The EPA Regional Administrator, Jared Blumenfeld signed the following final 

rule on December 19, 2012 and EPA is submitting it for publication in the 

Federal Register (FR). While we have taken steps to ensure the accuracy of 

this Internet version of the final rule, it is not the official version of 

the final rule. Please refer to the official version in a forthcoming FR 

publication appearing on the Government Printing Office’s FDsys website, 

http://fdsys.gpo.gov/fdsys/search/home.action and on Regulation.gov in Docket 

Number EPA-R09-OAR-2012-0721, http://www.regulations.gov.

6560–50–P 

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52 

[EPA–R09–OAR–2012–0721; FRL–x]

Finding of Substantial Inadequacy of Implementation Plan; Call 

for California State Implementation Plan Revision; South Coast

AGENCY: Environmental Protection Agency. 

ACTION: Final rule.

SUMMARY: In response to a remand by the United States Court of 

Appeals for the Ninth Circuit, and pursuant to the Clean Air 

Act, EPA is taking final action to find that the California 

State Implementation Plan (SIP) for the Los Angeles-South Coast 

Air Basin is substantially inadequate to comply with the 

obligation to adopt and implement a plan providing for 

attainment of the 1-hour ozone standard. In response to this 

finding, California is required to submit a SIP revision 

correcting this deficiency within 12 months of the effective 

date of this rule. If EPA finds that California has failed to 

submit a complete SIP revision as required by this final rule, 

or if EPA disapproves such a revision, such finding or 

disapproval would trigger clocks for mandatory sanctions and an 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

2

obligation for EPA to impose a Federal Implementation Plan. EPA 

is also taking final action establishing the order in which

mandatory sanctions would apply in the event that EPA makes a 

finding of failure to submit a SIP revision or disapproves the 

SIP revision. Specifically, the offset sanction would apply 18 

months after such finding or disapproval and highway funding 

restrictions would apply six months later. Sanctions would not 

apply if EPA first takes action to stay the imposition of the 

sanctions or to stop the sanctions clock based on a preliminary 

or final determination that the State has corrected the SIP 

deficiencies.

EFFECTIVE DATE: This rule is effective on [Insert date 30 days 

from date of publication].

ADDRESSES: EPA has established docket EPA-R09-OAR-2012-0721 for 

this action. The index to the docket for this action is 

available electronically at http://www.regulations.gov and in 

hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, 

California, 94105-3901. While all documents in the docket are 

listed in the index, some information may be publicly available

only at the hard copy location (e.g., copyrighted material), and 

some may not be publicly available at either location (e.g., 

CBI). To inspect the hard copy materials, please schedule an 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

3

appointment during normal business hours with the contact listed 

in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Wienke Tax, Air Planning 

Office, U.S. Environmental Protection Agency, Region 9, Mailcode 

AIR-2, 75 Hawthorne Street, San Francisco, California 94105-

3901, 415-947-4192, tax.wienke@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document “we,” “us,” 

or “our” refer to EPA. 

Table of Contents

I. Summary of Proposed Action 

II. Response to Public Comments

III. Final Action and Consequences

IV. Statutory and Executive Order Reviews

I. Summary of Proposed Action 

On September 19, 2012 (77 FR 58072), EPA proposed to find

that the California SIP for the Los Angeles-South Coast Air 

Basin (South Coast)1 is substantially inadequate to comply with 

the obligation to adopt and implement a plan providing for 

attainment of the 1-hour ozone national ambient air quality 

standard (NAAQS or “standard”). EPA proposed this finding 

pursuant to the “SIP call” authority found in section 110(k)(5) 

 

1 The South Coast includes Orange County, the southwestern two-thirds of Los 

Angeles County, southwestern San Bernardino County, and western Riverside 

County (see 40 CFR 81.305).
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

4

of the Clean Air Act (CAA or “Act”).2 In our proposed rule, we 

explained that States remain obligated to adopt and implement an 

attainment demonstration plan for the 1-hour ozone standard, 

notwithstanding the revocation of the standard in 2005, under 

EPA's “anti-backsliding” regulations governing the transition 

from the 1-hour ozone standard to the 1997 8-hour ozone 

standard.3 See 40 CFR 51.905(a)(1)(i).

EPA also proposed to require California to submit a 

revision to its SIP correcting these deficiencies by a date no 

later than 12 months after the effective date of a final rule

finding the current SIP inadequate. The SIP revision must meet 

the requirements of CAA section 182(c)(2)(A)4 and demonstrate 

attainment of the 1-hour ozone standard as expeditiously as 

practicable but no later than five years from the effective date 

of a final SIP call unless the State can justify a later date, 

 

2 Section 110(k)(5) provides, in relevant part, that: “Whenever [EPA] finds 

that the [SIP] for any area is substantially inadequate to attain or maintain 

the relevant [NAAQS}, ... , or to otherwise comply with any requirement of 

this chapter, [EPA] shall require the State to revise the plan as necessary 

to correct such inadequacies.”

3 Our finding of substantial inadequacy under CAA section 110(k)(5) for 

failure to “adopt and implement” a 1-hour ozone attainment demonstration is 

not intended as a finding of nonimplementation under CAA section 179(a)(4).

4 Under CAA section 182(c)(2)(A),the State must submit a revision to the SIP 

that includes a demonstration that the plan, as revised, will provide for 

attainment of the ozone NAAQS. The attainment demonstration must be based on 

photochemical grid modeling or any other analytical method determined by EPA 

to be at least as effective. Section 182(c)(2)(A) applies within ozone 

nonattainment areas classified as “serious,” but as a general matter, areas 

classified as “extreme” for the ozone nonattainment area, such as the South 

Coast, are subject to the requirements for lower-classified areas, such as 

those for “serious” areas, as well as those prescribed specifically for 

“extreme” areas.
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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not to exceed 10 years beyond the effective date of the final 

SIP call. In considering whether a period longer than five years 

is warranted, EPA must consider the severity of the remaining 

nonattainment problem in the South Coast and the availability 

and feasibility of pollution control measures. See section 

172(a)(2).

We noted that if EPA were to find that California has 

failed to submit a complete SIP revision or if EPA disapproves 

such revision, such finding or disapproval would trigger clocks 

for mandatory sanctions and an obligation for EPA to impose a 

Federal Implementation Plan (FIP). EPA proposed that if EPA 

makes such a finding or disapproval, the offset sanction would 

apply 18 months after such finding or disapproval and highway 

funding restrictions would apply six months later. Sanctions 

would apply unless EPA first takes action to stay the imposition 

of the sanctions or to stop the sanctions clock based on a 

preliminary or final determination that the State has cured the 

SIP deficiencies.

EPA proposed this action in response to a decision by the 

United States Court of Appeals for the Ninth Circuit (Ninth 

Circuit or Court) in a lawsuit challenging EPA's partial 

approval and partial disapproval of the 2003 South Coast 1-Hour 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

6

Ozone SIP.5 See Association of Irritated Residents v. EPA, 632 

F.3d 584 (9th Cir. 2011), reprinted as amended on January 27, 

2012, 686 F.3d 668, further amended February 13, 2012 (“AIR v. 

EPA”).

The 2003 South Coast 1-Hour Ozone SIP was intended by 

California to update the attainment demonstration for the 1-hour 

ozone standard for the South Coast contained in the 1997/1999 

South Coast 1-Hour Ozone SIP that EPA approved in 2000. Among 

other issues, the petitioners in the AIR v. EPA case challenged 

EPA’s conclusion that the Agency’s disapproval of the updated 

attainment demonstration for the 1-hour ozone standard in the 

2003 South Coast 1-Hour Ozone SIP did not obligate the Agency to 

promulgate a FIP because the plan that was disapproved was not 

required to be submitted given that the SIP contained a fullyapproved 1-hour ozone attainment demonstration for the South 

Coast (i.e., the 1997/1999 South Coast 1-Hour Ozone SIP). 

The court disagreed with EPA, and held that EPA must 

promulgate a FIP under CAA section 110(c) or issue a SIP call 

where EPA disapproves a new attainment demonstration unless the 

Agency determines that the SIP as approved remains sufficient to 

demonstrate attainment of the NAAQS. 

In response, EPA reviewed the 1997/1999 South Coast 1-Hour 

 

5 EPA’s final action challenged in the AIR v EPA case was published at 74 FR 

10176 (March 10, 2009).
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

7

Ozone SIP to determine whether it remained sufficient to 

demonstrate attainment of the 1-hour ozone standard 

notwithstanding the disapproval of the updated 1-hour ozone 

attainment demonstration in the 2003 South Coast 1-Hour Ozone 

SIP and determined that the SIP was substantially inadequate to 

comply with the obligation under EPA’s anti-backsliding 

regulations to adopt and implement a 1-hour ozone attainment 

demonstration. In the September 19, 2012 proposed rule, EPA 

proposed this finding of substantial inadequacy based on the 

following considerations:

 Documentation included in the 2003 South Coast 1-Hour Ozone 

SIP showing that motor vehicle emissions were significantly 

underestimated in the 1997/1999 South Coast 1-Hour Ozone 

SIP; that the carrying capacity associated with attainment 

of the 1-hour ozone standard was significantly lower than 

projected for the 1997/1999 South Coast 1-Hour Ozone SIP; 

and that, as a result, additional emissions reductions 

would be necessary to attain the 1-hour ozone standard by 

the applicable attainment date (November 15, 2010) beyond 

those incorporated in the 1997/1999 South Coast 1-Hour 

Ozone SIP;

 EPA's “anti-backsliding” requirements promulgated in 2004 

governing the transition from the 1-hour ozone standard to 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

8

the 1997 8-hour ozone standard and requiring a state to 

adopt and implement an attainment demonstration for the 1-

hour ozone standard (40 CFR 51.905(a)(1)(i)) 

notwithstanding the revocation of the 1-hour ozone standard

in areas designated as nonattainment for the 1997 8-hour 

ozone standard; and 

 EPA’s final determination at 76 FR 82133 (December 30, 

2011) that the South Coast area failed to attain the 1-hour 

ozone standard by the applicable attainment date (November 

15, 2010).

See the proposed rule at 77 FR 58072, at 58074-58075 (September 

19, 2012). 

For more information about the 1-hour and 8-hour ozone 

standards, the designations and classifications for the South 

Coast, the various South Coast SIP revisions submitted in 

response to CAA nonattainment area requirements, the litigation 

over EPA's action on the 2003 South Coast 1-Hour Ozone SIP, and 

the rationale behind the proposed 12-month deadline and sequence 

of mandatory sanctions, please see our September 19, 2012 

proposed rule.

II. Response to Public Comments

As stated above, on September 19, 2012, EPA proposed to 

find that the California SIP was substantially inadequate to 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

9

comply with the obligation to adopt and implement a plan

providing for attainment of the 1-hour ozone standard (see 77 FR 

58072), and held a 30-day comment period which ended on October 

19, 2012. On October 16, 2012, we received two requests to 

extend the comment period. On October 25, 2012, we published a 

Federal Register notice reopening the comment period for 14 days

(see 77 FR 65151). This comment period ended on November 8, 

2012.

In response to the proposed rule, we received 11 comment

letters that we have grouped into five categories. We received 

comments from:

 Pechanga Indian Reservation-Temecula Band of Luiseno 

Mission Indians (“Pechanga Tribe”);

 South Coast Air Quality Management District (SCAQMD), and 

the State of California Air Resources Board (CARB)

(“government agencies”);

 Coalition for Clean Air, Communities for a Better 

Environment, Natural Resources Defense Council; and 

Physicians for Social Responsibility–Los Angeles, 

(“environmental and community groups”);

 American Chemistry Council, American Coatings Association, 

Consumer Specialty Products Association, International 

Fragrance Association, National Aerosol Association, and 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

10

Personal Care Products Council (“industry groups”); and

 A private citizen.

None of the commenters challenged the proposed finding of 

substantial inadequacy, the proposed one-year deadline for 

submittal of a new 1-hour ozone attainment plan, the proposed 

sequence for application of mandatory sanctions in the event of 

failure by California to meet the deadline, or the proposed 

application of the provisions in 40 CFR 52.31 regarding staying 

the sanctions clock and deferring the imposition of sanctions. 

Instead, the comments relate to the contents of a future 1-hour 

ozone attainment demonstration for the South Coast and the 

potential impacts of the SIP call on Indian tribes in the 

region. Below, we set forth a summary of the comments and EPA’s 

responses.

Pechanga Tribe

Comment 1: In its comment letter, the Pechanga Tribe requested 

an opportunity to consult on a government to government basis 

with EPA Region IX regarding the potential impacts of this 

proposed action on federally recognized tribes located in the 

region.

Response 1: On November 28, 2012, EPA Region IX staff met with 

members and representatives of the Pechanga Tribe and explained 

that, as stated in the proposed rule, EPA foresaw no direct 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

11

impact to the Tribe due to a SIP call for a new South Coast 1-

hour ozone attainment demonstration plan. EPA acknowledged that 

a portion of Pechanga Indian country lies within the South Coast 

1-hour ozone “extreme” nonattainment area, but indicated that,

under the “Tribal Authority Rule” (40 CFR part 49), tribes are 

not subject to SIP submittal deadlines. See 40 CFR 49.4(a).6

Moreover, under 40 CFR 49.4(c), Tribes will also not be treated 

as States with respect to the mandatory imposition of sanctions 

under section 179 of the Act because of a failure to submit an 

implementation plan or required plan element by a specific 

deadline, or the submittal of an incomplete or disapproved plan 

or element. Thus, the Tribes in the South Coast will not be 

subject to the deadline that we are setting today for the State 

of California for submittal of a new 1-hour ozone attainment 

demonstration for the South Coast, and the Tribes will not be 

subject to mandatory sanctions in the event that sanctions are 

imposed as a consequence of failure to submit or disapproval of 

the submitted SIP revision.

Government Agencies

Comment 2: In response to the attainment date that would be 

established under the proposed SIP call (i.e. as expeditiously 

 

6 Under 40 CFR 49.4(a), Tribes will not treated as States with respect to 

specific plan submittal and implementation deadlines for NAAQS-related 

requirements, such as the deadline established in today’s final SIP call.
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Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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as practicable but no later than five years unless the State can 

justify a later date, not to exceed 10 years), SCAQMD indicates 

that it and CARB intend to request and justify that the full ten 

years are needed for the attainment demonstration. 

Response 2: This comment is not relevant for purposes of the 

current rule as it concerns the potential contents of a future 

SIP submittal from the State. Consistent with the requirement of 

CAA section 172(a)(2)(A), EPA would consider the severity of 

nonattainment and the availability and feasibility of pollution 

control measures in determining whether to approve any future 

submitted plan with an attainment date that is later than five 

years from the effective date of this final rule.

Comment 3: SCAQMD asserts that the new technology provisions of 

CAA section 182(e)(5) are available for the purposes of the new 

1-hour ozone attainment demonstration plan for the South Coast 

so long as the reductions to be obtained from them are not 

needed for the first ten years after November 15, 1990, i.e. 

through November 15, 2000, citing CAA section 182(e)(5). While 

the SCAQMD asserts that the plain language of section 182(e)(5) 

settles any question as to whether that provision applies to a 

new 1-hour ozone attainment demonstration plan for the “extreme” 

South Coast nonattainment area, it also asserts that there is no 

policy reason to interpret the statute to preclude reliance on 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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section 182(e)(5) even if the language were ambiguous. CARB’s 

comment letter expressed agreement and support for comments 

provided by SCAQMD on the availability of CAA section 182(e)(5) 

new technology provisions for the new South Coast 1-hour ozone 

attainment demonstration plan.

Response 3: We did not explicitly address section 182(e)(5)7 in 

our proposed SIP call because its availability or lack of 

availability is not directly relevant to the issue of our 

finding of substantial inadequacy of the California SIP for the 

South Coast with respect to the 1-hour ozone standard, or the 

issues of submittal or attainment dates. Thus, this comment is 

not relevant for purposes of the current rule as it concerns the 

potential contents of a future SIP submittal from the State. We 

will consider the approvability of the future South Coast 1-hour 

ozone attainment demonstration, including the control strategy 

on which it relies, once the plan is submitted, in the context 

of a subsequent rulemaking on the submitted plan.

 

7 Section 182(e)(5) states, in part: “[EPA] may, ..., approve provisions of 

an implementation plan for an Extreme Area which anticipate development of 

new control techniques or improvement of existing control technologies, and 

an attainment demonstration based on such provisions, if the State 

demonstrates to the satisfaction of the [EPA] that (A) such provisions are 

not necessary to achieve the incremental emission reductions required during 

the first 10 years after November 15, 1990; and (B) the State has submitted 

enforceable commitments to develop and adopt contingency measures to be 

implemented as set forth herein if the anticipated technologies do not 

achieve planned reductions.” Provisions in a SIP that rely on section 

182(e)(5) are commonly referred to as “black box” or “new technology” 

provisions.
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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Environmental and Community Groups

Comment 4: Citing the long period of nonattainment and the

health effects of ozone at levels even below the 1-hour ozone 

standard, environmental and community groups request that the 

final rule include more details about the need for a 1-hour 

ozone plan in the South Coast.

Response 4: EPA believes that the Agency provided sufficient 

support for its finding of substantial inadequacy and related 

SIP call. The rationale for the proposed finding and SIP call is 

set forth at 77 FR, 58072, 58074-58075. In short, in response to 

a remand by the Ninth Circuit in the AIR v. EPA case, we 

proposed to find the approved 1997/1999 South Coast 1-Hour Ozone 

SIP is substantially inadequate to provide for attainment of the 

1-hour ozone standard and is therefore substantially inadequate 

to comply with EPA’s “anti-backsliding” requirement at 40 CFR 

51.905(a)(1)(i) to adopt and implement such a plan for the South 

Coast. We based this determination on a review of the technical 

information and updated control measure strategy contained in 

the 2003 South Coast SIP and also considered our determination 

in December 2011 that the South Coast had failed to attain the 

applicable attainment date (2010) for the 1-hour ozone standard. 

Today, we are taking final action to find that the California 

SIP is substantially inadequate and to issue the SIP call for a 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

15

new 1-hour ozone attainment demonstration plan for the South 

Coast on the basis of the rationale set forth in the proposed 

rule.

Comment 5: The environmental and community groups believe that 

EPA should clearly state that the future 1-hour ozone attainment 

demonstration plan cannot rely on the new technology provisions 

of section 182(e)(5) (i.e., the “black box”). The groups contend 

that the text of the CAA demonstrates that the black box was not 

intended to be used past the attainment date. In support for 

this contention, the groups note that, under section 182(e)(5), 

there can be no contingency measures that are “adequate to 

produce emissions reductions sufficient, ... to achieve the 

periodic emissions reductions ... and attainment by the 

applicable dates” where, as is the case for South Coast, the 

attainment date (2010) has passed.

Response 5: In issuing a SIP call, CAA section 110(k)(5) 

directs EPA to the extent that EPA deems appropriate to subject 

the State to the requirements of this chapter to which the State 

was subject when it developed and submitted the plan for which 

such finding was made, except that the EPA may adjust any dates 

applicable under such requirements as appropriate (except that 

the EPA may not adjust any attainment date prescribed under part 

D of this subchapter, unless such date has elapsed.) In this 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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case, the prescribed attainment date (2010) under part D of the 

title I of the CAA for extreme 1-hour ozone nonattainment areas, 

such as the South Coast, has passed, and thus, CAA section 

110(k)(5) authorizes EPA to establish a new attainment date for 

the purposes of the new South Coast 1-hour ozone attainment 

demonstration plan. 

With respect to black box provisions, as noted in response 

to comment #3, we did not explicitly address section 182(e)(5) 

in our proposed SIP call because its availability or lack of 

availability is not directly relevant to the issue of our 

finding of substantial inadequacy of the California SIP for the 

South Coast with respect to the 1-hour ozone standard, or the 

issues of submittal or attainment dates. Thus, this comment is 

not relevant for purposes of the current rule as it concerns the 

potential contents of a future SIP submittal from the State. We 

will consider the approvability of the future South Coast 1-hour 

ozone attainment demonstration, including the control strategy 

on which it relies, once the plan is submitted, in the context 

of a subsequent rulemaking on the submitted plan.

Comment 6: The environmental and community groups assert that 

the new requirements that must be fulfilled by SIPs in 1-hour 

ozone areas that fail to attain by the statutory deadline are

provided in section 179(d). They further assert that the failure 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

17

to attain does not allow areas to start all over again under 

section 182 and that the new plan should be governed by sections

110 and 172, neither of which provide for a black box. Moreover, 

they contend that the attainment deadline for these areas is 

governed by section 179(d)(3).

Response 6: We disagree that the new requirements for the new 1-

hour attainment demonstration are governed by the provisions of 

section 179(d). The provisions of section 179(d) are triggered 

by a finding of failure to attain the standard under section 

179(c), but under our anti-backsliding regulations governing the 

transition from the 1-hour ozone standard to the 8-hour ozone 

standard, we are no longer obligated to determine pursuant to 

section 179(c) whether an area attained the 1-hour ozone 

standard by the applicable attainment date for the 1-hour ozone 

standard. See 40 CFR 51.905(e)(2). In our 2011 determination 

that the South Coast failed to attain the applicable attainment 

date (2010) for the 1-hour ozone standard, we relied on section 

301(a) and the relevant portion of section 181(b)(2) for the 

purpose of ensuring implementation of 1-hour ozone antibacksliding requirements, such as contingency measures and 

section 185 major stationary source fee programs. See 76 FR 

82133, at 82145 (December 30, 2011). We did not make the 

determination of failure to attain under section 179(c) and thus 
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ensure the accuracy of this version, but it is not the official version.

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the provisions of section 179(d) do not apply.

As to the applicability of subpart 2 requirements, we note 

that the “substantial inadequacy” that is the basis for our SIP 

call relates directly to the requirements that continue to apply 

to an 8-hour ozone nonattainment area by virtue of that area’s 

classification under subpart 2 for the 1-hour ozone standard at 

the time we designated the area as nonattainment for the 1997 8-

hour ozone standard. In this instance, the South Coast 8-hour 

ozone nonattainment area remains subject to the obligation to 

adopt and implement the “applicable requirements” in 40 CFR 

51.900(f) to the extent such requirements apply or applied to 

the South Coast as an “extreme” area for the 1-hour ozone 

standard in June 2004 (i.e., at designation for the 1997 8-hour 

ozone standard). One such “applicable requirement” is the 

attainment demonstration requirement. 40 CFR 51.900(f)(13).

EPA had approved a 1-hour ozone attainment demonstration 

plan for the South Coast (i.e., the 1997/1999 South Coast Ozone 

SIP) prior to revocation, but in response to the remand in the 

AIR v. EPA case, we reconsidered the adequacy of 1997/1999 South 

Coast Ozone SIP for compliance with the obligation to adopt and 

implement a 1-hour ozone attainment demonstration, and proposed 

to find the 1997/1999 South Coast Ozone SIP substantially 

inadequate to comply with the anti-backsliding requirements and 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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to require California to submit a new 1-hour ozone attainment 

demonstration plan for the “extreme” South Coast 1-hour ozone 

nonattainment area within one year of the effective date of the 

final determination.

Even though we look to subpart 2 (of part D) and 40 CFR 

51.905(a)(1) as the statutory and regulatory basis, 

respectively, for the new South Coast 1-hour ozone attainment 

demonstration, we do not view our SIP call for the South Coast 

as allowing California to start all over again. The new 1-hour 

ozone attainment demonstration plan necessarily will build upon 

the extensive ozone control strategy developed over the past 40 

years in the South Coast. Moreover, the new plan will not be 

allowed 20 years to demonstrate attainment of the 1-hour ozone 

standard, as was initially allowed for “extreme” ozone 

nonattainment areas, under the CAA Amendments of 1990. Rather, 

the new plan must demonstrate attainment as expeditiously has 

practicable but no later than five years from the final SIP call 

unless California can justify a later date, not to exceed 10 

years beyond the final SIP call, by considering the severity of 

the remaining nonattainment problem in the South Coast and the 

availability and feasibility of pollution control measures.

Lastly, while we disagree that section 179(d)(3) applies to 

establish the attainment date for the new 1-hour ozone 
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Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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attainment demonstration plan, we note that the attainment 

deadline under section 179(d)(3) would only be a little over one 

year earlier than the deadline established in this final action 

because they both derive from the formulation set forth in 

section 172(a)(2) (“... as expeditiously as practicable, but no 

later than 5 years, ... may extend the attainment date ... for a 

period no greater than 10 years ... ”). The only difference is 

that the start date for the final SIP call will be the effective 

date of this final rule, whereas section 179(d)(3) would have 

established a start date of December 30, 2011, i.e., the 

publication date of our final finding of failure to attain the 

1-hour ozone standard for the South Coast (76 FR 82133). 

Comment 7: The environmental and community groups contend that, 

if black box measures are allowed for an attainment plan 

developed after a region failed to attain the deadline, the 

state or local air district would have no incentive to close the 

black box within the attainment timeframes laid out in the CAA 

and could continually roll the black box over past the

attainment date. Second, as a practical matter, the 

environmental and community groups contend that allowance for 

black box measures for a plan with at most a ten year planning 

horizon does not allow for the time necessary to develop the 

types of new technologies envisioned in section 182(e)(5). 
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Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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Response 7: With respect to black box provisions, as noted in 

response to comment #3, we did not explicitly address section 

182(e)(5) in our proposed SIP call because its availability or 

lack of availability is not directly relevant to the issue of 

our finding of substantial inadequacy of the California SIP for 

the South Coast with respect to the 1-hour ozone standard, or 

the issues of submittal or attainment dates. Thus, this comment 

is not relevant for purposes of the current rule as it concerns 

the potential contents of a future SIP submittal from the State. 

Industry Groups

Comment 8: The industry groups assert that EPA should not 

require California to impose further VOC reductions on the

consumer and commercial products for the new South Coast 1-hour 

ozone attainment demonstration. They point out that the 2003 

State Strategy included stringent consumer and commercial 

products rules to achieve VOC reductions by 2010, and that this 

portion of the State Strategy was not withdrawn. They further 

contend that additional VOC reductions are unnecessary to 

provide for attainment of the 1-hour standard, and that EPA has 

the ability to issue a SIP call that focuses on NOx reductions to 

address ozone attainment in the South Coast, citing Michigan v. 

EPA. Finally, the industry groups assert that control measures 

for additional VOC reductions from consumer products would 
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Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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likely not constitute reasonably available control technology 

(RACT) because they would not be economically or technically 

feasible.

Response 8: Through this action, EPA is not establishing 

specific requirements that must be included as part of the 

State’s plan to attain the 1-hour ozone NAAQS. In general, a 

State has fairly broad discretion to select the mix of control 

measures it will rely on to demonstrate attainment and EPA’s 

role is limited to ensuring that the State plan meets the 

minimum criteria in the CAA. We are requiring California to 

submit a new attainment demonstration for 1-hour ozone, and we 

leave to the state’s discretion whether to impose further VOC 

reductions on sources.

Private Citizen

Comment 9: A private citizen states that the effect of methane 

on the air quality region is understated and asserts that 

methane affects the ozone layer. The citizen reports that 

current studies suggest spikes in methane emissions, possibly 

caused by broken pipelines, earthquake faults or malfunctioning 

mitigation equipment, and suggests that a multiple agency 

response is warranted to address the situation. 

Response 9: This action is being taken with regard to the 

State’s plan to address ground-level ozone and does not address 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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the effect of pollutants on the ozone layer. EPA agrees that 

pollutants that affect the integrity of the ozone layer are a 

concern and separate programs under the Act address that 

problem. We note that many control measures that reduce VOC 

emissions have the co-benefit of reducing methane, and thus, the 

new 1-hour ozone attainment demonstration and related control 

measures could indirectly result in reductions of methane 

emissions in the region.

III. Final Action and Consequences

For the reasons provided in the proposed rule, and after 

due consideration of the comments received, EPA is taking final 

action, pursuant to section 110(k)(5) of the CAA, to find that 

the California SIP is substantially inadequate to comply with 

the obligation to adopt and implement a plan providing for 

attainment of the 1-hour ozone NAAQS in the Los Angeles-South 

Coast ozone nonattainment area. In response to this finding, 

California must revise and submit to EPA an attainment 

demonstration SIP for 1-hour ozone for the South Coast within 12

months of the effective date of this rule. The SIP must provide 

for attainment of the 1-hour ozone NAAQS in the South Coast 

nonattainment area as expeditiously as practicable, but no later 

than five years from the effective date of today’s rule, unless 

the State can demonstrate that it needs up to an additional five 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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years to attain in light of the severity of the nonattainment 

problem and the availability and feasibility of control 

measures.

If EPA finds that California has failed to submit a 

complete SIP revision as required by this final rule, or if EPA 

disapproves such a revision, such finding or disapproval would 

trigger clocks for mandatory sanctions and an obligation for EPA 

to impose a FIP.8 In connection with mandatory sanctions, we are 

taking final action to establish the same sequence for 

application of mandatory sanctions (if California fails to 

submit a new 1-hour ozone plan or EPA disapproves the submitted 

plan) as established in 40 CFR 52.31. Specifically, our finding 

of failure to submit or our disapproval of the SIP revision will

trigger the new source review (NSR) offset sanction in CAA 

section 179(b)(2) and the highway funding sanction under CAA 

section 179(b)(1) in the South Coast ozone nonattainment area 18 

months, and 24 months, respectively, after the effective date of 

the finding or disapproval. The sanctions clock will permanently 

stop once we find the SIP submittal complete (if we had issued a 

 

8 Tribes having Indian country within the South Coast are not subject to the 

deadline established herein for the State of California nor would they be 

subject to the imposition of mandatory sanctions if California were to fail 

to submit a complete SIP revision or if EPA were to disapprove the SIP 

revision submitted by California in response to this final SIP call. See 40 

CFR 49.4(a) and (c). We also note that the FIP provisions in CAA section 

110(c)(1) do not apply to Indian country (40 CFR 49.4(d)).
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Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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finding of failure to submit a complete plan) or take final 

action approving (if we had disapproved the plan) SIP revisions

meeting the relevant requirements of the CAA prior to the time 

the sanctions would take effect. Lastly, we are taking final 

action to apply the provisions in 40 CFR 52.31 regarding staying 

the sanctions clock and deferring the imposition of sanctions

where we make a preliminary finding that it is more likely than 

not that the deficiency has been corrected. A FIP clock 

triggered by a finding of failure to submit or a disapproval of 

a submitted SIP can be stopped only by EPA approval of a SIP 

revision correcting the SIP deficiency. 

IV. Statutory and Executive Order Reviews

Under the CAA, a finding of substantial inadequacy and 

subsequent obligation on a State to revise its SIP arise out of 

section 110(a) and 110(k)(5). The finding and State obligation 

do not directly impose any new regulatory requirements. In 

addition, the State obligation is not legally enforceable by a 

court of law. EPA would review its intended action on any SIP 

submittal in response to the finding in light of applicable 

statutory and Executive Order requirements, in subsequent 

rulemaking acting on such SIP submittal. For those reasons, this 

rule:

 Is not a “significant regulatory action” subject to review 
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Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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by the Office of Management and Budget under Executive 

Order 12866 (58 FR 51735, October 4, 1993);

 Does not impose an information collection burden under the 

provisions of the Paperwork Reduction Act (44 U.S.C. 3501 

et seq.);

 Is certified as not having a significant economic impact on 

a substantial number of small entities under the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.);

 Does not contain any unfunded mandate or significantly or 

uniquely affect small governments, as described in the 

Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);

 Does not have Federalism implications as specified in 

Executive Order 13132 (64 FR 43255, August 10, 1999);

 Is not an economically significant regulatory action based 

on health or safety risks subject to Executive Order 13045 

(62 FR 19885, April 23, 1997);

 Is not a significant regulatory action subject to Executive 

Order 13211 (66 FR 28355, May 22, 2001);

 Is not subject to requirements of section 12(d) of the 

National Technology Transfer and Advancement Act of 1995 

(15 U.S.C. 272 note) because application of those 

requirements would be inconsistent with the CAA; and
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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 Does not provide EPA with the discretionary authority to 

address, as appropriate, disproportionate human health or 

environmental effects, using practicable and legally 

permissible methods, under Executive Order 12898 (59 FR 

7629, February 16, 1994).

In addition, this rule does not have tribal implications as 

specified by Executive Order 13175 (65 FR 67249, November 9, 

2000), because the Tribes with Indian country in the subject 

ozone nonattainment area would not be subject to the deadline 

established herein for the State of California nor would they be 

subject to the imposition of mandatory sanctions if California 

were to fail to submit a complete SIP revision or if EPA were to 

disapprove the SIP revision submitted by California in response 

to this final SIP call, and EPA notes that it will not impose

substantial direct costs on tribal governments or preempt tribal 

law.

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 action and other required 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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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 CAA, petitions for judicial 

review of this action must be filed in the United States Court 

of Appeals for the appropriate circuit by [Insert date 60 days 

from date of publication]. Filing a petition for reconsideration 

by the Administrator of this final rule does not affect the 

finality of this action for the purposes of judicial review nor 

does it extend the time within which a petition for judicial 

review may be filed, and shall not postpone the effectiveness of 

such rule or action. This action may not be challenged later in 

proceedings to enforce its requirements. (See section 

307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control,

Incorporation by reference, Intergovernmental relations, Ozone, 

Reporting and recordkeeping requirements, Volatile organic 

compounds.
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 19, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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____________________ _________________________

Dated: Jared Blumenfeld,

Regional Administrator,

Region IX.