69928 Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 

1The area referred to as ‘‘Los Angeles-South 

Coast Air Basin’’ (South Coast Air Basin or ‘‘South 

Coast’’) includes Orange County, the southwestern 

two-thirds of Los Angeles County, southwestern 

San Bernardino County, and western Riverside 

County. For a precise description of the boundaries 

of the Los Angeles-South Coast Air Basin, see 40 

CFR 81.305. 

2 ‘‘The Clean Air Fine Particle Implementation 

Rule for the 1997 PM2.5 NAAQS,’’ 72 FR 20586 

(April 25, 2007) and codified at 40 CFR part 51, 

subpart Z (PM2.5 implementation rule). 

3These SIP submittals are: 

1. SCAQMD, Final 2007 Air Quality Management 

Plan (AQMP), adopted on June 1, 2007 by the 

SCAQMD and September 27, 2007 by CARB, 

submitted on November 28, 2007. 

2. CARB, Proposed State Strategy for California’s 

2007 State Implementation Plan, as amended and 

adopted on September 27, 2007 by CARB, 

submitted on November 16, 2007. 

3. CARB, Status Report on the State Strategy for 

California’s 2007 State Implementation Plan (SIP) 

and Proposed Revisions to the SIP Reflecting 

Implementation of the 2007 State Strategy (pages 

11–27 only), adopted on April 24, 2009 by CARB, 

submitted on August 12, 2009. 

4. CARB, Progress Report on Implementation of 

PM2.5 State Implementation Plans (SIP) for the 

South Coast and San Joaquin Valley Air Basins and 

Proposed SIP Revisions (Appendices B, C and D 

only), adopted on April 28, 2011 by CARB, 

submitted on May 18, 2011. ‘‘2011 Progress 

Report.’’ 

5. SCAQMD, Revisions to the 2007 PM2.5 and 

Ozone State Implementation Plans for the South 

Coast Air Basin and Coachella Valley (SIP 

Revisions), adopted on March 4, 2011 by the 

SCAQMD Governing Board and approved by the 

CARB Board on April 28, 2011 and submitted on 

May 19, 2011. 

6. CARB, 8–Hour Ozone State Implementation 

Plan Revisions and Technical Revisions to the PM2.5

State Implementation Plan Transportation 

Conformity Budgets for the South Coast and San 

Joaquin Valley Air Basins, (South Coast PM2.5 SIP 

MVEBs only) adopted on July 21, 2011 by CARB 

and submitted on July 29, 2011. (2011 Ozone SIP 

Revision). Only the PM2.5 motor vehicle emissions 

budgets in this submittal are addressed in today’s 

action. 

4The 2011 Progress Report contained budgets 

that were not approvable because they included 

emissions reductions from a rule that was ineligible 

for SIP credit. These budgets also included data 

entry errors. See 76 FR 41338, 41360. In lieu of 

these budgets, we proposed to approve alternative 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2009–0366; FRL–9482–9] 

Approval of Air Quality Implementation 

Plans; California; South Coast; 

Attainment Plan for 1997 PM2.5

Standards 

AGENCY: U.S. Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving in part and 

disapproving in part state 

implementation plan (SIP) revisions 

submitted by California to provide for 

attainment of the 1997 fine particulate 

matter (PM2.5) national ambient air 

quality standards in the Los AngelesSouth Coast area (South Coast). These 

SIP revisions are the South Coast 2007 

Air Quality Management Plan (South 

Coast 2007 AQMP) (revised 2011) and 

South Coast-related provisions of the 

2007 State Strategy (revised 2009 and 

2011). EPA is approving the emissions 

inventory; reasonably available control 

measures/reasonably available control 

technology demonstration; the 

reasonable further progress and 

attainment demonstrations and 

associated air quality modeling; and the 

transportation conformity motor vehicle 

emissions budgets. EPA is also granting 

California’s request to extend the 

attainment deadline for the South Coast 

to April 5, 2015 and approving 

commitments to measures and 

reductions by the South Coast Air 

Quality Management District and the 

California Air Resources Board. Finally, 

we are disapproving the SIP’s 

contingency measures and issuing a 

protective finding under 40 CFR 

93.120(a)(3), and we are rejecting the 

assignment of 10 tons per day (tpd) of 

nitrogen oxide (NOX) reductions to the 

federal government. 

DATES: Effective Date: This rule is 

effective on January 9, 2012. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2009–0366 for 

this action. The index to the docket is 

available electronically at http:// 

www.regulations.gov and in hard copy 

at EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

Copies of the SIP materials are also 

available for inspection in the following 

locations: 

• California Air Resources Board, 

1001 I Street, Sacramento, CA 95812 

• South Coast Air Quality. 

Management District, 21865 E. Copley 

Drive, Diamond Bar, CA 91765. 

The SIP materials are also 

electronically available at http:// 

www.aqmd.gov/aqmp/07aqmp/ 

index.html and http://www.arb.ca.gov/ 

planning/sip/2007sip/2007sip.htm. 

FOR FURTHER INFORMATION CONTACT: 

Wienke Tax, Air Planning Office (AIR– 

2), U.S. Environmental Protection 

Agency, Region IX, (415) 947–4192, 

tax.wienke@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Summary of EPA’s Proposed and Final 

Actions on the 2007 State 

Implementation Plan for Attainment of 

the 1997 PM2.5 Standards in the South 

Coast Nonattainment Area 

II. Summary of Public Comments Received 

on the Proposals and EPA Responses 

III. Approval Status of the Control Strategy 

Measures and Enforceable Emissions 

Reduction Commitments 

IV. Approval of Motor Vehicle Emissions 

Budgets 

V. Final Actions and Clean Air Act 

Consequences 

VI. Statutory and Executive Order Reviews 

I. Summary of EPA’s Proposed and 

Final Actions on the 2007 State 

Implementation Plan for Attainment of 

the 1997 PM2.5 Standards in the South 

Coast Nonattainment Area 

On July 14, 2011 (76 FR 41562), EPA 

proposed to approve in part and 

disapprove in part California’s state 

implementation plan (SIP) for attaining 

the 1997 fine particulate (PM2.5) 

national ambient air quality standards 

(NAAQS) in the Los Angeles-South 

Coast Air Basin Area (South Coast).1

California developed this SIP to provide 

for expeditious attainment of the PM2.5

standards in the South Coast and to 

meet other applicable PM2.5 planning 

requirements in Clean Air Act (CAA) 

section 172(c) and EPA’s PM2.5

implementation rule.2

In all, California has made six 

submittals to address these PM2.5 SIP 

planning requirements for the South 

Coast. The two principal ones are the 

South Coast Air Quality Management 

District (SCAQMD or District) Final 

2007 South Coast Air Quality 

Management Plan (AQMP) (amended 

2011) and the California Air Resources 

Board (CARB) Final 2007 State and 

Federal Strategy (2007 State Strategy) 

(amended 2009 and 2011).3 Together, 

the South Coast 2007 AQMP and the 

2007 State Strategy present a 

comprehensive and innovative strategy 

for attaining the 1997 PM2.5 standards in 

the South Coast. 

In our July 2011 notice, we proposed 

multiple approval actions on the South 

Coast 2007 AQMP. First, we proposed to 

approve the SIP’s base year emissions 

inventory, the reasonably available 

control measure (RACM)/reasonably 

available control technology (RACT) 

demonstration, the reasonable further 

progress (RFP) and attainment 

demonstrations and associated air 

quality modeling, and related motor 

vehicle emissions budgets (budgets).4


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budgets that CARB had developed and posted for 

public comment as part of its 2011 Ozone SIP 

Revision and stated that the approval was 

contingent on our receipt of the SIP revision 

containing the revised budgets. Id. CARB submitted 

that SIP revision on July 29, 2011. 

5 ‘‘Final Technical Support Document and 

Response to Comments, Final Rulemaking Action 

on the South Coast 2007 AQMP for PM2.5 and the 

South Coast Portions of the Revised 2007 State 

Strategy,’’ Air Division, U.S. EPA Region 9, 

September 30, 2011. The TSD can be found in the 

docket for this rulemaking. 

6The majority of CARB’s and the District’s 

comments addressed the November 2010 proposed 

disapprovals and EPA’s grounds for them. These 

comments were, for the most part, addressed by our 

July 2011 amended proposal. 

7 ‘‘Technical Support Document for the Revised 

Proposed Rulemaking Action on the South Coast 

2007 AQMP for PM2.5 and the South Coast Portions 

of the 2007 State Strategy,’’ Air Division, U.S. EPA, 

Region 9, June 29, 2011, ‘‘July 2011 TSD.’’ 

Second, we proposed to approve 

enforceable commitments by both the 

District and CARB to certain measures 

and specific amounts of emissions 

reductions. Third, we also proposed to 

concur with the State’s determination 

that NOX, sulfur oxides (SOX), and 

volatile organic compounds (VOC) are, 

and ammonia is not, attainment plan 

precursors for attainment of the 1997 

PM2.5 NAAQS in the South Coast 

nonattainment area. Fourth, we 

proposed to grant California’s request to 

extend the attainment date for the South 

Coast PM2.5 nonattainment area to April 

5, 2015. See 76 FR 41562. 

We also proposed to disapprove the 

contingency measure provisions of the 

South Coast 2007 AQMP as failing to 

meet the requirements of the CAA as 

interpreted in EPA guidance. In 

addition, we noted that we were 

rejecting the assignment of 10 tpd of 

NOX emissions to the federal 

government. 

A more detailed discussion of each of 

California’s SIP submittals for the South 

Coast area, the CAA and EPA 

requirements applicable to them, and 

our evaluation and proposed actions, 

can be found in the July 14, 2011 

Federal Register notice and the 

technical support document (TSD) for 

this final action.5

Our July 2011 proposal was the 

second time that EPA proposed action 

on California’s South Coast 2007 AQMP 

to address attainment of the 1997 PM2.5

NAAQS. On November 22, 2010, (75 FR 

71294) rule, EPA proposed to 

disapprove the majority of the 

provisions in this SIP. During the 

comment period for the November 2010 

proposal, we received several comment 

letters from the public as well as 

comment letters from CARB and the 

District. Subsequent to the close of that 

comment period, CARB adopted and 

submitted revisions to the South Coast 

2007 AQMP and 2007 State Strategy. 

After considering information contained 

in the comment letters and the 

supplemental SIP submittals, we issued 

the July 2011 proposed rule which 

substantially amended our November 

2010 proposal. As part of our final 

action, EPA has considered and 

provided responses to all significant 

comments submitted in response to both 

the November 2010 and the July 2011 

proposals. 

EPA is today approving most 

elements of the South Coast 2007 AQMP 

based on our conclusion that they 

comply with applicable CAA 

requirements and provide for 

expeditious attainment of the 1997 

PM2.5 standards in the South Coast 

nonattainment area. We are also today 

disapproving the SIP’s contingency 

measure provisions because they do not 

provide sufficient emissions reductions. 

We are continuing to work with the 

State and District to identify additional 

control measures and programs that 

meet the CAA’s requirements for 

contingency measures consistent with 

EPA regulations and policy. 

II. Summary of Public Comments 

Received on the Proposals and EPA 

Responses 

As part of our final action, EPA has 

considered and provided responses to 

all significant comments submitted in 

response to both the November 2010 

and the July 2011 proposals. 

We received eleven comment letters 

in response to our November 22, 2010 

proposal and July 14, 2011 

supplemental proposal. In the following 

sections, we summarize our responses 

to the most significant comments that 

we received on the proposals. Our full 

responses to all the comments received 

can be found in the ‘‘Response to 

Comments’’ section of the TSD 

accompanying today’s rulemaking. 

We received comments on both 

proposals from the Natural Resources 

Defense Council (NRDC) representing 

various organizations. 

We received letters on both proposals 

from Communities for a Better 

Environment (CBE) representing various 

organizations. 

We received comment letters on both 

proposals from the South Coast Air 

Quality Management District. 

We received comments from CARB on 

our November proposal.6

We received comments from Kirk 

Marckwald, California Environmental 

Associates, on behalf of the Association 

of American Railroads, on our 

November proposal. 

Michael W. Lewis, Construction 

Industry Air Quality Coalition (CIAQC), 

on behalf of a number of its members, 

submitted comments on our July 

amended proposal. 

Lawrence J. Joseph, on behalf of the 

American Road and Transportation 

Builders Association (ARTBA), 

submitted comments on our July 

amended proposal. 

Robin Hall, private citizen, submitted 

comments on our November proposal. 

A. Comments on Proposed Approval of 

the Emissions Inventory 

Comment: NRDC comments that EPA 

proposes to approve the inventories in 

the South Coast 2007 AQMP because 

they were current and accurate ‘‘at the 

time the Plan was developed and 

submitted,’’ citing 76 FR 41567. NRDC 

argues that such language is not in the 

CAA and the addition is not a 

reasonable extension of Congress’s 

intent. NRDC argues that Congress did 

not mean for EPA to rely on inventory 

data that EPA knew to be incorrect on 

the basis that the data was thought to be 

accurate at the time it was submitted 

because Congress’ goal is to ensure the 

adoption and approval of SIPs that will 

achieve clean air. NRDC notes that 

section 172(c)(3) expressly envisions 

that EPA may require revisions to the 

inventory ‘‘to assure that the 

requirements of this part are met.’’ 

EPA’s interpretation would suggest that 

the only time such revisions are needed 

is when it is found that the inventory is 

not current or accurate as of the date it 

is submitted and this would undermine 

any assurance that ‘‘the requirements of 

[Part D] are met.’’ 

Response: EPA does not dispute the 

importance of emissions inventories. 

We evaluated the emissions inventories 

in the 2007 AQMP to determine 

whether they satisfy the requirements of 

CAA section 172(c)(3) and adequately 

support the Plan’s RACM, RFP and 

attainment demonstrations. Based on 

this evaluation, we have concluded that 

the South Coast 2007 AQMP’s base year 

emissions inventory was based on the 

most current and accurate information 

available to the State and District at the 

time that it was developed and 

submitted and comprehensively 

addresses all source categories in the 

South Coast area, consistent with 

applicable CAA requirements and EPA 

guidance. See 76 FR 41562 at 41566– 

41567 and July 2011 TSD 7 at section 

II.A.; see also ‘‘General Preamble for 

Implementation of Title I of the Clean 

Air Act Amendments of 1990,’’ 57 FR 

13498 at 13502 (April 16, 1992) 

(‘‘General Preamble’’). 


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8CARB revised population, regional allocation 

factors, lifetime odometer assumptions, growth 

rates, and forecasted vehicle age distributions for 

heavy duty truck and buses, and updated 

equipment population, activity, load factors, and 

future equipment sales for construction equipment, 

based on updated information. See http://www.arb.

ca.govregact/2010/truckbus10/truckbus10.htm and 

http://www.arb.ca.govregact/2010/offroadlsi10/

offroadlsi10.htm. 

We do not agree with NRDC’s 

suggestion that this inventory 

undermines the attainment 

demonstration in the Plan. To the 

contrary, as discussed in the proposed 

rule (76 FR 41562, 41567) and in section 

II.B. below, we have concluded that the 

State’s changes to its methodologies for 

estimating future emissions do not 

significantly affect the 2002 base year 

inventories and, consequently, do not 

undermine the modeling or other 

analyses that rely on those inventories. 

Although significant changes to a base 

year inventory that undermine the 

assumptions in an attainment 

demonstration may call for a more 

comprehensive reevaluation of the 

modeling and other planning analyses 

supporting that demonstration, we 

conclude based on our technical 

assessment that such a comprehensive 

reevaluation is not necessary in this 

case. We note that states are required to 

report comprehensive emissions 

inventories to EPA every three years 

under the Air Emissions Reporting 

Requirements in 40 CFR part 51, subpart 

A. See 40 CFR 51.30(b). 

CAA section 172(b) provides that ‘‘the 

State containing [a nonattainment] area 

shall submit a plan or plan revision 

(including the plan items) meeting the 

applicable requirements of [section 

172(c) and section 110]’’ on the 

schedule established by EPA, and 

section 172(c) contains, inter alia, the 

requirement that nonattainment plans 

‘‘shall include a comprehensive, 

accurate, current inventory of actual 

emissions from all sources of the 

relevant pollutant or pollutants in such 

area.’’ We believe it is reasonable to read 

these provisions together as requiring 

that the State submit an inventory that 

is ‘‘comprehensive, accurate, [and] 

current’’ at the time the State submitted 

it to EPA, rather than requiring that the 

State continually revise its plan as new 

emissions data becomes available. See 

Brief of Respondents, EPA, in Sierra 

Club, et al. v. U.S. EPA, et al., Case Nos. 

10–71457 and 10–71458 (consolidated), 

May 5, 2011. States could never 

effectively plan for air quality 

improvement if they had to constantly 

revise their inventories as new data 

became available. Air quality planning 

is an iterative process and states and 

EPA must rely on the best available data 

at the time the plans are created. 

As we stated in our proposal, since 

late 2007, California has experienced an 

economic recession that has greatly 

reduced current levels of economic 

activity in the State’s construction and 

goods movement sectors. The recession 

has resulted in lowered projected future 

levels of activity in this sector. 2011 

Progress Report, Appendix E. As a 

result, projected emission levels from 

these categories are now substantially 

lower than the levels projected for 2008 

and later in the Plan as submitted in 

2007. At this time, California is 

addressing these recession impacts on 

future economic activity through 

adjustments to the baseline inventories 

for specific source categories. See 2011 

Progress Report, Appendix E, page 2. 

There are no recession-related 

adjustments to the 2002 base year 

inventory in the South Coast 2007 

AQMP. CARB also made technical 

changes to the inventories for diesel 

trucks, buses, and certain categories of 

off-road mobile source engines as part of 

its December 2010 rulemaking 

amending the In-Use On-Road Truck 

and Bus Rule and the In-Use Off-Road 

Engine rule.8 Id. The State estimates that 

these changes collectively reduce the 

2002 base year total inventory in the 

South Coast by 4 percent for NOX and 

5 percent for PM2.5. See 76 FR 41562, at 

41567. 

Comment: NRDC questions EPA’s 

calculations that estimated the 

emissions changes to the 2002 base year 

inventory (see 76 FR 41562, at 41567), 

noting that EPA’s calculations come 

from a May 18, 2011 letter from CARB 

providing supplemental information. 

NRDC then asserts that these numbers 

do not match with statements in staff 

reports on the diesel rules; however, 

NRDC does not provide the statements 

or data from the staff reports. 

Response: As NRDC noted, EPA 

calculated the change in the 2002 base 

year emission inventory based on 

information provided in the 2011 

Progress Report Supplement, 

transmitted by CARB on May 18, 2011. 

We took the difference between the 

‘‘SIP’’ estimate and the ‘‘Current 

Estimate’’ columns in Attachment 1, 

Table SC–2002, to the May 18 letter and 

divided by the ‘‘SIP’’ estimate to 

calculate the percent change in the 

inventories. We explain these 

calculations in our TSD in Section II.A. 

B. Comments on Credit for Baseline 

Measures 

Comment: NRDC asserts that EPA’s 

proposed rule and TSD fail to clearly 

and accurately account for the measures 

that contribute to specific emission 

reductions, such as the Federal, state, 

and district rules adopted before 

October 2006 (‘‘baseline measures’’) that 

are incorporated into the baseline 

inventory. NRDC argues that California 

and SCAQMD must have the data 

related to these emission reduction 

estimates, which are critical to the 

integrity of the Plan, and that an EPA 

approval of the emissions inventories in 

the absence of this data would be 

arbitrary and capricious. NRDC also 

argues that this ‘‘gap in data’’ is made 

more problematic by the fact that EPA 

does not require California’s mobile 

source control measures that have 

received a waiver of preemption under 

CAA section 209 (‘‘waiver measures’’) to 

be approved into the SIP. 

Response: As to the commenter’s 

assertion about the ‘‘gap in data’’ 

regarding baseline measures and 

projected baseline inventories, we 

disagree that there is any inadequacy in 

the emissions projections that 

undermines the RACM, RFP or 

attainment demonstrations in the South 

Coast 2007 AQMP and 2007 State 

Strategy. We explained in our amended 

proposal (76 FR 41562 at 41566–41567) 

our reasons for concluding both that the 

2002 base year inventory in the South 

Coast 2007 AQMP is comprehensive, 

accurate, and current as required by 

CAA section 172(c)(3) and that the 

projected baseline inventories for 2009, 

2012 and 2014 provide adequate bases 

for the RACM, RFP and attainment 

demonstrations in the Plan. 

With respect to mobile source 

emissions, we believe that credit for 

emissions reductions from 

implementation of California mobile 

source rules that are subject to CAA 

section 209 waivers (‘‘waiver 

measures’’) is appropriate 

notwithstanding the fact that such rules 

are not approved as part of the 

California SIP. In the TSD supporting 

our July 14, 2011 proposal (76 FR 

41562), we explained why we believe 

such credit is appropriate. See TSD at 

section II.F.4.a.i (pp. 97–100). 

Historically, EPA has granted credit for 

the waiver measures because of special 

Congressional recognition, in 

establishing the waiver process in the 

first place, of the pioneering California 

motor vehicle control program and 

because amendments to the CAA (in 

1977) expanded the flexibility granted 

to California in order ‘‘to afford 

California the broadest possible 

discretion in selecting the best means to 

protect the health of its citizens and the 

public welfare’’ (H.R. Rep. No. 294, 95th 

Congr., 1st Sess. 301–2 (1977)). In 

allowing California to take credit for the 

waiver measures notwithstanding the 


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9 Information about CARB’s emissions inventories 

for on-road and non-road mobile sources, and the 

EMFAC and OFFROAD models used to project 

changes in future inventories, is available at 

http://www.arb.ca.gov/msei/msei.htm. 

10 Information on base year emissions from 

stationary point sources is obtained primarily from 

the districts, while CARB and the districts share 

responsibility for developing and updating 

information on emissions from various area source 

categories. See 2007 State Strategy, Appendix F at 

21; see also South Coast 2007 AQMP, Appendix III 

at pp. 1–9 through 1–15 (describing the SCAQMD’s 

and CARB’s methodologies for developing 2002 

base year emissions estimates for stationary point 

and area sources). 

fact that the underlying rules are not 

part of the California SIP, EPA treated 

the waiver measures similarly to the 

Federal motor vehicle control 

requirements, which EPA has always 

allowed States to credit in their SIPs 

without submitting the program as a SIP 

revision. 

EPA’s historical practice has been to 

give SIP credit for motor-vehicle-related 

waiver measures by allowing California 

to include motor vehicle emissions 

estimates made by using California’s 

EMFAC (and its predecessors) motor 

vehicle emissions factor model in SIP 

inventories. EPA verifies the emissions 

reductions from motor-vehicle-related 

waiver measures through review and 

approval of EMFAC, which is updated 

from time to time by California to reflect 

updated methods and data, as well as 

newly-established emissions standards. 

(Emissions reductions from EPA’s motor 

vehicle standards are reflected in an 

analogous model known as MOVES.) 

The South Coast 2007 AQMP was 

developed using a version of the 

EMFAC model referred to as 

EMFAC2007, which EPA has approved 

for use in SIP development in 

California. See 73 FR 3464 (January 18, 

2008). Thus, the emissions reductions 

that are from the California on-road 

‘‘waiver measures’’ and that are 

estimated through use of EMFAC are as 

verifiable as are the emissions 

reductions relied upon by states other 

than California in developing their SIPs 

based on estimates of motor vehicle 

emissions made through the use of the 

MOVES model and prior to the release 

of MOVES made through the use of the 

MOBILE model. All other states use the 

MOVES model in their baseline 

inventories without submitting the 

federal motor vehicle regulations for 

incorporation into their SIPs. 

Similarly, emissions reductions that 

are from California’s waiver measures 

for non-road engines and vehicles (e.g., 

agricultural, construction, lawn and 

garden and off-road recreation 

equipment) are estimated through use of 

CARB’s OFFROAD emissions factor 

model.9 (Emissions reductions from 

EPA’s non-road engine and vehicle 

standards are reflected in an analogous 

model known as NONROAD). Since 

1990, EPA has treated California nonroad standards for which EPA has 

issued waivers in the same manner as 

California motor vehicle standards, i.e., 

allowing credit for standards subject to 

the waiver process without requiring 

submittal of the standards as part of the 

SIP. In so doing, EPA has treated the 

California non-road standards similarly 

to the Federal non-road standards, 

which are relied upon, but not included 

in, various SIPs. 

CARB’s EMFAC and OFFROAD 

models employ complex routines that 

predict vehicle fleet turnover by vehicle 

model years and include control 

algorithms that account for all adopted 

regulatory actions which, when 

combined with the fleet turnover 

algorithms, provide future baseline 

projections. See 2007 State Strategy, 

Appendix F at 7–8. For stationary 

sources, the California Emission 

Forecasting System (CEFS) projects 

future emissions from stationary and 

area sources (in addition to aircraft and 

ships) using a forecasting algorithm that 

applies growth factors and control 

profiles to the base year inventory.10See 

id. at 7. The CEFS model integrates the 

projected inventories for both stationary 

and mobile sources into a single 

database to provide a comprehensive 

statewide forecast inventory, from 

which nonattainment area inventories 

are extracted for use in establishing 

future baseline planning inventories. 

See Id. The South Coast 2007 AQMP 

describes how the District developed 

the future baseline inventories in the 

plan, based in part on the emissions 

data and baseline projections provided 

by CARB and other California agencies. 

See generally South Coast 2007 AQMP, 

Appendix III. The District’s projections 

took into account the controls 

implemented under SCAQMD rules 

adopted as of June 2006, most CARB 

regulations adopted by June 2005, and 

a specific set of growth rates from the 

Southern California Association of 

Governments (SCAG) for population, 

industry, and motor vehicle activity, 

among other factors. See id. at 2–3. In 

2011, CARB updated the baseline 

emissions projections for several source 

categories to account for, among other 

things, more recent economic forecasts 

and improved methodologies for 

estimating emissions from the heavyduty truck and construction source 

categories. See 2011 Progress Report at 

Appendix E. These methodologies for 

projecting future emissions based on 

growth factors and existing Federal, 

State, and local controls were consistent 

with EPA guidance on developing 

projected baseline inventories. See TSD 

at section II.A; see also ‘‘Procedures for 

Preparing Emissions Projections,’’ EPA 

Office of Air Quality Planning and 

Standards, EPA–450/4–91–019, July 

1991; ‘‘Emission Projections,’’ STAPPA/ 

ALAPCO/EPA Emission Inventory 

Improvement Project, Volume X, 

December 1999 (available at http:// 

www.epa.gov/ttnchie1/eiip/techreport/ 

volume10/x01.pdf). 

In sum, the 2002 base year and future 

projected baseline inventories in the 

South Coast 2007 AQMP were prepared 

using a sophisticated set of CARB and 

SCAQMD methodologies to estimate 

and project emissions from stationary 

sources, in addition to the most recent 

emissions factors and models and 

updated activity levels for emissions 

associated with mobile sources, 

including: (1) The latest EPA-approved 

California motor vehicle emissions 

factor model (EMFAC2007) and the 

most recent motor vehicle activity data 

from SCAG; (2) improved 

methodologies for estimating emissions 

from specific source categories; and (3) 

CARB’s non-road mobile source model 

(the OFFROAD model). See TSD at 

Section II.A (referencing, inter alia, 

South Coast 2007 AQMP at Appendix III 

and 2007 State Strategy at Appendix F) 

and 2011 Progress Report. EPA has 

approved numerous California SIPs that 

rely on base year and projected baseline 

inventories including emissions 

estimates derived from the EMFAC, 

OFFROAD, and CEFS models. See, e.g., 

65 FR 6091 (February 8, 2000) 

(proposed rule to approve 1-hour ozone 

plan for South Coast) and 65 FR 18903 

(April 10, 2000) (final rule); 70 FR 

43663 (July 28, 2005) (proposed rule to 

approve PM–10 plan for South Coast 

and Coachella Valley) and 70 FR 69081 

(November 14, 2005) (final rule); 74 FR 

66916 (December 17, 2009) (direct final 

rule to approve ozone plan for Monterey 

Bay). The commenter has provided no 

information to support a claim that 

these methodologies for developing base 

year inventories and projecting future 

emissions in the South Coast are 

inadequate to support the RACM, RFP, 

and attainment demonstrations in the 

South Coast 2007 AQMP. 

For all of these reasons and as 

discussed in our amended proposal (76 

FR 41562 at 41566–41567), we have 

concluded that the 2002 base year 

inventory in the South Coast 2007 

AQMP is a ‘‘comprehensive, accurate, 

current inventory of actual emissions 

from all sources of the relevant 

pollutant or pollutants’’ in the South 

Coast area, consistent with the 


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11Fiore, et al, Harvard University, Linking ozone 

pollution and climate change: The case for 

controlling methane, 2002. http:// 

www.gfdl.noaa.gov/bibliography/related_files/ 

amf0201.pdf. 

requirements for emissions inventories 

in CAA section 172(c)(3), 40 CFR 

51.1008, and 40 CFR part 51, subpart A. 

In addition, we conclude that the 

projected baseline inventories for 2009, 

2012 and 2014 were prepared consistent 

with EPA’s guidance on development of 

emissions inventories and attainment 

demonstrations and, therefore, provide 

an adequate basis for the RACM, RFP 

and attainment demonstrations in the 

Plan. See TSD at section II.A. 

C. Comments on PM2.5 Plan Precursors 

Comment: NRDC commented that our 

proposed rule does not adequately 

explain why ammonia (NH3) is not a 

precursor for PM2.5 formation. 

Response: Under the PM2.5

implementation rule, ammonia is not a 

PM2.5 plan precursor unless either EPA 

or the State provides an appropriate 

technical demonstration showing that 

ammonia emissions from sources in the 

State significantly contribute to PM2.5

concentrations in the nonattainment 

area. See 40 CFR 51.1002(c)(4). Absent 

such a technical demonstration, the 

State is not required to address 

ammonia in its PM2.5 attainment plan or 

to evaluate sources of ammonia 

emissions in the State for control 

measures. 

Comment: Communities for a Better 

Environment (CBE) asserts that methane 

is a reactive VOC, a smog precursor, and 

a potent greenhouse gas (GHG), and that 

EPA should require the SCAQMD to 

revise its definition of VOC in Rule 102 

to remove the exemption for methane. 

In support of these assertions, CBE 

states that: (1) A 2002 Harvard 

University modeling study 11 concludes 

that methane reductions could be highly 

effective in reducing ambient ozone 

levels; (2) SCAQMD’s draft 2007 AQMP 

identified significantly larger amounts 

of Total Organic Gases (TOG) including 

methane from refineries than VOC 

emissions (10.1 tons per day (tpd) of 

TOG versus 6 tpd of VOC); (3) the 

District should require control of all 

organic gases from oil refineries; and (4) 

the District should also review its list of 

other TOG compounds that are exempt 

from regulation. CBE contends that 

regulation of methane is a reasonably 

available control measure that should be 

required because additional VOC 

reductions are needed to satisfy RACT/ 

RACM requirements. 

Response: The SCAQMD’s definition 

of VOC in Rule 102 is consistent with 

EPA’s definition of VOC in 40 CFR 

51.100(s), which excludes methane 

because it has been determined to have 

negligible photochemical reactivity. 40 

CFR 51.100(s)(1); see also 62 FR 44900 

(August 25, 1997) (final rule revising 

definition of VOC to exclude methane 

and other compounds). EPA approved 

Rule 102 into the SCAQMD portion of 

the California SIP on January 8, 2007. 

See 72 FR 656. Accordingly, pursuant to 

its SIP-approved definition of VOC, 

SCAQMD is not required to regulate 

methane as a VOC for purposes of 

preparing SIPs to attain the NAAQS. To 

the extent that CBE intended to 

challenge the exclusion of methane from 

EPA’s regulatory definition of VOC at 40 

CFR 51.100(s), such a challenge is 

outside the scope of today’s action on 

the PM2.5 attainment plan for the South 

Coast area. Likewise, CBE’s assertions 

about the effect of methane controls on 

ambient ozone levels are also outside 

the scope of today’s action, which 

addresses the State’s plan for attaining 

the 1997 PM2.5 standards. 

D. Comments on Reasonably Available 

Control Measures (RACM) 

Demonstration 

Comment: CBE states that EPA should 

require the SCAQMD to complete a new 

RACM/RACT demonstration including 

assessment of all available control 

measures for direct emissions of PM2.5

as well as measures for control of 

secondary PM2.5 resulting from NOX, 

SOX, and VOC emissions. CBE also 

provides a list of potential pollution 

control and energy efficiency measures 

that it asserts should be included ‘‘as 

part of a new, broader, and complete 

RACM/RACT assessment to 

demonstrate attainment expeditiously.’’ 

Finally, CBE asserts that because the 

South Coast 2007 AQMP is several years 

old, it is important to reassess and 

update the control measures in the plan, 

especially given the SCAQMD’s failure 

to demonstrate attainment. CBE is also 

opposed to what it characterizes as EPA 

proposed approval of a commitment by 

CARB to propose measures later, as a 

lump sum. 

Response: Section 172(c)(1) of the 

CAA requires that each attainment plan 

‘‘provide for the implementation of all 

reasonably available control measures as 

expeditiously as practicable (including 

such reductions in emissions from 

existing sources in the area as may be 

obtained through the adoption, at a 

minimum, of reasonably available 

control technology), and shall provide 

for attainment of the national primary 

ambient air quality standards.’’ For over 

30 years, EPA has consistently 

interpreted this provision to require that 

States adopt only those ‘‘reasonably 

available’’ measures necessary for 

expeditious attainment and to meet RFP 

requirements. 40 CFR 51.1010; see also 

44 FR 20372 (April 4, 1979) (Part D of 

title I of the CAA ‘‘does not require that 

all sources apply RACM if less than all 

RACM will suffice for [RFP] and 

attainment’’); 57 FR 13498 at 13560 

(April 16, 1992) (‘‘where measures that 

might in fact be available for 

implementation in the nonattainment 

area could not be implemented on a 

schedule that would advance the date 

for attainment in the area, EPA would 

not consider it reasonable to require 

implementation of such measures’’); 

‘‘Guidance on the Reasonably Available 

Control Measures (RACM) Requirement 

and Attainment Demonstration 

Submissions for Ozone Nonattainment 

Areas,’’ November 30, 1999 (1999 Seitz 

Memo) (a State may justify rejection of 

a measure as not ‘‘reasonably available’’ 

for that area based on technological or 

economic grounds); and 70 FR 71612 

(November 29, 2005) at 71661 (noting 

that States ‘‘need adopt measures only 

if they are both economically and 

technologically feasible and will 

advance the attainment date or are 

necessary for RFP’’). EPA’s 

interpretation of section 172(c)(1) has 

been upheld by several courts. See, e.g., 

Sierra Club v. EPA, et al., 294 F. 3d 155 

(DC Cir. 2002); Sierra Club v. EPA, 314 

F.3d 735 (5th Cir. 2002). 

Under the PM2.5 Implementation Rule 

at 40 CFR 51.1010, a RACM 

demonstration must include ‘‘the list of 

the potential measures considered by 

the State, and information and analysis 

sufficient to support the State’s 

judgment that it has adopted all RACM, 

including RACT.’’ 40 CFR 51.1010(a). In 

addition, ‘‘[p]otential measures that are 

reasonably available considering 

technical and economic feasibility must 

be adopted as RACM if, considered 

collectively, they would advance the 

attainment date by one year or more.’’ 

As explained in the preamble to the 

PM2.5 Implementation Rule, Congress 

provided EPA and States broad 

discretion to determine what measures 

to include in an attainment plan, and 

the language in section 172(c)(1) 

requiring only ‘‘reasonably available’’ 

measures and implementation of these 

measures ‘‘as expeditiously as 

practicable’’ indicates that Congress 

intended for the RACT/RACM 

requirement to be driven by an overall 

requirement that the measure be 

‘‘reasonable.’’ 72 FR 20586 at 20610 

(April 25, 2007). Thus, the rule of 

‘‘reason’’ drives the decisions on what 

controls to apply, what should be 

controlled, by when emissions must be 


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12Our proposed limited disapproval was based 

on specific deficiencies in the compliance 

provisions in both rules. These enforceability 

deficiencies do not alter our proposal to conclude 

that the NOX emission limits in the rule, which are 

more stringent than the SIP-approved version of the 

rule, represent RACT-level controls. See TSDs at 

page 3. Note, however, that these measures are not 

eligible for SIP credit until EPA approves rule 

revisions correcting the enforceability deficiencies 

identified in our proposal. We expect the State to 

submit, as expeditiously as practicable, rule 

revisions to address these deficiencies consistent 

with its enforceable emission reduction 

commitments. See 76 FR 41562 at 41569, Table 3. 

reduced, and finally, the rigor required 

in a State’s RACT/RACM analysis. See 

id. States may, as part of a RACM 

analysis, consider the costs of potential 

control measures and whether the 

measures can be readily and effectively 

implemented without undue 

administrative burden. See id. (citing 55 

FR 38327 and 66 FR 26969). 

As discussed in our July 14, 2011 

amended proposal, we have evaluated 

the collection of reasonably available 

control measures that CARB, the 

District, and the Southern California 

Association of Governments (SCAG) 

have adopted and submitted with the 

attainment demonstration in the South 

Coast 2007 AQMP and 2007 State 

Strategy to meet the RACM/RACT 

requirement in CAA section 172(c)(1) 

and 40 CFR 51.1010. See 76 FR 41562 

at 41568–41572 and TSD at section II.D. 

For the reasons discussed in our 

amended proposal and as further 

discussed below, we conclude that the 

South Coast 2007 AQMP and the 2007 

State Strategy demonstrate that the State 

has adopted all reasonably available 

control measures (including RACT for 

stationary sources) necessary to 

demonstrate attainment as expeditiously 

as practicable and to meet any RFP 

requirements, as required by CAA 

section 172(c)(1) and 40 CFR 51.1010. 

Thus, we disagree with CBE’s assertion 

that the additional measures it has 

identified are required RACM under 

CAA section 172(c)(1) for purposes of 

the 1997 PM2.5 NAAQS in the South 

Coast and or that it is necessary to 

reassess or update the control measures 

in the plan at this time. We explain 

more specifically below our reasons for 

concluding that the additional control 

options and energy efficiency measures 

identified by CBE are not required 

RACM for purposes of attaining the 

1997 PM2.5 NAAQS in the South Coast. 

Comment: CBE objects to what it 

characterizes as CARB’s ‘‘promise to 

‘propose’ measures later, in a lump 

sum,’’ and argues that this provides the 

public with no assurance that 

attainment will be achieved. CBE asserts 

that individual emission reduction 

targets should be attached to each 

separate measure and they should be 

individually required. Finally, CBE 

argues that ‘‘[a]lternative control 

measures and emissions trading should 

not be allowed, because of deficiencies 

in the reliability of such programs.’’ 

Response: We disagree with CBE’s 

contention that it is necessary for the 

State to commit to individual measures 

with specific emission reduction targets 

for each measure. For the reasons 

discussed in our proposed rule (see 76 

FR 41562 at 41575–41577) and further 

below (see responses to comments on 

‘‘enforceable commitments’’), we 

conclude that CARB and the SCAQMD 

have satisfied the criteria that EPA has 

historically applied in approving 

attainment demonstrations based in part 

on enforceable commitments in lieu of 

adopted measures. The 2007 State 

Strategy includes commitments to 

propose defined new measures and an 

enforceable commitment for emissions 

reductions sufficient, in combination 

with existing measures and the District’s 

commitments, to attain the PM2.5

NAAQS in the South Coast by April 5, 

2015. See 76 FR 41562, at 41571 and 

CARB Resolution 07–28 (September 27, 

2007, Attachment B, p. 3). As discussed 

below in our responses to comments on 

‘‘enforceable commitments,’’ the 2011 

SIP revisions changed the total amount 

of reductions needed from control 

strategy measures in 2014 to 44 tpd of 

VOC reductions, 129 tpd of NOX

reductions, and 41 tpd of SOX

reductions (the PM2.5 remaining 

commitment stayed the same at 9 tpd of 

directly-emitted PM2.5). See July 2011 

TSD, Table F–10. Although CARB’s 

commitment provides that it may adopt 

‘‘alternative’’ measures (i.e., measures 

different from the potential control 

options identified in the South Coast 

2007 AQMP or 2007 State Strategy), 

ultimately the State is obligated to 

achieve these specific aggregate 

amounts of emission reductions through 

the adoption of enforceable measures no 

later than the beginning of 2014. See 40 

CFR 51.1007(b) (requiring 

implementation of all control measures 

needed for expeditious attainment no 

later than the beginning of the year prior 

to the attainment date). The State’s 

commitments to achieve specific 

amounts of emission reductions by 2014 

are enforceable by EPA and citizens 

under CAA sections 113 and 304, 

respectively. We note that CARB has 

already adopted and submitted to EPA 

either for SIP-approval or for a CAA 

section 209 waiver most of the measures 

it had committed to adopt in the 2007 

State Strategy, as revised. See 2011 

Progress Report, Appendix B, 

Table B–1. 

It is unclear what CBE intends by 

stating that ‘‘alternative control 

measures and emissions trading should 

not be allowed’’ because of deficiencies 

in their reliability. 

Comment: CBE asserts that the South 

Coast 2007 AQMP must set Best 

Available Retrofit Control Technology 

(BARCT) standards for NOX and other 

PM2.5 precursor emissions from 

industrial boilers and heaters, and that 

it should require replacement of old and 

severely inefficient equipment at oil 

refineries and other large sources. CBE 

also asserts that the SCAQMD’s 

Regional Clean Air Incentives Market 

(RECLAIM) program does not produce 

the emission reductions that are 

achievable from industrial boilers and 

heaters because it allows sources to buy 

and sell credits. CBE contends that a 

RACM demonstration should include 

evaluation of each industrial boiler and 

heater, including its age, the type of fuel 

it uses, and its emissions of criteria 

pollutants, toxics and GHGs. 

Additionally, CBE claims that CARB, as 

part of its recent Greenhouse Gas (GHG) 

regulatory process under California’s 

Assembly Bill 32 (AB32), identified 

numerous methods for increasing 

energy efficiency, reducing fuel use, and 

thus reducing emissions of criteria 

pollutants and precursors as well as 

GHGs statewide, and that EPA should 

require the SCAQMD to carry out the 

same evaluation for industrial boilers 

and heaters in the South Coast. CBE 

contends that such energy efficiency 

measures could also save money. 

Finally, CBE asserts that Ultra-Low NOX

burners are cost-effective and must be 

evaluated as part of a RACM analysis for 

industrial boilers and heaters. 

Response: The SCAQMD had adopted 

two regulations to control NOX

emissions from industrial boilers, steam 

generators and process heaters in the 

South Coast: Rule 1146.1 (for boilers 

with rated heat inputs between 2 and 5 

MMBtu/hour) and Rule 1146 (for boilers 

with rated heat inputs above 5 MMBtu/ 

hour, with certain exemptions). EPA has 

approved both of these rules into the 

SIP. See 67 FR 16640 (April 8, 2002) 

and 60 FR 46220 (September 6, 1995). 

EPA recently proposed a limited 

approval and limited disapproval of 

revisions to these rules that further 

tighten the NOX emission limits in both 

rules. See 76 FR 40303 (July 8, 2011).12

As part of that action, we evaluated the 

stringency of the rules’ control 

requirements and proposed to conclude 

that the rules together require all control 

measures that are reasonably available 

for covered boilers, steam generators 

and process heaters. See id. and 

associated technical support documents 


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13RECLAIM generally applies to facilities that 

emit 4 tons or more per year of NOX or SOX in the 

year 1990 or subsequent years. See Rule 2001. 

14BARCT is defined as ‘‘an emission limitation 

that is based on the maximum degree of reduction 

achievable taking into account environmental, 

energy, and economic impacts by each class or 

category of source.’’ See California Health and 

Safety Code, Section 40406. 

15EPA has defined RACT as the lowest emission 

limitation that a particular source is capable of 

meeting by the application of control technology 

that is reasonably available considering 

technological and economic feasibility. 44 FR 53762 

(September 17, 1979). 

(TSDs). We also noted that the NOX

emission limits in both rules are 

equivalent to California BARCT 

standards for these types of boilers, 

steam generators and process heaters. 

See id. According to the SCAQMD’s 

staff report on Rule 1146, most boilers 

subject to the rule will have to use 

either ultra-low NOX burners or 

selective catalytic reduction (SCR) 

controls to meet the rule’s emission 

limits, depending on the size of the 

boiler. See Final Staff Report, Proposed 

Amended Rule 1146—Emissions of 

Oxides of Nitrogen from Industrial, 

Institutional, and Commercial Boilers, 

Steam Generators, and Process Heaters, 

at ES–1. Boilers with rated heat inputs 

above 40 MMBtu/hour located at 

refineries are subject to the NOX and 

SOX emission caps in SCAQMD’s 

RECLAIM program, discussed 

immediately below. See email dated 

September 22, 2011, from Ken 

Mangelsdorf (SCAQMD) to Idalia Perez 

(EPA Region 9), re: ‘‘question about 

refineries and RECLAIM.’’ These 

adopted measures require all RACM for 

covered industrial boilers, steam 

generators and process heaters in the 

South Coast and provide an adequate 

basis for approving the RACM 

demonstration in the South Coast 2007 

AQMP with respect to such emission 

units. We therefore disagree with CBE’s 

assertion that the SCAQMD is required 

to evaluate additional control measures 

for industrial boilers and heaters as part 

of its RACM demonstration for the 1997 

PM2.5 standards. 

We also disagree with CBE’s 

objections to the inclusion of RECLAIM 

as a RACM measure. RECLAIM is a 

market incentive program designed to 

provide sources flexibility in complying 

with emissions limitations. Cap and 

trade programs, like RECLAIM, can take 

into account emissions control 

technology by limiting the size of the 

emissions cap. EPA policy provides that 

a cap and trade program may satisfy 

RACT by ensuring that the level of 

emission reductions resulting from 

implementation of the program will be 

equal, in the aggregate, to those 

reductions expected from the direct 

application of RACT on affected sources 

within the nonattainment area. See 59 

FR 16690 (April 7, 1994) and 

‘‘Improving Air Quality with Economic 

Incentive Programs,’’ EPA–452/R–01– 

001 (January 2001), at Section 16.7. EPA 

approved the RECLAIM program into 

the California SIP in June 1998 based in 

part on a conclusion that the NOX

emission caps in the program satisfied 

the RACT requirements of CAA section 

182(b)(2) and (f) for covered NOX

emission sources 13 in the aggregate. See 

61 FR 57834 (November 8, 1996) and 63 

FR 32621 (June 15, 1998). In 2005 and 

2010, the SCAQMD tightened the NOX

and SOX emissions caps in Rule 2002 to 

address California Health and Safety 

Code requirements for BARCT,14 to 

require that agricultural sources be 

subject to existing command-andcontrol regulations instead of RECLAIM, 

and to satisfy a NOX reduction 

commitment in the 2003 AQMP. See 

Technical Support Document for EPA’s 

Rulemaking for the California SIP 

regarding SCAQMD RECLAIM program 

rules, March 27, 2006, at pp. 5, 6 and 

Attachment 4. EPA approved the 

revisions to the NOX and SOX emission 

caps in Rule 2002 on August 29, 2006 

and August 12, 2011 respectively, based 

in part on conclusions that the revisions 

continue to satisfy NOX RACT 

requirements. See 71 FR 51120 (August 

29, 2006) and 76 FR 50128 (August 12, 

2011). Because RECLAIM achieves 

reductions of NOX emissions from 

covered sources that are equivalent, in 

the aggregate, to the reductions achieved 

by RACT-level controls, we conclude 

that it requires all RACM for covered 

sources. See 76 FR at 41569, Table 3. 

Comment: CBE asserts that emissions 

of criteria pollutants, toxics, and GHGs 

could be reduced by requiring the 

SCAQMD to implement the findings of 

industrial energy use audits performed 

under California’s AB32 program. 

Specifically, CBE asserts that the 

SCAQMD could supplement CARB’s 

work under AB32 by: (1) Requiring 

implementation of potential energy 

efficiency improvements identified 

through audits; (2) expanding the audit 

requirements to cover more industrial 

sources, including certain large sources 

and oil refineries exempted from 

CARB’s program; and (3) improving the 

reporting requirements associated with 

the audits. CBE states that industrial 

energy efficiency assessments not only 

reduce pollution but also reduce energy 

costs and should be required RACM for 

purposes of the PM2.5 NAAQS and other 

standards. CBE contends, therefore, that 

EPA should require the SCAQMD to add 

such auditing requirements to the South 

Coast 2007 AQMP in strengthened form 

with emission reduction targets. 

Response: Although we agree 

generally that improvements in energy 

efficiency can reduce emissions of 

criteria and other air pollutants, we 

disagree with CBE’s assertion that the 

specific measures associated with 

energy efficiency that it has identified 

are required RACM for purposes of 

attaining the 1997 PM2.5 standards in 

the South Coast. Under the PM2.5

Implementation Rule at 40 CFR 

51.1010(b), ‘‘[p]otential measures that 

are reasonably available considering 

technical and economic feasibility must 

be adopted as RACM if, considered 

collectively, they would advance the 

attainment date by one year or more.’’ 

CBE asserts only generally that the 

measures it has identified are 

reasonably available for implementation 

in the South Coast considering technical 

and economic feasibility, and provides 

no information to support a conclusion 

that these additional measures would, 

individually or collectively with other 

reasonable measures, advance 

attainment of the 1997 PM2.5 standards 

by at least one year in the South Coast. 

We explained in the preamble to the 

PM2.5 Implementation Rule (72 FR 

20586) that although States must 

conduct a thorough analysis of 

reasonably available measures, States 

are not required to analyze every 

conceivable measure to satisfy the 

RACM requirement in CAA section 

172(c)(1). 72 FR at 20612. As long as a 

State’s analysis is ‘‘sufficiently robust in 

considering potential measures to 

ensure selection of all appropriate 

RACT and RACM, and the State 

provides a reasoned justification for its 

analytical approach, we will consider 

approving that State’s RACT/RACM 

strategy.’’ Id. As discussed in our July 

14, 2011 amended proposal, CARB, the 

SCAQMD, and SCAG have conducted 

thorough analyses of all reasonable 

control measures (including RACT 15 for 

stationary sources) that are available for 

implementation in the South Coast and 

provided reasoned justifications for the 

collection of RACM that the State has 

adopted or committed to adopt, based 

on these analyses. See 76 FR 41562 at 

41568, 414572 and TSD at section II.D; 

see also South Coast 2007 AQMP, 

Appendix VI. CBE’s comments do not 

change our conclusion that the State has 

adopted all RACM and RACT necessary 

to demonstrate attainment as 

expeditiously as practicable and to meet 

any RFP requirements, as required by 


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16CBE references several sources of SCAQMD 

data as the basis for its estimates of criteria 

pollutant emissions from these flaring episodes. 

17We note that CBE’s estimates of emissions from 

flaring episodes during the 2009–2011 time period 

are consistent with data provided in SCAQMD staff 

reports submitted to EPA, which show an overall 

decline in emissions from flaring events since 2004. 

See, e.g., SCAQMD 2005 Staff Report Table IV–2. 

Generally, it is difficult to develop reliable 

estimates of emissions from flaring events given 

uncertainties about the efficiency of a particular 

flare event. Flares are devices which burn anything 

in the stream, and the contents of the stream may 

not be completely combusted, causing an unknown 

composition of emissions. 

CAA section 172(c)(1) and 40 CFR 

51.1010. 

Comment: CBE asserts that SCAQMD 

‘‘must implement measures [for 

additional SOX reduction] that were 

identified in the recent SOX RECLAIM 

regulation, but not adopted.’’ 

Response: This comment does not 

contain sufficient specificity for EPA to 

respond. 

Comment: CBE asserts that major 

flaring and smoking episodes occur 

regularly at refineries in the region 16

and that the SCAQMD must require that 

every refinery have a flare minimization 

plan (FMP) consistent with rigorous 

control methods achieved by two 

specific oil refineries in Martinez, 

California and Flint Hills, Texas. CBE 

asserts that FMPs are reasonably 

available measures that could 

significantly reduce short-term 

emissions of particulates, SOX, NOX, 

and VOC, although they probably would 

not significantly affect annual emissions 

levels. CBE states that the SCAQMD’s 

flare rule requires implementation of an 

FMP only if emissions exceed certain 

levels on an annual basis, and that the 

South Coast 2007 AQMP does not 

adequately account for emissions from 

flaring events, which are episodic. CBE 

asserts that EPA should require the 

SCAQMD to: (1) Model the ambient 

PM2.5 impacts of large flaring events; (2) 

revise the SCAQMD flare regulation to 

require that every refinery implement an 

FMP consistent with those at Shell’s 

refineries in Martinez, California and 

Flint Hills, Texas; and (3) add a 

provision to the SCAQMD flare 

regulation to prohibit all flaring (with 

certain exceptions) unless it is 

consistent with an approved FMP, as 

provided in the Bay Area Air Quality 

Management District (BAAQMD) 

Regulation 12–12–301 (‘‘Flare 

Minimization’’). CBE contends that such 

measures are technologically and 

economically feasible and therefore 

required RACM. 

Response: The SCAQMD regulates 

refinery flares through Rule 1118 

(‘‘Control of Emissions from Refinery 

Flares’’), which EPA approved into the 

SIP on August 28, 2007. See 72 FR 

49196. Although CBE correctly notes 

that Rule 1118 requires FMPs only at 

refineries that exceed specific annual 

emissions thresholds (see Rule 1118 at 

subsection (d)(3)(a) and (e)(1)), CBE 

appears to misunderstand several other 

requirements in the rule that apply to all 

petroleum refineries and that are 

essentially equivalent to the FMP 

requirements in the BAAQMD’s Rule 

12–12. We agree that FMPs are 

reasonably available measures and note 

that requirements in BAAQMD 12–12 

401.1 through 401.3 are required of all 

petroleum refineries under SCAQMD 

Rule 1118 sections (c)(2) and (c)(3). For 

example, BAAQMD 12–12 401.4 

requires a description of prevention 

measures addressing specific activities 

that may cause flaring. SCAQMD’s Rule 

1118 contains a requirement in section 

(c)(2)(C) that requires refinery owners to 

submit to the SCAQMD ‘‘descriptions of 

any equipment, processes or procedures 

the owner or operators plans to install 

or implement to eliminate or reduce 

flaring,’’ including the scheduled year of 

installation or implementation. This 

requirement is essentially equivalent to 

the requirement in BAAQMD Rule 12– 

12 401.4. Thus, SCAQMD Rule 1118 

contains in sections (c)(2) and (c)(3) 

requirements that, although separate 

from the requirements for ‘‘flare 

minimization plans’’ under section (e) 

of the rule, essentially require SCAQMD 

facilities to submit plans to reduce 

flaring events similar to those required 

under BAAQMD Rule 12–12. We 

disagree, therefore, with CBE’s assertion 

that the SCAQMD is required to adopt 

additional control requirements for 

refinery flares and conclude that Rule 

1118 requires all RACM for these 

emission sources in the South Coast.17

We note that SCAQMD’s Board 

Resolution adopting the District’s most 

recent revisions to SCAQMD Rule 1118 

directs District staff to evaluate the 

feasibility of a daily emissions target 

and to evaluate refinements to the 

annual emissions targets as warranted. 

See SCAQMD Board Resolution 2005– 

32 (November 4, 2005). Consistent with 

this directive, we encourage the District 

to reevaluate the control and 

compliance requirements in Rule 1118 

as new information about feasible 

controls becomes available, and to adopt 

any additional control measures that are 

reasonably available as expeditiously as 

practicable consistent with CAA 

requirements. 

Comment: CBE asserts that oil 

refineries, which contribute to power 

plant emissions by using substantial 

amounts of electricity from the grid, 

should be required to have backup 

power using clean/alternative energy 

sources. Specifically, CBE claims that 

electrical grid shutdowns cause power 

outages at oil refineries, which in turn 

cause flaring and significant amounts of 

air pollution near the refineries. CBE 

asserts that the SCAQMD should require 

oil refineries to use alternative energy 

sources (in place of fossil-fuel electricity 

generation), such as wind and solar 

energy, and that such measures should 

be required RACM. Based on general 

information about power plant 

emissions obtained from PG&E, CBE 

provides its own estimates of the SOX

and NOX emission reductions that could 

be achieved if oil refineries were to meet 

some or all of their electricity demands 

with clean alternative energy sources. 

CBE contends that the ‘‘large air 

emissions caused by fossil fuel 

generation at Power Plants due to oil 

refinery electricity demand is worthy of 

phaseout requirements by the AQMD as 

a measure in the AQMP.’’ 

Response: Although we generally 

agree that use of alternative (i.e., nonfossil fuel) energy sources to power oil 

refineries and other large industrial 

operations would reduce emissions of 

air pollutants, we disagree with CBE’s 

generalized assertion that such 

measures are required RACM for 

purposes of attaining the 1997 PM2.5

NAAQS in the South Coast. Section 

172(c)(1) of the CAA requires that States 

adopt measures that are ‘‘reasonably 

available’’ and that are necessary to 

demonstrate attainment as expeditiously 

as practicable and to meet any RFP 

requirements. 40 CFR 51.1010. As 

explained above, States are required to 

conduct a thorough analysis of 

reasonably available measures but are 

not required to analyze every 

conceivable measure to satisfy the 

RACM requirement in CAA section 

172(c)(1). 72 FR at 20612. 

As discussed in our July 14, 2011 

amended proposal, CARB, the 

SCAQMD, and SCAG have conducted 

thorough analyses of all reasonable 

control measures that are available for 

implementation in the South Coast and 

provided reasoned justifications for the 

collection of RACM that the State has 

adopted or committed to adopt, based 

on these analyses. See 76 FR 41562 at 

41568–41572 and TSD at section II.D. 

Electric generating stations and oil 

refineries in the South Coast are subject 

to numerous prohibitory rules and other 

control measures that regulate emissions 

of NOX, SOX, VOC, and PM2.5, among 

other air pollutants, from various 

emission points within each facility. 

See, e.g., 76 FR at 41570, Table 3 and 


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18See record of phone conversation between 

Nicole Law and Stanley Tong, USEPA Region 9 Air 

Division, and Eugene Teszler, SCAMQD, dated 

September 14, 2011. 

19See record of phone conversation between 

Nicole Law, USEPA Region 9 Air Division, and 

Brenda Shine, USEPA OAQPS, dated September 20, 

2011. 

TSD, Appendix B (identifying, e.g., Rule 

1105 for fluidized-bed coal combustion 

units (FCCUs) and Rules 1146 and 

1146.1 for Industrial, Institutional, and 

Commercial Boilers, Steam Generators, 

and Process Heaters.) Power plants in 

the district are also subject to RECLAIM. 

See South Coast Rules 2011 and 2012. 

CBE has provided no information to 

support its general assertion that 

requiring the oil refining industry to 

obtain electricity (backup electricity or 

otherwise) from alternative energy 

sources instead of from the electrical 

grid is a ‘‘reasonably available’’ control 

measure within the meaning of CAA 

section 172(c)(1). These comments 

therefore do not change our conclusion 

that the State has adopted all RACM and 

RACT necessary to demonstrate 

attainment as expeditiously as 

practicable and to meet any RFP 

requirements, as required by CAA 

section 172(c)(1) and 40 CFR 51.1010. 

Comment: CBE states that the 

SCAQMD is in the process of 

developing a regulation to control coke 

drum emissions and that EPA should 

ensure that this rule is included in the 

District’s RACM/RACT control strategy. 

CBE also asserts that this rule has been 

repeatedly delayed due to pressure from 

the oil industry, and that EPA should 

ensure that the rulemaking occurs 

expeditiously. CBE asserts that refinery 

coking operations are increasing due to 

the use of increasingly heavier crude at 

oil refineries. 

Response: EPA does not currently 

have reliable information about the 

types and amounts of pollutant 

emissions from refinery coke drums in 

the South Coast, and CBE has not 

provided such information to support 

its assertions. Consequently we cannot 

conclude at this time that any such 

controls would represent RACT in the 

South Coast. We note that EPA Region 

9 staff recently contacted SCAQMD staff 

to inquire about the status of this rule 

and learned that the District is awaiting 

information from EPA emission studies 

to inform the District’s assessment of the 

feasibility and cost-effectiveness of 

regulating coke drum emissions.18 EPA 

has sent requests for information about 

emissions from coking operations to 

several facilities in the South Coast.19

Given the need for additional emission 

reductions in the South Coast to attain 

the 1997 PM2.5 standards as well as 

other standards for which the area is 

designated nonattainment (see 40 CFR 

81.305), we encourage the SCAQMD to 

adopt and implement this rule as 

expeditiously as practicable consistent 

with CAA requirements. 

Comment: CBE states that it had 

proposed ‘‘requiring 33% RPS for all 

power plants within the SCAQMD’’ and 

asserts that this is ‘‘clearly achievable’’ 

since it has been adopted as State law. 

Response: Assuming CBE intended to 

assert that the SCAQMD should require 

all investor-owned utilities, electric 

service providers, and community 

choice aggregators within the South 

Coast to procure 33 percent of their 

power from renewable sources by 2020 

as currently required by the State under 

California’s Renewable Portfolio 

Standard (RPS), and that such a measure 

is a required RACM under CAA section 

172(c)(1) for purposes of attaining the 

1997 PM2.5 NAAQS in the South Coast, 

we disagree. As discussed above, 

section 172(c)(1) of the CAA requires 

that States adopt measures that are 

‘‘reasonably available’’ and that are 

necessary to demonstrate attainment of 

the NAAQS as expeditiously as 

practicable and to meet any RFP 

requirements. 40 CFR 51.1010. CBE has 

provided no information to support 

either an assertion that California’s 33% 

RPS under Senate Bill 2 is such a 

measure or an assertion that some 

additional RPS to be implemented by 

the SCAQMD within the South Coast 

would be such a measure. 

Comment: CBE claims that the RACM 

analysis for locomotive emissions in the 

South Coast 2007 AQMP is deficient 

because the SCAQMD failed to evaluate 

reasonably available technologies that 

could reduce locomotive and other 

railyard emissions. In support of this 

assertion, CBE references two 

September 2009 public comment letters 

to CARB and an August 2009 CARB 

document entitled ‘‘Technical Options 

to Achieve Additional Emissions and 

Risk Reductions from California 

Locomotives and Railyards.’’ Citing 

Association of American Railroads v. 

South Coast Air Quality Management 

District, 622 F.3d 1094 (9th Cir. 2010), 

CBE contends that the Ninth Circuit 

‘‘has indicated that the SCAQMD and 

the State of California have the authority 

to reduce emissions from locomotive 

sources through its determination that 

[the Interstate Commerce Commission 

Termination Act of 1995] may not 

preempt some measures included in a 

federally approved SIP.’’ CBE asserts 

that EPA should therefore direct 

California and the SCAQMD to cure this 

defect. 

Response: We disagree. SCAQMD’s 

RACM Demonstration (see Appendix VI 

to the 2007 South Coast AQMP) does 

list one type of measure with the 

potential to reduce locomotive and 

other railyard emissions (locomotive 

anti-idling) as one of the measures the 

District evaluated as a potential RACM/ 

RACT measure (see Table 2 on page VI– 

11 of the 2007 South Coast AQMP, 

Appendix VI). With reference to long 

duration switch yard locomotive idling 

measures, SCAQMD concluded that ‘‘[I]f 

there are any additional SIP emission 

reductions that could be accounted for 

using these innovative technology, they 

would be addressed by CARB during the 

rule development of their on-road and 

off-road control measures.’’ 2007 South 

Coast AQMP, Appendix VI, page VI–12. 

This is a reasonable conclusion in light 

of the legal challenge to the District’s 

own locomotive anti-idling rules 

(SCAQMD Rules 3501, 3502, and 3503). 

Moreover, CARB has adopted 

regulations for mobile cargo handling 

equipment at ports and intermodal rail 

yards which are designed to use best 

available control technologies to reduce 

public exposure to NOX and PM. 

CARB’s mobile cargo handling 

equipment rules are the subject of a 

current authorization request to EPA. 

See 76 FR 5586 (February 1, 2011). 

We note that, while the Ninth 

Circuit’s opinion in the Association of 

American Railroads v. South Coast Air 

Quality Management District case opens 

the door to District regulation of 

locomotive idling under Federal law by 

signaling the potential for 

harmonization between such District 

rules and the Interstate Commerce 

Commission Termination Act of 1995 

(ICCTA) if the rules are approved into 

the SIP, there remains uncertainty as to 

whether the District’s locomotive antiidling rules would be within the scope 

of the District’s state-law regulatory 

authority. The Ninth Circuit did not 

decide that issue. 622 F.3d at 1096. 

In addition, the documents and court 

case cited by CBE in support of the idea 

that a number of locomotive- and 

railyard-related measures may be 

technologically and economically 

feasible, as well as legally enforceable, 

all post-date the development and 

submittal of the 2007 South Coast 

AQMP and 2007 State Strategy. As such, 

they cannot be used to undermine the 

RACM demonstration for PM2.5

submitted by California for the South 

Coast several years earlier. The cited 

documents and court case may 

influence the development of control 

measures for future air quality plans for 

the South Coast, as well as other 

nonattainment areas, but they do not 


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20Appendix IV–C to the South Coast 2007 AQMP 

indicates that implementation of all of the TCMs in 

SCAG’s Transportation Strategy (including transit 

and High Occupancy Vehicle (HOV) projects, in 

addition to bicycle and pedestrian projects) is 

expected to achieve the following total amounts of 

emission reductions: 0.18 tpd of direct PM2.5, 3.48 

tpd of NOX, and 1.04 tpd of ROG (VOC). See South 

Coast 2007 AQMP, Appendix IV–C at Table 7. 

Assuming the 1996 Los Angeles Bicycle Plan, if 

fully implemented, would achieve only a fraction 

of these amounts of emission reductions, it is highly 

unlikely that this measure would advance 

attainment of the 1997 PM2.5 standard in the South 

Coast by at least a year. See Table I–1 in the TSD 

for a summary of the emission reductions that 

would achieve one year’s worth of RFP (52.8 tpd 

of NOX, 30.8 tpd of VOC, 1.1 tpd of PM2.5 and 2.8 

tpd of SOX). 

21SCAG is the metropolitan planning 

organization (MPO) responsible for the 

transportation strategy and transportation control 

measures in the South Coast nonattainment area. 

22See record of conversation between Wienke 

Tax, EPA Region 9, and Jonathan Nadler, SCAG, 

September 19, 2011. 

undermine the RACM demonstration in 

the plan that we are approving in 

relevant part today. 

For the reasons set forth in the 

preceding paragraphs, these comments 

do not change our conclusion that the 

State has adopted all RACM and RACT 

necessary to demonstrate attainment as 

expeditiously as practicable and to meet 

any RFP requirements for the 1997 

PM2.5 standards, as required by CAA 

section 172(c)(1) and 40 CFR 51.1010. 

See 72 FR at 20612 (noting that although 

States must conduct thorough analyses 

of reasonably available measures, States 

are not required to analyze every 

conceivable measure to satisfy the 

RACM requirement in CAA section 

172(c)(1)). 

Comment: NRDC asserts that the 

South Coast 2007 AQMP does not 

satisfy the RACM requirement in CAA 

172(c)(1) because it fails to identify and 

require implementation of certain 

reasonably available transportation 

control measures (TCMs) as 

expeditiously as practicable. NRDC 

asserts that ‘‘EPA’s Transportation 

Conformity Rule requires that TCMs 

either be listed in section 108(f) of the 

CAA, or reduce transportation 

emissions by lowering vehicle use or 

improving traffic flow.’’ Specifically, 

NRDC asserts that in the ‘‘illustrative 

list of TCMs in CAA 108(f), the EPA has 

acknowledged that improvements to 

bicycle paths and pedestrian walkways 

are RACM’’ and that the South Coast 

2007 AQMD contains very few TCMs to 

implement such measures. As an 

example, NRDC claims that little more 

than 11 percent of the 1996 Los Angeles 

Bicycle Plan’s proposed bike lanes have 

been implemented since its 

development. Finally, NRDC asserts that 

planning agencies have used the TCM 

process to ‘‘load the SIP with proposed 

highway expansion projects that will 

purportedly achieve emissions 

reductions’’ and that several of the 

plan’s identified TCMs, such as the SR– 

47 diesel truck road expansion project, 

should not be included as TCMs 

because they will not actually reduce 

emissions. 

Response: We disagree with NRDC’s 

contention that any of the TCMs it has 

identified are required RACM for 

purposes of attaining the 1997 PM2.5

standards in the South Coast or that the 

SCAQMD failed to adequately consider 

reasonably available TCMs as part of its 

RACM analysis. Under 40 CFR 

51.1010(b), ‘‘[p]otential measures that 

are reasonably available considering 

technical and economic feasibility must 

be adopted as RACM if, considered 

collectively, they would advance the 

attainment date by one year or more.’’ 

NRDC asserts only generally that the 

1996 Los Angeles Bicycle Plan is 

reasonably available for implementation 

in the South Coast considering technical 

and economic feasibility, and provides 

no information to support a conclusion 

that this or any other potential TCM 

would, individually or collectively with 

other reasonable measures, advance 

attainment of the 1997 PM2.5 standards 

by at least one year in the South Coast.20

As discussed in our July 14, 2011 

amended proposal, CARB, the 

SCAQMD, and the Southern California 

Association of Governments (SCAG) 21

have conducted thorough analyses of all 

reasonable control measures that are 

available for implementation in the 

South Coast and provided reasoned 

justifications for the collection of RACM 

that the State has adopted or committed 

to adopt, based on these analyses. See 

76 FR 41562 at 41568–41572 and TSD 

at section II.D. With respect to TCMs in 

particular, SCAG evaluated potential 

measures identified by public 

commenters, measures adopted in other 

nonattainment areas, and potential 

measures identified by EPA. Bicycle 

projects were considered along with 

many other TCMs as part of the RACM 

analysis to determine if they alone or in 

combination with other measures would 

advance the attainment date. See South 

Coast 2007 AQMP, Appendix IV–C, p. 

36–55. Attachment A to Appendix IV– 

C of the South Coast 2007 AQMP 

contains a list of the specific TCMs 

included as part of the South Coast 2007 

AQMP. The 1996 LA Bicycle Plan is not 

a part of the approved SIP for the South 

Coast. When an individual bike project 

has funding for right-of-way or 

construction in the first two years of the 

Transportation Improvement Program 

(TIP), it is included in TCM–1, SCAG’s 

overall TCM program.22 NRDC’s 

comments do not change our conclusion 

that the State has adopted all RACM and 

RACT necessary to demonstrate 

attainment as expeditiously as 

practicable and to meet any RFP 

requirements for the 1997 PM2.5

standards, as required by CAA section 

172(c)(1) and 40 CFR 51.1010. See 72 FR 

at 20612 (noting that although States 

must conduct thorough analyses of 

reasonably available measures, States 

are not required to analyze every 

conceivable measure to satisfy the 

RACM requirement in CAA section 

172(c)(1)). SCAG included a description 

of the process used to identify the 

potential RACM measures considered. 

See South Coast 2007 AQMP, Appendix 

IV–C. 

We also disagree with NRDC’s 

characterization of EPA’s transportation 

conformity regulations and EPA’s 

position with respect to the TCMs 

identified in CAA section 108(f). EPA’s 

transportation conformity regulations in 

40 CFR part 93 establish the criteria and 

procedures for timely implementation of 

TCMs approved into a SIP, including 

the specific steps and funding sources 

needed to fully implement each TCM, 

but do not require adoption and 

implementation of any particular TCM. 

As to CAA section 108(f), we note that 

following the 1990 CAA Amendments 

EPA revised its previous interpretation 

of the RACM requirement by 

eliminating the presumption that all 

TCMs listed in CAA section 108(f) are 

RACM for all areas. See 57 FR 13598 at 

13560 (April 16, 1992) (stating that 

‘‘[l]ocal circumstances relevant to the 

reasonableness of any potential control 

measure involve practical 

considerations that cannot be made 

through a national presumption’’ and 

that States should consider TCMs on an 

area-specific basis and ‘‘consider groups 

of interacting measures, rather than 

individual measures’’). Thus, States are 

required to adopt only those TCMs 

identified in CAA section 108(f) that are 

reasonably available for implementation 

in the specific nonattainment area. Id. 

We note that EPA cannot require that 

any measure be listed in section 108(f) 

of the CAA, as only Congress is 

authorized to amend the CAA. 

Finally, we agree that SR–47 should 

not be listed as a TCM. We understand 

from SCAG staff that the SR–47 project 

(Project ID LA0D45) was inadvertently 

included as a TCM in the 2007 SIP in 

a table labeled ‘‘System Management— 

Railroad Consolidation Programs,’’ on 

page A–12 of Attachment A of 

Appendix IV–C of the South Coast 2007 

AQMP. This error has been corrected 


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23See electronic mail, Rongsheng Luo, SCAG, to 

Wienke Tax, U.S. EPA Region 9, August 31, 2011. 

24See also Letter dated April 25, 2011, from Lisa 

P. Jackson, EPA, to Paul Cort, EarthJustice, denying 

Petition for Reconsideration with respect to the 

deferral of the requirement to establish emission 

limits for CPM until January 1, 2011. 

25 In our proposed rule, we noted that the 

SCAQMD has deferred limits for condensable 

particulate matter (CPM) in its rules but that this 

limited deferral does not affect the South Coast 

2007 AQMP’s RACM/RACT and expeditious 

attainment demonstrations. 76 FR 41562 at 41566, 

n. 13. We also noted that we would evaluate any 

PM2.5 rule adopted or revised by the District after 

January 1, 2011 to assure that it appropriately 

addresses CPM. See id. 

26See SCAQMD Protocol, Determination of 

Particulate and Volatile Organic Compound 

Emissions From Restaurant Operations, November 

14, 1997 (available at http://yosemite.epa.gov/R9/ 

R9Testmethod.nsf/0/ 

3D4DEB4D21AB4AAF882570AD005DFF69/$file/ 

SC%20Rest%20emiss.pdf). 

27See SCAQMD Test Method 5.1, Determination 

of Particulate Matter Emissions From Stationary 

Sources Using a Wet Impingement Train, March 

1989 (available at http://aqmd.gov/tao/methods/ 

stm/stm-005-1.pdf); SCAQMD Test Method 5.2, 

Determination of Particulate Matter Emissions From 

Stationary Sources Using Heated Probe and Filter, 

March 1989 (available at http://aqmd.gov/tao/ 

methods/stm/stm-005-2.pdf); and SCAQMD Test 

Method 5.3, Determination of Particulate Matter 

Emissions From Stationary Sources Using an inStack Filter, October 2005 (available at http:// 

aqmd.gov/tao/methods/stm/stm-005-3.pdf). 

and this project is no longer listed as a 

TCM in the 2008 RTIP.23

Comment: NRDC asserts that the 

RACM/RACT analysis is deficient 

because it fails to provide any 

discussion of controls for condensable 

PM2.5 emissions. NRDC references 40 

CFR 51.1002(c) to support its assertion 

that ‘‘[t]he transition period allowing 

agencies to ignore controls on 

condensable emissions expired on 

January 1, 2011,’’ and also quotes EPA’s 

statement in the preamble to the PM2.5

Implementation Rule (72 FR at 20652) 

that ‘‘[w]e expect States to address the 

control of direct PM2.5 emissions, 

including condensables with any new 

actions taken after January 1, 2011.’’ 

NRDC states that EPA should advise 

CARB and the District that 

consideration of reasonably available 

controls on condensable emissions will 

be required in a revised RACM/RACT 

submittal. 

Response: EPA’s PM2.5

implementation rule states that ‘‘[a]fter 

January 1, 2011, for purposes of 

establishing emissions limits under 

51.1009 and 51.1010, States must 

establish such limits taking into 

consideration the condensable fraction 

of direct PM2.5 emissions.’’ 40 CFR 

51.1002(c). Prior to this date, the rule 

required that nonattainment area SIPs 

identify and evaluate sources of PM2.5

direct emissions and PM2.5 attainment 

plan precursors as part of the RFP and 

RACM/RACT demonstrations but did 

not specifically require states to address 

condensable PM2.5. See id.24 Because 

the attainment, RFP and RACM 

demonstrations in the South Coast 2007 

AQMP and 2007 State Strategy were 

adopted on June 1, 2007 and September 

27, 2007, respectively, California was 

not required to address condensable PM 

in establishing the emissions limits 

contained in these demonstrations as 

originally submitted, or in adopting any 

other PM emission limits under 40 CFRs 

51.1009 and 51.1010 prior to January 1, 

2011. Consistent with these 

requirements, EPA has evaluated the 

reasonable further progress (RFP) and 

reasonably available control measures 

(RACM) demonstrations in the South 

Coast 2007 AQMP and 2007 State 

Strategy and concluded that these 

elements of the Plan appropriately 

address all sources of direct PM2.5

emissions and PM2.5 attainment plan 

precursors (SO2, NOX, and VOC) in the 

South Coast area. See 76 FR 41562 at 

41574.25

The South Coast 2007 AQMP and 

2007 State Strategy rely on several rules 

regulating direct PM emissions as part 

of the PM2.5 control strategy (e.g., Wood 

Burning Fireplaces (Rule 445, adopted 

March 7, 2008), Wood Stoves and 

Under-Fired Charbroilers (Rule 1138, 

adopted November 14, 1997), and 

Particulate Matter (PM) Control Devices 

(Rule 1155, adopted December 4, 2009)). 

See 2011 Progress Report, Appendix F, 

Table 4. EPA has not yet acted on any 

District rule adopted or revised after 

January 1, 2011 that regulates direct 

PM2.5 emissions. As part of our action 

on any such rule, we will evaluate the 

emission limits in the rule to ensure that 

they appropriately address condensable 

particulate matter (CPM), as required by 

40 CFR 51.1002(c). We note that the SIPapproved version of Rule 1138 requires 

testing according to the District’s 

Protocol, which requires measurement 

of both condensable and filterable PM in 

accordance with SCAQMD Test Method 

5.1. See Rule 1138 paragraph (c)(1) and 

(g) and SCAQMD Protocol paragraph 

3.1.26 We also note that the SIPapproved version of Rule 1155 requires 

measurement of both condensable and 

filterable PM in accordance with 

SCAQMD Test Methods 5.1, 5.2, or 5.3 

as applicable. See SCAQMD Rule 1155 

paragraph (e)(6).27

Comment. NRDC asserts that the 

contingency measures in the South 

Coast 2007 AQMP should be included 

in the RACM/RACT demonstration. 

Response: We disagree. For many of 

the same reasons that EPA is 

disapproving the contingency measures 

identified in the South Coast 2007 

AQMP, many of these measures would 

not be approvable elements of a RACM/ 

RACT demonstration and in any case 

are not required RACM for purposes of 

the 1997 PM2.5 NAAQS in the South 

Coast. For example, for CTY–01, 

‘‘Offsetting the Potential Emission 

Increase Due to the Change in Natural 

Gas Specifications,’’ the District has 

provided neither cost effectiveness 

information nor information about the 

types or amounts of pollutant 

reductions this measure would achieve. 

Therefore, EPA cannot determine at this 

time whether such a measure is 

reasonably available considering 

technical or economic feasibility or 

whether it would contribute to 

advancing attainment of the 1997 PM2.5

NAAQS in the South Coast. The District 

characterizes the measure as an 

offsetting measure for potential 

increases in emissions, so it is not clear 

CTY–01 will provide any additional 

reductions of PM2.5 or PM2.5 plan 

precursors. See South Coast 2007 

AQMP, Appendix IV–A, page 167. The 

reductions associated with CTY–02, 

‘‘Clean Air Act Emission Fees for Major 

Stationary Sources,’’ do not occur until 

after 2023, and therefore clearly would 

not contribute to advancing attainment 

date of the 1997 PM2.5 NAAQS. CTY–03, 

‘‘Banning Pre-Tier 3 Off-Road Diesel 

Engines during High Pollution Days,’’ 

similarly lacks quantification of 

emissions reductions and costeffectiveness data. As we noted in our 

July 14, 2011 proposed rulemaking, 

CTY–04, ‘‘Accelerated Implementation 

of CARB’s Mobile Source Control 

Measures,’’ would require additional 

rulemaking at the District level and 

potentially substantial and lengthy 

additional rulemaking at the State level 

to be implemented. See 76 FR 41562, at 

41579. Therefore, we do not believe the 

reductions could occur in time to 

advance the attainment date for the 

1997 PM2.5 NAAQS. In summary, we 

have concluded that the contingency 

measures in the South Coast 2007 

AQMP are not approvable as 

contingency measures under CAA 

section 172(c)(9) and for many of the 

same reasons, these measures are not 

required RACM for purposes of the 1997 

PM2.5 NAAQS. Moreover, NRDC 

provides no information to support a 

claim that any of these measures would 

individually or collectively advance the 

attainment date of the South Coast area 

for the 1997 PM2.5 NAAQS by at least 

one year. 40 CFR 51.1010. 


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E. Comments on CARB and District 

Control Measures 

Comment: ARTBA requests that EPA 

designate this rulemaking as having 

nationwide scope or effect pursuant to 

CAA section 307(b)(1) based on its 

belief that certain California statewide 

measures include in-use controls that 

are inconsistent with section 209 of the 

CAA and that are adoptable by states 

outside not only California but also EPA 

Region IX. ARTBA notes that the DC 

Circuit has never addressed many of the 

preemption issues raised below. 

Accordingly, ARTBA concludes that the 

section 307(b)(1) determination is 

necessary to ensure nationwide 

uniformity in the interpretation and 

enforcement of these important CAA 

preemption issues. 

Response: CAA section 307(b)(1) 

generally provides that judicial review 

of EPA action in approving a SIP or SIP 

revision may be filed only in the U.S. 

Court of Appeals for the appropriate 

circuit. Thus, final EPA actions on 

revisions to the California SIP, such as 

the South Coast PM2.5 Plan, are 

generally subject to timely challenges 

filed in the U.S. Court of Appeals for the 

Ninth Circuit. However, judicial review 

of an EPA SIP action may be filed only 

in the U.S. Court of Appeals for the 

District of Columbia if such action is 

based on a determination of nationwide 

scope or effect and if, in taking such 

action, the EPA finds and publishes that 

such action is based on such a 

determination. 

We do not believe that our action 

approving the South Coast PM2.5 Plan as 

a revision to the California SIP is based 

on a determination of ‘‘nationwide 

scope or effect.’’ ARTBA does not 

identify which specific state in-use 

controls the association is referring to, 

but we assume ARTBA is referring to 

CARB’s in-use truck rule and drayage 

truck rule, CARB’s in-use nonroad 

equipment rule, and CARB’s rule 

regarding ships at port, and CARB’s 

commercial harbor craft rule (which are 

referred to in the plan as ‘‘cleaner in-use 

heavy-duty trucks,’’ ‘‘cleaner in-use offroad equipment (> 25 ph)’’), ‘‘ship 

auxiliary engine cold ironing & clean 

technology,’’ and ‘‘clean up existing 

harbor craft.’’). While we recognize that 

the plan relies on these state in-use 

controls to demonstrate attainment of 

the PM2.5 NAAQS in the South Coast, 

the specific in-use controls themselves 

are not the subject of today’s action. In 

other words, we are not taking action to 

approve the in-use controls as a part of 

the action we are taking today on the 

plan, but anticipate final action on the 

in-use controls in other final actions. 

Moreover, our action today relates to 

only two regions within the state of 

California, and the provisions reviewed 

are specific to California. Today’s 

decision does not affect any other State. 

Thus, our approval of the plan under 

CAA section 110 is not one of 

‘‘nationwide scope or effect.’’ 

With respect to nonroad vehicles and 

equipment, to the extent section 209(e) 

is at all relevant, other states are free to 

adopt and enforce California in-use 

emissions standards and other related 

requirements, but only after EPA has 

authorized the California standards 

under CAA section 209(e)(2)(A). See 

CAA section 209(e)(2)(B). EPA is not 

taking action in this document under 

section 209(e), and thus the potential 

widespread effect that concerns ARTBA 

will not occur as a consequence of this 

rulemaking. Moreover, such State action 

would be a separate action by a separate 

State and would be handled separately. 

With respect to on-road engines and 

vehicles, California and the other states 

have the same authority, and are subject 

to the same limitations, in establishing 

in-use emissions standards and other 

related requirements and thus, even if 

EPA were to be approving California’s 

on-road in-use emissions standards in 

this rulemaking, which it is not, the 

potential for nationwide effect would 

not occur as a consequence of this 

rulemaking. 

While any action taken by EPA in one 

rulemaking may have some precedential 

effect on other actions, this does not 

make every action taken by EPA an 

action of ‘‘nationwide scope or effect.’’ 

This action applies only in California 

and is relevant only to a particular 

California-specific PM2.5 plan. 

Therefore, we disagree that today’s 

action on the South Coast PM2.5 Plan 

would be of ‘‘nationwide scope or 

effect.’’ 

Comment: ARTBA asserts that the 

lawfulness of the California and 

SCAQMD measures will hinge on 

litigation between ARTBA and EPA 

currently under way in the Ninth 

Circuit, No. 11–71897, and the DC 

Circuit, No. 11–1256, and ARTBA 

requests that EPA stay action on this 

proceeding pending the resolution of 

ARTBA’s litigation. ARTBA further 

requests that, because ARTBA is 

litigating the nationwide standards 

under which EPA will decide the 

important preemption issues in this case 

and because EPA’s decision on 

California measures would lead to other 

states’ adopting (or being compelled to 

adopt) California measures as RFP for 

their SIPs, EPA stay consideration of 

nonroad rules pending resolution of the 

ARTBA litigation. 

Response: In settlement of a lawsuit 

seeking to compel EPA action on the 

2007 South Coast AQMP and related 

portions of the 2007 State Strategy 

[Natural Resources Defense Council v. 

EPA, No. 2:10–cv–06029 (C.D. Cal.)], 

which includes the South Coast PM2.5

Plan, EPA is subject to a consent decree 

deadline of September 30, 2011 to take 

final action on the South Coast PM2.5

Plan, and thus, any stay of the 

rulemaking beyond that date is not 

possible. In any event, other than the 

general preemption issues that ARTBA 

has raised, and that EPA has addressed 

in various forums, the current lawsuit 

cited above by ARTBA challenges EPA’s 

approval of the San Joaquin Valley 

Unified Air Pollution Control District’s 

(SJVUAPCD’s) Rule 9510 [‘‘Indirect 

Source Review (ISR’’)], which turns on 

an interpretation of CAA section 

110(a)(5), which is not germane to EPA’s 

action on the South Coast PM2.5 Plan. 

Comment: ARTBA states that 

California has adopted a novel series of 

statewide measures that set emission 

standards and other requirements for inuse on-road and nonroad vehicles and 

fleets of those vehicles. In addition to 

seeking credit for these statewide 

measures, ARTBA notes that SCAQMD 

also seeks credit for that district’s local 

implementation of the Surplus Off-Road 

Opt-In for NOX (‘‘SOON’’) program 

under which large construction fleets 

must seek ‘‘SOON’’ funding to acquire 

clean-than-required equipment, with the 

cost partially deferred by government 

funds and that the South Coast PM2.5

Plan also includes a contingency 

measure (CTY–03) that would ban preTier 3 off-road diesel engines on ‘‘high 

pollution advisory’’ days. 

ARTBA asserts that all of these 

measures share the characteristic of 

setting fleetwide standards for CAArequired vehicles that differ from—and 

are more stringent than—the various 

standards and other requirements that 

title II of the CAA applies to those 

vehicles, and concludes that the 

California statewide measures that rely 

on in-use controls or impose in-use fleet 

measures are preempted. With respect 

to California’s in-use controls for 

construction and other diesel-powered 

equipment, ARTBA believes that 

preemption applies both for equipment 

above and below the 175-horsepower 

threshold and that the proposed 

contingency measures (CTY–03) to ban 

pre-Tier 3 off-road diesel engines on 

‘‘high pollution advisory’’ days is a 

preempted in-use standard— 

particularly for equipment under 175 

horsepower—for the same reasons. 

Because these SIP and contingency 

measures are beyond California’s and 


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69940 Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 

28The notices of opportunity for public hearing 

and comment on the relevant requests for 

authorizations were published at 73 FR 58585 

(October 7, 2008), 73 FR 67509 (November 14, 

2008), and 75 FR 11880 (March 12, 2010) for 

CARB’s in-use nonroad equipment rule; at 76 FR 

38153 (June 29, 2011) for CARB’s in-use 

commercial harbor craft rule; and at 76 FR 38155 

(June 29, 2011) for CARB’s at-berth rule that is 

intended to reduce emissions from auxiliary diesel 

engines on ocean-going marine vessels at-berth in 

California ports. 

SCAQMD’s authority, ARTBA believes 

that CAA section 110(a)(2)(E)(i) 

prohibits EPA’s approving these 

measures as part of the SIP. 

Response: In relevant part, CAA 

section 110(a)(2)(E) requires SIPs to 

provide necessary assurances that the 

State will have adequate authority 

under State law to carry out a SIP and 

is not prohibited by any provision of 

Federal or State law from carrying out 

such SIP. As a general matter, we agree 

that States must provide such 

assurances for SIPs and SIP revisions. In 

the CARB Resolution approving the 

plan, the State of California provided 

the necessary assurances of adequate 

legal authority to implement the South 

Coast PM2.5 Plan. See CARB Resolution 

07–41 (September 27, 2007). 

To the extent that ARTBA challenges 

EPA’s approval of the South Coast PM2.5

Plan based on the plan’s reliance on the 

emission standards and other 

requirements for in-use on-road 

measures, such as CARB’s truck rule 

and drayage truck rule, we expect to 

approve the rules into the SIP prior to 

the effective date of this action, and no 

comments have been received on our 

proposed approval of the rules [76 FR 

40652 (July 11, 2011)] that call into 

question the authority of the State to 

enforce those rules. To the extent that 

ARTBA challenges EPA’s approval of 

the plan based on the plan’s reliance on 

standards and other preempted 

requirements for in-use nonroad 

vehicles, we simply note that EPA 

authorizations under CAA section 

209(e) bestow enforceability on the State 

of California as to the emissions 

standards and other requirements 

covered by the authorizations. We 

anticipate EPA action on CARB’s 

authorization requests for the in-use 

nonroad rules upon which the plan 

relies prior to the effective date of 

today’s action.28 These rules are needed 

to support emissions reduction credit 

for certain State measures, including 

‘‘cleaner in-use off-road equipment 

(> 25 hp),’’ ‘‘ship auxiliary engine cold 

ironing & clean technology,’’ and ‘‘clean 

up existing harbor craft.’’ See table 5 on 

page 41571 of the July 14, 2011 

proposed rule. If the authorizations are 

issued, there will be no prohibition 

under any Federal law that we are aware 

of that would prevent California from 

enforcing the related standards and 

achieving the associated emissions 

reductions relied upon by the plan. If 

EPA denies CARB’s authorization 

requests for the in-use nonroad rules, or 

if no decision is forthcoming, prior to 

the effective date of today’s action, we 

will take appropriate remedial action to 

ensure that our action on the plan is 

fully supportable or to reconsider that 

action. 

With respect to SCAQMD’s SOON 

program, EPA notes that the District 

implements the SOON program through 

its Rule 2449 (‘‘Control of Oxides of 

Nitrogen Emissions from Off-Road 

Diesel Vehicles’’), adopted May 2, 2008. 

SCAQMD Rule 2449 has been submitted 

to EPA for approval into the SIP 

(submittal date July 18, 2008), but EPA 

has not taken any action on that 

submittal, nor is EPA taking action on 

Rule 2449 in connection with today’s 

action on the South Coast PM2.5 Plan. 

We recognize that the South Coast PM2.5

Plan does take emissions reduction 

credit for the SOON program, but EPA 

has not allowed the credit in taking 

action on the plan, and thus the issue 

of the enforceability of the associated 

emissions reductions is not germane to 

our approval of the plan. 

With respect to the contingency 

measure referred to as CTY–03, which 

ARTBA opposes, EPA proposed to 

disapprove the contingency measures, 

including CTY–03, see 76 FR at 41579, 

and is finalizing that proposed 

disapproval in today’s document. 

Comment: ARTBA provides a lengthy 

discussion of the principles of Federal 

preemption in the context of State 

regulation of emissions from mobile 

sources under the Clean Air Act and its 

various amendments over time. In so 

doing, ARTBA identifies a number of 

instances where ARTBA’s interpretation 

of the CAA and relevant case history 

differs from that of EPA and offers a 

number of legal arguments supporting 

its views. 

Response: Except to the extent we 

have discussed above, ARTBA does not 

tie this discussion of preemption to the 

SIP action EPA is taking today, namely, 

final partial approval and partial 

disapproval of the South Coast PM2.5

Plan and related portions of the 2007 

State Strategy. For this reason, and 

because EPA has addressed ARTBA’s 

general comments on preemption 

several times in earlier proceedings, we 

are not addressing those general 

comments here. 

Comment: AAR asserts that CARB’s 

control measure known as ARB–OFRD– 

02 anticipates a 90% NOX and PM 

reduction from the uncontrolled 

baseline and projects a 4.3 tons per day 

(tpd) of NOX emissions reductions in 

the South Coast by 2014. AAR further 

asserts that, as such, ARB–OFRD–02 is 

not consistent with the timeframe and 

emission reductions levels contained in 

EPA’s regulations for achieving 

emissions reductions from locomotive 

engines and locomotive fuel. 

Response: ARB–OFRD–02 is the 

identifier used in the 2007 South Coast 

AQMP to refer to the State measure 

known as ‘‘Accelerated Introduction of 

Cleaner Locomotives.’’ The State’s 

measure anticipates that EPA’s ‘‘tier 4’’ 

locomotive standards, proposed in 2007 

and promulgated in 2008 (73 FR 25098, 

May 6, 2008), would likely not provide 

significant additional emissions 

reductions of NOX and PM from 

locomotives in the time necessary to 

contribute to attainment of the PM2.5

NAAQS in the South Coast given an 

attainment date of 2015. Thus, the 

control measure calls for CARB staff ‘‘to 

work with the railroads to bring the 

cleanest locomotives into California 

service’’ (Revised Draft State Strategy 

(April 26, 2007), page 114). As noted by 

AAR, the 2007 State Strategy estimates 

a reduction of NOX of 4.3 tons per day 

(tpd) in 2014 in the South Coast due to 

this measure. See page 61 of Revised 

Draft State Strategy (April 26, 2007). 

However, the State Strategy indicates 

that such estimates are for informational 

purposes only. CARB has not committed 

to achieving the 4.3 tpd reduction 

specifically from this measure but has 

committed to aggregate emissions 

reductions that would be achieved 

through any combination of measures. 

Since adoption of the 2007 State 

Strategy, CARB staff have been working 

with neighborhood groups, the 

railroads, and other interested 

stakeholders to, among other things, 

develop emissions reduction targets at 

certain rail yards in the South Coast to 

which the railroads would commit 

(referred to as the ‘‘2010 

Commitments’’). See CARB Resolution 

10–29 (June 24, 2010). Final approvals 

of the 2010 Commitments are still being 

negotiated, and there are no plans to 

submit the 2010 Commitments as a part 

of the SIP; thus, our proposed approval 

of the attainment demonstration for 

PM2.5 Plan does not rely on any 

emissions reductions from this control 

measure (see 76 FR 41562, July 14, 

2011, at 41571, Table 5), nor does 

today’s final approval. Therefore, the 

difference in the timing of emissions 

reductions under ARB–OFRD–02 

relative to those expected under EPA’s 

locomotive regulations does not 


jlentini on DSK4TPTVN1PROD with RULES4
Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 69941 

undermine our approval of the South 

Coast PM2.5 Plan. 

F. Comments on Enforceable 

Commitments 

Comment: California Communities 

Against Toxics, Communities for a 

Better Environment, Natural Resources 

Defense Council and Physicians for 

Social Responsibility—Los Angeles 

(commenters) assert that the South 

Coast PM2.5 Plan fails to include 

enforceable control measures that meet 

the requirements of the CAA and that 

EPA cannot rely on ‘‘enforceable 

commitments’’ as a substitute for 

adopted control measures to ‘‘close the 

shortfall in the control strategy.’’ 

Commenters claim that EPA’s action 

‘‘breaks with its long-standing 

interpretation that an attainment SIP 

must include currently adopted 

emissions limitations and other control 

measures’’ that achieve the needed 

emissions reductions. Specifically, 

commenters state that CAA sections 

110(a)(2)(A) and 172(c)(6) require SIPs 

to contain ‘‘enforceable emission 

limitations * * * as may be necessary 

or appropriate’’ to achieve attainment. 

Commenters note that CAA section 

110(k)(4) allows EPA to grant 

‘‘conditional approval’’ of a SIP lacking 

certain statutory elements ‘‘based on a 

commitment of the state to adopt 

specific enforceable measures’’ by a 

certain date, and that this provision 

provides that the conditional approval 

automatically becomes a disapproval if 

the State fails to comply with the 

commitment within one year. 

Commenters state that courts have 

rejected similar attempts to circumvent 

the statute’s limitations on conditional 

approvals and cite Sierra Club v. EPA, 

356 F.3d 296, 298 (DC Cir. 2004) as 

overturning EPA’s conditional approval 

of SIPs based in part on the fact that the 

commitments identified no specific 

measures the state would implement. In 

further support of their assertions that 

EPA may not allow States to submit 

‘‘promises to develop unspecified future 

enforceable measures as a substitute 

for’’ enforceable control measures, the 

commenters reference CAA sections 

107(a), 110(a)(1), 110(a)(2)(A), 

110(a)(2)(C), the nonattainment plan 

requirements of part D, title I of the Act, 

EPA regulations in 40 CFR part 51, and 

EPA’s General Preamble for the 

Implementation of Title I of the Clean 

Air Act Amendments (57 FR 13498, 

13567 (April 16, 1992). 

Response: As pertinent to the 

comment, Sierra Club involved EPA’s 

conditional approval under section 

110(k)(4) of SIPs lacking in their entirety 

RACM and ROP demonstrations and 

contingency measures based on letters 

submitted by states that committed to 

cure these deficiencies. The court 

rejected EPA’s construction of section 

110(k)(4) as contrary to the 

unambiguous statutory language 

requiring the state to commit to adopt 

specific enforceable measures. Sierra 

Club at 302. The court found that EPA’s 

construction turned the section 

110(k)(4) conditional approval into a 

means of circumventing SIP deadlines. 

Id. At 303. 

EPA does not dispute the holding of 

Sierra Club. However that case is not 

germane to EPA’s approval of CARB’s 

and the District’s commitments here 

because the Agency is not approving 

those commitments under section 

110(k)(4). The relevant precedent is 

instead BCCA Appeal Group v. EPA, 

355 F.3d 817 (5th Cir. 2003) (BCCA). 

The facts in BCCA were very similar to 

those presented here. In BCCA, EPA 

approved an enforceable commitment in 

the Houston ozone SIP to adopt and 

implement unspecified NOX controls on 

a fixed schedule to achieve aggregate 

emission reductions. Petitioners 

claimed that EPA lacked authority 

under the CAA to approve a SIP 

containing an enforceable commitment 

to adopt unspecified control measures 

in the future. The court disagreed and 

found that section 110(k)(4) conditional 

approvals do not supplant EPA’s 

practice of fully approving enforceable 

commitments: 

Nothing in the CAA speaks directly to 

enforceable commitments. The CAA does, 

however, provide EPA with great flexibility 

in approving SIPs. A SIP may contain 

‘‘enforceable emission limitations and other 

control measures, means, or techniques 

* * * as well as schedules and timetables for 

compliance, as may be necessary or 

appropriate’’ to meet the CAA’s 

requirements. * * * Thus, according to the 

plain language of the statute, SIPs may 

contain ‘‘means,’’ ‘‘techniques’’ and/or 

‘‘schedules and timetables for compliance’’ 

that the EPA considers ‘‘appropriate’’ for 

attainment so long as they are ‘‘enforceable.’’ 

See id. section 7410(a)(2)(A). ‘‘Schedules and 

timetables’’ is broadly defined as ‘‘a schedule 

of required measures including an 

enforceable sequence of actions or operations 

leading to compliance with an emission 

limitation, prohibition or standard.’’ 42 

U.S.C. section 7602(p). The remaining terms 

are not defined by the Act. Because the 

statute is silent on the issue of whether 

enforceable commitments are appropriate 

means, techniques, or schedules for 

attainment, EPA’s interpretation allowing 

limited use of an enforceable commitment in 

the Houston SIP must be upheld if 

reasonable. 

BCCA at 839–840. The court upheld 

EPA’s approval of the commitment, 

finding that ‘‘EPA reasonably concluded 

that an enforceable commitment to 

adopt additional control measures on a 

fixed schedule was an ‘appropriate’ 

means, technique, or schedule or 

timetable for compliance’’ under 

sections 110(a)(2)(A) and 172(c)(6). Id. 

at 841. Thus the court recognized that 

sections 110(a)(2)(A) and 172(c)(6) 

provide a basis for EPA to approve 

enforceable commitments as distinct 

from the commitments contemplated by 

section 110(k)(4) which are not in fact 

enforceable but instead lead to SIP 

disapproval if not honored. See also 

Environmental Defense v. EPA, 369 F.3d 

193, 209–210 (2nd Cir. 2004) (similarly 

upholding enforceable SIP 

commitments). As a result, contrary to 

commenters’ contention, section 

110(k)(4) is not a bar to EPA’s approval 

of CARB’s and the District’s enforceable 

commitments and that approval under 

section 110(k)(3) is permissible as an 

appropriate means, technique or 

schedule or timetable for compliance 

under sections 110(a)(2)(A) and 

172(c)(6). 

Comment: Commenters state that EPA 

has not determined whether the 

commitments are in fact enforceable. 

Commenters state that courts ‘‘may only 

enforce SIP strategies’’ and that ‘‘[m]ere 

approval of an aspirational goal or nonspecific promise into the SIP does not 

convert that goal or promise into an 

enforceable commitment.’’ In support of 

these assertions, commenters cite 

Bayview Hunters Point Community 

Advocates v. Metropolitan Transp. 

Comm’n, 366 F.3d 692, 701 (9th Cir. 

2004) and Citizens for a Better 

Environment v. Metropolitan Tranp. 

Comm’n, 746 F. Supp. 976, 980 

(N.D.Cal. 1990) [known as CBE II]. In 

addition, commenters single out El 

Comite Para El Bienstar de Earlimart v. 

Warmerdam, 539 F.3d 1062, 1067 (9th 

Cir. 2008), stating that in El Comite the 

court explained that because an 

inventory in a SIP is not a ‘‘standard or 

limitation’’ as defined by the CAA, it 

was not an independently enforceable 

aspect of the SIP. Thus, the commenters 

reason, in order to be enforceable, not 

only must a state’s commitment to adopt 

additional measures to attain emission 

standards be specific and announced in 

plain language, but any data or rubric 

that will be used to determine when and 

how the state will adopt those measures 

must be enforceable. Commenters state 

that the commitments in the South 

Coast SIP are so vague that they cannot 

possibly be enforced against the State 

and that there is no requirement that the 

State take any specific actions. The 

commenters conclude that the 

commitments cannot be considered 


jlentini on DSK4TPTVN1PROD with RULES4
69942 Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 

29EPA can also enforce SIP commitments 

pursuant to CAA section 113. 

30We note that in our proposed rule at 76 FR 

41562, p. 41571 we reference the 2007 State 

Strategy, p. 63 and CARB Resolution 07–28, 

Attachment B. p. 6. Page 63 of the 2007 State 

Strategy was replaced with the information in the 

2009 State Strategy Status Report. 

enforceable under Ninth Circuit case 

law, because they are not strategies 

based on enforceable emissions 

standards or limitations. 

Response: Under CAA section 

110(a)(2)(A), SIPs must include 

enforceable emission limitations and 

other control measures, means or 

techniques necessary to meet the 

requirements of the Act, as well as 

timetables for compliance. Similarly, 

section 172(c)(6) provides that 

nonattainment area SIPs must include 

enforceable emission limitations and 

such other control measures, means or 

techniques ‘‘as may be necessary or 

appropriate to provide for attainment’’ 

of the NAAQS by the applicable 

attainment date. 

Control measures, including 

commitments in SIPs, are enforced 

directly by EPA under CAA section 113 

and also through CAA section 304(a), 

which provides for citizen suits to be 

brought against any person who is 

alleged ‘‘to be in violation of * * * an 

emission standard or limitation. * * *’’ 

‘‘Emission standard or limitation’’ is 

defined in subsection (f) of section 

304.29 As observed in Conservation Law 

Foundation, Inc. v. James Busey et al., 

79 F.3d 1250, 1258 (1st Cir. 1996): 

Courts interpreting citizen suit jurisdiction 

have largely focused on whether the 

particular standard or requirement plaintiffs 

sought to enforce was sufficiently specific. 

Thus, interpreting citizen suit jurisdiction as 

limited to claims ‘‘for violations of specific 

provisions of the act or specific provisions of 

an applicable implementation plan,’’ the 

Second Circuit held that suits can be brought 

to enforce specific measures, strategies, or 

commitments designed to ensure compliance 

with the NAAQS, but not to enforce the 

NAAQS directly. See, e.g., Wilder, 854 F.2d 

at 613–14. Courts have repeatedly applied 

this test as the linchpin of citizen suit 

jurisdiction. See, e.g., Coalition Against 

Columbus Ctr. v. City of New York, 967 F.2d 

764, 769–71 (2d Cir. 1992); Cate v. 

Transcontinental Gas Pipe Line Corp., 904 F. 

Supp. 526, 530–32 (W.D. Va. 1995); Citizens 

for a Better Env’t v. Deukmejian, 731 F. Supp. 

1448, 1454–59 (N.D. Cal.), modified, 746 F. 

Supp. 976 (1990). 

Thus courts have found that the citizen 

suit provision cannot be used to enforce 

the aspirational goal of attaining the 

NAAQS, but can be used to enforce 

specific strategies to achieve that goal 

including enforceable commitments to 

develop future emissions controls. 

We describe CARB’s and the District’s 

commitments in the 2007 State Strategy 

(revised in 2009 and 2011) and the 2007 

AQMP in detail in our proposal and 

amended proposal (75 FR 71294 and 76 

FR 41562). The 2007 State Strategy 

includes commitments to propose 

defined new measures and an 

enforceable commitment for emissions 

reductions sufficient, in combination 

with existing measures and the District’s 

commitments, to attain the PM2.5

NAAQS in the South Coast by April 5, 

2015. For the South Coast, the State’s 

emissions reductions commitments, as 

submitted in 2007 and revised by the 

2009 State Strategy Update were to 

achieve 152 tpd NOX, 46 tpd VOC, 9 tpd 

of direct PM2.5 and 20 tpd SOX in the 

South Coast area by 2014. See 76 FR 

41562, at 41572; 2009 State Strategy 

Status Report, p. 20.30

The SCAQMD’s commitments as 

submitted in 2007 (and revised in 2011) 

were to achieve 10.8 tpd NOX, 10.4 tpd 

VOC, 2.9 tpd direct PM2.5 and 2.9 tpd 

SOX by 2014. See 76 FR 41562, Table 2, 

at 41569; see also 2011 Progress Report, 

Appendix F, Table 1, and SCAQMD 

Board Resolution 11–9, March 4, 2011. 

As discussed above, the 2011 SIP 

revisions revised the State’s total 

emissions reduction commitments to 

129 tpd of NOX, 44 tpd of VOC, 9 tpd 

of PM2.5, and 41 tpd of SOX, which the 

State remains obligated to achieve 

through the adoption of enforceable 

measures by 2014. See TSD, Table F–9; 

see also CARB Resolution 07–28, 

Attachment B at p. 4. 

Thus, CARB’s commitments are 

clearly distinguishable from the 

aspirational goals, i.e., the SIP’s overall 

objectives, identified by the Bayview 

court and cited by the commenter. 

CARB’s commitments here are to adopt 

and implement measures that will 

achieve specific reductions of NOX, 

VOC, direct PM2.5 and SOX emissions by 

2014. These are not mere aspirational 

goals to ultimately achieve the 

standards. Rather, the State and District 

have committed to adopt enforceable 

measures no later than 2014 that will 

achieve these specific amounts of 

emission reductions prior to the 

attainment date of April 5, 2015. All of 

these control measures are subject to 

State and local rulemaking procedures 

and public participation requirements, 

through which EPA and the public may 

track the State/District’s progress in 

achieving the requisite emission 

reductions. EPA and citizens may 

enforce these commitments under CAA 

sections 113 and 304(a), respectively, 

should the State/District fail to adopt 

measures that achieve the requisite 

amounts of emission reductions by the 

beginning of 2014. See 40 CFR 

51.1007(b) (requiring implementation of 

all control measures needed for 

expeditious attainment no later than the 

beginning of the year prior to the 

attainment date). We conclude that 

these enforceable commitments to adopt 

and implement additional control 

measures to achieve aggregate emission 

reductions on a fixed schedule are 

appropriate means, techniques, or 

schedules for compliance under 

sections 110(a)(2)(A) and 172(c)(6) of 

the Act. 

Commenters cite Bayview as support 

for their contention that the plan’s 

commitments are unenforceable 

aspirational goals. Bayview does not, 

however, provide any such support. 

That case involved a provision of the 

1982 Bay Area 1-hour ozone SIP, known 

as TCM 2, which states in pertinent 

part: 

Support post-1983 improvements 

identified in transit operator’s 5-year plans, 

after consultation with the operators adopt 

ridership increase target for 1983–1987. 

EMISSION REDUCTION ESTIMATES: 

These emission reduction estimates are 

predicated on a 15% ridership increase. The 

actual target would be determined after 

consultation with the transit operators. 

Following a table listing these estimates, 

TCM 2 provided that ‘‘[r]idership 

increases would come from productivity 

improvements. * * *’’ 

Ultimately the 15% ridership estimate 

was adopted by the Metropolitan 

Transportation Commission (MTC), the 

implementing agency, as the actual 

target. Plaintiffs subsequently attempted 

to enforce the 15% ridership increase. 

The court found that the 15% ridership 

increase was an unenforceable estimate 

or goal. In reaching that conclusion, the 

court considered multiple factors, 

including the plain language of TCM 2 

(e.g., ‘‘[a]greeing to establish a ridership 

‘target’ is simply not the same as 

promising to attain that target,’’ Bayview 

at 698); the logic of TCM 2, i.e., the 

drafters of TCM 2 were careful not to 

characterize any given increase as an 

obligation because the TCM was 

contingent on a number of factors 

beyond MTC’s control, id. at 699; and 

the fact that TCM 2 was an extension of 

TCM 1 that had as an enforceable 

strategy the improvement of transit 

services, specifically through 

productivity improvements in transit 

operators’ five-year plans, id. at 701. As 

a result of all of these factors, the Ninth 

Circuit found that TCM 2 clearly 

designated the productivity 

improvements as the only enforceable 

strategy. Id. at 703. 

The commitments in the 2007 State 

Strategy (revised in 2009 and 2011) and 


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31 In this passage, the court was referring 

specifically to the stationary source contingency 

measures in the Bay Area plan which contained a 

commitment to adopt such measures if emission 

targets were not met. The Plan identified a number 

of potential stationary sources but did not commit 

to any particular one. In discussing the 

transportation contingency measures, the court 

applied this same reasoning. Id. at 1456–1457. 

South Coast 2007 AQMP are in stark 

contrast to the ridership target that was 

deemed unenforceable in Bayview. The 

language in CARB’s and the District’s 

commitments, as stated multiple times 

in multiple documents, is specific; the 

intent of the commitments is clear; and 

the strategy of adopting measures to 

achieve the required reductions is 

completely within CARB’s and the 

District’s control. Furthermore, as stated 

previously, CARB and the District 

identify specific emission reductions 

that they could achieve, how they could 

be achieved and the time by which 

these reductions will be achieved, i.e., 

by 2014. 

Commenters also cite CBE II at 980 for 

the proposition that courts can only 

enforce ‘‘express’’ or ‘‘specific’’ 

strategies. However, as discussed below, 

there is nothing in the CBE cases that 

supports the commenter’s view that the 

CARB and District commitments are 

neither express nor specific. In fact, 

these cases support our interpretation of 

CARB’s and the District’s commitments. 

Citizens for a Better Environment v. 

Deukmejian, 731 F.Supp.1448 (N.D. Cal. 

1990), known as CBE I, concerned in 

part contingency measures for the 

transportation sector in the 1982 Bay 

Area 1-hour ozone SIP. The provision 

states: ‘‘’’If a determination is made that 

RFP is not being met for the 

transportation sector, MTC will adopt 

additional TCMs within 6 months of the 

determination. These TCMs will be 

designed to bring the region back within 

the RFP line.’’ The court found that 

‘‘[o]n its face, this language is both 

specific and mandatory.’’ Id. at 1458. In 

CBE I, CARB and MTC argued that TCM 

2 could not constitute an enforceable 

strategy because the provision fails to 

specify exactly what TCMs must be 

adopted. The court rejected this 

argument, finding that ‘‘[w]e discern no 

principled basis, consistent with the 

Clean Air Act, for disregarding this 

unequivocal commitment simply 

because the particulars of the 

contingency measures are not provided. 

Thus we hold that that the basic 

commitment to adopt and implement 

additional measures, should the 

identified conditions occur, constitutes 

a specific strategy, fully enforceable in 

a citizens action, although the exact 

contours of those measures are not 

spelled out.’’ Id. at 1457.31 In 

concluding that the transportation and 

stationary source contingency 

provisions were enforceable, the court 

stated: ‘‘Thus, while this Court is not 

empowered to enforce the Plan’s overall 

objectives [footnote omitted; attainment 

of the NAAQS]—or NAAQS—directly, it 

can and indeed, must, enforce specific 

strategies committed to in the Plan.’’ Id. 

at 1454. 

Commenters’ reliance on CBE II is 

misplaced. It also involves in part the 

contingency measures in the 1982 Bay 

Area Plan. In CBE II, defendants argued 

that RFP and the NAAQS are coincident 

because, had the plan’s projections been 

accurate, then achieving RFP would 

have resulted in attainment of the 

NAAQS. The court rejected this 

argument, stating that: 

The Court would be enforcing the 

contingency plan, an express strategy for 

attaining NAAQS. Although enforcement of 

this strategy might possibly result in 

attainment, it is distinct from simply 

ordering that NAAQS be achieved without 

anchoring that order on any specified 

strategy. Plainly, the fact that a specified 

strategy might be successful and lead to 

attainment does not render that strategy 

unenforceable. 

(Emphasis in original). CBE II at 980. 

CARB’s commitments here are 

analogous to the terms of the 

contingency measures in the CBE cases. 

CARB and the District commit to adopt 

measures, which are not specifically 

identified, to achieve a specific tonnage 

of emission reductions. Thus, the 

commitment to a specific tonnage 

reduction is comparable to a 

commitment to achieve RFP. Similarly, 

a commitment to achieve a specific 

amount of emission reductions through 

adoption and implementation of 

unidentified measures is comparable to 

the commitments to adopt unspecified 

TCMs and stationary source measures. 

The key is that a commitment must be 

clear in terms of what is required, e.g., 

a specified amount of emission 

reductions or the achievement of a 

specified amount of progress (i.e., RFP). 

CARB’s and the District’s commitments 

are thus clearly a specific enforceable 

strategy rather than an unenforceable 

aspirational goal. 

Commenter’s reliance on El Comite is 

also misplaced. The plaintiffs in the 

district court attempted to enforce a 

provision of the 1994 California 1-hour 

ozone SIP known as the Pesticide 

Element. The Pesticide Element relied 

on an inventory of pesticide VOC 

emissions to provide the basis to 

determine whether additional regulatory 

measures would be needed to meet the 

SIP’s pesticides emissions target. To this 

end, the Pesticide Element provided 

that ‘‘CARB will develop a baseline 

inventory of estimated 1990 pesticidal 

VOC emissions based on 1991 pesticide 

use data * * *.’’ El Comite Para El 

Bienestar de Earlimart v. Helliker, 416 

F. Supp. 2d 912, 925 (E.D. Cal. 2006). 

CARB subsequently employed a 

different methodology which it deemed 

more accurate to calculate the baseline 

inventory. The plaintiffs sought to 

enforce the commitment to use the 

original methodology, claiming that the 

calculation of the baseline inventory 

constitutes an ‘‘emission standard or 

limitation.’’ The district court disagreed: 

By its own terms, the baseline identifies 

emission sources and then quantifies the 

amount of emissions attributed to those 

sources. As defendants argue, once the 

sources of air pollution are identified, control 

strategies can then be formulated to control 

emissions entering the air from those sources. 

From all the above, I must conclude that the 

baseline is not an emission ‘‘standard’’ or 

‘‘limitation’’ within the meaning of 42 U.S.C. 

section 7604(f)(1)–(4). 

Id. at 928. In its opinion, the court 

distinguished Bayview and CBE I, 

pointing out that in those cases ‘‘the 

measures at issue were designed to 

reduce emissions.’’ Id. 

On appeal, the plaintiffs shifted their 

argument to claim that the baseline 

inventory and the calculation 

methodology were necessary elements 

of the overall enforceable commitment 

to reduce emissions in nonattainment 

areas. The Ninth Circuit agreed with the 

district court’s conclusion that the 

baseline inventory was not an emission 

standard or limitation and rejected 

plaintiffs’ arguments attempting ‘‘to 

transform the baseline inventory into an 

enforceable emission standard or 

limitation by bootstrapping it to the 

commitment to decide to adopt 

regulations, if necessary.’’ Id. at 1073. 

While commenters cite the Ninth 

Circuit’s El Comite opinion, its utility in 

analyzing the CARB and District 

commitments here is limited to that 

court’s agreement with the district 

court’s conclusion that neither the 

baseline nor the methodology qualifies 

as an independently enforceable aspect 

of the SIP. Rather, it is the district 

court’s opinion, in distinguishing the 

commitments in CBE and Bayview, that 

provides insight into the situation at 

issue in our action. As the court 

recognized, a baseline inventory or the 

methodology used to calculate it, is not 

a measure to reduce emissions. It 

instead ‘‘identifies emission sources and 

then quantifies the amount of emissions 

attributed to those sources.’’ In contrast, 


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32See Table 3 of this notice. 

as stated previously, in the 2007 State 

Strategy (revised 2009 and 2011) and 

2007 AQMP, CARB and the District 

commits to adopt and implement 

measures sufficient to achieve specified 

emission reductions by a date certain. 

As described above, a number of courts 

have found commitments substantially 

similar to CARB’s here to be enforceable 

under CAA section 304(a). 

Comment: Commenters state that the 

commitments do not satisfy EPA’s threepart test for enforceable commitments. 

First, commenters state that EPA admits 

that the State and District have no idea 

at all how they will achieve the 

remaining 11% of the NOX, 3% of VOC 

and 8% of PM2.5. Commenters state that 

this is hardly a ‘‘limited’’ or minimal 

portion of the long-overdue reductions 

and cite BCCA Appeal Group v. EPA, 

355 F.3d 817, 840–41 (5th Cir. 2003) 

(commitments for only six percent of 

the overall reductions). Commenters 

state it is arbitrary and capricious for 

EPA to conclude that 11% is 

approximately within the 10% range 

that EPA has historically accepted in 

approving attainment demonstrations. 

Commenters believe EPA’s strategy 

trivializes the task of achieving 70 tpd 

of reductions over the next 3 years and 

believes it is even more arbitrary given 

the importance of NOX reductions for 

attainment. 

Response: We disagree with the 

commenters’ assertion that CARB and 

the District do not know how they will 

achieve the remaining NOX, VOC, and 

PM2.5 reductions needed for attainment 

in the South Coast. As discussed in our 

amended proposal, the South Coast 

2007 AQMD relies principally on 

adopted rules approved into the SIP or 

given a waiver under CAA section 209 

to achieve the emissions reductions 

needed to attain the 1997 PM2.5

standards in the South Coast by April 5, 

2015, including baseline (pre-2007) 

measures that continue to achieve 

emission reductions through 2014. 76 

FR at 41576. The balance of the needed 

reductions is currently in the form of 

enforceable commitments that account 

for 11% of the NOX, 7% of the VOC and 

8% of the PM2.5 emission reductions 

needed from 2002 levels to attain.32See 

id. These SIP-approved or CAA-waived 

control measures and enforceable 

commitments satisfy the requirement in 

CAA section 110(a)(2)(A) to include 

‘‘enforceable emission limitations and 

other control measures, means or 

techniques * * * as well as schedules 

and timetables for compliance, as may 

be necessary or appropriate to meet the 

applicable requirements’’ of the CAA. 

See id. at n. 31. Although CARB’s and 

the District’s enforceable commitments 

to additional emission reductions are 

expressed in aggregate tonnages and not 

tied to specific measures, both CARB 

and the District have provided a list of 

potential measures that may achieve the 

additional reductions needed to attain 

the standards, together with expeditious 

rule development, adoption, and 

implementation schedules. See id. at 

41576, 41577. 

We also disagree with the 

commenters’ assertions that these 

remaining amounts are not ‘‘limited’’ 

and that it is arbitrary and capricious for 

EPA to conclude that 11% is 

approximately within the 10% range 

that EPA has historically accepted as 

appropriate for enforceable 

commitments in approving attainment 

demonstrations. The State of Texas’ 

enforceable commitment for the 

Houston/Galveston area, the approval of 

which was upheld by the Fifth Circuit 

Court of Appeals in BCCA, represented 

6 percent of the reductions needed for 

attainment in the area. We note that the 

court in BCCA did not conclude that 

any amount greater than 6 percent of the 

reductions needed would be 

unreasonable. We believe that the 11% 

of NOX, 7% of VOC and 8% of PM2.5

reductions, as stated in our amended 

proposal, also fit within the parameters 

of a ‘‘limited’’ amount of the reductions 

needed for attainment and nothing in 

the BCCA decision contravenes that. See 

also 76 FR 41562 at 41576, n. 34. 

Finally, we disagree with the 

commenters’ assertion that EPA’s 

strategy ‘‘trivializes’’ the task of 

achieving 70 tpd of NOX reductions over 

the next three years. As explained in our 

amended proposal, CARB has adopted 

and submitted a 2009 State Strategy 

Status Report and a 2011 Progress 

Report, which update and revise the 

2007 State Strategy. These reports show 

that CARB has made significant progress 

in meeting its enforceable commitments 

for the South Coast and several other 

nonattainment areas in California. 

Additional ongoing programs that 

address locomotives, recreational boats, 

and other measures have yet to be 

quantified but are expected to reduce 

NOX and direct PM2.5 emissions in the 

South Coast by 2014. See 2011 Progress 

Report, Appendix E, page 2. The District 

has already exceeded its commitment 

for reducing VOC and SOX emissions 

and is working to meet the commitment 

to reduce NOX and directly-emitted 

PM2.5. See Tables 2 and 3. The District 

is also continuing to work to identify 

and adopt additional measures that will 

reduce emissions. Beyond the rules 

discussed above, both CARB and the 

District have well-funded incentive 

grant programs to reduce emissions 

from the on- and offroad engine fleets. 

Reductions from several of these 

programs have yet to be quantified and/ 

or credited in the attainment 

demonstration. Finally, we note that the 

South Coast has experienced significant 

improvements in its PM2.5 air quality in 

the past few years. 

Given the evidence of the State’s and 

District’s efforts to date and their 

continuing efforts to reduce emissions, 

we conclude that the State and District 

are capable of meeting their enforceable 

commitments to achieve the necessary 

reductions needed to attain the 1997 

PM2.5 standards in the South Coast 

nonattainment area by April 5, 2015. 

Comment: For the second factor, 

commenters state that the State has not 

shown that they are capable of 

achieving its reductions because they 

have done little more than assert that 

they are committed to meeting the 

requirements of federal law—but have 

not included any indication of how they 

will meet the requirements. 

Commenters assert that given the slow 

progress to date, it seems unlikely that 

the reductions of the magnitude 

remaining—70.5 tpd NOX, 11 tpd VOC 

and 1.3 tpd PM2.5—can be achieved 

without a plan more focused and robust 

than the vague commitment to somehow 

get the needed reductions. 

Response: We disagree. As explained 

in our amended proposal, the State’s 

and District’s efforts to date and their 

continuing efforts to reduce emissions 

(discussed above and in our proposed 

rule), indicate they are capable of 

meeting their specific enforceable 

commitments to achieve the necessary 

reductions by 2014. 76 FR 41562 at 

41568–41572 and 41575–41577 and July 

2011 TSD at Sections II.D and II.F. 

Comment: Finally, for the third factor, 

commenters state that it is unclear with 

the changing landscape of many of the 

measures whether any of these 

commitments will take place within a 

reasonable and appropriate period of 

time. Commenters state that EPA fails to 

explain how in the context of an 

approval in late 2011, the state and air 

district will be able to complete even 

the requisite rulemaking process, much 

less actually achieve the reductions 

required by 2014. 

Response: Commenters assume that 

the only path open to the State to fulfill 

its commitments is the adoption of new 

measures. We disagree. The list of 

measures provided by CARB in the 2011 

Progress Report, Appendix B, Table B– 

1. represents a fraction of the rules and 

programs adopted and implemented by 

the State. See TSD Appendix A. CARB 


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has not provided, nor has it been 

required to provide, an evaluation of the 

effectiveness of its entire control 

program in reducing emissions in the 

South Coast area. Given that the State 

has preliminarily demonstrated, based 

on a limited set of measures, that all of 

the needed SOX reductions, and 

approximately 90 percent or more of the 

reductions of NOX, VOC, and PM2.5

reductions needed for attainment of the 

1997 PM2.5 standards in the South Coast 

have already been achieved, we believe 

it is reasonable to conclude that the 

balance of the needed reductions will 

also be achieved by 2014. See 76 FR 

41562, p. 41575, Table 7 and September 

2011 TSD, Table F–10. 

Comment: Commenters assert that 

although EPA has previously allowed 

conditional approval of SIPs based on 

‘‘commitments to complete the adoption 

of specific enforceable measures within 

a short period of time,’’ EPA has never 

before allowed a five-year extension of 

the statutory deadline for the 

submission of control measures yet to be 

specified by the State. 

Response: EPA is not granting a fiveyear extension under section 110(k)(4) 

of the CAA. Rather, EPA is granting 

California’s request for an attainment 

date extension to April 5, 2015 under 

CAA section 172(a)(2)(A). We are 

granting this extension of the attainment 

date for the reasons discussed in our 

amended proposal. 76 FR 41562 at 

41577. 

Comment: NRDC asserts that EPA is 

allowing the South Coast to ‘‘adjust’’ the 

2014 baseline emissions inventory to 

account for California’s recent 

slowdown in economic growth. NRDC 

states that the Act requires that 

improvements in air quality are the 

result of permanent and enforceable 

reductions in emissions. 

Response: The commenters correctly 

note that the 2014 baseline emissions 

inventory in the South Coast 2007 

AQMP have been adjusted to account 

for California’s recent slowdown in 

economic growth. As explained in 

Section II.B (Emission Inventory) of the 

TSD, however, CARB’s revisions to the 

2014 baseline inventory took into 

account not only updates to the State’s 

economic forecasts but also a variety of 

other factors (out-of-state VMT 

estimates, cumulative mileage, 

equipment populations, load factors, 

and hours of use, etc.) used to calculate 

emissions from trucks, buses, and 

certain off-road equipment categories. 

See 2011 Progress Report, Appendix E. 

The commenters’ assertion that the 

CAA requires improvements in air 

quality to result from permanent and 

enforceable emissions reductions 

appears to be based on an incorrect 

understanding of the statutory basis for 

EPA’s action. EPA is not determining 

that emission ‘‘reductions’’ related to 

the economic recession are 

‘‘enforceable’’ measures under CAA 

sections 110(a)(2)(A) and 172(c)(6). 

Section 110(a)(2)(A) of the CAA requires 

that each implementation plan 

submitted by a State include 

‘‘enforceable emission limitations and 

other control measures, means, or 

techniques * * * as well as schedules 

and timetables for compliance, as may 

be necessary or appropriate to meet the 

applicable requirements of [the CAA].’’ 

Section 172(c)(6) contains substantively 

identical requirements for all 

nonattainment area plans. Baseline 

emissions inventories, however, are not 

‘‘enforceable emission limitations and 

other control measures, means, or 

techniques’’ or ‘‘schedules and 

timetables for compliance’’ that are 

necessary or appropriate to meet CAA 

requirements. See El Comite Para El 

Bienestar de Earlimart v. Warmerdam, 

539 F.3d 1062 (9th Cir. 2008) 

(concluding that a baseline inventory is 

not an enforceable ‘‘standard or 

limitation’’ as defined by the CAA and 

is not, therefore, an independently 

enforceable aspect[] of the SIP’’). Rather, 

base year and baseline emissions 

inventories provide the basis for, among 

other things, the State’s development of 

progress milestones and control 

strategies for attaining the NAAQS 

consistent with the requirements of 

CAA sections 172(c)(1) and 172(c)(2). 

See General Preamble at 13503–13510 

(discussing planning inventory 

requirements for ozone nonattainment 

areas). In short, emissions inventories 

provide estimates of current and future 

emissions that, in turn, provide the 

starting point for the State’s attainment 

demonstration and enforceable control 

strategy. 

Nothing in the CAA precludes a State 

from revising a submitted plan to take 

into account revised emissions 

estimates and growth projections. All 

projections of future emissionsgenerating activity, including the 

projections in the South Coast 2007 

AQMP as originally submitted, are 

based on projections of population, 

employment and other growth factors, 

all of which can increase or decrease as 

economic conditions change. However, 

reliance on projections from reputable 

sources of economic behavior based on 

established methods of predicting such 

behavior is the historic practice for 

development of emissions inventories. 

CARB’s revised projections of future 

emissions-generating activity are based 

on reputable sources, represent the most 

current understanding of expected 

economic conditions through at least 

2014, and were subject to extensive 

public review and comment before 

CARB adopted its 2011 SIP revisions 

containing these updated projections. 

Given the magnitude of the economic 

recession’s impact on emissionsgenerating activity in the South Coast 

and other parts of California, and the 

resulting impact on the State’s 

assessment of the control strategy 

necessary to demonstrate attainment of 

the 1997 PM2.5 standards, we conclude 

that it is appropriate to take these 

updated emissions projections into 

account as part of our action on the 

South Coast 2007 AQMP and 2007 State 

Strategy. Other than asserting generally 

that CARB and EPA should not rely on 

the revised economic data to determine 

the reductions needed for attainment 

and that future conditions may change, 

the commenters provides no 

information to undermine the State’s 

revised economic data or the related 

changes to the projected inventories. 

For these reasons and as explained in 

our amended proposal (76 FR 41562, at 

41567), we are concluding that CARB’s 

2011 SIP revisions, which updated the 

State’s projected (‘‘baseline’’) emissions 

inventories based on improved 

methodologies for estimating emissions 

and more recent growth factors, reduced 

the total amount of emission reductions 

needed for attainment and that the 

control strategy in the South Coast 2007 

AQMP and 2007 State Strategy, as 

revised in 2011, demonstrates 

expeditious attainment of the 1997 

PM2.5 NAAQS in the South Coast. 

G. Comments on Attainment 

Demonstration and Modeling 

Comment: NRDC comments that the 

attainment demonstration cannot be 

approved because of changes in the 

inventory. NRDC states that EPA’s new 

proposal to approve the air quality 

modeling in the 2007 PM2.5 Plan based 

on the supplemental documentation 

provided by CARB does not address the 

fundamental problem with the 

modeling, which is that the modeling 

fails to provide an accurate picture of 

whether the region will attain. EPA even 

admits that ‘‘Ideally, new attainment 

demonstration modeling would be 

performed to evaluate the effect of [the 

diesel rule updates] * * *’’ 76 FR at 

41,573. However, the Clean Air Act does 

not allow EPA to approve inventories it 

knows to be erroneous because new 

modeling would be too hard. EPA must 

analyze how these errors in the base 

year inventory actually affect the 

attainment demonstration. EPA attempts 


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33 ‘‘Guidance on the Use of Models and Other 

Analyses for Demonstrating Attainment of Air 

Quality Goals for Ozone, PM2.5, and Regional 

Haze,’’ prepared by EPA’s Office of Air Quality 

Planning and Standards, at 15 (April 2007). 

34 71 FR 61236 (October 17, 2006). 

to do this by looking at sensitivity 

modeling submitted by CARB, which 

was meant to determine the ‘‘relative 

effectiveness’’ on design values of 

additional reductions of NOX and PM2.5

emissions in the attainment year. EPA 

claims that the results of this sensitivity 

modeling support its conclusion that 

new attainment demonstration 

modeling would be unnecessary. The 

obvious flaw in EPA’s reasoning is that 

it is calculating attainment year design 

value changes, to the hundredth of a 

percent, from attainment year design 

values that it has already admitted are 

erroneous. EPA cannot justify its failure 

to require updated attainment modeling 

by back-calculating from the wrong 

2014 design values to claim that the 

changes to the inventory would be too 

small to affect the design values. 

Accordingly, this approach is arbitrary 

and capricious. 

Response: While some large emission 

inventory changes might indeed 

necessitate new modeling, EPA does not 

agree that the inventory changes were 

large enough to substantially affect the 

modeling conclusions, or to invalidate 

the attainment demonstration. Ideally 

new modeling would be performed 

when an area’s emission inventory is 

changed. However, since the cost in 

time and resources of remodeling and 

consequent reworking of a Plan is not 

trivial, administrative necessity requires 

a judgement call about when changes 

are large enough to merit new modeling. 

An important criterion in making this 

judgement is whether the changes 

would affect the conclusion that the 

Plan’s emission reductions are adequate 

for attaining the NAAQS. Another 

consideration is the uncertainty 

inherent in modeling; although model 

results may be reported to several 

decimal places, model performance 

goals for fractional bias are typically in 

the range of 30%. (EPA Guidance 

Appendix B) Small changes in the 

emission inventory are likely to have a 

small impact on future year design 

values. This is not to discount the 

importance of an accurate emission 

inventory, but rather to make the point 

that relatively small changes in 

inventory estimates do not necessarily 

invalidate a model application. EPA 

believes that the base year emission 

decreases due to the inventory updates 

are small enough to leave the overall 

modeling conclusions unchanged. This 

is a quantitative showing that the 

emission updates are small enough that 

they do not invalidate the attainment 

demonstration. 

EPA does not agree with NRDC that 

starting from the Plan’s modeled design 

values, and ending with small design 

value changes, constitute flaws in the 

procedure for estimating the effect of the 

baseline inventory revisions. EPA 

believes that results derived from model 

sensitivity tests are a reasonable 

approximation to what would result 

from new modeling with the updated 

inventory. EPA’s procedure based on 

model sensitivity does make a number 

of assumptions: however, the original 

modeling is basically sound in how it 

portrays South Coast Air Basin’s 

atmospheric chemistry and transport. 

The emission changes are small enough 

that the model response is linear, model 

sensitivity is similar in the starting and 

ending years, and the spatial and 

temporal distribution of emissions is 

little changed with the inventory 

update. EPA believes that these 

assumptions hold well enough that the 

procedure provides strong evidence for 

the attainment demonstration’s validity. 

For regulatory purposes, 

administrative necessity requires a 

judgement call about whether such 

problems are substantial enough to 

compromise regulatory decisions. Years 

of effort by modeling experts from 

regulatory agencies and academia went 

into developing the SC modeling; it 

underwent successful diagnostic testing; 

and it performs well. EPA believes that 

it should not be discarded, and that it 

continues to constitute an adequate 

basis for the attainment demonstration. 

As for the small magnitude of the 

design value changes resulting from the 

procedure, EPA does not believe this is 

a substantive issue. Any procedure 

(even new modeling) that starts with 

small emission changes will necessarily 

result in small design value changes: 

within a small range, over which the 

chemistry does not shift fundamentally, 

ambient concentrations are 

approximately proportional to 

emissions. This is not a case of an 

overly precise tiny number being added 

to a large erroneous random number, 

but rather of an adjustment ratio applied 

to a number with a lot of solid work 

behind it. The emission inventory 

update, involving small NOX changes, 

would also yield relatively small design 

value changes. Of course, this assumes 

the basic soundness of the original 

modeling, as discussed above. 

Comment: NRDC comments that EPA 

should not approve the attainment 

demonstration because it fails to 

identify and address elevated PM2.5

concentrations in the near-highway 

environment. In addition, NRDC asserts 

that SCAQMD’s monitoring network is 

deficient because none of the 

monitoring stations are within 300 

meters of a major freeway. 

Response: The PM2.5 Implementation 

Rule requires that states prepare 

attainment demonstrations through 

modeling that is ‘‘consistent with EPA’s 

modeling guidance,’’ and the modeling 

guidance explains that future air quality 

should be estimated at current 

monitoring sites. 72 FR 20586 (April 25, 

2007); SCAQMD followed EPA’s 

modeling guidance in developing its air 

quality modeling and attainment 

demonstration.33

With respect to SCAQMD’s 

monitoring network, EPA has approved 

previous Annual Monitoring Network 

Plans (2007–2010) submitted by the 

District and determined that the PM2.5

network covered under the Annual 

Monitoring Network Plan meets 

regulatory requirements. EPA’s 

monitoring rules do not require 

placement of PM2.5 monitors in micro or 

middle scale locations.34 The 

requirements for the Annual Monitoring 

Network Plan are found in 40 CFR 

58.10. 

H. Comments on the Reasonable Further 

Progress Demonstration 

Comment: CBE commented that the 

RFP demonstration is unapprovable due 

to shortfalls in SO2 in 2009 and in NOX

and PM2.5 in 2012. 

Response: Under the PM2.5

implementation rule, an RFP plan must 

demonstrate that in each applicable 

milestone year, emissions will be at a 

level consistent with generally linear 

progress in reducing emissions between 

the base year and the attainment year. 

See 40 CFR 51.1009(d). The goal of the 

RFP requirements is for areas to achieve 

generally linear progress toward 

attainment. The RFP requirements were 

included in the Clean Air Act to assure 

steady progress toward attaining air 

quality standards, as opposed to 

deferring implementation of all 

measures until the end date by which 

the standard is to be attained. 75 FR 

20586, at 20633. 

As we noted in our July 14, 2011 

proposed rulemaking, although the 

South Coast experienced a shortfall of 9 

tpd for SOX in 2009, this shortfall is 

made up by the reductions estimated for 

2012, and the area meets its 2012 SOX

milestone. We note that the shortfall in 

2012 for NOX is less than 1% of the 

2002 baseline inventory, and the 

shortfall in PM2.5 reductions in 2012 is 

also about 1% of the 2002 baseline 

inventory, while 2012 SOX reduction 


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milestones are met and 2012 VOC 

reduction milestones are exceeded by 20 

tpd. (TSD, p. 116) In addition, we noted 

that we were not evaluating the 

provisions of the updated South Coast 

2007 AQMP that address contingency 

measures for failure to meet the 2009 

RFP benchmarks. Information available 

to EPA and the public shows that the 

South Coast met its 2009 RFP 

benchmarks for 2009 for directly 

emitted PM2.5, NOX, and VOC. SOX

emissions are higher than the linear 

benchmark but achieve the benchmark 

levels in 2012 due to recently adopted 

rules controlling emissions of SOX. See 

2011 Progress Report, Table C–2 and 

section II.H of the TSD. Therefore, 

contingency measures for failure to meet 

the 2009 RFP benchmark no longer have 

meaning or effect under the CAA and 

therefore do not require any review or 

action by EPA. 

In addition, as noted above, the 

purpose of RFP contingency measures is 

to provide continued progress while the 

SIP is being revised to meet a missed 

RFP milestone. Failure to meet the 2009 

benchmark would have required 

California to revise the South Coast 

2007 AQMP to assure that the next 

milestone was met and that the plan 

still provided for attainment. California 

has, in fact, prepared and submitted a 

revision to the South Coast 2007 AQMP 

that provides for RFP in 2012 and for 

attainment by 2015. (TSD, p. 122) For 

all of these reasons we conclude that the 

South Coast 2007 AQMP provides for 

generally linear progress towards 

attainment, consistent with the 

requirements of CAA section 172(c)(2) 

and 40 CFR 51.1009. The State has also 

submitted a SIP revision to address the 

missed 2009 SOX milestone which 

assures that the 2012 SOX milestone 

will be met (the 2011 Progress Report). 

I. Comments on Contingency Measures 

Comment: In their January 20, 2011 

comment letter, the SCAQMD agrees 

that the SIP must contain contingency 

measures that should be implemented if 

the area fails to meet the NAAQS by the 

applicable attainment date. However, 

the District argues that the requirement 

for these measures to be fully adopted 

in rule form at time of plan submittal is 

unrealistic. 

Response: EPA understands that for 

some areas the CAA requirement for 

contingency measures is difficult; 

however, the Act is clear on these 

requirements. Under CAA section 

172(c)(9), all PM2.5 attainment plans 

must include specific contingency 

measures to be implemented if an area 

fails to meet RFP (RFP contingency 

measures) and contingency measures to 

be implemented if an area fails to attain 

the PM2.5 NAAQS by the applicable 

attainment date (attainment contingency 

measures). These contingency measures 

must be fully adopted rules or control 

measures that are ready to be 

implemented quickly without 

significant additional action by the 

State. 40 CFR 51.1012 (‘‘contingency 

measures must take effect without 

significant further action by the State or 

EPA’’); see also 57 FR 13498, at 13510– 

11. They must also be measures not 

relied on in the plan to demonstrate RFP 

or attainment and should provide SIPcreditable emissions reductions 

equivalent to one year of RFP. Finally, 

the SIP should contain trigger 

mechanisms for the contingency 

measures and specify a schedule for 

their implementation. 72 FR 20586, p. 

20642. We noted that the purpose of 

RFP contingency measures is to provide 

continued progress while the SIP is 

being revised to meet a missed RFP 

milestone. See 76 FR 41562, at 41580. 

This timely continued progress would 

not be possible if significant additional 

rulemaking action needed to be taken at 

the District or State level before a 

measure could be fully adopted and 

implemented. For the reasons provided 

in both of our proposals, we are 

disapproving the proposed contingency 

measures in the South Coast 2007 

AQMP, which include measures that are 

not yet fully adopted, because they do 

not meet the requirements for 

contingency measures in CAA section 

172(c)(9) and 40 CFR 51.1012. See 76 FR 

41562, at 41580. 

Comment: In its August 12, 2011 

comment letter, the SCAQMD 

recognizes that the SIP must contain 

contingency measures that should be 

implemented if the area fails to meet the 

NAAQS by the applicable attainment 

date; however, they again state that they 

believe the requirement to have such 

measures adopted at the time of plan 

submittal is unrealistic. They point out 

that under the California Clean Air Act, 

the SCAQMD is required to evaluate all 

feasible measures in SIP development to 

achieve the maximum emissions 

reductions possible. Therefore, they 

believe it is unreasonable to expect that 

there are additional rules that would 

achieve one year’s worth of RFP 

reductions beyond what is already 

adopted. Nevertheless, the SCAQMD 

outlines a three pronged approach to 

demonstrate that sufficient emissions 

reductions can be identified to meet the 

requirement for 1-year’s worth of RFP 

reductions for contingency measures. 

The three prongs are (1) PM2.5 air 

quality improvements have significantly 

exceeded the RFP milestone targets by 

more than one year’s worth of 

reductions, (2) relying on continued 

emissions reductions beyond 2014 

based on adopted regulations for the 

2007 ozone plan, and (3) quantifying 

excess emissions reductions that were 

not originally included in the 2007 

PM2.5 SIP. The District provides 

additional detailed information for each 

of these prongs in an attachment to their 

comments. 

Response: EPA understands the 

unique air quality challenges in the 

South Coast area and appreciates the 

District’s efforts to identify additional 

measures that may serve as contingency 

measures for purposes of the 1997 PM2.5

NAAQS. We note, however, that 

contingency measures should consist of 

available control measures beyond those 

required to attain the standards, and 

may go beyond those measures 

considered to be RACM for the area. See 

72 FR 20586 at 20643. We commit to 

work with the State and District to 

identify new or existing control 

measures and programs not currently 

included in the South Coast 2007 

AQMP that may satisfy the CAA section 

172(c)(9) requirements for contingency 

measures for purposes of the 1997 PM2.5

NAAQS. 

Comment: In both their January 21, 

2011 and August 15, 2011 comment 

letters, NRDC supports our proposed 

disapproval of the contingency 

measures. NRDC raises two issues 

related to the contingency measures. 

First, it asserts that the contingency 

measures lack enforceability. Second, 

they note that the District does not 

describe the criteria regarding how the 

monies in the proposed ozone 

nonattainment fee contingency measure 

will be spent, and does not provide 

mechanisms for ensuring that emissions 

reductions are enforceable. (We address 

NRDC’s third comment about 

contingency measures in relation to 

RACM in our responses to RACM 

comments above). 

Response: In both our 2010 proposal 

and our 2011 amended proposal, we 

proposed to disapprove the Plan’s 

contingency measure provisions and we 

are disapproving those provisions in 

today’s action. See 75 FR 71294, 71311– 

71312 and 76 FR 41562, 41580. In 

particular, we stated the following: The 

South Coast 2007 AQMP includes 

suggestions for several measures that do 

not meet the CAA’s minimum 

requirements (e.g., no additional 

rulemaking, surplus to attainment and 

RFP needs). The AQMP, however, 

indicates that the measures proposed by 

the District are not adopted, and does 

not quantify the expected emissions 


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reductions in order to gauge whether 

they provide reductions equivalent to 

one year’s worth of RFP. For the reasons 

stated above, we are disapproving the 

District’s contingency measure 

provisions in the South Coast 2007 

AQMP for PM2.5. 76 FR 41562, at 415780 

(July 14, 2011). 

Regarding NRDC’s second point, we 

agree that for CTY–02, ‘‘Clean Air Act 

Emission Fees for Major Stationary 

Sources,’’ the District does not describe 

how the monies for the CAA 

nonattainment fees will be spent, nor 

does it provide mechanisms for 

ensuring that emissions reductions are 

enforceable. These are among the 

reasons that we provided for 

disapproving this contingency measure 

in both our November 2010 and July 

2011 proposed rulemakings. We also 

noted that the 2007 AQMP does not 

identify the quantity of emissions 

reductions that the District intended to 

use to meet the contingency measure 

requirement and therefore, we are 

unable to determine if the proposed 

measures are SIP creditable or sufficient 

to provide in combination with other 

measures the roughly one-year’s worth 

of RFP needed. For these reasons, we 

determined that the measures submitted 

did not currently meet the CAA 

requirements for contingency measures. 

III. Approval Status of the Control 

Strategy Measures and Enforceable 

Emissions Reductions Commitments 

A. Approval Status of Control Strategy 

Measures 

We describe CARB’s and the District’s 

commitments in the 2007 State Strategy 

(as revised in 2009 and 2011) and the 

South Coast 2007 AQMP in detail in our 

amended proposal. See 76 FR 41562, at 

41575–41577. As part of its control 

strategy for attaining the PM2.5 standards 

in the South Coast, the District made 

specific commitments to adopt or revise 

nineteen measures for SIP credit on the 

schedule identified in the revised 2007 

AQMP. See 2011 Progress Report, 

Appendix F, Tables 2 through 5. The 

District has now completed its adoption 

actions and EPA has approved most of 

the adopted rules. See Table 1 below. 

The rules we have not yet approved we 

have not credited with emissions 

reductions in the attainment 

demonstration. 

TABLE 1—APPROVAL AND SUBMITTAL STATUS OF DISTRICT RULES IN THE SOUTH COAST 2007 AQMP 

District rule Adoption date Current SIP approval status 

Rule 445—Woodburning fireplaces and wood 

stoves.

03/07/08 ........................................................... 74 FR 27716, 6/11/09. 

Rule 461—Gasoline transfer and dispensing .... 03/07/08 ........................................................... 71 FR 18216, 4/11/06. 

Rule 1110.2—Liquid and gaseous fuels—stationary ICEs.02/01/08 ........................................................... 74 FR 18995, 4/27/09. 

Rule 1111—Further NOX reductions from 

space heaters.

11/06/09 ........................................................... 75 FR 46845, 08/04/10. 

Rule 1127—Livestock Waste ............................. 08/06/04 ........................................................... Under EPA review. 

Rule 1138—Restaurant Operations ................... 2012 ................................................................. Most recent approval: 66 FR 36170, 7/11/01. 

Rule 1143—Consumer Paint Thinners and 

Multi-Purpose Solvents.

12/03/10 ........................................................... Proposed for approval 76 FR 41744, 07/15/ 

11. 

Rule 1144—Vanishing oils and rust inhibitors ... 07/09/10 ........................................................... Proposed for approval 76 FR 41744, 07/15/ 

11. 

Rule 1145—Plastic, Rubber, Leather and Glass 

Coatings.

12/3/04 ............................................................. 75 FR 40726, 07/14/10. 

Rule 1146—NOX from industrial, institutional, 

commercial boilers, steam gens, and process 

heaters.

09/05/08 ........................................................... Proposed limited approval/limited disapproval 

76 FR 40303, 7/8/11. 

Rule 1146.1—NOX from small industrial, institutional, commercial boilers, steam gens, and 

process heaters.

09/05/08 ........................................................... Proposed limited approval/limited disapproval 

76 FR 40303, 7/8/11. 

Rule 1147—NOX reductions from miscellaneous sources.12/05/08 ........................................................... 75 FR 46845, 08/04/10. 

Rule 1149—Storage Tank and Pipeline Cleaning and Degassing.05/02/08 ........................................................... 74 FR 67821, 12/21/09. 

Rule 2002—Further SOX reductions from RECLAIM.11/4/10 ............................................................. 76 FR 50128, 8/12/11. 

Rule 2301—Indirect Source Review .................. 2012 .................................................................

Refinery Pilot Program ....................................... Not yet adopted ................................................ N/A. 

SOON program .................................................. Submitted ......................................................... Not yet acted on. 

AB923 Light and medium duty vehicle high 

emitter program.

No rules associated with these measures ....... N/A. 

AB923 Light and medium duty vehicle high 

emitter program.

No rules associated with these measures ....... N/A. 

As part of its control strategy for 

attaining the PM2.5 standards in the 

South Coast, CARB committed to 

propose certain measures on the 

schedule identified in the 2007 State 

Strategy. These commitments, which 

were updated in the 2011 Progress 

Report, and their current approval 

status, are shown in Table 2. 


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35California Assembly Bill 2289, passed in 2010, 

requires the Bureau of Automotive Repair to direct 

older vehicles to high performing auto technicians 

and test stations for inspection and certification 

effective 2013. Reductions shown for the 

SmogCheck program in the 2011 Progress Report do 

not include reductions from AB 2289 

improvements. See CARB Progress Report 

Supplement, Attachment 5. 

36The Truck Rule and Drayage Truck Rules were 

included in a SIP submittal dated September 21, 

2011, and the OGV Rule was included in a SIP 

submittal also dated September 21, 2011. We have 

placed both of these SIP submittals in the docket 

for this rulemaking. 

37See letters from James N. Goldstene, Executive 

Officer, CARB, to Jared Blumenfeld, Regional 

Administrator, EPA Region IX, dated September 21, 

2011, submitting the Truck and Drayage Truck rules 

SIP revision and the OGV Rule SIP revision to EPA. 

CARB indicates that the Drayage Truck Rule will be 

submitted to OAL no later than September 23, 2011, 

and the Truck Rule will be submitted to OAL no 

Continued 

TABLE 2—REVISED 2007 STATE STRATEGY DEFINED MEASURES SCHEDULE FOR CONSIDERATION AND CURRENT STATUS

State measures Expected action year Implementation date Current status 

Defined Measures in 2007 State Strategy 

Smog Check Improvements ............................. 2007–2009 ................ 2008–2010; 2013 ...... Elements approved 75 FR 38023 (July 1, 

2010).35

Expanded Vehicle Retirement (AB 118) .......... 2007 .......................... 2009 .......................... Adopted by CARB, June 2009; by BAR, September 2010. 

Modifications to Reformulated Gasoline Program.2007 .......................... 2010 .......................... Approved 75 FR 26653 (May 12, 2010). 

Cleaner In-use Heavy Duty Trucks .................. 2007, 2008, 2010 ...... 2011–2015 ................ Proposed approval 76 FR 40562, July 11, 

2011. 

Auxiliary Ship Cold Ironing and Other Clean 

Technologies.

2007–2008 ................ 2010 .......................... Adopted December, 2007. 

Cleaner Main Ship Engines and Fuels ............. Fuel: 2008–2011 .......

Engines: 2008 ...........

Fuel: 2009–2–15 .......

Engines: 2011 ...........

Proposed approval 76 FR 40562, July 11, 

2011. 

Port Truck Modernization ................................. 2007, 2008, 2010 ...... 2008–2020 ................ Adopted December 2007 and December 

2008. 

Accelerated Introduction of Cleaner Locomotives.2008 .......................... 2012 .......................... Prop 1B funds awarded to upgrade line-haul 

locomotive engines not already accounted 

for by enforceable agreements with the railroads. Those cleaner line-hauls will begin 

operation by 2012. 

Clean Up Existing Harbor Craft ........................ 2007, 2010 ................ 2009–2018 ................ Adopted November 2007, revised June 2010. 

Cleaner In-Use Off-Road Equipment ............... 2007, 2010 ................ 2009 .......................... Waiver action pending. 

New Emissions Standards for Recreational 

Boats.

2013 .......................... tbd ............................. Partially adopted, July, 2008; additional action 

expected 2013. 

Expanded Off-Road Recreational Vehicle 

Emissions Standards.

2013 .......................... tbd ............................. Partially adopted, July, 2008; additional action 

expected 2013. 

Enhanced Vapor Recovery for ......................... 2008 .......................... .................................... Adopted June, 2007. 

Above Ground Storage Tanks .......................... .................................... 2009–2016.

Additional Evaporative Emissions Standards ... 2009 .......................... 2010–2012 ................ Partial adoption: September, 2008 (outboard 

marine tanks). 

Consumer Products Program (I & II) ................ 2008, 2009, 2011 ...... 2010–2014 ................ Approved, 74 FR 57074 (November 4, 2009), 

76 FR 27613 (May 12, 2011), and proposed 

approval of 2011 rule signed September 28, 

2011. 

Sources: 2009 State Strategy Status Report, p. 23 (footnotes in original not included) and 2011 Progress Report, Appendix B, Table B–1. Additional information from http://www.ca.arb.gov. Only defined measures with PM2.5,VOC, SOX or NOX reductions in South Coast are shown here. 

Generally speaking, EPA will approve 

a State plan that takes emissions 

reduction credit for control measures 

only where EPA has approved the 

measures as part of the SIP, or in the 

case of certain on-road and nonroad 

measures, where EPA has issued the 

related waiver of preemption or 

authorization under CAA section 209(b) 

or section 209(e). In our July 14, 2011 

proposed rule, in calculating and 

proposing to approve the State’s 

aggregate emissions reductions 

commitment in connection with our 

proposed approval of the attainment 

demonstration, we assumed that full 

final approval, waiver, or authorization 

of a number of CARB rules would occur 

prior to our final action on the South 

Coast PM2.5 Plan. See 76 FR at 41562, 

41575 (Table 7). Three specific CARB 

rules on which the attainment 

demonstration relies include the Truck 

Rule, Drayage Truck Rule, and OceanGoing Vessel (OGV) Rule. We proposed 

approval of all three rules at 76 FR 

40652 (July 11, 2011), but will be unable 

to take final action on the rules until 

after taking final action on the plan 

because, while CARB has adopted the 

rules, the rules cannot take effect until 

approved by the California Office of 

Administrative Law (OAL) and such 

approval will not happen before EPA’s 

final action must be taken on the plan. 

We are nonetheless allowing the 

plan’s attainment demonstration, and 

our final approval of it, to rely on the 

emissions reductions from the three 

CARB rules for the following reasons: 

• All three rules have been adopted 

by CARB and submitted to EPA as a 

revision to the California SIP,36 and the 

adopted versions are essentially the 

same as those for which EPA proposed 

approval; 

• The comments that we have 

received on our proposed approval of 

the three CARB rules (truck rule, 

drayage truck rule, and ocean-going 

vessel rule) contend that the rules are 

costly and may not be economically or 

technologically feasible, but such 

considerations cannot form the basis for 

EPA disapproval of a rule submitted by 

a state as part of a SIP [see Union 

Electric Company v. EPA; 427 U.S. 246, 

265 (1976)]; 

• The remaining administrative 

process, which involves review of the 

final adopted rules by California’s Office 

of Administrative Law (OAL) is 

essentially procedural in nature, and 

should be completed over the nearterm; 37


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later than October 29, 2011. CARB has already submitted the OGV Rule to OAL. Under California 

law, OAL must take action within 30 working days. 

• CARB intends to submit the final, 

effective rules to EPA as soon as OAL 

completes its review and approves the 

rules. 

Therefore, we are confident that the 

final action on the rules will be 

completed in the near term and that, as 

a result, continued reliance by the plan, 

and our final approval of it, on the 

emissions reductions associated with 

the rules is reasonable and appropriate. 

If, however, California does not submit 

the adopted and fully effective rules to 

EPA as a SIP revision prior to the 

effective date of today’s action, we will 

take appropriate remedial action to 

ensure that our action on the plan is 

fully supportable or to reconsider that 

action. 

B. Enforceable Emissions Reduction 

Commitments 

CARB’s emissions reductions 

commitment is to achieve the ‘‘total 

emissions reductions necessary to attain 

Federal standards’’ through ‘‘the 

implementation of control measures; the 

expenditure of local, State, or federal 

incentive funds; or through other 

enforceable measures.’’ See CARB 

Resolution 07–28, Attachment B at pp. 

3–5 and 2009 State Strategy Status 

Report, pp. 20–21. 

The updates and improvements to the 

inventories as presented in CARB’s 2011 

Progress Report altered the calculation 

of the reductions needed for attainment 

of the 1997 PM2.5 standards in South 

Coast by revising the total reductions 

needed from District and State control 

strategy measures to 44 tpd for VOC, 

129 tpd for NOX, and 41 tpd for SOX

(the remaining reductions needed for 

direct PM2.5 remained the same at 9 

tpd). See Table 3 below and July 2011 

TSD, Table F–10. 

We are approving the South Coast 

2007 AQMP for attainment of the 1997 

PM2.5 standards taking into account 

CARB’s revisions to the control strategy 

based on the revisions to its projected 

baseline inventories and its enforceable 

emissions reductions commitment. 

Specifically, we are interpreting CARB’s 

emissions reductions commitment, 

together with the adjustments to the 

2014 baseline inventories provided in 

CARB’s 2011 SIP revision and the 

District’s commitments, as adjusting the 

State’s total emission reduction 

commitment such that the State is now 

obligated to achieve 129 tpd of NOX, 44 

tpd of VOC, 41 tpd of SOX, and 9 tpd 

of PM2.5 reductions and reductions by 

2014 through enforceable control 

measures to provide for attainment of 

the 1997 PM2.5 NAAQS in the South 

Coast. See Table 3 below. The 

commitment numbers in this table do 

not include reductions from measures 

adopted by CARB and the District and 

approved or waived by EPA following 

submittal of the South Coast AQMP in 

2007. 

TABLE 3—2014 EMISSIONS REDUCTIONS COMMITMENTS FOR THE SOUTH COAST PM2.5 NONATTAINMENT AREA

[Tons per average annual day in 2014] 

NOX VOC Direct 

PM2.5 SOX

A ............. Adjusted 2014 baseline emissions level 1 ........................... 589 518 95 61 

B ............. 2014 attainment target level 2 ............................................. 460 474 86 20 

C ............. Reductions needed from control strategy measures (A–B) 129 44 9 41 

D ............. District commitments 3 ......................................................... 10 .8 10 .4 2 .9 2 .9 

E ............. CARB commitments (C–D) ................................................. 118 .2 33 .6 6 .1 38 .1 

1From TSD, Table F–9. 

2See 76 FR 41562, 41573, fn 27. 

3See 2011 Progress Report, Appendix F, Table 1. 

The level of emissions reductions 

remaining as commitments after 

adjusting the baseline to reflect updates 

and improvements to the inventories 

and crediting reductions from SIPapproved or otherwise SIP-creditable 

measures is shown in Table 4. We are 

approving the attainment demonstration 

in the South Coast 2007 AQMP to 

address the 1997 PM2.5 standards, based 

in part on these enforceable 

commitments. See 76 FR 41562, at 

41577. 

TABLE 4—REDUCTIONS NEEDED FOR ATTAINMENT REMAINING AS COMMITMENTS BASED ON SIP–CREDITABLE MEASURES

[Tons per average annual day in 2014] 

NOX VOC Direct 

PM2.5 SOX

A ............. Total reductions needed from baseline and control strategy 

measures and other adjustments to the baseline to attain.

633 370 13 33 

B ............. Reductions from baseline measures and adjustments to baseline.504 326 4 ¥8 

C ............ Total reductions from approved measures ................................. 59 20 8 41 

D ............ Total reductions remaining as commitments (A–B–C) ............... 70 25 1 0 

E ............. Percent of total reductions needed remaining as commitments 11 7 8 0 

As shown in Table 4, the majority of 

the emissions reductions that the State 

projects are needed for attainment of the 

1997 PM2.5 NAAQS in the South Coast 

by 2015 come from baseline reductions. 

These baseline reductions reflect 

numerous adopted District and State 

control measures which generally have 

been approved by EPA either through 

the SIP process or the CAA section 209 

waiver process, in addition to the effect 

of the recent economic recession on 


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38Enforceable control measures adopted and 

submitted by CARB or the District and approved or 

waived by EPA may be credited towards this 

aggregate commitment. 

projected future inventories. See 2011 

Progress Report, Appendix E and 

Appendices A and B of the TSD. The 

remaining reductions needed for 

attainment are to be achieved through 

the District’s and CARB’s commitments 

to reduce emissions in the South Coast. 

These aggregate commitments are 

shown in Line C of Table 3.38 Since the 

submittal of the 2007 AQMP and 2007 

State Strategy, the District and CARB 

have adopted additional measures that 

can be credited toward their aggregate 

emissions reduction commitments. The 

State’s remaining enforceable 

commitments are shown in line E of 

Table 3. 

As we noted in our July 14, 2011 

proposal, we cannot credit District rules 

that have not been adopted, submitted 

to EPA, and approved (see footnote a to 

Table 3, 76 FR 41562, at 41570) or 

certain on-road or nonroad measures 

that have been given a waiver under 

CAA section 209. In our July 14, 2011 

proposal, we presented a table with the 

State’s remaining enforceable 

commitments (see 76 FR 41562, at 

41575 (Table 7) of 70 tpd (11%) for 

NOX, 11 tpd (3%) for VOC, 1 tpd (8%) 

for direct PM2.5, and 0 tpd (0%) for SOX. 

Today, we are slightly modifying our 

estimate of the State’s remaining 

enforceable commitments for VOC. On 

July 15, 2011, we published a direct 

final rule to approve South Coast Rules 

1143 (Consumer Paint Thinners and 

Multi-Purpose Solvents) and 1144 

(Metalworking Fluids and DirectContact Lubricants). See 76 FR 41744. 

We received adverse comments on this 

action with respect to Rules 1143 and 

1144, and thus withdrew the direct final 

rule (see 76 FR 54384, September 1, 

2011). We are responding to comments 

received on the parallel proposal but 

have not yet finalized that action, and 

therefore are adding those reductions to 

the State’s remaining enforceable 

commitment for VOC. The effect of this 

action is to slightly increase the State’s 

remaining enforceable commitment for 

VOC from 11 tpd to 24.5 tpd, an 

increase from 4% to 7%, and is reflected 

in Table 4 above. This remaining 

commitment is still within the range of 

10% for enforceable commitments that 

we have historically accepted in 

approving attainment demonstrations. 

IV. Approval of Motor Vehicle 

Emissions Budgets 

We noted in our July 14, 2011 

proposal that CARB had posted 

technical revisions to the motor vehicle 

emissions budgets on June 20, 2011 (see 

76 FR 41562, at 41581 and http:// 

www.arb.ca.gov/planning/sip/2007sip/ 

2007sip.htm) to correct data entry errors 

in the budget calculations and to 

remove the emissions reductions 

attributable to the Assembly Bill (AB) 

923 program (South Coast’s light and 

medium duty high emitter program). In 

our July 14, 2011 proposal, we proposed 

to approve these revised updated 

budgets contingent on our receiving the 

SIP submittal from CARB with the 

revised updated budgets before our final 

action on the South Coast 2007 AQMP 

addressing the 1997 PM2.5 standards. 

These revised updated budgets were 

submitted by CARB as a SIP revision on 

July 29, 2011 (see letter, James 

Goldstene, Executive Officer, CARB, to 

Jared Blumenfeld, Regional 

Administrator, EPA Region 9, dated July 

29, 2011, with Attachments). We posted 

these budgets (as posted by CARB on 

June 20, 2011) on our Web site for 

adequacy on July 14, 2011 for a 30-day 

comment period which ended on 

August 15, 2011 (see http:// 

www.epa.gov/otaq/stateresources/ 

transconf/currsips.htm). We received no 

comments on our adequacy posting, and 

have completed our adequacy review on 

these budgets (see the TSD, Section J). 

We also discuss the basis for our 

approval of the budgets in the TSD, 

Section J. We identify the budgets that 

we are approving today in Table 5 

below. 

EPA is also approving the trading 

mechanism in the State’s submittal for 

use in transportation conformity 

analyses by SCAG as allowed for under 

40 CFR 93.124. The trading applies only 

to: 

• Analysis years after the 2014 

attainment year. 

• On-road mobile emission sources. 

• Trades using vehicle NOX emission 

reductions in excess of those needed to 

meet the NOX budget. 

• Trades in one direction from NOX

to direct PM2.5. 

• A trading ratio of 10 tpd NOX to 1 

tpd PM2.5. 

Clear documentation of the 

calculations used in the trade would be 

included in the conformity analysis. See 

2011 Ozone SIP Revision, Appendix A, 

p. A–6. 

Now that the approval of the budgets 

is finalized, the area’s metropolitan 

planning organization, the Southern 

California Association of Governments 

(SCAG) and the U.S. Department of 

Transportation are required to use the 

revised budgets in transportation 

conformity determinations. Due to the 

formatting of the budgets (combining 

emission changes, recession impacts 

and reductions from control measures), 

CARB will need to provide SCAG with 

emission reductions associated with the 

control measures incorporated into the 

budgets for the appropriate analysis 

years in future conformity 

determinations so that they can include 

these reductions per 40 CFR 93.122. In 

addition, for these conformity 

determinations, the motor vehicle 

emissions from implementation of the 

transportation plan should be projected 

and compared to the budgets at the 

same level of accuracy as the budgets in 

the plan, for example emissions should 

be rounded to the nearest ton (e.g. 11 

tpd). 

TABLE 5—SUMMARY OF UPDATED PM2.5 AND PM2.5 PRECURSOR MOTOR VEHICLE EMISSIONS BUDGETS FOR THE SOUTH

COAST PM2.5 NONATTAINMENT AREA

[Tons per annual average day] 

2012 2014 

VOC NOX Directly 

emitted PM2.5 VOC NOX Directly emitted PM2.5

South Coast Air Basin ............................. 154 326 37 132 290 35 


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69952 Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 

V. Final Actions and CAA 

Consequences of the Final Disapproval 

of the Contingency Measure Provisions 

A. Final Actions 

For the reasons discussed in our July 

14, 2011 proposal, EPA approves, with 

the exception of the contingency 

measure provisions, California’s SIP for 

attaining the 1997 PM2.5 NAAQS in the 

South Coast nonattainment area, and 

grants the State’s request for an 

extension of the attainment date to April 

5, 2015. California’s PM2.5 attainment 

SIP for the South Coast nonattainment 

area is composed of the relevant 

portions of the South Coast 2007 AQMP 

as revised in 2011 and the South Coastspecific portions of CARB’s 2007 State 

Strategy as revised in 2009 and 2011 

that address CAA and EPA regulations 

for attainment of the 1997 PM2.5

standards in the South Coast 

nonattainment area. 

Specifically, EPA approves under 

CAA section 110(k)(3) the following 

elements of the South Coast PM2.5

attainment SIP: 

1. The 2002 base year emissions 

inventory as meeting the requirements 

of CAA section 172(c)(3) and 40 CFR 

51.1008; 

2. The reasonably available control 

measures/reasonably available control 

technology demonstration as meeting 

the requirements of CAA sections 

172(c)(1) and 40 CFR 51.1010; 

3. The reasonable further progress 

demonstration as meeting the 

requirements of CAA section 172(c)(2) 

and 40 CFR 51.1009; 

4. The attainment demonstration and 

supporting air quality modeling as 

meeting the requirements of CAA 

section 172(c)(1) and(6) and 40 CFR 

51.1007; 

5. The 2012 RFP and 2014 attainment 

year motor vehicle emissions budgets, 

as submitted by CARB on July 29, 2011, 

because they are derived from the 

approvable RFP and attainment 

demonstrations and meet the 

requirements of CAA section 176(c) and 

40 CFR part 93, subpart A; and CARB’s 

trading mechanism to be used in 

transportation conformity analyses as 

allowed under 40 CFR 93.124; 

6. SCAQMD’s commitments to the 

adoption and implementation schedule 

for specific control measures and to 

achieve specific aggregate emissions 

reductions of direct PM2.5, NOX, VOC, 

and SOX listed in Tables 1 through 5 in 

Appendix F of the 2011 Progress Report 

to the extent that these commitments 

have not yet been fulfilled,; and 

7. CARB’s commitments to propose 

certain defined measures, as listed in 

Table B–1 on page 1 of Appendix B of 

the 2011 Progress Report to the extent 

that these commitments have not yet 

been fulfilled and to achieve aggregate 

emission reductions of NOX, VOC, 

direct PM2.5 and SOX by 2014 sufficient 

to provide for attainment of the 1997 

PM2.5 NAAQS as described in CARB 

Resolution 07–28, Attachment B at p. 3– 

5, the 2009 State Strategy Status Report, 

p. 21, and in Table 3 above. 

In addition, EPA concurs with the 

State’s determination under 40 CFR 

51.1002(c) that NOX, SOX, and VOC are 

attainment plan precursors and that 

ammonia is not an attainment plan 

precursor for attainment of the 1997 

PM2.5 NAAQS in the South Coast 

nonattainment area. 

EPA also grants, pursuant to CAA 

section 172(a)(2)(A) and 40 CFR 

51.1004(a), California’s request to 

extend the attainment date for the South 

Coast PM2.5 nonattainment area to April 

5, 2015. 

Finally, EPA disapproves under CAA 

section 110(k)(3) the contingency 

measure provisions in the South Coast 

2007 AQMP as failing to meet the 

requirements of CAA section 172(c)(9) 

and 40 CFR 51.1012. We also reject the 

assignment of 10 tpd of NOX to the 

federal government. 

B. CAA Consequences of the Final 

Disapproval of the Contingency Measure 

Provisions 

EPA is committed to working with the 

District, CARB and SCAG to resolve the 

remaining issues with the SIP that make 

the current PM2.5 attainment SIP for the 

South Coast nonattainment area not 

fully approvable under the CAA and the 

PM2.5 implementation rule. However, 

because we are finalizing the 

disapproval of the contingency measure 

provisions in the South Coast 2007 

AQMP, the offset sanction in CAA 

section 179(b)(2) will apply in the South 

Coast PM2.5 nonattainment area 18 

months after the effective date of today’s 

final disapproval. The highway funding 

sanctions in CAA section 179(b)(1) will 

apply in the area six months after the 

offset sanction is imposed. Neither 

sanction will be imposed under the 

CAA if California submits and we 

approve prior to the implementation of 

sanctions, SIP revisions that correct the 

deficiencies identified in our proposed 

action. In addition to the sanctions, 

CAA section 110(c)(1) provides that 

EPA must promulgate a federal 

implementation plan addressing the 

deficient elements in the PM2.5 SIP for 

the South Coast nonattainment area two 

years after January 9, 2012, the effective 

date of this rule, if we have not 

approved a SIP revision correcting the 

deficiencies within the two years. 

Because we are approving the RFP 

and attainment demonstrations and the 

motor vehicle emission budgets, we are 

issuing a protective finding under 40 

CFR 93.120(a)(3) to the disapproval of 

the contingency measures. Without a 

protective finding, final disapproval 

would result in a conformity freeze 

under which only projects in the first 

four years of the most recent conforming 

RTP and TIP can proceed. During a 

freeze, no new RTPs, TIPs or RTP/TIP 

amendments can be found to conform. 

See 40 CFR 93.120(a)(2). Under a 

protective finding, however, final 

disapproval of the contingency 

measures will not result in a 

transportation conformity freeze in the 

South Coast PM2.5 nonattainment area. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 12866, 

entitled ‘‘Regulatory Planning and 

Review.’’ 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

This rule will not have a significant 

impact on a substantial number of small 

entities because SIP approvals and 

partial approvals/partial disapprovals 

under section 110 and subchapter I, part 

D of the Clean Air Act do not create any 

new requirements but simply approve 

requirements that the State is already 

imposing. Therefore, because this 

partial approval/partial disapproval 

action does not create any new 

requirements, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

Clean Air Act, preparation of flexibility 

analysis would constitute Federal 


jlentini on DSK4TPTVN1PROD with RULES4
Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 69953 

inquiry into the economic 

reasonableness of State action. The 

Clean Air Act forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. U.S. 

EPA, 427 U.S. 246, 255–66 (1976); 42 

U.S.C. 7410(a)(2). 

D. Unfunded Mandates Reform Act 

Under sections 202 of the Unfunded 

Mandates Reform Act of 1995 

(‘‘Unfunded Mandates Act’’), signed 

into law on March 22, 1995, EPA must 

prepare a budgetary impact statement to 

accompany any proposed or final rule 

that includes a Federal mandate that 

may result in estimated costs to State, 

local, or tribal governments in the 

aggregate; or to the private sector, of 

$100 million or more. Under section 

205, EPA must select the most costeffective and least burdensome 

alternative that achieves the objectives 

of the rule and is consistent with 

statutory requirements. Section 203 

requires EPA to establish a plan for 

informing and advising any small 

governments that may be significantly 

or uniquely impacted by the rule. 

EPA has determined that the partial 

approval/partial disapproval action 

promulgated does not include a Federal 

mandate that may result in estimated 

costs of $100 million or more to either 

State, local, or tribal governments in the 

aggregate, or to the private sector. This 

Federal action approves pre-existing 

requirements under State or local law, 

and imposes no new requirements. 

Accordingly, no additional costs to 

State, local, or tribal governments, or to 

the private sector, result from this 

action. 

E. Executive Order 13132, Federalism 

Federalism (64 FR 43255, August 10, 

1999) revokes and replaces Executive 

Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental 

Partnership). Executive Order 13132 

requires EPA to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ Under 

Executive Order 13132, EPA may not 

issue a regulation that has federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. EPA also may not issue a 

regulation that has federalism 

implications and that preempts State 

law unless the Agency consults with 

State and local officials early in the 

process of developing the proposed 

regulation. 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely approves a State rule 

implementing a Federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. Thus, the requirements of 

section 6 of the Executive Order do not 

apply to this rule. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This final rule does not 

have tribal implications, as specified in 

Executive Order 13175. It will not have 

substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

Thus, Executive Order 13175 does not 

apply to this rule. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This rule is not subject to 

Executive Order 13045, because it 

approves a State rule implementing a 

Federal standard. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 requires Federal 

agencies to evaluate existing technical 

standards when developing a new 

regulation. To comply with NTTAA, 

EPA must consider and use ‘‘voluntary 

consensus standards’’ (VCS) if available 

and applicable when developing 

programs and policies unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. 

The EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Population 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

rulemaking. In reviewing SIP 

submissions, EPA’s role is to approve or 

disapprove state choices, based on the 

criteria of the Clean Air Act. 

Accordingly, this action merely 

approves certain State requirements for 

inclusion into the SIP under CAA 

section 110 and subchapter I, part D and 

disapproves others, and will not in-andof itself create any new requirements. 

Accordingly, it does not provide EPA 

with the discretionary authority to 

address, as appropriate, 

disproportionate human health or 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898. 


jlentini on DSK4TPTVN1PROD with RULES4
69954 Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. section 804(2). This 

rule will be effective on January 9, 2012. 

L. Petitions for Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by January 9, 2012. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements (see section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Oxides of nitrogen, Particulate matter, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: September 30, 2011. 

Jared Blumenfeld, 

Regional Administrator, Region 9. 

Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52 [AMENDED] 

■ 1. The authority citation for Part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart F—California 

■ 2. Section 52.220 is amended by 

adding paragraphs (c)(397), (c)(398), 

(c)(399), (c)(400), and (c)(401) to read as 

follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(397) A plan was submitted on 

November 16, 2007 by the 

Governor’s designee. 

(i) [Reserved] 

(ii) Additional Material. 

(A) State of California Air Resources 

Board. 

(1) Proposed State Strategy for 

California’s 2007 State Implementation 

Plan, adopted on September 27, 2007. 

(2) CARB Resolution No. 07–28 with 

Attachments A and B, September 27, 

2007. Commitment to achieve the total 

emissions reductions necessary to attain 

the Federal standards in the South Coast 

air basin, which represent 6.1 tons per 

day (tpd) of direct PM2.5, 38.1 tpd of 

SOX, 33.6 tpd of VOC and 118.2 tpd of 

nitrogen oxides by 2014 for purposes of 

the 1997 PM2.5 NAAQS, as described in 

Resolution No. 07–28 at Attachment B, 

pp. 3–5, and modified by CARB 

Resolution No. 09–34 (April 24, 2009) 

adopting the ‘‘Status Report on the State 

Strategy for California’s 2007 State 

Implementation Plan (SIP) and 

Proposed Revision to the SIP reflecting 

Implementation of the 2007 State 

Strategy,’’ and by CARB Resolution 11– 

24 (April 28, 2011) adopting the 

‘‘Progress Report on Implementation of 

PM2.5 State Implementation Plans (SIP) 

for the South Coast and San Joaquin 

Valley Air Basins and Proposed SIP 

Revisions.’’. 

(3) Executive Order S–07–002, 

Relating to Approval of the State 

Strategy for California’s State 

Implementation Plan (SIP) for the 

Federal 8-Hour Ozone and PM2.5

Standards, November 16, 2007. 

(398) A plan was submitted on 

November 28, 2007 by the Governor’s 

designee. 

(i) [Reserved] 

(ii) Additional Material. 

(A) South Coast Air Quality 

Management District. 

(1) Final South Coast 2007 Air Quality 

Management Plan, adopted on June 1, 

2007. 

(2) SCAQMD Governing Board 

Resolution 07–9, ‘‘A Resolution of the 

Governing Board of the South Coast Air 

Quality Management District certifying 

the final Program Environmental Impact 

Report for the 2007 Air Quality 

Management Plan, adopting the Final 

2007 Air Quality Management Plan 

(AQMP), to be referred to after adoption 

as the Final 2007 AQMP, and to fulfill 

USEPA Requirements for the use of 

emissions reductions form the Carl 

Moyer Program in the State 

Implementation Plan,’’ June 1, 2007. 

Commitments to achieve emissions 

reductions (including emissions 

reductions of 2.9 tons per day (tpd) of 

direct PM2.5, 2.9 tpd of SOX, 10.4 tpd of 

VOC and 10.8 tpd of nitrogen oxides by 

2014) as described by SCAQMD 

Governing Board Resolution No. 07–9, 

p. 10, June 1, 2007, and modified by 

SCAQMD Governing Board Resolution 

11–9, p. 3, March 4, 2011, and 

commitments to adopt and submit 

control measures as described in Table 

4–2A of the Final 2007 AQMP, as 

amended March 4, 2011. 

(B) State of California Air Resources 

Board. 

(1) CARB Resolution No. 07–41, 

September 27, 2007. 

(399) An amended plan was 

submitted on May 18, 2011 by the 

Governor’s designee. 

(i) [Reserved] 

(ii) Additional Material. 

(A) State of California Air Resources 

Board. 

(1) Progress Report on 

Implementation of PM2.5 State 

Implementation Plans (SIP) for the 

South Coast and San Joaquin Valley Air 

Basins and Proposed SIP Revisions, 

Appendices B and C. Release Date: 

March 29, 2011. 

(2) CARB Resolution No. 11–24, April 

28, 2011. 

(3) Executive Order S–11–010, 

‘‘Approval of Revisions to the Fine 

Particulate Matter State Implementation 

Plans for the South Coast Air Quality 

Management Plans for the South Coast 

Air Quality Management District and 

the San Joaquin Valley Air Pollution 

Control District,’’ May 18, 2011. 

(400) An amended plan was 

submitted on May 19, 2011 by the 

Governor’s designee. 

(i) [Reserved] 

(ii) Additional Material. 

(A) South Coast Air Quality 

Management District. 

(1) Revisions to the 2007 PM2.5 and 

Ozone State Implementation Plan for 

South Coast Air Basin and Coachella 

Valley (SIP Revisions), adopted on 

March 4, 2011. 

(2) SCAQMD Governing Board 

Resolution 11–9, ‘‘A Resolution of the 

South Coast Air Quality Management 

District Governing Board (AQMD) 

certifying the Addendum to Final 

Program Environmental Impact Report 

(PEIR) for the 2007 Air Quality 

Management Plan, (AQMP), for a 

revision to the Final 2007 AQMP, to be 

referred to after adoption as the 

Revision to the Final 2007 AQMP,’’ 

March 4, 2011. 

(B) State of California Air Resources 

Board. 


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Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 69955 

(1) CARB Resolution No. 11–24, April 

28, 2011. Commitment to propose 

measures as described in Appendix B of 

the ‘‘Progress Report on the 

Implementation of the PM2.5 State 

Implementation Plans (SIP) for the 

South Coast and San Joaquin Valley Air 

Basins and Proposed SIP Revisions.’’ 

(401) An amended plan was 

submitted on July 29, 2011 by the 

Governor’s designee. 

(i) [Reserved] 

(ii) Additional Material. 

(A) State of California Air Resources 

Board. 

(1) 8-Hour Ozone State 

Implementation Plan Revisions and 

Technical Revisions to the PM2.5 State 

Implementation Plan Transportation 

Conformity Budgets for the South Coast 

and San Joaquin Valley Air Basins, 

Appendix A, page A–5 (dated June 20, 

2011), adopted July 21, 2011. 

(2) CARB Resolution No. 11–22, July 

21, 2011. 

(3) Executive Order S–11–016, 

‘‘Approval of Revisions to the 8–Hour 

Ozone State Implementation Plans and 

Technical Revisions to the PM2.5 State 

Implementation Plan Transportation 

Conformity Budgets for the South Coast 

San Joaquin Valley Air Basin,’’ July 21, 

2011. 

[FR Doc. 2011–27620 Filed 11–8–11; 8:45 am] 

BILLING CODE 6560–50–P 


jlentini on DSK4TPTVN1PROD with RULES4