The U.S. Environmental Protection Agency issued a Notice of Findings in the Federal Register (62720 Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018)  on Thursday that the PM 2.5 Attainment Plan for the Central Valley is overdue and that if it not completed and incorporated into the State Implementation Plan within 18 months-sanctions will be imposed that could impact Federal Highway Funds, Offsets and eventually could require a Federal Implementation Program (“FIP”).

This Notice was issued despite the fact that the San Joaquin Valley Air Pollution Control District working alongside the California Air Resources Control Board has approved its PM 2.5 Plan, and it is pending before CARB for approval.

CARB is scheduled to vote on the plan in January. Until then, the EPA said, “the state shall be treated as not having made the submission… “We note, however, that CARB’s submission represents a significant step in the state’s and district’s multiyear effort to address the act’s attainment planning requirements,” the EPA said.

The section in the Federal Register regarding sanctions and a portion of the relevant Clean Air Act Section is set out below:

II. Consequences of Findings of Failure
To Submit Complete SIPs

Under section 110(k)(1)(C) of the Act, here the EPA determines that a SIP submission (or part thereof) does not meet the EPA’s minimum completeness criteria established in 40 CFR part 51, appendix V, the state shall be treated as not
having made the submission (or part thereof). Sections 179(a) and 110(c) of
the CAA establish specific consequences for failure to submit complete SIP submissions or SIP
elements required under part D of title I of the Act, including the eventual imposition of
mandatory sanctions in the affected area.

In accordance with the EPA’s sanctions sequencing rule in 40 CFR 52.31, the highway funding sanction identified in CAA section 179(b)(1) would also apply in the San Joaquin Valley. Under 40 CFR 52.31(d)(5), neither sanction would apply if the EPA determines within 18 months after the effective date of these findings that the State has submitted a complete SIP submission addressing the deficiency that is the basis for these findings.
Additionally, a finding of failure to submit a complete SIP submission triggers an obligation under CAA section 110(c) for the EPA to promulgate a FIP no later than 2 years after the finding, unless the state has submitted, and the EPA has approved, the required SIP submittal. Thus, the EPA would be required to promulgate a PM2.5 FIP for the San Joaquin Valley, in relevant part, if California does not submit and the EPA does not approve all of the necessary SIP submissions within 2 years after the effective date of these findings.

Clean Air Act 179(b)(2)

(b) Sanctions
The sanctions available to the Administrator as provided in subsection (a) of this section are as follows:

(1) Highway sanctions
(A) The Administrator may impose a prohibition, applicable to a nonattainment area, on the approval by the Secretary of Transportation of any projects or the awarding by the Secretary of any grants, under title 23 other than projects or grants for safety where the Secretary determines, based on accident or other appropriate data submitted by the State, that the principal purpose of the project is an improvement in safety to resolve a demonstrated safety problem and likely will result in a significant reduction in, or avoidance of, accidents. Such prohibition shall become effective upon the selection by the Administrator of this sanction.

(B) In addition to safety, projects or grants that may be approved by the Secretary, notwithstanding the prohibition in subparagraph (A), are the following—

(i) capital programs for public transit;

(ii) construction or restriction of certain roads or lanes solely for the use of passenger buses or high occupancy vehicles;

(iii) planning for requirements for employers to reduce employee work-trip-related vehicle emissions;

(iv) highway ramp metering, traffic signalization, and related programs that improve traffic flow and achieve a net emission reduction;

(v) fringe and transportation corridor parking facilities serving multiple occupancy vehicle programs or transit operations;

(vi) programs to limit or restrict vehicle use in downtown areas or other areas of emission concentration particularly during periods of peak use, through road use charges, tolls, parking surcharges, or other pricing mechanisms, vehicle restricted zones or periods, or vehicle registration programs;

(vii) programs for breakdown and accident scene management, nonrecurring congestion, and vehicle information systems, to reduce congestion and emissions; and

(viii) such other transportation-related programs as the Administrator, in consultation with the Secretary of Transportation, finds would improve air quality and would not encourage single occupancy vehicle capacity.

In considering such measures, the State should seek to ensure adequate access to downtown, other commercial, and residential areas, and avoid increasing or relocating emissions and congestion rather than reducing them.

(2) Offsets
In applying the emissions offset requirements of section 7503 of this title to new or modified sources or emissions units for which a permit is required under this part, the ratio of emission reductions to increased emissions shall be at least 2 to 1.

Craig A. Tristao is a Partner in the litigation and transactions departments of the firm’s Fresno office. He provides representation to clients in litigation matters involving agricultural law, environmental law, construction law, land use and natural resource law, water law, probate and estates, and eminent domain matters that involve the California High Speed Rail Authority. Craig also assists clients with regulatory compliance issues concerning the Clean Water Act (CWA), the Porter-Cologne Act, and the Clean Air Act (CAA). In addition to litigation, Craig also represents clients before the Regional Water Quality Control Boards and the State Water Resources Control Board, air districts, and the Contractors State License Board (CSLB). He has also been named a Super Lawyers “Rising Star” for 2015-2018 (2.5% of lawyers practicing under 10 years). You can contact Craig at (559) 248-4820 or