10420 Federal Register / Vol. 75, No. 44 / Monday, March 8, 2010 / Rules and Regulations 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: February 24, 2010. 

Al Armendariz, 

Regional Administrator, Region 6. 

■ 40 CFR part 52 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 SS—Texas 

■ 2. The table in § 52.2270(c) entitled 

‘‘EPA Approved Regulations in the 

Texas SIP’’ is amended by revising the 

entry for Section 116.114 under Chapter 

116—Control of Air Pollution by 

Permits for New Construction or 

Modification, Subchapter B—New 

Source Review Permits, Division 1— 

Permit Application, to read as follows: 

§ 52.2270 Identification of plan. 

* * * * * 

(c) * * * 

EPA APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/Subject 

State 

approval/ 

submittal date 

EPA approval date Explanation 

* * * * * * * 

Chapter 116—Control of Air Pollution by Permits for New Construction or Modification 

* * * * * * * 

Subchapter B—New Source Review Permits 

Division 1—Permit Application 

* * * * * * * 

Section 116.114 ........ Application Review 

Schedule.

12/19/07 03/08/10 [Insert FR 

page number where 

document begins].

Subsections (a), (a)(1), (a)(2), (b), and (b)(1) in 

the SIP are as adopted 6/17/98 and approved 

by EPA 9/18/02, 67 FR 58697. 

Subsection (b)(2) and subsections (a)(3) and 

(a)(4) are as adopted 8/20/03 and 12/19/07, 

respectively, and approved by EPA on 03/08/ 

10 [Insert FR page number where document 

begins]. 

* * * * * * * 

[FR Doc. 2010–4833 Filed 3–5–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2008–0693; FRL–9108–4] 

Approval and Promulgation of 

Implementation Plans: 1-Hour Ozone 

Extreme Area Plan for San Joaquin 

Valley, CA 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving state 

implementation plan (SIP) revisions 

submitted by the State of California to 

meet the Clean Air Act (CAA) 

requirements applicable to the San 

Joaquin Valley, California extreme 1- 

hour ozone standard nonattainment area 

(SJV area). EPA is approving the SIP 

revisions for the SJV area as meeting 

applicable CAA and EPA regulatory 

requirements for the attainment and 

rate-of-progress demonstrations and 

their related contingency measures, 

reasonably available control measures, 

and other control requirements. In 

addition, EPA is approving the SJV Air 

Pollution Control District’s Rule 9310, 

‘‘School Bus Fleets.’’ 

DATES: Effective Date: This rule is 

effective on April 7, 2010. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2008–0693 for 

this action. The index to the docket is 

available electronically at 

www.regulations.gov and in hard copy 

at EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

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

some may not be publicly available in 

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

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Frances Wicher, EPA Region IX, (415) 

942–3957, wicher.frances@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Summary of Proposed Actions 

II. Summary of Public Comments Received 

on the Proposals and EPA Responses 

III. Approval Status of Rules 

IV. Final Actions 

V. Statutory and Executive Order Review 

I. Summary of Proposed Actions 

On July 14, 2009 at 74 FR 33933, EPA 

proposed to approve in part and 

disapprove in part the state 

implementation plan (SIP) revisions 


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1See 62 FR 38856 (July 18, 1997). In 2008 we 

lowered the 8-hour ozone standard to 0.075 ppm. 

See 73 FR 16436 (March 27, 2008). The references 

in this final rule to the 8-hour standard are to the 

1997 standard as codified at 40 CFR 50.10. 

2The proposed approval of the attainment 

demonstration was predicated in part on emission 

reductions from a number of State and District rules 

that we had proposed to approve in separate 

actions. We have now completed SIP approval of 

all these rules. See Table 1 at the end of this 

preamble. 

submitted to EPA by the State of 

California. California made these 

submittals to meet the Clean Air Act 

(CAA) requirements applicable to the 

San Joaquin Valley, California ozone 

nonattainment area (SJV area). The SJV 

area became subject to these 

requirements following its 2004 

reclassification to extreme for the 1-hour 

ozone national ambient air quality 

standard (1-hour ozone standard). 69 FR 

20550 (April 15, 2004). Although we 

established a new 8-hour ozone 

standard in 1997 1 and subsequently 

revoked the 1-hour ozone standard in 

2005, the SJV area continues to remain 

subject to certain CAA requirements for 

the 1-hour standard through the antibacksliding provisions in EPA’s rule 

implementing the 8-hour ozone 

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

900(f). 

The SIP submittals that are the subject 

of our July 14, 2009 proposal are, first, 

the ‘‘Extreme Ozone Attainment 

Demonstration Plan’’ (2004 SIP) adopted 

by the San Joaquin Valley Air Pollution 

Control District (SJVAPCD or the 

District) in 2004 and amended in 2005. 

The 2004 SIP addresses CAA 

requirements for extreme 1-hour ozone 

areas including reasonably available 

control measures (RACM), rate-ofprogress (ROP) and attainment 

demonstrations, and contingency 

measures. 

The second SIP submittal is 

‘‘Clarifications Regarding the 2004 

Extreme Ozone Attainment 

Demonstration Plan’’ (2008 

Clarifications) adopted by the SJVAPCD 

in 2008. The 2008 Clarifications provide 

updates to the 2004 SIP related to 

reasonably available control technology 

(RACT) measures adopted by the 

SJVAPCD, the ROP demonstrations, and 

contingency measures. 

The third SIP submittal addressed in 

our proposal is the ‘‘2003 State and 

Federal Strategy for the California State 

Implementation Plan,’’ (2003 State 

Strategy) adopted by the California Air 

Resources Board (ARB) in October, 

2003. This strategy document, as 

modified by ARB’s resolution adopting 

it, identifies ARB’s regulatory agenda to 

reduce ozone and particulate matter in 

California, including specific 

commitments to reduce emissions in the 

SJV area. The 2004 SIP relies in part on 

the 2003 State Strategy for the 

reductions needed to demonstrate 

attainment and ROP for the 1-hour 

ozone standard in the SJV area. 

We refer to these three submittals 

collectively as the 2004 SJV 1-hour 

ozone plan or 2004 1-hour ozone plan. 

EPA proposed to approve 2004 SJV 1- 

hour ozone plan as meeting the 

applicable CAA and EPA requirements 

for an attainment demonstration,2 ROP 

demonstrations, ROP contingency 

measures, RACM, clean fuel/clean 

technology for boilers, and the provision 

for transportation control measures 

sufficient to offset any growth in 

emissions from growth in VMT or the 

number of vehicle trips. We also 

proposed to approve a commitment by 

ARB to reduce volatile organic 

compounds (VOC) emissions in the SJV 

by 15 tons per day (tpd) and nitrogen 

oxides (NOX) by 20 tpd and to approve 

SJVAPCD’s Rule 9310, School Bus 

Fleets. 

In the same action, we proposed to 

disapprove, as failing to meet the 

requirements of section 172(c)(9), the 

contingency measures in the 2004 SIP 

and the 2008 Clarifications that would 

take effect if the area failed to attain the 

1-hour ozone standard by the applicable 

attainment date because the State had 

not demonstrated that its contingency 

measures provided sufficient emission 

reductions to meet EPA guidance. 

On August 28, 2009, ARB provided 

additional information showing that 

existing, creditable measures provided a 

sufficient level of emission reduction 

needed for attainment contingency 

measures. Based on this additional 

information, on October 2, 2009, we 

proposed to approve the attainment 

contingency measures and withdraw 

our proposed disapproval at 74 FR 

50936. 

A more detailed discussion of each of 

the California’s SIP submittals for the 

SJV area, the CAA and EPA 

requirements applicable to them, and 

our evaluation and proposed actions on 

them can be found in the July 14, 2009 

and October 2, 2009 proposals. 

II. Summary of Public Comments 

Received on the Proposals and EPA 

Responses 

We received eight comment letters, 

listed below, in response to our July 14, 

2009 proposal and October 2, 2009 

supplemental proposal. Several of these 

letters were submitted in conjunction 

with separate EPA proposed actions on 

individual SJVAPCD rules. We respond 

to the comments in these letters in this 

final rule and TSD insofar as they are 

relevant to this action and respond to 

the remainder in our final rules for the 

individual rule actions. 

We received four comment letters 

from the Center on Race, Poverty & the 

Environment representing various 

organizations. We refer to these 

comments collectively as from CRPE or 

the Center throughout this final rule and 

TSD: 

1. Brent Newell, CRPE, August 31, 

2009, on the behalf of 14 San Joaquin 

Valley environmental and community 

organizations and the Natural Resource 

Defense Council. 

2. Johannes Epke, CRPE, August 31, 

2009, on behalf of the Center and 12 San 

Joaquin Valley environmental and 

community organizations. This 

comment letter was in conjunction with 

our proposed limited approval/limited 

disapproval of SJVAPCD’s Rule 4570, 

Confined Animal Facilities at 74 FR 

33948 (July 14, 2009). 

3. Johannes Epke, CRPE, August 31, 

2009, on behalf of the Center and 11 San 

Joaquin Valley environmental and 

community organizations. This 

comment letter was in conjunction with 

our proposed approval of ARB’s 

reformulated gasoline and diesel fuel 

regulations at 74 FR 38838 (July 27, 

2009). 

4. Brent Newell, Center on Race, 

Poverty & the Environment, November 

2, 2009, on the behalf of 14 San Joaquin 

Valley environmental and community 

organizations and the Natural Resource 

Defense Council. 

We received two comment letters 

from Earthjustice representing various 

organizations. We refer to these 

comments collectively as from 

Earthjustice throughout this final rule 

and TSD: 

5. Paul Cort and Sarah Jackson, 

Earthjustice, August 31, 2009, on behalf 

of Medical Advocates for Healthy Air, 

Fresno Metro Ministries, and the 

Coalition for Clean Air (collectively, 

Earthjustice). 

6. Paul Cort and Sarah Jackson, 

Earthjustice, November 2, 2009, on 

behalf of Fresno Metro Ministries. 

7. Seyed Sadredin, SJVAPCD, August 

27, 2009. 

8. James N. Goldstene, Executive 

Officer, ARB, August 28, 2009. 

We summarize our responses to the 

most significant comments in this final 

rule. Our full responses to all comments 

received can be found in the ‘‘Response 

to Comments’’ section of the Technical 


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3 ‘‘Final Technical Support Document for the 

Approval of the San Joaquin Valley Extreme 1-Hour 

Ozone Standard Plan and San Joaquin Portion of 

the 2003 State Strategy,’’ December 11, 2009, U.S. 

EPA, Region 9. The TSD can be found in the docket 

for this rulemaking. 

4SJVAPCD, ‘‘2007 Ozone Plan,’’ April 30, 2007. 

5The General Preamble is the ‘‘General Preamble 

for Implementation of Title I of the Clean Air Act 

Amendments of 1990.’’ 57 FR 13498 (April 16, 

1992). 

6MOBILE is EPA’s model for estimating pollution 

from highway vehicles in all states except 

California where EMFAC is used. 7 In keeping with this policy, ARB and the District 

used the most current version of EMFAC, 

EMFAC2007, to prepare the most recent ozone plan 

for the Valley, the 2007 Ozone Plan. See 2007 

Ozone Plan at p. B–1. EMFAC2007 was released in 

November 2006 and approved by EPA for use in 

SIPs in January 2008. 68 FR 3464, 3467 (January 18, 

2008). 

Support Document (TSD) for this 

rulemaking.3

A. Emissions Inventory 

Comment: Earthjustice comments on 

the importance of emission inventories, 

noting that CAA section 172(c)(3) 

requires that nonattainment plans ‘‘shall 

include a comprehensive, accurate, 

current inventory of actual emissions 

from all sources of the relevant 

pollutant or pollutants in such area.’’ It 

also comments that ARB submitted to 

EPA new emissions inventories for 

ozone precursors in the San Joaquin 

Valley as part of the 2007 Ozone Plan 4

for the 8-hour ozone standard and that 

these updated inventories are 

‘‘significantly different’’ than the 

inventories in the 2004 SIP as a result 

of being based on the State’s revised onroad mobile source model, EMFAC. It 

then argues that the improvements to 

EMFAC, and therefore, to the SJV 

emissions inventory overall, make the 

2007 Ozone Plan inventory the most 

comprehensive, accurate, current 

inventory of actual emissions from all 

sources affecting the Valley’s air quality. 

It concludes that EPA cannot approve 

the 2004 SIP based on inventories that 

are no longer current or accurate. 

Response: EPA does not dispute the 

importance of emission inventories. We 

evaluated the emission inventories in 

the 2004 SIP to determine if they are 

consistent with EPA guidance (General 

Preamble at 13502 5) and adequate to 

support that plan’s rate-of-progress 

(ROP) and attainment demonstrations. 

We determined that the plan’s 2000 base 

year emission inventory was 

comprehensive, accurate, and current at 

the time it was submitted on November 

15, 2004 and that this inventory, as well 

as the 2008 and 2010 projected 

inventories used in the ROP and 

attainment demonstrations, were 

prepared in a manner consistent with 

EPA guidance. Accordingly, we 

proposed to find that these inventories 

provide an appropriate basis for the 

ROP and attainment demonstrations in 

the 2004 SIP. See 74 FR at 33940. 

ARB used its mobile source emissions 

model EMFAC2002 to generate the onroad mobile source inventory in the 

2004 SJV 1-hour ozone plan. ARB 

released EMFAC2002 in October 2002 

and EPA approved it for use in SIPs and 

conformity determinations on April 1, 

2003 (62 FR 15720). At the time the 

2004 SIP was being developed (2003– 

2004) and when it was subsequently 

adopted by SJVAPCD and submitted by 

ARB to EPA, EMFAC2002 was the most 

current mobile source model available 

for inventory purposes. 74 FR at 33940. 

It has been EPA’s consistent policy 

that States must use the most current 

mobile source model available at the 

time it is developing its SIP. See General 

Preamble at 13503 (requiring the use of 

MOBILE4.1 6 for November, 1992 

submittal of base year inventories); 

Office of Mobile Sources, EPA, 

‘‘Procedures for Emissions Inventory 

Preparation, Volume IV: Mobile 

Source,’’ June, 1992, page 5 (allowing 

states to use MOBILE4.1 for the base 

year inventories due November 1992, 

but requiring MOBILE5, then scheduled 

for release in December 1992, for the 

ROP and attainment demonstrations due 

November 1993); Memorandum, Philip 

A. Lorang, Director, Assessment and 

Modeling Division, Office of Mobile 

Sources, ‘‘Release of MOBILE5a 

Emission Factor Model,’’ March 29, 1993 

(allowing the use of MOBILE5 in 

updated base year inventories but 

requiring the use of MOBILE5a, released 

March 1993, for the ROP and attainment 

demonstrations due November 1993); 

and Memorandum, John Seitz, Office of 

Air Quality Planning and Standards 

(OAQPS) and Margo Oge, Office of 

Transportation and Air Quality, ‘‘Policy 

Guidance on the Use of MOBILE6 for 

SIP Development and Transportation 

Conformity,’’ January 18, 2002 (Seitz 

Memo).7

The Seitz Memo specifically 

addresses the issue of how the release 

of the new model, MOBILE6, would 

affect SIPs that were already submitted 

and/or approved or SIPs that were then 

under development. Citing CAA section 

172(c)(3) and 40 CFR 51.112(a)(1), EPA 

stated in the Seitz Memo that, ‘‘while 

[i]n general, EPA believes that MOBILE6 

should be used in SIP development as 

expeditiously as possible * * * [t]he 

Clean Air Act requires that SIP 

inventories and control measures be 

based on the most current information 

and applicable models that are available 

when a SIP is developed. As a result, 

the release of MOBILE6 in most areas 

would not require a SIP revision based 

on the new model.’’ The Seitz Memo 

further states that: 

EPA believes that the Clean Air Act would 

not require states that have already submitted 

SIPs or will submit SIPs shortly after 

MOBILE6’s release to revise these SIPs 

simply because a new motor vehicle 

emissions model is now available. EPA 

believes that this is supported by existing 

EPA policies and case law [Delaney v. EPA, 

898 F.2d 687 (9th Cir. 1990)] * * *. EPA 

does not believe that the State’s use of 

MOBILE5 should be an obstacle to EPA 

approval for reasonable further progress, 

attainment, or maintenance SIPs that have 

been or will soon be submitted based on 

MOBILE5, assuming that such SIPs are 

otherwise approvable and significant SIP 

work has already occurred (e.g., attainment 

modeling for an attainment SIP has already 

been completed with MOBILE5). It would be 

unreasonable to require the States to revise 

these SIPs with MOBILE6 since significant 

work has already occurred, and EPA intends 

to act on these SIPs in a timely manner. 

EPA has also consistently applied this 

policy in approving SIPs. See, for 

example, 67 FR 30574, 30582 (May 7, 

2002), approval of 1-hour ozone 

standard attainment demonstration for 

Atlanta, Georgia and 68 FR 19106, 

19118 and 19120 (April 17, 2003), 

approval of the Washington, DC area’s 

severe area 1-hour attainment 

demonstration. The latter action was 

upheld in Sierra Club v. EPA, 356 F.3d 

296 (DC Cir. 2004). In Sierra Club at 

308, the court cites the Seitz Memo and 

concludes that ‘‘[t]o require states to 

revise completed plans every time a 

new model is announced would lead to 

significant costs and potentially endless 

delays in the approval processes. EPA’s 

decision to reject that course, and to 

accept the use of MOBILE5 in this case, 

was neither arbitrary nor capricious.’’ 

Comment: Earthjustice comments that 

an outdated inventory adversely affects 

the 2004 1-hour ozone plan’s rate of 

progress (ROP) and attainment 

demonstrations and its demonstration 

related to offsetting growth in emissions 

from growth in vehicle miles traveled 

(as required by CAA section 

182(d)(1)(A)) as well as results in the 

underestimation of the emission 

reductions needed to satisfy the 

contingency measure requirement. 

Earthjustice argues that EPA must 

reevaluate whether the 2004 SIP 

satisfies these CAA requirements based 

on the revised inventories. 

Response: As discussed above, EPA’s 

long-established and consistent policy 

does not require states to revise their 

already-submitted SIPs when a new 

mobile source emission model is 

released. This policy also means that 


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8We initially stated our interpretation of the 

RACM requirement in our 1979 nonattainment area 

plan guidance where we indicated that if a measure 

which might be available for implementation could 

not be implemented on a schedule that would 

advance the date for attainment in the area, we 

would not consider it reasonably available. See 44 

FR 20372, 20375 (April 4, 1979). We affirmed this 

interpretation in the 1992 General Preamble at 

13560; in Memorandum, John Seitz, Director, 

OAQPS, ‘‘Guidance on the Reasonably Available 

Control Measure Requirement and Attainment 

Demonstration Submissions for Ozone 

Nonattainment Areas,’’ November 30, 1999 (1999 

RACM Guidance); in the 2005 8-hour 

implementation rule (70 FR 71612, 71659 

(November 29, 2005) and § 51.912(d)); and in the 

2007 PM2.5 implementation rule (72 FR 20586, 

20612 (April 25, 2007) and § 51.1010. 

9Attainment of the 1-hour standard is based on 

the average of the most recent three calendar years 

of data: ‘‘The [1-hour ozone] standard is attained 

when the expected number of days per calendar 

year with maximum hourly average concentrations 

above 0.12 parts per million [ ] is equal to or less 

than 1.’’ 40 CFR 50.9(a). Because of this, attainment 

of the 1-hour ozone standard can only be advanced 

by intervals of one full year. Section 172(c)(1) 

requires RACM sufficient to provide for expeditious 

attainment; thus, what constitutes RACM for the 1- 

hour ozone standard must be determined based on 

what reductions are needed to advance attainment 

by one year. 

EPA will not evaluate these SIPs based 

on the new model. We note that 

EMFAC2007 was released in November 

2006 and was not approved by EPA 

until January 2008 two years after the 

SIP was submitted. 68 FR 3464 (January 

18, 2008). 

In its comments, Earthjustice 

consistently attempts to conflate the 

2004 1-hour ozone standard and 2007 

8-hour ozone standard plans. Following 

Earthjustice’s logic would effectively 

result in the 1-hour ozone plan being 

completely revised to become the 8- 

hour ozone plan. This is because an 

evaluation of the effect of emissions 

inventory changes on the plan could not 

be limited to just those changes 

resulting from the move to EMFAC2007. 

All factors, from revised growth 

projections and changes to other 

emissions inventory categories to the 

impact of new controls, would need to 

be taken into account before we could 

determine whether the plan is or is not 

approvable. In other words, an entire 

new plan would need to be developed. 

The District and State have already 

prepared a new plan that addresses the 

applicable 8-hour ozone standard and 

that is based on EMFAC2007 as well as 

other updated information. EPA will 

evaluate the revised inventories in 

connection with its action on that plan. 

Comment: CRPE comments that 

because the 2004 SIP includes 

reductions from California mobile 

source rules that are subject to CAA 

section 209 waivers (‘‘waiver measures’’) 

that occurred before 2000 as part of the 

2000 base year inventory, EPA’s 

proposed action on the inventory 

violates CAA sections 172(c)(3) and 

182(a)(1) because EPA has failed to find 

that the reductions from the waiver 

measures have occurred, are 

enforceable, or are otherwise consistent 

with the Act, EPA’s implementing 

regulations, and the General Preamble. 

Response: We evaluated the emission 

inventories in the 2004 SIP to determine 

if they were consistent with EPA 

guidance (General Preamble at 13502) 

and adequate to support that plan’s ROP 

and attainment demonstrations. 74 FR at 

33940. Based on this evaluation, we 

proposed to find that the base year 

inventory (and the projected baseline 

inventories derived from it) provided an 

appropriate basis for the ROP and 

attainment demonstrations in the 2004 

SIP. 74 FR 33933, 33940. 

We also reviewed the District and 

State rules that were relied on for 

emissions reductions in the 2004 SIPs 

base year and baseline inventories. We 

determined that all these rules were 

creditable under the CAA and our 

policies. See Sections III and IV of the 

TSD. For the reasons given in the 

proposal at 33938–33939 and discussed 

in our responses to comments on waiver 

measures below, we believe that 

California’s mobile source measures are 

fully creditable for SIP purposes. 

As to emission reductions from 

waiver measures actually occurring, we 

assume that sources comply with 

applicable emission limitations and the 

agencies responsible for ensuring 

compliance with them are exercising 

appropriate oversight, absent 

information to the contrary. The 

commenter provides no information 

indicating either of these is not 

happening. 

B. Reasonably Available Control 

Measures (RACM) and Reasonably 

Available Control Technology (RACT) 

Comment: Earthjustice asserts that 

deferring action on the RACT 

demonstration is illegal and arbitrary. It 

further asserts that EPA cannot find that 

the plan as submitted will provide for 

attainment ‘‘as expeditiously as 

practicable’’ without first demonstrating 

that all of the required controls, such as 

RACT, will be implemented. Finally, 

Earthjustice comments that EPA cannot 

treat RACM and RACT as discrete 

requirements that can be acted on 

separately because the statute clearly 

states that RACM includes RACT. It also 

comments that EPA cannot determine 

that all reasonable measures are in place 

in the Valley without first evaluating 

RACT for all SJV area sources. 

Response: We described the RACM 

analysis in the 2004 1-hour ozone plan 

in the proposal at 74 FR at 33935. We 

also discussed the section 182(b)(2) 

RACT provision in the 2004 SIP, stating 

that the State had formally withdrawn it 

and that we had subsequently made a 

finding of failure to submit the RACT 

demonstration for the 1-hour ozone 

standard and initiated sanction and 

federal implementation plan (FIP) 

clocks under CAA sections 179(a) and 

110(c). See 74 FR at 33935 and 74 FR 

3442 (January 21, 2009). Finally, we 

noted that California had recently 

submitted the District’s revised 8-hour 

ozone standard RACT plan (adopted 

April 16, 2009) (8-hour RACT SIP), that 

the plan is intended in part to correct 

the failure to submit finding for the 1- 

hour ozone standard RACT requirement 

as well, and that we are currently 

reviewing the revised RACT plan for 

action in a subsequent rulemaking. See 

74 FR at 33935. 

Contrary to the commenter’s 

assertions, we did not defer action 

under CAA section 110(k) on the RACT 

demonstration in the 2004 SIP because, 

as a result of the State’s withdrawal of 

this component of the plan, there was 

no such demonstration on which the 

Agency could act. Instead, we took the 

appropriate action under the CAA 

which was, as stated above, to make a 

finding of failure to submit a required 

plan element which started sanctions 

and FIP clocks. 74 FR 3442. 

For 30 years, EPA has consistently 

interpreted the Act’s RACM provision in 

section 172(c)(1) to require only those 

feasible measures necessary for 

expeditious attainment.8 Under EPA’s 

interpretation, if an otherwise feasible 

measure, alone or in combination with 

other measures, cannot expedite 

attainment then it is not considered to 

be reasonably available. Thus, to show 

that it had implemented RACM, a state 

needs to show that it considered a wide 

range of potential measures and found 

none that were feasible for the area and 

that would, alone or in combination 

with other feasible measures, advance 

attainment. See 1999 RACM Guidance. 

Based on the form of the 1-hour ozone 

standard and the Act’s specific language 

on RACM, the appropriate standard for 

advancing attainment is, at a minimum, 

one year from the predicted attainment 

date in the attainment plan.9

We have determined that the 2004 SIP 

contains all reasonably available 

measures needed for expeditious 

attainment. While any evaluation of a 

RACM demonstration needs to consider 

the potential effect of CAA section 

182(b)(2) RACT on expeditious 

attainment, it does not require that there 

first be an approved RACT 

demonstration. For this action, we 


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evaluated the potential effect of 

applying RACT to those sources in the 

SJV area for which we had not already 

approved a RACT rule. We provide this 

evaluation in Section V of the TSD. This 

evaluation shows that there were no 

outstanding RACT measures that, either 

individually or in combination with 

other potential measures, would 

advance attainment of the 1-hour ozone 

standard in the SJV area. See TSD 

Section V and 74 FR at 33938. 

We agree that SJVAPCD must adopt 

and implement the specific section 182 

control requirements of the Act, but we 

do not agree that the withdrawal of the 

RACT demonstration in the 2004 SIP 

precludes us from approving the plan’s 

RACM and attainment demonstrations 

when it has been shown that the RACT 

measures would not contribute to more 

expeditious attainment. 

Comment: Earthjustice argues that 

EPA’s test of whether implementation of 

additional measures would advance 

attainment from 2010 to 2009 is 

arbitrary and ‘‘absurd’’ given that it 

believes the area will fail to attain by 

2010. It further argues that it is 

‘‘disingenuous for EPA to use this 

impossible test’’ to justify the missing 

RACT analysis and approve the plan as 

meeting the RACM requirement and 

EPA should instead require a new plan 

based on current, accurate information 

and a new attainment date and then 

evaluate whether RACM has been met. 

Response: We have not used the 

‘‘advance attainment test’’ to justify the 

missing RACT analysis. As stated 

previously, we took the appropriate 

statutory course of action for dealing 

with the withdrawn RACT 

demonstration: A finding of failure to 

submit and the starting of sanctions and 

FIP clocks. 74 FR 3442. We also 

described the process that we used to 

determine if the 2004 SJV 1-hour ozone 

plan provided for the implementation of 

all RACM needed for expeditious 

attainment in the proposal at 74 FR 

33938. This process included evaluating 

the potential impact of RACT on source 

categories for which we have not 

previously approved a RACT rule. See 

TSD, Section V. We determined that 

there were no outstanding measures, 

including potential RACT measures, 

that could provide for more expeditious 

attainment of the 1-hour ozone standard 

in the SJV area. 

As we discuss below in the 

Attainment Demonstration section, we 

disagree with the commenter that the 

plan does not demonstrate attainment of 

the revoked 1-hour ozone standard by 

the 2010 attainment date. 

C. Treatment of Waiver Measures 

Comment: Earthjustice and CRPE 

object to our proposal to grant emissions 

reduction credit to California’s mobile 

source control measures that have 

received a waiver of preemption under 

CAA section 209 without first approving 

them into the SIP. Both commenters 

argue that our reliance for this proposal 

on the general savings clause in CAA 

section 193 is inappropriate for several 

reasons. 

First, the commenters assert that CAA 

section 193 only saves those ‘‘formal 

rules, notices, or guidance documents’’ 

that are not inconsistent with the CAA. 

They argue that both the CAA and 

EPA’s long-standing policies and 

regulations require SIPs to contain the 

state and local emission limitations and 

control measures that are necessary for 

attainment and RFP and to meet other 

CAA requirements. They assert that our 

position on the treatment of California’s 

waived measures is inconsistent with 

this requirement. Earthjustice also 

argues that only SIP approval provides 

for the CAA’s enforcement oversight 

(CAA sections 179 and 304) and antibacksliding (CAA section 110(l) and 

193) safeguards. 

Second, the commenters argue that 

we cannot claim that our position was 

ratified by Congress because section 193 

saves only regulations, standards, rules 

notices, orders and guidance 

‘‘promulgated or issued’’ by the 

Administrator and we have not 

identified documents promulgated or 

issued by EPA that establish our 

position here. Earthjustice further 

asserts that our interpretation has not 

been expressed through any affirmative 

statements and the only statements of 

relevant statutory interpretations are 

contrary to our position on California’s 

waived measures. 

Third, Earthjustice argues that there is 

no automatic presumption that Congress 

is aware of an agency’s interpretations 

and we have not provided any evidence 

that Congress was aware of our 

interpretation regarding the SIP 

treatment of California’s mobile source 

control measures. Similarly, CRPE 

argues that our positions that Congress 

must expressly disapprove of EPA’s 

long-standing interpretation and 

Congressional silence equates to a 

ratification of EPA’s interpretation are 

incorrect. 

Finally, Earthjustice argues EPA’s 

position is inconsistent because we do 

require other state measures, e.g., the 

consumer products rules and fuel 

standards, to be submitted and 

approved into SIPs before their emission 

reductions can be credited. 

Response: We continue to believe that 

credit for emissions reductions from 

implementation of California mobile 

source rules that are subject to CAA 

section 209 waivers (‘‘waiver measures’’) 

is appropriate notwithstanding the fact 

that such rules are not approved as part 

of the California SIP. In our July 14, 

2009 proposed rule, we explained why 

we believe such credit is appropriate. 

See pages 33938 and 33939 of the 

proposed rule. Historically, EPA has 

granted credit for the waiver measures 

because of special Congressional 

recognition, in establishing the waiver 

process in the first place, of the 

pioneering California motor vehicle 

control program and because 

amendments to the CAA (in 1977) 

expanded the flexibility granted to 

California in order ‘‘to afford California 

the broadest possible discretion in 

selecting the best means to protect the 

health of its citizens and the public 

welfare,’’ (H.R. Rep. No. 294, 95th 

Congr., 1st Sess. 301–2 (1977)). In 

allowing California to take credit for the 

waiver measures notwithstanding the 

fact that the underlying rules are not 

part of the California SIP, EPA treated 

the waiver measures similarly to the 

Federal motor vehicle control 

requirements, which EPA has always 

allowed States to credit in their SIPs 

without submitting the program as a SIP 

revision. 

EPA’s historical practice has been to 

give SIP credit for waiver measures by 

allowing California to include motor 

vehicle emissions estimates made by 

using California’s EMFAC motor vehicle 

emissions factor model as part of the 

baseline emissions inventory. EMFAC 

was also used to prepare baseline 

inventory projections into the future, 

and thus the plans typically showed a 

decrease in motor vehicle emissions due 

to the gradual replacement of more 

polluting vehicles with vehicles 

manufactured to meet newer, more 

stringent California vehicle standards. 

The EMFAC model is based on the 

motor vehicle emissions standards for 

which California has received waivers 

from EPA but accounts for vehicle 

deterioration and many other factors. 

The motor vehicle emissions estimates 

themselves combine EMFAC results 

with vehicle activity estimates, among 

other considerations. See the 1982 Bay 

Area Air Quality Plan, and the related 

EPA rulemakings approving the plan 

(see 48 FR 5074 (February 3, 1983) for 

the proposed rule and 48 FR 57130 

(December 28, 1983) for the final rule) 

as an example of how the waiver 


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10EPA’s historical practice in allowing California 

credit for waiver measures notwithstanding the 

absence of the underlying rules in the SIP is further 

documented by reference to EPA’s review and 

approval of a May 1979 revision to the California 

SIP entitled, ‘‘Chapter 4, California Air Quality 

Control Strategies.’’ In our proposed approval of the 

1979 revision (44 FR 60758, October 22, 1979), we 

describe the SIP revision as outlining California’s 

overall control strategy, which the State had 

divided into ‘‘vehicular sources’’ and ‘‘non-vehicular 

(stationary source) controls.’’ As to the former, the 

SIP revision discusses vehicular control measures 

as including ‘‘technical control measures’’ and 

‘‘transportation control measures.’’ The former refers 

to the types of measures we refer to herein as 

waiver measures, as well as fuel content limitations, 

and a vehicle inspection and maintenance program. 

The 1979 SIP revision included several appendices, 

including appendix 4–E, which refers to ‘‘ARB 

vehicle emission controls included in title 13, 

California Administrative Code, chapter 3 * * *,’’ 

including the types of vehicle emission standards 

we refer to herein as waiver measures; however, 

California did not submit the related portions of the 

California Administrative Code (CAC) to EPA as 

part of the 1979 SIP revision submittal. With 

respect to the CAC, the 1979 SIP revision states: 

‘‘The following appendices are portions of the 

California Administrative Code. Persons interested 

in these appendices should refer directly to the 

code.’’ Thus, the State was clearly signaling its 

intention to rely on the California motor vehicle 

control program but not to submit the underlying 

rules to EPA as part of the SIP. In 1980, we finalized 

our approval as proposed. See 45 FR 63843 

(September 28, 1980). 

11 In this regard, we disagree that we are treating 

the waiver measures inconsistently with other 

California control measures, such as consumer 

products and fuels rules, for the simple reason that, 

unlike the waiver measures, there is no history of 

past practice or legislative history supporting 

treatment of other California measures, such as 

consumer products rules and fuels rules, in any 

manner differently than is required as a general rule 

under CAA section 110(a)(2)(A), i.e., state and local 

measures that are relied upon for SIP purposes must 

be approved into the SIP. 

measures have been treated historically 

by EPA in California SIP actions.10

In our proposed rule, we indicated 

that we believe that section 193 of the 

CAA, the general savings clause added 

by Congress in 1990, effectively ratified 

our long-standing practice of granting 

credit for the California waiver rules 

because Congress did not insert any 

language into the statute rendering 

EPA’s treatment of California’s motor 

vehicle standards inconsistent with the 

Act. Rather, Congress extended the 

California waiver provisions to most 

types of nonroad vehicles and engines, 

once again reflecting Congressional 

intent to provide California with the 

broadest possible discretion in selecting 

the best means to protect the health of 

its citizens and the public welfare. 

Requiring the waiver measures to 

undergo SIP review in addition to the 

statutory waiver process is not 

consistent with providing California 

with the broadest possible discretion as 

to on-road and nonroad vehicle and 

engine standards, but rather, would add 

to the regulatory burden California faces 

in establishing and modifying such 

standards, and thus would not be 

consistent with Congressional intent. In 

short, we believe that Congress intended 

California’s mobile source rules to 

undergo only one EPA review process 

(i.e., the waiver process), not two. 

EPA’s waiver review and approval 

process is analogous to the SIP approval 

process. First, CARB adopts its 

emissions standards following notice 

and comment procedures at the state 

level, and then submits the rules to EPA 

as part of its waiver request. When EPA 

receives new waiver requests from 

CARB, EPA publishes a notice of 

opportunity for public hearing and 

comment and then publishes a decision 

in the Federal Register following the 

public comment period. Once again, in 

substance, the process is similar to that 

for SIP approval and supports the 

argument that one hurdle (the waiver 

process) is all Congress intended for 

California standards, not two (waiver 

process plus SIP approval process). 

Moreover, just as SIP revisions are not 

effective until approved by EPA, 

changes to CARB’s rules (for which a 

waiver has been granted) are not 

effective until EPA grants a new waiver, 

unless the changes are ‘‘within the 

scope’’ of a prior waiver and no new 

waiver is needed. 

Moreover, to maintain a waiver, 

CARB’s rules can be relaxed only to a 

level of aggregate equivalence to the 

Federal Motor Vehicle Control Program 

(FMVCP) [see section 209(b)(1)]. In this 

respect, the FMVCP acts as a partial 

backstop to California’s on-road waiver 

measures (i.e., absent a waiver, the 

FMVCP would apply in California). 

Likewise, Federal nonroad vehicle and 

engine standards act as a backstop 

where there is a corresponding 

California nonroad waiver measure. The 

constraints of the waiver process thus 

serve to limit the extent to which CARB 

can relax the waiver measures for which 

there are corresponding EPA standards, 

and thereby serve an anti-backsliding 

function similar in substance to those 

established for SIP revisions in CAA 

sections 110(l) and 193. Meanwhile, the 

growing convergence between California 

and EPA mobile source standards 

diminishes the difference in the 

emissions reductions reasonably 

attributed to the two programs and 

strengthens the role of the Federal 

program in serving as an effective 

backstop to the State program. In other 

words, with the harmonization of EPA 

mobile source standards with the 

corresponding State standards, the 

Federal program is becoming essentially 

a full backstop to the California 

program. 

In addition, the commenters’ concerns 

over the potential for relaxation by the 

State of the waiver measures because 

the underlying regulations are not 

subject to EPA review and approval as 

a SIP revision are not a practical 

concern for this particular plan given 

that the plan’s horizon is very short 

term (next couple of years), and the onroad and nonroad vehicles that in part 

will determine whether the area attains 

the standard are already in operation or 

in dealer showrooms. There is no 

practical means for the State to relax the 

standards of vehicles already 

manufactured, even if the State wanted 

to relax the standards. 

As to the concerns raised by the 

commenters on enforceability, we note 

that CARB has as long a history of 

enforcement of vehicle/engine 

emissions standards as EPA, and 

CARB’s enforcement program is equally 

as rigorous as the corresponding EPA 

program. The history and rigor of 

CARB’s enforcement program lends 

assurance to California SIP revisions 

that rely on the emissions reductions 

from CARB’s rules in the same manner 

as EPA’s mobile source enforcement 

program lends assurance to other State’s 

SIPs in their reliance on emissions 

reductions from the FMVCP. 

In summary, we disagree that our 

interpretation of CAA section 193 is 

fundamentally flawed. EPA has 

historically given SIP credit for waiver 

measures in our approval of attainment 

demonstrations and other planning 

requirements such as reasonable further 

progress and contingency measures 

submitted by California. We continue to 

believe that section 193 ratifies our 

long-standing practice of allowing credit 

for California’s waiver measures 

notwithstanding the fact they are not 

approved into the SIP, and correctly 

reflects Congressional intent to provide 

California with the broadest possible 

discretion in the development and 

promulgation of on-road and nonroad 

vehicle and engine standards.11

D. ARB Commitments 

Comment: Earthjustice asserts that 

ARB’s commitments to reduce 

emissions in the SJV area by 15 tpd VOC 

and 20 tpd NOX by 2010 do not satisfy 

the first factor in EPA’s three-factor test 

for the approval of enforceable 

commitments. The commenter argues 

that the commitments do not meet the 

first factor, that commitments provide 

only a limited portion of the needed 

reductions, for several reasons. The first 

reason is that the commitment is not for 

6.3 percent of the needed NOX

reductions and 11.6 percent of the 


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10426 Federal Register / Vol. 75, No. 44 / Monday, March 8, 2010 / Rules and Regulations 

12Letter, James Goldstene, Executive Officer, 

ARB, to Laura Yoshii, Acting Regional 

Administrator, EPA, June 29, 2009 (‘‘Goldstene 

letter’’). 

needed VOC reductions, the numbers 

EPA gave in the proposal, but rather 

19.2 percent for NOX (41.1 tpd) and 37.7 

percent for VOC (48.7 tpd) because 

these were the emissions reductions in 

commitment form at the time the 2004 

SIP was submitted. The second reason 

is that the 11.6 percent commitment 

level for VOC is not minimal. The final 

reason is that the commitments now 

constitute 100 percent of the remaining 

emission reductions needed. The 

commenter concludes that these levels 

are not the limited or minimal role of 

commitments envisioned in the 

decision in BCCA Appeal Group v. EPA, 

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

Response: We did not propose to 

approve commitments of 41.1 tpd NOX

and 48.7 tpd VOC, rather we proposed 

to approve and are taking final action to 

approve commitments of 20 tpd NOX

and 15 tpd VOC. Because the District 

has adopted and submitted and EPA has 

approved rules achieving reductions of 

21.1 tpd NOX and 33.3 tpd VOC, the 

portion of the original commitments 

relating to those reductions are now 

obsolete and approving them would 

serve no purpose. 

The State of Texas’ enforceable 

commitment for the Houston/Galveston 

area, the approval of which was upheld 

by the 5th Circuit in BCCA, represented 

6 percent of the reductions needed for 

attainment in the area. We note that the 

court in BCCA did not conclude that 

any amount greater than 6 percent of the 

reductions needed would be 

unreasonable. We believe that the 6.3 

percent reduction of NOX and the 11.6 

percent reduction of VOC, as stated in 

our proposal, also fit within the 

parameters of a ‘‘limited’’ amount of the 

reductions needed for attainment and 

nothing in the BCCA decision 

contravenes that. 

The commenter’s final point merely 

describes the nature of all emissions 

reductions commitments submitted in 

support of an attainment demonstration, 

i.e., that they are intended to fill the gap 

between the level of reductions 

achieved from adopted rules and the 

level of reductions needed for 

attainment. In other words, their 

purpose is to provide 100 percent of the 

remaining reductions needed for 

attainment. 

Comment: Earthjustice also argues 

that ARB’s commitments to reduce 

emissions in the SJV area by 15 tpd VOC 

and 20 tpd NOX by 2010 do not satisfy 

EPA’s second factor for the approval of 

enforceable commitments, that the State 

is capable of meeting its commitment. It 

first notes that the Goldstene letter 12

shows that rules adopted through 2007 

have achieved all of the remaining NOX

reductions needed for attainment and 

3.3 tpd of the remaining 15 tpd of 

needed VOC reductions. The 

commenter then states, based on its 

review of the measures listed by EPA in 

its proposed approval as potential 

sources of VOC emission reductions 

(e.g., the pesticide emission limits 

adopted by the California Department of 

Pesticide Regulations) and ARB’s 2009 

rulemaking schedule, that there are no 

State measures that can be adopted and 

implemented in time to provide the 

remaining 11.7 tpd in VOC reductions 

by 2010. 

Response: In the Goldstene letter, 

ARB submitted a summary of the 

emissions reductions expected from a 

number of adopted State rules in the 

SJV area by 2010. This summary is 

preliminary and is not intended to be a 

final statement of ARB’s compliance 

with its emissions reductions 

commitments. As a preliminary 

analysis, it cannot be used to determine 

whether the State has not or will not 

meet its commitments. 

The commenter assumes that the only 

path now open to the State to fulfill its 

commitments is the adoption of new 

measures. We disagree. The list of 

measures provided by ARB in the 

Goldstene letter represents a fraction of 

the rules and programs adopted and 

implemented by the State. See TSD, 

Table 9. ARB has not provided, nor has 

it been required to provide, an 

evaluation of the effectiveness of its 

entire control program in reducing 

emissions in the SJV area. Given that the 

State has preliminarily demonstrated, 

based on a limited set of measures, that 

all NOX reductions and 90 percent of 

the VOC reductions needed for 

attainment of the revoked 1-hour 

standard in the SJV area have been 

achieved, we believe it is reasonable to 

assume that the balance of the 

reductions can also be achieved by the 

beginning of the 2010 ozone season. 

Comment: Earthjustice argues that 

ARB’s commitments to reduce 

emissions in the SJV area by 15 tpd VOC 

and 20 tpd NOX by 2010 do not satisfy 

EPA’s third and final factor for the 

approval of enforceable commitments, 

that the commitment is for a reasonable 

and appropriate period of time. It asserts 

that the State has less than a year to 

adopt and make effective controls to 

achieve 13.3 tpd VOC by 2010 and it is 

not reasonable to assume that it will 

able to achieve these reductions. 

Response: ARB’s commitments, made 

in 2004, are to reduce emissions in the 

SJV area by 20 tpd NOX and 15 tpd VOC 

within 6 years, i.e., by 2010. It is not, 

as the commenter asserts, to reduce 

VOC emissions by 13.3 tpd between 

2009 and 2010. The commenter’s 

argument again rests on the assumption 

that the only path now open to the State 

to meet its VOC commitment is to adopt 

new measures. As we discuss above, we 

do not believe this assumption is 

accurate. See also 74 FR at 39940. 

Comment: Earthjustice comments that 

EPA’s recitation of its three-factor test to 

assess whether an enforceable 

commitment is approvable skips over 

the initial determination of whether the 

commitments are in fact enforceable. In 

this regard, Earthjustice cites Bayview 

Hunters Point Community Advocates v. 

Metropolitan Transportation 

Commission, 366 F.3d 692 (9th Cir. 

2004) and Citizens for a Better 

Environment v. Metropolitan 

Transportation Commission, 746 

F.Supp. 746, 701 (N.D. Cal. 1990), 

[known as CBE II], to support its 

contention that ARB’s commitment is an 

unenforceable ‘‘aspirational goal.’’ In 

addition, Earthjustice singles out El 

Comite Para El Bienestar de Earlimart v. 

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

2008), stating that in El Comite the court 

explained that because an inventory in 

a SIP is not a ‘‘standard or limitation’’ as 

defined by the CAA, it was not an 

independently enforceable aspect of the 

SIP. Thus, Earthjustice reasons, in order 

to be enforceable, not only must a state’s 

commitment to adopt additional 

measures to attain emission standards 

be specific and announced in plain 

language, but any data or rubric that 

will be used to determine when and 

how the state will adopt those measures 

must be enforceable. Earthjustice further 

claims that EPA’s approval here allows 

for the same unenforceable situation 

that occurred in Ventura where the State 

can claim, even erroneously, that 

changes to the inventory can substitute 

for its commitment to reduce emissions, 

and EPA and the public would be 

powerless to object. 

Similarly, CRPE characterizes the 

2003 State Strategy’s commitments to 

achieve aggregate emission reductions 

by the attainment year as ‘‘global 

tonnage’’ commitments that could be 

interpreted as goals unenforceable by 

citizens under Ninth Circuit precedent, 

citing Bayview. 

Response: Under CAA section 

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

enforceable emission limitations and 

other control measures, means or 


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13EPA can also enforce SIP commitments 

pursuant to CAA section 113. 

techniques necessary to meet the 

requirements of the Act, as well as 

timetables for compliance. Similarly, 

section 172(c)(6) provides that 

nonattainment area SIPs must include 

enforceable emission limitations and 

such other control measures, means or 

techniques ‘‘as may be necessary or 

appropriate to provide for attainment’’ of 

the NAAQS by the applicable 

attainment date. 

Control measures, including 

commitments in SIPs, are enforced 

through CAA section 304(a) which 

provides for citizen suits to be brought 

against any person who is alleged ‘‘to be 

in violation of * * * an emission 

standard or limitation* * *.’’ ‘‘Emission 

standard or limitation’’ is defined in 

subsection (f) of section 304.13 As 

observed in Conservation Law 

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

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

Courts interpreting citizen suit jurisdiction 

have largely focused on whether the 

particular standard or requirement plaintiffs 

sought to enforce was sufficiently specific. 

Thus, interpreting citizen suit jurisdiction as 

limited to claims ‘‘for violations of specific 

provisions of the act or specific provisions of 

an applicable implementation plan,’’ the 

Second Circuit held that suits can be brought 

to enforce specific measures, strategies, or 

commitments designed to ensure compliance 

with the NAAQS, but not to enforce the 

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

at 613–14. Courts have repeatedly applied 

this test as the linchpin of citizen suit 

jurisdiction. See, e.g., Coalition Against 

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

764, 769–71 (2d Cir. 1992); Cate v. 

Transcontinental Gas Pipe Line Corp., 904 F. 

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

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

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

746 F. Supp. 976 (1990). 

Thus courts have found that the citizen 

suit provision cannot be used to enforce 

the aspirational goal of attaining the 

NAAQS, but can be used to enforce 

specific strategies to achieve that goal. 

We describe ARB’s commitments in 

the 2004 SIP and the 2003 State Strategy 

in detail in the proposal (74 FR at 

33938). In short, the State commits to 

achieve 20 tpd NOX and 15 tpd VOC in 

the SJV area by the 2010 ozone season. 

While the State identifies possible 

control measures that it might adopt to 

achieve these emission reductions, it 

does not commit to adopt any specific 

measures. The language used in the 

2004 SIP and the 2003 State Strategy to 

describe ARB’s commitments is 

consistently mandatory and 

unequivocal in nature, e.g.: 

ARB commits to adopt and implement 

measures to achieve, at a minimum, 15 tpd 

ROG and 20 tpd NOX emission reductions in 

the San Joaquin Valley Air Basin by the 2010 

ozone season. ARB will adopt measures to 

achieve these reductions between 2002–2009. 

ARB may meet this commitment by adopting 

one or more of the control measures in Table 

4–3, by adopting one or more alternative 

control measures, or by implementing 

incentive program(s), so long as the aggregate 

emission reduction commitment is achieved. 

(Emphasis added). 2004 SIP at section 

4.7.3. See also ARB Staff Report at 29; 

ARB Resolution 04–29 at 5 (‘‘The State’s 

contribution includes * * * a 

previously approved commitment for 10 

tpd new NOX emissions as part of the 

Valley 2003 particulate matter SIP, and 

new commitments for additional 

reductions of 15 tpd VOC and 10 tpd 

NOX from new defined State measures 

in the Valley in 2010’’); and 2003 State 

Strategy at I–16, Table I–10 (‘‘Total 

Emission Reduction Commitment from 

New State Measures’’ listed in the table 

as 10 tpd NOX with action dates 2002– 

2008). Thus, ARB’s commitments are 

clearly distinguishable from the 

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

objectives, identified by the Bayview 

court and cited by the commenter. 

ARB’s commitments here are to adopt 

and implement measures that will 

achieve specific reductions of NOX and 

VOC emissions. As such, as will be seen 

below, they are specific strategies 

designed to achieve the SIP’s overall 

objectives. 

Both Earthjustice and CRPE cite 

Bayview as support for their contention 

that ARB’s commitments are 

unenforceable aspirational goals. 

Bayview does not, however, provide any 

such support. That case involved a 

provision of the 1982 Bay Area 1-hour 

ozone SIP, known as TCM 2, which 

states in pertinent part: 

Support post-1983 improvements 

identified in transit operator’s 5-year plans, 

after consultation with the operators adopt 

ridership increase target for 1983–1987. 

EMISSION REDUCTION ESTIMATES: These 

emission reduction estimates are predicated 

on a 15% ridership increase. The actual 

target would be determined after consultation 

with the transit operators. 

Following a table listing these estimates, 

TCM 2 provided that ‘‘[r]idership 

increases would come from productivity 

improvements * * *.’’ 

Ultimately the 15 percent ridership 

estimate was adopted by the 

Metropolitan Transportation 

Commission (MTC), the implementing 

agency, as the actual target. Plaintiffs 

subsequently attempted to enforce the 

15 percent ridership increase. The court 

found that the 15 percent ridership 

increase was an unenforceable estimate 

or goal. In reaching that conclusion, the 

court considered multiple factors, 

including the plain language of TCM 2 

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

‘target’ is simply not the same as 

promising to attain that target,’’ Bayview 

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

drafters of TCM 2 were careful not to 

characterize any given increase as an 

obligation because the TCM was 

contingent on a number of factors 

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

the fact that TCM 2 was an extension of 

TCM 1 that had as an enforceable 

strategy the improvement of transit 

services, specifically through 

productivity improvements in transit 

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

a result of all of these factors, the Ninth 

Circuit found that TCM 2 clearly 

designated the productivity 

improvements as the only enforceable 

strategy. id. at 703. 

The commitments in the 2004 SIP and 

2003 State Strategy are in stark contrast 

to the ridership target that was deemed 

unenforceable in Bayview. The language 

in ARB’s commitments, as stated 

multiple times in multiple documents, 

is specific and unequivocal; the intent 

of the commitments is clear; and the 

strategy of adopting measures to achieve 

the required reductions is completely 

within ARB’s control. Furthermore, as 

stated previously, ARB identifies 

specific emission reductions that it will 

achieve and specifies that this will be 

done through the adoption and 

implementation of measures and also 

specifies the time by which these 

reductions will be achieved, i.e., the 

beginning of the 2010 ozone season. 

Earthjustice also cites CBE II at 701 for 

the proposition that courts can only 

enforce ‘‘express’’ or ‘‘specific’’ strategies. 

However, as discussed below, there is 

nothing in the CBE cases that supports 

the commenter’s view that ARB 

commitments are neither express nor 

specific. In fact, these cases support our 

interpretation of ARB’s commitments. 

Citizens for a Better Environment v. 

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

1990), known as CBE I, concerned in 

part contingency measures for the 

transportation sector in the 1982 Bay 

Area 1-hour ozone SIP. The provision 

states: ‘‘If a determination is made that 

RFP is not being met for the 

transportation sector, MTC will adopt 

additional TCMs within 6 months of the 

determination. These TCMs will be 

designed to bring the region back within 

the RFP line.’’ The court found that ‘‘[o]n 

its face, this language is both specific 

and mandatory.’’ Id. at 1458. In CBE I, 

ARB and MTC argued that TCM 2 could 

not constitute an enforceable strategy 

because the provision fails to specify 

exactly what TCMs must be adopted. 


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14 In this passage, the court was referring 

specifically to the stationary source contingency 

measures in the Bay Area plan which contained a 

commitment to adopt such measures if emission 

targets were not met. The Plan identified a number 

of potential stationary sources but did not commit 

to any particular one. In discussing the 

transportation contingency measures, the court 

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

The court rejected this argument, 

finding that ‘‘[w]e discern no principled 

basis, consistent with the Clean Air Act, 

for disregarding this unequivocal 

commitment simply because the 

particulars of the contingency measures 

are not provided. Thus we hold that that 

the basic commitment to adopt and 

implement additional measures, should 

the identified conditions occur, 

constitutes a specific strategy, fully 

enforceable in a citizens action, 

although the exact contours of those 

measures are not spelled out.’’ Id. at 

1457.14 In concluding that the 

transportation and stationary source 

contingency provisions were 

enforceable, the court stated: ‘‘Thus, 

while this Court is not empowered to 

enforce the Plan’s overall objectives 

[footnote omitted; attainment of the 

NAAQS]—or NAAQS—directly, it can 

and indeed, must, enforce specific 

strategies committed to in the Plan.’’ Id. 

at 1454. 

Earthjustice’s reliance on CBE II is 

misplaced. It also involves in part the 

contingency measures in the 1982 Bay 

Area Plan. In CBE II, defendants argued 

that RFP and the NAAQS are coincident 

because, had the plan’s projections been 

accurate, then achieving RFP would 

have resulted in attainment of the 

NAAQS. The court rejected this 

argument, stating that: 

the Court would be enforcing the 

contingency plan, an express strategy for 

attaining NAAQS. Although enforcement of 

this strategy might possibly result in 

attainment, it is distinct from simply 

ordering that NAAQS be achieved without 

anchoring that order on any specified 

strategy. Plainly, the fact that a specified 

strategy might be successful and lead to 

attainment does not render that strategy 

unenforceable. 

(Emphasis in original). CBE II at 980. 

ARB’s commitments here are 

analogous to the terms of the 

contingency measures in the CBE cases. 

ARB commits to adopt measures, which 

are not specifically identified, to 

achieve a specific tonnage of emission 

reductions. Thus, the commitment to a 

specific tonnage reduction is 

comparable to a commitment to achieve 

RFP. Similarly, a commitment to 

achieve a specific amount of emission 

reductions through adoption and 

implementation of unidentified 

measures is comparable to the 

commitments to adopt unspecified 

TCMs and stationary source measures. 

The key is that commitment must be 

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

a specified amount of emission 

reductions or the achievement of a 

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

ARB’s commitments are thus clearly a 

specific enforceable strategy rather than 

an unenforceable aspirational goal. 

Earthjustice’s reliance on El Comite is 

also misplaced. The plaintiffs in the 

district court attempted to enforce a 

provision of the 1994 California 1-hour 

ozone SIP known as the Pesticide 

Element. The Pesticide Element relied 

on an inventory of pesticide VOC 

emissions to provide the basis to 

determine whether additional regulatory 

measures would be needed to meet the 

SIP’s pesticides emissions target. To this 

end, the Pesticide Element provided 

that ‘‘ARB will develop a baseline 

inventory of estimated 1990 pesticidal 

VOC emissions based on 1991 pesticide 

use data * * *.’’ El Comite Para El 

Bienestar de Earlimart v. Helliker, 416 

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

ARB subsequently employed a different 

methodology which it deemed more 

accurate to calculate the baseline 

inventory. The plaintiffs sought to 

enforce the commitment to use the 

original methodology, claiming that the 

calculation of the baseline inventory 

constitutes an ‘‘emission standard or 

limitation.’’ The district court disagreed: 

By its own terms, the baseline identifies 

emission sources and then quantifies the 

amount of emissions attributed to those 

sources. As defendants argue, once the 

sources of air pollution are identified, control 

strategies can then be formulated to control 

emissions entering the air from those sources. 

From all the above, I must conclude that the 

baseline is not an emission ‘‘standard’’ or 

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

7604 (f)(1)–(4). 

Id. at 928. In its opinion, the court 

distinguished Bayview and CBE I, 

pointing out that in those cases ‘‘the 

measures at issue were designed to 

reduce emissions.’’ Id. 

On appeal, the plaintiffs shifted their 

argument to claim that the baseline 

inventory and the calculation 

methodology were necessary elements 

of the overall enforceable commitment 

to reduce emissions in nonattainment 

areas. The Ninth Circuit agreed with the 

district court’s conclusion that the 

baseline inventory was not an emission 

standard or limitation and rejected 

plaintiffs’ arguments attempting ‘‘to 

transform the baseline inventory into an 

enforceable emission standard or 

limitation by bootstrapping it to the 

commitment to decide to adopt 

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

While Earthjustice cites the Ninth 

Circuit’s El Comite opinion, its utility in 

analyzing ARB’s commitments here is 

limited to that court’s agreement with 

the district court’s conclusion that 

neither the baseline nor the 

methodology qualifies as an 

independently enforceable aspect of the 

SIP. Rather, it is the district court’s 

opinion, in distinguishing the 

commitments in CBE and Bayview, that 

provides insight into the situation at 

issue in our action. As the court 

recognized, a baseline inventory or the 

methodology used to calculate it, is not 

a measure to reduce emissions. It 

instead ‘‘identifies emission sources and 

then quantifies the amount of emissions 

attributed to those sources.’’ In contrast, 

as stated previously, in the 2004 SIP and 

2003 State Strategy, ARB commits to 

adopt and implement measures 

sufficient to achieve specified emission 

reductions by a date certain. As 

described above, a number of courts 

have found commitments substantially 

similar to ARB’s here to be enforceable 

under CAA section 304(a). 

Finally, EPA is not responding to 

Earthjustice’s comment regarding 

Ventura because the comment is 

without sufficient specificity for us to 

know to what the comment refers. 

Nevertheless, we note that nothing 

precludes the State from submitting a 

SIP revision to alter the commitments 

approved by EPA, just as the State may 

choose to submit a revision to any 

provision of an approved SIP. If the 

State does so, commenters would have 

an opportunity to object to such a 

revision at the State and local levels 

during the notice-and-hearing processes 

for SIP adoption and would again have 

an opportunity to raise concerns during 

EPA’s review process. However, unless 

and until such time as the State submits 

and EPA approves a revision to the 

commitments approved in this action, 

those commitments remain enforceable. 

Comment: Earthjustice states that the 

2004 SIP suggests that the State ‘‘may 

meet its commitment by adopting one or 

more of the control measures in Table 

4–3 * * * one or more alternative 

measures, or * * * incentive programs, 

so long as the aggregate emission 

reduction commitment is achieved.’’ 

2004 Plan at 4–55. Earthjustice claims 

that these commitments are so vague 

that they cannot possibly be enforced 

against the State; because there is no 

requirement that the State take any 

specific actions, its commitments 

cannot be considered enforceable under 

Ninth Circuit case law. This is because 


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they are not specific strategies based on 

emissions standards or limitations. 

Response: We disagree. As stated in 

responses to previous comments, EPA 

believes that ARB’s commitments to 

adopt and implement control measures 

to achieve the specified aggregate 

tonnage by the beginning of the 2010 

ozone season are enforceable as an 

emission standard or limitation under 

CAA section 304. The fact that the State 

may meet its SIP obligation by adopting 

measures that are not specifically 

identified in the SIP, or through one of 

several available techniques, does not 

render the requirement to achieve the 

aggregate emission reductions 

unenforceable. 

Comment: Earthjustice states CAA 

sections 110(a) and 172(c)(6) require 

SIPs to contain ‘‘enforceable emission 

limitations * * * as may be necessary 

or appropriate’’ to achieve attainment. 

Earthjustice further states that, while 

CAA section 110(k)(4) allows EPA to 

grant ‘‘conditional approval’’ of a SIP 

lacking certain statutory elements 

‘‘based on a commitment of the state to 

adopt specific enforceable measures’’ by 

a date certain, the statute provides that 

the conditional approval automatically 

becomes a disapproval if the state fails 

to comply with the commitment within 

one year. Earthjustice then claims that 

EPA here appears to be trying to avoid 

this limitation by treating open-ended 

promises of the State to reduce 

emissions as enforceable commitments 

even though the State has never 

specified exactly what it commits to do. 

Earthjustice states that courts have 

rejected similar attempts to circumvent 

the statute’s limitations on conditional 

approvals. To support this contention, 

Earthjustice cites Sierra Club v. EPA, 

356 F.3d 295, 298 (DC Cir. 2004) as 

overturning EPA’s conditional approval 

of SIPs based in part on the fact that the 

commitments identified no specific 

measures that the state would 

implement. 

Response: As pertinent to the 

comment, Sierra Club involved EPA’s 

conditional approval under section 

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

RACM and ROP demonstrations and 

contingency measures based on letters 

submitted by states that committed to 

cure these deficiencies. The court 

rejected EPA’s construction of section 

110(k)(4) as contrary to the 

unambiguous statutory language 

requiring the state to commit to adopt 

specific enforceable measures. Sierra 

Club at 302. The court found that EPA’s 

construction turned the section 

110(k)(4) conditional approval into a 

means of circumventing SIP deadlines. 

Id. at 303. 

EPA does not dispute the holding of 

Sierra Club. However that case is not 

germane to EPA’s approval of ARB’s 

commitments here because the Agency 

is not approving those commitments 

under section 110(k)(4). The relevant 

precedent is instead BCCA. The facts in 

BCCA were very similar to those 

presented here. In BCCA, EPA approved 

an enforceable commitment in the 

Houston ozone SIP to adopt and 

implement unspecified NOx controls on 

a fixed schedule to achieve aggregate 

emission reductions. Petitioners 

claimed that EPA lacked authority 

under the CAA to approve a SIP 

containing an enforceable commitment 

to adopt unspecified control measures 

in the future. The court disagreed and 

found that section 110(k)(4) conditional 

approvals do not supplant EPA’s 

practice of fully approving enforceable 

commitments: 

Nothing in the CAA speaks directly to 

enforceable commitments. The CAA does, 

however, provide EPA with great flexibility 

in approving SIPs. A SIP may contain 

‘‘enforceable emission limitations and other 

control measures, means, or techniques 

* * * as well as schedules and timetables for 

compliance, as may be necessary or 

appropriate’’ to meet the CAA’s requirements 

* * *. Thus, according to the plain language 

of the statute, SIPs may contain ‘‘means,’’ 

‘‘techniques’’ and/or ‘‘schedules and 

timetables for compliance’’ that the EPA 

considers ‘‘appropriate’’ for attainment so 

long as they are ‘‘enforceable.’’ ’’ See Id. 

§ 7410(a)(2)(A). ‘‘Schedules and timetables’’ is 

broadly defined as ‘‘a schedule of required 

measures including an enforceable sequence 

of actions or operations leading to 

compliance with an emission limitation, 

prohibition or standard.’’ 42 U.S.C. 7602(p). 

The remaining terms are not defined by the 

Act. Because the statute is silent on the issue 

of whether enforceable commitments are 

appropriate means, techniques, or schedules 

for attainment, EPA’s interpretation allowing 

limited use of an enforceable commitment in 

the Houston SIP must be upheld if 

reasonable. 

BCCA at 839–840. The court upheld 

EPA’s approval of the commitment, 

finding that ‘‘EPA reasonably concluded 

that an enforceable commitment to 

adopt additional control measures on a 

fixed schedule was an ‘appropriate’ 

means, technique, or schedule or 

timetable for compliance’’ under 

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

at 841. Thus the court recognized that 

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

provide a basis for EPA to approve 

enforceable commitments as distinct 

from the commitments contemplated by 

section 110(k)(4). See also 

Environmental Defense v. EPA, 369 F.3d 

193, 209–210 (2nd Cir. 2004). As a 

result, contrary to Earthjustice’s 

contention, section 110(k)(4) is not a bar 

to EPA’s approval of ARB’s enforceable 

commitments and that approval under 

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

appropriate means, technique or 

schedule or timetable for compliance 

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

172(c)(6). 

Comment: CRPE contends that the 

State’s aggregate tonnage commitment is 

unenforceable as a practical matter. 

CRPE then states that enforcement of 

such a global commitment to adopt 

unidentified measures (e.g., State 

Strategy at II–A–13, 15, 16 and II–B–15, 

23) to be implemented in the Valley by 

2010 is extremely difficult given the 

open-ended commitment to adopt 

unspecified strategies. CRPE states that 

citizens cannot enforce vague control 

measures that do not commit ARB to 

any particular regulations by 2008 and 

citizens are left with enforcing the 

global tonnage amounts after 2010. 

Response: CRPE does not explain why 

it believes that ARB’s commitments are 

unenforceable. CRPE implies that it 

would be easier and/or more convenient 

for citizens to enforce a different type of 

commitment. Even assuming CRPE is 

correct, this does not equate to 

unenforceablity. Moreover, as seen 

above, the commitment in TCM 2, 

which the court found to be enforceable 

in Bayview, is directly analogous to 

ARB’s commitments in the 2004 SIP and 

2003 State Strategy. Thus, we do not 

agree that the commitments are 

unenforceable. 

Comment: CRPE claims that all of the 

commitments in the 2003 State Strategy 

are unenforceable because they include 

promises by ARB staff to bring an 

unidentified measure to the ARB Board 

(State Strategy at II–A–13, 15, 16 and II– 

B–15, 23) and there is no commitment 

by the Board itself to adopt a particular 

strategy to achieve specific reductions 

by a specific implementation date. CRPE 

believes that the act of proposing a 

strategy to the Board is not a 

commitment to adopt a strategy and, 

citing 74 FR at 33938, that EPA 

recognizes this fundamental defect. 

Response: The enforceable 

commitments in the 2004 SIP and the 

2003 Strategy at issue here, as described 

above and in the proposal at 33938, do 

not refer to action by ARB staff to take 

certain measures to the Board. Rather, as 

described in detail above, the 

enforceable commitments at issue refer 

to ‘‘ARB’’ and/or ‘‘the State’’ and require 

it to adopt and implement measures to 

achieve specific reductions in NOX and 

VOC emissions by the beginning of the 

2010 ozone season. By adopting both 

the 2004 Plan and 2003 State Strategy, 

the Board endorsed the content of these 


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15From the General Preamble at 13508: ‘‘Once the 

1996 target level of emissions is calculated, States 

must develop whatever control strategies are 

needed to meet that target. * * * The assessment 

of whether an area has met the RFP requirement in 

1996 will be based on whether the area is at or 

below the 1996 target level of emissions and not 

whether the area has achieved a certain actual 

reduction relative to having maintained the current 

control strategy.’’ 

documents and committed the Board to 

take the actions mandated in them. 

Comment: Earthjustice claims that the 

2004 Plan simply states that ARB 

‘‘estimates’’ that measures in the 2003 

State Strategy will achieve 15 tpd VOC 

and 20 tpd NOX reductions, noting that 

the Strategy was adopted before the Plan 

and therefore doesn’t mention the 

quantitative commitments (State 

Strategy at ES–12, 1–7 through 1–9, 

1–23 through 1–26). Earthjustice 

concludes that this estimate was clearly 

wrong, as the State admits it is coming 

up short. 

Response: The 2004 Plan at section 

4.7.1 states that ‘‘ARB staff estimates 

that the near-term measures in the 

Statewide Strategy will provide 15 tpd 

ROG and 20 tpd NOX in the San Joaquin 

Valley in 2010.’’ The near-term measures 

in the 2003 State Strategy are 

reproduced as Table 4–3 in the 2004 

Plan. Because the State’s enforceable 

commitments are to achieve, 

independent of any estimates in the 

plan, aggregate emission reductions 

from one or more of the control 

measures in Table 4–3, by adopting one 

or more alternative control measures, or 

by implementing incentive programs, it 

was not necessary for the State to 

quantify the measures in Table 4–3. 

To the extent that Earthjustice in this 

comment intends to argue that the 5 tpd 

VOC and 20 tpd NOX in ARB’s 

commitments are merely estimates and 

therefore do not constitute enforceable 

obligations, we disagree for the reasons 

stated in our responses to comments 

above. 

E. Rate of Progress Demonstration 

Comment: Earthjustice asserts that the 

method used in the 2004 SIP to 

demonstrate ROP is not allowed by CAA 

section 182(c)(2)(B) because the plan 

allows for the averaging of reductions 

over more than 3 years while the CAA 

allows averaging over 3-year periods 

only. It also argues that the State’s 

demonstration relies on carrying 

forward excess emissions reductions 

from previous milestone years and that 

this is also inconsistent with the CAA 

because it again allows emissions 

reductions to be averaged over longer 

periods than the 3-year period expressly 

allowed. Finally, Earthjustice claims 

that without carrying forward the excess 

emissions reductions from previous 

milestones, it does not appear that the 

District has continued to make the 

required reasonable further progress in 

reducing VOC emissions. 

Response: The post-1996 ROP 

requirement in CAA section 

182(c)(2)(B), while simple in concept, is 

among the most complex of the Act’s 

nonattainment area plan requirements 

to apply in practice. See, for example, 

the General Preamble’s discussion at 

13516 on how to calculate a post-1996 

ROP target. To respond to these 

comments, several points need to be 

understood about the ROP 

demonstration requirement: 

1. A state demonstrates that it meets 

the required ROP by showing that total 

emissions in its area will be at or below 

a target level of emissions for a specified 

year.15 This target level of emissions, 

referred to as the ROP milestone, is 

calculated for each of the area’s 

milestone dates (e.g., 1996, 1999, 2002, 

etc.) according to CAA requirements 

and the procedures in the General 

Preamble. Each successive milestone 

reflects the accumulated ROP from the 

preceding milestone periods (e.g., 1990– 

1996, 1997–1999, etc.). States often 

convert this target level of emissions 

into the emissions reductions needed to 

show ROP by subtracting it from its 

baseline inventory for that milestone 

year. 

Plotted on a graph where the x-axis is 

the milestone years between 1990 and 

an area’s attainment date and the y-axis 

is the milestone target level, the ROP 

milestones would produce a slightly 

concave downward line. This line 

establishes the maximum level of 

allowable emissions for the area to meet 

the ROP requirement. The CAA’s 

‘‘averaged over three years’’ requirement 

means that the total emissions level in 

the area can rise above the line during 

that 3-year period between milestone 

dates provided it is below the line by 

the milestone date. An example of an 

ROP graph can be found at 66 FR 42480, 

42843 (August 13, 2001), proposed 

approval of New York’s 2002, 2005, and 

2007 ROP plans. 

EPA has consistently treated ROP 

milestones as target levels of emissions. 

See for example, 61 FR 10921 (March 

18, 1996), proposed approval of 

California’s ROP and attainment plans 

for 7 nonattainment areas; 62 FR 37175, 

37177 (July 11, 1997), proposed 

approval of Texas’s 15 percent ROP 

plans for Dallas, El Paso and Houston; 

65 FR 11525, 11530 (March 3, 2000), 

proposed approval of Illinois’ post-1996 

ROP plan for Chicago; and 70 FR 2085, 

2088 (January 12, 2005), proposed 

approval of the Washington, DC area’s 

post-96 and post-99 ROP plans. Thus, 

understood as an emissions level target, 

it is clear that so long as a state can 

demonstrate that total emissions levels 

in its area are below each ROP 

milestone, it does not need to show an 

actual 9 percent emission reduction in 

each 3-year period. Therefore, the 

comment that the manner in which 

California demonstrated ROP is not in 

compliance with the Act is unfounded. 

2. The commenter is incorrect that the 

CAA forbids carrying forward of excess 

emissions reductions. In fact, section 

182(c)(2)(C) specifically provides that 

emission reductions beyond the 15 

percent required under section 182(b)(1) 

for the period 1990–1996 are creditable 

toward the ROP requirement in section 

182(c)(2): ‘‘The reductions creditable for 

the period beginning 6 years after 

November 15, 1996 shall include 

reductions that occurred before such 

period, computed in accordance with 

[section 182(b)(1)], that exceed the 15 

percent amount of reductions required 

under [section 182 subsection (b)(1)]). 

(Emphasis added.) While this sentence 

refers explicitly only to carrying forward 

excess reductions into the 1997–1999 

period, we do not believe that Congress 

intended to prohibit carrying forward of 

excess emissions reductions into other 

ROP periods. Congress was interested in 

both expediting emissions reductions 

and reducing the costs of air pollution 

controls. The first would be served by 

rewarding States for early 

implementation by allowing the 

carryover of credit and the latter by not 

ignoring otherwise creditable emissions 

reductions that had already occurred. 

See Ass’n of Irritated Residents v. EPA, 

423 F.3d 989, 996 (In the context of 

allowing credit for past emission 

reductions under CAA section 189(d) 

for PM–10 plans: ‘‘[b]y allowing such 

crediting, the EPA provides a material 

incentive for implementing the most 

effective measures as quickly as 

possible.’’). 

3. States are allowed to substitute 

NOX reductions for VOC reductions in 

any post-1996 ROP demonstration (see 

CAA section 182(c)(2)(C)) and may use 

NOX reductions exclusively for post1996 ROP demonstrations. See 70 FR 

25688, 25697 (May 13, 2005); approval 

of the Washington, DC area’s 1-hour 

ozone attainment demonstration; and 68 

FR 7476, 7486 (February 14, 2003), 

approval of Rhode Island’s 1-hour ozone 

attainment demonstration. SJV has an 

approved 15 percent ROP 

demonstration and thus has already met 

its minimum VOC ROP obligation. See 

62 FR at 1172. It may, therefore, rely 

exclusively on NOX reductions to meet 

its 2008 and 2010 ROP requirements 


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and the commenter’s contention that the 

District has not met its required VOC 

ROP requirement is baseless. 

Comment: CRPE argues that the CAA 

requires that states only take credit for 

reductions from SIP-approved measures 

in ROP demonstrations, citing CAA 

section 182(b)(1)(D). CRPE also argues 

that EPA’s longstanding interpretation 

of the ROP provision also limits credit 

to SIP-approved measures, citing our 

proposed approval of the ROP 

demonstration in the 1999 amendment 

to the 1997 1-hour ozone standard plan 

for the South Coast Air Basin (SCAB) 

(65 FR 6091, 6098 (February 8, 2000)) 

which cites the General Preamble at 

13517. 

Response: CAA section 182(b)(1)(C) 

does not limit emissions reductions 

creditable in ROP demonstrations to just 

those reductions from SIP-approved 

rules, it also allows credit from rules 

promulgated by the Administrator (e.g., 

FMVCP), and CAA title V federal 

operating permits. Neither federal 

measures nor title V permits are in the 

SIP. 

EPA has approved numerous ROP 

demonstrations that rely on reductions 

from Federal measures. See, for 

example, 61 FR 11735 (March 22, 1996), 

approval of Wisconsin’s 15 percent ROP 

plan and contingency measures; 66 FR 

586 (January 3, 2001) approval of the 

Washington, DC area’s attainment and 

post-96 ROP plans; and 66 FR 54143 

(October 26, 2001), approval of 

Pennsylvania’s post-96 ROP plan for the 

Philadelphia area. As discussed in the 

proposal, we have historically treated 

California’s waiver measures similarly 

to the Federal motor vehicle control 

requirements. 74 FR at 33939. 

In the February 2000 proposed rule 

cited by the commenter, EPA proposed 

to approve the ROP demonstration for 

the SCAB. This demonstration relied 

explicitly on reductions from SIPapproved District rules and SIPapproved commitments from the 

District and State; therefore, we limited 

our description of the ROP requirement 

to those ROP provisions that were 

applicable to our action. By doing so, 

we did not rewrite the Act or the 

General Preamble to limit creditable 

reductions in ROP demonstrations to 

SIP-approved measures only. We note 

that although the ROP demonstration in 

the South Coast plan relied explicitly 

only on reductions from SIP-approved 

rules and commitments, it relied 

implicitly on ARB’s adopted and 

implemented mobile source program, 

reductions from which are incorporated 

into the South Coast plan’s baseline 

inventory, to generate the majority of 

emissions reductions needed for ROP. 

F. Attainment Demonstration 

Comment: Earthjustice comments that 

SJV will not attain the 1-hour ozone 

standard by 2010 because there have 

been too many exceedances of the 

standard in 2008 and 2009 and that 

these exceedances show that the 

attainment demonstration is not 

working and is not approvable. It also 

comments that EPA has made clear that 

attainment by the deadline requires that 

the three years leading up to that 

deadline must be clean. In support of its 

position, the commenter cites EPA’s 

PM2.5 implementation rule at 40 CFR 

§ 51.1000; the preamble to the PM2.5

implementation rule at 72 FR 20586, 

20600 (April 25, 2007); and EPA’s 

‘‘Response to Comments Document, 

Finalizing Approval of the PM–10 State 

Implementation Plan for the Clark 

County Serious PM–10 Nonattainment 

Area Annual and 24-Hour PM–10 

Standards’’ at page 41 (April 23, 2004). 

Response: Consistent with the CAA 

and EPA regulations and policy, the 

2004 SJV 1-hour ozone plan 

demonstrates that the emissions 

reductions needed to prevent future 

violations of the 1-hour ozone standard 

would be in place by the beginning of 

the 2010 ozone season rather than by 

the beginning of the 2008 ozone season. 

See 2004 SIP, p. 5–5. 

The three cites in the commenter’s 

letter are all to descriptions of 

attainment determinations. The 

determination of attainment required by 

CAA section 181(b)(2), which is made 

by reviewing ambient air quality 

monitoring data after the attainment 

date, is distinctly different from the 

demonstration of attainment required by 

CAA section 182(c)(2), which is based 

on projections of future air quality 

levels and submitted before the 

attainment date. For the 1-hour ozone 

standard, an attainment determination 

is based on monitored air quality levels 

in the three years preceding the 

attainment date. General Preamble at 

13506. In acting on the 2004 SJV 1-hour 

ozone plan under CAA section 110(k), 

we are not making an attainment 

determination. 

An attainment demonstration is based 

on air quality modeling showing that 

projected emissions in the attainment 

year will be at or below the level needed 

to prevent violations of the relevant 

ambient air quality standard. For ozone, 

the attainment year is defined as the 

calendar year that includes the last full 

ozone season prior to the statutory 

attainment date. 40 CFR 51.900(g). More 

simply, ozone attainment 

demonstrations show that the air quality 

will be at or below the level of the 

standard no later than the beginning of 

the ozone season immediately prior to 

the attainment date. EPA has never 

interpreted the Act to require that the 

demonstration show that air quality 

levels will be at or below the level of the 

standard for each of the three ozone 

seasons prior to the attainment date. 

Following this interpretation, the 

2004 SIP does not demonstrate that 

there would be no violations of the 

revoked 1-hour ozone standard in 2008 

or 2009. Rather it demonstrates that 

clean air would begin with the 2010 

ozone season. Because we are still 

months away from the start of the 2010 

ozone season and air quality trends 

show decreasing number of days over 

the standard, we believe it is premature 

to say the 2004 1-hour ozone plan will 

not result in attainment by the SJV 

area’s ultimate applicable attainment 

date. 

Our policy on attainment 

demonstrations is consistent with the 

ozone attainment provisions in subpart 

2 of title 1, part D of the CAA. The 

program Congress crafted here for ozone 

attainment does not require that all 

measures needed to attain the standard 

be implemented three years prior to the 

area’s attainment date. For example, 

moderate areas were required by section 

182(b)(1) to provide for VOC emissions 

reductions of 15 percent reduction by 

November 15, 1996 which was also the 

attainment date for these areas. For 

areas classified serious and above, CAA 

section 182(c)(2)(B) requires that ROP of 

3 percent per year averaged over 3 years 

‘‘until the attainment date’’ (a total of 9 

percent reduction in emissions in the 3 

years leading up to an area’s attainment 

date). EPA does not believe that 

Congress intended these mandatory 

reductions to be in excess of what is 

needed to attain. 

This position is also consistent with 

the attainment date extension 

provisions in CAA section 181(a)(5). 

Under this section, an area that does not 

have three-years of data meeting the 

ozone standard by its attainment date 

but has complied with all requirements 

and commitments pertaining to the area 

in the applicable implementation plan 

and has no more than one exceedance 

of the standard in the attainment year, 

may receive a one-year extension of its 

attainment date. Assuming these 

conditions are again met the following 

year, the area may receive an additional 

one-year extension. If the area has no 

more than one exceedance in this final 

extension year, then it will have three 

years of data indicating that it has 

attained the ozone standard. 

EPA has consistently taken this 

position in guidance and in our 


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16By ‘‘surplus’’ and ‘‘extra’’ emissions reductions, 

the commenter is referring to emissions reductions 

that are realized in the attainment year that are 

more than the emissions reductions needed to 

demonstrate attainment. We refer to these 

additional reductions as ‘‘excess reductions in the 

attainment demonstration.’’ 

17EPA has long allowed states to use already 

implemented measures to meet the CAA sections 

172(c)(9) and 182(c)(9) contingency measures 

requirement, provided that the reductions from 

these measures were not also relied on for 

attainment and/or ROP, i.e., in excess to the 

attainment demonstration or ROP. See 62 FR 15844 

(April 3, 1997); 62 FR 66279 (December 18, 1997); 

66 FR 30811 (June 8, 2001); 66 FR 586 and 66 FR 

634 (January 3, 2001). In these rulemakings, 

however, unlike the situation here, the reductions 

used for contingency measures were realized in the 

attainment year, i.e., they were excess reductions in 

the attainment demonstration, and continued 

without increasing into following years. 

approval of 1-hour ozone attainment 

demonstrations. Our ozone modeling 

guidance, which was issued less than a 

year after the 1990 Amendments were 

enacted, requires States to model the 

ozone season before the attainment date 

and not the third ozone season before 

the attainment date. See Chapter 6 

‘‘Attainment Demonstrations,’’ Guideline 

for Regulatory Application of the Urban 

Air Shed Model (July 1991, OAQPS, 

EPA). 

The ozone attainment demonstrations 

that EPA has approved since the CAA 

Amendments of 1990 have been based 

on this modeling guidance and 

demonstrate attainment only for the 

attainment year. See, for example, 61 FR 

10921 (March 18, 1996) and 62 FR 1150 

(January 8, 1997), proposed and final 

approval of California’s attainment 

plans for 7 nonattainment areas; 66 FR 

54143 (October 25, 2001), approval of 

Pennsylvania’s 1-hour ozone attainment 

plan for the Philadelphia area; and 67 

FR 30574 (May 7, 2002), approval of 

Georgia’s 1-hour ozone attainment plan 

for Atlanta. 

G. Contingency Measures 

Comment: Earthjustice states that the 

purpose of contingency measures 

following an area’s failure to attain is to 

provide extra emissions reductions that 

are needed to attain. It then asserts that 

EPA’s approach of allowing areas to 

credit emissions reductions from 

measures that are already in place that 

are not needed for attainment is 

arbitrary and illegal because, if the area 

does fail to attain, the reductions from 

these measures are not surplus and 

more are needed. It argues further that 

EPA’s policy allows plans to be 

approved without the ‘‘safety net that 

Congress envisioned,’’ so that when the 

SJV area fails to attain in 2010 there is 

nothing in the plan that can take 

immediate effect without further action 

by the State or the District to address 

such a failure. 

Response: We did not propose to 

credit ‘‘extra’’ or ‘‘surplus’’ reductions in 

the attainment demonstration as 

contingency measures in our proposed 

approval of the attainment contingency 

provisions in the 2004 SJV 1-hour ozone 

plan.16 In our July 14, 2009 proposal 

and again in our October 2, 2009 

supplementary proposal, we made it 

clear that there were no excess 

emissions reductions from adopted 

measures in the attainment 

demonstration. See 74 FR at 33944 and 

74 FR 50936, 50937. Nevertheless, the 

commenter seems to believe that the 

reductions the State credits as its 

attainment contingency measures will 

already be in place by the SJV area’s 

attainment year, 2010, and thus will 

already be contributing to reduced 

ozone levels in that year. This is not the 

case here. 

The measures relied on for attainment 

contingency measures in the 2004 SJV 

1-hour ozone plan are existing State and 

federal on- and off-road new engine 

standards.17 Emissions reductions from 

these types of measures accumulate as 

the engine fleet turns over, resulting in 

increasing benefits over time. All of the 

reductions from these measures that are 

used by the State to show compliance 

with the attainment contingency 

measures requirement occur in 2011, 

the year after the SJV area’s attainment 

date. It is this additional benefit, i.e., an 

additional 15.7 tpd NOX and 8.6 tpd 

VOC in reductions beyond the 

reductions from these measures in 2010, 

to be realized in the SJV area in 2011, 

that the State uses to meet the 

contingency measures requirement. 74 

FR 50936, 50938 (Table 1). Thus these 

reductions will not be reflected in 2010 

ambient air quality levels but will 

provide air quality benefits in 2011. In 

this respect, the emission reductions 

from the State and federal on- and offroad new engine standards that serve as 

contingency measures in the SJV area 

are virtually identical in operation to 

the type of contingency measure that the 

commenter appears to advocate, e.g., a 

control measure adopted by the State or 

District that would remain 

unimplemented, and thus yielding no 

emission reductions until triggered by a 

failure of the area to attain the standard. 

In LEAN v. EPA, 382 F.3d 575 (5th 

Cir. 2004), the court upheld EPA’s 

approval of contingency measures that 

relied on reductions that occurred one 

year prior to the Baton Rouge area’s 

failure to attain but that continued on an 

annual basis thereafter and were, among 

other things, surplus. Id. at 583. In other 

words, as the court framed it, ‘‘the 

effects continue to manifest an effect 

after the plan fails.’’ Id. The court found 

that ‘‘[t]he setting aside of a continuing, 

surplus emissions reduction fits neatly 

within the CAA’s requirement that a 

necessary element of a contingency 

measure is that it must ‘take effect 

without further action by the State or 

[EPA]’ ’’ Id. at 584. In LEAN, in contrast 

to the situation here, the air quality 

benefits from the contingency measures 

occurred prior to a potential plan failure 

and the emission reductions from these 

measures did not increase thereafter, but 

continued at the same rate. Thus the 

contingency measures in the 2004 SJV 

1-hour ozone plan, to a greater extent 

than in LEAN, fulfill the purpose of 

such measures ‘‘to provide a cushion 

while the plan is being revised to meet 

the missed milestone.’’ 72 FR 20586, 

20642. 

Comment: Earthjustice notes that 

EPA’s proposal to approve the updated 

contingency measure demonstration 

rests on crediting emissions reductions 

from State programs that are not 

enforceable components of the plan. It 

asserts that the CAA requires that all 

State and local control measures relied 

upon to satisfy the planning 

requirements of the Act be included in 

the implementation plan, citing the 

language in CAA sections 172(c)(9) and 

182(c)(9) and that it is not sufficient to 

simply identify measures because they 

could be revised or revoked without 

EPA approval under section 110(l), or 

would be unenforceable under the CAA 

if the State were to decide not to 

implement them. 

Response: In this particular case, all 

measures credited as contingency 

measures are State and federal on- or 

off-road mobile source controls adopted 

prior to September 2002. These controls 

include waiver measures which EPA 

believes may be used to meet the CAA’s 

contingency measures requirement. In 

our response to comments on the 

treatment of waiver measures above, we 

address at length our view that such 

measures can be relied on to meet the 

CAA’s planning requirements without 

being approved by EPA into the SIP. We 

also address in that section the 

commenter’s concerns regarding 

enforceability and antibacksliding. 

We note further that since the State 

has been implementing these emission 

standards since 2002, the likelihood that 

the State will, at this late date, suddenly 

decide to stop implementing them is 

negligible. Moreover, engines complying 

with these standards are already being 

sold and therefore the technology 

required to meet them has been 

demonstrated, making it even less likely 

that the State would stop implementing 


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them. However, in the unlikely event 

that the State should relax or revoke a 

measure that is relied on for 

contingency, EPA has mechanisms other 

than section 110(l) to assure adequate 

contingency measures, including 

finding the SIP inadequate under 

section 110(k)(5). 

We note also that since 2002, in part 

to fulfill its emissions reductions 

commitment, the State has adopted 

other control measures that reduce 

emissions from on- and off-road 

vehicles which are not considered in 

calculating the post-2010 emissions 

reductions for contingency measures. 

See Goldstene letter. We also note that 

the State and District have submitted 

the 2007 8-hour ozone plan that 

includes additional post-2010 emissions 

reductions. 

Comment: Earthjustice claims that our 

proposal on the appropriate treatment of 

emissions reductions from waiver 

measures makes no mention of 

contingency measures or the specific 

statutory language in sections 172(c)(9) 

or 182(c)(9) which provide that ‘‘[s]uch 

measures shall be included in the plan 

revision * * *.’’ It then asserts that the 

extension of our policy on waiver 

measures to contingency measures 

ignores the plain language of sections 

172(c)(9) and 182(c)(9) and that EPA has 

not shown that it has allowed the use of 

measures that are not in the SIP for 

contingency measures. Finally, the 

commenter states that EPA cannot claim 

that Congress in the 1990 Amendments 

ratified the practice of allowing waiver 

measures as contingency measures 

because EPA has never before adopted 

it. 

Response: Our discussion in the 

proposal regarding the SIP crediting of 

emissions reductions from waiver 

measures does not address the SIP 

purposes for which these reductions 

would be used. Our discussion 

presumed that waiver measures could 

be credited for any SIP purpose for 

which similar federal measures can be 

used: ‘‘EPA treated [the waiver] rules 

similarly to the federal motor vehicle 

control requirements, which EPA has 

always allowed states to credit in their 

SIPs without submitting the program as 

a SIP revision.’’ 74 FR at 33939. While 

there was no explicit statutory 

requirement for contingency measures 

prior to the 1990 CAA Amendments, 

there is no reason to believe that 

Congress would make a distinction 

between measures creditable in 

attainment and ROP demonstrations and 

those creditable for contingency 

measures. 

EPA has long allowed States to use 

federal measures as contingency 

measures. See 62 FR 15844, 15847 

(April 3, 1997), approval of Indiana’s 15 

percent ROP plan for the Chicago-GaryLake County 1-hour ozone 

nonattainment area; 62 FR 66279 

(December 18, 1997), approval of 

Illinois’ 15 percent ROP plans for the 

Chicago-Gary-Lake County 1-hour ozone 

nonattainment area and East St. Louis 1- 

hour ozone nonattainment area; 66 FR 

30811 (June 8, 2001), approval of Rhode 

Island’s post-96 ROP plan; 55 FR 33996, 

33999 (June 26, 2001), approval of St. 

Louis’s 1-hour ozone attainment plan; 

66 FR 40802, 40824 (August 3, 2001) 

finalized at 66 FR 56944 (November 13, 

2001), approval of Indiana’s attainment 

and ROP demonstrations and related 

contingency measures for the ChicagoGary-Lake County 1-hour ozone 

nonattainment area; 66 FR 56904, 56905 

(November 13, 2001) approval of 

Illinois’s attainment and ROP 

demonstrations and related contingency 

measures for the Chicago-Gary-Lake 

County 1-hour ozone nonattainment 

area. 

H. VMT Offset Requirement 

Comments: CRPE alleges that the 2004 

SIP fails to include transportation 

control measures (TCM) as required by 

CAA section 182(d)(1)(A), asserting that 

the plain language, legislative history, 

and the structure of the CAA require 

TCMs when vehicle miles traveled 

(VMT) increase in a region. In support 

of its position, the Center quotes a 

statement from the legislative history of 

the 1990 CAA Amendments: ‘‘[t]he 

baseline for determining whether there 

has been growth in emissions due to 

increased VMT is the level of vehicle 

emissions that would occur if VMT held 

constant in the area.’’ 2 S. Comm. on 

Environment & Public Works, 103rd 

Cong., A Legislative History of the Clean 

Air Act Amendments of 1990 (Comm. 

Print 1993) at 3266 (H.R. Rep. No. 101– 

490 (1990)). 

Response: CAA section 182(d)(1)(A) 

requires a state to submit a SIP revision, 

for severe and extreme nonattainment 

areas such as the SJV area, that 

identifies and adopts specific 

enforceable transportation control 

strategies and TCMs to offset any growth 

in emissions from growth in VMT or 

numbers of vehicle trips in such areas. 

Since the statutory language plainly 

requires that growth in emissions be 

offset, we interpret this provision to 

require TCMs only when there is growth 

in emissions due to growth in VMT or 

vehicle trips and not when there is 

simply growth in VMT or vehicle trips 

without a consequential growth in 

emissions. Because the 2004 1-hour 

ozone plan shows that through the 

attainment year there will be no 

increase in motor vehicle emissions 

caused by increased VMT or numbers of 

vehicle trips, the statutory duty to adopt 

and submit TCMs to offset emissions 

growth has not been triggered. See 2008 

Clarifications, page 9, (Table 3) and 74 

FR at 33945 (Table 6). 

We discuss CAA section 182(d)(1)(A), 

as well as the excerpt from the 

legislative history of the 1990 CAA 

Amendments cited by the commenter, 

in the General Preamble at 13522– 

13523. 

We have consistently applied this 

interpretation in our previous approvals 

of SIPs implementing the provision. 

See, for example, 60 FR 48896 

(September 21, 1995) approval of 

Illinois’ vehicle miles traveled plan for 

the Chicago area; 62 FR 23410 (Apr. 30, 

1997) and 62 FR 35100 (Jun. 30, 1997), 

proposed and final approval of New 

Jersey’s 15 percent ROP plan and other 

provisions for the New York-New 

Jersey-Connecticut ozone nonattainment 

area; 66 FR 23849 (May 10, 2001), 

approval of New York’s attainment 

demonstration and related provisions 

for the New York-New JerseyConnecticut ozone nonattainment area; 

66 FR 57247 (November 14, 2001), 

approval of the VMT offset plan for the 

Houston-Galveston ozone 

nonattainment area; 70 FR 25688 (May 

13, 2005), approval of the Washington, 

DC area’s 1-hour attainment 

demonstration and related provisions; 

70 FR 34358 (June 14, 2005), approval 

of Atlanta’s VMT plan; and 74 FR 

10176, 10179 (March 10, 2009), 

approval/disapproval of the 2004 1-hour 

ozone plan for the South Coast 

(California) Air Basin. 

Comments: CRPE asserts that VMT 

has increased within the San Joaquin 

Valley and that vehicle emissions are 

higher than they would be if VMT held 

constant in the area, so EPA’s failure to 

require TCMs violates the Act. 

Response: For the reasons discussed 

in response to the previous comment, 

we believe that section 182(d)(1)(A) 

only requires the offset of any growth in 

emissions due to VMT growth and not 

the offset of any growth in VMT in the 

absence of consequential growth of 

motor vehicle emissions. Consistent 

with our guidance in the General 

Preamble, the 2004 1-hour ozone plan 

demonstrates that there is no year-toyear growth in motor vehicle emissions 

due to VMT growth over the life of the 

plan. See 2008 Clarifications, p. 9. 

Therefore, no additional TCMs are 

required, and EPA may approve the 

2004 SIP as meeting the CAA section 

182(d)(1)(A). See discussion at 74 FR at 

33944. 


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18We proposed to approve Rule 4352 as meeting 

the CAA section 182(b)(1) RACT requirement on 

May 30, 2007 at 72 FR 29901. Concurrent with this 

May 30, 2007 proposal, we also approved Rule 4352 

in a direct final action. See 72 FR 29887. Because 

we received adverse comments on this direct final 

action, we withdrew it on July 30, 2007 (72 FR 

41450). On December 9, 2009 we reproposed to 

approve Rule 4352 into the SIP but to disapprove 

the District’s demonstration that the rule met the 

RACT requirement. See 74 FR 65042. 

H. Clean Fuels/Technology for Boilers 

Comment: Earthjustice notes EPA’s 

statements that the District’s two rules 

governing gas- and liquid-fired boilers, 

Rules 4306 and 4307, require advanced 

NOX controls and have been approved 

as RACT and that the District’s rule 

covering solid-fuel-fired boilers, Rule 

4352, also requires advanced NOX

control. It then asserts that EPA has no 

rational basis for these claims and EPA 

has not identified what kinds of 

advanced controls are in place at 

sources covered by these rules. The 

commenter included several permits for 

solid-fuel boilers that operate in the SJV, 

asserting that permits do not require 

catalytic control technology or 

comparably effective methods to reduce 

NOX emissions. 

Response: Section 182(e)(3) of the Act 

requires that SIPs for extreme ozone 

nonattainment areas contain provisions 

requiring that each new, modified, and 

existing electric utility and industrial 

and commercial boiler that emits more 

than 25 tpy of NOX either: (1) Burn as 

its primary fuel a clean fuel (natural gas, 

methanol, or ethanol, or a comparably 

low-polluting fuel), or (2) use advanced 

control technology (such as catalytic 

control technology) or other comparably 

effective control ‘‘catalytic control 

technology’’ was intended generally to 

refer to selective catalytic reduction 

(SCR). 

SJVAPCD Rule 4306—Boilers, Steam 

Generators and Process Heaters—Phase 

3; Rule 4307—Boilers, Steam 

Generators, and Process Heaters—2.0 

MMBtu/hr To 5.0 MMBtu/hr; and Rule 

4309—Boilers, Steam Generators, and 

Process Heaters—0.075 MMBtu/hr To 

2.0 MMBtu/hr apply to gas- and liquidfueled boilers. Because of the fuel-input 

rate limits (5.0 MMBtu/hr and 2.0 

MMBTU/hr) in Rules 4307 and 4308, as 

approved in the SIP, boilers subject to 

these rules are too small to be subject to 

CAA section 182(e)(3) (i.e., these boilers 

do not emit greater than 25 tpy of NOX). 

We discussed in the proposal that 

boilers subject to Rule 4306 could only 

comply with the limits in that rule 

through the use of advanced control 

technologies. See 74 FR at 33945. 

SJVAPCD Rule 4352—Solid Fuel Fired 

Boilers, Steam Generators, and Process 

Heater (amended May 18, 2006) applies 

to boilers that burn a variety of solid 

fuels. We discuss Rule 4352 further 

below. 

The State submitted the 2004 SIP on 

November 15, 2004. As of that date, the 

last full year of inventory data available 

to the District to determine if boilers in 

the SJV area met the section 182(e)(3) 

requirement was 2003. Inventory data 

available from ARB’s emissions 

inventory database (http:// 

www.arb.ca.gov/ei/emissiondata.htm) 

show that, in 2003, all boilers that 

emitted 25 tpy NOX were either fired on 

natural gas or solid fuel. This list is 

provided in the TSD. SJVAPCD Rule 4352—Solid Fuel 

Fired Boilers, Steam Generators, and 

Process Heater (amended May 18, 2006) 

applies to commercial and industrial 

boilers (in addition to other types of 

emission units) at facilities that 

potentially emit 10 tpy or more of NOX, 

which includes all boilers at such 

facilities that emit more than 25 tpy of 

NOX. All of the NOX emission limits in 

the current rule effectively require 

operation of Selective Noncatalytic 

Reduction (SNCR) control systems. As 

discussed below, we believe SNCR is 

‘‘comparably effective’’ to SCR for the 

affected sources, and thus fulfills CAA 

section 182(e)(3) requirements for these 

affected sources. SNCR also appears to 

achieve NOX emissions reductions 

comparable to combustion of clean fuels 

at these types of boilers.18

According to information in EPA’s 

RACT/BACT/LAER Clearinghouse 

(http://cfpub.epa.gov/rblc/htm/ 

bl02.cfm), recent Prevention of 

Significant Deterioration (PSD) permits 

contain emission limits for coal-fired 

boilers ranging from 0.067 lbs/million 

Btu (MMBtu) (for large coal-fired boilers 

with SCR and low-NOX burner 

technology) to 0.1 lbs/MMBtu (for 

medium-sized coal-fired boilers with 

SNCR). These limits reflect Best 

Available Control Technology (BACT) 

determinations under the PSD program. 

See RACT/BACT/LAER Clearinghouse. 

According to the 1994 ACT for 

industrial/commercial/institutional 

boilers (Table 2–6), wood-fired 

watertube boilers with SCR can achieve 

NOX emissions of 0.22 lb/MMBtu. The 

1994 ACT does not contain emission 

levels for wood-fired fluid bed 

combustion boilers with SCR but states 

that this type of unit with SNCR can 

achieve NOX emission limits ranging 

from 0.03 to 0.20 lb/MMBtu. 

Our review of these emission ranges 

indicates that although emission rates 

can vary according to fuel type and 

boiler size, generally SNCR controls are 

comparably effective to SCR for boilers 

firing wood (biomass), municipal solid 

waste, and many other types of solid 

fuels. As a general matter, SNCR is also 

comparably effective to SCR control for 

circulating fluidized bed coal-fired 

boilers of less than 50 MW electric 

generation capacity. For coal-fired 

boilers, we have focused our review on 

circulating fluidized bed boilers of less 

than 50 MW electric generation capacity 

because all existing coal-fired boilers in 

the SJV are of this type and below this 

size. See SJVAPCD, ‘‘District Permitted 

Solid Fuel Boilers,’’ found in the docket 

for this rulemaking. The emission levels 

achieved by SNCR control systems are 

also generally comparable to the 

uncontrolled NOX emissions from 

boilers firing clean fuels such as natural 

gas, which may range from 0.07 to 0.45 

lb/MMBtu (Table 2–2 in the 1994 ACT 

for ICI boilers). SNCR control systems 

consistently achieve up to 80 percent 

NOX emissions reductions and are 

compatible with almost all solid fuelfired boiler operations, while other 

controls may in some cases be sensitive 

to catalyst poisoning and other technical 

constraints. 

As to boilers that emit above 25 tpy 

of NOX, we note that, as a practical 

matter, only existing boilers in the SJV 

are likely to be constrained by the NOX

emission limits in Rule 4352, as all new 

boilers that potentially emit above 25 

tpy and all major modifications at 

existing boilers will also be subject to 

the more stringent control technology 

requirements of the Nonattainment New 

Source Review (NSR) or PSD permit 

programs. The requirements of Rule 

4352 are generally applicable to this 

source category and do not supplant any 

more stringent control requirements that 

apply on a case-by-case basis under the 

NSR or PSD permit programs. 

Additionally, according to a list of 

permitted facilities in the SJV provided 

by the District, all permitted units 

subject to Rule 4352 are equipped with 

SNCR. This list may be found in the 

docket for this rule. The permits 

attached by the commenter all state that 

the units involved have ammonia 

injection, another name for SNCR. 

K. Other Comments 

Comment: CRPE provided extensive 

comments on the alleged 

unenforceability of the pesticide 

element in the 2003 State Strategy and 

argued that EPA should disapprove it. 

Response: CRPE’s comments on the 

pesticide element are not germane to the 

action we are taking here and we will 

not address their specifics. EPA 

proposed no action on the pesticide 

element in the 2003 State Strategy as 

part of its action on the 2004 SJV 1-hour 

ozone plan. As we noted in the proposal 


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19SJVAPCD, ‘‘Final Draft Staff Report Proposed 

Rule 4570 (Confined Animal Facilities),’’ June 15, 

2006. 

and acknowledged by the commenter, 

the plan does not rely on emissions 

reductions from the pesticide element to 

demonstrate attainment or ROP. See 74 

FR at 39936, ftn. 7. 

Comment: CRPE comments that EPA 

should not allow emissions reduction 

credit for SJVAPCD Rule 4570 because 

we have proposed to disapprove the 

rule for not meeting the CAA’s 

requirement for RACT. 

Response: On July 14, 2009, EPA 

proposed a limited approval/limited 

disapproval of Rule 4570, Confined 

Animal Facilities. First we proposed to 

approve the rule into the California SIP 

under CAA section 110(k) as a SIP 

strengthening. Second, we proposed to 

disapprove the District’s demonstration 

that the rule meets the RACT provisions 

of CAA section 182(b)(2). See 74 FR 

33948. The limited approval means that 

the rule is an enforceable part of the SIP. 

The limited disapproval requires the 

District to provide additional 

documentation and/or rule revisions to 

assure that the rule is RACT in order to 

avoid the imposition of sanctions under 

CAA section 179 and the promulgation 

of a FIP under CAA section 110(c). We 

are finalizing our action on Rule 4570 

concurrent with this action on the SJV 

1-hour ozone plan. Because Rule 4570 is 

now approved into the SIP, emissions 

reductions from it can be credited in the 

plan’s attainment and ROP 

demonstrations and for other CAA 

requirements. 

Comment: CRPE comments that 

allowing emissions reduction credit for 

compliance with menu option A.1 in 

Rule 4570 (feed according to National 

Research Council (NRC) Guidelines) for 

dairy, beef feedlot, and other cattle 

facilities is arbitrary and capricious and 

an abuse of discretion because these 

reductions are already reflected in the 

baseline emissions factor used to 

calculate total emissions from dairies 

and other cattle related operations. It 

then claims that if the 10 percent 

emissions reduction credit for option 

A.1. was eliminated, then emissions 

reductions from Rule 4570 would drop 

from 7,563 tons per year (21 tons per 

day) to 5,632 tons per year (15.5 tons 

per day). The Center included a number 

of documents in support of its 

comments on the emissions reductions. 

Response: In the 2004 SIP, reductions 

from the Rule 4570 are estimated to be 

17.7 tpd or 28 percent of the baseline 

inventory for confined animal facilities. 

See 2008 Clarifications at 7 and 74 FR 

at 33937 (Table 2). In determining the 

emissions reductions from the rule, 

SJVAPCD conservatively estimated that 

compliance with menu option A.1. 

would reduce emissions by 10 percent 

over the baseline. 

The District initially adopted Rule 

4570 in June 2006 after conducting 

public workshops and providing a 

public review and comment period on 

both the draft rule and its estimate of 

the Rule’s potential emissions 

reductions. See Final Draft Staff Report 

for Rule 4570, p. 50.19 During this 

public process, the Center submitted 

comments similar to the ones it makes 

here. In response to these comments, the 

District noted that its emissions 

reductions estimate was based on a 

number of research studies showing that 

changes in animals’ diets would result 

in VOC emissions reductions and that 

the 10 percent reduction it was using 

was at the low end of the range of 

effectiveness seen in this research. It 

also noted that the information available 

in the studies used to establish the 

baseline emission factor were not 

conclusive on whether the animals in 

those studies were fed according to the 

NRC guidelines and thus the baseline 

did not necessarily include reductions 

associated with a NRC diet. See Final 

Draft Staff Report for Rule 4570, 

Appendix A, p. 12. 

The District based its estimated 

emissions reductions for Rule 4570 on 

a careful consideration of the 

information then available and used 

conservative (i.e., low) estimates of the 

potential emissions reductions. We have 

reviewed the District’s analysis and find 

it reasonable. Final Draft Staff Report for 

Rule 4570, p. 24. More specifically, we 

do not believe that it overestimates the 

reductions from menu option A.1. as 

alleged by the commenter. 

We note that the Center raised this 

specific issue in State court litigation on 

Rule 4570. The courts found for the 

District on this issue. See Association of 

Irritated Residents v. SJVAPCD (2008), 

168 Cal. App. 4th 535, 553–554. 

Comment: CRPE argues that Rule 

4570 codifies existing practices and, 

therefore, will not generate emissions 

reductions. Citing the District’s Staff 

Report for Rule 4570, it claims that the 

District admits that many of the control 

measures are currently being 

implemented and that the District 

defends its rule as an anti-backsliding 

measure that will ensure that current 

voluntary practices are not abandoned. 

CRPE then asserts that the approach that 

the District has taken violates the 

statutory requirement that rules must 

reduce emissions. 

Response: The District believes and 

we concur that Rule 4570 will generate 

significant emission reductions. Simply 

because a practice is an existing 

industry practice does not mean that 

every facility uses it or uses it 

consistently. 

The commenter does not cite the 

provision in the CAA that it believes 

requires, as condition of approval, that 

SIP rules must reduce emissions. EPA 

finds nothing in the CAA that requires 

that rules approved into the SIP by EPA 

result in direct and quantifiable 

emission reductions. We frequently 

approve rules and rule revisions that 

merely clarify existing requirements and 

are not expected to reduce emissions 

demonstratively. 

A similar argument was raised in 

response to our 2005 proposal to 

approve SJVAPCD Rule 4550, 

Conservation Management Practices 

(CMP) for agricultural sources of PM– 

10. The commenter in that instance 

claimed that the emission reductions 

estimated to be achieved by the rule 

were inaccurate and inflated because 

the estimate double-counted emission 

reductions already being achieved from 

practices already in common use by 

growers. In our response to this 

argument we stated that ‘‘it was 

understood that some agricultural sites 

may have been employing practices not 

required by regulation at that time, and 

that these existing practices may not 

have been accounted for in the emission 

inventory. Rule 4550 makes these 

practices mandatory and federally 

enforceable, allowing the District to take 

credit for the emission reductions 

* * *.’’ 71 FR 7683 (February 14, 2006) 

Comment: CRPE claims that the 

District guessed or applied a default 

emissions reduction estimate to come 

up with a 36 percent reduction of VOC 

emissions from dairy operations for 

Rule 4570. It then asserts that approval 

of the rule with ‘‘fictitious’’ reductions 

based on commonly-used industry 

practices would be arbitrary and 

capricious because the majority of 

controls have no factual support 

whatsoever. 

Response: The District used the best 

information available at the time it 

adopted Rule 4570 and applied that 

information reasonably to determine the 

emissions reductions estimates for the 

rule. See Rule 4570 Staff Report, p. 22. 

As noted above, simply because a 

practice is commonly used in an 

industry does not mean that it is used 

by every facility or used consistently by 

every facility in that industry. We note 

that the Center also raised this specific 

issue in State court litigation on Rule 

4570. The courts found for the District 


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10436 Federal Register / Vol. 75, No. 44 / Monday, March 8, 2010 / Rules and Regulations 

on this issue. See Association of 

Irritated Residents v. SJVAPCD (2008), 

168 Cal. App. 4th 535, 553–554. 

III. Approval Status of Rules 

The demonstration of attainment in 

the 2004 SIP and 2008 Clarifications 

relied on emission reductions from a 

number of District and State rules. EPA 

has now taken final action to approve 

each of these rules into the California 

1-hour ozone SIP as shown in Table 1 

below for the District rules and 

discussed below for the State rules. 

TABLE 1—APPROVAL STATUS OF SAN JOAQUIN VALLEY AIR POLLUTION CONTROL DISTRICT RULES RELIED ON IN THE 1- 

HOUR OZONE STANDARD ATTAINMENT DEMONSTRATION

NOX controls 

Rule #, description and commitment ID from 2004 SIP 

Achieved 

emission 

reductions 

(2010-tpd) 

Approval cite/date 

9310 Fleet School buses (C) ............................................................................................................. 0.6 NFR signed 12/11/2009. 

4307 Small Boilers (2–5 MMBTU) (E) ............................................................................................... 5.1 72 FR 29887 (5/30/07). 

4702 Stat. IC engines (H) .................................................................................................................. 16.8 73 FR 1819 (1/10/08). 

4309 Commercial Dryers (I) ............................................................................................................... 0.7 72 FR 29887 (5/30/07). 

4308 Water Heaters 0.075 (N) .......................................................................................................... 0.8 72 FR 29887 (5/30/07). 

4103 Open Burning (Q) ..................................................................................................................... 1.7 74 FR 57907(11/10/09). 

4703 Sta. Gas Turbines (S) ............................................................................................................... 1.9 74 FR 53888 (10/21/09). 

NOX Totals .................................................................................................................................... 27.6 

VOC controls 

Rule # and description 

Achieved 

emission 

reductions 

(2010-tpd) 

Approval cite/date 

4409 Oil & Gas Fug. (A) .................................................................................................................... 5.1 71 FR 14653 (3/23/06). 

4455 Ref. & Chem. Fug. (B) .............................................................................................................. 0.3 71 FR 14653 (3/23/06). 

4612 Automotive Coating (incorporates Rule 4602)(K) ..................................................................... 1.0 Final signed 12/3/09. 

4570 CAFO Rule (L) .......................................................................................................................... 17.7 NFR signed 12/11/09. 

4662 Org. Solvent Degreasing (M) .................................................................................................... ........................ 74 FR 37948 (7/30/09). 

........................ 74 FR 37948 (7/30/09). 

4663 Org. Sol. Cleaning (M) .............................................................................................................. ........................ Final signed 12/3/09. 

4603 Metal Parts/Products (M) .......................................................................................................... ........................ Final signed 12/3/09. 

4604 Can and Coil Coating (M) ......................................................................................................... ........................ Final signed 12/11/09. 

4605 Aerospace Coating (M) ............................................................................................................. ........................ 74 FR 52894 (10/15/09). 

4606 Wood Products Coating (M) ..................................................................................................... ........................ 74 FR 52894 (10/15/09). 

4607 Graphic Arts (M) ....................................................................................................................... ........................ Final signed 12/3/09. 

4612 Automotive Coating (M) ............................................................................................................ 3.1 74 FR 52894 (10/15/09). 

4653 Adhesives (M) ........................................................................................................................... ........................ Final signed 12/11/09. 

4684 Polyester Resin Operations (M). 

4401 Steam-Enhanced Oil-well (O) ................................................................................................... 0.3 Final signed 12/11/09. 

4651 Soil Decontamination (P) .......................................................................................................... 0.0 74 FR 33397 (7/13/09). 

4103 Open Burning (Q) ..................................................................................................................... 3.9 74 FR 57907 (11/10/09). 

4621 & 4624 Gasoline storage & trans. (T & U) ............................................................................... 1.9 74 FR 33397 (7/13/09). 

VOC Totals ............................................................................................................................. 33.3 

The ROP and attainment 

demonstrations in the 2004 SIP and 

2008 Clarifications also relied in part on 

ARB’s consumer product regulations 

(final approval published at 74 FR 

57074 (November 4, 2009)), ARB’s 

reformulated gasoline and diesel fuel 

regulations (final approval signed 

December 11, 2009), and State’s 

SmogCheck vehicle inspection and 

maintenance program (final approval 

signed December 11, 2009). 

IV. Final Actions 

For the reasons given in our proposed 

approvals at 74 FR 33933 and 74 FR 

50936, EPA is taking the following 

actions. 

1. EPA is approving pursuant to CAA 

section 110(k)(3), the following 

elements of the 2004 SIP and the 2008 

Clarifications: 

a. The rate of progress demonstration 

as meeting the requirements of CAA 

sections 172(c)(2) and 182(c)(2) and 40 

CFR 51.905(a)(1)(i) and 51.900(f)(4); 

b. the rate-of-progress contingency 

measures as meeting the requirements of 

CAA section 172(c)(9) and 182(c)(9); 

c. the attainment demonstration as 

meeting the requirements of 182(c)(2)(A) 

and 181(a) and 40 CFR 51.905(a)(1)(ii); 

and 

d. the attainment contingency 

measures as meeting the requirements of 

CAA section 172(c)(9); 

2. EPA is finding pursuant to CAA 

section 110(k)(3) that the 2004 SIP and 

the 2008 Clarifications meet the 

requirements of: 

a. CAA section 182(e)(3) and 40 CFR 

51.905(a)(1)(i) and 51.900(f)(7) for clean 

fuel/clean technology for boilers; and 

b. CAA section 182(d)(1)(A) and 40 

CFR 51.905(a)(1)(i) and 51.900(f)(11) for 

TCMs sufficient to offset any growth in 

emissions from growth in VMT or the 

number of vehicle trips. 

3. EPA is approving pursuant to CAA 

section 110(k)(3) section 4.7 in the 2004 

SIP and the provisions of the 2003 State 


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Federal Register / Vol. 75, No. 44 / Monday, March 8, 2010 / Rules and Regulations 10437 

Strategy and ARB Board Resolution 04– 

29 that relate to aggregate emission 

reductions in the San Joaquin Valley Air 

Basin as meeting the requirements of 

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

4. EPA is approving pursuant to CAA 

section 110(k)(3), the 2004 SIP, the 2003 

State Strategy and the 2008 

Clarifications as meeting the RACM 

(exclusive of RACT) requirements of 

CAA section 172(c) and 40 CFR 

51.905(a)(1)(ii). 

5. EPA is approving pursuant to CAA 

section 110(k)(3), SJVAPCD Rule 9310 

School Bus Fleets (adopted September 

21, 2006) into the San Joaquin Valley 

portion of the California SIP. 

V. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves State law and plans as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by State law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review 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 Clean Air Act; 

and 

• 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 SIP is 

not approved to apply in Indian country 

located in the State, 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 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 May 7, 2010. 

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, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: December 11, 2009. 

Laura Yoshii, 

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 

adding paragraphs (c)(317)(i)(B), 

(c)(339)(i)(B), (c)(339)(ii)(C), 

(c)(348)(i)(A)(2), (c)(369), (c)(370), and 

(c)(371) to read as follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(317) * * * 

(i) * * * 

(B) State of California Air Resources 

Board. 

(1) Executive Order G–125–304 

‘‘Adoption and Submittal of New State 

Commitments for the San Joaquin 

Valley’’ with Appendix A. Commitment 

to achieve additional emissions 

reductions in the San Joaquin Valley Air 

Basin of 10 tons per day (tpd) of 

nitrogen oxides and 0.5 tpd of direct 

PM10 by 2010 as given on page 4 of 

Executive Order G–125–304, executed 

August 19, 2003, and on page 5 of 

Appendix A (‘‘State of California Air 

Resources Board, Resolution No. 03–14, 

June 26, 2003’’) to E.O. G–125–304. 

* * * * * 

(339) * * * 

(i) * * * 

(B) State of California Air Resources 

Board. 

(1) ‘‘Revised Proposed 2003 State and 

Federal Strategy for the California State 

Implementation Plan,’’ (release date 

August 25, 2003), section I.D.2. ‘‘2003 

San Joaquin Valley Particulate Matter 

State Implementation Plan’’ (pp. I–23 

through I–25) which was adopted 

without revision to section I.D.2. on 

October 23, 2003 by ARB Resolution No. 

03–22. 

(ii) * * * 

(C) State of California Air Resources 

Board. 

(1) ‘‘Revised Proposed 2003 State and 

Federal Strategy for the California State 

Implementation Plan,’’ (release date 

August 25, 2003) as revised by ARB 

Resolution No. 03–22 (October 23, 2003) 

excluding for section I.D.2. 

(2) ARB Resolution No. 03–22 

(October 23, 2003). 

* * * * * 


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10438 Federal Register / Vol. 75, No. 44 / Monday, March 8, 2010 / Rules and Regulations 

(348) * * * 

(i) * * * 

(A) * * * 

(2) Rule 9310, ‘‘School Bus Fleets,’’ 

adopted on September 21, 2006. 

* * * * * 

(369) New and amended plans were 

submitted on November 15, 2004 by the 

Governor’s designee. 

(i) Incorporation by reference. 

(A) State of California Air Resources 

Board. 

(1) ARB Resolution No. 04–29. 

Commitment to achieve additional 

emission reductions in the San Joaquin 

Valley Air Basin of 10 tons per day (tpd) 

of nitrogen oxides and 15 tpd of volatile 

organic compounds by 2010 as 

described on page 5 of Resolution No. 

04–29 October 28, 2004 and page 29 of 

‘‘Staff Report, Proposed 2004 State 

Implementation Plan for Ozone in the 

San Joaquin Valley, release date 

September 28, 2004.’’ 

(ii) Additional Material. 

(A) San Joaquin Valley Air Pollution 

Control District. 

(1) Extreme Ozone Attainment 

Demonstration Plan, as adopted by the 

SJVAPCD on October 8, 2004 and by the 

California Air Resource Board on 

October 28, 2005. 

(370) An amended plan was 

submitted on March 6, 2006 by the 

Governor’s designee. 

(i) [Reserved] 

(ii) Additional Material. 

(A) San Joaquin Valley Air Pollution 

Control District. 

(1) Amendments to the 2004 Extreme 

Ozone Attainment Demonstration Plan 

adopted by the SJVAPCD on October 20, 

2005 and by CARB on March 3, 2006. 

(B) State of California Air Resources 

Board. 

(1) Executive Order G–126–336, dated 

March 3, 2005 (year is correctly 2006). 

(371) An amended plan was 

submitted on September 8, 2008 by the 

Governor’s designee. 

(i) [Reserved] 

(ii) Additional Material. 

(A) San Joaquin Valley Air Pollution 

Control District. 

(1) ‘‘Clarifications Regarding the 2004 

Extreme Ozone Attainment 

Demonstration Plan for the Revoked 

Federal 1-hr Ozone Standard’’ adopted 

by the SJVAPCD on August 31, 2008 

and by CARB on September 5, 2008. 

(B) State of California Air Resources 

Board. 

(1) Executive Order S–08–012, 

‘‘Approval and Submittal of 

Amendments to the 2004 San Joaquin 

Valley 1-hour Ozone Attainment Plan,’’ 

dated September 5, 2008. 

[FR Doc. 2010–4752 Filed 3–5–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 450 

[EPA–HQ–OW–2008–0465; FRL–9118–7] 

RIN 2040–AE91 

Effluent Limitations Guidelines and 

Standards for the Construction and 

Development Point Source Category; 

Correction 

AGENCY: Environmental Protection 

Agency. 

ACTION: Correcting amendments. 

SUMMARY: The Environmental Protection 

Agency (EPA) is correcting a date in a 

final rule that appeared in the Federal 

Register on December 1, 2009, 74 FR 

62995, due to a date calculation error. 

The final rule established Clean Water 

Act technology-based Effluent 

Limitations Guidelines and New Source 

Performance Standards for the 

Construction and Development point 

source category. 

DATES: Effective on March 8, 2010. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Jesse W. Pritts at 202–566–1038 

(pritts.jesse@epa.gov). 

SUPPLEMENTARY INFORMATION: 

Correction of Final Rule 

The Environmental Protection Agency 

is correcting a final rule that appeared 

in the Federal Register on Tuesday, 

December 1, 2009. 74 FR 62995. The 

final rule established Clean Water Act 

technology-based Effluent Limitations 

Guidelines and New Source 

Performance Standards for the 

Construction and Development (C&D) 

point source category. The final C&D 

rule as signed by the Administrator on 

November 29, 2009 and posted, prepublication, on http://www.epa.gov set 

an applicable date for the numeric 

effluent limitation and associated 

monitoring requirements for sites that 

disturb 20 or more acres of land at one 

time for 20 months from the publication 

of the rule in the Federal Register. That 

date was expressed as a calculation: ‘‘20 

months after the date of publication of 

the final rule’’ or (in other places) ‘‘18 

months after the effective date of the 

rule.’’ The date would be the same under 

either calculation, because the effective 

date of the rule was two months after 

publication. That date is indicated in 

several locations throughout the 

preamble of the final rule. See e.g., 74 

FR 63050. A member of the public 

reading the preamble and regulatory text 

of the final rule as sent to the Office of 

the Federal Register (OFR) for 

publication and published on EPA’s 

Web site would easily be able to 

calculate the date intended by this rule 

and would certainly understand that 

compliance with the numeric effluent 

limitation and associated monitoring 

requirements would be required later 

than 2010. 

The rule was effective on February 1, 

2010. Calculated correctly, this means 

that August 1, 2011, is the date by 

which discharges from construction 

sites that disturb 20 or more acres of 

land at one time must comply with the 

numeric effluent limitation and 

monitoring requirements. 

Section 553 of the Administrative 

Procedure Act, 5 U.S.C. 553(b)(B), 

provides that, when an agency for good 

cause finds that notice and public 

procedure are impracticable, 

unnecessary or contrary to the public 

interest, the agency may issue a rule 

without providing notice and an 

opportunity for public comment. EPA 

has determined that there is good cause 

for making today’s rule final without 

prior proposal and opportunity for 

comment because such notice and 

opportunity for comment is unnecessary 

and contrary to public interest. 

Related Acts of Congress, Executive 

Orders and Agency Initiatives 

Under Executive Order 12866, 58 FR 

51735 (October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

is therefore not subject to review by the 

Office of Management and Budget. 

Because the agency has made a ‘‘good 

cause’’ finding that this action is not 

subject to notice-and-comment 

requirements under the Administrative 

Procedure Act or any other statute, it is 

not subject to the regulatory flexibility 

provisions of the Regulatory Flexibility 

Act, 5 U.S.C. 601 et seq., or to sections 

202 and 205 of the Unfunded Mandates 

Reform Act of 1995 (UMRA) Public Law 

104–4. In addition, this action does not 

significantly or uniquely affect small 

governments or impose a significant 

intergovernmental mandate, as 

described in sections 203 and 204 of 

UMRA. This rule also does not 

significantly or uniquely affect the 

communities of tribal governments, as 

specified by Executive Order 13084. 63 

FR 27655 (May 10, 1998). This rule will 

not have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. 64 FR 43255 

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

subject to Executive Order 13045, 62 FR 

19885 (April 23, 1997), because it is not 

economically significant. 


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