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Federal Register / Vol. 86, No. 97 / Friday, May 21, 2021 / Rules and Regulations from implementation of contingency measures is to ensure that, in the event of a failure to meet an RFP milestone or a failure to attain the NAAQS by the applicable attainment date, the state will continue to make progress toward attainment though additional emissions reductions at a rate similar to that specified under the RFP requirements.
The intent is that the state will achieve the emissions reductions from the contingency measures while conducting additional control measure development and implementation, as necessary to correct the RFP shortfall to meet the next applicable milestone or as part of a new attainment demonstration plan.41
The facts and circumstances of a given nonattainment area may justify larger or smaller amounts of emissions reductions for contingency measure purposes.
In reviewing a SIP revision for compliance with CAA sections 172c9
and 182c9, the EPA evaluates whether the contingency measure or measures would provide emissions reductions that, when considered with surplus emissions reductions from other measures not otherwise required or relied upon in the plan, ensure sufficient continued progress in the event of a failure to achieve an RFP
milestone or to attain the ozone NAAQS
by the applicable attainment date. We continue to evaluate the sufficiency of continued progress that will result from contingency measures in light of our guidance, but in appropriate circumstances do not believe that the contingency measures themselves must provide for one years worth of RFP.
Such appropriate circumstances include situations in which sufficient progress would be maintained by the contingency measures and surplus emissions reductions from other sources, while the state proceeds to develop and implement additional control measures as necessary to correct the RFP shortfall or as part of a new attainment demonstration plan. In other words, if there are additional emissions reductions projected to occur after the RFP milestone years or the attainment year that a state has not relied upon for purposes of RFP or attainment or to meet other nonattainment plan requirements, and that result from measures the state has not adopted as contingency measures, then those reductions may support EPA approval of contingency measures identified by the state even if the contingency measures would result in less than one years worth of RFP in appropriate circumstances.
41 57

FR 13498, 13512 April 16, 1992.

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We disagree that this approach contradicts Congressional intent. The specific explicit factors Congress intended the Agency to use in evaluating the contingency measures at issue here are set forth in CAA sections 172c9 and 182c9 and include specificity implementation of specific measures, timing measures to be undertaken and to take effect, triggers if the area fails to attain the NAAQS by the applicable NAAQS or if the area fails to meet any applicable milestone, federal enforceability included in the SIP, and readiness measures must be designed to take effect without further action by the state or the EPA. However, neither CAA
section 172c9 nor 182c9 contains language implying that these are the only factors for the EPA to consider.
Neither section specifies the magnitude of emissions reductions that contingency measures must achieve as an explicit factor for the EPA to consider, although consideration of the magnitude is appropriate in determining whether the contingency measure or measures submitted by the state meet the requirements of CAA sections 172c9 and 182c9. Consideration of the magnitude of emissions reductions is appropriate because contingency measures serve a remedial function where an area fails to achieve an RFP
milestone or fails to attain the NAAQS
by the applicable attainment date, and RFP and attainment are achieved through emissions reductions.42
Just as the CAA does not include the magnitude of emissions reductions as a specific explicit consideration, the CAA
also does not prescribe how the EPA is to evaluate that question. As such, the EPA is not relying on a factor that Congress did not intend the EPA to consider when the Agency considers the emissions reductions from alreadyimplemented measures that are surplus to those needed for RFP or attainment within a given nonattainment area when evaluating whether the states contingency measure submittal meets CAA sections 172c9 and 182c9.
Comment 5: CBD states that the EPA
does not say whether the surplus emissions reductions considered in evaluating the adequacy of contingency measures will remain surplus if the 42 See, e.g., CAA sections 107d3Eiii, 1711, 182c1. Under CAA 182g3, in the event that a Serious or Severe ozone nonattainment area fails to meet an applicable milestone, the state may elect to implement contingency measures determined by the EPA as adequate to meet the next milestone, to have the area reclassified to the next higher classification, or to adopt an economic incentive program. If the state elects to implement contingency measures, the EPA may require further measures as necessary to meet the next milestone.

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contingency measures are triggered.
CBD asserts that because these surplus reductions are not contingency measures approved into the SIP which the commenter notes would contravene the Bahr decision, the EPA might consider them surplus even after the area had failed to make RFP, and use the surplus reductions as context to approve inadequate continency measures.
Response to Comment 5: As described in the proposed rule, the 2018
Western Nevada County Ozone Plan provides surplus emissions reductions from CARBs already-adopted mobile source control program in the two RFP
milestone years and in the year following the attainment year. CARBs estimates of surplus reductions in the RFP milestone years are 11 to 15 times greater than the amount required to show one years worth of RFP.43 In the year after the attainment year, CARB
estimates that NOX emissions in Western Nevada County will be approximately 0.23 tons per day tpd lower in 2021 than in the 2020
attainment year due to mobile source controls and vehicle turnover.44 On this basis, we found that the Districts contingency measures do not need to achieve one years worth of RFP alone, because these contingency measures and other surplus emission reductions will ensure sufficient continued progress in the event of a failure to achieve an RFP milestone or a failure to attain the NAAQS by the applicable attainment date. We therefore conditionally approved the Plan based on the Districts commitment to adopt and submit specific enforceable contingency measures as described in letters from the District and CARB.
In the event that contingency measures were triggered for failure to meet an RFP milestone, the District would be required to adopt new contingency measures to take effect in the event of any subsequent failure that would trigger a contingency measure.45
As described above and in the proposed rule, the EPA evaluates any contingency measures submission to ensure that the submitted measures will continue to 43 CARB estimates surplus reductions of 1.9 tpd of NOX in 2017 and 2.6 tpd of NOX in 2020, compared to the 0.17 tpd of NOX that represents one years worth of RFP. These estimates are derived from the surplus percentages listed in Table 4 of the proposed rule 34 percent in 2017 and 45.9
percent in 2020 multiplied by the 2011 baseline NOX emissions level of 5.69 tpd. See 86 FR 2318, 2331.
44 See 86 FR 2318, 2333.
45 See, e.g., General Preamble, 57 FR 13498, 13520 explaining that a state is required to adopt additional measures to replace previously used contingency measures, to assure the continuing availability of contingency measures.

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