

 

section 172(c)(9). Thus, even if we apply the subpart 4 requirements to our evaluation of the 

Contingency Measure SIP and disregard the provisions of the 2007 PM2.5 Implementation Rule 

remanded by the NRDC court, the general requirement for contingency measures in CAA section 

172(c)(9) continues to apply (78 FR 53113, 53115 n. 8).
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Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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Quality Standard (NAAQS) and 2006 PM2.5 NAAQS,” signed April 25, 2014 (final rule, prepublication copy). To the extent any revisions to the SJV PM2.5 SIP are necessary to ensure 

compliance with the requirements of subpart 4, California is required to adopt and submit such 

SIP revisions by December 31, 2014, including additional contingency measures as appropriate.

Comment 3: Earthjustice comments that the EPA cannot claim as a basis for approval that the 

Contingency Measure SIP satisfies the obligations identified in the EPA’s 2011 final action on 

the SJV PM2.5 SIP because that plan does not comply with the Act. Earthjustice contends that the 

approval of the Contingency Measure SIP would “compound the legal defects of the [SJV PM2.5

SIP]” and that we should act immediately to “call” the SJV PM2.5 SIP under CAA section 

110(k)(5) because we now know that the plan fails to comply with the requirements of the Act. 

In the meantime, Earthjustice asserts that we cannot add to the legal defects by approving 

contingency measures that are based on a defective plan. In support of these arguments, 

Earthjustice cites Association of Irritated Residents v. EPA, 632 F.3d 584 (9th Cir. 2011), 

reprinted as amended on January 27, 2012, 686 F.3d 668, further amended February 13, 2012 

(“AIR”).

Response 3: We disagree with these arguments. First, as discussed above, nothing in NRDC 

compels us to retroactively apply subpart 4 requirements to the SJV PM2.5 SIP and to disapprove 

the Contingency Measure SIP on that basis. Absent an EPA rulemaking to withdraw or revise 

our November 2011 final action on the SJV PM2.5 SIP (76 FR 69896, November 9, 2011), that 

final action remains effective and provides an appropriate basis for our evaluation of the State’s 

corrective SIP submission in accordance with the EPA’s long-standing policies on contingency 

measures. See Response 1.
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

17

Second, the EPA’s discretionary “SIP call” authority in CAA section 110(k)(5) is not 

relevant to this action as we have not made any of the findings that would obligate us to “call” 

the SJV PM2.5 SIP. Section 110(k)(5) provides, in relevant part, that “[w]henever the 

Administrator finds that the applicable implementation plan for any area is substantially 

inadequate to attain or maintain the relevant [NAAQS] . . . or to otherwise comply with any 

requirement of [the CAA],” the EPA “shall require the State to revise the plan as necessary to 

correct such inadequacies” and may establish reasonable deadlines, not to exceed 18 months 

after providing notice to the State, for the submission of such plan revisions. CAA section 

110(k)(5), 42 U.S.C. 7410(k)(5). Should we find that the SJV PM2.5 SIP is “substantially 

inadequate to attain or maintain” the 1997 PM2.5 NAAQS or to otherwise comply with any 

requirement of the Act, we would be obligated to require that California revise the plan as 

necessary to correct such inadequacies (i.e., to issue a “SIP call”) and would be authorized to 

establish reasonable deadlines for the State to submit such plan revisions, not to exceed 18 

months after the EPA notifies the State of the inadequacies. To date, however, we have not made 

any such finding under section 110(k)(5) with respect to the SJV PM2.5 SIP. The EPA believes 

that its recent rulemaking to classify all PM2.5 nonattainment areas as “moderate” nonattainment 

and to set a December 31, 2014 deadline for subpart 4 SIP submissions provides a reasonable 

timeframe for California to develop, adopt and submit any additional SIP submissions that are 

necessary to comply with the requirements of subpart 4 in the San Joaquin Valley. See 

“Identification of Nonattainment Classification and Deadlines for Submission of State 

Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM2.5) National Ambient Air 

Quality Standard (NAAQS) and 2006 PM2.5 NAAQS,” signed April 25, 2014 (final rule, prepublication copy). Under CAA section 110(k)(5), the EPA retains the discretion to determine 
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

18

after this deadline for SIP submissions whether the PM2.5 SIP for the SJV is substantially 

inadequate to comply with CAA requirements. 

Finally, the Ninth Circuit Court of Appeal’s decision in AIR is inapposite. AIR involved our 

action on proposed revisions to the SIP for the one-hour ozone standard for the Los AngelesSouth Coast air basin (686 F.3d 668 at 671). An approved SIP for the area was in place, but after 

conducting new modeling for the one-hour ozone standard, California submitted proposed SIP 

revisions, including a revised attainment demonstration that relied on additional control 

measures. Id. at 672-73. California later withdrew certain of the proposed additional control 

measures and the State specifically represented that the currently approved plan was not 

sufficient to provide for attainment. Id. We approved the control measures that had not been 

withdrawn. Id. at 673. However, we disapproved the revised attainment demonstration because 

California had substantially based it upon emission reductions resulting from the withdrawn 

control measures. Id. This disapproval left in place the existing attainment demonstration, which 

the State had specifically characterized as deficient. Id. The Ninth Circuit held that our action 

was arbitrary and capricious, because we had a duty under CAA section 110(l) to evaluate 

whether the SIP, as a whole, would provide for attainment of the NAAQS when the EPA 

approved a revision to the already approved SIP. Id. at 673-74. 

The circumstances here are significantly different from those in AIR. First, nothing in the 

record indicates that California considers any element of the currently approved SJV PM2.5 SIP

insufficient to provide for attainment of the 1997 PM2.5 standards. Second, the Contingency 

Measure SIP neither revises nor replaces the attainment demonstration in the currently approved 

plan, nor does it alter any existing emission limitation or other control requirement in the 

applicable SIP. Finally, California has not withdrawn any control measures that provide emission 
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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reductions necessary for attainment of the 1997 PM2.5 standards; to the contrary, the Contingency 

Measure SIP expands upon the contingency measure portion of the SJV PM2.5 SIP by providing 

additional NOx, SOx, and direct PM2.5 emission reductions beyond those relied upon for RFP and 

attainment in the SJV PM2.5 SIP, thereby correcting the deficiency that we had identified in 2011

(78 FR 5311, 53123). In sum, nothing in the Contingency Measure SIP revises the currently 

approved attainment demonstration in the SJV PM2.5 SIP, nor does any information in the State’s 

submissions raise a question about the plan’s sufficiency to provide for timely attainment of the 

1997 PM2.5 standards. The AIR decision therefore is not pertinent to our action. 

For these reasons, we disagree with the commenter’s claim that our approval of the 

Contingency Measure SIP would “compound” or “add to” existing legal defects in the SJV PM2.5

SIP. Because our approval of the Contingency Measure SIP strengthens the SIP and does not 

interfere with the on-going process for ensuring that requirements for RFP and attainment of the 

1997 PM2.5 NAAQS are met, we find that it complies with CAA section 110(l). To the extent 

California is obligated to submit additional SIP revisions consistent with subpart 4 requirements 

by December 31, 2014, these outstanding obligations do not preclude approval today of the 

Contingency Measure SIP as adequate to correct prior SIP deficiencies that triggered sanctions 

clocks. See Response 1.

Comment 4: Earthjustice comments that the SJV PM2.5 SIP fails to properly address PM2.5

precursor emissions and that the EPA approved the plan based on the “illegal presumption” in 

the 2007 PM2.5 Implementation Rule that VOC and ammonia need not be controlled. Earthjustice 

argues that because the NRDC court has rejected this presumption, without a showing that 

sources of these precursor emissions do not contribute significantly to PM2.5 levels, they are 

subject to controls and therefore subject to separate contingency measure targets. Earthjustice 
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Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

20

further argues that the San Joaquin Valley APCD has made no such demonstration and that “the 

record currently before EPA suggests that these emissions do contribute significantly to ambient 

levels even though the District believes that a strategy focusing on oxides of nitrogen is better 

policy.” In support of these arguments, Earthjustice references our responses to comments 

regarding VOCs in our final action on the SJV PM2.5 SIP (76 FR 69896, 69902).

Response 4: To the extent the commenter is challenging the November 2011 final action on the

SJV PM2.5 SIP based on the D.C. Circuit’s January 2013 decision in NRDC, such a challenge 

may only be brought in the U.S. Court of Appeals for the appropriate circuit within specified 

timeframes under CAA section 307(b). We are today acting on a SIP revision submitted by the

State to correct SIP deficiencies that prompted sanctions, and comments concerning the analyses 

underlying the November 2011 action on the SJV PM2.5 SIP are not germane to this action. See 

Response 1.

As discussed above, the November 2011 final action on the SJV PM2.5 SIP remains in effect 

and we believe that it would be unreasonable to retroactively apply the requirements of subpart 4 

to our prior evaluation of the PM2.5 precursor assessment in the SJV PM2.5 SIP. Although the 

EPA has taken steps in a separate rulemaking to respond to the NRDC decision regarding subpart 

4 and is requiring all states with PM2.5 nonattainment areas, including California, to submit SIP 

revisions as necessary to address subpart 4 requirements no later than December 31, 2014, that 

rulemaking specifically notes that it does not affect any action that the EPA has previously taken 

under CAA section 110(k) on a SIP for a PM2.5 nonattainment area. See 78 FR 69806, 69810 

(November 21, 2013) and “Identification of Nonattainment Classification and Deadlines for 

Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM2.5) 

National Ambient Air Quality Standard (NAAQS) and 2006 PM2.5 NAAQS,” signed April 25, 
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Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

21

2014 (final rule, pre-publication copy). Accordingly, the RFP demonstration in the SJV PM2.5

SIP remains the appropriate basis for our evaluation of the specific types and amounts of 

emission reductions provided by the Contingency Measure SIP at this time. See Response 1. 

Even if the EPA takes the view that NRDC compels us to retroactively apply the 

requirements of subpart 4 to our prior evaluation of the PM2.5 precursor assessment in the SJV 

PM2.5 SIP, it is not clear at this time how such a reevaluation would affect the assessment of 

required contingency measures. The D.C. Circuit remanded the EPA’s 2007 PM2.5 

Implementation Rule, including the presumptions concerning VOC and ammonia in 40 CFR 

51.1002.14 While expressly declining to decide the specific challenge to these presumptions (see 

706 F.3d at 437, n. 10 (D.C. Cir. 2013)), the court cited CAA section 189(e)15 to support its 

observation that “[a]mmonia is a precursor to fine particulate matter, making it a precursor to 

both PM2.5 and PM10” and that “[f]or a PM10 nonattainment area governed by subpart 4, a 

precursor is presumptively regulated.” 706 F.3d at 436, n. 7 (citing CAA section 189(e), 42 

U.S.C. 7513a(e)). The NRDC court did not, however, address whether and how it was 

substantively necessary to regulate any specific precursor in a particular PM2.5 nonattainment 

area. Moreover, even assuming both VOC and ammonia must be regulated for purposes of 

 

14 The 2007 PM2.5 Implementation Rule contained rebuttable presumptions concerning certain 

PM2.5 precursors applicable to attainment plans and control measures related to those plans. 

Specifically, in 40 CFR 51.1002(c), the EPA provided, among other things, that a state was “not 

required to address VOC [and ammonia] as * * * PM2.5 attainment plan precursor[s] and to 

evaluate sources of VOC [and ammonia] emissions in the State for control measures,” unless the 

State or the EPA provided an appropriate technical demonstration showing that emissions from 

sources of these pollutants “significantly contribute” to PM2.5 concentrations in the 

nonattainment area (40 CFR 51.1002(c)(3), (4)).

15 CAA section 189(e) provides that control requirements for major stationary sources of direct 

PM10 shall also apply to PM10 precursors from those sources, except where the EPA determines 

that major stationary sources of such precursors “do not contribute significantly to PM10 levels 

which exceed the standard in the area.” 
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Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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attaining the 1997 PM2.5 standards in the SJV, it is not clear what collection of control measures 

for which specific precursors would ultimately be necessary to satisfy the requirements in 

subpart 4 concerning reasonably available control measures (CAA section 189(a)(1)(C)), best 

available control measures (CAA section 189(b)(1)(B)), or quantitative milestones demonstrating 

RFP (CAA section 189(c)). See, e.g., General Preamble at 13540 to 13541 (discussing 

technological feasibility, cost of control, and “de minimis” emission levels among factors to be 

considered in determining RACM and RACT for a particular PM10 nonattainment area); see also 

Addendum at 42011 to 42014 (distinguishing BACM from RACM standard and discussing 

factors to be considered in determining BACM and BACT for a particular PM10 nonattainment 

area, including technological and economic feasibility). Given that it is thus currently impossible 

to identify the precise collection of control measures that would be necessary in a new subpart 4 

plan, let alone to quantify the emission reductions that these measures would collectively achieve 

and then calculate the reductions that would be required for associated contingency measure 

purposes,16 we do not believe it would be reasonable to penalize the State at this time for failure 

to carry out these tasks in the past. The State and District must first address these issues as 

appropriate through adoption of a SIP revision satisfying the requirements of subpart 4, which is 

due December 31, 2014.

Under the commenter’s read of NRDC, relief from mandatory sanctions for SIP deficiencies 

identified prior to the NRDC decision would be unavailable to California until it completes 

lengthy State and local rulemaking processes to develop and adopt an entirely new attainment 

plan that satisfies the requirements of subpart 4, requirements that are not yet due and that we 

 

16 See n. 12, supra.
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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have not, to date, identified as bases for plan disapproval. We decline to read the court’s decision 

in a way that would lead to such an inequitable and retroactive result. 

Comment 5: Earthjustice claims that the alleged legal defects of the SJV PM2.5 SIP preclude the 

EPA from determining that the proposed contingency measures are “beyond or in addition to” 

the core control requirements of the CAA. Earthjustice argues that this problem is most apparent 

in the EPA’s treatment of the contingency provision in the District’s residential woodburning 

rule, Rule 4901. Citing our November 2011 responses to comments on the SJV PM2.5 SIP (76 FR

69896, 69904), Earthjustice states that we did not require implementation of this measure as a 

basic control measure on the basis that it would not “advance attainment” by at least a year and 

argues that this justification “is no longer sufficient if the area is subject to the [BACM] 

requirement, as it must be given that it has failed to attain within four years of its designation as 

nonattainment for PM2.5.” Earthjustice asserts that BACM are more stringent than reasonably 

available controls and cannot be rejected based on whether or not they advance attainment, and 

that credit for the Rule 4901 contingency measure is therefore inappropriate. Furthermore, 

Earthjustice asserts that our 2009 approval of Rule 4901 as BACM for PM10 is “not sufficient for 

concluding that improvements such as those included in the proposed contingency measure are 

beyond [BACM]” as the necessary demonstration has not been made and “there is no reason to 

believe that the lower trigger included in the proposed contingency measure is not technically 

feasible or cost-effective.” Noting that the problems associated with PM2.5 in the Valley are 

different than those associated with PM10, Earthjustice cites the preamble to the EPA’s 2007 

PM2.5 Implementation Rule (72 FR 20617) to support its conclusion that “past determinations on 

the adequacy of control measures cannot substitute for a new demonstration for a new state 

implementation plan.”
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official version.

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Response 5: As noted above, it appears the commenter is challenging the November 2011 final 

action on the SJV PM2.5 SIP based on the D.C. Circuit’s January 2013 decision in NRDC. Such a 

challenge, however, may only be brought in the U.S. Court of Appeals for the appropriate circuit 

within specified timeframes under CAA section 307(b). We are today acting on a SIP revision 

submitted by the State to correct SIP deficiencies that prompted sanctions, and comments 

concerning the analyses underlying the EPA’s November 2011 action on the SJV PM2.5 SIP are 

not germane to this action. See Response 1.

We nonetheless respond below to the substance of the commenter’s claims. To the extent the 

commenter is arguing that our action today on the Contingency Measure SIP constitutes a 

determination that the contingency provision in Rule 4901 is “beyond BACM,” this is incorrect. 

We have not yet made any determination concerning BACM for PM2.5 in the SJV and make no 

such determination today, as the area has not been classified as a “Serious Area” area under 

subpart 4 and the State therefore has not submitted a Serious Area plan for SJV for any PM2.5

standard. See CAA section 189(b)(1)(B) (requiring that “each State in which all or part of a 

Serious Area is located” submit a plan for such area that includes BACM for the control of 

PM10) and section 189(b)(2) (requiring submission of BACM provisions “no later than 18 

months after reclassification of the area as a Serious Area”). Although Earthjustice suggests that 

we are relying on the Agency’s prior (2009) approval of Rule 4901 as BACM for the control of 

PM10 as a basis for today’s action, this suggestion is also incorrect. As part of the 2011 action on 

the SJV PM2.5 SIP, we concluded that the contingency provision in Rule 4901 was not a required 

RACM under CAA section 172(c)(1)17 and that it qualified for consideration as a contingency 

 

17 In response to comments on the SJV PM2.5 SIP, we discussed the 2009 approval of Rule 4901 

for PM10 BACM purposes as relevant context, but the Agency’s approval of the RACM 
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Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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measure because it provided emission reductions beyond those relied upon for RFP or attainment 

in that plan. See 76 FR 41338, 41358 (July 13, 2011) and 76 FR 69896, 69904 and 69906 

(November 9, 2011). We disagree with the commenter’s claim that we must now also conclude 

that the contingency provision in Rule 4901 is not a required BACM under CAA section 

189(b)(1)(B).

Likewise, we disagree with the commenter’s contention that our November 2011 rationale 

for not requiring implementation of this measure as a basic control measure (i.e., on the basis 

that it would not “advance attainment” by at least a year) is no longer sufficient because the area 

has failed to attain within four years of its designation as nonattainment for PM2.5 and is, 

therefore, now subject to the BACM requirement. Under the CAA, BACM is required only for 

nonattainment areas classified as serious (CAA section 189(b)(1)(B)). The SJV area is currently 

classified as moderate nonattainment. See “Identification of Nonattainment Classification and 

Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine 

Particle (PM2.5) National Ambient Air Quality Standard (NAAQS) and 2006 PM2.5 NAAQS,” 

signed April 25, 2014 (final rule, pre-publication copy). Whether or not the SJV area has attained 

the 1997 PM2.5 standards to date, in the absence of an EPA rulemaking to reclassify the area as a

Serious Area under subpart 4, the requirement to submit a Serious Area plan that assures 

implementation of BACM does not apply (CAA sections 189(b)(1)(B) and 189(b)(2)). 

We note also that the commenter’s reference to CAA section 188(c)(1) to support its 

contention that “[u]nder subpart 4, nonattainment areas relying on reasonably available controls 

have four years to attain” is not accurate. Section 188(c)(1) states that “[f]or a Moderate Area, 

 

demonstration in the SJV PM2.5 SIP did not rely on this prior action (76 FR 69896, 69904 and 

69906, November 9, 2011). 
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Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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the attainment date shall be as expeditiously as practicable but no later than the end of the sixth 

calendar year after the area’s designation as nonattainment, except that, for areas designated 

nonattainment for PM10 under section [107(d)(4) of the Act], the attainment date shall not extend 

beyond December 31, 1994” (CAA section 188(c)(1), 42 U.S.C. 7513(c)(1)). It appears that the 

commenter is interpreting the exception specified in the last clause of this provision to mean that 

the SJV PM2.5 nonattainment area must attain the 1997 PM2.5 NAAQS within four years of its 

designation as nonattainment for these standards. By its terms, however, this provision

establishes an attainment date that has long passed (December 31, 1994) and applies only to 

those areas that were designated by operation of law under CAA section 107(d)(4) as 

nonattainment for the PM10 NAAQS, pursuant to the CAA Amendments of 1990. See CAA 

section 107(d)(4)(B), 42 U.S.C. 7407(d)(4)(B) (establishing nonattainment designations by 

operation of law for certain areas identified by the EPA as “Group I” areas prior to November 

15, 1990 and areas where air quality monitoring data showed a violation of the PM-10 NAAQS 

before January 1, 1989). This provision and the December 31, 1994 attainment date specified 

therein do not apply for purposes of establishing the applicable attainment date for an area 

designated nonattainment for the 1997 PM2.5 NAAQS in 2005, such as the San Joaquin Valley.

If and when the EPA reclassifies the SJV area from “moderate” to “serious” nonattainment 

for a PM2.5 standard under subpart 4,18 California will be obligated to submit, no later than 18 

months after such reclassification, SIP provisions to assure that BACM for PM2.5 shall be 

 

18 Under CAA sections 188(b)(2) and 179(c), the EPA must determine no later than 6 months 

following the applicable attainment date for the 1997 PM2.5 standards in the SJV (April 5, 2015), 

based on air quality data, whether the area attained the standards by that date. Should we 

determine that the SJV area has failed to attain by April 5, 2015, the area will be reclassified by 

operation of law as a Serious Area and the State will be required to submit plan provisions 

consistent with the requirements of subpart 4 within 18 months. See CAA sections 188(b)(2) and 

189(b)(2).
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implemented no later than 4 years after the date the area is reclassified, among other things

(CAA sections 189(b)(1)(B) and 189(b)(2)). Contingency measures for any new or revised plan 

submitted to address subpart 4 requirements would have to provide emission reductions beyond 

those relied upon in the control strategy for that plan (i.e., for a “Serious Area,” measures that are 

“beyond BACM”). 

We note that the possibility that a measure may be required as RACM or BACM in the future 

does not preclude its use as a contingency measure now. Likewise, an approval of a measure as a 

contingency measure now does not preclude a future determination that it is a required RACM or 

BACM under subpart 4. As the EPA explained in the Addendum, “if all or part of the moderate 

area plan contingency measures become part of the required serious area control measures (i.e.,

BACM), then additional contingency measures must be submitted whether or not the previously 

submitted contingency measures had already been implemented.” Addendum at 42015. 

Comment 6: Earthjustice comments that because the RFP demonstration will change under a 

plan that complies with subpart 4, the assessment of the controls required for demonstrating RFP 

will also change. Earthjustice argues that without a new RFP demonstration, the EPA cannot 

determine whether the contingency measures are surplus to measures that are otherwise required 

by the Act. 

Response 6: As explained above, we do not believe it would be reasonable to disapprove this 

corrective SIP based on a finding that the underlying attainment and RFP demonstrations in the 

SJV PM2.5 SIP, demonstrations that we fully approved in 2011, now fail to satisfy subpart 4 

requirements of which the State had no notice. As discussed in our proposal (78 FR 53113, 

53123), the Contingency Measure SIP corrects the deficiencies that prompted the partial 

disapproval of the SJV PM2.5 SIP in 2011. We believe our approval of this corrective SIP 
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Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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submission today is appropriate in light of the State’s reasonable reliance on our 2011 final 

action, the significant consequences of a disapproval based on retroactive application of subpart 

4 requirements in this context, and the EPA’s separate rulemaking to establish reasonable 

timeframes for states to submit additional SIPs that may be required under subpart 4 consistent 

with the NRDC decision. See Response 1.

B. Comments regarding emission reductions from waiver measures and incentive grant 

programs

Comment 7: Earthjustice comments that “Congress was not willing to let states merely ‘promise’ 

to protect air quality” and that CAA section 110(a) requires states to formulate plans for meeting 

and maintaining compliance with the NAAQS which “include enforceable emission limitations 

and other control measures, means or techniques (including economic incentives such as fees, 

marketable permits, and auctions of emissions rights) . . . as may be necessary or appropriate to 

meet the applicable requirements of this chapter . . . .” Earthjustice states that even those 

nontraditional techniques for reducing pollution (economic incentives, marketable permits, and 

auctions of emissions rights) authorized by section 110(a)(2)(A) must be “enforceable,” meaning 

that the EPA and citizens must have the ability to bring enforcement actions to assure 

compliance. Earthjustice further asserts that “[a] state cannot claim SIP credit from control 

measures that shield pollution sources from independent enforcement actions.” In support of 

these statements, Earthjustice references the EPA’s statements in “State Implementation Plans; 

General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” 

(57 FR 13498, April 16, 1992) (hereafter “General Preamble”); “Improving Air Quality with 

Economic Incentive Programs,” U.S. EPA, Office of Air and Radiation, January 2001 (EPA452/R-01-001) (hereafter “2001 EIP Guidance”); and the February 4, 2013 docket memorandum 
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for a rulemaking entitled “State Implementation Plans: Response to Petition for Rulemaking; 

Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess 

Emissions During Periods of Startup, Shutdown, and Malfunction” (EPA-HQ-OAR-2012-0322) 

(hereafter “2013 SSM Memo”). 

Response 7: We agree generally with the statement that the CAA requires states to submit 

implementation plans including measures that the EPA and citizens can enforce. As the 

commenter notes, the EPA has long interpreted CAA section 110(a) to mean that control 

measures and other means of achieving emission reductions in a SIP, including “nontraditional 

techniques for reducing pollution [such as] economic incentives, marketable permits, and 

auctions of emissions rights,” must be “enforceable” (General Preamble at 13556). We disagree, 

however, with Earthjustice’s suggestion that the emission reductions identified in the 

Contingency Measure SIP are not enforceable because they are based on “measures that shield 

pollution sources from independent enforcement actions.” As explained below in Response 8

through Response 15, all of the measures relied upon in the Contingency Measure SIP are 

directly enforceable by the State and/or District against pollution sources, and the District’s 

commitments concerning the incentive-based emission reductions are also enforceable by the 

EPA and citizens under the CAA. Nothing in the Contingency Measure SIP “shields” pollution 

sources from enforcement actions brought by the State or District. See Response 8 through 

Response 15. 

Comment 8: Earthjustice highlights both the EPA’s enforcement authority in CAA section 113 

and the citizen suit provision in CAA section 304 as indication that “Congress was not willing to 

rely on states alone to guarantee that the claimed emission reductions would occur or be 

enforced.” Citing Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 560 
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(1986), Earthjustice states that “[t]he Supreme Court has found that ‘Congress enacted 304 

specifically to encourage citizen participation in the enforcement of standards and regulations 

established under this Act, and intended the section to afford citizens very broad opportunities to 

participate in the effort to prevent and abate air pollution.’” Additionally, Earthjustice states that 

“[t]his notion that SIPs must be built upon emission reductions that are capable of being enforced 

by EPA and citizens pervades a number of EPA policies regarding SIP approvability.” For 

example, Earthjustice states that the “EPA will not approve control measures that include 

‘director discretion’ to define or redefine compliance requirements” and that the EPA also will 

“not allow SIPs to include state affirmative defenses that would foreclose EPA or other 

enforcement.” In support of these statements, Earthjustice references EPA statements in the 2013 

SSM Memo and in a memorandum dated September 20, 1999, from Steven A. Herman, 

Assistant Administrator for Enforcement and Compliance, to Regional Administrators, entitled 

“State Implementation Plans (SIPs): Policy Regarding Excess Emissions During Malfunctions, 

Startup, and Shutdown” (hereafter “1999 SSM Guidance”). Earthjustice asserts that the two main 

contingency measures relied upon by the District – excess emission reductions from State mobile 

source measures and emission reductions achieved through incentive programs – fail to meet 

these criteria for enforceability.

Response 8: We agree generally with the commenter’s statement that SIPs must be built upon 

emission reductions that the EPA and citizens can enforce under CAA sections 113 and 304, 

respectively. We disagree, however, with the commenter’s assertion that the contingency 

measures relied upon by the District contain any impermissible “director discretion” or 

“affirmative defense” provisions that may bar EPA or citizen enforcement of these measures or 

otherwise fail to meet the Act’s requirements for enforceability.
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As Earthjustice correctly states, the EPA has stated in long-standing policy that it would not 

approve into a SIP any “director discretion” or “affirmative defense” provision that would bar 

the EPA or citizens from enforcing applicable SIP requirements, as such provisions would be 

inconsistent with the regulatory scheme established in title I of the Act. See 2013 SSM Memo at 

11-13 (quoting 1999 SSM Guidance at 3). Although some degree of state/local agency discretion 

in a SIP rule may be permissible if explicit and replicable procedures within the rule tightly 

define how the discretion will be exercised to assure equivalent emission reductions, the EPA 

has long stated that SIP provisions that include unbounded discretion for state personnel 

unilaterally to change or to grant variances from applicable SIP provisions are problematic and 

inconsistent with the requirements of the CAA. See “Guidance Document for Correcting 

Common VOC and Other Rule Deficiencies (a.k.a. The Little Bluebook),” U.S. EPA Region IX, 

originally issued April 1991, revised August 21, 2001; see also 78 FR 12460, 12485 to 12486 

(February 22, 2013) (proposed findings of substantial inadequacy and SIP calls to amend

provisions applying to excess emissions during periods of startup, shutdown, and malfunction) 

and 2013 SSM Memo at 13. With respect to “affirmative defenses,”19 the EPA has stated in longstanding policy that a state may include in a SIP certain narrowly drawn affirmative defense 

provisions, which qualifying sources may utilize in enforcement proceedings under specified 

circumstances, but that a SIP may not contain any defense to injunctive relief or any provision 

that would enable a state to bar EPA or citizen enforcement of applicable requirements. See 2013 

SSM Memo at 11-13; see also 1999 SSM Guidance at 2.

 

19 The term “affirmative defense” means, in the context of an enforcement proceeding, a 

response or defense put forward by a defendant, regarding which the defendant has the burden of 

proof, and the merits of which are independently and objectively evaluated in a judicial or 

administrative proceeding. See 1999 SSM Memo, Attachment at 2, n. 4.
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Nothing in the Contingency Measure SIP authorizes either CARB or the District to modify 

the requirements of the SIP. As explained below in Response 13, the District has submitted 

enforceable commitments to account for specified amounts of NOx and PM2.5 emission 

reductions to be achieved in 2015 through incentive programs and to adopt and submit substitute 

measures on a fixed schedule if the identified programs fail to achieve these emission reductions

in 2015. Since the EPA is approving these commitments into the SIP, they are federally 

enforceable requirements of an applicable implementation plan, which cannot be modified 

except through a SIP revision adopted by the State after reasonable notice and public hearing and 

approved by the EPA through notice-and-comment rulemaking. See CAA sections 110(l) and 

302(q), 5 U.S.C. section 553, and 40 CFR 51.105. Additionally, nothing in the Contingency 

Measure SIP creates grounds for an affirmative defense that could be used in proceedings to 

enforce the District’s SIP commitments, nor does the Contingency Measure SIP contain any 

provision that could bar EPA or citizen enforcement of these SIP commitments. We therefore 

disagree with the commenter’s suggestion that the Contingency Measure SIP contains any 

“director discretion” or “affirmative defense” provision that would undermine the enforceability 

of these emission reductions. We explain more fully below how the District’s SIP commitments 

can be enforced by the EPA and citizens. See Response 10 through Response 15.

In addition, the EPA disagrees with the commenter’s assertion that the CARB mobile source 

control measures relied upon in the Contingency Measure SIP are not creditable as contingency 

measures. As explained in Response 9 below, the EPA has historically allowed emission 

reduction credit for California motor vehicle emissions standards that have received waivers of 

federal preemption pursuant to the waiver approval process of CAA section 209 (“waiver 

measures”), without requiring California to submit the standards themselves to the EPA for 
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approval as part of the California SIP. See, e.g., 76 FR 69896 (November 9, 2011) (final rule 

partially approving and partially disapproving SJV PM2.5 SIP) and 77 FR 12652 (March 1, 2012) 

(final rule approving SJV 8-hour Ozone SIP). Waiver measures are substituted for federal mobile 

source control measures in California, and they become enforceable by the State once the EPA 

issues a waiver or authorization. Based on considerations of permanence, enforceability, and 

quantifiability, the EPA continues to believe that it is appropriate and consistent with the CAA to 

allow California to rely on emission reductions resulting from waiver measures in SIPs. See 

Response 9.

Comment 9: Earthjustice states that most of the CARB mobile source control measures relied 

upon to provide excess emission reductions are not approved into the SIP and, therefore, are not 

enforceable by the EPA or through independent citizen enforcement. Earthjustice states that the 

EPA is aware of this issue from previous comments on the 2008 PM2.5 Plan and incorporates 

those comments by reference.20 Earthjustice contends that because “the State is free to amend or 

rescind these measures altogether without EPA oversight,” these emission reductions are not 

creditable as contingency measures.

 

20 Specifically, the commenter states: “As EPA is well aware from previous comments on the 

2008 PM2.5 Plan (incorporated by reference here), most of the CARB mobile source control 

measures relied upon here to provide excess emission reductions are not actually approved into 

the state implementation plan. As a result, they are not enforceable by EPA or through 

independent citizen enforcement . . . .” See letter dated September 27, 2013, from Paul Cort, at 7. 

Given the context of this comment and the broad range of issues raised by commenters during 

the EPA’s previous rulemaking on the 2008 PM2.5 Plan (referred to herein as the “SJV PM2.5

SIP”), we assume Earthjustice intended here to incorporate by reference only those of its own

comments addressing the EPA’s treatment of CARB mobile source control measures in the SIP 

(see letter dated August 12, 2011, from Paul Cort, Staff Attorney, and Sarah Jackson, Research 

Associate, Earthjustice, “Comments on EPA’s Partial Approval/Disapproval of the San Joaquin 

Valley’s State Implementation Plan for Fine Particulate Matter, Docket # EPA-R09-OAR-2010-

0516”).
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Response 9: We disagree with the commenter’s argument that emission reductions from CARB 

mobile source control measures may not be credited as contingency measures. The EPA believes 

that credit for emission reductions from implementation of California mobile source rules that 

are subject to CAA section 209 waivers (“waiver measures”) is appropriate notwithstanding the 

fact that such rules are not approved as part of the California SIP. In our July 13, 2011 proposed 

action on the SJV PM2.5 SIP and the technical support document for that proposal, we explained 

why we believe such credit is appropriate. See 76 FR 41338, 41345 (July 13, 2011) and

“Technical Support Document and Responses to Comments, Final Rule on the San Joaquin 

Valley 2008 PM2.5 State Implementation Plan,” U.S. EPA Region 9, September 30, 2011 

(hereafter “2011 Final TSD”) at 101-105. Historically, the EPA has granted credit for the waiver 

measures because of special Congressional recognition, in establishing the waiver process in the 

first place, of the pioneering California motor vehicle control program and because amendments 

to the CAA (in 1977) expanded the flexibility granted to California in order "to afford California 

the broadest possible discretion in selecting the best means to protect the health of its citizens 

and the public welfare," (H.R. Rep. No. 294, 95th Congr., 1st Sess. 301-2 (1977)). In allowing 

California to take credit for the waiver measures notwithstanding the fact that the underlying 

rules are not part of the California SIP, the EPA treated the waiver measures similarly to the 

Federal motor vehicle control requirements, which the EPA has always allowed States to credit 

in their SIPs without submitting the program as a SIP revision. As we explained in the 2011 

Final TSD (p. 87), credit for Federal measures, including those that establish on-road and 

nonroad standards, notwithstanding their absence in the SIP, is justified by reference to CAA 

section 110(a)(2)(A), which establishes the following content requirements for SIPs: “... 

enforceable emission limitations and other control measures, means, or techniques (including 
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economic incentives such as fees, marketable permits, and auctions of emissions rights), ... , as 

may be necessary or appropriate to meet the applicable requirements of this chapter.” (emphasis 

added). Federal measures are permanent, independently enforceable (by the EPA and citizens), 

and quantifiable without regard to whether they are approved into a SIP, and thus the EPA has 

never found such measures to be “necessary or appropriate” for inclusion in SIPs to meet the 

applicable requirements of the Act. CAA section 209 establishes a process under which the EPA 

allows California’s waiver measures to substitute for Federal measures, and like the Federal 

measures for which they substitute, the EPA has historically found, and continues to find, based 

on considerations of permanence, enforceability, and quantifiability, that such measures are not 

“necessary or appropriate” for California to include in its SIP to meet the applicable 

requirements of the Act. 

First, with respect to permanence, we note that, to maintain a waiver, CARB’s on-road 

waiver measures can be relaxed only to a level of aggregate equivalence to the Federal Motor 

Vehicle Control Program (FMVCP) (CAA section 209(b)(1)). In this respect, the FMVCP acts as 

a partial backstop to California’s on-road waiver measures (i.e., absent a waiver, the FMVCP 

would apply in California). Likewise, Federal nonroad vehicle and engine standards act as a 

partial backstop for corresponding California nonroad waiver measures. The constraints of the 

waiver process thus serve to limit the extent to which CARB can relax the waiver measures for 

which there are corresponding the EPA standards, and thereby serve an anti-backsliding function 

similar in substance to those established for SIP revisions in CAA sections 110(l) and 193.

Meanwhile, the growing convergence between California and EPA mobile source standards 

diminishes the difference in the emission reductions reasonably attributed to the two programs 

and strengthens the role of the Federal program in serving as an effective backstop to the State 
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program. In other words, with the harmonization of EPA mobile source standards with the 

corresponding State standards, the Federal program is becoming essentially a full backstop to 

most parts of the California program.

Second, as to enforceability, we note that the waiver process itself bestows enforceability 

onto California to enforce the on-road or nonroad standards for which the EPA has issued the 

waiver. CARB has as long a history of enforcement of vehicle/engine emissions standards as the 

EPA, and CARB’s enforcement program is equally as rigorous as the corresponding EPA 

program. The history and rigor of CARB’s enforcement program lends assurance to California 

SIP revisions that rely on the emission reductions from CARB’s rules in the same manner as the 

EPA’s mobile source enforcement program lends assurance to other state’s SIPs in their reliance 

on emission reductions from the FMVCP. While it is true that citizens and the EPA are not 

authorized to enforce California waiver measures under the Clean Air Act (i.e., because they are 

not in the SIP), citizens and the EPA are authorized to enforce EPA standards in the event that 

vehicles operate in California without either California or EPA certification.

As to quantifiability, the EPA’s historical practice has been to give SIP credit for motorvehicle-related waiver measures by allowing California to include motor vehicle emissions 

estimates made by using California’s EMFAC (and its predecessors) motor vehicle emissions 

factor model in SIP inventories. The EPA verifies the emission reductions from motor-vehiclerelated waiver measures through review and approval of EMFAC, which is updated from time to 

time by California to reflect updated methods and data, as well as newly-established emissions 

standards. (Emission reductions from the EPA’s motor vehicle standards are reflected in an 

analogous model known as MOVES.) The EMFAC model is based on the motor vehicle 

emissions standards for which California has received waivers from the EPA but accounts for 
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vehicle deterioration and many other factors. The motor vehicle emissions estimates themselves 

combine EMFAC results with vehicle activity estimates, among other considerations. See the 

1982 Bay Area Air Quality Plan, and the related the EPA rulemakings approving the plan (see

48 FR 5074 (February 3, 1983) for the proposed rule and 48 FR 57130 (December 28, 1983) for 

the final rule) as an example of how the waiver measures have been treated historically by the 

EPA in California SIP actions.21 The SJV PM2.5 SIP was developed using a version of the 

EMFAC model referred to as EMFAC2007, which the EPA has approved for use in SIP 

development in California. (73 FR 3464, January 18, 2008). Thus, the emission reductions that 

are from the California on-road “waiver measures” and that are estimated through use of 

EMFAC are as verifiable as are the emission reductions relied upon by states other than 

California in developing their SIPs based on estimates of motor vehicle emissions made through 

the use of the MOVES model.

 

21 The EPA’s historical practice in allowing California credit for waiver measures 

notwithstanding the absence of the underlying rules in the SIP is further documented by 

reference to the EPA’s review and approval of a May 1979 revision to the California SIP

entitled, “Chapter 4, California Air Quality Control Strategies.” In our proposed approval of the 

1979 revision (44 FR 60758, October 22, 1979), we describe the SIP revision as outlining 

California’s overall control strategy, which the State had divided into vehicular sources and nonvehicular (stationary source) controls. As to the former, the SIP revision discusses vehicular 

control measures as including technical control measures and transportation control measures. 

The former refers to the types of measures we refer to herein as waiver measures, as well as fuel 

content limitations, and a vehicle inspection and maintenance program. The 1979 SIP revision 

included several appendices, including appendix 4–E, which refers to “ARB vehicle emission 

controls included in title 13, California Administrative Code, chapter 3 * * *,” including the 

types of vehicle emission standards we refer to herein as waiver measures; however, California 

did not submit the related portions of the California Administrative Code (CAC) to the EPA as 

part of the 1979 SIP revision submittal. With respect to the CAC, the 1979 SIP revision states: 

“The following appendices are portions of the California Administrative Code. Persons 

interested in these appendices should refer directly to the code.” Thus, the State was clearly 

signaling its intention to rely on the California motor vehicle control program but not to submit 

the underlying rules to the EPA as part of the SIP. In 1980, we finalized our approval as 

proposed (45 FR 63843, September 28, 1980).
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Moreover, the EPA’s waiver review and approval process is analogous to the SIP approval 

process. First, CARB adopts its emissions standards following notice and comment procedures at 

the state level, and then submits the rules to the EPA as part of its waiver request. When the EPA

receives new waiver requests from CARB, the EPA publishes a notice of opportunity for public 

hearing and comment and then publishes a decision in the Federal Register following the public 

comment period. Once again, in substance, the process is similar to that for SIP approval and 

supports the argument that one hurdle (the waiver process) is all Congress intended for 

California standards, not two (waiver process plus SIP approval process). Second, just as SIP 

revisions are not effective until approved by the EPA, changes to CARB’s rules (for which a 

waiver has been granted) are not effective until the EPA grants a new waiver, unless the changes 

are “within the scope” of a prior waiver and no new waiver is needed. Third, both types of final 

actions by the EPA—i.e., final actions on California requests for waivers and final actions on 

state submittals of SIPs and SIP revisions—may be challenged under section 307(b)(1) of the 

CAA in the appropriate United States Court of Appeals.

In the 2011 Final TSD (pp. 102-103), we indicated that we believe that section 193 of the 

CAA, the general savings clause added by Congress in 1990, effectively ratified our longstanding practice of granting credit for the California waiver rules because Congress did not 

insert any language into the statute rendering the EPA's treatment of California's motor vehicle 

standards inconsistent with the Act. Rather, Congress extended the California waiver provisions 

to most types of nonroad vehicles and engines, once again reflecting Congressional intent to 

provide California with the broadest possible discretion in selecting the best means to protect the 

health of its citizens and the public welfare. Requiring the waiver measures to undergo SIP 

review in addition to the statutory waiver process is not consistent with providing California with 
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the broadest possible discretion as to on-road and nonroad vehicle and engine standards, but 

rather, would add to the regulatory burden California faces in establishing and modifying such 

standards, and thus would not be consistent with Congressional intent. In short, we believe that 

Congress intended California's mobile source rules to undergo only one the EPA review process 

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

In summary, the EPA has historically given SIP credit for waiver measures in our approval of 

attainment demonstrations and other planning requirements such as reasonable further progress 

and contingency measures submitted by California. We continue to believe that section 193 

ratifies our long-standing practice of allowing credit for California's waiver measures 

notwithstanding the fact they are not approved into the SIP, and correctly reflects Congressional 

intent to provide California with the broadest possible discretion in the development and 

promulgation of on-road and nonroad vehicle and engine standards. Further, even without 

considering section 193, the Act’s structure, evolution, and provision for the waiver of federal 

preemption for California mobile source emissions standards all support the EPA’s long-standing 

interpretation of the CAA to allow California to rely on emission reductions resulting from 

waiver measures when developing SIP emission inventories, related attainment demonstrations, 

and contingency measures, even though the waiver measures are not in the SIP itself.

Comment 10: Referencing the District’s commitments to monitor, assess, and report on program 

implementation and to remedy emission reduction shortfalls, Earthjustice characterizes the 

“contingency measure” as an “enforceable commitment to adopt measures as needed” and asserts 

that such “committal SIPs” have repeatedly been rejected by the courts. More fundamentally, 

Earthjustice argues, “this commitment does not create enforceable emission limits or control 

measures as required by section 110(a)(2)(A)” but rather “creates an enforceable duty to adopt 
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such emission limits or control measures as contingency measures” (emphases in original).

Earthjustice contends that this is a plain violation of section 110(a)(2)(A). Moreover, Earthjustice 

contends, “this duty already exists under section 172(c)(9), so this proposed contingency 

measure adds nothing beyond what is already required by law.”

Response 10: We disagree with the commenter’s characterization of the District’s commitments 

in the Contingency Measure SIP as a “committal SIP.” Courts have rejected the EPA’s use of the 

“conditional approval” procedure in CAA section 110(k)(4) to permit states to postpone statutory 

SIP deadlines by submitting “committal SIPs” that contain no specific remedial measures but 

instead merely promise to adopt such measures in the future. See, e.g., Natural Resources 

Defense Council, Inc. v. EPA, et al, 22 F.3d 1125 (D.C. Cir. 1994) and Sierra Club v. EPA, 356 

F.3d 296 (D.C. Cir. 2004). The District’s commitments in the Contingency Measure SIP, 

however, are not promises to adopt measures in the future. Instead, these SIP commitments 

identify on-going emission reductions and current obligations that the District must satisfy on an 

ongoing basis.22 Specifically, the District’s SIP commitments obligate the District to track its 

ongoing implementation of the Prop 1B and Carl Moyer Program requirements for specific 

projects relied upon for SIP credit and to submit reports to the EPA, on an annual basis, that 

include detailed information regarding the type, location, and duration of each such project. See 

Response 13 (referencing SJVUAPCD Board Resolution No. 13-6-18 at pg. 3 and Rule 9610 at 

 

22 As we explained in our proposed rule (78 FR 53113, 53115), contingency measures may 

include Federal, state and local measures already scheduled for implementation that provide 

emission reductions in excess of those needed to provide for RFP or expeditious attainment. 

Nothing in the statute precludes a state from implementing such measures before they are 

triggered. See, e.g., LEAN v. EPA, 382 F.3d 575 (5th Cir. 2004) (upholding contingency 

measures that were previously required and implemented where they were in excess of the 

attainment demonstration and RFP SIP). The EPA believes that its interpretation of the 

contingency measure requirement in section 172(c)(9) of the Act is reasonable because 

reductions from these contingency measures are continuing in nature.
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Section 4.5). As explained in supporting materials submitted by the District, all of the projects 

relied upon for SIP credit in the Contingency Measure SIP are subject to “already-executed, 

legally binding contracts” which ensure that the District’s claimed emission reductions are 

currently being achieved. See SJVUAPCD, “Quantification of Contingency Reductions for the 

2008 PM2.5 Plan” (June 20, 2013) at 7, 8. Although the District’s SIP commitments include an 

enforceable requirement to submit substitute measures in the event of a shortfall in expected 

emission reductions for 2015, this secondary obligation does nothing to undermine the District’s 

current obligation to monitor, assess, and report on its implementation of the Prop 1B and Carl 

Moyer Program for the identified projects and the actual emission reductions achieved through 

these projects, consistent with the applicable requirements of Rule 9610. To the contrary, the 

secondary commitment to adopt and submit substitute measures is provided as an additional

safeguard to ensure that, if the projects relied upon for SIP credit fail to achieve the expected 

emission reductions by the applicable implementation deadline (i.e., by December 5, 2015), the 

District will be required to implement a timely remedy, i.e., to adopt and submit substitute 

measures that achieve equivalent amounts of emission reductions by the same implementation 

deadline.23 In sum, the District’s SIP commitments establish current obligations as part of an

enforceable sequence of actions leading to compliance with a December 5, 2015 emission 

reduction obligation, which the EPA or citizens may enforce under the CAA. See Response 13.

We also disagree with the commenter’s characterization of the District’s SIP commitments as 

a “duty to adopt” emission limits or control measures that violates the requirements of CAA 

section 110(a)(2)(A). CAA section 110(a)(2)(A) requires that each SIP “include enforceable 

 

23 See n. 46, infra (discussing December 5, 2015 deadline for implementation of substitute 

measures under District’s SIP commitment).
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emission limitations and other control measures, means, or techniques (including economic 

incentives such as fees, marketable permits, and auctions of emissions rights), . . . as may be 

necessary or appropriate to meet the applicable requirements of [the Act].” CAA section 

110(a)(2)(A); see also CAA section 172(c)(6) (establishing substantively identical requirements 

for nonattainment areas). Thus, in addition to “emission limitations” and “control measures,” the 

Act allows for SIPs to be built upon other “means or techniques” as may be necessary or 

appropriate to provide for timely attainment of the NAAQS. See BCCA Appeal Group v. EPA, 

355 F.3d 817 (5th Cir. 2003), reh’g denied, 2004 U.S. App. LEXIS 215 (5th Cir., January 8, 

2004) (noting expansion of the EPA’s authority under section 110(a)(2)(A) following Congress’ 

addition of the “means” and “techniques” and “as appropriate” language as part of the 1990 

CAA Amendments). Moreover, as explained in the EPA’s proposed rule, both CAA section

110(a)(2)(A) and section 172(c)(6) explicitly provide for the use of economic incentives as one 

tool for states to use to achieve attainment of the NAAQS. See 78 FR 53113, 53118 (quoting 

reference in CAA section 110(a)(2)(A) to “economic incentives such as fees, marketable permits, 

and auctions of emissions rights”). Nothing in the Act prohibits the District’s use of economic 

incentives as part of a contingency measure plan that ensures an appropriate level of emission 

reduction progress if attainment is not achieved and additional planning by the State is needed. 

The incentive programs relied upon in the Contingency Measure SIP provide emission 

reductions in excess of those relied on for RFP or for expeditious attainment in the SJV PM2.5

SIP (78 FR 53113, 53123). These incentive programs do not alter any existing control 

requirement in the applicable SIP and do not interfere with any applicable requirement 

concerning attainment and RFP or any other applicable requirement of the Act. Id. The District 

has submitted a SIP commitment to comply with detailed requirements of the Prop 1B program 
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and Carl Moyer Program guidelines through a sequence of actions leading to compliance with a 

December 2015 emission reduction obligation, which the EPA or citizens may enforce under 

CAA sections 113 and 304, respectively. See Response 13. For all of these reasons, we conclude 

that the District’s SIP commitments are both enforceable “emission standards or limitations” as 

defined in CAA section 304(f)24 and appropriate “means or techniques” for achieving NOx and 

PM2.5 emission reductions under CAA sections 110(a)(2)(A) and 172(c)(6), and that these 

enforceable commitments are permissible components of a plan submitted to satisfy the 

attainment contingency measure requirement in CAA section 172(c)(9). 

Comment 11: Earthjustice asserts that the EPA’s reliance on the “enforceable commitment” to 

adopt control measures as an enforceable contingency measure is also a plain violation of section 

172(c)(9), which requires that contingency measures “take effect . . . without further action by 

the State or the Administrator.” Citing the EPA’s interpretive statements in the Addendum (59 

FR 41998, August 16, 1994), Earthjustice contends that “[t]he commitment to adopt new rules 

and measures is a blatant attempt to allow the District to defer adoption of enforceable 

contingency measures until after the attainment failure occurs” and that “[t]his undermines the 

entire purpose of the contingency measure requirement.” Earthjustice concludes that the 

incentive program contingency measure therefore cannot be approved. 

Response 11: We disagree. As explained in Response 10 above, the District’s SIP commitments 

contain both a current obligation for the District to monitor, assess, and report on its ongoing

implementation of the Prop 1B and Carl Moyer Program requirements with respect to specified 

projects and a secondary obligation for the District to implement a timely remedy, should the 

identified projects fail to achieve the expected emission reductions. These SIP obligations take 

 

24 See n. 31, infra.
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effect without further action by the State or the Administrator, in accordance with CAA section 

172(c)(9). 

Additionally, consistent with the EPA’s longstanding interpretation of the contingency 

measure requirement in CAA section 172(c)(9) as requiring that all actions needed to effect full 

implementation of contingency measures occur within 60 days after the EPA notifies the State of 

a failure to attain the NAAQS by the applicable attainment date,25 the District’s SIP 

commitments ensure that all actions needed to effect full implementation of the incentive-based 

emission reductions will occur no later than December 5, 2015. Should the EPA find based on 

the 2014 annual demonstration report that the required amounts of NOx and PM2.5 emission 

reductions may not continue through 2015 as projected, the EPA will promptly notify the District 

of its potential obligation to implement substitute measures consistent with its Board 

commitment no later than December 5, 2015, so that the District has ample time for any 

rulemakings that may be necessary to meet this implementation deadline. Subsequently, should 

the EPA determine that the SJV area has failed to attain the 1997 PM2.5 NAAQS by the 

applicable attainment date of April 5, 2015,26 the District will be obligated under its SIP 

commitment either to confirm that the Prop 1B and Carl Moyer Program projects identified in 

the 2014 and 2015 annual demonstration reports will continue to achieve the required amounts of 

NOx and PM2.5 emission reductions in December 2015 as projected, or to adopt and submit 

 

25 See General Preamble at 13512, 13543-13544 and the Addendum at 42014-42015 (“EPA 

generally expects all actions needed to effect full implementation of the [contingency] measures 

to occur within 60 days after EPA notifies the State of the area’s failure [to attain]”).

26 Under CAA section 179(c), the EPA must determine whether the SJV area has attained the 

1997 PM2.5 NAAQS “as expeditiously as practicable” and no later than 6 months after the 

applicable attainment date, based on the area’s air quality as of the attainment date. Because the 

applicable attainment date for the 1997 PM2.5 NAAQS in the SJV area is April 5, 2015, the EPA 

must make this determination regarding attainment for the SJV no later than October 5, 2015. 
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substitute measures achieving equivalent amounts of emission reductions (4.15 tpd of NOx

reductions and 0.10 tpd of direct PM2.5 reductions) no later than December 5, 2015.27 See 

SJVUAPCD Board Resolution No. 13-6-18 at p. 3.

Earthjustice suggests that only those “substitute” measures that the District would be 

obligated to implement in the event of an emission reduction shortfall constitute enforceable 

contingency measures, and that the EPA’s approval of this SIP commitment therefore 

impermissibly allows the District to delay adoption of required measures. As discussed above, 

however, the enforceable contingency measure here is the District’s SIP commitment in its 

entirety, which includes a current obligation to monitor, assess, and report on the District’s 

ongoing implementation of the Prop 1B and Carl Moyer Program requirements with respect to 

specified projects which collectively are expected to achieve 4.15 tpd of NOx reductions and 0.10 

tpd of direct PM2.5 reductions in 2015. This current obligation constitutes an enforceable measure 

in itself, and should the District fail to fully account for the required amounts of NOx and direct 

PM2.5 emission reductions in annual demonstration reports submitted in 2014 and 2015 that 

 

27 See n. 46, infra (discussing December 5, 2015 deadline for implementation of substitute 

measures under District’s SIP commitment). In our proposed rule, we erroneously stated that 

following an EPA finding that the SJV area has failed to attain the 1997 PM2.5 NAAQS, the 

District would be obligated to verify through the 2016 annual demonstration report whether the 

required amounts of NOx and direct PM2.5 reductions had occurred or to adopt and submit 

substitute rules consistent with its Board commitment (78 FR 53113, 53122). We hereby clarify 

that the 2014 annual demonstration report (not the 2016 report) is the vehicle through which the 

District must either demonstrate that the required amounts of emission reductions will continue 

through 2015 or identify substitute measures to be implemented by December 5, 2015. See Rule 

9610, Section 4.4 (requiring that each annual demonstration report “identify and quantify SIP 

commitment shortfalls, if any, and remedies for addressing said shortfalls”). We note, however, 

that under Rule 9610 the District remains subject to an ongoing obligation to retrospectively 

assess the performance of its incentive programs for potential future enhancements and that the 

2016 annual demonstration report should, therefore, contain information adequate to verify 

whether the required amounts of NOx and direct PM2.5 reductions occurred in 2015. See Rule 

9610, Section 4.7.
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satisfy the applicable requirements of Rule 9610, the EPA may make a finding of failure to 

implement the SIP under CAA section 179(a) and either the EPA or citizens may take 

enforcement action under CAA section 113 or 304, respectively. See Response 12 and Response 

13. The secondary obligation to adopt and submit “substitute” measures is an additional 

safeguard to be effectuated only if the District fails to satisfy its current obligation to monitor, 

assess, and report on its ongoing emission reduction responsibilities. We therefore disagree with 

the commenter’s assertion that the District’s SIP commitment allows it to “defer adoption of 

enforceable contingency measures until after the attainment failure occurs.” 

In sum, the District’s SIP commitments establish current obligations on the District to take 

action well before the applicable attainment date to achieve the required emission reductions by 

December 5, 2015, whether through annual demonstration reports submitted in 2014 and 2015 or 

through adoption and submission of substitute measures to be implemented by December 5, 

2015. Given the District’s long history of successful implementation and enforcement of Prop 1B 

and Carl Moyer Program grants and the detailed requirements in the associated incentive 

program guidelines, as discussed in our technical support document for the proposed rule (see

U.S. EPA Region 9, “Technical Support Document, Proposed Approval of Clean Air Act Section 

172(c)(9) Contingency Measures, San Joaquin Valley State Implementation Plan for Attainment 

of the 1997 PM2.5 Standards,” August 15, 2013 (hereafter “Proposal TSD”)) and further in these 

responses to comments, we expect that the District’s implementation of these program 

requirements for the identified projects will achieve the District’s claimed 4.15 tpd of NOx

reductions and 0.10 tpd of direct PM2.5 reductions in 2015. However, should the EPA find based 

on documentation submitted by the District in 2014 that the required emission reductions may 

not occur in 2015 as projected, the District will be obligated under its SIP commitment to adopt 
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and submit substitute measures achieving the required emission reductions by December 5, 2015. 

We find these SIP commitments adequate to ensure that an appropriate level of emission 

reduction progress will continue to be made should the SJV area fail to attain the 1997 PM2.5

NAAQS by the applicable attainment date of April 5, 2015.

Comment 12: Earthjustice asserts that the incentive-based emission reductions are unenforceable 

by the EPA or citizens and that the EPA itself has described such emission reductions as “not 

enforceable against individual sources,” “voluntary,” and subject to a cap on SIP credit.

Response 12: We disagree with the commenter’s assertion that these emission reductions are 

unacceptable because they are unenforceable by the EPA or citizens. As the commenter notes, 

the EPA has described “voluntary” measures as those that are not directly enforceable against 

individual sources and has recommended presumptive limits (sometimes referred to as “caps”) 

on the credit that may be allowed in a SIP for such measures. Such voluntary measures may be 

credited for SIP purposes only where the State submits other enforceable mechanisms to ensure 

that the required emission reductions are achieved, subject to EPA and citizen enforcement under 

the CAA. As discussed further below, the incentive-based emission reductions relied upon in the 

Contingency Measure SIP fall within the EPA’s presumptive limits on credit for voluntary 

measures and are consistent with the EPA’s recommendations for voluntary mobile source 

emission reduction programs. Additionally, these incentive-based emission reductions are 

consistent with the EPA’s recommendations for discretionary economic incentive programs. We 

discuss below EPA’s guidance on both voluntary measures and economic incentive programs 

(EIPs) and our rationale for concluding that the Contingency Measure SIP adequately addresses 

the applicable requirements of the Act, as described in these guidance documents.
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The EPA believes that it is appropriate and consistent with the Act to allow a limited 

percentage of the total emission reductions needed to satisfy any statutory requirement to come 

from “voluntary” or “emerging” measures or other nontraditional measures and programs, where 

the State commits to certain safeguards and satisfies the statutory criteria for SIP approval. See, 

e.g., “Guidance on Incorporating Voluntary Mobile Source Emission Reduction Programs in 

State Implementation Plans (SIPs),” October 24, 1997 (hereafter “1997 VMEP”) at 4-7; 

“Incorporating Emerging and Voluntary Measures in a State Implementation Plan,” September 

2004 (hereafter “2004 Emerging and Voluntary Measures Policy”) at 8-12; and “Guidance on 

Incorporating Bundled Measures in a State Implementation Plan,” August 16, 2005 (hereafter 

“2005 Bundled Measures Guidance”) at 7-12. The EPA has described “voluntary measures” as

measures or strategies that are not directly enforceable against individual sources, and “emerging 

measures” as those that are more difficult to accurately quantify than traditional SIP emission 

reduction measures.28 See 1997 VMEP at 4; 2004 Emerging and Voluntary Measures Policy at 

13, 19; and 2005 Bundled Measures Guidance at 2. “Voluntary” measures for stationary and area 

sources may include consumer-oriented programs to reduce the use of high-emitting paints or 

other consumer products during the ozone season; mechanisms to encourage pollution

prevention or process changes at unregulated emission points; and voluntary wood stove 

changeout programs. See 2004 Emerging and Voluntary Measures Policy at 19, 20. “Voluntary”

mobile source emission reduction programs (VMEPs)29 may include employer-based

 

28 A measure can be both emerging and voluntary. See 2004 Emerging and Voluntary Measures 

Policy at 1.

29 A voluntary mobile source emission reduction program (VMEP) is a mechanism that 

supplements traditional emission reduction strategies through voluntary, nonregulatory changes 

in local transportation sector activity levels or changes in in-use vehicle and engine fleet 

composition, among other things. See 1997 VMEP at 3.
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transportation management programs to manage employee commute and travel behavior; areawide rideshare incentives to encourage commuters to use alternatives to single-occupant 

vehicles; and auto restricted zones, no-drive days, or other limitations on vehicle use in a given 

geographic area. See 1997 VMEP at Attachment 1. “Emerging” measures include activities that 

indirectly reduce emissions by promoting more efficient energy use or that promote renewable 

resources (e.g., use of solar power, wind power, or biomass) and activities that improve air 

quality by means other than emission reductions (e.g., heat island measures that reduce criteria 

pollutant concentrations by lowering ambient temperatures). See 2004 Emerging and Voluntary 

Measures Policy at 14-15. Where a State submits a VMEP or other voluntary or emerging 

measure for SIP approval, the EPA evaluates it for consistency with four fundamental “integrity 

elements” and with SIP attainment and reasonable further progress (RFP) requirements, and to 

ensure that it does not interfere with other requirements of the Act. See 1997 VMEP at 6; see 

also 78 FR 53113, 53118 and Proposal TSD at 22-24.

In light of the increasing incremental cost associated with further stationary and mobile 

source emission reductions and the difficulty of identifying such additional sources of emission 

reductions, the EPA encourages innovative approaches to generating emission reductions 

through voluntary and emerging measures and other nontraditional measures and programs. See 

1997 VMEP at 4-5; 2004 Emerging and Voluntary Measures Policy at 9; and 2005 Bundled 

Measures Guidance at 7. The EPA also recognizes, however, that these nontraditional measures 

raise novel issues related to enforceability and quantification of the associated emission 

reductions. Accordingly, the EPA’s policies addressing nontraditional measures provide for 

some flexibility in meeting established SIP requirements for enforceability and quantification, 

provided the State takes clear responsibility for ensuring that the emission reductions necessary 
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to meet applicable CAA requirements are achieved. See 1997 VMEP at 5-7; 2004 Emerging and 

Voluntary Measures Policy at 9; 2005 Bundled Measures Guidance at 7; and “Roadmap for 

Incorporating Energy Efficiency/Renewable Energy Policies and Programs into State and Tribal 

Implementation Plans,” July 2012 (hereafter “2012 Roadmap for EE/RE Programs”) at 37-38.

Importantly, the EPA has consistently stated that any voluntary or other nontraditional measure 

submitted for SIP credit must be accompanied by an appropriate enforceable “backstop” 

commitment from the State to monitor emission reductions achieved and to rectify any shortfall 

in a timely manner. See, e.g., 1997 VMEP at 4-5; 2004 Emerging and Voluntary Measures 

Policy at 8-12; 2005 Bundled Measures Guidance at 7-12; and “Guidance on SIP Credits for 

Emission Reductions from Electric-Sector Energy Efficiency and Renewable Energy Measures,” 

August 5, 2004 (hereafter “2004 Electric-Sector EE/RE Guidance”) at 6-7. Thus, although the 

State is not necessarily responsible for implementing a program dependent on voluntary actions, 

the State is obligated to monitor, assess and report on the implementation of any such program 

and the associated emission reductions, and to remedy emission reduction shortfalls in a timely 

manner should the voluntary measure not achieve the projected emission reductions. See 1997 

VMEP at 6-7. The EPA believes that voluntary measures, in conjunction with the enforceable 

commitment to monitor emission reductions achieved and rectify any shortfall, meet the SIP 

control measure requirements of the Act. See 1997 VMEP at 5 and 2004 Emerging and 

Voluntary Measures Policy at 8-9.

Given the innovative nature of these nontraditional measures, the EPA has recommended

“presumptive” limits on the amounts of emission reductions from such measures that may be 

credited in a SIP. Specifically, for VMEPs, the EPA has identified a presumptive limit of three 

percent (3%) of the total projected future year emission reductions required to attain the 
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appropriate NAAQS, and for any particular SIP submittal to demonstrate attainment or 

maintenance of the NAAQS or progress toward attainment (RFP), 3% of the specific statutory 

requirement. See 1997 VMEP at 5. As explained in the 2001 EIP Guidance, the EPA

recommended this 3% cap (per pollutant) on the credit allowed for VMEPs because states are 

“not required to play a direct role in implementing these programs, the programs are not directly 

enforceable against participating parties, and there may [be] less experience in quantifying the 

emission benefits from these programs.” 2001 EIP Guidance at 158. For voluntary stationary and 

area source measures, the EPA has identified a presumptive limit of 6% of the total amount of 

emission reductions required for RFP, attainment, or maintenance demonstration purposes. See 

2004 Emerging and Voluntary Measures Policy at 9 and 2005 Bundled Measures Guidance at 8.

These limits are presumptive in that the EPA may approve emission reductions from voluntary or 

other nontraditional measures in excess of the presumptive limits where the State provides a 

clear and convincing justification for such higher amounts, which the EPA would review on a 

case-by-case basis. See id.

The incentive-based emission reductions in the Contingency Measure SIP are consistent with 

the EPA’s recommendations in the 1997 VMEP. First, the Contingency Measure SIP and related 

support documents contain the State’s and District’s demonstrations that the claimed incentivebased emission reductions are quantifiable, surplus, enforceable and permanent consistent with 

EPA policy. See Proposal TSD at 29-42. Second, the SIP submission contains enforceable 

commitments by the District to monitor, assess and report on its implementation of specified 

portions of the Carl Moyer and Prop 1B programs and the associated emission reductions, and to 

remedy emission reduction shortfalls in a timely manner should these programs fail to achieve 

the projected amounts (i.e., 4.15 tpd of NOx reductions and 0.10 tpd of direct PM2.5 reductions) 
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in 2015. See 78 FR 53113, 53121-53122 and Proposal TSD at 42-44. These commitments 

become federally enforceable by the EPA under CAA section 11330 and by citizens under CAA 

section 30431 upon the EPA’s approval of the commitments into the SIP. Thus, although neither 

the EPA nor citizens can enforce these emission reductions directly against sources, as a result of 

today’s action the EPA and citizens may enforce these emission reductions against the District,32

pursuant to the District’s SIP-approved commitments. See Proposal TSD at 42-44; see also 

Response 13 below (discussing EPA and citizen enforcement of SIP commitments under the 

CAA). Third, the incentive-based emission reductions relied upon in the Contingency Measure 

SIP amount to less than two percent of the total projected NOx reductions and less than one 

 

30 Section 113 of the CAA authorizes the EPA to issue notices and compliance orders, assess 

administrative penalties, and bring civil actions against any “person,” including a State, who “has 

violated or is in violation of any requirement or prohibition of an applicable implementation 

plan. . . .” CAA section 113(a)(1)-(2), 42 U.S.C. 7413(a)(1)-(2); CAA section 302(e), 42 U.S.C. 

7602(e) (defining “person” to include a State or political subdivision thereof). “Applicable 

implementation plan” is defined in CAA section 302(q), in relevant part, as “the portion (or

portions) of the implementation plan, or most recent revision thereof, which has been approved 

under section 110 of [title I of the Act]. . . and which implements the relevant requirements of 

[the Act].” 42 U.S.C. 7602(q). 

31 CAA section 304(a)(1) authorizes any person to bring a civil action against any “person,” 

including a State, “who is alleged to have violated or to be in violation of . . . an emission 

standard or limitation. . . .” 42 U.S.C. 7604(a)(1); CAA section 302(e), 42 U.S.C. 7602(e) 

(defining “person” to include a State or political subdivision thereof). An “emission standard or 

limitation” is defined in section 304(f), in relevant part, to mean “a schedule or timetable of 

compliance” which is in effect under the Act “or under an applicable implementation plan.” 42 

U.S.C. 7604(f)(1). “Schedule and timetable of compliance” is broadly defined in section 302(p) 

to mean “a schedule of required measures including an enforceable sequence of actions or 

operations leading to compliance with an emission limitation, other limitation, prohibition, or 

standard.” 42 U.S.C. 7602(p).

32 The District Governing Board’s commitments are also enforceable against the State through 

CARB’s adoption of the Contingency Measure SIP. See State of California, Air Resources 

Board, “San Joaquin Valley PM2.5 Contingency Measures Update,” Resolution 13-30 (June 27, 

2013) (“the Board hereby adopts the PM2.5 Contingency Measures Update as a revision to the 

California SIP and directs the Executive Officer to transmit it to the U.S. EPA” as a SIP 

revision). Throughout this document, references to enforcement against the District include 

enforcement against the State, which has responsibility for ensuring adequate implementation of 

the SIP consistent with CAA section 110(a)(2)(E).
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percent of the total projected PM2.5 reductions needed to attain the 1997 PM2.5 NAAQS in the 

San Joaquin Valley by April 5, 2015 (78 FR 53113, 53121, n. 29). These amounts of emission 

reductions fall within the EPA’s recommended 3% cap (per pollutant) on the credit allowed for 

VMEPs. Finally, the incentive-based emission reductions do not interfere with requirements of 

the CAA and are consistent with the attainment and RFP requirements in the approved SJV 

PM2.5 SIP (78 FR 53113, 53123 (discussing the EPA’s evaluation of the Contingency Measure 

SIP in accordance with CAA section 110(l)).

Additionally, as explained in our proposed rule, the EPA evaluated the incentive-based 

emission reductions in the Contingency Measure SIP in accordance with the Agency’s guidance 

on discretionary economic incentive programs (EIPs)33, specifically “financial mechanism EIPs”

(78 FR 53113, 53118, August 28, 2013). The EPA’s approach to discretionary EIPs differs in 

several respects from its approach to “voluntary” and “emerging” measures. A discretionary EIP 

uses market-based strategies to encourage the reduction of emissions from stationary, area, 

and/or mobile sources in an efficient manner. See 2001 EIP Guidance at 3. To qualify for 

approval as a discretionary EIP, emission reductions or actions leading to reductions must be 

enforceable either by the State or by the EPA, and the State must be directly responsible for 

ensuring that program elements are implemented. See id. at 157-158 (states may use the 2001 

EIP Guidance where “[a]ctions and/or emission reductions by identifiable sources are 

enforceable by [the State] and/or by the EPA”). Additionally, the emission reductions resulting 

 

33 The EPA has promulgated regulations for “statutory EIPs” required under CAA sections 

182(g), 187(d)(3), or 187(g) and has issued guidance for “discretionary EIPs.” See generally 40 

CFR part 51, subpart U; 59 FR 16690 (April 7, 1994); and 2001 EIP Guidance. A “discretionary 

EIP” is any EIP submitted to the EPA as an implementation plan revision for purposes other than 

to comply with the statutory requirements of CAA sections 182(g)(3), 182(g)(5), 187(d)(3), or 

187(g) (40 CFR 51.491). In today’s action, we address only the requirements that apply to 

discretionary EIPs as the Contingency Measure SIP does not contain any statutory EIP.
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from an EIP must be quantifiable with a higher degree of certainty than the reductions resulting 

from an emerging measure. See 2004 Emerging and Voluntary Measures Policy at 5. Given these 

more rigorous approval criteria, the EPA’s presumptive limits on SIP credit for voluntary and 

emerging measures do not apply to discretionary EIPs. See 2001 EIP Guidance at 158 (“[states] 

may use the EIP guidance to implement programs which will generate emission reductions 

beyond the 3 percent limit”); see also 2004 Emerging and Voluntary Measures Policy at 6 (“EIP 

measures are not subject to a percentage limitation that applies to voluntary measures”). 

A “financial mechanism EIP” is an EIP that indirectly reduces emissions by increasing costs 

for high emitting activities – e.g., through subsidies targeted at promoting pollution-reducing 

activities or products. See 2001 EIP Guidance at 119-122 (Chapter 8.0). The EPA has identified 

several attributes that may make subsidy financial mechanism EIPs successful, including: (1) the 

relevant governmental body possesses legal authority to provide subsidies; (2) the subsidies 

address activities reasonably related to actual emissions or potential emissions; (3) where 

projected emission reductions are based on changes in behavior, methods for verifying that such 

reductions have taken place to the degree projected are generally accepted as unbiased and 

trustworthy; and (4) if needed, adequate penalty provisions are in place to ensure that the subsidy 

is used as expected. See 2001 EIP Guidance at 27 (“Attributes That Make Subsidy Financial 

Mechanism EIPs Successful”).

As explained further below, the incentive-based emission reductions in the Contingency 

Measure SIP are consistent with the EPA’s recommendations for “financial mechanism EIPs” in 

the 2001 EIP Guidance. First, CARB and the District are directly responsible for ensuring that 

the Prop 1B program and Carl Moyer Program are implemented in accordance with State law.

See 2010 Prop 1B guidelines at 1-4 (“Overview”) and 2011 Carl Moyer Program Guidelines at 
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Chapter 1 (“Program Overview”). Second, these incentive funds address activities reasonably 

related to actual or potential air pollutant emissions by requiring grant recipients to purchase and 

operate newer, cleaner vehicles or equipment in place of older, more-polluting vehicles or 

equipment, subject to detailed contract requirements. See Response 13. Third, the 2008 and 2010 

Prop 1B guidelines and the 2011 Carl Moyer Program Guidelines establish a number of methods 

for verifying that projected emission reductions have taken place through compliance with the 

terms and conditions of each funding contract. See Response 13 and Response 14. Finally, under 

the applicable guidelines, actions by grantees that lead to emission reductions are directly 

enforceable by the State and/or the District – e.g., CARB and/or the District may assess fiscal 

penalties and take certain corrective actions where contract violations are identified34-- and EPA 

and citizens may, in turn, enforce the annual reporting and emission reduction obligations against 

the District. See Response 13 and Response 14. Consistent with the EPA’s recommendations for 

“financial mechanisms EIPs,” these provisions in the 2008 and 2010 Prop 1B guidelines and the 

2011 Carl Moyer Program Guidelines are adequate to ensure that program funds are used as 

expected – i.e., to reduce emissions from higher-polluting vehicles and equipment by replacing 

them with newer, lower-polluting equipment and vehicles. 

In sum, although the incentive-based emission reductions in the Contingency Measure SIP 

are not directly enforceable against individual sources by the EPA or citizens, the District may 

enforce specific emissions-reducing actions against individual sources, and the EPA and citizens 

 

34 These State and District enforcement authorities distinguish both the Prop 1B program and the 

Carl Moyer Program from an entirely “voluntary” measure, which depends on actions by 

individual sources that cannot be enforced. See, e.g., 2001 EIP Guidance at 157-58 (describing 

VMEPs as “innovative mobile source air quality programs that are voluntary or that are operated 

by a non-governmental entity” and distinguishing these from EIPs, for which the State is 

“directly responsible for ensuring that program elements are implemented”).
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may, in turn, enforce the emission reduction obligations against the District, pursuant to the 

District’s SIP-approved commitments. Thus, whether the incentive-based emission reductions 

are characterized as dependent upon “voluntary” measures (i.e., a VMEP) or resulting from a 

discretionary “financial mechanism EIP,” we find the District’s SIP commitments in the 

Contingency Measure SIP adequate to ensure that the EPA and citizens may enforce these 

emission reductions under the Act. The Contingency Measure SIP and related support documents 

also adequately address all other applicable requirements of the CAA and the EPA’s 

recommendations as set forth in the 1997 VMEP and 2001 EIP Guidance (78 FR 53113, 53118-

53122, August 28, 2013). Given all of these considerations, we find that the incentive-based 

emission reductions in the Contingency Measure SIP satisfy the statutory criteria for SIP 

approval. 

Comment 13: Citing both the 2001 EIP Guidance and the 2004 Emerging and Voluntary 

Measures Policy, Earthjustice highlights seven criteria for enforceability and asserts that the 

emission reductions identified in the Contingency Measure SIP do not meet these criteria. 

Response 13: As an initial matter, we note that both the 2001 EIP Guidance and the 2004 

Emerging and Voluntary Measures Policy set forth the EPA’s recommendations for EIPs or 

voluntary measures submitted for SIP purposes and do not establish binding legal requirements. 

See 2001 EIP Guidance at 12 and 19 (stating that the EPA would determine through notice-andcomment rulemaking whether a particular EIP submission meets the applicable CAA 

requirements) and 2004 Emerging and Voluntary Measures Policy at 2. Moreover, the 2004 

Emerging and Voluntary Measures Policy does not apply to mobile emission sources such as on-
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road and non-road vehicles.

35 See 2004 Emerging and Voluntary Measures Policy at 5. We have, 

however, evaluated the incentive-based emission reductions in the Contingency Measure SIP for 

consistency with the fundamental “integrity elements” outlined in the 2001 EIP Guidance, the 

2004 Emerging and Voluntary Measures Policy, and other guidance on innovative measures as 

part of our evaluation of the SIP submission in accordance with CAA requirements. 

Based on this evaluation, we disagree with the commenter’s assertion that the incentivebased emission reductions in the Contingency Measure SIP fail to adequately address the 

enforceability recommendations provided in EPA policy. As the commenter notes, the 2001 EIP 

Guidance identifies enforceability considerations that are substantively identical to the 

recommendations in the 2004 Emerging and Voluntary Measures Policy. According to the 2001 

EIP Guidance, emission reductions use, generation, and other required actions are enforceable if: 

(1) they are independently verifiable; (2) program violations are defined; (3) those liable for 

violations can be identified; (4) the State and the EPA maintain the ability to apply penalties and 

secure appropriate corrective actions where applicable; (5) citizens have access to all the 

emissions-related information obtained from the source; (6) citizens can file suits against sources 

for violations; and (7) they are practicably enforceable in accordance with other EPA guidance 

on practicable enforceability. See 2001 EIP Guidance at 35-36.

The actions required of grantees under the applicable portions of the Prop 1B and Carl Moyer 

Program guidelines, as discussed in our proposed rule, the Proposal TSD, and further below, 

adequately address these enforceability recommendations. First, the required actions are 

 

35 The Contingency Measure SIP relies on emission reductions from incentive programs that 

apply only to mobile emission sources – specifically, “on-road vehicle replacement” projects 

funded through the Prop 1B program and “off-road vehicle replacement” projects funded through 

the Carl Moyer Program (78 FR 53113, 53120).
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independently verifiable through (1) pre-project and post-project on-site inspections (with 

photographic documentation) that the District and/or CARB must carry out pursuant to the 

applicable guidelines, and (2) documents that each grantee is required to maintain and/or submit 

to the District in accordance with detailed contract provisions. See generally 2008 Prop 1B 

guidelines at Section III.D (“Local Agency Project Implementation Requirements”), Section IV 

(“General Equipment Project Requirements”), and Appendix A, Section C (“Recordkeeping 

Requirements”) and Section D (“Annual Reporting Requirements”); 2010 Prop 1B guidelines at 

Section IV.A (“Project Implementation Requirements”), Section VI (“General Equipment 

Project Requirements”), and Appendix A, Section F (“Recordkeeping Requirements”) and 

Section G (“Annual Reporting Requirements”); and 2011 Carl Moyer Program Guidelines, Part 

I, Chapter 3 (“Program Administration”). 

For example, the 2008 and 2010 Prop 1B guidelines require, among other things, that (1) all 

project applications36 include documentation of current equipment and activity information (e.g. 

engine make, model, horsepower and fuel type, annual vehicle miles of travel (VMT) in 

California, and estimated percentage of annual VMT in trade corridors); (2) that the District 

conduct a “pre-inspection” of each application deemed eligible for funding, to verify information 

regarding the baseline engine, vehicle, or equipment; (3) that the District conduct a “postinspection” of each funded project to record, among other things, identifiers and specifications 

for the new engine/equipment (e.g., VIN numbers for new trucks, serial numbers for new 

engines), verification that the new engine/equipment is operational and consistent with the 

 

36 Each project application must be incorporated by reference into the equipment project 

contract, which the equipment owner must maintain for at least two years after equipment project 

ends or three years after final payment, whichever is later. See 2008 Prop 1B guidelines at 

Section III.D.10 (“Equipment project contracts”) and 2010 Prop 1B guidelines at Section 

IV.A.11 (“Equipment project contracts”).
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

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equipment described in the project application, and verification of the destruction of the 

old/replaced equipment, where applicable; and (4) that the District’s pre-inspection and postinspection project files include photographic documentation of each piece of equipment being 

inspected, including an engine serial number, visible distinguishing identification (e.g., a license 

plate), and a full view of the equipment. See Proposal TSD at 30-35; see also 2008 Prop 1B 

guidelines at Section III.D.8 (“Equipment project pre-inspections’), Section III.D.14 

(“Equipment project post-inspections), Section IV.D (“Equipment Project Application 

Requirements”) and Appendix A, Section F (“Application Information”); and 2010 Prop 1B 

guidelines at Section IV.A.10 (“Equipment project pre-inspections’), Section IV.A.16 

(“Equipment project post-inspections), Section VI.D (“Equipment Project Application 

Requirements”) and Appendix A, Section F (“Application Information”).

Similarly, the 2011 Carl Moyer Program Guidelines require, among other things, that (1) all 

project applications37 include documentation of existing engine usage in previous years (e.g. 

miles traveled, hours operated, or fuel consumed per year); (2) that the District conduct a “preinspection” of each application deemed eligible for funding, to verify information regarding the 

baseline engine, vehicle, or equipment; (3) that the District conduct a “post-inspection” of each 

funded project to record, among other things, information regarding the new engines, 

vehicles/equipment, and retrofit devices as needed to provide a basis for emission calculations 

and to ensure contract enforceability; and (4) that the District’s pre-inspection and post-

 

37 A project application that is “accurate and complete” may be included as an attachment to the 

contract to satisfy the “project specification” requirements of the 2011 Carl Moyer Program 

Guidelines. See 2011 Carl Moyer Program Guidelines at Section Z.6 (stating that “[a]ll contracts 

must include detailed information on the baseline and new vehicles, equipment, and/or engines 

that were used in the project cost-effectiveness calculation”). Each contract must be retained by 

the grantee for at least two years after contract expiration or three years after final project 

payment, whichever is later. See id. at Z.10 (“On-Site Inspections and Audits”).
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inspection project files include photographic documentation of the engine, vehicle, or equipment 

information, including a legible serial number and/or other identifying markings. See Proposal 

TSD at 37-42; see also 2011 Carl Moyer Program Guidelines, Part I, Chapter 3, at Section W 

(“Minimum Project Application Requirements”), Section AA (“Project Pre-Inspection”), and 

Section BB (“Project Post-Inspection”).

Second, the applicable portions of the 2008 and 2010 Prop 1B guidelines and the 2011 Carl 

Moyer Program guidelines specifically define the required elements of each contract and the 

types of actions that constitute violations of such contracts. For example, under the 2008 and 

2010 Prop 1B guidelines, each equipment project contract must include: (1) a unique “tracking 

number”; (2) the equipment owner’s contact information; (3) the original application submitted 

by the equipment owner; (4) requirements for the equipment owner to submit reports to the local 

agency annually or biennially38; (5) the equipment owner’s agreement to allow ongoing 

evaluations and audits of equipment and documentation by the District, CARB, or their 

designated representative(s); and (6) requirements for the equipment owner to retain all records 

pertaining to the program (i.e., invoices, contracts, and correspondence) for at least two years 

after equipment project ends or three years after final payment, whichever is later. See 2008 Prop 

1B guidelines at Section III.D.10 (“Equipment project contracts”) and 2010 Prop 1B guidelines 

at Section IV.A.11 (“Equipment project contracts”); see also Proposal TSD at 30-32.

Additionally, under the same guidelines, the following actions (among others) are specifically 

 

38 Under the 2008 Prop 1B guidelines, all grant recipients are required to submit reports to the 

District annually. See 2008 Prop 1B guidelines at Appendix A (“Trucks Serving Ports and 

Intermodal Rail Yards”), Section D (“Annual Reporting Requirements”). The 2010 Prop 1B 

guidelines also require annual reports except that certain owners of equipment with PM retrofits 

with a 2-year contract may report at the end of the 2-year project life. See 2010 Prop 1B 

guidelines, Appendix A (“Heavy Duty Diesel Trucks”), Section G (“Annual Reporting 

Requirements”). 
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

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official version.

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identified as contract violations: (1) failure to meet the terms and conditions of an executed 

equipment project contract, including equipment operating conditions and geographic 

restrictions; (2) failure to allow for an electronic monitoring device or tampering with an 

installed device or data; (3) insufficient, incomplete, or faulty equipment project documentation; 

and (4) failure to provide required documentation or reports in a timely manner. See 2008 Prop 

1B guidelines at Section IV.G (“Equipment Project Non-Performance”) and 2010 Prop 1B 

guidelines at VI.I (“Equipment Project Non-Performance”); see also Proposal TSD at 30-32. 

Similarly, under the 2011 Carl Moyer Program Guidelines, each equipment project contract 

must include: (1) the name and contact information of the grantee; (2) specified timeframes for 

“project completion” (the date the project post-inspection confirms that the project has become 

operational) and “project implementation” (the project life used in the project cost-effectiveness 

calculation); (3) detailed information on both baseline and new vehicles, equipment, and/or 

engines, including documentation adequate to establish historical annual usage; (4) requirements 

for the grantee to maintain the vehicle, equipment and/or engine according to the manufacturer’s 

specifications for the life of the project; (5) annual reporting requirements; (6) a provision 

authorizing the District, CARB, and their designees to conduct fiscal audits and to inspect the 

project engine, vehicle, and/or equipment and associated records during the contract term, and 

(7) requirements to maintain and retain project records for at least two years after contract 

expiration or three years after final project payment, whichever is later. See 2011 Carl Moyer 

Program Guidelines, Part I, Chapter 3 at Section Z (“Minimum Contract Requirements”); see 

also Proposal TSD at 37-38 (describing requirements for Off-Road Compression Ignition engine 

replacement projects in 2011 Carl Moyer Program Guidelines, Part I, Chapter 9 at Section C 

(“Project Criteria”)). Additionally, the 2011 Carl Moyer Program Guidelines explicitly require 
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Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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that each contract “specify that by executing the contract, the grantee understands and agrees to 

operate the vehicle, equipment, and/or engine according to the terms of the contract” and 

describe the potential repercussions to the grantee for non-compliance with contract 

requirements. See 2011 Carl Moyer Program Guidelines, Part I, Chapter 3 at Section Z.11 

(“Repercussions for Non-Performance”) and Section FF (“Nonperforming Projects”).39 The 2011 

Carl Moyer Program Guidelines also specifically identify types of actions on the part of the 

District that CARB may treat as violations of program requirements – e.g., misuse of Carl Moyer 

Program funds and insufficient, incomplete, or inaccurate project documentation. See 2011 Carl 

Moyer Program Guidelines at Section U (“Program Non-Performance”).

Third, grantees that are liable for violations of these contract provisions can be identified by 

the State and/or District and, through the annual demonstration reports submitted to the EPA, by 

the EPA and citizens as well. Specifically, as discussed above, under the 2008 Prop 1B 

guidelines, the 2010 Prop 1B guidelines, and the 2011 Carl Moyer Program guidelines, each 

contract executed by the District must require the grantee to maintain project records for at least 

two years after contract expiration or three years after final project payment, whichever is later, 

and to submit annual or biennial reports to the District. See 2008 Prop 1B guidelines at Section 

III.D.10 (“Equipment project contracts”), 2010 Prop 1B guidelines at Section IV.A.11 

(“Equipment project contracts”)40, and 2011 Carl Moyer Program Guidelines, Part I, Chapter 3 at 

Section Z (“Minimum Contract Requirements”); see also Proposal TSD at 30-32 and 37-40.

 

39 The 2011 Carl Moyer Program Guidelines authorize the District to grant a “waiver” to a 

grantee who demonstrates to the District’s satisfaction that certain conditions justify contract 

noncompliance for a defined period. See 2011 Carl Moyer Program Guidelines, Part I, Chapter 3 

at Section FF.4(D). We note that, for any project that the District has relied upon for SIP credit, 

Section 4.3 of Rule 9610 requires the District to annually adjust its calculation of SIP-creditable 

emission reductions to reflect periods of noncompliance under any such waiver.

40 See also n. 38, supra.
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Additionally, the 2008 and 2010 Prop 1B guidelines require that each contract contain a 

provision stating the equipment owner’s agreement to allow ongoing evaluations and audits of 

equipment and documentation by the District, CARB, or their designated representative(s), and 

the 2011 Carl Moyer Program Guidelines similarly require that all contracts authorize the 

District, CARB, or their designees to conduct fiscal audits of the project and/or to inspect the 

project engine, vehicle, and/or equipment and associated records during the contract term. See id.

These provisions in the Prop 1B and Carl Moyer Program guidelines enable both the State and 

District to identify grantees that violate their contract provisions.

The EPA and citizens, in turn, can identify violators through the annual demonstration 

reports that the District is obligated under its SIP commitment to make publicly available (on the 

District’s website) and to submit to the EPA by August 31 of each year. See SJVUAPCD Board 

Resolution No. 13-6-19 (June 20, 2013) at 3 and Rule 9610, Section 5.0. Specifically, Section 

6.1 of Rule 9610 (as adopted June 2013)41 states that “[a]ll documents created and/or used in 

implementing the requirements of Section 4.0 shall be kept and maintained as required by the

applicable incentive program guidelines. . . [and] shall be made available for public review” 

consistent with the California Public Records Act and other related requirements. Section 6.1 

also states that “[i]nformation regarding the process for the public review of such records shall 

be included in the annual demonstration report.” Rule 9610, Section 6.1. Consistent with these 

requirements, the 2013 Annual Demonstration Report submitted by the District states that the 

public may request documents created and/or used in implementing the requirements of Section 

4.0 (of Rule 9610) through the District’s Public Records Release Request form, which is 

available on the District website. See SJVUAPCD, “2013 Annual Demonstration Report” 

 

41 All references to Rule 9610 herein are to the rule as adopted by the District on June 20, 2013.
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Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

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(January 31, 2014) at 8. The District has confirmed that both the EPA and citizens may use this 

form to request copies of the required records for any Prop 1B or Carl Moyer Program project 

that the District has relied upon for SIP credit, which will be identified in the District’s annual 

demonstration reports going forward. See e-mail dated December 18, 2013, from Jeannine 

Tackett, SJVUAPCD, to Idalia Perez, U.S. EPA Region 9, “RE: question needed for response to 

comments on contingency measure SIP.”42

Fourth, the State maintains the ability to apply penalties and secure appropriate corrective 

actions where contract terms are violated, and the EPA maintains the ability to require 

appropriate corrective actions of the District where projected emission reductions are not 

achieved. For example, under the 2008 and 2010 Prop 1B guidelines, where the District finds 

that a grantee has violated a contract term, the District is authorized to recover all or a portion of 

program funds, assess fiscal penalties on equipment owners based on the severity of the nonperformance, and prohibit the equipment owner from participating in future State incentive 

programs, among other things. See 2008 Prop 1B guidelines at Section IV.G (“Equipment 

 

42 In its December 18, 2013 e-mail, the District confirmed that it “will include information in 

future annual demonstration reports as necessary to ensure the ongoing tracking of projects 

claimed in prior annual demonstration reports, including adjustments necessary under Section 

4.3 [of Rule 9610].” We note that beginning with the 2014 annual demonstration report, the 

District must identify the specific projects (by unique project identification number) that the 

District has relied upon for emission reduction credit in the Contingency Measure SIP, including 

adjustments made as required by Section 4.3 of Rule 9610, to ensure that the EPA and citizens 

can track the District’s progress in satisfying its SIP commitments. See Rule 9610, Section 4.5; 

see also Proposal TSD at 27, n. 17. The District may satisfy this requirement by including, in its 

annual demonstration report, the list of specific projects in the attachments to the EPA’s Proposal 

TSD (as adjusted consistent with Rule 9610, Section 4.3), which the EPA developed because the 

2013 Annual Demonstration Report does not specifically identify the projects relied upon for 

credit in the Contingency Measure SIP. See Proposal TSD at Attachment A (“Prop 1B: On-Road 

Vehicle Replacement projects achieving emission reductions through 2015”) and Attachment B

(“Carl Moyer Program: Off-Road Vehicle Replacement projects achieving emission reductions 

through 2015”).
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official version.

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Project Non-Performance”) and 2010 Prop 1B guidelines at Section VI.I (“Equipment Project 

Non-Performance”). Under the 2011 Carl Moyer Program Guidelines, both CARB and the 

District are authorized to “seek any remedies available under the law for noncompliance with 

Carl Moyer Program requirements and nonperformance with the contract,” including 

withholding of program funds, and should CARB determine that the District’s oversight and 

enforcement of the program is insufficient, CARB may recapture funds granted to the District 

that have not yet been awarded to approved projects. See 2011 Carl Moyer Program Guidelines, 

Chapter 3 at Section U (“Program Non-Performance”). Additionally, as explained further below, 

the EPA maintains the ability to enforce the District’s SIP commitments – i.e., to require the 

District to submit annual demonstration reports consistent with the requirements of Rule 9610 

and/or to adopt and submit substitute measures on a fixed timeframe, where projected emission 

reductions are not achieved. 

Fifth, citizens have access to all of the emissions-related information obtained from the 

source. As explained in our proposed rule, the Board commitments submitted with the 

Contingency Measure SIP obligate the District to “account for” its claimed NOx and PM2.5

emission reductions “in annual demonstration reports pursuant to the requirements of Rule 

9610.” See SJVUAPCD Board Resolution No. 13-6-18 at 3. Rule 9610 requires the District to 

submit to the EPA, no later than August 31 of each year, an “annual demonstration report” that 

includes detailed information about each specific project that the District has relied upon to 

achieve SIP-creditable emission reductions (e.g., unique project identification numbers, project 

implementation dates, applicable incentive program guideline(s), and quantified emission 

reductions per year and aggregated over the project life, by pollutant). See 78 FR 53113, 53121 

(citing Rule 9610, sections 4.1 – 4.6 and 5.0) (emphases added). Additionally, Rule 9610 
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Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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requires that “[a]ll documents created and/or used in implementing the requirements of Section 

4.0 shall be kept and maintained as required by the applicable incentive program guidelines” and 

that “such records shall be made available for public review.” Rule 9610, Section 6.1. Under the 

2008 and 2010 Prop 1B guidelines, all grant recipients must, among other things, retain “all 

documents, invoices, and correspondence associated with the application, award, contract, 

monitoring, enforcement, and reporting requirements” for at least two years after the equipment 

project contract term or three years after final payment, whichever is later”; must make records 

readily available and accessible to the District, CARB, or their designees upon request; and must 

submit regular reports to the District that include information about annual miles traveled, 

certification and documentation of travel within California’s trade corridors, and certification 

that the project was operated in accordance with the signed contract. See 2008 Prop 1B 

guidelines, Appendix A (“Trucks Serving Ports and Intermodal Rail Yards”), Section C 

(“Recordkeeping Requirements”) and Section D (“Annual Reporting Requirements”) at A-4 and 

2010 Prop 1B guidelines, Appendix A (“Heavy Duty Diesel Trucks”), Section F 

(“Recordkeeping Requirements”) and Section G (“Annual Reporting Requirements”) at A-19.

The 2011 Carl Moyer Program Guidelines contain substantially similar recordkeeping and 

reporting requirements for grantees in Chapter 3, Section Z.9 (“Reporting”), Section Z.10 (“OnSite Inspections and Audits”), and Section DD (“Grantee Annual Reporting”). Pursuant to 

section 6.1 of Rule 9610, all of these documents must be made available for public review upon 

request.43 See Rule 9610, Section 6.1. 

 

43 The 2008 Prop 1B guidelines require the District to retain all “program records” (e.g., 

invoices, contracts, and correspondence) for at least two years after the project ends or three 

years after final payment, whichever is later. See 2008 Prop 1B guidelines, Chapter II, Section 

D.10.b (“General Program provisions”). The 2010 Prop 1B guidelines require the District to 

retain “program records” for 35 years after the bond issuance date providing the funds for the 
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Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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Sixth, although citizens cannot file suits against sources for violations, both the EPA and 

citizens may file suits against the District for violations of its commitments to ensure that the 

projected emission reductions are achieved in 2015. Specifically, the SJVUAPCD Governing 

Board has submitted a commitment to quantify SIP-creditable emission reductions in the amount 

of 4.15 tpd of NOx reductions and 0.10 tpd of PM2.5 reductions using the incentive program 

guidelines and related documents identified in Rule 9610 and to “account for these NOx and 

PM2.5 emission reductions in annual demonstration reports pursuant to the requirements of Rule 

9610” for purposes of satisfying the PM2.5 contingency measure requirement for 2015.

SJVUAPCD Board Resolution No. 13-6-18 at p. 3. Additionally, the Board’s commitment states 

that “[if] there is a shortfall in expected emission reductions for 2015, the District will adopt and 

submit to EPA substitute rules and measures that will achieve equivalent emission reductions as 

expeditiously as practicable and no later than any applicable implementation deadline in the 

CAA or EPA’s implementing regulations, by no later than December 31, 2016.” Id. As explained 

in our proposed rule (78 FR 53113, 53121), the EPA interprets these District commitments as 

applying to emission reductions to be achieved in 2015 through specific types of Prop 1B and 

Carl Moyer Program projects,44 and the EPA expects that the 2014 annual demonstration report 

 

grant, or to send all records to ARB by the end date of the grant agreement. See 2010 Prop 1B 

guidelines, Chapter II, Section E.10.b (“General Program provisions”). Under the Carl Moyer 

Program Guidelines, the District must keep each “project file” for a minimum of two years after 

the end of the contract term or a minimum of three years after final payment, whichever is later. 

See 2011 Carl Moyer Program Guidelines, Chapter 3, Section V (“ARB Audit of Air Districts”) 

at 3-25. A “project file” generally includes a copy of the application, a completed pre- and postinspection form, and the annual reports submitted by the grantee. See id. at Section X.6, Section 

AA.4, Section BB.1.(G), and Section DD.3.

44 This interpretation is consistent with information in the District’s 2013 Annual Demonstration 

Report, which identifies “agricultural off-road vehicle replacement projects funded through the 

Carl Moyer Program” and “on-road vehicle replacement projects funded through the Prop 1B 

program” as the projects relied upon for contingency measure purposes. See 2013 Annual 

Demonstration Report at 26 (Table 5).
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will then specify the individual projects relied upon to achieve these emission reductions, 

consistent with the requirements of Rule 9610, Section 4.5. See Proposal TSD at 25-27, n. 13 and 

n. 17 (referencing Proposal TSD at Attachment A and Attachment B). These Board 

commitments, which become federally enforceable by the EPA and by citizens upon approval 

into the SIP,45 impose clear and specific requirements on the District to account for specific 

amounts of NOx and PM2.5 emission reductions through annual demonstration reports that satisfy 

the requirements of Rule 9610 and, if the identified projects fail to achieve the projected 

emission reductions in 2015, to adopt and submit to the EPA substitute measures that will

achieve equivalent amounts of emission reductions as expeditiously as practicable and no later 

than December 5, 2015.46 Should the EPA determine that the SJV area has failed to attain the 

 

45 See notes 30 and 31, supra.

46 Consistent with the EPA’s longstanding interpretation of CAA section 172(c)(9) as requiring 

that all actions needed to effect full implementation of contingency measures occur within 60 

days after the EPA notifies the State of a failure to attain the NAAQS by the applicable 

attainment date (78 FR 53113, 53115), we interpret the phrase “applicable implementation 

deadline” in the District’s SIP commitment to mean 60 days after October 5, 2015, which is the 

latest date by which the EPA must determine whether the SJV area has attained the 1997 PM2.5

NAAQS pursuant to CAA section 179(c). In our proposed rule, we stated that the District’s 

commitment obligated it to adopt and submit any substitute measures necessary to correct a 

shortfall in emission reductions “no later than December 31, 2016” (78 FR 53113, 53121, 

53122). In this final action, however, we are clarifying our interpretation of the SIP commitment 

to mean that any substitute measures necessary to correct a shortfall in 2015 emission reductions 

must be adopted and submitted to the EPA no later than the applicable implementation deadline 

for these contingency measures under CAA section 172(c)(9), which is December 5, 2015. This 

interpretation is consistent with the text of the District’s SIP commitment, which states that in the 

event of a shortfall, the District will “adopt and submit to EPA substitute rules and measures that 

will achieve equivalent emission reductions as expeditiously as practicable and no later than any

applicable implementation deadline in the CAA or EPA’s implementing regulations, by no later 

than December 31, 2016.” See SJVUAPCD Board Resolution No. 13-6-18 at p. 3 (emphases 

added). As a practical matter, because a December 2015 deadline for implementation of the 

remedy requires the District to begin developing any necessary substitute measures well before 

that date, the EPA intends to determine by late 2014 (based on the District’s 2014 annual 

demonstration report and other available documentation) whether there will be any shortfall in 

projected emission reductions that triggers the District’s obligation to adopt and submit substitute 

measures.
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1997 PM2.5 standards by the applicable attainment date (April 5, 2015), the EPA and citizens 

may enforce both components of the District’s SIP commitment under sections 113 and 304 of 

the CAA, respectively, as follows: (1) if the Board fails to annually account for its claimed NOx

and PM2.5 emission reductions consistent with the requirements of Rule 9610, the EPA or 

citizens may enforce the District’s obligation to submit the required reports; and (2) if the 

District’s 2014 annual demonstration report indicates that the specific projects identified therein 

will not achieve the District’s claimed amounts of NOx and PM2.5 emission reductions (4.15 tpd 

of NOx reductions and 0.10 tpd of PM2.5 reductions) in 2015 as projected, the EPA or citizens 

may enforce the District’s obligation to adopt and submit substitute measures that will achieve 

equivalent amounts of emission reductions by December 5, 2015. See Proposal TSD at 42-44. 

We find these provisions adequate to ensure that the EPA and citizens may secure appropriate 

corrective actions where projected emission reductions are not achieved.

Finally, the emission reductions to be achieved through the identified Prop 1B and Carl 

Moyer Program projects are practicably enforceable consistent with EPA policy on 

enforceability requirements. The EPA generally considers a requirement to be “practically 

enforceable” if it contains a clear statement as to applicability; specifies the standard that must be

met; states compliance timeframes sufficient to meet the standard; specifies sufficient methods to 

determine compliance, including appropriate monitoring, record keeping and reporting 

provisions; and recognizes relevant enforcement consequences. See “Review of State 

Implementation Plans and Revisions for Enforceability and Legal Sufficiency,” September 3, 

1987 (“1987 Potter Memo”) and “Guidance on Enforceability Requirements for Limiting 

Potential to Emit through SIP and Section 112 Rules and General Permits,” January 25, 1995 

(“1995 PTE Policy”) at 5, 6. The actions associated with the incentive-based emission reductions 
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in the Contingency Measure SIP are practicably enforceable on two levels. First, as explained 

above, the actions required of grantees under the 2008 and 2010 Prop 1B guidelines and the 

2011 Carl Moyer Program Guidelines are practicably enforceable by the State and District.

Specifically, under the applicable portions of the Prop 1B and Carl Moyer Program guidelines 

(see Proposal TSD at 29-42), each grant of incentive funds must be subject to contract provisions 

that clearly identify the funded equipment or vehicle; specify the actions required of the grantee; 

identify relevant compliance timeframes (e.g., a “project life”); specify sufficient methods to 

determine the grantee’s compliance with contract provisions, including detailed monitoring, 

recordkeeping and reporting requirements; and identify potential enforcement consequences in 

cases of contract non-compliance. Taken together, these provisions of the 2008 and 2010 Prop 

1B guidelines and the 2011 Carl Moyer Program Guidelines ensure that the actions required of 

grantees are practically enforceable consistent with EPA policy.

Second, the actions required of the District under its SIP commitment are practicably 

enforceable by the EPA and citizens. As discussed above, the District has submitted an 

enforceable commitment to account for specified amounts of NOx and direct PM2.5 emission 

reductions through annual demonstration reports meeting the requirements of Rule 9610 and, 

should the projects identified in those reports47 fail to achieve the specified reductions in 2015, to 

adopt and submit substitute measures achieving equivalent amounts of reductions on a fixed 

schedule. This commitment clearly identifies the District as the responsible entity; specifies the 

requirement that must be met and the compliance timeframes (i.e., to account for specific 

amounts of incentive-based NOx and PM2.5 emission reductions or to adopt and submit substitute 

measures by fixed dates); and, through reference to the requirements of Rule 9610, specifies 

 

47 See n. 42, supra.
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Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

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sufficient methods to determine compliance (i.e., the requirements under Section 4.0 of Rule 

9610 that each annual demonstration report must satisfy). Should the District fail to submit 

annual demonstration reports meeting the requirements of Rule 9610 that confirm that its 

claimed NOx and PM2.5 emission reductions occurred in 2015 as projected, the EPA may make a 

finding of failure to implement the SIP under CAA section 179(a), which starts an 18-month 

period for the State/District to correct the non-implementation before mandatory sanctions are 

imposed. Additionally, the EPA or citizens may enforce the District’s obligation to adopt and 

submit substitute measures that will achieve equivalent emission reductions no later than 

December 5, 2015.

Taking into account all of these provisions of the applicable incentive program guidelines 

and the District’s SIP commitments, we find the incentive-based emission reductions relied upon 

in the Contingency Measure SIP to be practically enforceable consistent with EPA policy.

Comment 14: Earthjustice asserts that the incentive-based emission reductions are not 

independently verifiable because the EPA and citizens can only rely on data submitted to or 

collected by the District. Additionally, Earthjustice contends that the EPA has no authority to 

inspect sources for compliance with the contracts between the District and the source, and that 

the EPA also lacks the ability to apply penalties or secure corrective actions against the sources.

Finally, Earthjustice asserts that because the emission reductions are secured through contracts 

between the source and the District, compliance with those agreements cannot be enforced by the 

public or the EPA, and that the District “has discretion to modify these contracts and redefine 

violations without any EPA or public oversight.” 

Response 14: First, we disagree with the commenter’s claim that the incentive-based emission 

reductions are not independently verifiable. Although enforcement of these emission reductions 
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Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

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by the EPA or citizens generally depends upon project-related information maintained by the 

District, this does not preclude independent verification of the emission reductions if sufficient 

safeguards are in place to ensure that the District will obtain and maintain adequate compliancerelated records and make these records available to the EPA and the public. As discussed above, 

the applicable incentive program guidelines (the 2008 and 2010 Prop 1B guidelines and the 2011 

Carl Moyer Program Guidelines) require that the District maintain specific documentation of 

pre-project and post-project inspections for each funded project and that all grantees submit 

detailed compliance-related documentation to the District on an annual or biennial basis. The 

District, in turn, is obligated under its SIP commitment to make these project records available to 

the EPA and to the public upon request. See Response 13. Furthermore, as a result of the EPA’s 

approval of the District’s commitments into the SIP, the EPA may require under CAA section 

114(a) that the District provide information necessary for the purpose of determining whether the 

District is in violation of these SIP commitments – including all compliance-related 

documentation that the District maintains in accordance with the applicable incentive program 

guidelines. See CAA section 114(a) (authorizing the EPA to require submission of information 

from “any person” who may have information necessary for the purpose of determining whether 

a SIP requirement has been violated) and section 302(e) (defining “person” to include a State or 

political subdivision thereof). We find the monitoring, recordkeeping and reporting requirements 

of the applicable incentive program guidelines, together with the District’s enforceable SIP 

commitments, adequate to ensure that the incentive-based emission reductions can be 

independently verified.

Second, although the commenter correctly states that the EPA is not authorized to inspect 

sources for compliance with their funding contracts or to apply penalties or secure corrective 
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actions against individual sources, we do not believe such authorities are necessary in order to 

enforce these emission reductions under the CAA. As discussed in Response 13 above, both the 

District and CARB are authorized to inspect sources for compliance with their funding contracts 

and to apply penalties or secure corrective actions against sources that violate their contracts.

Rule 9610 requires the District to maintain records of all such inspections and enforcement 

actions (see Rule 9610, Section 6.1), and under section 114(a) of the CAA, the EPA may require 

the District to provide these project-related records for purposes of determining whether the 

District is in violation of its SIP commitment. Both the EPA and citizens may also obtain these 

records from the District through submission of a “Public Records Release Request.” See 

Response 13. Based on these project-related records, the EPA and citizens may verify whether 

the District has adequately accounted for 4.15 tpd of NOx reductions and 0.10 tpd of PM2.5

reductions in 2015, consistent with its SIP commitments. Additionally, where the documentation 

evidences a shortfall in the required emission reductions, the District would be obligated –

subject to the EPA and citizen enforcement under the CAA – to adopt and submit substitute 

measures that achieve equivalent emission reductions no later than December 5, 2015. We find 

these provisions adequate to ensure that the incentive-based emission reductions in the 

Contingency Measure SIP may be enforced under the CAA.

Finally, although we agree with the commenter’s claim that neither the EPA nor citizens can 

enforce compliance with the contracts between sources and the District, we disagree with the 

claim that the District has discretion to “redefine violations without any EPA or public 

oversight.” As explained above, upon approval into the SIP the District’s commitments become 

federally enforceable by the EPA and by citizens under sections 113 and 304 of the Act, 

respectively. See Response 13. These SIP-approved commitments cannot be modified, nor can 
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the District “redefine violations” thereof, except through a SIP revision adopted by the State after 

reasonable notice and public hearing and approved by the EPA through notice-and-comment 

rulemaking. See CAA section 110(l); 5 U.S.C. section 553; 40 CFR 51.105; see also Response 8.

Comment 15: Earthjustice cites the EPA’s 2001 EIP Guidance to support its assertion that to be 

enforceable, a “financial mechanism EIP” must meet the general programmatic and sourcespecific definitions of enforceable. Earthjustice asserts that the EPA’s analysis does not include 

any review of the programmatic requirements outlined in EPA policy and that the Valley’s 

incentive program “violates several of these criteria.” Additionally, as to the “source-specific” 

definition of enforceable in EPA policy, Earthjustice asserts that the EPA lacks the ability to 

independently verify compliance because the EPA is reliant upon information collected by the 

State and District and cannot collect its own information, conduct inspections, demand additional 

reporting, or enforce the failure to submit required reports. Earthjustice further contends that the 

limited reporting required under the Carl Moyer program does not allow the EPA to 

independently verify compliance given “EPA must rely on the limited documentation submitted 

by the owner and will not even see reports on usage of the new equipment unless that data 

happens to be collected by the State or District and shared with EPA.” Earthjustice concludes 

that the incentive program contingency measure thus fails to be “enforceable” either at the 

programmatic level or the source-specific level.

Response 15: We disagree with Earthjustice’s characterization of the EPA’s recommendations in 

the 2001 EIP Guidance. The EPA stated in the 2001 EIP Guidance that “[t[he emission 

reductions associated with a financial mechanism EIP are enforceable if they meet the general 

programmatic and source-specific definitions of enforceable.” 2001 EIP Guidance at 120. 

Additionally, the EPA stated that although a program containing these elements would assure 
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that the program would meet the applicable CAA provisions, the EPA would also evaluate 

programs submitted by states that do not contain all of these elements and would determine, 

through notice-and-comment rulemaking, whether such programs satisfied the applicable CAA 

requirements. See 2001 EIP Guidance at 119; see also 2001 EIP Guidance at 12 and 19. Because 

the enforceability considerations highlighted in the 2001 EIP Guidance are non-binding 

recommendations, the EPA does not apply them as regulatory criteria in its evaluation of an EIP 

submission.

We have, however, evaluated the incentive-based emission reductions in the Contingency 

Measure SIP for consistency with the EPA’s recommendations in the 2001 EIP Guidance and 

find them generally consistent with the general programmatic and source-specific definitions of 

“enforceable” in this document. As Earthjustice notes, the “programmatic” definition of 

enforceable highlights seven key factors that should be considered in determining whether an 

EIP is enforceable. See 2001 EIP Guidance at 35-36. We addressed each of these seven factors in 

Response 13 above. The “source-specific” definition of enforceable highlights three key factors

that should be considered in determining whether an EIP is enforceable: (1) the source is liable 

for any violations; (2) the liable party is identifiable; and (3) the State, the public, and the EPA

can independently verify a source’s compliance. See 2001 EIP Guidance at 40. With respect to

the first two factors (the source’s liability for violations and the ability to identify the liable 

party), see Response 13 above. With respect to the third factor (the ability of the State, the 

public, and the EPA to independently verify a source’s compliance), see Response 14 above.

We also disagree with Earthjustice’s assertion that the EPA cannot collect the information 

necessary to independently verify compliance and that the reporting required under the Carl 

Moyer program does not allow the EPA to independently verify compliance. As discussed 
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above, the applicable incentive program guidelines (the 2008 and 2010 Prop 1B guidelines and 

the 2011 Carl Moyer Program Guidelines) require that the District maintain specific 

documentation of pre-project and post-project inspections for each funded project and that all 

grantees submit detailed compliance-related documentation to the District on an annual or 

biennial basis. The District, in turn, is obligated under its SIP commitment to maintain these 

project records and make them available to the EPA and to the public upon request. See 

Response 13; see also n. 43 supra. Furthermore, as a result of the EPA’s approval of the 

District’s commitments into the SIP, the EPA may require under CAA section 114(a) that the 

District provide information necessary for the purpose of determining whether the District is in 

violation of its SIP commitments – including all compliance-related documentation that the 

District maintains in accordance with the applicable incentive program guidelines. See id. and

Response 14. We find these provisions adequate to ensure that the EPA can collect the 

information necessary to independently verify the District’s compliance with its SIP 

commitments.

All SIP measures have some level of uncertainty, whether it comes from the uncertainty 

associated with the emissions factors for certain sources, the level of compliance with existing 

SIP measures, or the modeling for an attainment demonstration. The issue is how best to apply 

assumptions and tools to reduce the uncertainty to a manageable factor. See 2004 Electric-Sector 

EE/RE Guidance at 11. As explained in our Proposal TSD and further in these responses to 

comments, the incentive programs relied upon in the Contingency Measure SIP are subject to 

detailed monitoring, recordkeeping, reporting, and emissions quantification requirements under 

State law, all of which are designed to ensure that program grants are used to reduce air pollution 

through the replacement of older, higher-polluting vehicles and equipment with newer, cleaner 
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vehicles and equipment and to ensure that the resulting emission reductions are calculated 

consistent with established quantification protocols. See Proposal TSD at 29-42; see also 

Response 13. We find these requirements of the Prop 1B program and Carl Moyer Program 

adequate to reduce the uncertainties in calculating associated emission reductions to a 

manageable factor and to provide a reasonable basis for approval of the incentive-based emission 

reductions in the Contingency Measure SIP.

Comment 16: The District notes that the EPA did not review emission reductions achieved 

through the National Resources Conservation Service Environmental Quality Incentives Program 

(NRCS EQIP) for the replacement of agricultural equipment (as included in Rule 9610 and 

documented through the District’s 2013 Annual Demonstration Report). It describes efforts that 

have been taken toward developing procedures for crediting these emission reductions for SIP 

purposes including the statement of principles agreed upon by the District, NRCS, EPA, and 

CARB in December 201048 and the document signed by the EPA and NRCS in July 2012.49 The 

District states that the agencies that signed these statements agreed to work collaboratively to 

develop a mechanism to provide SIP credit for emission reductions from federal, state, and local 

incentive programs that meet the EPA integrity principles of being surplus, quantifiable, 

enforceable, and permanent. The District comments that it appreciates the EPA’s efforts over the 

last several years in reviewing the NRCS EQIP Program in the context of these agreements and 

 

48 SJVAPCD, EPA, US Department of Agriculture NRCS, and CARB; Statement of Principles 

Regarding the Approach to State Implementation Plan Creditability of Agricultural Equipment 

Replacement Incentive Programs Implemented by the USDA Natural Resources Conservation 

Service and the San Joaquin Valley Air Pollution Control District, December 2010.

49 USDA and EPA, Implementation Principles for Addressing Agricultural Equipment under the 

Clean Air Act, July 26, 2012
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Rule 9610 and looks forward to the EPA’s approval of this program as SIP-creditable in the near 

future. 

Response 16: We did not evaluate the EQIP as part of our action on the Contingency Measure 

SIP because the District did not specifically identify any emission reductions from the EQIP as 

part of its contingency measure plan and because emission reductions from the Carl Moyer and 

Prop 1B projects identified in our proposed rule and the Proposal TSD provide sufficient 

emission reductions to meet the CAA contingency measure requirement for the 1997 PM2.5

NAAQS in the SJV. See Contingency Measure SIP at 7-9 and 2013 Annual Demonstration 

Report at Table 5; see also Proposal TSD at 25-27, n. 13 and n. 17. Comments regarding the 

EQIP program are therefore outside the scope of this action.

Comment 17: Citing the EPA’s discussion of voluntary and discretionary economic incentive 

programs in the proposed rule, the District states that the EPA has generally limited the amount 

of emission reduction credit allowed in a SIP for discretionary incentive programs to three 

percent of the total projected future year emission reductions required to attain the relevant 

NAAQS. The District states that “[t]his three percent cap does not affect this contingency 

measure demonstration and should be removed from the proposed rule, since EPA notes the 

amount of incentive-based emission reductions used in this contingency demonstration is less 

than two percent of the total projected emission reductions needed to attain the 1997 PM2.5

NAAQS in the Valley.” It further asserts that “the District should not be limited to a three 

percent limit for incentive-based reductions achieved through SIP-creditable processes, such as 

Rule 9610.” In support of these assertions, the District quotes from the EPA’s stated rationale in 

the 2001 EIP Guidance (at pg. 139) for the recommended 3 percent cap on SIP credit for 

voluntary programs and the EPA’s statement that states “may use the EIP guidance to implement 
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programs which will generate emission reductions beyond the 3 percent limit, or when [the state 

has] already reached the 3 percent limit under the voluntary measures guidance.” Finally, the 

District notes that the 2001 EIP Guidance sets forth only non-binding policy and does not 

represent final EPA action on the requirements for EIPs.

Response 17: With respect to voluntary mobile source emission reduction programs (VMEPs), 

the EPA has generally limited the amount of emission reductions allowed in a SIP to three 

percent (3%) of the total projected future year emission reductions required to attain the relevant 

NAAQS, and for any particular SIP submittal to demonstrate attainment or maintenance of the 

NAAQS or progress toward attainment (RFP), 3% of the specific statutory requirement. See 

1997 VMEP at 5. Similarly, with respect to voluntary and emerging measures for stationary 

sources, the EPA has generally limited the amount of emission reductions allowed in a SIP to 6% 

of the total amount of emission reductions required for RFP, attainment, or maintenance 

demonstration purposes. See 2004 Emerging and Voluntary Measures Policy at 9 and 2005 

Bundled Measures Guidance at 8. These limits are “presumptive” in that the EPA may approve 

emission reductions from voluntary or other nontraditional measures in excess of the 

presumptive limits where the State provides a clear and convincing justification for such higher 

amounts, which the EPA would review on a case-by-case basis. See id.; see also Response 12.

It appears the District may have misunderstood the EPA’s intent in discussing this 

presumptive 3% limit on the emission reduction credit allowed in a SIP for VMEPs. In the 

proposed rule (78 FR 53113, 53118), we discussed the presumptive 3% limit both to provide 

context on the applicable EPA guidance to date and to indicate that the incentive-based emission 

reductions in the Contingency Measure SIP adequately address the EPA’s recommendations in 

the 1997 VMEP, as applicable (78 FR 53113, 53118 and 53121). Our proposed rule made clear, 
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however, that we were evaluating the Contingency Measure SIP in accordance with the 

fundamental integrity elements identified in several EPA guidance documents, as applied not 

only to VMEPs but also to discretionary “financial mechanism EIPs.” See id. at 53118 (citing 

both 2001 EIP Guidance and 1997 VMEP). Although we observed in the proposed rule that the 

NOx and direct PM2.5 emission reductions attributed to Carl Moyer Program and Prop 1B 

projects in the Contingency Measure SIP each amounted to less than 2 percent of the total 

projected emission reductions needed to attain the 1997 PM2.5 NAAQS in the SJV (78 FR 53113,

53121), this factual observation was intended to provide additional support for our proposal and 

was not a necessary basis for our action. See Response 12. Our discussion of the presumptive 3% 

limit provides relevant context on the EPA’s guidance on voluntary and incentive programs to 

date, and we disagree with the District’s statement that this discussion should be excluded from 

the analyses supporting our rulemaking action.

We agree, however, with the District’s suggestion that it is not necessarily limited to a 3% 

cap on the amount of SIP emission reduction credit allowed for incentive programs. As the 

District correctly notes, the 2001 EIP Guidance sets forth only non-binding policy and does not 

represent final EPA action on the requirements for EIPs. See 2001 EIP Guidance at 12. Likewise, 

the presumptive 3% limit on the SIP credit allowed for a VMEP under the 1997 VMEP policy is 

also a non-binding policy recommendation. In addition, the 2001 EIP Guidance explicitly 

provides that states may use it to implement programs which will generate emission reductions 

beyond the 3 percent limit, provided the state is directly responsible for ensuring that program 

elements are implemented. See 2001 EIP Guidance at 139. The EPA will review each SIP 

submitted by California that relies on emission reductions from incentive programs on a case-bycase basis in accordance with the applicable CAA requirements and, for any SIP that relies on 
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incentive programs for emission reductions exceeding the EPA’s presumptive caps, the EPA will 

determine through notice-and-comment rulemaking whether the State has provided adequate 

justification for such higher amounts and whether the submission, as a whole, satisfies the 

requirements of the Act. Because the incentive-based emission reductions in the Contingency 

Measure SIP fall below the EPA’s recommended 3% limit, we do not need to decide in today’s 

action whether the State has provided adequate justification for higher amounts of emission 

reduction credit.

Comment 18: The District disagrees in part with the EPA’s description of the effect of a “caseby-case determination” under the Carl Moyer Program and with the EPA’s statement that such 

determinations give the State broad discretion without EPA oversight or public process. First, the 

District states that case-by-case determinations are defined under Rule 9610 as “alternative 

procedures approved by ARB for specific projects, as authorized under the Carl Moyer Program 

Guidelines” and that these are not limited to “determinations that provide for a longer project 

life.” Second, the District states that “all case-by-case determinations submitted for review to 

ARB are made available to the public via public web posting at ARB’s Carl Moyer Program 

website, and [that] the District is required by the Carl Moyer Program Guidelines to keep a copy 

of the determination in the project file.” Third, the District states that under Section 3.2.2 of Rule 

9610, no case-by-case determination may be used to quantify emission reductions under the rule 

unless each determination is reviewed through a public process and submitted to the EPA in 

accordance with Section 7.0. Finally, the District confirms the EPA’s understanding that 

emission reductions from projects subject to case-by-case determinations are not included in the 

2013 Annual Demonstration Report but disagrees with the EPA’s statement in the proposed rule 

that such projects “are not eligible for SIP credit,” noting that the reason these are not included in 
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the 2013 Annual Demonstration Report is that they are “extremely rare and make up less than 

one percent of District administered incentive programs.” In conclusion, the District maintains 

that case-by-case determinations made in accordance with Rule 9610 should be eligible for SIP 

credit.

Response 18: We do not dispute the District’s statement that “case-by-case determinations” 

under the Carl Moyer Program are not limited to determinations that allow for a longer project 

life and note the broad definition of the term “case-by-case determination” in Section 2.4 of Rule 

9610. We discussed case-by-case determinations in the proposed rule only to note that, although 

the portions of the three incentive program guidelines that we reviewed generally establish 

criteria consistent with the requirements of the Act, the provisions regarding case-by-case 

determinations in these portions of the guidelines do not adequately address the Act’s 

requirements for SIP emission reduction credit (78 FR 53113, 53120). We referenced, as an 

example, a provision in the 2011 Carl Moyer Program guideline entitled “Project Life” and noted 

that emission reductions from any project subject to a case-by-case determination under such a 

provision would not be eligible for SIP credit “unless the District submits the individual 

determination for EPA review and approval through the SIP process” (78 FR 53113, 53120 

(referencing 2011 Carl Moyer Program guideline at Chapter 9, Section C.1(c)(5)). The purpose 

of this discussion was to make clear that the EPA is not, through this rulemaking, authorizing the 

District to rely on any project subject to a case-by-case determination under the referenced 

incentive program guidelines, nor is the EPA approving any such case-by-case determination. 

As the District correctly notes, Rule 9610 specifically prohibits the District from using a 

case-by-case determination to quantify emission reductions under the rule “unless such 

determination is reviewed through a public process and submitted to EPA in accordance with 
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Section 7.0.” Rule 9610, Section 3.2.2. Section 7.0 of the rule states, in relevant part, that “[e]ach 

SIP submission in which the District relies on [projections of SIP-creditable emission reductions] 

shall contain a demonstration that the applicable incentive program guideline(s) continues to 

provide for SIP-creditable emission reductions....” Read together, these provisions require the 

District to submit any case-by-case determination that it intends to rely on for SIP credit to the 

EPA in a formal SIP submission, together with a demonstration that the determination and the 

project(s) subject to it provide for emission reductions that are surplus, quantifiable, enforceable, 

and permanent. See Rule 9610, Section 7.0 (establishing requirements for SIP submissions) and 

Section 2.25 (defining “SIP-Creditable Emission Reduction”). Upon the EPA’s approval of such 

a SIP consistent with CAA requirements, projects subject to the identified case-by-case 

determination would be eligible for SIP credit. 

In sum, case-by-case determinations under the Carl Moyer Program are not currently eligible 

for SIP credit but may become eligible for credit through the EPA’s approval of SIP submissions 

going forward. Should the District intend to rely on emission reductions from a project subject to 

a case-by-case determination to satisfy a SIP requirement, it may do so only following its 

submission of the determination to the EPA as part of a SIP that meets the requirements of Rule 

9610, Section 7.0 and the EPA’s approval of such SIP consistent with the requirements of the 

CAA.

The EPA appreciates the District’s statement confirming that projects subject to case-by-case 

determinations are not included in the 2013 Annual Demonstration Report and is approving the 

incentive-based emission reductions in the Contingency Measure SIP based on our 

understanding that it does not rely on any case-by-case determination. 

C. General Comments
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Comment 19: Earthjustice urges the EPA not to approve the San Joaquin Valley contingency 

measures for the San Joaquin Valley’s PM2.5 SIP. Earthjustice argues that the Contingency 

Measure SIP “does not comply with the Clean Air Act and would leave Valley residents without 

meaningful air quality protections if and when the Valley fails to attain the 1997 PM2.5

standards.”

Response 19: For the reasons discussed in our proposed rule and further explained in our 

responses to comments above, we have determined that the Contingency Measure SIP corrects 

the deficiency that prompted our partial disapproval of the SJV PM2.5 SIP and strengthens the 

SIP and are, therefore, approving it into the California SIP. 

We disagree with the claim that the approval of this Contingency Measure SIP would leave 

SJV residents “without meaningful air quality protections” should the SJV fail to meet the 1997 

PM2.5 standards by the applicable attainment date of April 5, 2015. The Contingency Measure 

SIP demonstrates that California has adopted measures that will achieve substantial emission 

reductions in and after 2015 that will provide significant on-going air quality benefits to SJV 

residents. Specifically, the Contingency Measure SIP shows that in calendar year 2015, adopted 

and implemented federal and State mobile source control measures will reduce NOx emissions

by 21 tpd; State and local incentive grant funds will reduce NOx emissions by an additional 4.15 

tpd; and the SIP-approved contingency provision in the District’s residential woodburning rule, 

Rule 4901, will provide 3.1 tpd of direct PM2.5 reductions should we determine that the SJV has 

failed to attain the 1997 PM2.5 standards by the applicable attainment date of April 5, 2015 (78 

FR 53113, 53123). Compared to projected 2014 levels of NOx and direct PM2.5 emissions in the 
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SJV, these contingency measures will provide an additional 9 percent reduction in NOx

emissions and an additional 5 percent reduction in direct PM2.5 emissions in 2015.50

Comment 20: Earthjustice objects to the EPA’s statement that contingency measures must be 

implemented “quickly without significant additional action by the state,” stating that the addition 

of “significant” in 40 CFR 51.1012 was the result of a scrivener’s error and is not consistent with 

the plain statutory language of CAA section 172(c)(9). Quoting from the preamble to the EPA’s 

2007 PM2.5 Implementation Rule, Earthjustice notes that the EPA acknowledged this error in its 

adoption of the rule. 

Response 20: We agree that the inclusion of “significant” in 40 CFR 51.1012 was in error and 

note the correction. 

Comment 21: Mr. Unger comments that the SJV area has not met the PM2.5 standards and that 

air quality has not improved much in the past few years. He also states that both the SJV’s 

citizens and the District are reluctant to do more to improve air quality. For these reasons, he 

urges the EPA to not approve the SIP for the 1997 annual and 24-hour PM2.5 standards. He 

disagrees with our statement that “the State has most likely done all it can to correct the 

deficiency” given the continuing nonattainment in the San Joaquin Valley. He states that if the 

EPA were to impose sanctions on the SJV, it would encourage California to adopt controls 

sufficient to attain the standards. He includes a list of suggested measures in his comments.

Response 21: In 2011, we approved all but one element of California’s SIP to attain the 1997 

annual and 24-hour PM2.5 standards in the SJV (76 FR 69896, November 9, 2011). Our action 

here is to approve the last outstanding element of that SIP, the contingency measures for failure 

 

50 Total NOx and direct PM2.5 emissions in the SJV are projected to be 291 tpd and 63.3 tpd, 

respectively, in 2014. See 2011 Progress Report, Appendix C, Table C-1. 
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to make RFP or attain. Our approval is based on our determination that the Contingency Measure 

SIP corrects the deficiency that prompted our 2011 disapproval of the contingency measure 

provisions in the SJV PM2.5 SIP. Although the commenter asserts generally that SJV citizens and 

the District are “reluctant” to do more to improve air quality, that the SJV area has not complied 

with the NAAQS for many years, and that the threat of sanctions might encourage further 

regulatory action, the commenter fails to identify any specific basis under the CAA for 

disapproving the Contingency Measure SIP.

The purpose of contingency measures is to continue progress in reducing emissions while the 

SIP is being revised to meet a missed RFP milestone or correct continuing nonattainment. 

Should the EPA determine that the SJV has failed to attain the 1997 standards by the applicable 

attainment date (April 5, 2015), the State and District will be required to implement these 

contingency measures and to revise the SIP to assure expeditious attainment consistent with 

applicable CAA requirements.

We appreciate the list of control measures and will forward it to the District for its 

consideration during development of the next PM2.5 SIP for the Valley.

III. Final Actions

The EPA is approving the Contingency Measure SIP (adopted June 20, 2013 and submitted 

July 3, 2013) based on the Agency’s conclusion that this SIP submission corrects the deficiency

in the CAA section 172(c)(9) attainment contingency measures that was one of two bases for the 

EPA’s partial disapproval of the SJV PM2.5 SIP on November 9, 2011 (76 FR 69896).

The EPA also finds that the CAA section 172(c)(9) RFP contingency measure requirement 

for the 2012 RFP milestone year is moot as applied to the SJV nonattainment area because the 

area has achieved its SIP-approved emission reduction benchmarks for the 2012 RFP milestone 
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year. This finding corrects the deficiency in the CAA section 172(c)(9) RFP contingency 

measures that was the second of two bases for the EPA’s partial disapproval of the SJV PM2.5

SIP on November 9, 2011 (76 FR 69896).

Finally, the EPA is approving enforceable commitments by the District to monitor, assess, 

and report on actual NOx and direct PM2.5 emission reductions achieved through its 

implementation of specific Prop 1B and Carl Moyer Program grants and to remedy any identified 

emission reduction shortfall in a timely manner as found on page 3 of the SJVUPACD 

Governing Board Resolution No. 13-6-18, dated June 20, 2013.

Today’s final actions lift the CAA section 179(b)(2) offset sanctions and terminate the CAA 

section 179(b)(1) highway funding sanction clock triggered by the 2011 partial disapproval of 

the SJV PM2.5 SIP. These actions also terminate the EPA’s obligation under CAA section 110(c) 

to promulgate a corrective Federal implementation plan within two years of the partial

disapproval.

IV. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies 

with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 

52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve State choices, 

provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely 

approves State law as meeting Federal requirements and does not impose additional requirements 

beyond those imposed by State law. For that reason, this action:

 is not a “significant regulatory action” subject to review by the Office of Management 

and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

88

 does not impose an information collection burden under the provisions of the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.);

 is certified as not having a significant economic impact on a substantial number of small 

entities under the Regulatory Flexibility Act(5 U.S.C. 601 et seq.);

 does not contain any unfunded mandate or significantly or uniquely affect small 

governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-

4);

 does not have Federalism implications as specified in Executive Order 13132 (64 FR 

43255, August 10, 1999);

 is not an economically significant regulatory action based on health or safety risks subject 

to Executive Order 13045 (62 FR 19885, April 23, 1997);

 is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, 

May 22, 2001);

 is not subject to requirements of Section 12(d) of the National Technology Transfer and 

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

requirements would be inconsistent with the Clean Air Act; and

 does not provide the EPA with the discretionary authority to address, as appropriate, 

disproportionate human health or environmental effects, using practicable and legally 

permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000), because it does not apply in Indian country located in the 

State, and the EPA notes that it will not impose substantial direct costs on tribal governments or 

preempt tribal law.
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

89

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business 

Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take 

effect, the agency promulgating the rule must submit a rule report, which includes a copy of the 

rule, to each House of the Congress and to the Comptroller General of the United States. The 

EPA will submit a report containing this action and other required information to the U.S. 

Senate, the U.S. House of Representatives, and the Comptroller General of the United States 

prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 

days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 

U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed 

in the United States Court of Appeals for the appropriate circuit by [INSERT DATE 60 DAYS 

AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. Filing a petition for 

reconsideration by the Administrator of this final rule does not affect the finality of this action 

for the purposes of judicial review nor does it extend the time within which a petition for judicial 

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

may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental relations, Incorporation 

by reference, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, 

Sulfur oxides.

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

________________________ _____________________________________

Dated: Jared Blumenfeld,

Regional Administrator,

Region IX.
This document is a prepublication version, signed by EPA Region 9 Regional Administrator, Jared 

Blumenfeld on April 28, 2014. We have taken steps to ensure the accuracy of this version, but it is not the 

official version.

90

40 CFR part 52 is amended as follows:

PART 52 APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS.

1. The authority citation for Part 52 continues to read as follows:

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

Subpart F — California

2. Section 52.220 is amended by adding paragraph (c)(xxx) to read as follows:

§ 52.220 Identification of plan.

* * * * *

(c) * * *

(xxx) The following plan was submitted on July 3, 2013, by the Governor's Designee.

(i) [Reserved]

(ii) Additional materials.

(A) San Joaquin Valley Unified Air Pollution Control District.

(1) “Quantifying Contingency Reductions for the 2008 PM2.5 Plan” (dated June 20, 2013), 

adopted October 7, 2011.

(2) SJVUAPCD Governing Board Resolution No. 13-6-18, dated June 20, 2013, “In the Matter 

of: Authorizing Submittal of the ‘Quantification of Contingency Reductions for the 2008 PM2.5

Plan’ to EPA.”

(3) Electronic mail, dated July 24, 2013, from Samir Sheikh, SJVUAPCD, to Kerry Drake, EPA 

Region 9, “RE: Per our conversation earlier.”

(B) State of California Air Resources Board.

(1) CARB Executive Order 13-30, dated June 27, 2013, “San Joaquin Valley PM2.5 Contingency 

Measures Update.”