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Federal Register / Vol. 86, No. 167 / Wednesday, September 1, 2021 / Proposed Rules emission reductions that implementation of contingency measures must achieve, but the EPA
recommends that contingency measures should provide for emission reductions equivalent to approximately one year of reductions needed for RFP in the nonattainment area, calculated as the overall level of reductions needed to demonstrate attainment divided by the number of years from the base year to the attainment year. In general, we expect all actions needed to effect full implementation of the measures to occur within 60 days after the EPA
notifies the state of a failure to meet RFP
or to attain.199
To satisfy the requirements of 40 CFR
51.1014, the contingency measures adopted as part of a PM2.5 attainment plan must consist of control measures for the area that are not otherwise required to meet other attainment plan requirements e.g., to meet RACM/RACT
requirements and must specify the timeframe within which their requirements become effective following any of the EPA determinations specified in 40 CFR 51.1014a. In a 2016 decision called Bahr v. EPA Bahr,200 the Ninth Circuit Court of Appeals rejected the EPAs interpretation of CAA section 172c9 to allow approval of alreadyimplemented control measures as contingency measures. In Bahr, the Ninth Circuit concluded that contingency measures must be measures that are triggered and implemented only after the EPA determines that an area fails to meet RFP requirements or to attain by the applicable attainment date, and the state must not have begun to implement such measures before this determination is made. Thus, already implemented measures cannot serve as contingency measures under CAA
section 172c9. To comply with section 172c9, as interpreted in the Bahr decision, a state must develop, adopt, and submit one or more contingency measures to be triggered upon a failure to meet any RFP
requirement, failure to meet a quantitative milestone requirement, or failure to attain the NAAQS by the applicable attainment date regardless of the extent to which alreadyimplemented measures would achieve surplus emission reductions beyond those necessary to meet RFP or quantitative milestone requirements and beyond those predicted to achieve attainment of the NAAQS.
199 81 FR 58010, 58066. See also General Preamble 13512, 1354313544, and General Preamble Addendum, 4201442015.
200 Bahr v. EPA, 836 F.3d 1218, 12351237 9th Cir. 2016.

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2. Summary of States Contingency Measures a. 2016 PM2.5 Plan Contingency Measures The 2016 PM2.5 Plan includes a contingency measure element that is intended to address a potential failure to meet RFP but, consistent with the plans demonstration that it is impracticable to attain the 2012 PM2.5 NAAQS by December 31, 2021, that does not address a potential failure to attain the NAAQS by the applicable attainment date.201 Rather, the State and District conclude that they intend to identify and adopt contingency measures for failure to attain as part of the Serious area attainment plan and, in fact, have done so in the 2018 PM2.5 Plan. The State and District use the plans RFP
analysis through 2022 to calculate the amount of direct PM2.5 and NOX
emission reductions that represents one years worth of RFP. Specifically, the State and District divided the difference in emissions in 2022 and 2013 by nine to estimate one years worth of RFP. The 2016 PM2.5 Plan estimates that one years worth of RFP is 0.4 tpd of direct PM2.5 and 14.8 tpd of NOX.202 The contingency measure element does not address ammonia, SOX, and VOC in light of the State and Districts conclusion that each of these three pollutants does not contribute significantly to exceedances of the 2012
PM2.5 NAAQS in the SJV. In addition, the contingency measure element in the 2016 PM2.5 Plan only addresses the potential failure to meet the 2019 RFP
milestone, not the potential failure to meet the 2022 RFP milestone.
CARB and the District prepared the 2016 PM2.5 Plan prior to the Bahr decision, and thus did not include any contingency measures that would only be triggered conditionally and prospectively, upon a future failure to meet RFP or other relevant event.
Instead, CARB and the District relied only on emissions reductions from already-implemented measures to satisfy the contingency measure requirement. To demonstrate sufficient reductions for contingency purposes, the 2016 PM2.5 Plan relies on three types of emission reductions: 1 0.6 tpd direct PM2.5 and 9.7 tpd NOX emission reductions that are surplus to those needed by 2019 to meet that years linear RFP target emissions, 2 0.3 tpd NOX emission reductions from the January 2015 amendment to Rule 4905
Natural Gas-Fired, Fan-Type Central Furnaces as being surplus to those 201 2016
202 2016

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PM2.5 Plan, 313 to 317.
PM2.5 Plan, Table 38.

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captured in the 2016 PM2.5 Plans emissions inventory, and 3 3.0 tpd NOX of incentive-based emission reductions in conjunction with Rule 9610 State Implementation Plan Credit for Emission Reductions Generated Through Incentive Programs.203
CARB and the District then established a ratio of 1:8.8 to trade direct PM2.5 emissions for NOX
emissions based on the 2016 PM2.5
Plans precursor sensitivity analysis for the traditional high design value sites in Bakersfield.204 After accounting for the 0.4 tpd direct PM2.5 emission reductions that would meet the 2019 RFP target emission reductions, per the 2019 RFP
target emission reductions, the contingency measure element relies on this trading ratio to convert 0.2 tpd of additional direct PM2.5 emission reductions in 2019 into 1.8 tpd of NOX
emission reductions equivalent after rounding to the tenths place.205 Then, after accounting for NOX emission reductions that would meet the 2019
RFP target emissions reductions, the contingency measure element sums 9.7
tpd of surplus NOX emission reductions with 0.3 tpd from the 2015 amendment to Rule 4905, 1.8 tpd from the surplus direct PM2.5 conversion, and 3.0 tpd from the incentive-based emission reductions. The sum of these four types of reductions equals 14.8 tpd NOX, which matches the States estimate of one years worth of RFP.
Therefore, the 2016 PM2.5 Plan concludes that these emission reductions equivalent to one years worth of progress, i.e., 0.4 tpd direct PM2.5 and 14.8 tpd NOX are sufficient to satisfy the contingency measure requirements for the 2012 PM2.5 NAAQS
in the SJV.
b. 2018 PM2.5 Plan Contingency Measures The 2018 PM2.5 Plan addresses the contingency measure requirement for the 2012 PM2.5 NAAQS by reference to the contingency measure portion of a December 2018 SIP submission that involved enhanced enforcement of CARB regulations in the SJV, a commitment to amend the Districts residential wood burning rule District Rule 4901 to include contingent provisions, and emissions estimates for the year following the attainment year for use in evaluating whether the emissions reductions from the 203 2016 PM
2.5 Plan, 315 and 316. See also 2016
PM2.5 Plan, App. C SIP Creditable Incentive-Based Emission Reductions.
204 2016 PM
2.5 Plan, 317.
205 Id. at Table 37.

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