Wednesday,

May 26, 2004

Part II

Environmental 

Protection Agency

40 CFR Part 52

Approval and Promulgation of 

Implementation Plans for California – 

San Joaquin Valley PM–10 Nonattainment 

Area; Serious Area Plan for Attainment of 

the 24-Hour and Annual PM–10 

Standards; Final Rule

30006 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

1The Amendments to the 2003 PM–10 supersede 

some portions of the 2003 PM–10 Plan and also add 

to it. References hereafter to the ‘‘SJV 2003 PM–10 

Plan’’ or ‘‘the Plan’’ mean the 2003 Plan submitted 

on August 19, 2003, as amended by the December 

30, 2003 submittal.

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[CA 294–0450, FRL–7663–8] 

Approval and Promulgation of 

Implementation Plans for California—

San Joaquin Valley PM–10 

Nonattainment Area; Serious Area Plan 

for Attainment of the 24-Hour and 

Annual PM–10 Standards

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing approval of 

the ‘‘2003 PM10 Plan, San Joaquin 

Valley Plan to Attain Federal Standards 

for Particulate Matter 10 Microns and 

Smaller,’’ submitted on August 19, 

2003, and Amendments to that plan, 

submitted on December 30, 2003, as 

meeting the Clean Air Act (CAA or the 

Act) requirements applicable to the San 

Joaquin Valley, California 

nonattainment area for particulate 

matter of ten microns or less (PM–

10)(SJV). The SJV violates the national 

ambient air quality standards (NAAQS) 

for PM–10 and is classified as a serious 

PM–10 nonattainment area. 

As a serious PM–10 nonattainment 

area, the State must submit to EPA a 

plan that provides for, among other 

things, the implementation of best 

available control measures (BACM). In 

addition, because the serious attainment 

deadline, December 31, 2001, has 

passed, the plan must provide for 

expeditious attainment of the PM–10 

NAAQS and for an annual reduction in 

PM–10 or PM–10 precursor emissions of 

not less than five percent until 

attainment.

DATES: Effective Date: This rule is 

effective on June 25, 2004.

ADDRESSES: You can inspect copies of 

the docket for this action at EPA’s 

Region IX office during normal business 

hours by appointment at the following 

locations: Environmental Protection 

Agency, Region IX, 75 Hawthorne 

Street, San Francisco, CA 94105–3901. 

Air and Radiation Docket and 

Information Center, U.S. Environmental 

Protection Agency, Room B–102, 1301 

Constitution Avenue, NW., (Mail Code 

6102T), Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT:

Doris Lo, EPA Region IX, (415)972–

3959, lo.doris@epa.gov.

SUPPLEMENTARY INFORMATION:

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

and ‘‘our’’ refer to EPA.

Table of Contents 

I. Summary of Proposed Actions 

II. Public Comments and EPA Responses 

A. NOX/PM Strategy 

1. Ammonia 

2. VOC 

3. SOX

B. Emission Inventory 

C. BACM Demonstration 

1. Commitments for BACM/BACT 

2. Agricultural Conservation Management 

Practices (Ag CMP) Program 

3. Ag Crop Processing Losses and Ag 

Products Processing Losses 

4. Plastics and Plastic Products 

Manufacturing Sources 

5. Cotton Gins 

6. Manufacturing and Industrial Fuel 

Combustion Sources 

7. Oil Drilling and Workover 

8. Residential Water Heaters 

9. Charbroiling 

10. Regulation VIII Fugitive Dust Sources 

11. Significant Sources of VOC, Ammonia 

and SOx 

12. Mobile Sources—Transportation 

Control Measures (TCMs) 

13. Mobile Sources—South Coast Fleet and 

Low Sulfur Diesel Rules 

D. Attainment Demonstration 

1. Attainment Deadline 

2. Attainment Demonstration 

Overestimates Emission Reductions 

3. Attainment as Expeditiously as 

Practicable 

E. Five Percent Demonstration 

F. RFP Demonstration 

G. Contingency Measures 

H. Full Approval with Commitments 

Violates the CAA 

I. Adoption of All Feasible Measures 

(Section 179(d)(2)) for Ag CMP Program 

J. Approval of Commitments for VOC 

Sources—Wineries

K. Approvability of Indirect Source 

Mitigation Measure 

L. Windblown Dust Issues 

M. Transportation Conformity and the 

Trading Mechanism 

N. Other Comments 

III. EPA Action 

IV. Statutory and Executive Order Reviews

I. Summary of Proposed Actions 

On February 4, 2004, (69 FR 5412), we 

proposed to approve the ‘‘2003 PM10 

Plan, San Joaquin Valley Plan to Attain 

Federal Standards for Particulate Matter 

10 Microns and Smaller,’’ submitted on 

August 19, 2003, and Amendments to 

that plan, submitted on December 30, 

2003,1 as meeting the CAA requirements 

applicable to the SJV for PM–10. 

Specifically, we proposed to approve 

the following elements of the Plan:

• Motor vehicle budgets for 

transportation conformity; 

• Emissions inventories for PM–10 and 

PM–10 precursors; 

• A demonstration that reasonably 

available and best available control 

measures (RACM and BACM) will be 

expeditiously implemented for all 

significant sources of PM–10 and PM–

10 precursors; 

• A demonstration that attainment will 

be achieved as expeditiously as 

practicable; 

• A demonstration that the CAA section 

189(d) five percent requirement is 

met; and 

• A demonstration that reasonable 

further progress (RFP) and 

quantitative milestones will be 

achieved.

A detailed discussion of air quality 

planning in the SJV, the CAA 

requirements for serious nonattainment 

areas, and how the 2003 PM–10 Plan 

complies with these requirements is 

provided in our proposed rule and the 

technical support document (TSD). 

II. Public Comments and EPA 

Responses 

EPA received 19 comment letters and 

emails from the following 

environmental groups, industry groups, 

agencies and public citizens (some 

commenters provided more than one 

letter or email):

• Dr. David Pepper 

• Gordon Jones, Tehachapi, California 

• Michael E. LaSalle, Hanford, 

California 

• Brent Newell, Stacey Wittorf, Center 

on Race, Poverty, & the Environment 

(CRPE) on behalf of the Association of 

Irritated Residents (collectively, 

CRPE) 

• Art Caputi, Chairman, Wine Institute 

Air Quality Working Group 

• D. Barton Doyle, on behalf of the 

California Building Industry 

Association and its Affiliate 

Associations located in the SJV 

• Suzanne Noble, Western States 

Petroleum Association 

• Jan Marie Ennenga, Executive 

Director, Manufacturers Council of 

the Central Valley 

• David L. Crow, Executive Director/Air 

Pollution Control Officer, San Joaquin 

Valley Unified Air Pollution Control 

District (SJVUAPCD or the District) 

• Patricia Taylor-Maley, Chair San 

Joaquin Valley TPA Director’s 

Association 

• Charles Swanson, San Francisco, 

California 

• David Moralez, Davis, California 

• Susan Britton, Anne Harper and 

Vanessa E-H Stewart, Earthjustice, on 

behalf of Medical Advocates for 

Healthy Air, Latino Issues Forum, 

Sierra Club and Natural Resources 

Defense Council (collectively, 

Earthjustice) 

Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 30007

2The CRPAQS study was an extensive 14-month 

field study conducted on 2000–2001, which 

measured PM–10, precursors and meteorological 

parameters during episodes representative of high 

PM–10 and PM–2.5 in the SJV. The domain for the 

study encompasses the entire SJV, compared to the 

smaller IMS 95 domain of an earlier field study, and 

the CRPAQS study captured more extensive 

ambient air and meteorological measurements than 

the IMS 95 field study. The CRPAQS modeling, 

discussed below, will be more extensive than the 

Urban Airshed Model-Aerosol (UAM–Aero) 

modeling based on IMS 95. Additional information 

regarding the CRPAQS study is available at http:

//www.arb.ca.gov/airways/ccaqs.htm.

The goal of the CRPAQS modeling is to better 

understand the fundamental physical and chemical 

processes that contribute to elevated particulate 

matter concentrations. The CRPAQS modeling 

package includes evaluation of two complementary 

modeling approaches. Each model provides 

particular strengths that will support state 

implementation plan (SIP) modeling needs. In 

addition, use of two modeling approaches allows 

improved diagnosis of potential model errors and 

biases. The two modeling approaches have 

fundamentally different modeling formulations. 

The first type of modeling approach explicitly 

tracks particle types from individual source types. 

This method has strong advantages in 

understanding source-receptor relationships and in 

tracking specific source contributions to secondary 

particulate matter. However, this approach can be 

very resource and time intensive to apply. The 

second modeling approach lumps similar pollutant 

emissions together, thus reducing source tracking 

capabilities. The advantage of this approach is that 

it requires fewer resources to run, enabling many 

more sensitivity and control strategy evaluations to 

be conducted.

3Surface isolation flux chambers are generally 

used to collect field samples of ammonia sources. 

These samples are then evacuated for laboratory 

analysis. For livestock waste, the flux chambers 

need to be stationed at representative locations to 

sample liquid and solid waste at various ages and 

under various exposure conditions. See ‘‘Results of 

the Measurement of PM10 Precursor Compounds 

from Dairy Industry Livestock Waste,’’ Air Toxics 

Limited, C.E. Schmidt and E. Winegar, June 1996. 

This report was prepared for the South Coast Air 

Quality Management District (SCAQMD), and is 

currently available at: http://www.aqmd.gov/rules/

proposed/r1127/index.html.

• Barbara Joy, Earth Matters 

• San Joaquin Valley agricultural 

groups: California Cotton Ginners and 

Growers Association, California Grape 

and Tree Fruit League, California 

Citrus Mutual, Fresno County Farm 

Bureau, Kings County Farm Bureau, 

Madera County Farm Bureau, Nisei 

Farmers League and Tulare Lake 

Resource Conservation District.

EPA appreciates the time and effort 

made by the commenters in reviewing 

the proposed rule and providing 

comments. We have summarized the 

major comments and provided our 

responses below.

A. NOX/PM Strategy 

The Plan relies on an oxides of 

nitrogen (NOX)/PM strategy as the most 

effective and expeditious strategy for 

attaining the PM–10 standards in the 

SJV, based on the best available 

information at this time. The California 

Air Resources Board (CARB) and the 

SJVUAPCD have examined the effects of 

controlling ammonia, volatile organic 

compounds (VOC) and oxides of sulfur 

(SOx), and have determined that the 

effect of controls for ammonia is 

uncertain, the effect of additional VOC 

controls will not lead to PM–10 

reductions throughout the SJV, and that 

the effect of SOx controls would be very 

limited because the contribution of 

ammonium sulfate to the particulate 

problem in the SJV is small. EPA 

concurs that these findings are 

supported by the current analysis of the 

best available data. However, the more 

extensive California Regional PM–10/

PM–2.5 Air Quality Study (CRPAQS) 

field study and modeling will provide 

an improved basis to assess the 

relationship of precursors in forming 

secondary particulates.2 EPA expects 

that the results of the CRPAQS study 

will provide additional technical 

information and is approving the 

SJVUAPCD’s commitment to re-evaluate 

the 2003 PM–10 Plan with the results of 

CRPAQS and to submit a new plan to 

EPA by March 2006. (69 FR 5412, 5414).

The attainment demonstration for the 

Plan is based on receptor modeling 

based on chemical analysis of filter 

samples collected during the CRPAQS 

field study. These samples include 

filters from days representing typically 

high PM–10 concentrations in the SJV. 

However, the photochemical grid 

modeling, UAM-Aero, presented in the 

Plan was based on the previous, smaller 

field study in the SJV, IMS 95, because 

the modeling from the CRPAQS field 

study was not complete at the time of 

the Plan approval. The proposed 

modeling analysis based on CRPAQS 

will better characterize the interaction 

of precursors to form secondary 

particulates, because of the more robust 

CRPAQS database and the more 

extensive CRPAQS modeling approach. 

Responses to comments regarding 

individual precursors are addressed 

below. 

1. Ammonia 

Comment 1: Earthjustice comments 

that all available evidence supports that 

ammonium nitrate is a significant 

contributor to fall and winter PM 

exceedances. CRPE comments that 

ammonium nitrate represents a 

significant amount of the total PM–10 

concentration, and represents the largest 

amount of PM–10 during the winter. 

CRPE comments that the Plan itself 

concedes that ammonia reacts with 

other precursor emission to form 

ammonium nitrate during the winter. 

Response: EPA concurs that 

ammonium nitrate is a significant 

contributor to violations of both the 24-

hour and annual PM–10 standards in 

the SJV. Ammonium nitrate, a 

secondary particulate, is not directly 

emitted, but formed as a product of a 

series of chemical reactions which 

involve ammonia (NH3), NOX, and 

many other components. EPA believes 

that the Plan will effectively reduce 

ammonium nitrate by controlling NOX, 

and that controlling ammonia in 

addition to NOX will not accelerate the 

attainment date for PM–10 in the SJV. 

EPA also believes that the effect of 

controlling ammonia on ammonium 

nitrate is less clear than the effect of 

controlling NOX at this time, for several 

reasons. The current emission inventory 

and control strategies for ammonia have 

a greater uncertainty than the NOX

emission inventory and control 

strategies. For NOX, the control 

technology and management practices 

are better understood and well 

established. In addition, analysis of 

ambient air quality data in the SJV 

indicates that ammonia is relatively 

abundant throughout the SJV and, 

therefore, controlling ammonia in 

addition to NOX controls, will not 

effectively reduce ammonium nitrate, 

because it is not the limiting pollutant. 

As discussed below, the current data 

suggest that controlling ammonia may 

be neither an efficient nor an effective 

approach to reducing ammonium nitrate 

concentrations in the SJV. 

As discussed elsewhere in response to 

comments on the emissions inventory, 

EPA believes that the Plan’s emissions 

inventory for ammonia reflects the 

current state of scientific knowledge. 

EPA also believes, however, that both 

ammonia emission factors and ammonia 

source surveys, and thus the ammonia 

inventory itself, have a high degree of 

uncertainty. This is because the 

ammonia inventory is dominated by 

emission sources—such as dairy, beef, 

poultry, fertilizer, and soil—that have 

not been extensively sampled in the 

past, and that are inherently difficult to 

measure even with the most 

sophisticated and expensive 

techniques.3 This sharply contrasts with 

the confidence level associated with 

quantifying emissions of NOX, a gas 

which is emitted primarily by stationary 

and mobile source combustion and 

which can therefore be accurately 

measured through stack or tailpipe tests.

For example, a calculation of net 

ammonia emissions from soil would 

need to measure on a seasonal basis 

both ammonia emissions and ammonia 

uptake considering such factors as soil 

30008 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

4For a discussion of these and other challenges 

associated with quantifying livestock emissions in 

California and the progress to date in addressing the 

issues, see: ‘‘Air Emissions Action Plan for 

California Dairies’’, a report of the Ad hoc Dairy 

Subcommittee of the San Joaquin Valley Unified 

Air Pollution Control District. (May 2003, available 

at: http;//www.arb.ca.gov/planning/agriculture/

cafowg/dairy062503.pfd., Memo from Patrick 

Gaffney, ARB, entitled ‘‘Updating Livestock 

Emissions for California’’ (October 1, 2003); and 

ARB’s ‘‘Interim Draft Livestock Husbandry’’ 

emissions factors (October 2003), both available at: 

http://www.arb.ca.gov/emisinv/areasrc/

drftmeth.htm. The last of these documents 

summarizes the current state of knowledge relating 

to livestock emissions: ‘‘Currently, there are not 

TOG [total organic gases] or ROG [reactive organic 

gases] emission factors for livestock that are based 

on recent or California specific test data. However, 

even in the absence of good quality emission 

factors, it is necessary to estimate livestock TOG 

and ROG emissions. In order to meet the regulatory 

requirements for livestock emission estimates, 

interim emission factors were used. These factors 

are quite old, have many shortcomings, and have 

very little field or laboratory data to support them. 

The current emission estimates are intended as 

placeholders to help begin identifying the gross 

magnitudes of livestock air emissions.’’ (Page x.xx–

2). See also a report commissioned by the 

SCAQMD: ‘‘Literature Survey & National 

Programs—Livestock Waste Management Practices 

Survey & Control Option Assessment,’’ Tetra Tech, 

Inc., March 2003. This SCAQMD report is currently 

available at the Web address in the previous 

footnote. Additional information on ammonia 

emissions from animal husbandry operations can be 

found in EPA’s recently released draft report 

entitled, ‘‘National Emissions Inventory—Ammonia 

Emissions from Animal Husbandry Operations.’’ 

The draft report includes emission estimates from 

animal production facilities in the U.S. for the years 

2002, 2010, 2015, 2020, and 2030. While the data 

updates past emission estimates, there are 

important limitations on the use of the data, 

including the limited number of emission 

measurements. The draft report can be found at—

http://www.epa.gov/ttn/chief/net/

2002inventory.html#animal

While the data updates past emission estimates, 

there are important limitations on the use of the 

data, including the limited number of emission 

measurements. The draft report can be found at—

http://www.epa.gov/ttn/chief/net/

2002inventory.html#animal.

5As part of a lengthy rule development process, 

the SCAQMD has collected information on the costs 

and benefits of reducing ammonia emissions from 

composting and from livestock waste within the 

South Coast (metropolitan Los Angeles area), 

evaluating in particular those control approaches 

reflected in the SCAQMD’s Rules 1133, 1133.1, and 

1133.2 (a series of composting rules adopted on 

January 10, 2003) and in SCAQMD’s proposed rule 

1127 (livestock waste). See, for example, ‘‘Survey 

Current Livestock Waste Management Practices in 

the South Coast Air Basin,’’ Tetra Tech, Inc., 

January 2002; and SCAQMD ‘‘Preliminary Draft 

Staff Report: Proposed Rule 1127—Emission 

Reductions from Livestock Waste,’’ November 20, 

2002. These reports are currently available at the 

web address in the footnote above. Although some 

of this information may be applicable to the SJV, 

much of the data is specific to the South Coast and 

would need to be replaced with SJV data during a 

rulemaking process.

6Plan at M–11.

7Shao-Hang Chu, Wintertime PM formation in 

San Joaquin Valley. Memorandum to Doris Lo, 

December 2003.

8Lurmann et al., in ‘‘Phase Distributions and 

Secondary Formation During Winter in the San 

Joaquin Valley’’.

9NARSTO at 10–12.

10EPA has discussed its concerns with respect to 

exposure to acid aerosols in more detail in the 

criteria document for the new PM–2.5 NAAQS. See, 

U.S. EPA, Air Quality Criteria for Particulate 

Matter, vol. III at 12–253, April 1996 (EPA/600/P–

95/0001cF).

type, climatic variables, soil moisture, 

vegetative coverage, etc. The accurate 

quantification of livestock emissions 

depends on survey data and emissions 

measurement on a seasonal basis of 

various animal types, ages, and 

residency times; animal and waste 

handling practices (such as types of 

commercial feed or range feeding, stable 

housing, manure spreading, and waste 

storage); climatic and soil variables, 

etc.4

These difficulties and complexities in 

quantifying baseline ammonia 

emissions, particularly over an area as 

large and diverse as the SJV, make it 

difficult to quantify the benefits of 

possible ammonia control strategies. In 

addition, although there are many 

groups now assessing various ammonia 

emission reduction approaches, there 

are few completed scientific studies of 

the potential effectiveness of ammonia 

control technologies and control 

techniques at this time, and no extended 

record documenting the actual costs and 

benefits of regulatory control programs 

in effect for ammonia. Moreover, the 

costs and benefits of most ammonia 

control approaches must be assessed on 

a region-specific basis, since the 

assessment would need to take into 

account fundamental differences from 

one area to another in terms of the 

affected industries, the availability of 

control options, and variations in 

critical conditions, such as soils and soil 

coverage, temperature, windspeed, and 

humidity.5

Data analysis for the SJV indicates 

that the Valley is relatively rich in 

ammonia and, therefore, reductions of 

ammonia are not likely to be effective. 

Data analysis is based on measured 

concentrations of precursors in the 

ambient air. Therefore, despite the 

uncertainties in the emission inventory, 

data analysis can provide an 

understanding of the relationship of the 

concentrations of the precursors in an 

area, and the effect of control strategies 

of precursors will have on the 

concentration levels of ammonium 

nitrate. Ammonium nitrate is a 

secondary pollutant formed through the 

neutralization of nitric acid by 

ammonia. Based on a molar comparison 

of the observed ion data, the amount of 

ammonium needed if all the sulfate and 

nitrate were ammonium sulfate and 

ammonium nitrate can be calculated. In 

an area where ammonia concentrations 

are high relative to the concentrations of 

nitric acid (which is produced from 

NOX and VOC), reducing ammonia will 

not effectively reduce ammonium 

nitrate. In areas where the ammonia 

concentrations are relatively low, 

reducing ammonia concentrations will 

effectively reduce ammonium nitrate. 

Data analysis results from several 

investigators support the conclusion 

that SJV is ammonia rich. Based on the 

thermodynamic equilibrium of 

ammonium nitrate and sulfate 

formation, CARB concluded that there 

was no ambient ammonia deficiency 

during the IMS 95 episode.6 Hence, 

ammonia is in excess and initial 

reductions in ammonia concentrations 

will not reduce ammonium nitrate. 

Independent data analysis performed by 

Dr. Chu at EPA concluded that ‘‘the 

high ammonium nitrate particle 

concentrations observed in the winter in 

San Joaquin Valley are not limited by 

the available ammonia emissions.’’ 7

Preliminary data analysis from the 

CRPAQS study also indicates that 

‘‘nitrate formation in the San Joaquin 

Valley Air Basin (SJVAB) is not likely to 

be limited by ammonia availability.’’ 8

The NARSTO assessment likewise 

concludes that for the San Joaquin 

Valley ‘‘[t]here is typically an 

abundance of NH3 present.’’ 9

Although the UAM-Aero modeling 

presented in the plan indicates that 

ammonia reductions may result in lower 

concentrations of ammonium nitrate 

(secondary PM) in some areas of the 

SJV, because of the uncertainty in the 

ammonia inventory and the atmospheric 

chemistry, State and local air agency 

experts question these results. This is 

discussed in greater detail in the 

response to comment 9 below. 

Finally, EPA is also concerned that 

there is uncertainty about the effects of 

ammonia controls in areas such as SJV 

that have conditions conducive to the 

formation of acid fog. In such places, 

reductions of ammonia might serve to 

increase the exposure to a category of 

PM–2.5 known as acid aerosols. 

Historical and present-day evidence 

suggests that acid aerosols may have 

both acute and chronic effects on 

human health.10

These fundamental scientific and 

technical uncertainties regarding 

ammonia leave reasonable doubts 

regarding the extent to which ammonia 

reductions would contribute to PM–10 

attainment in the SJV. The CRPAQS 

should resolve the question of whether 

ammonia and other possible precursors, 

including VOC and SOX, contribute 

significantly to PM–10 levels which 

exceed the standard in the SJV. In the 

Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 30009

11Plan at Appendix M–11.

absence of the CRPAQS results, EPA 

believes that there is insufficient 

evidence to support a determination 

that ammonia is a significant PM–10 

precursor in the SJV. Thus, EPA is 

making the Agency’s determination 

under CAA section 189(e) that sources 

of ammonia do not contribute 

significantly to PM–10 levels which 

exceed the standard in the SJV. If the 

CRPAQS shows that ammonia is a 

significant precursor, however, EPA will 

reevaluate this determination. At that 

point, ammonia could become subject to 

the various PM–10 and PM–10 

precursor control provisions of the 

Clean Air Act, including BACM under 

section 189(b)(1)(B) and the 5 percent 

requirement under section 189(d). 

In the proposed rule, EPA concurred 

with the 2003 PM–10 Plan’s NOX/PM 

strategy based on the currently available 

information which includes a high 

degree of uncertainty regarding the 

ammonia inventory and the effects of 

ammonia controls. EPA agrees with the 

State and local agencies that this 

approach will not retard air quality 

progress in the SJV. The SJVUAPCD has 

made an enforceable commitment to 

submit a SIP revision by 2006 based on 

the CRPAQS results, including 

appropriate controls based on those 

results. 69 FR 5412, 5414. In the 

meantime, the area should achieve 

important reductions in ammonium 

nitrate PM–10 concentrations through a 

NOX-based strategy. Finally, EPA 

continues to believe that use of the 

CRPAQS has the potential to avoid 

wasteful imposition of controls that may 

be found to be not only expensive and 

dislocative but also unnecessary and 

ineffective in advancing PM–10 

attainment in the specific circumstances 

applicable in the SJV. 

Comment 2: Earthjustice comments 

that if ammonia comprises 22.4% of the 

total mass of ammonium nitrate, this 

means that ammonia is contributing 

anywhere from 13 μg/m3 to 22.4 μg/m3 

to total mass at each monitoring site. 

Response: Ammonium nitrate is a 

secondary particulate, a product of 

chemical reaction. Although ammonia 

participates in the series of reactions to 

form ammonium nitrate, it is not 

appropriate to determine the 

significance of the ammonia 

contribution to ammonium nitrate in 

isolation. The effect of ammonia 

emissions on the formation of 

ammonium nitrate is specific to each air 

basin. As presented in the response to 

comment 1 above, EPA believes that the 

Plan will effectively reduce the 

concentration of ammonium nitrate in 

the SJV by controlling NOX, and that 

controlling ammonia will not effectively 

reduce ammonium nitrate. Therefore, 

EPA believes that the Earthjustice 

calculation determining the ammonia 

contribution to ammonium nitrate for 

the purpose of determining significance 

is not appropriate. 

Comment 3: Earthjustice comments 

that more than 151,000 tons of ammonia 

are emitted from Valley sources and that 

ammonia must be regulated because 

EPA’s guidance, CAA section 189(e) and 

the District’s own data show that it is a 

significant contributor. 

Response: As stated above, EPA 

believes that the most effective way to 

reduce ammonium nitrate is by 

controlling NOX. As discussed in the 

above response, EPA is determining, 

based upon the best currently available 

information, that ammonia does not 

contribute significantly to PM–10 levels 

which exceed the standard in the SJV. 

If the results of CRPAQS indicate 

otherwise, EPA will revisit this 

determination. 

Comment 4: Earthjustice comments 

that the District’s decision not to 

regulate PM–10 precursors other than 

NOX is based on results of sensitivity 

tests using the UAM-Aero to model the 

formation of secondary particles in the 

atmosphere. The Plan admits the data 

set was not ideal.

Response: EPA concurs that the data 

set used for the UAM-Aero modeling 

was not ideal; however, it was the best 

available data set at the time of the Plan 

submittal and was sufficient to make the 

necessary determination. In addition, 

the determination of the efficacy of 

ammonia control was based on data 

analysis (Plan at Appendix M, M–11). 

This includes the preliminary data 

analysis based on the CRPAQS study, 

which captured high values of PM–10 

and ammonium nitrate, and supports 

the conclusion that the SJV ammonium 

nitrate concentrations are not sensitive 

to reductions in ammonia. Modeling 

based on the more extensive CRPAQS 

field program will not be available until 

late 2005. As stated above, EPA believes 

that controlling NOX will effectively 

reduce ammonium nitrate. The District 

has made an enforceable commitment to 

reevaluate the 2003 PM–10 Plan with 

the results of CRPAQS and to submit a 

new plan to EPA by March 2006. 

Comment 5: Earthjustice comments 

that the Plan states that ‘‘In rural sites 

where the ammonia concentrations are 

low, the Plan further admits that 

reductions of PM–10 almost entirely 

depend on ammonia controls.’’ 

Response: EPA believes that the 

commenter is misinterpreting the 

explanation of the graphic 

representation of the reduction 

strategies presented in the Plan. The 

Plan supports the conclusion that NOX

reductions are the most effective 

strategy in rural areas at current levels 

of ammonia. The full context of the 

remark that the commenter points to is: 

‘‘The rural sites show sensitivity to only 

NOX reductions until the ammonia 

concentrations are very low. After that 

point the response becomes insensitive 

to NOX controls and almost entirely 

responsive to ammonia controls at 

higher NOX emissions.’’ 11 According to 

the information presented in Figure 6 of 

Appendix M–11 of the Plan, only after 

ammonia concentrations are reduced to 

a very low level do the ammonia 

controls become effective. Therefore, 

large reductions of ammonia would be 

required before ammonia reductions 

would become more effective than NOX

controls in reducing ammonium nitrate. 

This is not the same thing as saying that 

ammonia reductions are the most 

effective or efficient means to attain the 

PM–10 NAAQS expeditiously, which is 

the goal of the Plan.

Comment 6: Earthjustice comments 

that one of the District’s rationales for 

not regulating ammonia is that ‘‘there is 

too much uncertainty regarding the 

effects of ammonia controls.’’ Plan at 

ES–16. This is unsupported by facts and 

EPA itself has commissioned studies 

documenting control efficiencies for 

various types of equipment designed to 

control emissions of ammonia. 

Response: EPA cannot find the same 

quote cited by Earthjustice at ES–16. On 

page ES–16, the Plan states that there is 

‘‘* * * uncertainty regarding ammonia 

emission controls to achieve attainment 

* * *,’’ but EPA does not agree that the 

District is questioning the control 

efficiencies of the controls themselves 

on this page. As discussed above, 

however, EPA believes that there are 

some uncertainties concerning ammonia 

that support the District’s position that 

it may be better to focus on NOX

reductions at this time. 

Comment 7: Earthjustice comments 

that livestock waste is responsible for 

approximately 85% of ammonia 

emissions in the Valley. Sources of 

livestock waste must be presumed to 

contribute significantly to violations of 

the NAAQS because the contribution to 

the PM–10 impact in these areas is more 

than double EPA’s standard of 5 μg/m3 

for the 24-hour average at every site. In 

addition, Earthjustice states that 

SCAQMD Rules 1186 and 1127 reduce 

emissions from livestock waste and 

should be included in a BACM analysis 

for this source category. 

Response: As discussed in above 

responses, EPA has determined that 

30010 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

12Plan at Appendix M–11.

ammonia does not contribute 

significantly to PM–10 levels which 

exceed the NAAQS in the SJV. In 

addition, although the South Coast and 

SJV air basins each have relatively high 

levels of ammonium nitrate, the 

difference in the relative emission levels 

of precursors and the atmospheric 

conditions unique to each basin may 

lead to different optimal control 

strategies for each basin. EPA also notes 

that the SCAQMD does not claim 

ammonia reductions from Rule 1186, 

which is designed to reduce fugitive 

dust, and SCAQMD has not yet adopted 

Rule 1127, which is currently scheduled 

for Board consideration in July 2004.

Comment 8: CRPE comments that the 

standard for requiring PM–10 precursor 

controls is not whether precursor 

reductions effectively reduce PM–10, 

but rather whether the precursor itself 

contributes significantly to violations of 

the PM–10 NAAQS. Earthjustice 

comments that in its Addendum, EPA 

states that a source category ‘‘will be 

presumed to contribute significantly to 

a violation of the 24-hour NAAQS if its 

PM–10 impact at the location of the 

expected violation would exceed 5 μg/

m3.’’ Addendum at 42011. Earthjustice 

also comments that the Clean Air Act 

requires the regulation of major 

stationary sources of PM–10 precursors 

(CAA 189(e)) and that, like the South 

Coast, the SJV should take the prudent 

approach of regulating ammonia given 

the uncertainty. 

Response: As discussed in above 

responses, EPA is determining that 

ammonia does not contribute 

significantly to PM–10 levels which 

exceed the standard in the SJV. 

Although ammonium nitrate 

concentrations in the Valley are 

substantial, as discussed above, EPA has 

determined that NOX control is the most 

effective way to achieve the PM–10 

NAAQS. In addition, the commenter 

refers to the Addendum test for whether 

a source is presumed to be significant. 

That is not necessarily the test for 

whether a particular precursor is 

significant. Although the SJV and the 

South Coast air basins each have 

relatively high concentrations of 

ammonium nitrate, the meteorology and 

the emissions of each basin are 

different, leading to potentially different 

strategies in reducing ammonium 

nitrate. See responses in this section 

above and the District’s ‘‘Responses to 

Comments on the Draft 2003 Pm10 

Plan,’’ #34. 

Comment 9: CRPE comments that the 

Plan states that for Bakersfield on 

January 6, 1996, reductions of NOX and 

ammonia are nearly equally effective in 

reducing nitrate concentrations. 

Earthjustice comments that the Plan 

admits that the UAM-Aero model shows 

that the ‘‘southern Valley shows a nonnegligible sensitivity to ammonia 

reduction.’’ CRPE comments that 

ammonia controls are equally effective 

as NOX controls in reducing ammonium 

nitrate in Fresno and Bakersfield. 

Response: The Plan at the section 

entitled ‘‘Further Investigations to 

Assess Apparent Ammonia Limitation 

at Bakersfield on January 6, 1996’’ 12

discusses the apparent disparity 

between the results of the data analysis 

and the modeling. Based on the 

thermodynamic equilibrium of 

ammonium nitrate and sulfate 

formation, the data analysis results 

indicate that there was no ambient 

ammonia deficiency at Bakersfield 

during the IMS 95 episode. The Plan 

indicates that ‘‘[b]ased on sensitivity 

simulations we performed, we believe 

that this apparent ammonia limitation is 

due to the artificially low ammonia 

emissions in the Southern San Joaquin 

Valley.’’ Because of the uncertainties in 

the ammonia emission inventory at this 

time, EPA believes that reliance on the 

ambient data analysis is more 

appropriate at this time. EPA expects 

that the results of the CRPAQS study 

will provide additional technical 

information and is approving the 

SJVUAPCD’s commitment to re-evaluate 

the 2003 PM–10 Plan with the results of 

CRPAQS and to submit a new plan to 

EPA by March 2006. (69 FR 5412, 5414).

Comment 10: The SJVUAPCD 

comments that according to the Plan, 

the preponderance of evidence indicates 

excess ammonia in nearly all of the 

cases, and therefore NOX-only control 

was determined to be the appropriate 

means to reduce ammonium nitrate. 

Peer-reviewed scientific journal articles 

and papers submitted to EPA as part of 

the SIP package for the PM–10 Plan 

support this position. The paper by 

Kumar, et al. (Analysis of Atmospheric 

Chemistry During 1995 Integrated 

Monitoring Study) found that of the 150 

samples, 93% were ammonia rich. 

Response: For the reasons stated 

above in the response to comment 1, 

EPA concurs with the SJVUAPCD that 

current evidence supports that NOX

controls are the most effective approach 

to reducing ammonium nitrate in the 

SJV. EPA expects that the results of the 

CRPAQS study will provide additional 

technical information regarding the 

formation of ammonium nitrate in the 

SJV. EPA is approving the SJVUAPCD’s 

commitment to re-evaluate the 2003 

PM–10 Plan with the results of CRPAQS 

and to submit a new plan to EPA by 

March 2006.

Comment 11: The SJVUAPCD 

comments that Lurmann et al., in 

‘‘Phase Distributions and Secondary 

Formation During Winter in the San 

Joaquin Valley’’ noted that nitrate 

formation in the San Joaquin Valley Air 

Basin is not likely to be limited by 

ammonia availability. Although these 

results are preliminary, they are 

included here because they strongly 

support the peer-reviewed journal 

articles referenced above. CRPAQS data 

analysis is now underway, with results 

due in 2005. 

Response: EPA agrees that this paper 

represents the most current data 

analysis for the CRPAQS study, and 

supports the conclusion of the previous 

data analysis results that the NOX

strategy is the most effective approach 

to reduce ammonium nitrate in the SJV. 

2. VOC 

Comment 1: Earthjustice comments 

that the proposal to determine that 

VOCs ‘‘do not significantly contribute’’ 

to PM–10 NAAQS exceedances is 

inappropriate because it is based on the 

UAM–Aero modeling which relies on 

three days of data from 1996, during a 

period of unusually low PM levels. 

Response: EPA agrees that the IMS 95 

database is not ideal; however, it was 

the best available data set at the time of 

the Plan submittal. The modeling 

presented in the Plan is based on the 

time period most representative of high 

PM–10 during the IMS 95 Study. 

Modeling based on the more extensive 

CRPAQS field program will not be 

available until late 2005. The District 

has made an enforceable commitment to 

reevaluate the 2003 PM–10 Plan with 

the results of CRPAQS and to submit a 

new plan to EPA by March 2006. 

The District’s UAM–Aero modeling 

was used to determine the sensitivity of 

ammonium nitrate to VOC controls 

(whether VOC controls would increase 

or decrease the ammonium nitrate in the 

SJV). The chemical nature of the 

atmosphere is not likely to significantly 

change from one winter period to 

another and, therefore, the response of 

the atmosphere to reductions in VOC 

during the IMS 95 time period is likely 

to be similar to the response in different 

winter time periods. Therefore, despite 

the fact that the PM–10 levels were 

relatively low, the IMS 95 modeling is 

useful to determine the relative impact 

of VOC controls on the formation of 

ammonium nitrate. 

As part of the technical support for 

the Plan, CARB determined the 

expected response to emission 

reductions through modeling. The 

Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 30011

13Pun, B. and Seigneur, C. ‘‘Sensitivity of 

Particulate Matter Nitrate Formation to Precursor 

Emissions in the California San Joaquin Valley,’’ 

Environ. Sci. Technol., 2001, 35, 2979–2987.

sensitivity of ammonium nitrate 

concentrations to VOC controls is 

presented in the Plan (Appendix M, M–

6). A 50% reduction of VOCs results in 

only a small reduction of ammonium 

nitrate concentrations throughout the 

modeling domain. Plan at Appendix M, 

M–10. This suggests that even with large 

reductions of VOC concentrations, the 

reduction of the concentrations of 

ammonium nitrate will be small. 

Comment 2: Earthjustice comments 

that there is evidence that VOCs have 

much to do with facilitating the rate of 

PM formulation in the Valley. To 

support this argument, Earthjustice 

refers to an analysis by Pun and 

Seigneur, (Pun and Seigneur C, 

Conceptual Model of Particulate Matter 

Pollution in the San Joaquin Valley. 

September 8, 1998 at 3–12). 

Response: EPA agrees that VOC plays 

a role in the formation of ammonium 

nitrate in the Valley. However, EPA 

believes that the control of VOC is not 

an effective method to reduce 

ammonium nitrate in the SJV. EPA has 

examined the analysis by Pun and 

Seigneur, as well as other material, in 

considering the efficacy of a VOC 

control strategy in the SJV. The Pun and 

Seigneur conceptual model is also based 

on the IMS 95 database, and is therefore 

subject to the same limitations as the 

photochemical modeling used in the 

Plan. In addition, Pun and Seigneur is 

based on a less sophisticated box model, 

and is subject to the limitations of a box 

model, compared to the more refined 

grid model, UAM–Aero, presented in 

the 2003 PM–10 Plan. The commenter 

overstates the conclusion of Pun and 

Seigneur with respect to the efficacy of 

VOC control. Although the paper states 

that the basin may be either NOX or 

oxidant sensitive, it does not conclude 

which of the precursors is most 

influential in the SJV:

The ambient formation of HNO3 may be 

either NOX or oxidant sensitive. Although 

information regarding the dominant reaction 

was not available, indirect evidence from the 

diurnal profile of total nitrate (peak 

concentrations in the afternoon) seemed to 

indicate that the NO2 + OH reaction was an 

important nitric acid production route. Thus 

to understand which primary pollutants 

govern the formation of ammonium nitrate, 

we need to address the oxidation potential of 

the atmosphere and determine which 

pollutants (i.e., NOX or VOCS) are the most 

influential for the formation of oxidants in 

the system.

Although Pun and Seigneur raises the 

need to address the oxidation potential 

of the atmosphere and determine which 

pollutants are the most influential, it 

does not conclude that VOC controls are 

absolutely required in the SJV. The 

Plan’s more refined modeling, based on 

the IMS 95 study, discussed above, 

indicates that ammonium nitrate 

concentrations are not very sensitive to 

VOC control (Plan at Appendix M, M–

6) in the SJV. In other words, VOC 

controls will not have as great an effect 

on PM formation. The CRPAQS study 

should provide an improved database 

for more definitive results regarding the 

effect of VOC controls in reducing PM–

10 in the SJV. 

Comment 3: Earthjustice comments 

that the NARSTO report indicates ‘‘In 

the case of secondary winter PM nitrate 

in the SJV * * * nitrate formation is 

thought to be sensitive to VOC 

concentrations in many urban areas.’’ 

The report opines:

Reductions in NOX may not be the best 

course of action for reducing particulate 

nitrate in the possible VOC-sensitive 

wintertime condition. Box model simulations 

indicate that NOX reductions may have the 

counterintuitive effect of increasing 

particulate nitrate formation during winter 

(Pun and Seigneur, 2001). Therefore, 

coordinated efforts will be required to 

formulate control strategies beneficial to both 

ozone and PM air quality.

Response: We believe that the 

NARSTO report’s conclusions are 

subject to several limitations. They are 

based on ‘‘Sensitivity of Particulate 

Matter Nitrate Formation to Precursor 

Emissions in the California San Joaquin 

Valley,’’ Pun and Seigneur, 2001.13 As 

mentioned above, this study is based on 

the IMS 95 field study and therefore is 

subject to the same database limitations 

as the UAM–Aero modeling included in 

the Plan. In addition, Pun and Seigneur, 

2001 is based on a less sophisticated 

box model, and is subject to the 

limitations of a box model compared to 

the more refined grid model, UAM–

Aero, presented in the 2003 PM–10 

plan. Pun and Seigneur conclude:

It should be noted that the box model 

represents some domain-average chemistry 

but cannot characterize the locally specific 

chemical regimes. Other assumptions include 

stagnant conditions and aloft carry-overs of 

gaseous and PM pollutants. Further work 

should extend this box model analysis to a 

three-dimensional modeling study so that 

transport processes can be simulated and the 

spatial variability of the response of PM to 

precursors can be addressed. However, an 

extensive reliable database is needed for the 

application of a 3–D model. The forthcoming 

California Regional PM Air Quality Study 

(CRPAQS) database may provide such an 

opportunity.

While Pun and Seigneur indicates that 

the San Joaquin Valley air basin should 

not be sensitive to ammonia 

concentrations and may be sensitive to 

VOC, each of these conclusions is 

subject to the limitations of the 

investigation. EPA concurs that it is 

important to extend this analysis to a 

three dimensional modeling study using 

a more extensive database. In the Plan, 

CARB has presented a more refined 

modeling analysis based on a threedimensional model. The results of that 

modeling exercise indicate that nitrate 

concentrations are not very sensitive to 

VOC concentrations (Plan at Appendix 

M, M–6). Therefore, control of VOC will 

not be as effective as NOX control. The 

forthcoming CRPAQS database will 

provide a more extensive, reliable 

database to support additional 

modeling. EPA expects that the 

modeling results of the CRPAQS study 

will provide additional technical 

information and is approving the 

SJVUAPCD’s commitment to re-evaluate 

the 2003 PM–10 Plan with the results of 

CRPAQS and to submit a new plan to 

EPA by March 2006. 69 FR 5412, 5414. 

Comment 4: Earthjustice comments 

that the VOC emissions are probably 

underestimated for the SJV and that it 

is irresponsible of the Plan to not 

include controls for livestock waste, a 

significant VOC source, when the 

negative effects of VOC pollution are 

well-known. Furthermore, Earthjustice 

points out that the South Coast Air 

Quality Management Plan relies on VOC 

reductions to attain the PM–10 standard 

and that the SJV should, as the South 

Coast has, take the prudent course of 

action by including VOC reductions. 

Response: As discussed above, EPA 

has determined that for the purposes of 

section 189(b)(1)(B) and (e), VOC does 

not contribute significantly to PM–10 

levels which exceed the standards in the 

SJV. While the South Coast and the SJV 

each have a high level of ammonium 

nitrate, the air basins are quite different 

in terrain, meteorology, and emissions. 

In addition, the South Coast is primarily 

an urban area, while the SJV is a mix of 

rural and urban areas. Differences in 

relative emissions of precursors and the 

atmospheric conditions unique to each 

basin lead to different optimal control 

strategies for each basin. 

Comment 5: Earthjustice comments 

that EPA’s proposal to find that VOCs 

‘‘do not significantly contribute to PM–

10 levels which exceed the standard’’ 

may make it extremely difficult to 

regulate CAFOs at all under SB 700, 

which contains provisions requiring the 

District to show that either source 

categories of agricultural practices 

‘‘cause or contribute to violations of an 

ambient air quality standard’’ before 

30012 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

14 2003 South Coast Air Quality Management 

Plan, page 2–21. http://www.aqmd.gov/aqmp/

AQMD03AQMP.htm.

15See Chapter 3, 2003 PM–10 Plan, Appendix B: 

Basin-Wide Summary of District’s On-road Motor 

Vehicle Emissions Inventory; Appendix C: Updated 

Emissions Inventory Category Changes; Appendix 

D: Seasonal Emissions Inventories; Appendix J: 

Attainment Inventories; R1: Detailed Annual 

Emissions Inventories (CD–ROM); R2: Detailed 

Seasonal Emissions Inventories (CD–ROM).

issuing a permit or BACM/BACT 

analysis. 

Response: As discussed above, EPA 

has determined that VOCs do not 

significantly contribute to PM–10 levels 

which exceed the standard; however, 

the CRPAQS results may change this 

determination. In addition, VOC 

reductions may be necessary for ozone 

attainment, and the determination with 

respect to PM–10 does not alter that 

fact.

Comment 6: One commenter (D. 

Moralez) inquires about whether the 

determination that VOC controls will 

not lead to PM–10 reductions was made 

based on stationary controls under the 

District’s jurisdiction or whether other 

sources such as pesticides, fertilizers 

and insecticides were included. The 

commenter recommends including 

these sources in the evaluation. 

Response: EPA believes that all of the 

source categories mentioned by the 

commenter were included in the 

District’s evaluation. 

3. SOX

Comment 1: Earthjustice comments 

that secondary ammonium sulfate can 

be a significant contributor to PM–10 

concentrations in certain locations and 

at certain times of year, yet the Plan 

contains no controls on SOX. Pun and 

Seigneur at 3–14 (ammonium sulfate 

third largest component of PM–2.5 at 

Kern). 

Response: EPA believes that the 

contribution of ammonium sulfate to the 

PM–10 24-hour and annual standards is 

small, approximately 3–4% of the total 

mass. The Pun and Seigneur paper 

indicates that ammonium sulfate was 

the third largest component of PM–2.5 

at the Kern Wildlife Range:

Although ammonium sulfate only 

accounted for 6% (<3.4 μg/m3 at Kern 

Wildlife Refuge, <3.7 μg/m3 at Bakersfield) of 

the PM–2.5 measured during IMS 95 in the 

San Joaquin Valley, it was the third largest 

component at the rural site of Kern Wildlife 

Refuge.

The relative contribution of 

ammonium sulfate to PM–2.5 differs 

from the contribution to PM–10. The 

percentage contribution of ammonium 

sulfate to PM–10 levels in the San 

Joaquin Valley is low, especially at the 

locations exceeding the PM–10 24-hour 

and annual standards. The Plan at 

Appendix N, N39–43 lists the sulfate 

mass determined by Chemical Mass 

Balance model, based on a chemical 

analysis of the filters on days when the 

PM–10 standards were exceeded. The 

contribution of the sulfate mass to the 

24-hour standard ranges from 2.7 to 7.2 

μg/m3, approximately 3.5 to 4% of the 

total PM–10 mass. The contribution of 

the sulfate mass to PM–10 

concentrations violating the annual 

standard is 2.6 to 3.1 μg/m3. Plan at 

Appendix N, N–11. 

Comment 2: Earthjustice comments 

that the SCAQMD regulates all PM–10 

precursors, including SOX. 

Response: The relative importance of 

ammonium sulfate in particulate matter 

in the South Coast Air Basin is not 

identical to the San Joaquin Valley Air 

Basin. The South Coast Air Basin has 

measured a maximum 24-hour sulfate 

concentration of 20.6 μg/m3,14

substantially greater than the values of 

2.7 to 7.2 μg/m3 recorded for the SJV 

(see above). Because the technical 

analysis done for the SJV does not 

indicate that SO2 was a significant 

contributor to violations of the NAAQS 

in the SJV, it is not necessary to control 

SOX in the SJV to expeditiously attain 

the NAAQS.

B. Emission Inventory 

Comment 1: Earthjustice comments 

that the emissions inventories are 

incomprehensible, that specific activity 

levels, emissions factors and models are 

only summarized in the Plan, and that 

the emissions factors are spread through 

numerous studies, memorandums and 

documents on a compact disk available 

only by request. Earthjustice cites EPA’s 

TSD comment that the inventory ‘‘is a 

massive collection of data and requires 

a great deal of time to review* * *’’ but 

disagrees with EPA that the 

incomprehensibility is a ‘‘minor 

comment.’’ Earthjustice states that the 

inventories do not meet minimum data 

reporting documentation standards in 

EPA guidance, and thus should be 

returned to the State for modification. 

Response: The amount of data used to 

develop, maintain and update the 

emissions inventories for the SJV, a 

large and diverse area, is massive. The 

District and State have provided a 

detailed discussion of how the 

inventories are developed and 

summaries of the inventories in the 

2003 PM–10 Plan.15 The reference 

documents, R1 and R2, are provided on 

a compact disk (CD–ROM) and include 

numerous spreadsheets with volumes of 

information. Providing these documents 

in hard copy would require vast 

amounts of paper.

EPA believes that the information 

submitted to support the inventories is 

sufficient. The 2003 PM–10 Plan 

includes many summaries of the 

different types of inventories needed for 

the Plan, the compact disk provides the 

necessary documentation supporting 

how the inventories were derived, and 

supporting studies and memoranda 

regarding inventories are also included 

in the docket for this rulemaking. The 

State and District are also available to 

help interested parties find any 

supporting data for the inventories. 

While EPA notes the difficulty of 

evaluating these inventories due to the 

immense amount of information 

involved (see TSD, page 9) and the 

complexity of the airshed, EPA does not 

believe that the inventories are 

incomprehensible and need to be 

returned to the State. The summaries 

provided in the 2003 PM–10 Plan are 

very comprehensible and the supporting 

documentation on compact disk is 

available to any interested parties. 

Comment 2: Earthjustice comments 

that the Plan omits a number of critical 

pollution sources from the emissions 

inventory (i.e., cultivation emissions, 

agricultural and industrial bulk 

materials, poultry emissions, and 

windblown dust from orchard and 

vineyards). Earthjustice comments that 

the ammonia inventory is possibly 

underestimated due to using estimates 

(from Census of Agriculture) that may 

underestimate the number of poultry 

and cows. Earthjustice then comments 

that the emissions inventory lacks 

emissions from leaf blowers and general 

landscape and maintenance activities 

and that these emissions should be 

included in the Plan and not put off as 

‘‘further study measures.’’

Earthjustice also comments that there 

were numerous significant changes 

made to the inventories which are 

unjustified. Earthjustice states that 

drastic reductions in emissions for 

agricultural sources were made during 

2002–2003 based on ‘‘stakeholder 

suggestions’’ rather than scientific 

evidence. Changes noted by Earthjustice 

include: agricultural land preparation 

emissions decreased by approximately 

20,000 tons per year of PM–10; almond 

shaking emissions factor (EF) decreased 

by ten times from 3.7 to 0.37; CARB’s 

almond sweeping EF of 13.1 pound PM–

10/acre was rejected and replaced with 

a 3.7 EF; calf and heifer populations 

were excluded from dairy operation 

emissions; and changes were made to 

the internal combustion engine 

emissions, dropping it 275% from 47 

tpd of NOX to 17 tpd of NOX. 

Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 30013

16Once a plan has been adopted, EPA does not 

generally require plan elements such as emissions 

inventories to be revisited and updated in response 

to new information. The U.S. Court of Appeals for 

the District of Columbia Circuit recently addressed 

a similar issue and affirmed EPA’s position. Sierra 

Club v. EPA, 356 F.3d 296 (D.C. Cir. 2004).

17EPA has interpreted the BACM requirement in 

CAA section 189(b)(1)(B) to include BACT. ‘‘State 

Implementation Plans for Serious Areas, and 

Attainment Date Waivers for PM–10 Nonattainment 

Areas Generally; Addendum to General Preamble 

for the Implementation of Title I of the Clean Air 

Act Amendments of 1990,’’ 59 FR 41998, 42009 

(August 16, 1994)(Addendum).

Earthjustice also notes that EPA was 

‘‘surprised’’ by the ‘‘relatively low 

emissions estimates’’ for sand and 

gravel and the Plan does not make any 

commitment to further address this. 

Response: As stated in the 2003 PM–

10 Plan:

Emission inventories are never considered 

to be entirely complete at one given time. 

* * * [I]nventories can always be improved 

with the use of better emission factors and 

activity data. The District, in cooperation 

with ARB, is committed to continually 

updating the emission inventory as research 

studies, emission factor updates, and other 

information become available. When 

emissions data change dramatically, the 

District is committed to revising the 

inventory and to ensuring that any impact is 

reflected in the control strategy and the 

attainment demonstration.

Plan at 3–4. 

EPA concurs with the above statement 

by the District. CAA section 172(c)(3) 

requires a ‘‘comprehensive, accurate, 

and current’’ inventory of actual 

emissions from all sources; however 

EPA recognizes that inventories are not 

static, but are constantly being updated 

and renewed as new information, 

techniques and studies are made 

available.16 The State and District used 

the best available inventories at the time 

of plan development. If a State excludes 

any of the emission sources from its 

emission inventory, it must provide 

documentation on why the source(s) 

were excluded (PM–10 Emission 

Inventory Requirements, Final Report, 

September 1994, Prepared for: Emission 

Inventory Branch (MD–14), Sulfur 

Dioxide/Particulate Matter Programs 

Branch (MD–15), Office of Air Quality 

Planning and Standards, U.S. 

Environmental Protection Agency, 

Research Triangle Park, NC 27711, page 

20). CARB has provided additional 

information addressing why sources 

were emitted (April 21, 2004 

memorandum from Sylvia Morrow and 

Patrick Gaffney to Kurt Karperos, 

Follow-up information on San Joaquin 

Valley PM10 Plan emission inventory 

issues raised in public comment 

(Morrow and Gaffney memo)) and EPA 

expects the inventory will be updated as 

part of the State and District’s 

commitment to submit a new plan by 

March 2006. EPA generally relies on the 

State and local agencies to develop, 

maintain and update their inventories. 

CARB has a Web site with additional 

information on how California air 

districts create, maintain and use 

emissions inventories. The Web site is: 

http://www.arb.ca.gov/emisinv/district/

districtresources.htm.

For categories where Earthjustice is 

claiming that there are missing source 

category estimates, the Morrow and 

Gaffney memo provides additional 

discussion of how these emissions will 

not impact the attainment 

demonstration and how additional data 

may be obtained on these categories in 

the future. For categories where the 

emissions estimates have changed, 

generally going down, the Morrow and 

Gaffney memo provides additional 

discussion on what the lower estimates 

were based on and why they were used. 

The Morrow and Gaffney memo also 

addresses comments raised by D. 

Howekamp in a declaration supporting 

Earthjustice’s comments. EPA has 

reviewed the 2003 PM–10 Plan’s 

inventory and the Morrow and Gaffney 

memo and continues to believe that the 

Plan’s inventory was the best available 

inventory at the time of Plan 

development and thus satisfies the 

CAA’s requirement for a 

comprehensive, accurate, and current 

inventory. EPA expects that the District 

and State will include additional 

inventory revisions in their mid-course 

review due in March 2006. 

Comment 3: Earthjustice comments 

that the base year relied upon to 

determine de minimis levels is 

inconsistent and that different 

inventories are used in order to exempt 

sources. The Plastic and Plastic 

Products Manufacturing source category 

is provided as an example of a category 

whose de minimis determination is 

based on a different base year inventory 

(2003 PM–10 Plan, Table 4–8). In 

addition, they believe that federally 

approved control measures are 

necessary to ensure that de minimis 

source categories remain below the de 

minimis levels. 

Response: See section II.C.4. below. 

Comment 4: One commenter (LaSalle) 

states that emission estimates by CARB 

have been proven inaccurate. The 

commenter indicates that CARB 

estimates of dairy ROG emissions have 

historically been too high and CARB has 

failed to correct the problem.

Response: As discussed above, the 

emission inventories are continually 

being improved and updated with new 

data. EPA believes that CARB and the 

District used the best available 

information at the time of plan 

development and understand that 

further refinements will be included in 

future plan submittals. 

C. BACM Demonstration 

1. Commitments for BACM/BACT 

Comment 1: Earthjustice comments 

that a large number of significant source 

categories, in addition to Ag-CMPregulated sources, are not subject to 

adopted—or even proposed or 

identified—control measures. Until the 

relevant requirements are adopted—and 

no longer subject to change in the rule 

development process—for each of these 

source categories, EPA cannot 

conclusively determine that the Plan 

provides for the implementation of 

BACM/BACT for all significant sources 

of PM–10 and PM–10 precursors. As a 

result, Earthjustice claims that full 

approval of the Plan is improper. 

Earthjustice cross-references its 

additional comments on commitments 

which are addressed in section II.H 

below. 

Response: Section 189(b)(1)(B) 

requires that serious area PM–10 plans 

include ‘‘[p]rovisions to assure that the 

best available control measures for the 

control of PM–10 shall be implemented 

no later than 4 years after the date the 

area is classified (or reclassified) as a 

Serious Area.’’ Nothing in this language 

either requires a state to have adopted 

controls in place before a SIP revision 

can be approved into its PM–10 plan or 

forbids the adoption of an enforceable 

commitment to meet the statute’s 

BACM 17 requirement.

Consistent with this statutory 

language, EPA has historically 

determined that an enforceable 

commitment to adopt and implement 

BACM in a SIP meets this statutory 

requirement since it constitutes a 

‘‘provision to assure that BACM is 

implemented’’ by a fixed deadline. As a 

result, the commenters’ complaint that 

‘‘[b]y definition the plan fails to 

implement BACM/BACT for all source 

categories for which no developed 

control measures exist’’ has no merit 

since the statute itself does not impose 

such a requirement. Because the statute 

does not define what is a ‘‘provision to 

assure BACM is implemented,’’ EPA 

may adopt an interpretation reasonably 

accommodated to the purpose of the 

statutory provision. Chevron U.S.A., Inc.

30014 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

18EPA’s approach here does not represent any 

departure from prior Agency actions approving 

SIPs. See section II.H.

19CAA section 189(a)(1)(C) contains the same 

language as section 189(b)(1)(B) with respect to the 

implementation of RACM.

20See also SCAQMD Rule 403 (providing for 

alternative compliance mechanisms for the control 

of fugitive dust from earthmoving, disturbed surface 

areas, unpaved roads etc.). We approved this rule 

on December 9, 1998 (63 FR 67784). See also our 

approval of Maricopa County Environmental 

Services Department (MCESD) Rule 310 and Rule 

310.01 as meeting the RACM/BACM requirements 

of the CAA (67 FR 48718, July 25, 2002) and EPA’s 

proposed approval of Sections 90 through 94 of the 

fugitive dust regulations for Clark County as 

meeting those requirements (68 FR 2954, January 

22, 2003).

21 1997 Census of Agriculture, California 

Agricultural Statistics Service and Arizona 

Agricultural Statistics Service, U.S. Department of 

Agriculture (USDA).

v. Natural Resources Defense Council,

467 U.S. at 842–44.18

In accepting enforceable 

commitments to meet the requirements 

of section 189(b)(1)(B), however, EPA 

has required states to undertake an 

analysis to ensure that the regulation 

ultimately adopted pursuant to the 

commitment will represent a BACM 

level of control. As we describe in our 

proposed rule, a state must determine 

the technical and economic feasibility of 

potential control measures for each of 

the significant source categories. 69 FR 

5412, 5418. Thus the measure that is the 

subject of a commitment must describe 

generally the type and level of control 

to be adopted. 

Moreover, once the ultimate control 

measure is adopted and submitted to 

EPA, the Agency undertakes an 

additional evaluation to ensure that that 

measure meets the statute’s BACM 

requirements. See, e.g., the Arizona 

rulemakings in which EPA initially 

approved as RACM 19 a requirement in 

a state statute to adopt and implement 

best management practices for 

agricultural operations and 

subsequently determined that the rules 

adopted pursuant to the statute 

represented RACM/BACM. 64 FR 34726 

(June 29, 1999); 66 FR 51869 (October 

11, 2001); 67 FR 48718 (July 25, 2002).

2. Agricultural Conservation 

Management Practices (Ag CMP) 

Program 

Comment 1: Earthjustice comments 

that the Ag CMP program exists only in 

conceptual form, accounts for a large 

portion of fugitive dust emissions in the 

SJV and fails to provide for BACM-level 

controls for several reasons. 

First, Earthjustice comments that the 

Ag CMP program requires growers to 

select only one CMP per category (e.g.,

categories include unpaved roads, land 

preparation, harvest, etc.) which 

violates the RACM and BACM 

standards. Earthjustice argues that the 

RACM process requires adoption of all 

RACM and a reasoned justification must 

be provided for any rejected measures. 

Allowing growers to select only one 

CMP per category would allow growers 

to avoid adopting all RACM. 

Response: As discussed in our 

proposed rule, the District has chosen to 

reduce emissions from agricultural 

sources with a program, i.e., the Ag CMP 

program, that provides more flexibility 

than a typical command and control 

regulation. 69 FR 5412, 5420. The 

District’s 2003 PM–10 Plan commits to 

adopt and implement a program that 

will achieve BACM level controls by a 

specific schedule and 33.8 tons of 

emissions reductions. The 2003 PM–10 

Plan also states that:

[p]articipation in the Ag CMP program will 

be mandatory, but the growers will, by their 

own choosing, select measures most 

appropriate for their operation. The source 

categories include (1) unpaved roads, (2) 

unpaved vehicle/equipment traffic areas, (3) 

land preparation, (4) harvest, and (5) other—

including windblown PM10 from open areas, 

and agricultural burning * * *. Growers 

must select at least one management practice 

from each of the five categories. * * *

2003 PM–10 Plan, page 4–25. 

More than one management practice 

may be selected by a grower if it is 

technically and economically feasible, 

but a BACM level of control will vary 

from grower to grower. The plan points 

out that:

[e]missions from agricultural sources vary by 

many factors that are beyond the control of 

the grower. For example, drought conditions 

and related cuts in water deliveries can lead 

to increased fallow lands and more wind 

blown dust emissions. Market conditions can 

change quickly and can turn a profitable crop 

into a losing proposition. This limits the 

ability of growers to absorb the costs of 

controls in many cases.

Id.

The regulatory approach selected by 

the District is similar to those adopted 

by the SCAQMD for the South Coast Air 

Basin and by the Arizona Department of 

Environmental Quality for the Phoenix 

(Maricopa County) PM–10 

nonattainment area. See, e.g., discussion 

of the South Coast and Phoenix 

approaches at 66 FR 50252, 50268–

50271 (October 2, 2001) and 67 FR 

48730 (July 25, 2002). As we have 

pointed out in the context of the 

Phoenix program, farming operations 

are inherently complex and highly 

variable and therefore PM–10 controls 

need to be tailored to individual 

circumstances. Moreover, there is a 

limited amount of scientific information 

concerning the emission reduction 

potential and cost effectiveness of the 

available and known control measures 

for agricultural operations. Therefore, 

EPA has previously concluded that, 

given this rudimentary state of 

knowledge, requiring more than one 

control measure cannot be technically 

justified and could cause an 

unnecessary burden on farmers. 66 FR 

50268, 50269. 

We have also previously found that 

allowing sources the discretion to 

choose from a range of specified options 

is particularly important for the 

agricultural sector because of the 

variable nature of farming. As a 

technical matter, neither we nor the 

State is in a position to dictate what 

precise control method is appropriate 

for a given farm activity at a given time 

in a given locale. The decision as to 

which control method from an array of 

methods is appropriate is best left to the 

individual farmer. Moreover, the 

economic circumstances of farmers vary 

considerably. As a result, it is 

imperative that flexibility be built into 

any PM–10 control program for the 

agricultural source category whether 

that program is required to meet the 

RACM or BACM requirements of the 

Act. Id.

Furthermore, a requirement that an 

individual source select one control 

method from a list, but allowing the 

source to select which is most 

appropriate for its situation, is a 

common and accepted practice for the 

control of dust. For example, in our 

PM–10 federal implementation plan 

(FIP) for Phoenix, we promulgated a 

RACM rule applicable to, among other 

things, unpaved parking lots, unpaved 

roads and vacant lots. The rule allows 

owners and operators to choose one of 

several listed control methods (pave, 

apply chemical stabilizers or apply 

gravel). 40 CFR 52.128(d).20 In programs 

allowing a choice of compliance 

methods, it is clearly not feasible to 

require a regulated source to provide a 

reasoned justification for choosing one 

option over another.

As with the South Coast and Phoenix 

programs, EPA believes that the 2003 

PM–10 Plan’s commitment described 

above, in our proposed rule and in the 

2003 PM–10 Plan provides the 

flexibility necessary to allow for the 

variability in farming while still 

achieving a BACM level of control. 

Indeed, flexibility is more important in 

the SJV because of the far greater 

diversity and number of crops, acreage 

and soils. For example, in 1997, there 

were over 9 million acres farmed in the 

SJV as compared to approximately 

700,000 acres in Maricopa County.21

Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 30015

22 2002 California Department of Food and 

Agriculture Resource Directory.

23 2002 Arizona Agricultural Statistics Service, 

USDA.

Moreover, in 2002, there were 350 crops 

grown in California, 77 of which were 

found in large-scale commercial 

operations, and there were significant 

livestock and poultry operations. Six of 

the 10 agricultural counties in California 

are in the SJV.22 In contrast, in Maricopa 

County in 2002, five crops (cotton, 

wheat, corn, alfalfa and hay) comprised 

83.6% of the acres farmed.23

EPA also believes that the SJV Ag 

CMP approach is consistent with CAA 

section 172(c)(1) requiring the 

implementation of all RACM. EPA has 

long provided for certain limitations on 

that requirement. For example, EPA has 

not required the implementation of 

measures that would not advance 

attainment or measures for source 

categories that are de minimis. See 57 

FR 13498, 13540, 13560 (April 16, 

1992). These limitations have been 

upheld by the courts. See, e.g., Ober v. 

Whitman, 243 F.3d 1190 (9th Cir. 2001) 

and Sierra Club v. EPA, 294 F.3d 155 

(D.C. Cir. 2002). Similarly, and for the 

reasons discussed above, EPA has 

concluded that requiring more than one 

measure for the agricultural sector is not 

currently reasonably available. 

Comment 2: Earthjustice claims that 

the Ag CMP program does not meet 

BACM requirements since BACM is 

more stringent than RACM. 

Response: When a moderate area is 

reclassified to serious, the requirement 

to implement RACM in section 

189(a)(1)(C) remains. Thus, a serious 

area PM–10 plan must also provide for 

the implementation of RACM as 

expeditiously as practicable to the 

extent that the RACM requirement has 

not been satisfied in the area’s moderate 

area plan. 

However, we do not normally conduct 

a separate evaluation to determine if a 

serious area plan’s measures also meet 

the RACM requirements as interpreted 

by us in the General Preamble at 13540. 

This is because in our serious area 

guidance (Addendum at 42010), we 

interpret the BACM requirement as 

generally subsuming the RACM 

requirement (i.e. if we determine that 

the measures are indeed the ‘‘best 

available,’’ we have necessarily 

concluded that they are ‘‘reasonably 

available’’). Therefore, when, as here, a 

control measure is being developed to 

meet both the RACM and BACM 

requirements, a separate analysis to 

determine if the measures represent a 

RACM level of control is not necessary. 

In such a case, the usual progression 

from RACM to the generally more 

stringent BACM does not occur. The SJV 

is not unique in this respect. In the 

Phoenix area we approved State 

legislation and, subsequently, a general 

permit rule, for the agricultural sector as 

meeting both RACM and BACM 

requirements. See discussion at 66 FR 

50252, 50254–50255. 

Comment 3: Earthjustice comments 

that since there is no emission reduction 

target there is nothing to prevent 

operators from selecting only the least 

effective measure in a category when 

other more effective and feasible 

measures may be available. At a 

minimum, operators should be required 

to implement the most effective measure 

from each category to meet BACM 

standards. 

Response: As stated previously, the 

2003 PM–10 Plan commits to achieve a 

BACM level of control by reducing PM–

10 emissions for the overall agricultural 

category by 33.8 tons per year by 2010. 

2003 PM–10 Plan, 4–29. For the reasons 

discussed in our response to the 

previous comment, flexibility is needed 

in any program controlling agricultural 

sources. The Ag CMP program will 

require at least one measure from each 

of the five categories under the program, 

thus, where it’s economically and 

technically feasible, more than one 

measure may be implemented. 

Comment 4: Earthjustice comments 

that exemptions found in Draft District 

Rule 4550 (i.e., agricultural operations 

of less than 100 acres from the CMP 

program and animal feeding operations 

of various sizes) are not justified. 

Exemptions should be based on whether 

there is a de minimis contribution to the 

PM–10 problem and no demonstration 

is made as to whether or not these 

smaller sources can not be included. 

Comments also point out that smaller 

exemptions are found in other areas. 

Response: EPA has been working 

closely with the District during the 

development of Rule 4550 to ensure that 

the Ag CMP program will achieve a 

BACM level of control. That rule, 

however, is not the subject of this 

rulemaking. We will thoroughly 

evaluate the rule once it has been 

adopted by the District and submitted to 

us. Earthjustice will of course be able to 

comment on any rulemaking action EPA 

may take on Rule 4550.

EPA notes, however, that small 

quantity exemptions can be justified on 

an economic basis. Thus, even if sources 

smaller than 1 acre result in significant 

emissions, if control costs are too high, 

the BACM requirement may be deemed 

met with no control. Addendum at 

42010. Most federally-enforceable 

prohibitory rules have some sort of 

analogous small quantity exemption. 

See, for example, 40 CFR 60.32b(a), 40 

CFR 63.100(b)(4); District Rule 4305.2.1. 

Comment 5: Earthjustice comments 

that the Ag CMP program does not 

require BACM for agricultural 

windblown dust. Windblown dust is 

one of the most significant contributors 

to PM–10 in the SJV. Under the CMP 

program, windblown dust requirements 

are combined with other categories such 

as agricultural burning which is already 

subject to existing District rules and 

Senate Bill 705. Nothing prevents an 

operator from satisfying the CMP 

program by only complying with the 

agricultural burning requirements. 

Further, there is no evaluation of the 

Coachella Valley windblown dust 

measures. 

Response: The District’s 

meteorological analysis of wind speeds 

associated with PM–10 exceedances 

found that the exceedances largely 

occurred during periods of low winds 

and stagnant conditions in the fall and 

winter. 2003 PM–10 Plan, ES–10, 5–6; 

see also section II.L. below. Thus, 

windblown dust is not generally 

considered to be a significant 

contributor to PM–10 exceedances in 

the SJV and EPA believes that 

windblown dust measures are therefore 

not necessary for attaining the PM–10 

standards. 

The District recognizes, however, that 

there may be specific localized 

situations that warrant windblown dust 

measures and has included them in the 

Ag CMP program so that growers will 

have the flexibility to use them as 

needed (as well as in District Regulation 

VIII). 

Comment 6: Earthjustice comments 

that Draft Rule 4550 fails to set forth 

criteria by which the air pollution 

control officer (APCO) will implement 

the Ag CMP Program. Draft Rule 4550 

currently allows the APCO to weaken 

the Handbook, grant exemptions from 

the program, or to increase the number 

of control categories, all without public 

input or a SIP revision. Commenters 

believe that the CMP plans should be 

available for public review (to same 

degree as CAA Title V or operating 

permits are), should contain a 

mechanism to ensure citizens are able to 

verify that growers are participating and 

the CMP plans are being implemented, 

and that adjustments to rule 

applicability thresholds are subject to 

public review. 

Response: See our response to the 

previous comment. EPA is working with 

the District as it develops Rule 4550 to 

ensure that the Ag CMP program will 

achieve a BACM level of control. While 

Rule 4550 is not the subject of today’s 

30016 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

24The area was subsequently reclassified as a 

serious PM–10 nonattainment area. 61 FR 21372 

(May 10, 1996).

action, we note that the most recent 

draft limits the discretion of the APCO. 

Comment 7: Earthjustice comments 

that the Ag CMP Program must contain 

actual control measures. The ‘‘Ag CMP 

List’’ must be included as part of Rule 

4550 in order to allow citizens to 

challenge the substantive components of 

the list. Because EPA concedes that the 

lists were not available for EPA review 

for the proposal and without the lists, 

Earthjustice believes there is no basis for 

EPA’s conclusion that the Ag CMP 

program will achieve a BACM level of 

control (or even a RACM level). EPA 

justifies that the Ag CMP program’s 

program description and similarity to 

other EPA approved programs is enough 

to satisfy BACM, but Earthjustice 

believes this comparison must rely on a 

comparison of actual requirements. 

Since there are no adopted measures for 

the Ag CMP program, Earthjustice 

believes EPA cannot approve the 

program as BACM. Further, Earthjustice 

notes that EPA’s approval of Maricopa’s 

best management practices (BMP) 

general permit rule as BACM was based 

on a rule that was adopted and already 

approved as RACM. 

Response: EPA believes that the 

Agency can approve, as meeting the 

CAA’s BACM requirement, the 

commitment to adopt and implement 

the Ag CMP Program based on the 

description provided in the 2003 Plan. 

As discussed previously in section 

II.C.1. above, we believe that section 

189(b)(1)(B) does not require that BACM 

be in the form of an adopted rule. 

Moreover, the Plan, pages 4–23 to 4–29, 

contains a detailed description of the 

scope of the program. EPA believes that 

the Plan’s commitment to implement a 

BACM level of control for agricultural 

sources is sufficient to satisfy the BACM 

requirement. EPA will continue to work 

with the District as it develops Rule 

4550 to ensure that the Ag CMP program 

will achieve a BACM level of control.

In fact, the history of the control of 

agricultural operations in Maricopa 

County, alluded to by the commenter, is 

instructive. In August 1988, EPA 

promulgated a FIP for the Phoenix PM–

10 moderate nonattainment area.24

Among other things, the FIP provided 

for the implementation of RACM for 

agricultural fields and aprons via an 

enforceable commitment to propose and 

finalize adoption of RACM for those 

sources in September 1999 and April 

2000, respectively. In the preamble to 

the rule EPA explained that the Agency 

intended to convene a stakeholder 

process to develop the specific RACM 

that would ultimately be proposed for 

adoption and that EPA intended the 

RACM to take the form of BMPs. 63 FR 

41326 (August 3, 1988). Thus, rather 

than an adopted regulation, EPA 

promulgated a commitment 

accompanied by a conceptual 

description of the program to meet the 

CAA’s RACM requirements.

In 1997, Arizona passed legislation 

establishing an Agricultural BMP 

Committee and directing the Committee 

to adopt by rule by June 10, 2000, an 

agricultural general permit specifying 

BMPs for reducing PM–10 from 

agricultural activities. The legislation 

also required that implementation of the 

agricultural controls begin by June 10, 

2000 with an education program and 

full compliance with the rule be 

achieved by December 31, 2001. See 

Arizona Revised Statutes (A.R.S.) 49–

457. On June 29, 1999, we approved the 

legislation as meeting the RACM 

requirements of the CAA and withdrew 

the FIP commitment to adopt and 

implement RACM for agricultural fields 

and aprons in the Maricopa area. 64 FR 

34726. While more extensive than the 

FIP commitment, the legislation 

approved by EPA as meeting BACM is 

less detailed than the Ag CMP Program 

provisions in the SJV 2003 Plan. 

While we approved the Arizona 

legislation as RACM, it was the State’s 

intent that it also serve as BACM for 

agricultural sources in the serious area 

PM–10 plan. After a series of meetings 

during 1999 and 2000, the Agricultural 

BMP Committee adopted the 

agricultural general permit rule and 

associated definitions, effective May 12, 

2000, at Arizona Administrative Code 

(AAC) R18–2–610, ‘‘Definitions for R18–

2–611,’’ and 611, ‘‘Agricultural PM–10 

General Permit; Maricopa PM10 

Nonattainment Area’’ (collectively, 

general permit rule). The general permit 

rule contains the BMPs that regulated 

sources are required to regulate. We 

approved the general permit rule as 

meeting the CAA requirement for RACM 

on September 10, 2001 (66 FR 34598) 

and for BACM on July 25, 2002 (67 FR 

48718). 

Thus, in the Phoenix area, the 

development of RACM/BACM controls 

took a number of years and evolved 

from a simple commitment to adopt and 

implement RACM to a fully developed 

general permit rule with specific BMPs 

that provides for a BACM level of 

control. The evolution from a 

commitment through an expanded 

conceptual approach to the final rule 

was necessary for a number of reasons, 

chief among them that the agricultural 

sector had traditionally been 

unregulated. As such, extensive 

stakeholder input, among other things, 

was absolutely essential. In the SJV, the 

development of a mature regulatory 

program is necessarily following a 

similar path from concept to specific 

controls. 

Comment 8: One commenter (D. 

Moralez) inquires about the mechanism 

for including VOC controls in the Ag 

CMP program. Commenter also 

recommends a recordkeeping 

requirement for pesticides and other 

VOC-containing materials applied to 

agricultural crops in the Ag CMP 

program. 

Response: The 2003 PM–10 Plan does 

not include VOC reductions from the Ag 

CMP program. The District will be 

developing their ozone plan in coming 

months which may address VOC 

emissions from pesticides. 

3. Ag Crop Processing Losses and Ag 

Products Processing Losses 

Comment 1: Earthjustice comments 

that the Plan fails to implement BACM 

for agricultural crop processing losses 

and agricultural products processing 

losses. The Plan has identified these as 

significant source categories. As a result, 

it is not sufficient that the Plan merely 

states the District’s unenforceable 

intention to update these inventory 

items. 

Response: After the close of the 

comment period, we discussed this and 

other comments with District staff and 

received copy of a March 30, 2004 

memorandum from George Heinen 

(SJVUAPCD) to Scott Nester 

(SJVUAPCD) regarding, ‘‘EPA questions 

on 2003 PM10 Attainment 

Demonstration Plan’’ (SJVUAPCD’s

3/30/04 memo). As discussed in this 

memo, these categories were vestiges of 

past emission inventory practices and 

encompassed field activities (crop 

processing) and post-harvest activities 

(product processing). Implementation of 

BACM for the field activities is 

addressed by other components of the 

Plan, including the Conservation 

Management Practice program and state 

and federal mobile source controls. 

Implementation of BACM for the postharvest activities, which are primarily 

stationary heat sources, is also 

addressed by other components of the 

Plan, including SJV Rule 4306 (boilers, 

steam generators and process heaters), 

commitment C (dryers), and 

commitment I (small boilers, steam 

generators and process heaters). 2003 

PM–10 Plan, 4–23. The statement in the 

Plan regarding inventory improvements 

was not intended as a demonstration of 

BACM implementation. 

Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 30017

4. Plastics and Plastic Products 

Manufacturing Sources 

Comment 1: Earthjustice comments 

that the Plan fails to implement BACM 

for plastics and plastic products 

manufacturing sources. The Plan does 

not demonstrate that the regulations 

adopted in 2000 fulfill BACM nor does 

the Plan justify that it is appropriate to 

use an inventory for a different year in 

evaluating emissions from this category 

as de minimis. Furthermore, the Plan 

does not demonstrate that emissions 

from this source category will be de 

minimis in future years, when emissions 

are projected to increase.

Response: SJVUAPCD’s 3/30/04 

memo explains that after the Plan was 

developed, the District determined that 

emissions had been overestimated for 

this source category. It appears that the 

1.5 tons per day (tpd) emission estimate 

was based on obsolete inventory 

methods preceding consolidation of the 

eight county air pollution control 

districts into the SJVUAPCD. 

SJVUAPCD’s current emissions 

estimate, based on information for each 

of the specific sources within the 

category, is 0.07 tpd of PM–10. We 

believe that this information is derived 

from a more accurate methodology than 

the 1.5 tpd estimate and is well below 

the de minimis level of .9 tpd for PM–

10. 2003 PM–10 Plan, pages 4–14 to 4–

15. 

5. Cotton Gins 

Comment 1: Earthjustice comments 

that the Plan fails to implement BACM 

for cotton gins. The Plan merely 

describes various measures that could 

be adopted to implement BACM, and 

does not even clearly commit to specific 

requirements. 

Response: We agree that the 

description of this control measure on 

page 4–30 of the Plan does not explicitly 

commit to specific requirements for 

cotton gins. However, language on pages 

4–22, 4–23 and 4–30 clearly and 

explicitly commits to 1.5 tpd of NOX

emission reductions from this category. 

SJVUACPD’s 3/30/04 memo explains 

that the 1.5 tpd commitment was based 

on an assumption that high efficiency 

1D–3D and 2D–2D cyclones would be 

required of existing sources. EPA’s TSD 

noted that 1D–3D cyclones are 

considered BACT when issuing permits 

for new and modified sources in the 

SJV. BACT determinations associated 

with permits for new and modified 

sources are generally at least as stringent 

as BACM for existing sources because it 

is generally more cost effective to 

control new sources than existing 

sources. The Plan committed to adopt 

BACM requirements for cotton gins by 

the 4th quarter of 2004. SJVUAPCD has 

drafted Rule 4204 to regulate cotton 

gins, held workshops on the draft rule, 

and appears on schedule for 4th quarter 

2004 adoption. The April 6, 2004 draft 

staff report for Rule 4204 includes 

analysis of several alternative control 

strategies (e.g., rotary drum filters, 

mechanical conveyors and plenum 

chambers) which further supports the 

conclusion that 1D–3D cyclones 

generally fulfill BACM for this source 

category. 

6. Manufacturing and Industrial Fuel 

Combustion Sources 

Comment 1: Earthjustice comments 

that the Plan fails to implement BACM 

for manufacturing and industrial fuel 

combustion sources. The Plan merely 

describes generalized control concepts 

that could be developed, and does not 

even clearly commit to specific 

requirements. No basis is provided for 

EPA’s conclusion that controls to be 

developed for industrial water heaters 

will generally establish 30 ppm NOX

limits similar to SCAQMD Rules 1146.1 

and 1146.2. 

Response: We agree that the 

descriptions of these control measures 

on pages 4–31, 4–43 and 4–44 of the 

Plan do not explicitly commit to 

specific requirements for manufacturing 

and industrial fuel combustion sources. 

However, the language on pages 4–22, 

4–23, 4–30, 4–31 and 4–42 to 4–44 

clearly and explicitly commits to 2.2 tpd 

of NOX emission reductions from this 

category. SJVUAPCD’s 3/30/04 memo 

explains that the 2.2 tpd commitment 

was based on an assumption that a 30 

ppmv standard would be applied to 

these sources. This memo notes that, ‘‘as 

part of the Plan development effort, the 

District examined similar, existing 

standards and found the 30 ppmv limits 

in SCAQMD Rules 1146.1 and 1146.2 to 

be the most stringent rules, at that 

time.’’ SCAQMD staff reports for these 

actions include analysis of several 

control measures and estimates cost 

effectiveness of Rule 1146.2 

requirements as high as $8,400/ton for 

retrofitting some units. 

7. Oil Drilling and Workover 

Comment 1: Earthjustice comments 

that the Plan fails to implement BACM 

for oil drilling and workover sources. 

The Plan fails to evaluate lower 

emission limits such as those 

promulgated in Ventura County Rule 

74.16 and SJVUAPCD 4701 and the 

State has not submitted a revised 

version of SJVUAPCD Rule 2280. 

Response: The TSD associated with 

our proposed approval of the Plan 

explains that SJVUAPCD Rule 2280 and 

CARB’s portable equipment registration 

program (PERP, see 13 California Code 

of Regulations 2450–2466) provide 

BACM for this category. These rules 

establish numerous operational 

requirements and emission limitations 

for applicable engines. Sources may 

choose to register engines, including 

those used for oil drilling and workover, 

under either PERP or SJVUAPCD’s 

analogous Rule 2280 program. Most 

sources register under PERP because it 

is less expensive and allows use of 

portable engines throughout the state. 

We believe that PERP does on balance 

provide more stringent requirements 

than Ventura County Rule 74.16 for 

engines used in oil drilling and 

workover. While Ventura County Rule 

74.16.B.1 requires electrification of 

drilling operations, most sources have 

been exempted from this requirement 

under section C of the rule and few, if 

any, new wells have electrified as a 

result of this requirement (per telephone 

conversation between Karl Krause, 

Ventura County APCD, and Andrew 

Steckel). As a result, most sources 

subject to Ventura County Rule 74.16 

must comply with the State (adopted 

January 27, 2000 http://www.arb.ca.gov/

regact/ciengine/ciengine.htm) and 

national (40 CFR 89.112) Tier 1 NOX

standard for off-road compression 

ignition engines. By comparison, the 

PERP program has required most 

engines to comply with Tier 1 or more 

stringent Tier 2 standards. In addition, 

Ventura County Rule 74.16 applies only 

to new well drilling, while PERP applies 

to both new wells and well workover. 

We note that comparison to SJVUAPCD 

Rule 4701 limits is not necessary 

because Rule 4701 was not designed to 

control engines used for oil drilling and 

workover. 

8. Residential Water Heaters 

Comment 1: Earthjustice comments 

that the Plan fails to implement BACM 

for residential water heaters. The Plan 

does not demonstrate that Rule 4902’s 

40 nanogram/joule limit fulfills BACM 

in light of the 10 nanogram/joule limit 

in SCAQMD Rule 1121.

Response: SJVUAPCD’s 3/30/04 

memo explains that there is significant 

concern that Rule 1121’s technologyforcing limit of 10 nanogram/joule may 

not be adequately available by the 

compliance deadlines. The memo notes 

that SCAQMD has received 

approximately $1 million in mitigation 

fees from manufacturers to date for 

failing to meet Rule 1121’s currently 

applicable 20 nanogram/joule limit, 

suggesting that this limit is also not yet 

adequately available. In addition, all 

30018 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

25Final Staff Report for SJVUAPCD Rule 4692, 

March 21, 2002.

26 ‘‘Technical Support Document for Maricopa 

County Nonattainment Area PM–10 FIP: Revision to 

the Phoenix FIP final rule for Unpaved Parking 

Lots, Unpaved Roads and Vacant Lots,’’ January 19, 

1999, page 3.

manufacturers have requested a delay in 

implementing Rule 1121’s future 

effective 10 nanogram/joule limit. As 

discussed in the TSD for EPA’s 

proposed approval of the Plan, when 

Rule 1121’s more stringent limits are 

demonstrated to be adequately 

available, they may become a basis for 

future BACM determinations. 

9. Charbroiling 

Comment 1: Earthjustice comments 

that the Plan fails to implement BACM 

for charbroiling sources. Neither the 

Plan nor EPA has provided a 

demonstration that SJVUAPCD Rule 

4692 or SCAQMD Rule 1138 fulfills 

BACM. 

Response: In developing Rule 4692, 

Commercial Charbroiling, SJVUAPCD 

investigated the scope of the source 

category, currently available control 

technologies, emission reduction 

potential and cost-effectiveness of 

various options.25 SJVUAPCD 

determined that flameless catalytic 

oxidizers can reduce PM–10 emissions 

by 83% and VOC emissions by 86%, 

with an overall cost-effectiveness of 

approximately $3,000 per ton of 

reduced emissions. Fiber-bed filters, 

thermal incinerators, and activated 

carbon adsorbers were among the other 

control technologies considered. 

SJVUAPCD acknowledged that some 

technologies (e.g., thermal incineration) 

may result in higher control efficiencies, 

but SJVUAPCD believes these 

technologies are not practical to require 

for every source because of the overall 

expense and cost effectiveness. 

SJVUAPCD estimates that 

implementation of Rule 4692 will 

reduce PM–10 emissions by 0.11 ton/

day. Based on the requirements 

contained in Rule 4692 and the detailed 

analyses provided in the associated staff 

report, we believe SJVUAPCD has 

adequately demonstrated 

implementation of BACM for 

commercial charbroilers.

The TSD associated with our 

proposed approval of the Plan further 

notes that SJVUAPCD used SCAQMD 

Rule 1138 as guidance in developing 

SJVUAPCD Rule 4692 for this category. 

The TSD associated with our proposed 

approval of the Plan further notes that 

SJVUAPCD used SCAQMD Rule 1138 as 

guidance in developing SJVUAPCD Rule 

4692 for this category. SCAQMD Rule 

1138 is considered the most effective 

district regulatory standard in effect for 

this source category and SJVUAPCD 

Rule 4692 is nearly identical. See 

SJVUAPCD’s 3/21/02 staff report for 

Rule 4692. 

10. Regulation VIII Fugitive Dust 

Sources 

Comment 1: Earthjustice states that 

the ‘‘Fugitive PM–10 Management Plan’’ 

(FPMP) compliance alternative in Rules 

8061, 8071 and 8081 does not appear to 

have a basis for its inclusion and no 

other district has such a provision. The 

commenter compares Rule 8081’s 20% 

opacity limits, stabilized unpaved road 

requirements, and concrete compliance 

options (e.g., watering) to the FPMP 

compliance alternative’s minimum 

control efficiency requirement of 50% 

and its lack of a clear mandate to 

comply with 20% opacity. On this basis, 

the commenter states that the FPMP 

compliance alternative does not add any 

clear benefit to the rule and, in fact, 

could weaken it. 

Response: The FPMP’s requirement 

that 50% control efficiency be achieved 

is equivalent to the minimum control 

efficiency expected from compliance 

with Rule 8081’s surface stabilization 

requirement 26 which otherwise applies. 

We agree that the FPMP alternative does 

not contain an explicit requirement for 

sources to comply with 20% opacity. 

However, it is unclear whether 

compliance with 20% opacity would 

necessarily increase control efficiency 

for unpaved roads or parking areas 

above the minimum 50% control 

mandated. Also, while the FPMP 

alternative does not specify control 

measure options from which applicants 

can choose, all FPMPs must include the 

control measure to be applied (see Rules 

8011 and 8081, section 7.5.4.) along 

with specific information as to the 

method, frequency and intensity of the 

application. Therefore, the FPMP 

alternative offers the same minimum 

control efficiency (50%) and a defined 

method of control as would otherwise 

be achieved by compliance absent a 

FPMP.

Potential benefits of FPMPs include: 

owners/operators expressly planning in 

advance where and when vehicle trip 

thresholds in the rule will be exceeded 

and the details of dust suppressant 

application or other treatment; an 

emphasis on preventative control as 

opposed to remedial control in response 

to a 20% opacity exceedance, and; a 

potential mechanism for targeted 

inspections by the District. 

Comment 2: Earthjustice states that 

the Rule 8081 FPMP administrative 

requirement allowing growers to submit 

plans to the Natural Resources 

Conservation Service (NRCS) instead of 

to the SJVUAPCD is not justified. The 

NRCS’ role should be limited to 

providing technical information rather 

than evaluating compliance alternatives. 

Response: Although FPMPs do not 

need to be submitted to the District for 

approval, the District is responsible for 

developing guidance and criteria by 

which NRCS (specifically, local 

resource conservation districts or the 

Fresno Regional Office) would use to 

evaluate the FPMPs in order to verify 

their consistency with the District’s 

guidance. Therefore, the NRCS’ role is 

limited to reviewing the FPMPs for 

consistency with the District’s guidance, 

rather than evaluating compliance 

alternatives absent criteria. 

Furthermore, all verified FPMPs are to 

be made available to the District and the 

public. For these reasons, in addition to 

the requirement for FPMPs to 

demonstrate 50% control efficiency, we 

believe the FPMP administrative 

requirements are sufficient to ensure 

enforceable controls. 

Comment 3: Earthjustice states that 

Maricopa’s Dust Control Plan 

requirements (as contained in Maricopa 

County Rules 310 and 303) provide a 

more appropriate model for an 

acceptable FPMP. 

Response: Maricopa’s Dust Control 

Plan requirements are specific to 

construction sites, which have multiple 

sources of fugitive dust. The FPMP 

provisions of Rules 8061, 8071 and 8081 

only apply to unpaved roads and 

unpaved vehicle/equipment traffic 

areas. Therefore, we do not believe it is 

necessary for the FPMPs to be modeled 

after the extensive dust control plan 

requirements adopted in Maricopa 

County for construction sites. 

Comment 4: Earthjustice states that 

the Plan retains a threshold of 500–

3,000 average daily trips to trigger the 

requirement to pave shoulders in Rule 

8061. It is unclear what a threshold with 

a range means in practice. In order to 

meet BACM, the Plan should either 

establish the threshold as 500 average 

daily trips or justify any higher 

threshold. 

Response: The format of the 500–

3,000 average annual daily trip (AADT) 

threshold for existing paved roads in 

Rule 8061 does not adversely impact the 

rule’s clarity. In practice, cities and 

counties responsible for modifying 

existing paved roads determine the 

AADT of the road. If the AADT is 

between 500 and 3,000, Rule 8061 

requires a 4-foot shoulder to be 

established, and if the AADT is above 

3,000, Rule 8061 requires a 8-foot 

Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 30019

27PM–10 Plan at Appendix G, Exhibit C 

‘‘Supplemental BACM Analysis’’, page 27.

28SJVUAPCD response to April 21, 2003 EPA 

comments at No. 118.

29PM–10 Plan at Appendix G, page G–28.

30PM–10 Plan at Appendix G, Exhibit C 

‘‘Supplemental BACM Analysis,’’ page 17.

shoulder to be established. For purposes 

of meeting BACM, the rule clearly 

establishes 500 AADT as the baseline 

threshold above which paved road 

shoulder requirements apply. Thus, we 

do not agree with the commenter that 

the requirement is unclear or 

insufficient to meet BACM. 

Comment 5: Earthjustice states that 

although the Plan commits to remove 

the exemption for ‘‘implements of 

husbandry’’ from vehicle daily trip 

counts in Rule 8081, the 75 vehicle 

daily trip threshold should be lowered 

to account for higher emissions 

resulting from multiple wheelsets of 

implements of husbandry. The rule 

credits trips made by implements of 

husbandry the same as trips made by 

passenger vehicles and this may 

underestimate emissions from 

implements of husbandry. 

Response: The District’s BACM 

analysis for Rule 8081 evaluates 

emissions from both passenger vehicles 

and implements of husbandry with 

multiple wheelsets, e.g., tractors and 

implements with 8 wheels, using EPA’s 

AP–42 emissions factor equation for 

unpaved roads. The District concludes 

that a tractor operating between 4 and 

9 miles per hour produces 85–88 

percent of the emissions produced by a 

pickup truck traveling 15 miles per 

hour.27 This analysis supports including 

implements of husbandry in the rule’s 

vehicle trip threshold, but not the 

commenter’s assertion that implements 

of husbandry generate higher emissions 

than passenger vehicles and that the 75 

vehicle trip threshold should be 

lowered.

Comment 6: Earthjustice states that 

the District eliminated a proposed 

commitment to require that visible 

emissions not travel beyond the 

property line on the basis that such 

disturbances would be ‘‘subject to the 

District’s nuisance rule.’’ The 

commenter indicates that many counties 

in the Valley specifically exempt 

agriculture from nuisance rules and lack 

a mechanism to control dust traveling 

beyond property lines. The commenter 

concludes that no basis exists for 

SJVUAPCD’s elimination of its initial 

commitment to control visible 

emissions that travel beyond property 

lines.

Response: EPA’s proposed approval of 

Regulation VIII as BACM (69 FR 5420–

5421) absent a property line limitation 

for visible emissions was not based on 

the District’s statement that sources are 

subject to the District’s nuisance rule. 

Rather, we believe that a property line 

limit provides little to no benefit when 

a fugitive dust source is located well 

within the property line. Alternatively, 

if a source is located immediately 

adjacent to the property line (e.g., an 

unpaved road), it may be technically 

infeasible to comply with a property 

line limit which would essentially 

require that no dust be emitted. The 

applicable standard in Regulation VIII 

for visible fugitive dust is 20% opacity. 

Comparing the relative stringency of a 

property line limit to an opacity 

standard is technically difficult due to 

the variety of meteorological and other 

factors associated with any scenario. 

However, because the 20% opacity 

standard is determined at the source’s 

origin, we generally consider it to be the 

more stringent standard given the speed 

with which visible fugitive dust 

particles disperse into the atmosphere. 

Therefore, we are relying on the 

applicability of the 20% opacity 

standard in lieu of a property line limit 

for purposes of meeting the BACM 

requirement. 

Comment 7: Earthjustice states that 

the Plan unjustifiably lacks a 

commitment to include a 100-foot dust 

plume limit. SCAQMD Rule 403 

includes a 100-foot limit. The 

commenter notes that SJVUAPCD 

defended the importance of a plume 

distance threshold as a measure ‘‘of 

value for construction site managers to 

judge the need for additional control 

application’’ 28 and that ‘‘a combination 

of opacity with plume distance limits 

(e.g., 100 yards) is the best standard to 

use.’’ 29 Notwithstanding, SJVUAPCD 

eliminated the proposed commitment to 

establish a 100-foot dust limit.

Response: The District raises concerns 

as to the technical feasibility of 

compliance with a 100-foot limit, given 

the speed with which a moving vehicle 

or mobile construction equipment can 

cover a 100-foot area.30 The inclusion of 

a 100-foot limit in SCAQMD Rule 403 

does not mean it is necessary for 

Regulation VIII to meet BACM, as long 

as other applicable limits combined 

provide adequate stringency. We believe 

the combined effect of the 20% opacity 

limit and control measure requirements 

in Regulation VIII are sufficient to meet 

BACM.

11. Significant Sources of VOC, 

Ammonia and SOX

Comment 1: Earthjustice disagrees 

that a BACM demonstration is not 

needed for VOC, ammonia and SOX

based on the NOX/PM strategy. They 

question the defensibility of the NOX/

PM strategy and even if it is the most 

expeditious strategy for attaining the 

PM–10 standards, Earthjustice believes 

the District still retains the obligation to 

evaluate and include BACM/BACT for 

significant sources of VOC, ammonia 

and SOX as BACM are to be established 

generally independent of the attainment 

needs of an area. 

In addition, Earthjustice points out 

that livestock waste is the most 

significant VOC source under the 

District’s control, that the South Coast 

Air Quality Management District is 

controlling VOCs and ammonia from 

this source and that the SJV’s Ag CMP 

program only covers the PM–10 

emissions from this source. Pesticides 

and fertilizers is also a very significant 

source of VOCs in the SJV, not currently 

covered by BACM requirements. 

Finally, Earthjustice points out that 

EPA has previously provided comments 

to the District about the lack of BACM 

for non-de minimis sources of VOCs. In 

particular, Earthjustice points out that 

EPA wrote ‘‘Categories that must be 

analyzed for BACM include coatings 

and related process solvents; other 

cleaning and surface coatings; waste 

burning and disposal; food and 

agriculture (industrial processes); 

nonmetallic minerals (this BACM 

analysis should consider any processing 

activity not addressed by Regulation 

VIII) and landfill gases.’’ Earthjustice 

also points out that EPA commented 

that the steam enhanced oil well vents 

category had not been adequately 

evaluated for BACM as it did not 

contain provisions found in similar 

Ventura and South Coast rules. Since 

EPA previously treated these source 

categories as needing BACM, 

Earthjustice believes EPA has no basis 

on which to conclude that BACM 

demonstration are not needed at this 

time. 

Response: As discussed in section 

II.A. above, EPA is concurring with the 

SJV PM–10 Plan’s NOX/PM strategy 

until the CRPAQS results become 

available. Since, consistent with the 

NOX/PM strategy, VOC, SOX and 

ammonia reductions are not necessary 

for attainment, EPA believes a BACM 

demonstration is not necessary at this 

time for these precursors. 69 FR 5412, 

5423. If the CRPAQS results indicate 

that reduction of precursors other than 

NOX play a significant role in reducing 

PM–10, the District will be required to 

revise the 2003 PM–10 Plan to include 

BACM for those precursors and any 

additional reductions needed for 

expeditious attainment. 

30020 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

31Letter from Jack P. Broadbent to David L. Crow, 

RE: Preliminary Review of the Draft 2003 PM–10 

Plan, April 21, 2003.

32 ‘‘The resolutions adopted by the respective 

entities to commit to implement local government 

control measures are included in the Regional 

Transportation Planning Agency Commitments for 

Implementation Document, April 2002. The 

document is available for public review at the 

central San Joaquin Valley Unified APCD office 

located in Fresno. In accordance with the Air 

District planning process for the PM–10 Plan, these 

commitments are incorporated by reference into the 

PM–10 Plan. The ozone measures will provide 

emission reductions for precursor gases and help to 

address the secondary particulate problem.’’ PM–10 

Plan, Appendix I, page 4.

33EPA’s General Preamble includes a discussion 

of RACM provisions for TCMs: ‘‘Local 

circumstances relevant to the reasonableness of any 

potential control measure involve practical 

considerations that cannot be made through a 

national presumption. Various TCM’s must be 

locally coordinated to minimize contradictory 

results and maximize mutually supportive 

outcomes. Feasibility of TCM implementation can 

thus be particularly complicated, and EPA 

recognizes the importance of assessing candidate 

TCM’s in the context of each particular area’s 

situation. Finally, with respect to TCM’s or any 

other control measures, EPA does not believe that 

Congress intended the RACM requirement to 

compel the adoption of measures that are absurd, 

unenforceable, or impracticable (see 55 FR 38326, 

September 18, 1990). The EPA, therefore, concludes 

that it is inappropriate to create a presumption that 

all of the measures listed in section 108(f) are per 

se reasonably available for all nonattainment areas. 

All States must, at a minimum, address the section 

108(f) measures. The EPA believes that at least 

some of the measures will be reasonably available 

for implementation in many nonattainment areas. 

Where a section 108(f) measure is reasonably 

available, section 172(c)(1) requires its 

implementation.’’ 57 FR 13560 (April 16, 1992). 

The TCM RACM discussion concludes with 

comments on the legislative history of the 1990 

CAA Amendments and EPA’s 1979 guidance on 

RACM as construed by the Court of Appeals for the 

Ninth Circuit in Delaney v. EPA, 898 F. 2d 687 

(1990). 

In the 8/16/94 supplement to the General 

Preamble relating to SIPs for Serious PM–10 areas, 

EPA provided the following brief guidance on 

BACM for mobile sources: ‘‘It does not currently 

appear that mobile sources, as distinct from the 

surfaces on which they travel, contribute 

significantly to the PM–10 air quality problem in a 

sufficient number of areas to warrant issuing 

national guidance on best available transportation 

control measures for PM–10 under section 190 of 

the Act. However, in those areas where mobile 

sources do contribute significantly to PM–10 

violations, the State must, at a minimum, address 

the transportation control measures listed in section 

108(f) to determine whether such measures are 

achievable in the area considering energy, 

environmental and economic impacts and other 

costs.’’ Addendum at 42013.

In an April 23, 2003 letter to the 

District, EPA commented that certain 

VOC source categories needed to be 

evaluated for BACM; however, these 

preliminary comments were based on an 

initial review of the District’s Draft PM–

10 Plan dated March 25, 2003.31 In 

response to EPA’s comments, the 

District included an enforceable 

commitment to revise the 2003 PM–10 

Plan by March 2006 using the CRPAQS 

results which will provide the necessary 

technical information to clearly 

understand the role VOC, SOX and 

ammonia play in attaining the PM–10 

standards in the SJV. Given this 

enforceable commitment and the NOX/

PM strategy, EPA believes that requiring 

BACM/BACT demonstrations for VOC, 

SOX and ammonia is not warranted at 

this time.

12. Mobile Sources—Transportation 

Control Measures (TCMs) 

Comment 1: Earthjustice states that 

the Plan fails to include a BACM 

analysis addressing any section 108(f) 

TCMs. The Plan’s only reference to 

TCMs is its assertion that certain 

unspecified measures were analyzed by 

the Regional Transportation Authorities 

for the Valley’s ozone ROP plan, and are 

incorporated by reference in the plan. 

However, because the TCMs in the ROP 

plan were analyzed only for RACM, 

Earthjustice believes that the TCMs are 

insufficient to meet BACM 

requirements. The District errs in 

responding to a public comment that a 

BACM analysis needs to be performed 

when the District states that EPA’s 

Addendum does not require BACM for 

TCMs. 

Response: The 2003 PM–10 Plan 

incorporates the 2002 Ozone ROP Plan 

analyses and commitments by the 6 

metropolitan planning organizations 

and 2 transportation planning agencies, 

representing collectively the 8 counties, 

numerous transit agencies, and all of the 

cities in the San Joaquin Valley ozone 

nonattainment area.32 The commitments 

and feasibility analyses are included in 

Appendix E of the 2002 Ozone ROP 

Plan, which consists of approximately 

one thousand pages of TCM analyses 

and resolutions adopted by the local 

and regional governments, committing 

the governments to specific TCMs.

Although the Agency’s PM10 BACM 

guidance does not provide an extensive 

discussion of TCMs, EPA agrees with 

the commenter that the PM10 BACM 

requirement applies to TCMs.33 CAA 

section 108(f) lists 16 transportation 

control measures. In order to ensure that 

each entity reviewed comprehensively 

and consistently these measures, as well 

as subcategories of the measures, the 

San Joaquin Valley agencies broke the 

16 TCMs into a matrix of 126 measures. 

The agencies then expanded the matrix 

by adding 14 other possible measures 

(labeled 17), 9 ‘‘existing local 

government control measures’’ (18), and 

22 measures recommended for 

consideration by the public (19), for a 

grand total of 171 measures. Appendix 

E to the 2002 Ozone ROP Plan 

(incorporated by reference in the 2003 

PM–10 plan) includes for these 

measures the commitments adopted by 

the multitude of jurisdictions, as well as 

the entities’ reasoned justifications for 

not adopting particular measures. For 

example, see the ‘‘Fresno COG 

Summary of Commitments—2002 

Severe Area Ozone Plan,’’ displaying 

the commitments for the Fresno COG 

itself, Fresno County, the 15 cities in the 

County, and the 3 transit agencies 

relating to the matrix of candidate 

control measures.

Appendix E includes resolutions 

adopted by each entity. For each of the 

hundreds of measures where 

implementation has already occurred or 

is programmed to occur, the resolutions 

describe the measure fully, identify the 

responsible agency and implementation 

authority, set out the implementation 

schedule, present the levels of 

personnel and funding for 

implementation, specify the 

enforcement program (if any is 

required), and describe the monitoring 

program. 

EPA believes that the explanations for 

not including specific measures are 

equally applicable for BACM as for 

RACM, because the justifications reflect 

each entities’ careful considerations and 

conclusions that particular measures 

simply are infeasible for the area 

because of technical, practical, or 

economic reasons. See, for example, 

City of Ridgecrest table ‘‘Control 

Measures Which are Not Feasible for 

Implementation’’; City of Coalinga 

Resolution No. 2892; City of Orange 

Cove, Resolution No. 2002–12, Exhibit 

A—Local Government Control Measures 

That will not be Implemented; County 

of Fresno Resolution #02–128; Kern 

Council of Governments table ‘‘Example 

Local Government Measures.’’ The 

reasoned justifications are based on 

factors that make a measure either 

inapplicable or impractical to the area, 

such as density levels, urbanized area 

configuration, centers of employment, 

traffic volume and flow, congestion 

levels, measure redundancy, economic 

issues relating to implementing agencies 

or public participation levels, potential 

for measures to be counter-productive 

from an emissions perspective (e.g., 

creation of new one-way streets), 

absence of traffic signals, no means of 

reasonable enforcement, etc. The 

commenter has not shown that any of 

the analyses and commitments would 

be different for BACM, and EPA 

believes that they would not in fact 

differ. 

EPA therefore believes that both the 

analyses performed by the San Joaquin 

Valley transportation and governmental 

entities and the commitments by the 

Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 30021

34The San Joaquin Valley regional transportation 

planning agencies developed a Web site to provide 

the public with information on the BACM process.

35The CARB public notice of the proposed 

regulatory program provides the following summary 

of the intended regulation: ‘‘The ARB staff is 

proposing a regulation to reduce idling emissions 

from new 2007 and later model year on-road heavyduty diesel vehicles (HDDV) with gross vehicle 

weight rating greater than 14,000 lbs. The proposal 

requires HDDVs to be equipped with an idle 

shutdown system that will shut down the engine 

after 5 minutes of continuous operation at idle. The 

proposal allows the use of alternative idle reduction 

devices/strategies in order to provide heating and 

air conditioning for cab comfort, engine oil heating 

for easy engine start-up in cold ambient conditions, 

and electric power to charge batteries and for onboard accessories. Such devices include, but are not 

limited to, an automatic stop-start system, on-board 

auxiliary devices such as fuel-fired heaters and 

auxiliary power units, and power inverter/chargers 

for use with batteries and grid supplied electricity. 

The use of these devices, in lieu of operating the 

heavy-duty engine at idle, will result in significant 

NOX reductions. Reductions in ROG, carbon 

monoxide and carbon dioxide are also expected, but 

to a lesser extent depending on the type of 

alternative idle reduction device/strategy used.’’ 

More details on the proposed regulation, including 

the rule language, appear at: http://www.arb.ca.gov/

regact/hdvidle/hdvidle.htm.

36See, for example, the reasoned justification 

adopted by the City of Clovis in Appendix E of the 

2003 Ozone ROP Plan for not adopting an idling 

restriction: ‘‘This measure is infeasible for the City 

of Clovis Police Department to implement at this 

Continued

entities reflect a conscientious effort to 

assess the viability of achieving 

reductions from implementation of each 

of the section 108(f) measures and other 

possible candidate measures, and to 

adopt and expeditiously implement all 

measures that were determined to be 

available at this time. 

EPA believes that these assessments 

were conducted in a thorough process 

with full public involvement. The 

documents were subject to public 

review and comment in 5 public 

workshops before adoption by the local 

governments.34 Before adoption, the 

measures and assessments underwent 

an extensive process, which is 

summarized in Appendix I of the 2003 

PM–10 Plan in a document labeled 

‘‘Overview of Regional Transportation 

Planning Agency Process to Identify and 

Implement Best Available Control 

Measures in Support of the PM–10 

Attainment Plan for the San Joaquin 

Valley’’ (April 2003 RTPA BACM 

Submittal). This document sets out an 8-

step process for biweekly/monthly 

meetings to review candidate measures, 

obtain input and feedback, share 

information, and document in a 

consistent fashion conclusions on 

economic and technological feasibility 

and program selection and 

implementation. This 8-step process 

was followed as the plans were being 

prepared, and the agencies are 

continuing the process to reassess the 

viability of additional controls as 

circumstances change in the future. 

Again, the public is invited to 

participate in the process and the results 

of the process are readily available to 

the public on a continuing basis.

Finally, it should also be noted that 

the San Joaquin Valley regional 

transportation planning agencies 

reviewed the adopted measures and the 

candidate measure analyses in the 2002 

Ozone ROP Plan and concluded that 

they constitute BACM for TCMs and for 

other types of measures under their 

jurisdiction with respect to control of 

secondary particulate matter, such as 

NOX. The agencies further agreed that 

they needed also to address additional 

BACM controls for direct particulate 

matter to supplement PM BACM. ‘‘A 

key requirement for the PM–10 

Attainment Plan is the implementation 

of Best Available Control Measures 

(BACM). Since the ozone measures 

described in the previous section will be 

used to address the secondary 

particulate problem, the control 

measures being pursued for the PM–10 

Attainment Plan focus on direct 

particulate.’’ See ‘‘Overview of Regional 

Transportation Planning Agency Process 

to Identify and Implement Best 

Available Control Measures in Support 

of the PM–10 Attainment Plan for the 

San Joaquin Valley’’ (April 2003 RTPA 

BACM Submittal), page 5.

These analyses and the resulting 

measures are included as elements of 

the reentrained dust and street cleaning 

provisions of the plan (Regulation VIII), 

rather than as TCMs. EPA agrees that 

this is appropriate, since the only 

significant source of primary particulate 

matter associated with motor vehicles is 

reentrained dust from paved and 

unpaved roads, and the specific control 

measures to reduce those emissions 

(paving unpaved roads, stabilizing 

access points onto paved roads, curbing, 

sweeping, erosion clean-up, etc.) are not 

categorized as TCMs. See the definition 

of TCMs at 40 CFR 93.101: 

‘‘Transportation control measure (TCM)

is any measure that is specifically 

identified and committed to in the 

applicable implementation plan that is 

either one of the types listed in section 

108 of the CAA, or any other measure 

for the purpose of reducing emissions or 

concentrations of air pollutants from 

transportation sources by reducing 

vehicle use or changing traffic flow or 

congestion conditions.’’ Measures to 

reduce primary particulate matter 

emissions through reductions in 

‘‘vehicle use or changing traffic flow or 

congestion conditions’’ are already 

addressed in Appendix E to the 2003 

Ozone ROP Plan, since these categories 

of measures relate to the ozone 

precursors NOX and VOC. 

Comment 2: Earthjustice states that 

the transportation agencies may have 

proposed a measure to limit vehicle 

idling for the ozone ROP plan, but the 

plan appears to be voluntary and clearly 

fails to meet BACM. The Plan must 

evaluate implementation of enforceable 

idling control measures covering all 

vehicles and equipment throughout the 

Valley. 

Response: Many of the SJV 

jurisdictions, as part of their TCM 

assessment, considered and rejected 

mandatory idling controls at the local 

level as infeasible, because of 

enforceability, safety, and public health 

issues. Moreover, idling controls were 

also being developed on a Statewide 

basis in ways that would surmount the 

feasibility concerns associated with a 

local program. Before the PM10 Plan 

was prepared, CARB had already 

adopted the State’s Diesel Risk 

Reduction Program (October 2000), and 

as part of that plan had scheduled 

expeditious adoption and 

implementation of Statewide idling 

control programs for diesel vehicles. 

Also before the PM10 Plan was 

prepared, the State had already enacted 

the most stringent Statewide idling 

control measure in the country, a 

restriction on idling in the vicinity of 

schools. CARB has now scheduled a 

public hearing on July 22–23, 2004, to 

consider adoption of Statewide idling 

control regulations for heavy-duty diesel 

vehicles.35

One of the San Joaquin Valley 

agencies’ primary justifications for 

rejecting adoption and implementation 

of local idling restrictions was their 

determination that local police 

enforcement programs needed for nontechnology based restrictions on idling 

were simply infeasible. For the same 

reason, the proposed State program 

emphasizes required installation of 

tamper resistant, automatic idling 

control equipment, as opposed to an 

idling prohibition enforceable against 

vehicle operators. Like the commenter, 

CARB concluded that voluntary 

programs would be ineffective, based on 

evaluations of the State’s limited 

success using educational programs. 

Unlike the commenter, CARB 

determined that idling restrictions on 

gasoline-fueled vehicles and engines 

should not be pursued because the hot 

and cold start emissions associated with 

gasoline engines could cancel out or 

even exceed the benefits from reduced 

idling. San Joaquin Valley entities 

reached the same conclusion.36 Finally, 

30022 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

time because traffic stall or congestion is almost 

exclusively limited to short term signal light 

cycling. It would be impracticable and unadvisable 

to turn off engines during this time. Furthermore, 

based on the type of short-term traffic delays noted 

above, the City does not feel this measure would 

* * * reduce emissions. Rather this measure would 

increase emissions due to the stop and start of 

engines, as well as be an issue to public health and 

safety.’’

37 In the case of the serious nonattainment areas 

other than the SJV cited by the commenters, EPA 

had not made findings of failure to attain the 

serious area deadline. In such cases, section 

188(c)(2) and (e) continues to govern the applicable 

attainment deadline.

CARB decided to exclude from idling 

restrictions all commercial and school 

buses to avoid jeopardizing public 

health, in view of the need for 

continuous passenger cooling and 

heating.

EPA agrees with the State’s reasoning 

and conclusions regarding the best 

approach and appropriate targets for 

idling restrictions. Thus, EPA supports 

both the San Joaquin Valley agencies’ 

reasoned justifications for not pursuing 

local idling controls and CARB’s 

rationale for expeditiously developing, 

adopting, and implementing the 

proposed Statewide heavy-duty diesel 

vehicle idling control program. 

13. Mobile Sources—South Coast Fleet 

and Low Sulfur Diesel Rules 

Comment 1: Earthjustice claims that 

while the Plan includes a generalized 

commitment to control emissions from 

publicly-owned fleets, Regulation IX is 

merely in the ‘‘initial stages of 

development.’’ The Plan fails to 

incorporate or even evaluate the 

SCAQMD’s fleet rules. 

Response: Following adoption of the 

SCAQMD’s fleet rules, the Engine 

Manufacturers Association (EMA), 

joined by other parties, filed suit against 

the SCAQMD arguing, among other 

things, that such rules were preempted 

under section 209(a) of the Clean Air 

Act. Although the SCAQMD prevailed 

before the U.S. District Court and U.S. 

Court of Appeals for the Ninth Circuit, 

EMA appealed to the U.S. Supreme 

Court. EMA v. SCAQMD, Supreme Court 

Case Number 02–1343. On April 28, 

2004, the U.S. Supreme Court ruled that 

at least certain aspects of the SCAQMD 

fleet rules appear to be preempted by 

CAA section 209, and remanded the 

case. Based on this decision and 

pending final resolution of other issues 

of authority not addressed by the 

decision, EPA does not consider local 

air district adoption of rules similar to 

the SCAQMD’s fleet rules to be 

authorized or required.

Comment 2: Earthjustice comments 

that the Plan should incorporate a rule 

akin to SCAQMD’s rule 431.2 (low 

sulfur diesel). Although EPA will 

require all on-road vehicles to use low 

sulfur fuel by mid-2006 and California 

has proposed to adopt rules applying to 

off-road vehicles in 2006, the District 

could achieve significant reductions 

immediately with the introduction of 

low sulfur diesel, which would enable 

new control technologies. 

Response: SCAQMD’s rule prohibits 

producing or supplying greater than 15 

ppm sulfur fuel on and after January 1, 

2005, but that date would be extended 

to match a later compliance date 

adopted by CARB, if no later than June 

1, 2006. Rule 431.2(c)(4). CARB has 

workshopped amendments to the State’s 

diesel fuel regulations and issued the 

15-day notice for the rule amendments, 

based on the CARB Board’s 

authorization to proceed with the rule 

adoption, which is currently scheduled 

for July 24, 2004. On that date, CARB 

expects to amend the State’s diesel 

regulations not only to prohibit sale/

supply of greater than 15 ppm sulfur 

fuel on and after June 1, 2006, for 

mobile sources and stationary sources, 

but also to regulate fuel lubricity levels. 

Moreover, EPA’s national 15 ppm sulfur 

rule goes into effect June 1, 2006 for 

motor vehicles, and EPA has indicated 

its intention to finalize in the near 

future national low sulfur fuel 

restrictions for nonroad vehicles and 

engines as part of the Tier 4 nonroad 

standards, which were proposed on May 

23, 2003 (68 FR 28328). Finally, it is not 

clear that local agencies (as opposed to 

the State) have authority to adopt and 

enforce provisions relating to motor 

vehicle fuel specifications. For these 

reasons, EPA does not agree that 

adoption by SJVUAPCD of a rule 

comparable to SCAQMD’s rule 431.2 is 

appropriate or required as BACM at this 

time. 

D. Attainment Demonstration 

1. Attainment Deadline 

Comment 1: Earthjustice states that, 

under section 188(c)(2) and (e), serious 

PM–10 nonattainment areas such as the 

SJV may be granted at most one 

extension of their December 31, 2001 

attainment deadlines of no more than 5 

years, i.e., to no later than December 31, 

2006. Instead, in the proposed rule, EPA 

states that ‘‘because the SJV missed the 

2001 attainment date otherwise 

applicable, we believe that the 

attainment date is governed by other 

provisions of the CAA.’’ 69 FR at 5424. 

This is not a reasonable basis for failing 

to apply section 188(e) given the fact 

that EPA approved deadline extensions 

for other serious nonattainment areas, 

such as Clark County, Coachella Valley, 

Maricopa County, the South Coast and 

Phoenix, after they missed the 2001 date 

and still applied section 188(e). 

Earthjustice further states that EPA 

cites CAA section 179(d)(3) to support 

an extension of a PM–10 nonattainment 

deadline for the first time beyond 2006 

[sic]. Because the subpart 1 provision 

EPA cites applies to nonattainment 

areas in general as opposed to the PM–

10-specific subpart 4, EPA is not 

permitted to extend the attainment 

deadline for up to 10 years. If EPA’s 

interpretation were correct, EPA would 

be permitted to endlessly extend 

attainment deadlines for up to 10 year 

periods after each finding of 

nonattainment. Clearly Congress 

intended for all serious PM–10 

nonattainment areas to attain by 

December 31, 2006 at the very latest. If 

Congress ‘‘has directly spoken to the 

precise question at issue’’ and ‘‘the 

intent of Congress is clear, that is the 

end of the matter.’’ Chevron at 842–843. 

It is a general principle of statutory 

construction that where a statute 

addresses an issue specifically in one 

section and more generally in another, 

the more specific provision applies. 

Response: EPA’s conclusion regarding 

the attainment deadline applicable to 

the SJV appropriately reconciles the 

provisions of sections 188(c)(2) and (e) 

and 189(d). EPA agrees that, in the first 

instance, i.e., upon classification or 

reclassification to serious, the 

attainment deadline for such an area can 

be no later than December 31, 2001 

unless extended in accordance with the 

conditions in section 188(e) to no later 

than December 31, 2006. When section 

188(c)(2) and (e) is read in conjunction 

with section 189(d), however, it is clear 

that, after EPA has made a finding of 

failure to attain for a serious area, the 

provisions of section 189(d) apply to the 

subsequently required serious area 

plan.37 This is apparent from the plain 

language of section 189(d): ‘‘In the case 

of a Serious PM–10 nonattainment area 

in which the PM–10 standard is not 

attained by the applicable attainment 

date, the State * * * shall * * *submit 

within 12 months after the applicable 

attainment date, plan revisions which 

provide for attainment of the PM–10 air 

quality standard * * *.’’ Emphasis 

added. Section 189(d) clearly governs a 

situation in which a serious area has 

failed to meet its original attainment 

date of 2001 under section 188(c)(2) (or 

up to 2006 under section 188(e)) and 

therefore must submit a new plan that 

demonstrates attainment some date that 

is beyond the earlier established 

deadline. Thus, the attainment plan to 

be submitted within 12 months of the 

Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 30023

applicable attainment date which has 

been missed cannot be subject to the 

same attainment deadline as the 

previous plan.

Because, however, section 189(d) 

merely requires the new plan to 

‘‘provide for attainment,’’ EPA looked 

elsewhere in the statute to determine 

the outer bounds of that deadline. The 

only other provision of the statute that 

addresses planning requirements 

applicable to a PM–10 nonattainment 

area for which EPA has made a finding 

of nonattainment is section 179(d). 

Thus, the Agency did not ignore subpart 

4 in favor of subpart 1, but rather 

applied subpart 4 to its maximum extent 

before turning to subpart 1 to determine 

the applicable attainment deadline for 

the SJV under the prevailing 

circumstances. 

Under section 179(d)(3), the 

attainment deadline applicable to an 

area that misses the serious area 

attainment date is as soon as 

practicable, but no later than 5 years 

from the publication date of the 

nonattainment finding. EPA may, 

however, extend the attainment 

deadline to the extent it deems 

appropriate for a period no greater than 

10 years from the publication date, 

‘‘considering the severity of 

nonattainment and the availability and 

feasibility of pollution control 

measures.’’ Because section 189(d), 

standing alone, does not establish a 

specific outer attainment deadline for 

areas that fail to meet their original or 

(one time) extended deadline, EPA 

adopted an interpretation reasonably 

accommodated to the purpose of the 

statutory provisions. Chevron U.S.A., 

Inc. v. Natural Resources Defense 

Council, 467 U.S. at 842–44. In contrast, 

the commenters’ interpretation would 

write out of the statute entirely the 

language in section 189(d) that 

addresses attainment. 

Finally commenters claim that ‘‘if 

EPA’s interpretation were correct, EPA 

would be permitted to endlessly extend 

attainment deadlines for up to 10 year 

periods after each finding of 

nonattainment.’’ EPA has the 

responsibility under CAA sections 

179(d) and 188(b)(2) of determining 

within 6 months of the applicable 

attainment date whether an area has 

attained the standards. Once EPA 

approves a specific deadline for the SJV 

under section 179(d)(3), it becomes the 

applicable deadline for the purpose of 

such a determination. If the SJV fails to 

meet its 179(d)(3) deadline, the 

provisions of section 189(d) will once 

again apply. We believe that result is 

what Congress intended in these 

circumstances. 

2. Attainment Demonstration 

Overestimates Emission Reductions 

Comment 1: Earthjustice believes that 

the emissions reductions from certain 

control measures are drastically 

overstated. In particular, they point out 

that many of the proposed practices 

listed in the Ag CMP are commonly 

acknowledged to be in widespread 

practice already, but whose reductions 

have not been included in the emission 

inventory. Earthjustice argues that if this 

is the case, then the plan’s inventory is 

overstated and future reductions from 

the Ag CMP program to meet attainment 

and the 5% requirement will not be 

achieved because they are already in the 

baseline. In addition, Earthjustice points 

out that many of the emission factors 

have been lowered and the inventory 

may not reflect existing practices, thus, 

overstating future reduction estimates. 

Either way, Earthjustice believes that 

since many growers are already 

implementing the CMP, the current 

inventory and reductions for the 

attainment demonstration are not 

accurately portrayed. 

Response: The inventory and 

emissions reductions estimates found in 

the 2003 PM–10 Plan are based on the 

best available data at the time of Plan 

development. The District is currently 

developing the Ag CMP program’s rule 

and a draft list of CMP is available for 

review. As stated previously, that rule is 

not the subject of this rulemaking and 

we will thoroughly evaluate the rule 

once it has been adopted by the District 

and submitted to us. We note, however, 

that while some of the CMP on the draft 

list may already be implemented by 

some farmers, this may only mean that 

these farmers are already implementing 

BACM. We also note that the latest draft 

of Rule 4550 contains a backstop 

provision to ensure that sufficient 

emission reductions are achieved by the 

agricultural sector. 

3. Attainment as Expeditiously as 

Practicable 

Comment 1: CRPE comments that 

because the five percent requirement 

has not been adequately addressed and 

because the Ag CMP program does not 

require BACM, the Plan does not 

demonstrate attainment will be 

achieved as expeditiously as 

practicable. 

Response: Since we believe that the 

section 189(d) five percent requirement 

has been met and that the BACM 

requirement for agricultural sources has 

also been met, we continue to believe 

attainment is based on all reasonably 

achievable emissions reductions and is 

as expeditious as practicable. See, 

respectively, section II. E. and C.2.

E. Five Percent Demonstration 

Comment 1: Earthjustice and CRPE 

comment that the Plan fails to 

demonstrate ‘‘* * * an annual 

reduction of PM–10 or PM–10 

precursors of not less than five percent 

* * *’’ (emphasis added) as required by 

CAA section 189(d). The commenters 

assert that the statute is clear in 

requiring PM–10 or PM–10 precursor 

emissions to be reduced by at least 5% 

in each year. The commenters also point 

to legislative history which they assert 

precludes any interpretation of the 

statute that would allow less than 5% 

reduction of PM–10 or PM–10 

precursors in each and every year until 

attainment. Finally, the commenters 

note that the SJV is the first area subject 

to the requirements of section 189(d), 

making this an important question of 

first impression. 

Response: EPA agrees that this is a 

question of first impression and that the 

application of section 189(d) to the SJV 

is an important aspect of this action. 

Because EPA has not previously applied 

the provision, this action represents the 

Agency’s first experience with 

interpreting the provision in order to 

determine how best to implement the 

statute in light of the facts of an actual 

plan. As explained in the proposed 

approval of the Plan (69 FR 5412, 5430), 

EPA believes that the express statutory 

language allows the District to develop 

a plan that targets reductions of either 

direct PM–10 or PM–10 precursors in 

each year, and to alternate or vary the 

approach from year to year. This is a 

plain reading of the statute that gives 

effect to the word ‘‘or.’’ Even if the 

statutory provision were ambiguous on 

this point, EPA believes that its 

interpretation is reasonable, given that 

this reading of the statute provides some 

flexibility to the state to determine 

whether it is more effective or more 

practicable to obtain reductions of direct 

PM–10 or PM–10 precursors from year 

to year, as the facts and circumstances 

dictate, so long as the state is making 

progress towards attainment of the 

NAAQS as expeditiously as practicable. 

As further explained in the proposed 

rule, EPA believes that the express 

statutory language of section 189(d) 

authorizes the Agency to approve a plan 

that achieves 5% reductions of either 

direct PM–10 emissions, or 5% of the 

emissions of one or more precursors that 

EPA determines to be the precursor 

emissions appropriate for the District to 

target in order to attain the NAAQS as 

expeditiously as practicable. EPA 

believes that this is a literal reading of 

30024 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

the provision because the term 

‘‘precursor’’ must be read in light of 

what the District establishes and EPA 

agrees are the chemicals that are the 

PM–10 precursors for regulatory 

purposes in the SJV. Even if the statute 

were ambiguous on this point, EPA 

believes that it is appropriate to 

interpret section 189(d) to allow for the 

calculation of the 5% reduction of 

precursors based upon the overall 

strategy of the plan. This approach is 

confirmed by the terms of section 189(e) 

in which the statute permits EPA to 

determine whether or not certain 

precursors from stationary sources 

significantly contribute to violations of 

the NAAQS, in essence distinguishing 

between chemicals that may be 

precursors from an academic 

perspective and chemicals that should 

be precursors from the regulatory 

perspective. Were EPA to require the 

District to obtain 5% emission 

reductions of chemicals that are not the 

appropriate precursor or precursors to 

control, that could result in reductions 

that would not expedite attainment. 

In this case, the District has designed 

a plan that targets reductions of PM–10 

and NOX, because they believe that this 

strategy will be the most effective and 

efficient way to reach attainment. In 

order to comply with section 189(d), the 

District has therefor structured its plan 

to ensure that it will achieve reductions 

of either PM–10 or NOX sufficient to 

meet the 5% requirement. As explained 

elsewhere in more detail, EPA has 

evaluated the 2003 Plan as a whole and 

concurs that, based upon currently 

available information, the PM–10 and 

NOX reduction strategy will be the most 

effective approach to attain the PM–10 

NAAQS as expeditiously as practicable. 

Accordingly, EPA believes that the 

reference in section 189(d) to 5% 

emission reductions of ‘‘PM–10 

precursors’’ should be interpreted to 

mean 5% of the precursors that have 

been determined to be effective for 

achieving the NAAQS, i.e., 5% of the 

type of emissions that are PM–10 

precursors for regulatory purposes.

For the 2003 Plan, for example, the 

District has argued and EPA agrees that 

it would not be an effective strategy for 

the District to obtain 5% reductions of 

ammonia because this degree of 

ammonia reduction would not 

appreciably move the SJV towards 

attainment given that most portions of 

the area appear to be NOX-limited so 

that reductions of ammonia would not 

be as effective. Similarly, the District 

has argued and EPA agrees that 

reductions of VOC would not be as 

useful as reductions of NOX to reduce 

PM formation, so that achieving 

reductions of 5% of VOC emissions 

would not be as effective. With respect 

to SOX, the relatively small amount of 

SOX emissions in the District compels 

the conclusion that achieving annual 

reductions of 5% of SOX emissions 

would not significantly affect the 

ambient PM–10 levels in the SJV. 

In short, given the PM–10 and NOX

strategy adopted by the District and the 

supporting technical analysis and 

modeling they have provided, NOX is 

the regulatory ‘‘PM–10 precursor’’ in the 

SJV for purposes of section 189(d). 

Should this determination change as a 

result of further analysis in the CRAPQS 

study, the content of the section 189(d) 

requirement would also change. 

In light of these facts, EPA has 

concluded that it is appropriate to read 

the provisions of section 189(d) to 

permit the District to calculate the 5% 

reduction of PM–10 precursors based 

upon the overall strategy of the Plan, 

i.e., to require a 5% reduction of NOX

in those years that the District is not 

obtaining a 5% reduction of PM–10. 

EPA emphasizes that this approach is 

appropriate because the strategy and the 

technical support for the strategy 

indicate that NOX reductions are the 

most effective control strategy in the 

SJV, and that this conclusion might not 

be appropriate in other locations with 

different mixtures of emissions, sources, 

atmospheric conditions, and other planspecific considerations. 

These commenters also take issue 

with the way in which EPA has read the 

statute to allow the District to take 

credit for early reductions of PM–10 or 

PM–10 precursors. The commenters 

assert that because the statutory 

language requires ‘‘annual reductions in 

PM–10 or PM–10 precursor emissions 

within the area of not less than 5 

percent of the amount of such emissions 

as reported in the most recent inventory 

prepared for such area,’’ the District 

must obtain ‘‘at least’’ 5% reduction in 

each year of the Plan. 

As explained in the proposed rule, 

EPA does not believe that the explicit 

statutory language compels this 

approach and that such an 

interpretation of section 189(d) might 

not be the best way to encourage early 

reductions to achieve the NAAQS. 

Although the statute does use the term 

‘‘annual reductions,’’ the statutory 

language does not in fact use the 

phraseology advocated by the 

commenters. The provision does not 

explicitly require reductions of 5% ‘‘in 

each year,’’ ‘‘in each individual year,’’ 

‘‘in each and every year,’’ or in any such 

terms. The provision instead merely 

requires that the District’s plan must 

provide for ‘‘annual reductions’’ of not 

less than 5% and does not indicate that 

the plan could not allow such 

reductions to occur earlier than would 

otherwise be required, yet on average or 

when looked at as a whole, to have met 

the requirement of an annual 5% 

reduction. EPA notes that Congress did 

explicitly provide for required 

emissions reductions in each year in 

section 187(g), which is the analogous 

provision applicable to carbon 

monoxide (CO) nonattainment areas that 

fail to attain by the applicable 

attainment date. In that provision, the 

statute explicitly requires reductions of 

‘‘5 percent per year in each year.’’ 

Because this was not stipulated in 

section 189(d), we conclude that we are 

permitted to take a different approach. 

EPA believes that a plain reading of 

section 189(d) does not preclude an 

approach that permits earlier reductions 

to count towards the 5% calculation for 

subsequent years. To the extent that the 

provision is ambiguous on this point, 

however, EPA believes that its 

interpretation is preferable because 

encouraging reductions earlier is more 

consistent with obtaining emissions 

reductions and achieving the NAAQS 

more quickly. EPA acknowledges that 

the obligation to achieve the NAAQS as 

expeditiously as practicable is a 

separate and simultaneous obligation, 

yet also recognizes that legitimate 

concerns such as the cost and technical 

feasibility of control measures might 

result in decisions to delay or limit the 

implementation even of BACM level 

controls. By encouraging the District’s 

efforts to obtain reductions sooner 

through, e.g., the earliest possible 

implementation date notwithstanding 

resulting higher costs, EPA believes that 

an interpretation of section 189(d) to 

allow early reductions to count towards 

the 5% calculation for later years is 

consistent with the larger goals of the 

CAA.

EPA would not, however, agree that 

section 189(d) would allow 

‘‘backloading’’ of emissions reductions 

to meet the 5% calculation requirement, 

i.e., if reductions that occur in later 

years were counted towards the 5% 

requirement for earlier years. While the 

statutory language of section 189(d) 

might also be susceptible to an 

interpretation allowing backloading of 

reductions, EPA believes that such an 

interpretation would be inconsistent 

with the goal of the section, which is to 

move an area to attainment as 

expeditiously as practicable. In 

addition, other provisions indicate how 

Congress addressed situations in which 

reduction requirement backloading 

might be appropriate. In section 

182(c)(2)(B), Congress laid out a specific 

Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 30025

38 If the District had wanted to achieve 5% from 

a combination of PM–10 and NOX, they would have 

had to achieve 5% of each (i.e., 5 tons of PM–10 

and 10 tons of NOX) or it might also have been 

appropriate to achieve 5% of the total emissions of 

PM–10 and NOX (i.e., 15 tons total from PM–10 and 

NOX). This approach of calculating 5% from a 

single summed total of PM–10 and NOX may be an 

appropriate interpretation given the insertion of the 

word ‘‘or’’ into the statute, because the approach 

would at least comport with basic mathematical 

principles. It is unnecessary to resolve this latter 

point for purposes of today’s action, however, 

because the 2003 Plan did include another option 

for demonstrating the 5% calculation that EPA 

believes is acceptable and consistent with the 

statute.

approach for backloading of otherwise 

required VOC reductions. By contrast, 

were EPA to interpret section 189(d) 

rigidly to require at least 5% reductions 

in each year as the commenters assert is 

absolutely required, a state might feel 

compelled to schedule the 

implementation of controls in order to 

ensure that it could meet the technical 

requirement of at least 5% reductions in 

each and every year in order to avoid 

the legal consequences of failure to meet 

that requirement. This might result in 

decisions that were not optimal in terms 

of obtaining emissions reductions from 

as many sources as possible, as early as 

possible, thereby exalting the 5% 

requirement over the larger goals of the 

CAA. 

In support of their position that 

section 189(d) does strictly require 5% 

reductions in each and every year, the 

commenters quote a particular selection 

from the legislative history for the CAA 

in which the House Committee on 

Energy and Commerce summarized the 

provisions of H.R. 3030, and described 

section 189(d) as requiring a state ‘‘to 

reduce the total tonnage of emissions of 

PM–10 in the area by at least 5 percent 

per year in each year after submission 

of the plan revisions until attainment of 

the standard.’’ See 1990 CAA Leg. Hist. 

3021, 3292. Setting aside a debate about 

the relative weight appropriate to a 

particular piece of legislative history, 

EPA also believes that the quoted 

language itself does not necessarily 

contradict the Agency’s interpretation of 

the provision with respect to giving 

credit for earlier reductions. The House 

Report summary merely states that the 

provision requires a new plan that will 

reduce emissions by at least 5% ‘‘per 

year in each year,’’ but does not 

explicitly state that the plan could not 

provide for earlier reductions that could 

count toward the calculation for 

subsequent years. For the reasons stated 

above, EPA has concluded that 

encouragement of earlier reductions is 

important and strict adherence to an 

interpretation that might dissuade states 

from attaining reductions sooner is not 

a reasonable approach to interpreting 

the 5% requirement. 

Comment 2: Earthjustice and CRPE 

comment that neither of the District’s 

two options for demonstrating a 5% 

annual reduction satisfies CAA section 

189(d). 

Response: EPA agrees that one of the 

methods proposed by the District in the 

2003 Plan is unacceptable because it 

would allow improper calculation of the 

5% reduction by adding reductions of 

PM–10 and reductions of NOX to reach 

the target percentage. Unless the District 

determined the necessary amount of 

annual reductions by adding the total 

tonnage of PM–10 and NOX into one 

sum and then calculating 5% of that 

total sum, this method would be 

mathematically incorrect. To say that 

2% of 100 units of PM–10 and 3% of 

200 units of NOX equals 5% of one or 

the other or both is simply improper; 8 

units would not be 5% of 100 units, 200 

units, or 300 units. EPA contends that 

Congress cannot have intended 

application of the statute in a way that 

is inconsistent with basic mathematical 

principles, so this approach is not 

acceptable.38

In EPA’s proposed rule (69 FR 5412, 

5430), the Agency recognized that the 

‘‘Alternative Method’’ (see 2003 PM–10 

Plan, Table 7–2) for calculating the five 

percent requirement ‘‘* * * [a]chieves 

the 5% annual reduction of either PM–

10 or PM–10 precursors * * * [and] 

[c]arries forward any reductions beyond 

5% towards calculating the 5% 

requirement for a future year.’’ As 

explained in the response above, EPA 

believes that the explicit language of the 

statute permits the District to target 

reductions of either PM–10 or PM–10 

precursors in each year, and to vary the 

approach from year to year, depending 

upon whether it is more effective or 

more practicable to obtain reductions of 

direct PM–10 or PM–10 precursors from 

year to year, as the facts and 

circumstances dictate. In this approach, 

the District will obtain 5% reductions of 

either the total amount of NOX or the 

total amount of PM–10 in each year, or 

earlier. As described in more detail 

above, EPA believes that allowing the 

District to carry forward excess 

reductions in emissions to succeeding 

years is helpful because it will 

encourage earlier reductions and will 

provide practical flexibility that a strict 

numerical approach would not. 

Comment 3: CRPE comments that the 

alternative interpretation (‘‘Alternative 

Method’’) allows ‘‘extra’’ emissions 

achieved through BACM rules in 2003, 

2004 and 2005 to be applied to later 

years in order to meet CAA section 

189(d). CRPE believes that section 

189(d) requires the 5% reductions to be 

in addition to reductions achieved from 

BACM requirements since BACM 

requirements were required to be 

implemented by 1997. CAA section 

189(b)(1)(B); 64 FR 51489 (September 

23, 1999). In addition, CRPE comments 

that EPA’s rationale that allowing 

reductions ‘‘* * * to be carried forward 

in order to encourage emissions 

reductions as quickly as possible’’ 

should not apply to BACM requirements 

since they were due seven years ago. 

Response: The commenter is correct 

that the 2003 Plan uses reductions 

achieved through implementation of 

BACM level controls in order to meet 

the 5% requirement of section 189(d). 

The commenter asserts that this is 

inappropriate, given that the reductions 

required for BACM level of controls 

should already have occurred and that 

the 5% reduction requirement of section 

189(d) should be in addition to those 

previously required reductions.

EPA disagrees that this is the proper 

way to interpret section 189(d) in this 

situation. Congress did not explicitly 

word section 189(d) to provide that the 

5% reduction may not include 

reductions that would otherwise occur 

as a result of the implementation of 

BACM level controls. Instead, Congress 

simply required that a state that misses 

the serious area attainment date must 

submit a plan that provides for progress 

towards attainment on a regular basis, 

and did not qualify whether these 

reductions should occur through the 

imposition of RACM, BACM, or indeed 

any specific level of control. EPA notes 

that in another provision, section 

182(b)(1)(B), Congress did explicitly 

direct EPA to exclude certain emissions 

reductions for purposes of subsequent 

calculations. Similarly, in section 

182(c)(2)(B), Congress explicitly 

directed EPA to include certain 

emissions reductions in subsequent 

calculations. No such explicit directive 

appears in section 189(d). 

EPA believes that because the 

provision does not explicitly require the 

5% reductions to be over and above the 

reductions that could occur through 

implementation of BACM level controls, 

it is more appropriate to interpret 

section 189(d) literally as a requirement 

to implement controls that meet the 

percentage reduction requirement. 

Nevertheless, the District is still under 

an obligation to require BACM level 

controls to be implemented on the 

appropriate sources as soon as possible. 

In addition to the 5% requirement, the 

CAA imposes a continuing obligation to 

attain the NAAQS as expeditiously as 

practicable. Even if the statute is 

ambiguous with respect to whether the 

30026 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

39Within the statutory scheme, Congress 

implicitly recognized that states could not 

immediately implement BACM level controls. In 

section 189(b)(1)(B), the statute provides that a state 

plan must implement BACM within four years after 

classification or reclassification to serious PM–10 

nonattainment. In this instance, of course, BACM 

level controls should have been implemented by 

1997. The more general point, however, is that in 

developing a plan, EPA recognizes that it may not 

be possible for all controls to be implemented 

instantaneously.

40The Plan indicates that current funding sources 

include California’s Carl Moyer Program, State 

transportation funds, State peaker power plan offset 

funds, Federal Congestion Mitigation and Air 

Quality Improvement Program (CMAQ), and 

District Department of Motor Vehicle (DMV) 

Surcharge Fees. 2003 PM–10 Plan, page 4–62. It 

should be noted that revenue from the $4 DMV 

registration surcharge fee is a permanent source of 

IP funding under State law.

5% reduction requirement is in addition 

to other emission reductions, EPA 

believes that its approach is the most 

reasonable. EPA notes that the 

analogous provision for CO 

nonattainment areas, section 187(g), 

explicitly provides that a state’s plan 

must use certain measures that ‘‘in 

combination with other elements of the 

revised plan, shall be adequate to 

reduce the total tonnage by at least 5% 

per year.’’ EPA believes that this 

language demonstrates that Congress 

contemplated that a state would use a 

mixture of measures, including 

previously required or available 

measures, to obtain the reductions that 

would meet the 5% reduction 

requirement. Although section 189(d) 

does not include this identical ‘‘in 

combination with’’ language, EPA 

believes that the existence of this 

language in the analogous provision 

suggests that its reading of the statute to 

allow this approach for PM–10 is a 

reasonable one. 

As a practical matter, EPA recognizes 

that imposition of BACM level controls 

takes time and resources and that a state 

must often sequence its efforts in order 

to achieve the necessary level of 

controls.39 For example, with respect to 

BACM level controls on direct PM–10 

emissions from agricultural sources, 

EPA agrees that the District will need a 

reasonable period of time in order to 

implement the Ag CMP program. Were 

EPA to adopt the commenter’s 

approach, EPA would have to require 

the District to meet a 5% reduction 

requirement above and beyond the 

reductions from BACM controls on its 

sources, and to obtain those reductions 

well before the District’s rules could 

reasonably achieve those reductions. 

While EPA shares the commenter’s 

serious concerns that the SJV should 

attain the NAAQS as expeditiously as 

practicable, EPA believes that it would 

be unreasonable to require the District 

to obtain reductions in advance of the 

time that it can practicably do so 

through BACM level controls. EPA 

believes that the proper focus is on the 

requirements that the District 

implement BACM and that it do so in 

the manner and on the schedule that 

will provide for the most expeditious 

attainment of the NAAQS. In this 

context, the 5% requirement of section 

189(d) does provide an impetus for 

regular progress towards attainment, as 

it should. The commenter’s suggestion 

that the 5% be above and beyond and 

before what is achievable through 

BACM level controls is not a feasible 

approach, and therefore EPA believes 

that it is not an appropriate way to 

interpret section 189(d) in the 

circumstances at hand.

Comment 4: Earthjustice comments 

that the 2003 Plan includes incentive 

measures towards the calculation of the 

5% reductions required by section 

189(d). Because the measures are not 

regulatory and enforceable, and because 

the Plan indicates that funding for the 

measures has not been provided past 

2005, the commenter asserts that the 

reductions in the years 2005 to 2010 are 

not creditable toward the 5% 

demonstration. 

Response: The comment appears to 

refer to two measures in the SJV plan: 

Incentive Programs (IP) and Indirect 

Source Mitigation Program (ISMP). The 

District’s commitment to specific 

emissions reductions from these 

measures is shown below.

SAN JOAQUIN PM–10 SIP INCENTIVE PROGRAMS AND INDIRECT SOURCE MITIGATION PROGRAM

[Emission Reductions of NOX in Tons per Day (Annual/Seasonal)] 

Control measure 2005 2008 2010 

Incentive Programs .................................................................................................................................. 6.3/4.8 6.8/5.2 6.5/5.0 

Indirect Source Mitigation Program ......................................................................................................... 0.7/0.5 2.7/2.0 4.1/3.1 

Source: PM–10 Plan, Tables 4–17 and 4–18. 

The IP, which has been in actual 

operation since 1992, consists of various 

elements, including the Heavy-Duty 

Engine Emission Reduction Incentive 

Program, the Reduce Motor Vehicle 

Emissions (REMOVE) program for 

heavy-duty engines, a recently 

concluded program for light- and 

medium-duty vehicles, and a Green 

Yard Machine Program (electric 

lawnmowers). The IP is a longestablished program which is 

continuing, using various State-Federal 

funding sources, and the District has 

indicated that it will pursue new 

funding sources to achieve additional 

reductions claimed in years after 2005.40

The commenter quotes the 2003 

Plan’s discussion of the relationship 

between current funding and the 

emissions reductions associated with 

the measure:

Emission reductions projected to be 

achieved by completed projects and with 

currently committed funding amount to 6.1 

tons per day of NOX by 2005. The Air District 

expects additional funding will be obtained 

to allow continued emission reductions in 

later years.

As shown above, the District has 

committed to achieve an additional 0.2 

tpd of NOX reductions by 2010 beyond 

the level achieved in 2005 from already 

completed projects and presently 

committed funding. 

In the SJV, there is a long track record 

of District and State funding support for 

these incentive programs. Moreover, the 

quantification and documentation of 

obtaining of emissions reductions from 

these incentive programs are well 

established and fully adequate to 

validate the reductions. See, for 

example, the Carl Moyer Memorial Air 

Quality Standards Attainment Program 

Guidelines, electronically available at 

http://www.arb.ca.gov/msprog/moyer/

moyer.htm.

The Moyer program procedures have 

served as models for the design of 

national, state, and local credit 

validation systems for mobile source 

subsidy programs, and California 

continuously refines these guidelines to 

reflect accurately the reductions 

associated with the program subsidies. 

The procedures address emission 

reduction quantification issues 

associated with both baseline emissions 

and the amount of reductions 

Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 30027

achievable from the various repower, 

retrofit, and replacement technologies 

and alternative fuel options, as well as 

issues associated with project life, 

enforceable requirements to ensure that 

reductions must continue within the 

nonattainment area, etc. 

EPA believes that, by approving the 

Plan, EPA is approving the District’s 

enforceable commitments to continue to 

implement the long-established 

programs in the IP to achieve the 

specified reductions. EPA and the 

public may enforce this emission 

reduction obligation if the District fails 

to demonstrate that the reductions have 

been achieved by the milestones. EPA 

therefore disagrees with the commenter 

that credit towards the section 189(d) 

calculation for the IP is unwarranted.

While the IP is indeed an incentive 

program and relies on guidelines rather 

than rules, the ISMP is clearly intended 

to be enforced through new Rules 3180 

and 9510. In the plan, the District 

commits to final implementation of the 

ISMP regulations in the 4th quarter of 

2004 sufficient to achieve the projected 

reductions shown for the milestone 

years, similar to other regulatory 

measures. By approving the plan, EPA 

is approving the District’s enforceable 

commitments to implement new ISMP 

regulations to achieve the specified 

reductions. When Rules 3180 and 9510 

are submitted as SIP revisions, EPA will 

review those regulations, like the future 

regulations associated with other 

committal measures, to ensure that the 

rules meet applicable requirements, 

including federal enforceability. Thus, 

EPA disagrees with the commenter’s 

contention that the ISMP is an 

unenforceable and non-regulatory 

measure, and believes that it is 

appropriate to include it in the section 

189(d) calculations. 

Comment 5: Earthjustice comments 

that section 189(d) does not allow for 

‘‘running averages’’ using ‘‘banked’’ 

credits from year to year to meet the 

annual 5% reduction requirement. 

Earthjustice also comments that the 

Addendum states that annual reduction 

requirements require ‘‘linear progress 

for quantitative milestones’’ for areas 

which meet certain requirements, as the 

SJV does. Finally, Earthjustice states 

that CAA section 182(c)(2)(B) regarding 

ozone plans specifically allows for 

averaging and had Congress intended 

similar treatment for PM–10 plans, it 

would have included such language in 

section 189(d). 

Response: As discussed more fully in 

response to the commenter above, EPA 

believes that the explicit provisions of 

section 189(d) do not preclude an 

approach that would encourage earlier 

emissions reductions to count towards 

the 5% calculation for subsequent years. 

Even if the statute were ambiguous on 

this point, EPA believes that an 

interpretation that encourages states to 

obtain the reductions earlier than might 

otherwise be required consistent with 

prompt adoption and implementation of 

BACM level controls and attainment of 

the NAAQS as expeditiously as 

practicable, is an appropriate 

interpretation. The commenter 

disparages the approach by referring to 

it as ‘‘banking’’ or ‘‘running averages,’’ 

but EPA contends that such an approach 

is more consistent with the overall goals 

of the CAA and is more practical given 

what would otherwise be a potential 

disincentive to get reductions sooner 

out of concern that there might 

otherwise be a failure to get 5% 

reductions in a later year. 

With respect to the commenter’s 

reference to the ‘‘linear progress’’ 

requirement of the Addendum, as 

discussed in section II.F. below, that 

guidance addresses linear progress with 

respect to the reasonable further 

progress (RFP) provisions of the CAA 

applicable to the 2003 Plan. The 

discussion in the guidance, however, 

neither requires linear progress for RFP 

nor mentions at all the 5% requirement 

of section 189(d). Furthermore, EPA 

believes that strict adherence to the 

concept of a perfectly straight line on a 

graph representing emissions reductions 

is less important than obtaining the 

reductions earlier, if possible. Given the 

option, EPA would prefer that a section 

189(d) plan with a ten year strategy 

obtain 50% PM–10 reductions in year 

one rather than a more rigid plan that 

provided only for a ‘‘linear’’ reduction 

of 5% per year for 10 years. 

Unfortunately, the difficulties of 

devising rules, implementing rules, and 

obtaining emissions reductions are not 

usually conducive to such approaches 

and require a balancing of what is 

technologically, economically, and 

practicably achievable. This may not 

easily result in a straight line on a 

graph. 

EPA agrees with the commenter that 

the statutory language of section 

182(c)(2)(B) explicitly directs EPA to 

allow a state to use early reductions to 

meet ‘‘reasonable further progress’’ 

requirements for VOC emission 

reductions. These provisions do not, 

however, apply to PM–10 and do not 

necessarily indicate or control how EPA 

should interpret the different language 

of section 189(d). The commenter takes 

the position that had Congress intended 

to allow any early PM–10 or PM–10 

precursor reductions to count towards 

the 5% requirement for later years, 

Congress would have inserted 

provisions similar to section 

182(c)(2)(B) into section 189(d). EPA 

disagrees with the basic assertion that 

EPA should not credit early reductions 

towards the 5% calculation for a 

number of reasons, as discussed more 

fully in other responses. In this specific 

context, however, EPA notes that the 

bulk of the provision relevant to VOCs 

is necessary to specify the conditions 

under which EPA can allow a state to 

reduce the percentage of reductions 

otherwise required, not how to credit 

early emission reductions to meet the 

percentage reduction requirement for 

later years. This fundamental difference 

at least suggests that EPA need not 

follow section 182(c)(2)(B) even by 

analogy in interpreting section 189(d). 

To reiterate, EPA believes that its 

approach in effect ensures that the plan 

will achieve reductions of at least 5% of 

PM–10 or 5% of PM–10 precursors each 

year, but encourages earlier reductions 

rather than discouraging them.

Comment 6: Earthjustice comments 

that because the 2003 Plan relies on a 

1.5 to 1 ratio of NOX to PM–10 

(secondary nitrate) reductions for some 

modeling purposes, EPA should require 

the District to use this ratio to determine 

how many tons of NOX or PM–10 

reductions are necessary to meet the 

section 189(d) 5% requirement. The 

commenter suggests that requiring the 

District to use this ratio might cause the 

District to attain the NAAQS as early as 

2006, instead of its target date. 

Response: EPA agrees that having 

approved the NOX-PM–10 ratio for some 

purposes, it might theoretically be 

appropriate to consider requiring the 

District to use the ratio throughout the 

Plan, including in the section 189(d) 5% 

reduction calculation. However, in this 

respect, EPA believes that the literal 

language of section 189(d) refers to a 

plan that will obtain reductions of ‘‘5 

percent of the amount of such 

emissions, as reported in the most 

recent inventory prepared for such 

area.’’ The use of both the term 

‘‘amount’’ and the reference to ‘‘the 

most recent inventory’’ clearly seem to 

refer to emissions in units of weight, 

most appropriately tons, given that this 

is the common unit of emissions 

inventories. The explicit language of 

section 189(d) does not refer to 

calculation of the required reductions of 

tons of PM–10 or PM–10 precursors by 

any method that would weight them 

differently or require a specific ratio 

between the tons of reduction. Unlike 

other provisions of the CAA which 

impose an explicit obligation to make 

reductions of a given pollutant in 

accordance with a set ratio; e.g., sections 

30028 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

182(a)(4), 182(b)(5), 182(c)(10), 

182(d)(2), and 182(e)(1), section 189(d) 

does not include such a requirement. 

The lack of explicit language directing 

EPA to require a state to make the PM–

10 or PM–10 precursor reductions on a 

weighted or ratio basis is perhaps not 

surprising, given that Congress may well 

have recognized the inherent difficulties 

of specifying the proper ratio in all 

circumstances in advance in the statute. 

Nevertheless, had Congress desired EPA 

to make the calculations on an area by 

area basis, one would assume that the 

statute would expressly direct EPA to 

ascertain the proper ratio. Given that 

section 189(d) provides only that there 

must be a 5% reduction in the 

‘‘amount’’ of the respective pollutants, 

EPA believes that the language is plain 

on its face that tons of PM–10 or tons 

of PM–10 precursor reductions are to be 

weighted equally. 

Even if the language were ambiguous, 

EPA believes that its interpretation, that 

the statute directs the calculation of the 

percentage based upon the weight of the 

respective pollutants and a 1:1 ratio, 

would seem to be the easiest and most 

straightforward reading of the statute 

and method to perform the 5% 

calculation. Moreover, EPA notes that 

the legislative history cited by the 

commenters in support of other 

arguments discussed above, explicitly 

refers to section 189(d) as requiring a 

plan ‘‘to reduce the tonnage’’ of 

emissions and makes no explicit 

mention of any ratio between PM–10 

and precursors. EPA continues to 

believe that the legislative history cited 

by the commenters is not necessarily 

controlling as to Congressional intent 

concerning the provision, but if the 

legislative history is clear on any point, 

it would seem to be that the 5% 

calculation is to be based on tonnage of 

emissions and there is no reference to 

setting a ratio between direct PM–10 

emissions and PM–10 precursors. 

Comment 7: The SJVUAPCD 

comments that EPA should approve 

both methods for demonstrating the 5 

percent requirement. In particular, the 

District argued that adding the 

percentages of NOX and PM–10 to meet 

the 5% requirement would be similar to 

the ozone rate of progress guidance 

which allows aggregation of VOC and 

NOX reductions to achieve the 3% 

requirement. Given that there is no EPA 

guidance on meeting section 189(d), the 

commenter believes the ozone guidance 

for rate of progress should apply. 

Response: As stated in the proposed 

rule, EPA does not believe that the 

method summarized in Table 7–1 

satisfies the CAA section 189(d) 5% 

requirement because adding percentages 

does not achieve the necessary 5% 

reductions. 69 FR 5412, 5430. To 

illustrate this as simply as possible, 

assuming 100 tons of PM–10 and 100 

tons of NOX, the District believes that a 

2% reduction in PM–10 and a 3% 

reduction in PM–10 precursor should be 

allowed. However, this approach would 

only yield 5 tons of PM–10 and NOX

reductions. Since there are 200 tons of 

PM–10 and NOX, EPA does not believe 

that one could argue that 5 tons is 5% 

of 200. Because this approach would not 

make sense from a simple mathematical 

perspective, EPA has concluded that 

this cannot be a proper interpretation of 

the provision.

The existing guidance cited by the 

commenters concerning the use of either 

VOC reductions or NOX reductions to 

meet the rate of progress percentage 

requirements of other sections of the 

CAA is simply not controlling in light 

of the explicit statutory language of 

section 189(d). The commenters also 

misread the guidance. It requires the 

calculation of reduction of NOX and 

VOCs to be either 3% of total NOX and 

VOCs or 3% of NOX and 3% of VOCs. 

Finally, EPA believes that it is not 

necessary to used the strained 

mathematical logic of the commenter’s 

approach. As described above in 

response to other commenters, EPA 

does believe that the District’s 

alternative method for calculation of the 

5% reduction does comport with the 

statute, so EPA can properly approve 

the plan as meeting the requirements of 

section 189(d) requirements. 

F. RFP Demonstration 

Comment 1: Earthjustice comments 

that an analysis of the incremental 

reductions towards attainment is not 

provided in the 2003 PM–10 Plan. 

Earthjustice believes that the 5% 

demonstration does not satisfy the CAA 

section 172(c)(2) RFP and 189(c)(1) 

quantitative milestone requirements as 

it does not show linear progress toward 

the attainment date, which should be 

December 31, 2006. 

Response: The 2003 PM–10 Plan 

implies that the section 172(c)(2) RFP 

requirement is satisfied by meeting the 

5% requirement. However, as discussed 

in EPA’s proposed rule, ‘‘* * * RFP is 

a separate statutory requirement and is 

to be determined relative to attainment. 

Thus, in order to satisfy the RFP 

requirement, there must be an analysis 

which shows that incremental 

reductions towards attainment are being 

made for both the 24-hour and annual 

standards. * * * [EPA’s] evaluation of 

the attainment demonstration coupled 

with the expected yearly emissions 

reductions shows that RFP is being 

met.’’ We also determined that the 2003 

Plan contains quantitative milestones 

which are to be achieved every three 

years until the area is redesignated to 

attainment. The reader is referred to the 

proposed rule for the details of our 

evaluation. 69 FR 5412, 5430–1531. 

There is nothing in the language of 

either section 172(c)(2) or 189(c)(1) that 

requires linear progress. In fact, section 

171(1) defines RFP as ‘‘such annual 

incremental reductions in emissions 

* * * as are required by this part [D] or 

may reasonably be required by the 

Administrator for the purpose of 

ensuring attainment * * * by the 

applicable date.’’ Emphasis added. Thus 

the statute provides EPA with discretion 

to determine what constitutes RFP in 

individual cases. 

In the Addendum, we explain that 

historically RFP has been met by 

showing annual incremental emission 

reductions sufficient generally to 

maintain at least linear progress towards 

attainment by the specified deadline. 

Addendum at 42015. We then provide 

several examples of when ‘‘[requiring 

linear progress reductions may be 

appropriate.’’ Emphasis added. Id. The 

use of the word ‘‘may’’ clearly indicates 

that we did not intend to mandate linear 

progress in the cited circumstances. We 

further buttress this conclusion by 

explaining that ‘‘EPA will determine 

whether the annual emission reductions 

to be achieved are reasonable in light of 

the statutory objective to ensure timely 

attainment of the PM–10 NAAQS.’’ Id.

at 42016. 

In the case of the SJV, we have 

concluded that the annual incremental 

reductions in PM–10 and NOX

emissions are sufficient without linear 

progress to meet the RFP requirements 

of sections 172(c)(2) and 189(c)(1). 

G. Contingency Measures 

Comment 1: Earthjustice states that 

EPA’s proposed approval of the 2003 

PM–10 Plan omits any discussion of 

contingency measures required by 

section 172(c)(9) and is in violation of 

the CAA and the Agency’s own policy 

(Addendum at 40215). The likelihood 

that contingency measures will be 

necessary is a virtual certainty and in 

fact should have gone into effect within 

60 days of EPA’s July 23, 2002 finding 

of failure to attain. EPA has never 

proposed full approval of a SIP for a 

serious PM–10 nonattainment area 

without a discussion of the adequacy of 

contingency measures contained in the 

plan. The District of Columbia Circuit 

Court of Appeals in Sierra Club v. EPA,

294 F.3d 155 (D.C. Cir. 2002) recently 

vacated an EPA decision to approve a 

SIP without the required contingency 

Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 30029

measures. The commenters request that 

EPA address the adequacy of the 

contingency measures in the Plan in its 

final action and then specifies the ways 

in which they consider that the 

measures fail to meet the requirements 

of the Act. 

Response: EPA is not required by the 

CAA or Agency policy to act on 

contingency measures in a SIP at the 

same time that it acts on other elements 

of the plan. A SIP is not a single 

document that is prepared once and 

then reviewed and approved as a single 

action. Rather it is a collection of 

regulations, demonstrations, and other 

items that develops over time. When the 

State revises the plan, either to change 

an existing element or to add additional 

elements required by the statute, the 

revisions themselves, not the entire 

plan, are submitted to EPA. Thus, in 

reviewing the 2003 Plan, EPA did not 

have to consider whether the 

independent requirement to have 

contingency measures in the plan had 

been met. 

This conclusion is well supported by 

the language and structure of the Act. 

The basic requirements of a SIP for a 

nonattainment area, including the 

contingency plan requirement, are listed 

in section 172(c). The introductory 

language, by referring to ‘‘plan 

provisions’’ and ‘‘plan items,’’ makes 

clear that the contingency plan 

provision and the other subsections of 

this provision each set forth 

independent components of the overall 

plan. The specific plan revisions under 

review here are independent plan 

requirements that are required by 

separate sections of the statute, e.g., 

section 189(b) and (d). 

It is true that section 172(c)(9) refers 

to the inclusion of contingency 

measures in ‘‘the plan revision.’’ It is 

ambiguous, however, as to what plan 

revision this section refers. For example, 

section 189(b) and (d) requires various 

revisions to be submitted to EPA on 

different schedules: for areas such as the 

SJV that were reclassified from 

moderate to serious under section 

188(b)(1), the attainment demonstration 

is due within 4 years of reclassification 

and the BACM demonstration no later 

than 18 months from the 

reclassification. EPA determined that 

states must submit contingency 

measures for serious PM–10 areas (or 

otherwise demonstrate that adequate 

measures are in place) within 3 years of 

reclassification. Addendum at 42015. 

Thus, the contingency measures 

contemplated by section 172(c)(9) are 

intended to be part of a different plan 

revision from the attainment and BACM 

demonstrations required by section 

189(b). The fact that these submissions 

were to be made at different times 

clearly demonstrates that EPA is not 

required to consider contingency 

measures in its approval of the 2003 

Plan. 

The severability of these provisions is 

made even more clear by section 

110(k)(3), which was added as part of 

the 1990 Amendments to clarify that 

EPA is not required to approve or 

disapprove a submission as a whole, but 

may separately approve and disapprove 

different portions. It makes no sense to 

say that Congress gave EPA this 

authority, but at the same time 

prohibited EPA from approving the 

2003 Plan without acting on the 

contingency measures in it. Because the 

statute clearly allows EPA to approve 

these elements of the plan without 

considering other elements such as 

contingency measures, that is the end of 

the question. Chevron, 467 U.S. at 842–

43.

Consistent with the above 

interpretation of the Act, on April 13, 

2000, EPA proposed to approve certain 

provisions of the serious area PM–10 

plan for the Phoenix, Arizona 

nonattainment area. In the proposal, 

EPA stated that the ‘‘plan contains 

contingency measures as required by 

CAA section 172(c)(9). We are not 

proposing action on these contingency 

measures at this time. Contingency 

measures are a distinct provision of the 

Clean Air Act that we may act on 

separately from the attainment 

requirements.’’ 65 FR 19964, 19965. See 

also 62 FR 1150 (January 8, 1997) and 

65 FR 18903 (April, 10, 2000) (approval 

of provisions of California ozone plan 

revisions without acting on contingency 

measures in those revisions). 

EPA agrees with the D.C. Circuit’s 

holding in Sierra Club, 294 F.3d at 164, 

that contingency measures are required 

to be included in a SIP for a 

nonattainment area. EPA does not 

believe, however, that the Agency is 

prohibited from approving certain 

elements of the 2003 Plan without 

acting on the contingency measures in 

the plan. As demonstrated above, these 

are independent elements of the SIP that 

EPA can separately approve or 

disapprove. EPA also notes that the plan 

at issue in the D.C. Circuit’s decision in 

Sierra Club was an ozone plan subject 

to the provisions of section 182(c)(9) 

regarding the inclusion of contingency 

measures, while this plan is a PM–10 

plan not subject to those provisions. 

Because EPA is not acting on the 

contingency measures in the 2003 Plan 

in this action, the Agency is not 

responding to the comments raised 

regarding the adequacy of those 

measures in the Plan. EPA intends to act 

separately on the pending contingency 

measures and will respond to all 

comments on those measures at that 

time. 

H. Full Approval With Commitments 

Violates the CAA 

Comment 1: Earthjustice comments 

that the Plan must contain actual, 

adopted control measures to attain the 

PM–10 standard. The only enforceable 

commitments allowed by the Act are 

those pursuant to CAA section 

110(k)(4), conditional approvals, which 

require a commitment by the state to 

adopt specific enforceable measures 

within one year of the approval. 

Response: Our proposed rule provides 

in detail EPA’s rationale for accepting 

the enforceable commitments found in 

the 2003 PM–10 Plan (69 FR 5412, 

5427–5429). In short, EPA believes, 

consistent with past practice, that the 

CAA allows for the approval of 

enforceable commitments under CAA 

section 110(k)(3) that are limited in 

scope where circumstances exist that 

warrant the use of such commitments in 

place of adopted measures. See 69 FR 

5412, footnotes 28 and 29. The U.S. 

Court of Appeals for the Fifth Circuit 

recently upheld EPA’s interpretation 

and specifically found that nothing in 

the CAA or in the legislative history 

supports the theory that section 

110(k)(4) (added in the 1990 

Amendments to the statute) was 

intended to supplant the Agency’s use 

of enforceable commitments under 

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

court further found that, in the 1990 

Amendments to the CAA, Congress in 

fact expanded EPA’s authority under 

section 110(a)(2)(A). In this respect, the 

court concluded that because that 

section ‘‘is silent on the issue of 

whether an enforceable commitment is 

an ‘appropriate’ ‘means’ or ‘technique’ 

to reach attainment, EPA’s 

interpretation must be upheld if the 

court finds it a permissible construction 

of the statute.’’ The court proceeded to 

do so. BCCA Appeal Group et al. v. 

U.S.E.P.A. et al., 348 F.3d 93, 115 (5th 

Cir. 2003). In addition, see section 

II.C.1. above. 

Comment 2: Earthjustice comments 

that EPA does not use consistent 

methods for calculating the percentage 

of commitments for NOX and PM–10. 

Furthermore, EPA needs to evaluate the 

percentage of commitments used to 

specifically satisfy the 5% requirement. 

Response: EPA estimates that the NOX

enforceable commitments make up 

approximately 15–16% of the overall 

reductions since 1999 needed for 

attainment of the annual and 24-hour 

30030 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

41The overall change in NOX emissions since 

1999 also includes emissions from growth. Thus, 

EPA believes this approach may provide a higher 

percentage estimate of enforceable commitments 

since the additional reductions necessary to offset 

any growth are not included in the percentage 

calculation.

42According to the 2003 PM–10 Plan, ‘‘[o]ne 

reason for the apparent increase in growth in PM10 

in the mid-1990s is that a significant new emissions 

inventory category, prescribed burning, totaling 

approximately 23 tons per day, was added to the 

emissions inventory in the late 1990s and was not 

back cast into prior year inventories. With that 

correction, the PM10 inventory will show a small 

decline during that period. * * *’’ Id.

PM–10 standards (69 FR 5412, 5428). 

For PM–10, EPA estimates that the 

enforceable commitments make up 

approximately 72% and 92% of the 

reductions needed to attain the annual 

and 24-hour standards, respectively, in 

the attainment year, 2010 (69 FR 5412, 

5428–5429). 

EPA believes that the calculation of 

the reductions in the Plan attributable to 

enforceable commitments should 

include the historical and ongoing 

reductions from already adopted 

programs. This approach (which 

Earthjustice calls the ‘‘net emissions 

reductions’’ method) is used in 

estimating the NOX reductions where 

the enforceable commitment reductions 

in 2010 are compared to the change in 

overall NOX emissions since 1999 

which include reductions from already 

adopted programs (i.e., state and federal 

mobile source and district stationary 

source rules).41

For the PM–10 enforceable 

commitments evaluation, however, EPA 

uses a different approach. This is 

because ‘‘[t]he PM–10 inventories do 

not have the same steady decline 

exhibited by the NOX inventories due to 

the need to further refine the backcasted 

inventories for PM–10.’’ 69 FR 5412, 

5428; see also 2003 PM–10 Plan, p. 4–

8 to 4–9.42 Since using the NOX

approach does not provide a 

comparison of the 2010 PM–10 

enforceable commitment reductions to 

the reductions from already adopted 

programs since 1999, EPA believes that 

a better approach in evaluating the PM–

10 enforceable commitments reductions 

is to compare them to the total 

reductions needed in the attainment 

year (which Earthjustice calls the 

‘‘annual emissions reductions’’ 

method).

The purpose of the percentage 

calculations for the NOX and PM–10 

enforceable commitments is to estimate 

the portion of the 2003 PM–10 Plan 

attributable to enforceable 

commitments. EPA believes the two 

approaches above do just that and does 

not believe that a consistent approach 

must be used. For this reason, EPA does 

not believe that the percentage of 

enforceable commitments must be 

evaluated for separate CAA 

requirements such as the 5% 

requirement and reasonable further 

progress demonstrations.

Comment 3: Earthjustice comments 

that the ‘‘three-factor test’’ used to 

determine the acceptability of the 

commitments is not consistent with the 

Act. The fact that district court 

decisions have made State commitments 

enforceable does not mean that EPA can 

approve commitment-based plans, 

especially since there is nothing in the 

Act that allows it. Furthermore, even if 

the three-factor test is allowed, the 

factors are not met. 

Response: EPA does not rely on 

district court decisions holding 

commitments enforceable as the basis 

for the Agency’s approval of plans 

containing commitments. As discussed 

above and in our proposed rule, the 

Fifth Circuit Court of Appeals in BCCA 

Appeal Group recently upheld EPA’s 

interpretation of CAA sections 

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

Agency’s use and application of the 

three factor test in approving 

enforceable commitments in the 

Houston-Galveston ozone SIP. 69 FR 

5412, 5427, footnote 30. In addition, as 

discussed below, EPA believes the three 

factors have been met. 

Comment 4: Earthjustice comments 

that the first factor, that the 

commitments address a ‘‘limited 

portion’’ of the Plan, is not satisfied by 

the Plan and that the percentage of 

commitments calculated by EPA is 

extremely high. The 15–16% of 

commitments for NOX reductions and 

72–92% of commitments for PM–10 

reductions are clearly not a limited 

portion of the Plan. Earthjustice points 

out that the Maricopa County, Arizona 

PM–10 plan had a limited portion of 

commitments which involved 

improvements to already adopted rules 

and improving testing and enforcement, 

and all of the BACM measures had been 

previously approved by EPA. The Clark 

County, Nevada plan’s commitments 

were for incremental reductions above 

an already adopted baseline with 

substantial immediate reductions. These 

commitment percentages far exceed the 

6% found to be reasonable by the Fifth 

Circuit Court [in BCCA Appeal Group] 

for the Houston SIP. 

Response: The enforceable 

commitment component in the SJV plan 

is higher than for other areas such as 

Maricopa and Clark Counties; however, 

we believe that the percentages must be 

evaluated on a case-by-case basis since 

each area’s circumstances are different. 

For example, as noted in the proposed 

rule:

* * * a significant portion * * * of the 

needed reductions come from the Ag CMP 

Program which controls agricultural fugitive 

dust sources, a previously unregulated 

category. * * * measures for agricultural 

sources must be determined on a case-bycase basis. The Ag CMP Program is an effort 

that is well under way as the District has 

worked diligently with stakeholders * * * to 

develop the best available measures for the 

SJV. An enforceable commitment is 

necessary at this time in order to allow the 

additional time required to further assess the 

dust measures that the District will establish 

for agricultural sources. * * *

69 FR 5412, 5428–5429. 

In contrast, Clark County did not need 

to include any significant agricultural 

controls in its plan, and neither Clark 

County nor Maricopa County needed to 

evaluate and prepare control strategies 

for secondary PM, while at the same 

time developing primary PM controls. 

Indeed, with the possible exception of 

the South Coast area, no area in the 

country has had to undertake the 

complexity of the control measure 

development task facing the SJV, with 

its remarkably diverse primary and 

secondary PM problem, the dominant 

place of agricultural controls in its 

attainment strategy, and the magnitude 

of its emissions reductions target. See 

also, section II.C.3., response to 

comment 7. Given the prevailing 

conditions in the SJV, EPA believes that 

the percentage of commitments in the 

Plan is acceptable. 

Moreover, the majority of the SJV’s 

PM–10 commitments have adoption and 

implementation dates in 2004. EPA 

noted in the proposal that ‘‘[g]iven the 

difficulties in controlling direct PM–10 

in the SJV and the near term adoption 

and implementation dates, EPA believes 

the PM–10 reductions coming from 

enforceable commitments is 

acceptable.’’ EPA continues to believe 

that the percentage of enforceable 

commitments for PM–10 is acceptable 

given these circumstances.

Comment 5: Earthjustice comments 

that the second factor, that the State and 

District are capable of fulfilling their 

commitment, is also not satisfied by the 

plan. Earthjustice does not understand 

how ongoing development, past records 

of accomplishment and a promise to 

fulfill the reduction commitments show 

that they are capable of fulfilling their 

commitments. Instead, Earthjustice 

notes the District’s history of failures 

and believes there is no basis for EPA 

to conclude that the District will fulfill 

the Plan’s commitments. 

Response: EPA disagrees and believes 

that ongoing development, past record 

Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 30031

43Tables 4–15 and 4–16 represent the estimated 

emissions reductions from commitments for the 

annual and seasonal inventories, respectively. The 

annual inventory is representative of the annual 

PM–10 standard and the seasonal inventory is 

representative of the 24-hour PM–10 standard.

44 In a separate action raising different issues, 

certain organizations have filed an appeal with the 

Ninth Circuit Court of Appeals challenging EPA’s 

February 23, 2003 action on Regulation VIII, See 

Latino Issues Forum et al. v. U.S. EPA, appeal 

docketed, No. 03–70987; Associations of Irritated 

Residents v. U.S. EPA, appeal docketed, No. 03–

71696 (9th Cir. March 4, 2003).

of accomplishments and a promise (i.e., 

enforceable commitment) to fulfill the 

reduction commitments do indicate that 

the District and State are capable of 

fulfilling their commitments. As 

discussed in our proposed rule (69 FR 

5412, 5429), examples of ongoing 

development include the Ag CMP 

Program, Regulation VIII revisions and 

the State’s mobile source measures. All 

of these programs are well on their way 

towards adoption and implementation. 

In addition, the State’s long history of 

success in adopting new and 

challenging mobile source controls is a 

good indication that they will be 

capable of meeting their enforceable 

commitments. Finally, in the event that 

the Plan’s category-specific enforceable 

commitments cannot be met, the District 

has also committed to ‘‘* * * adopt, 

submit and implement substitute rules 

and measures that will achieve 

equivalent reductions in the same 

adoption and implementation 

timeframes.’’ SJVUAPCD Governing 

Board, Resolution No. 03–06–07, #10, 

June 19, 2003. The commitments in the 

2003 Plan are for requirements and 

reductions that the District and State are 

capable of meeting and are enforceable 

by EPA and the public. 

Comment 6: Finally, Earthjustice 

comments that the third factor, that the 

commitments are for a reasonable and 

appropriate period of time, is not 

satisfied by the Plan. For many 

categories the implementation dates 

extend beyond 2004 and even as far as 

2020 for residential space heating. 

Furthermore, implementation dates 

beyond 2004 are unreasonable in light 

of the past delay (e.g., BACM should 

have been implemented by 1997) and 

severity of the Valley’s nonattainment 

problem. Finally, Earthjustice notes that 

Maricopa County’s SIP commitments all 

had deadlines of less than one year after 

their approval and that the District has 

already slipped on the Ag CMP program 

deadlines. 

Response: EPA continues to believe 

that overall the commitments are for a 

reasonable and appropriate period of 

time, especially given the circumstances 

in the SJV (see response to comment 4 

in this subsection). Tables 4–15 and 4–

16 (2003 PM–10 Plan, 4–52) 43

summarize the reductions and final 

implementation dates coming from the 

PM–10 commitments. Table 4–15 shows 

that the majority of the emissions 

reductions coming from commitments, 

approximately 56.5 tpd, have final 

implementation dates by 2004. 

Approximately 9.9 tpd of the committed 

emissions reductions will occur after 

2004 from Cotton Gins, Regulation VIII 

unpaved road measure, the Indirect 

Source Mitigation Program and the State 

and Federal Measures. Table 4–16 

shows that approximately 63.5 tpd have 

final implementation dates by 2004 and 

approximately 10.2 tpd of the 

reductions will occur after 2004. Tables 

4–17 and 4–18 summarize the 

reductions and final implementation 

dates coming from the NOX

commitments. For NOX, the portion of 

reductions coming from commitments 

with implementation dates beyond 2004 

is much higher (i.e., approximately 34.3 

tpd for the annual inventory and 34.0 

tpd for the seasonal inventory); 

however, many of the NOX reductions 

relied upon by the 2003 PM–10 Plan are 

from already adopted measures which 

will yield substantial reductions.

As noted by Earthjustice, the 

residential space heating commitment 

has a final implementation date of 2020, 

modeled after the Bay Area Air Quality 

Management District’s program (2003 

PM–10 Plan at 4–46); however, the Plan 

only relies on 0.1 tpd of reductions from 

this category which will be achieved in 

2010. 

Finally, as discussed above in 

response to comment 4 in this 

subsection, the nonattainment situation 

in the SJV is much more complex than 

for most other areas, such as Maricopa 

County, and EPA believes that a caseby-case evaluation of the needs for each 

area is warranted in determining 

whether commitments should be 

accepted. In this regard, we note that the 

Ag CMP program is extensive and 

complicated and believe that the District 

is working diligently to ensure that the 

program meets the 2004 implementation 

deadline in their commitment.

Comment 7: CRPE comments that 

EPA’s decision to stop the Regulation 

VIII sanctions and FIP clocks based on 

a PM–10 Plan with commitments 

violates the CAA sections 110(c) and 

179(a). 

Response: As discussed above, EPA 

believes the enforceable commitments 

in the 2003 PM–10 Plan are approvable 

for overall plan purposes as well as for 

other nonattainment area requirements, 

such as RACM and BACM. On February 

26, 2003, EPA finalized a conditional 

approval of Regulation VIII for RACM 

purposes and simultaneously finalized a 

limited approval and limited 

disapproval of Regulation VIII for 

BACM purposes (68 FR 8830). The 

conditional approval required 

SJVUAPCD to provide to EPA a RACM 

demonstration within a year of the final 

action. The BACM limited disapproval 

identified as deficiencies SJVUAPCD’s 

failure to submit a BACM demonstration 

for Regulation VIII or to make 

appropriate upgrades to Regulation VIII 

to ensure that it meets BACM 

requirements. Failure to meet the 

condition of the conditional approval or 

address the deficiencies identified in 

the limited disapproval would have FIP 

and sanctions consequences under CAA 

sections 110(c) and 179(a). However, as 

previously discussed, SJVUAPCD met 

the condition of the conditional 

approval and addressed the BACM 

deficiencies by including in the 2003 

PM–10 Plan adequate RACM/BACM 

demonstrations and commitments to 

upgrade Regulation VIII. See EPA’s TSD 

for the 2003 PM–10 Plan, January 27, 

2004, pages 14–45). Therefore, this final 

action appropriately stops all FIP and 

sanctions clock implications of EPA’s 

February 26, 2003 and earlier actions 

regarding Regulation VIII.44

I. Adoption of All Feasible Measures 

(Section 179(d)(2)) for Ag CMP Program 

Comment 1: CRPE comments that the 

proposed approval does not address 

CAA section 179(d)(2) which states that 

a SIP revision ‘‘* * *shall include such 

additional measures as the 

Administrator may reasonably 

prescribe, including all measures that 

can be feasibly implemented in the area 

in light of technological achievability, 

costs, and any nonair quality and other 

air quality-related health and 

environmental impacts.’’ CRPE 

comments that the CMP concept allows 

agricultural sources to select at least one 

practice from each category and that this 

conflicts with the requirement for all 

feasible measures as stated by section 

179(d)(2). 

Response: CRPE misinterprets CAA 

section 179(d)(2) which provides, 

among other things, that SIP revisions 

triggered by a failure to attain under 

section 179(d)(1) ‘‘* * *shall include 

additional measures as the 

Administrator may reasonably 

prescribe, * * *’’ Emphasis added. It is 

clear from the plain language of this 

provision, i.e., the use of the word 

‘‘may’’ rather than ‘‘shall,’’ that 

Congress intended the Administrator’s 

action here to be permissive rather than 

mandatory. Under this provision, 

30032 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

45See above comments and responses in section 

II.A.2. and C.11.

46Letter from James Sweet, SJVUAPCO, to Doris 

Lo, EPA Region 9, April 15, 2004, page 2 (4/15/04 

letter).

474/15/04 letter, page 2.

therefore, EPA has the option to 

mandate specific additional feasible 

measures beyond those measures 

otherwise required in nonattainment 

areas. EPA is not, however, required to 

prescribe such measures. 

The 2003 Plan does, however, need to 

address the requirements of section 

189(b)(1)(B) that BACM be applied to all 

significant sources such as agricultural 

sources covered by the CMP program. 

We have determined that the CMP 

program will expeditiously achieve a 

BACM level of control. We have also 

concluded that the Plan provides for 

attainment of the PM–10 standards as 

expeditiously as practicable. Therefore 

we did not believe it necessary to 

require additional measures pursuant to 

section 179(d)(2). Thus, since the 

provision of section 179(d)(2) cited by 

the commenters is discretionary and 

since EPA has not chosen to prescribe 

any additional SIP measures under it, 

neither the 2003 PM–10 Plan nor EPA’s 

proposed rule was required to address 

it. 

J. Approval of Commitments for VOC 

Sources—Wineries 

Comment 1: The Wine Institute and 

the Manufacturers Council of the 

Central Valley comment that a great deal 

of work has been done in evaluating 

VOC emissions from wine fermentation. 

Commenters state that past work has 

indicated that winery controls were 

technically feasible, but not cost 

effective. Commenters provided data 

that indicate winery emissions are 

overestimated and state that the District 

has failed to include this information. 

Commenters ask EPA to remove this 

source category from the PM–10 Plan 

prior to EPA approval. 

Response: Under the Act, states have 

primary responsibility for regulating air 

quality within their borders. Under CAA 

section 110(k)(3), EPA has an obligation 

to act on State submittals. While we do 

not believe a rule for wineries is 

required for purposes of satisfying the 

section 182(b)(1)(B) BACM 

requirement,45 we do believe that such 

a rule will strengthen the SJV’s SIP, 

especially since VOC reductions are 

needed for ozone attainment. Thus, EPA 

is approving the commitment under 

sections 301(a) and 110(k)(3) as 

strengthening the SIP.

K. Approvability of Indirect Source 

Mitigation Measure 

Comment 1: The California Building 

Industry Association (CBIA) and its 

Affiliate Associations located in the SJV 

comment that the Indirect Source 

Mitigation Program does not meet CAA 

criteria requiring control measures to 

provide quantifiable, surplus, 

enforceable, permanent, and adequately 

supported reductions in air emissions. 

Thus, CBIA recommends that the 

measure should not be approved. 

Response: See section II.E., response 

to comment 4. 

L. Windblown Dust Issues 

Comment 1: A commenter (C. 

Swanson) cites an excerpt from the PM–

10 Plan, Appendix G, Table G–15 

‘‘BACM Comparative Analysis for ‘‘OnField Activities’’ concerning the BACM 

justification discussion associated with 

the ‘‘Other’’ category of the District’s 

proposed Ag CMP:

The SJV does not have a windblown dust 

problem to anywhere near the extent of the 

other nonattainment areas. The SJV has some 

of the lowest average wind speeds in the 

country. No wind related exceedances have 

been recorded in the basin during the last 

three years. Wind speeds are highest during 

the spring when PM–10 levels are at their 

lowest. The majority of the fugitive dust 

emissions are generated from earth disturbing 

activities. Certain soil types and crops are 

more prone to windblown dust problems. 

The ‘‘Other’’ category will give the farmers 

with the potential to experience wind blown 

dust emissions the flexibility to address this 

issue with a CMP.

The commenter states that this excerpt 

provides a synopsis of the PM–10 Plan’s 

characterizations of airflow in the valley 

and how it relates to the regulation of 

agricultural land use. The commenter 

believes the Plan’s characterizations do 

not adequately portray the conditions in 

the entire valley and may not lead to 

proper regulatory actions. The 

commenter states that his study of the 

conditions of one dust storm on June 20, 

2002 in Northwest Kern County 

contradicts the statements in the excerpt 

and that wind events on this side of the 

valley appear to have an episodic 

component related to a regular summer 

cycle of heating and cooling in the SJV.

Response: Below we respond to the 

commenter’s specific comments on the 

statements cited from the Plan. In 

general, however, the information in 

Appendix G, Table G–15 reflects 

monitored PM–10 exceedances and the 

District’s analysis of meteorological data 

on exceedance days. In contrast, the 

data provided by the commenter is not 

sufficient to support the conclusions 

made with regard to regulatory actions, 

given that wind speed data alone does 

not provide evidence of PM–10 

concentrations. 

Comment 2: C. Swanson disagrees 

with the Plan’s assessment that the San 

Joaquin Valley Air Basin does not have 

a windblown dust problem to anywhere 

near the extent of the other [PM–10] 

nonattainment areas. Examination of 

Caltrans data for the southern San 

Joaquin Valley reveals that in the year 

2002, Caltrans posted signs warning of 

low visibility due to windblown dust 

during all months of the year. Some 

locations had warnings posted four 

different times during the year. 

Response: Caltrans windblown dust 

postings are based on field observations 

by Caltrans employees, as opposed to 

measured PM–10 concentrations. They 

do not reveal whether exceedances of 

the PM–10 standards occurred at the 

locations of the postings. Therefore, 

neither the District nor EPA can rely on 

them for purposes of identifying PM–10 

exceedances. The Caltrans-reported 

events generally do not correlate with 

days on which PM–10 monitors 

exceeded the PM–10 standards.46 This 

means that the Caltrans-reported events 

are not being recorded by the monitors 

and are therefore spatially limited. The 

District’s monitors have detected some 

high hourly rates downwind for a few 

of the events, but not for substantial 

enough periods that the 24-hour PM–10 

standard is exceeded.47

Comment 3: C. Swanson disputes the 

following statement in the PM–10 plan: 

‘‘The SJVAB has some of the lowest 

average wind speeds in the country. No 

wind related exceedances have been 

recorded in the basin during the last 

three years.’’ Commenter states that 

while large areas in the center of the 

valley have very low average wind 

speeds, large areas around the periphery 

of the basin can be subject to periods of 

high wind velocity and windblown 

dust. The current siting of monitoring 

stations does not capture the air flow 

patterns on the western side of the 

valley in Kern County and therefore 

cannot be used to represent conditions 

in Western Kern County. 

Response: The ambient monitoring 

network for the SJV operated by the 

District and CARB was designed to meet 

the requirements of EPA regulations at 

40 CFR part 58. Monitoring for 

representative air flow patterns is not 

one of the criteria used to design a 

criteria pollutant monitoring network. 

The SJV 2003 PM–10 Plan did utilize 

meteorological data from the District’s 

ambient monitoring network as well as 

other non-district monitoring networks, 

such as the Automated Surface 

Observing System (ASOS) sponsored by 

the Federal Aviation Administration, 

Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 30033

48 Id., page 1. 49One recent exception is a May 20, 2002 

Bakersfield-Golden exceedance that the District 

attributes to a large-scale wind episode involving 

thunderstorms and hail. 4/15/04 letter, page 2. 50Commenter also cites a 2003 report by V. 

Etyemezian of Desert Research Institute in support 

of relying on 13 mph as the appropriate wind 

velocity threshold needed to generate fugitive dust. 51The District acknowledges that CIMIS data 

reports 118 days in the Blackwells Corner area with 

winds over 13 mph. 52The District’s analysis reviews CIMIS wind 

speed data between 1990 and the present for the top 

one-hundred values of maximum hours observed 

with winds over 13 mph, as well as with other 

related data sets.

53 4/15/04 letter, pages 3–4.

54 Id., page 4.

National Weather Service, the U.S. 

Department of Defense, and the 

California Irrigation Management 

Information System (CIMIS), in 

evaluating episodes for exceedance days 

at PM–10 monitors in the SJV. These 

networks included many meteorological 

sites in the western and southwestern 

portions of the SJV. During the episodes 

studied, high wind speeds were not 

observed at these western and 

southwestern meteorological sites. 

‘‘Meteorological Analysis Applied to the 

San Joaquin Valley Air Pollution 

Control District’s 2003 PM–10 State 

Implementation Plan,’’ SVUAPCD, 

DRAFT (May 29, 2003). The District 

acknowledges that no definitive 

statement can be made about peak PM–

10 concentrations at Blackwells Corner 

absent a PM–10 monitoring site near the 

location; however, there are insufficient 

resources to saturate the valley with 

monitoring sites at a density that would 

be required to establish a definitive case 

for the entire Valley. Id., page 2. In 

accordance with EPA regulations, the 

District’s monitoring sites are selected to 

evaluate exposure of populated areas to 

adverse air quality caused by 

anthropogenic activity. Low population 

on the west side of the SJV has resulted 

in a lack of monitors in that area. Id., 

pages 1 and 7. EPA has evaluated the 

adequacy of the PM–10 monitoring 

network for the SJV and concluded that 

‘‘* * * the network meets all 

applicable statutory and regulatory 

requirements and is adequate to support 

the technical evaluation of the PM–10 

nonattainment problem in the 

[District’s] plan.’’ Evaluation of the 

Adequacy of the Monitoring Network 

for the San Joaquin Valley, California for 

the Annual and 24-Hour PM–10 

Standards; Bob Pallarino, EPA Region 9, 

Air Division; September 22, 2003.

Comment 4: C. Swanson states that 

2002 wind speed data collected at a 

CIMIS station in Blackwells Corner 

documents periods of high wind 

velocity during all times of the year, 

contrary to the PM–10 Plan’s statement 

that wind speeds are highest during the 

spring when PM–10 levels are at their 

lowest. The Blackwells Corner data 

shows that more wind events occur 

during the summer period than the 

winter/spring period. 

Response: The statements in the PM–

10 Plan cited by the commenter 

concerning wind velocity provide an 

accurate, general characterization of the 

SJV. The District acknowledges that 

exceptions to the characterization of low 

wind speeds occur in passes, along 

ridges, on mountainous terrain and 

other areas of terrain influence that 

create slope flows.48 The District’s 

meteorological analysis of wind speeds 

associated with measured PM–10 

exceedances found that they largely 

occurred during periods of low winds 

and stagnant conditions in the fall and 

winter.49

Comment 5: C. Swanson states that 

CIMIS data for Blackwells Corner 

indicates several days throughout the 

year with sustained periods of high 

wind velocity that exceed the 13 mph 

wind velocity threshold described in the 

PM–10 Plan as a point of possible 

entrainment of geological material.50

The commenter provides a table of the 

aforementioned CIMIS wind data for 

Blackwells Corner. The commenter 

states that data from the nearby Lost 

Hills National Oceanic and Atmospheric 

Administration (NOAA) vertical profile 

corroborates the CIMIS data and some of 

the longest periods of sustained high 

winds are during the summer months 

when local soils may be dryer and have 

disturbed surfaces from agricultural 

activities.

Response: We agree that CIMIS data 

indicates several days throughout the 

year in the Blackwells Corner area with 

sustained periods of wind velocity 

capable of elevating fugitive dust from 

disturbed surfaces.51 However, based on 

this information alone, we cannot 

conclude that the Blackwells Corner 

area or other areas in its immediate 

downwind vicinity are experiencing 

PM–10 exceedances. The Blackwells 

Corner wind velocities are not 

representative of typical wind velocities 

in other parts of the SJV, as evidenced 

by the District’s compilation of wind 

speed data associated with PM–10 

exceedance days. The District 

conducted a specific analysis of the 

days on which CIMIS sites at Blackwells 

Corner and other west-side CIMIS sites 

historically recorded elevated winds.52

While one-in-six-day monitoring 

captured a representative sample of 

days where CIMIS sites recorded 

elevated winds (18% coincidence), the 

District did not find a correlation of 

those days with observed PM–10 

exceedances.53 Only five PM–10 

exceedance days spanning a 13-year 

period were identified as associated 

with strong winds.54 The PM–10 Plan 

does recognize that windblown dust can 

occur from agricultural disturbed 

surfaces by including windblown 

measures in the ‘‘Other’’ category in the 

proposed Ag CMP Program.

M. Transportation Conformity and the 

Trading Mechanism 

Comment 1: The commenter (TPAs) 

references the trading mechanism 

discussion in the proposed rule (69 FR 

5412, 5416–5417). This section of the 

proposal discusses the transportation 

conformity trading mechanism. The 

commenter requests a clarification on 

the requirement for a new analysis of 

the emission trading, for subsequent 

conformity findings, once the U.S. 

Department of Transportation (DOT) has 

approved a conformity finding which 

relied upon the trading mechanism. 

Specifically, the commenter requests 

that a new analysis of emissions trading 

be completed only when a new regional 

emissions analysis is required for the 

new conformity finding. 

Response: EPA agrees with the 

commenter that a new analysis of 

trading is only required when a new 

regional emissions analysis is also 

required. Once the U.S. DOT has 

approved a conformity finding which 

relied upon the trading mechanism, the 

transportation planning agency cannot 

necessarily rely on that trading scenario 

for future conformity findings that 

require a new regional emissions 

analysis. 

Comment 2: The commenter (TPAs) 

also requests that the proposed rule, 

which states that the trading mechanism 

can only be used once approved by 

EPA, be modified to state that the 

trading mechanism could be used upon 

an EPA finding that a budget is 

adequate. The commenter feels that 

existing language permits use of trading 

once budgets in the SIP are adequate. 

Response: The commenter is correct 

that if an area has a trading mechanism 

in an approved SIP for a criteria 

pollutant, and that trading mechanism 

permits the trading of precursors and/or 

the pollutant, then the language of 40 

CFR 93.124(c), the conformity rule, does 

permit trading to occur among 

pollutants or precursors for budgets 

once EPA finds the budgets adequate. 

However, the trading mechanism must 

be approved as part of the SIP before it 

can be used, even if adequate or 

approved budgets already exist. Section 

30034 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

93.124(c) only allows trading among 

budgets for the purposes of conformity 

if there is an approved mechanism in 

the SIP to allow trading to take place. 

The provision in § 93.124(c) specifically 

states that:

[a] conformity demonstration shall not 

trade emissions among budgets which the 

applicable implementation plan (or 

implementation plan submission) allocates 

for different pollutants or precursors, or 

among budgets allocated to motor vehicles 

and other sources, unless the implementation 

plan establishes appropriate mechanisms for 

such trades.

Emphasis added. The references to the 

‘‘applicable implementation plan’’ and 

the ‘‘implementation plan’’ in the 

second and last line of this paragraph 

are consistent with the definition for 

‘applicable implementation plan’ in 

§ 93.101 of the conformity rule. The 

definition states that: ‘‘Applicable 

implementation plan is defined in 

section 302(q) of the CAA and means 

the portion (or portions) of the 

implementation plan, or most recent 

revision thereof, which has been 

approved under section 110, or 

promulgated under section 110(c), or 

promulgated or approved pursuant to 

regulations promulgated under section 

301(d) and which implements the 

relevant requirement of the CAA.’’ 

Furthermore, the reference to the 

implementation plan submission is in 

regard to any SIP which establishes 

budgets, not one which establishes a 

trading mechanism. 

EPA does not make adequacy findings 

on trading mechanisms in submitted 

SIPs. EPA’s adequacy review is limited 

to determining whether the budgets in 

a SIP meet the criteria in § 93.118(e)(4). 

For more information regarding 

adequacy, please refer to the preamble 

of EPA’s June 30, 2003, proposed rule, 

which includes our current adequacy 

policy to date (68 FR 38979–38984). 

Comment 3: The commenter (Earth 

Matters) references the proposed rule at 

page 5415 (Section IV.B.2., second to 

last paragraph, fourth sentence and 

Footnote 7). This section of the proposal 

discusses the interconnections between 

conformity findings for subarea budgets 

by the multiple Metropolitan Planning 

Organizations (MPOs) in the SJV. The 

proposal clarified that if an individual 

MPO could not show conformity to their 

individual county budget, then the 

remaining MPOs in the SJV cannot 

make any new conformity 

determinations. The commenter 

requests that this requirement apply to 

Federal actions only. 

Response: EPA cannot clarify that the 

action applies to Federal actions only 

since this requirement does apply to 

both actions by U.S. DOT and by MPOs 

in adopting conformity documents. This 

requirement is not a new requirement. 

Section 176(c) of the Clean Air Act 

clearly states that conformity applies in 

nonattainment and maintenance areas. 

Section 176(c) also states that the 

Federal government and MPOs cannot 

approve transportation activities unless 

they conform to a SIP, and SIPs are 

established for a nonattainment or 

maintenance area. In a nonattainment or 

maintenance area with more than one 

MPO, all MPOs must conform even if 

the SIP has established subarea budgets. 

If an individual MPO lapses, it has not 

demonstrated that it can conform to its 

subarea budgets. Therefore, there is no 

way for the other MPOs to show that 

their planned transportation activities 

still conform to the SIP until the lapse 

is resolved. 

Comment 4: The commenter (Earth 

Matters) also requests that EPA add 

clarification that this requirement and 

associated clarifying language apply 

solely during a conformity lapse that 

results from a Transportation 

Improvement Plan (TIP) or Regional 

Transportation Plan (RTP) expiration 

only. 

Response: EPA disagrees with the 

commenter. In an area with subarea 

budgets and more than one MPO, if 

conformity for one MPO lapses for any 

reason, the other MPOs in the area 

cannot determine conformity until the 

first MPO resolves its lapse. This 

prohibition on other MPOs applies 

whether the conformity lapse is caused 

by the expiration of a transportation 

plan or TIP, or any another reason, such 

as failure to determine conformity 

within 18 months of approval of a SIP 

that establishes new budgets. 

In an area with more than one MPO, 

if one MPO lapses, the other MPOs in 

the area would not lapse immediately. 

Instead, the other MPOs can still 

proceed with projects in their current 

TIPs. However, these other MPOs could 

not make new conformity 

determinations until the lapsing MPO 

resolves the lapse by re-establishing 

conformity for its plan and TIP. 

N. Other Comments 

Comment 1: Several commenters 

noted the health issues caused by PM–

10 and other pollutants. Commenters 

wanted clean air as soon as possible and 

no more delays.

Response: EPA believes that the 2003 

PM–10 Plan provides a road-map 

towards meeting the PM–10 standards 

as soon as possible for the SJV. 

Comment 2: One commenter (LaSalle) 

stated that the PM–10 standards and 

plan are built upon insubstantial 

evidence. Commenter stated that the 

PM–10 standard was last revised in 

1987 and more recent studies needed to 

be addressed. 

Response: The purpose of the 2003 

PM–10 Plan is to achieve the PM–10 

standards in the SJV. Evaluation of the 

PM–10 standards is outside the scope of 

the 2003 PM–10 Plan and this 

rulemaking. In addition to the PM–10 

standards, EPA has promulgated 

standards for PM–2.5 (40 CFR 50.7) and 

is currently developing guidance for 

their implementation. 

Comment 3: CRPE comments that the 

2003 PM–10 Plan fails to comply with 

the requirements of the CAA and that 

EPA’s approval of the Plan is nothing 

more than an attempt to avoid 

promulgating a Federal Implementation 

Plan (FIP). 

Response: EPA’s proposed approval 

provides detailed discussions of how 

each of the CAA requirements are 

adequately addressed by the 2003 PM–

10 Plan. When possible, EPA prefers 

approving a State’s plan requirements in 

lieu of promulgating a FIP. We have 

expedited our rulemaking to avoid a FIP 

for the SJV, but we do not believe that 

we proposed to approve an 

unapprovable plan. 

Comment 4: EPA received comments 

(LaSalle) that the public comment 

period does not meet the requirements 

of due process. Given the complexity 

and technicality of the 2003 PM–10 

Plan, comment suggests 180 days as a 

more appropriate timeframe for public 

review and comment. 

Response: EPA provided a 30-day 

comment period which was extended 

for an additional 2 weeks, until March 

19, 2004. The 2003 PM–10 Plan is a 

complicated document; however, prior 

to the publication of EPA’s proposed 

rule, the District and State held public 

processes to discuss the Plan with the 

public. Numerous workshops were held 

prior to the SJV’s Board’s adoption of 

the 2003 PM–10 Plan in June 2003. 

Following that adoption, the State also 

provided a comment and response 

period before its adoption of the Plan 

and submittal to EPA. 

Comment 5: EPA received comments 

(Jones) complaining about pollution 

from a cement plan in Tehachapi, 

California. Commenter wanted controls 

found in SJV’s Regulation VIII applied 

to the source. 

Response: Tehachapi, California is 

located in Eastern Kern County, outside 

of the SJV PM–10 nonattainment area. 

EPA Region 9 Enforcement Office and 

the Kern County Air Pollution Control 

Office has been notified of the 

complaint. 

Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 30035

55For further discussion of the rationale for, and 

effect of, this limitation, please see the proposed 

rule at 69 FR 5415, and EPA’s promulgation of a 

limitation on motor vehicle emission budgets 

associated with various California SIPs, at 67 FR 

69139 (November 15, 2002).

III. EPA Action 

EPA is finalizing its approval 

pursuant to CAA section 110(k)(3) the 

following elements of the 2003 PM–10 

Plan as meeting the CAA requirements 

applicable to serious PM–10 

nonattainment areas that have failed to 

meet their attainment date: 

(1) EPA is approving the emissions 

inventories as meeting the requirements 

of section 172(c)(3). 

(2) EPA is approving the RACM/

BACM demonstration for all significant 

PM–10 and NOX sources in the SJV as 

meeting the requirements of sections 

189(a)(1)(C) and 189(b)(1)(B). Approval 

of this demonstration with respect to 

fugitive dust sources regulated by 

SJVUAPCD Regulation VIII terminates 

all sanction, FIP, and rule disapproval 

implications of our February 26, 2003 

action. 68 FR 8830. 

(3) EPA is approving, as meeting the 

requirements of sections 179(d)(3) and 

189(d), (a) the attainment 

demonstration, associated motor vehicle 

budgets and trading mechanism; (b) 

commitments to adopt and implement 

new, identified stationary, area and 

mobile source BACM to reduce PM–10 

and NOX emissions; (c) a commitment 

for the Indirect Source Mitigation 

Program; (d) a commitment for 10 tpd of 

NOX and 0.5 tpd of PM–10 reductions 

from State mobile source measures; (e) 

and the commitment to submit a SIP 

revision by March 31, 2006 based on a 

mid-course review that will include an 

evaluation of the modeling from the 

CRPAQS and the latest technical 

information (inventory data, monitoring, 

etc.) to determine whether the level of 

emission reductions in the 2003 PM–10 

Plan is sufficient to attain the PM–10 

standards. 

(4) EPA is approving under section 

110(k)(3) and 301(a) as strengthening 

the SIP the commitments to adopt and 

implement VOC and SOx measures. 

(5) EPA is approving the NOX and 

PM–10 emissions levels necessary to 

meet the 5% annual reduction 

requirement in section 189(d). 

(6) EPA is approving the reasonable 

further progress demonstration as 

meeting the requirements of section 

172(c)(2) and 189(c)(1). 

(7) EPA is approving the Plan as 

meeting the quantitative milestones 

requirement in section 189(c)(1). 

(8) EPA is approving the PM–10 and 

NOX motor vehicle emission budgets for 

purposes of transportation conformity 

for 2005, 2008, and 2010 and the 

associated trading mechanism for 

demonstrating conformity for years after 

2010, under CAA section 176(c)(2)(A). 

These budgets are reproduced in EPA’s 

proposed rule on the 2003 PM–10 Plan 

in a table printed at 69 FR 5416. As 

proposed, we are limiting this approval 

to last only until the effective date of 

our adequacy findings for new 

replacement budgets.55 The trading 

mechanism is discussed in EPA’s 

proposed rule at 69 FR 5416.

IV. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely approves 

state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Public Law 104–4).

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, 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, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does 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 (64 FR 43255, 

August 10, 1999). This action 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. This rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This rule does 

not impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). 

The Congressional Review Act, 5 

U.S.C. 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. 804(2). 

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 July 26, 2004. 

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).)

30036 Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen oxides, Particulate matter, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds.

Dated: April 28, 2004. 

Deborah Jordan, 

Acting Regional Administrator, Region IX.

■ 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 

revising paragraph (c)(317) and adding 

paragraph (c)(327) to read as follows:

§ 52.220 Identification of plan. 

(c) * * * 

(317) The plan and amended 

regulation for the following APCD were 

submitted on August 19, 2003, by the 

Governor’s designee. 

(i) Incorporation by reference. 

(A) San Joaquin Valley Unified Air 

Pollution Control District. 

(1) Rule 4901, adopted on July 15, 

1993 and amended on July 17, 2003. 

(2) 2003 PM10 Plan, San Joaquin 

Valley Plan to Attain Federal Standards 

for Particulate Matter 10 Microns and 

Smaller (all except ‘‘Contingency 

Control Measures’’ section, pages 4–53 

to 4–55), adopted on June 19, 2003, and 

‘‘Regional Transportation Planning 

Agency Commitments for 

Implementation,’’ dated April 2003 

(Volume 3).

* * * * *

(327) The following plan was 

submitted on December 30, 2003 by the 

Governor’s designee. 

(i) Incorporation by reference. 

(A) San Joaquin Valley Unified Air 

Pollution Control District. 

(1) Amendments to the 2003 San 

Joaquin Valley Plan to Attain Federal 

Standards for Particulate Matter 10 

Microns and Smaller, adopted 

December 18, 2003.

* * * * *

[FR Doc. 04–11667 Filed 5–25–04; 8:45 am] 

BILLING CODE 6560–50–P