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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Proposed Rules PM10 plan failed to achieve attainment by the attainment date, the RFP
demonstration based on the rate by which these reductions were to occur is also necessarily deficient. This was borne out by the monitoring data; no real rate of reduction of exceedances can be demonstrated over the period of implementation of the Plans control measures, 20162018. Indeed, even with the early implementation of additional controls designated by the State as contingency measures to provide emissions reductions in the event of a failure to show RFP or to attain, West Pinal County still exceeded the PM10
standard by a large margin as evidenced by the data in Table 5.
Regarding quantitative milestones, given the EPAs 2012 designation of nonattainment for West Pinal County, the State should have included quantitative milestones for mid-2016
and mid-2019 within the West Pinal County PM10 Plan. Aside from the two glidepath depictions in Figure 71, the Plan provides no further discussion of quantitative milestones. What is presented in Figure 71 does not meet the criteria that the Plans quantitative milestones should be trackable, quantified, and provide for an objective evaluation of RFP toward attainment of the NAAQS, by mid-2016. The West Pinal County PM10 Plan does not address RFP or quantitative milestones in mid-2019.
For these reasons, we have determined that the West Pinal County PM10 Plan fails to demonstrate RFP, consistent with applicable CAA
requirements and EPA guidance.
Therefore, we propose to disapprove the RFP demonstration and quantitative milestones for the West Pinal County area for the 24-hour PM10 NAAQS under sections 172c2 and 189c1.

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F. Contingency Measures 1. Statutory and Regulatory Requirements Under the CAA, states must include contingency measures consistent with section 172c9 in their nonattainment plan SIP submissions. Contingency measures are additional controls or measures to be implemented in the event the area fails to meet RFP or to attain the NAAQS by the applicable attainment date. The SIP should contain trigger mechanisms for the contingency measures, specify a schedule for implementation, and indicate that the measure will be implemented without significant further action by the state or the EPA.68
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Neither the CAA nor the EPAs implementing regulations establish a specific level of emissions reductions that implementation of contingency measures must achieve, but the General Preamble reiterates the EPAs guidance recommendation that contingency measures should generally provide for emissions reductions approximately equivalent to one years worth of RFP in the area.69 Where a failure to attain or to meet RFP can be corrected in less than one year, the EPA may accept a proportionally lesser amount sufficient to correct the identified failure.70
It has been the EPAs longstanding interpretation of CAA section 172c9
that states may meet the contingency measure requirement by relying on Federal measures e.g., Federal mobile source measures based on the incremental turnover of the motor vehicle fleet each year and state or local measures already scheduled for implementation that provide emissions reductions in excess of those needed to meet any other nonattainment plan requirements, such as RACM/RACT, RFP, or expeditious attainment. The key is that the Act requires that contingency measures provide for additional emissions reductions that are not relied on for RFP or attainment and that are not included in the RFP or attainment demonstrations as meeting part of or all the contingency measure requirements.
The purpose of contingency measures is to provide continued emissions reductions while a plan is being revised to meet the missed milestone or attainment date.
In Bahr v. EPA, the Ninth Circuit Court of Appeals rejected the EPAs interpretation of CAA section 172c9
as allowing for early implementation of contingency measures.71 The Ninth Circuit concluded that contingency measures must take effect at the time the area fails to make RFP or attain by the applicable attainment date, not before.72
Consequently, within the geographic jurisdiction of the Ninth Circuit, states cannot rely on early-implemented measures to comply with the contingency measure requirements under CAA section 172c9.73
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71 Bahr v. EPA, 836 F.3d 1218, 12351237 9th Cir. 2016.
72 Id. at 12351237.
73 The Bahr v. EPA decision involved a challenge to an EPA approval of contingency measures under the general nonattainment area plan provisions for contingency measures in CAA section 172c9, but, given the similarity between the statutory language in section 172c9 and the ozone-specific contingency measure provision in section 182c9, we find that the decision affects how both sections of the Act must be interpreted.
70 Id.

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2. Summary of the States Submission ADEQ developed the West Pinal County PM10 Plan prior to the Bahr v.
EPA decision, and the plan relies solely upon surplus emissions reductions from already implemented control measures during the 20162018 period to demonstrate compliance with the contingency measure requirements of CAA section 172c9. The West Pinal County PM10 Plan included the following early implemented state and local regulations to meet the contingency measures requirement for the PM10 standard: The portion of the AgBMP Rules for Pinal County applicable to dairy operations R182
611 and 611.03, and the Pinal County Fugitive Dust Rule and Construction Dust Rule.74 Contingency Measures are also discussed in Appendix D.75
3. The EPAs Review of the States Submission Arizona is within the geographic jurisdiction of the Ninth Circuit Court of Appeals; therefore, after the Bahr v. EPA
decision, the State cannot rely on already-implemented control measures to comply with the contingency measure requirement of CAA section 172c9. To comply with CAA section 172c9, as interpreted in the Bahr v.
EPA decision, a state must develop, adopt and submit contingency measures to be triggered upon a failure to meet RFP milestones or failure to attain the NAAQS by the applicable attainment date regardless of the extent to which already-implemented measures would achieve surplus emissions reductions beyond those necessary to meet RFP
milestones and beyond those predicted to achieve attainment of the NAAQS.
Arizonas adopted and pre-implemented contingency measures do not comply with these requirements for failure to make RFP and failure to meet attainment contingency measures.
Section 172c9 requires contingency measures to address potential failures to achieve RFP milestones or failure to attain the NAAQS by the applicable attainment date. For these reasons, we propose to disapprove the contingency measures element of the West Pinal County PM10 Plan as failing to meet the contingency measure requirements of CAA sections 172c9.

74 West Pinal County PM
10 Plan, Chapter 6;
Chapter 7, Table 74.
75 Appendix D, 45, Table D51.

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