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Federal Register / Vol. 86, No. 183 / Friday, September 24, 2021 / Proposed Rules
equivalent to approximately one year of reductions needed for RFP in the nonattainment area at issue, 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.224
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 nonattainment 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,225 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 failed to meet RFP requirements or to attain by the applicable attainment date.
Thus, within the geographic jurisdiction of the Ninth Circuit, already implemented measures cannot serve as contingency measures under CAA
section 172c9.226 To comply with section 172c9, a state must develop, adopt, and submit a contingency measure to be triggered upon a failure to meet an RFP milestone, failure to meet a quantitative milestone requirement, or failure to attain the NAAQS by the applicable attainment date.
2. Summary of the States Submission The SJV PM2.5 Plan addresses the contingency measure requirement for the 1997 24-hour PM2.5 NAAQS in section 5.6 and Appendix H
specifically, section H.3 Contingency Measures of the 2018 PM2.5 Plan. The Plan relies on revisions to the Districts wood-burning rule Rule 4901 and refers to a SIP revision submitted by CARB on October 23, 2017, titled State 224 81 FR 58010, 58066. See also General Preamble, 13512, 1354313544, and General Preamble Addendum, 4201442015.
225 Bahr v. EPA, 836 F.3d 1218, 12351237 9th Cir. 2016.
226 See also Sierra Club v. EPA, 985 F.3d 1055
D.C. Cir. 2021 and Assoc. of Irritated Residents v.
EPA, No. 1971223, slip op. 9th Cir. Aug 26, 2021.

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Implementation Plan Attainment Contingency Measures for the San Joaquin Valley 15 mg/m3 Annual PM2.5
NAAQS 2017 Contingency Measure SIP.227 On March 19, 2021, CARB
withdrew the 2017 Contingency Measure SIP submission.228 Therefore, we are not evaluating the 2017
Contingency Measure SIP as part of this action.
With respect to the District contingency measure, the 2018 PM2.5
Plan states that the District will amend Rule 4901 to include a requirement that would be triggered upon a determination by the EPA that the San Joaquin Valley failed to meet a regulatory requirement necessitating implementation of a contingency measure.229 The District adopted amendments to Rule 4901 on June 20, 2019, including a contingency measure in section 5.7.3 of the amended rule more details below. In the EPAs July 22, 2020 final action to approve Rule 4901, as amended June 20, 2019, we did not evaluate section 5.7.3 of the amended rule for compliance with CAA
requirements for contingency measures.230 On July 22, 2021, the EPA
proposed to find that the contingency provision of Rule 4901 section 5.7.3
does not satisfy the CAA requirements for contingency measures for the 1997
annual PM2.5 NAAQS and proposed to remove the provision from the SIP
because it is severable from the remainder of Rule 4901.231 In this action, we evaluate section 5.7.3 of Rule 4901 for compliance with the contingency measures requirements for purposes of the 1997 24-hour PM2.5
NAAQS.
Rule 4901 is designed to limit emissions generated by the use of wood burning fireplaces, wood burning heaters, and outdoor wood burning devices. The rule establishes requirements for the sale/transfer, operation, and installation of wood burning devices and for advertising the sale of seasoned wood consistent with a moisture content limit within the San Joaquin Valley. The rule includes a twotiered, episodic wood burning curtailment requirement that applies during four winter months, November 227 Letter dated October 23, 2017, from Richard W. Corey, Executive Officer, CARB, to Alexis Strauss, Acting Regional Administrator, EPA Region 9.
228 Letter dated March 19, 2021, from Richard W.
Corey, Executive Officer, CARB, to Deborah Jordan, Acting Regional Administrator, EPA Region 9, transmitting CARB Executive Order S21004.
229 2018 PM
2.5 Plan, Appendix H, H25.
230 85 FR 44206 final approval of Rule 4901; 85
FR 1131, 11321133 January 9, 2020 proposed approval of Rule 4901.
231 86 FR 38652.

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through February. During a level one episodic wood burning curtailment, section 5.7.1 prohibits any person from operating a wood burning fireplace or unregistered wood burning heater, but permits the use of a properly operated wood burning heater that meets certification requirements and has a current registration with the District.
Sections 5.9 through 5.11 impose specific registration requirements on any person operating a wood burning fireplace or wood burning heater and section 5.12 imposes specific certification requirements on wood burning heater professionals. During a level two episodic wood burning curtailment, operation of any wood burning device is prohibited by section 5.7.2.
Prior to the 20192020 wood burning season, the District imposed a level one curtailment when the PM2.5
concentration was forecasted to be between 20 mg/m3 and 65 mg/m3 and imposed a level two curtailment when the PM2.5 concentration was forecasted to be above 65 mg/m3 or the PM10
concentration was forecasted to be above 135 mg/m3. In 2019 the District adopted revisions to Rule 4901 to lower the wood burning curtailment thresholds in the hot spot counties of Madera, Fresno, and Kern. The District lowered the level one PM2.5 threshold for these three counties from 20 mg/m3
to 12 mg/m3, and the level two PM2.5
threshold from 65 mg/m3 to 35 mg/m3.
The District did not modify the curtailment thresholds for other counties in the San Joaquin Valley those levels remain at 20 mg/m3 for level one and 65 mg/m3 for level two.
The Districts 2019 revision to Rule 4901 also included the addition of a contingency measure in section 5.7.3 of the rule, requiring that 60 days following the effective date of an EPA
determination that the San Joaquin Valley has failed to attain the 1997, 2006, or 2012 PM2.5 NAAQS by the applicable attainment date, the PM2.5
curtailment levels of any county that has failed to attain the applicable standard will be lowered to the curtailment levels in place for hot spot counties. The District estimates that the potential emissions reduction of direct PM2.5 would be in the range of 0.014 tpd if the contingency measure is triggered in Kings County but not the other nonhot spot counties to 0.387 tpd if the contingency measure is triggered in all five of the non-hot spot counties, but there would be no emissions reduction if, at the time of the determination of failure to attain the 1997 24-hour PM2.5
NAAQS by the attainment date, violations of the 1997 24-hour PM2.5

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