27938 Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Rules and Regulations 

that is a qualified nonpersonal use 

vehicle as defined in section 274(i) and 

§ 1.274–5(k). 

* * * * * 

Steven T. Miller, 

Deputy Commissioner for Services and 

Enforcement. 

Approved: May 5, 2010. 

Michael Mundaca, 

Assistant Secretary of the Treasury (Tax 

Policy). 

[FR Doc. 2010–11767 Filed 5–18–10; 8:45 am] 

BILLING CODE 4830–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2009–0269; FRL–9152–6] 

Approval and Promulgation of 

Implementation Plans; State of 

California; Legal Authority 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

clarify the contents of the applicable 

implementation plan for the State of 

California under the Clean Air Act. 

Specifically, EPA is taking final action 

to clarify that the statutory provisions 

submitted by California and approved 

by EPA in 1972 supporting the State’s 

legal authority chapter of the original 

implementation plan were superseded 

by a subsequent approval by EPA in 

1980 of California’s revision to the legal 

authority chapter of the plan. EPA is 

taking this action to clarify the status in 

the California plan of the statutory 

provisions submitted and approved in 

1972. 

DATES: Effective Date: This rule is 

effective on June 18, 2010. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2009–0269 for 

this action. The index to the docket is 

available electronically at http:// 

www.regulations.gov or 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: 

Gerardo Rios, Chief, Permits Office 

(AIR–3), U.S. Environmental Protection 

Agency, Region IX, (415) 972–3974: 

rios.gerardo@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Proposed Action 

II. Public Comments and EPA Responses 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Proposed Action 

On January 29, 2010 (75 FR 4742), 

under the Clean Air Act (CAA or ‘‘Act’’), 

we proposed to clarify that the statutory 

provisions submitted by California in 

1972 supporting the State’s legal 

authority chapter of the original 

implementation plan were superseded 

by a subsequent approval by EPA in 

1980 of a revision to California’s legal 

authority chapter of the plan. 

In support of our proposed action, we 

provided a detailed account of the 

regulatory context in which the original 

California State implementation plan 

(SIP) was submitted and approved by 

EPA. We also described in detail the 

contents of the original California SIP, 

which consisted of 13 parts, the first 

part (‘‘State General Plan’’) of which 

included a chapter 7 (‘‘Legal 

Considerations’’), referred to herein as 

the ‘‘legal authority’’ chapter. The 

original SIP also included an appendix 

(entitled ‘‘Appendix II: State Statutes 

and other Legal Documents Pertinent to 

Air Pollution Control in California’’) to 

the legal authority chapter. The legal 

authority chapter included many 

citations to individual sections within 

the California Health & Safety Code 

(CH&SC) and other California codes, as 

well as citations to (then) recently 

approved legislation, and attorney 

general opinions as support for the 

assurance that adequate legal authority 

exists in the State to meet CAA and EPA 

SIP requirements. 

As described in the proposal, the 

appendix to the legal authority chapter 

in the plan (herein, ‘‘appendix II’’) 

included the specific sections of 

California code and other legal 

documents cited in chapter 7, but also 

included many sections of California 

code that were not cited specifically in 

chapter 7. Our proposed rule describes 

in detail the contents of appendix II and 

its 14 categories of statutory and other 

legal documents. 

In May 1972, we approved in part and 

disapproved in part the original 

California SIP. See 37 FR 10842 (May 

31, 1972) and 40 CFR 52.220(b). EPA’s 

approval included both chapter 7 and 

the statutory and other documents 

contained in appendix II as described 

above. 

As explained in our proposed rule, in 

response to EPA’s request and in 

response to the Clean Air Act 

Amendments of 1977, California 

undertook a comprehensive update to 

the California SIP. On March 16, 1979, 

the California Air Resources Board 

(ARB) submitted a revision to the legal 

authority chapter of the SIP, entitled 

‘‘Chapter 3—Legal Authority, Revision 

to State of California Implementation 

Plan for the Attainment and 

Maintenance of Ambient Air Quality 

Standards (December 1978),’’ (also 

referred to herein as ‘‘Chapter 3—Legal 

Authority’’ or the ‘‘revised legal 

authority’’ chapter). Much like the 

original legal authority chapter, the 

revised legal authority chapter provides 

an overview of air pollution control in 

California. While the general topics 

covered in the revised legal authority 

chapter were similar to those covered in 

the original legal authority chapter, the 

discussion is completely re-organized 

and updated to reflect, among other 

things, recodifications of statutory 

provisions. Also, like the legal authority 

chapter in the original SIP, the revised 

legal authority chapter includes 

numerous citations to individual 

sections of the CH&SC (which had been 

re-numbered and re-codified since the 

time of the original SIP), certain 

citations to other California codes and 

other legal documents. However, unlike 

the legal authority chapter in the 

original SIP, the revised legal authority 

chapter, as submitted in 1979, did not 

include physical copies of the actual 

statutory provisions nor the other 

documents cited in the chapter. Instead, 

the 1979 SIP revision simply 

incorporates by reference the 1978 

edition of California Air Pollution 

Control Laws as ‘‘appendix 3–A’’ to the 

chapter. Later in 1979, we proposed 

approval of the revised SIP ‘‘Chapter 3— 

Legal Authority’’ as an update and 

clarification of the 1972 SIP. See 44 FR 

38912 (July 3, 1979). The following year, 

we took final action, effective 

September 10, 1980, to approve the 

revised legal authority chapter. See 45 

FR 53136 (August 11, 1980) and 40 CFR 

52.220(c)(48). Since that time, EPA has 

not approved any other revision to the 

chapter that addresses legal authority in 

the California SIP. 

Based upon our review of the relevant 

provisions of the original California SIP 

and the related 1979 SIP revision, and 

the corresponding EPA approval 

actions, we proposed to clarify the 

contents of the SIP to reflect our 

determination that the statutory 

provisions and other legal documents 


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1ARB described the nature and purpose of that 

agency’s comprehensive update of the California 

SIP during the late 1970’s as follows: ‘‘The [EPA] 

has formally requested that the [ARB] update the 

State of California Implementation Plan for 

Achieving and Maintaining the National Ambient 

Air Quality Standards, usually referred to simply as 

the ‘SIP.’ The original SIP document, submitted to 

EPA in 1972, has become obsolete largely because 

of the many modifications to Federal, state, and 

local air pollution rules and regulations and 

substantial advancements in technical aspects of air 

pollution prediction and control. A new SIP 1978 

Working Document has been prepared as an initial 

response to the EPA request and contains an 

updated summary and description of the California 

SIP. * * * The SIP 1978 Working Document is a 

step towards replacing the obsolete 1972 SIP.’’ See 

page 1 of Chapter 1 (‘‘Introduction’’) (April 1978) of 

the SIP—78 Working Document. Therefore, the 

revised legal authority chapter was intended by 

ARB, and approved by EPA, as a wholesale 

replacement of the original legal authority chapter, 

including the related statutory provisions and other 

materials submitted in support of the original 

chapter. 

2We view the revised legal authority chapter’s 

incorporation (as appendix 3–A) of the 1978 edition 

of California Air Pollution Control Laws as simply 

providing a general reference to where the statutory 

citations in the chapter could be located rather than 

as having the effect of a literal reading of the 

provisions into the chapter. 

3CAA section 301(a)(1) states: ‘‘The 

Administrator is authorized to prescribe such 

regulations as are necessary to carry out his 

functions under this chapter. * * *.’’ We believe 

that our rule proposed herein today is necessary to 

clarify the contents of the California SIP and 

thereby carry out the functions of EPA in 

connection with the state’s plan. 

4As noted in the proposed rule, the status of the 

statutory provisions from the original SIP has 

recently come into question in the context of third 

party litigation, an EPA rulemaking action on a 

revision to new source review rules in the San 

Joaquin Valley, and a lawsuit filed against EPA 

challenging certain EPA actions on the premise that 

such actions were arbitrary and capricious if a 

certain statutory provision submitted and approved 

by EPA in connection with the original SIP remains 

in effect as part of the current applicable California 

SIP. Thus, we believe that clarification of the status 

of the statutory provisions (and other legal 

documents) submitted in connection with the 

original SIP is necessary and appropriate at this 

time. 

submitted in support of the legal 

authority chapter in the original SIP 

were superseded by our 1980 approval 

of the revised legal authority chapter of 

the California SIP (codified at 40 CFR 

52.220(c)(48)) and are no longer part of 

the California SIP. Our determination 

that the 1979 submittal of the revised 

legal authority chapter represented a 

wholesale replacement of the original 

chapter was based on the nature and 

scope of the revised chapter and the 

mismatch between the statutory 

citations in the revised chapter and 

those contained in the original chapter.1

We also noted that the actual statutory 

provisions and other legal documents 

relied upon to support a State’s 

assurance of adequate legal authority 

need not be approved into the SIP under 

CAA section 110 or EPA’s SIP 

regulations in 40 CFR part 51 (although 

such provisions are required to be 

submitted with the plan). Thus, EPA 

could approve, consistent with CAA 

and EPA requirements, and did so in 

this instance, a wholesale revision to the 

original legal authority chapter without 

also approving the actual statutory 

provisions and other legal documents 

cited therein.2

To memorialize our interpretation of 

the effect of our 1980 approval of the 

revised legal authority chapter of the 

California SIP, we proposed under CAA 

section 301(a)(1) 3 to revise 40 CFR 

52.220(b)(12)(i) to clarify that none of 

the statutory provisions (and other legal 

documents) submitted in connection 

with chapter 7 (‘‘Legal Considerations’’) 

of the original California SIP remain in 

the SIP, not just the few provisions 

currently listed as being deleted.4

Additional background information 

for today’s action can be found in our 

January 29, 2010 proposed rule (75 FR 

4742). 

II. Public Comments and EPA 

Responses 

Our January 29, 2010 proposed rule 

(75 FR 4742) provided for a 30-day 

comment period. During that period, we 

received comments from four groups: 

Earthjustice, on behalf of the Sierra 

Club, by letter dated March 1, 2010; 

Center on Race, Poverty & the 

Environment (referred to herein as 

‘‘AIR’’), on behalf of the Association of 

Irritated Residents and many other 

community and environmental groups, 

by letter dated March 1, 2010; San 

Joaquin Valley Air Pollution Control 

District (‘‘District’’), by letter dated 

February 24, 2010; and GreenbergGlusker law firm (referred to herein as 

‘‘Dairy Cares’’), on behalf of Dairy Cares, 

a coalition of California’s dairy producer 

and processor associations, by letter 

dated March 1, 2010. 

Earthjustice expresses support for 

EPA’s proposed rule. The three other 

commenters object to our proposed 

action. Dairy Cares joins in the District’s 

comments and adds comments of its 

own. In the following paragraphs, we 

provide a summary of all significant 

adverse comments and we provide our 

corresponding responses. For the 

purposes of this section of the 

document, ‘‘District’’ refers herein to 

both the District and Dairy Cares, 

whereas ‘‘Dairy Cares’’ is used in 

reference to the additional comments 

submitted by this commenter. 

Comment #1: AIR contends that there 

has never been an exemption for 

agricultural sources in the SIP as it 

relates to San Joaquin Valley. Under the 

Safe Air case, AIR contends that there 

can be no exemptions in the SIP by 

virtue of the original 1972 SIP and 1978 

SIP Revision because the SIP’s plain 

language as adopted and submitted 

contains no exemption and the vague 

references to California statutory 

authority are not in the SIP as 

incorporated by reference in the Code of 

Federal Regulations (CFR). AIR also 

asserts that EPA could not have lawfully 

approved the original 1972 SIP and 

1978 SIP Revision with exemptions for 

agricultural sources without violating 

the Clean Air Act. 

Response #1: We recognize that our 

approval of the original California SIP in 

40 CFR 52.220(a) (‘‘Title of plan: ‘The 

State of California Implementation Plan 

for Achieving and Maintaining the 

National Ambient Air Quality 

Standards’ ’’) and (b) (‘‘The plan was 

officially submitted on February 21, 

1972’’) on May 31, 1972 (37 FR 10842, 

at 10851) says nothing about the 

contents of the original SIP. To uncover 

its contents, we reviewed a copy of the 

original SIP maintained in the collection 

of materials at the National Archives 

and Record Center in San Bruno, 

California. From that copy, we 

determined that the original SIP 

contained an appendix to the legal 

authority chapter that contained various 

statutory provisions, and other legal 

documents. 

Among the statutes in the appendix 

was CH&SC section 24265, which 

excludes certain categories of emission 

sources, including equipment used in 

agricultural operations in the growing of 

crops or raising of fowls or animals, 

from the general grant of authority to 

local air districts to require permits for 

new and existing emissions sources 

(herein, ‘‘agricultural permitting 

exemption’’). We found no evidence in 

the original SIP itself that the materials 

in the appendix to the legal authority 

chapter were not intended by the State 

to be included in the plan itself. Nor did 

we find any evidence in our approval 

action that we did not intend to approve 

the entire contents of the appendix to 

the legal authority chapter of the 

original California SIP. In our May 31, 

1972 final approval of the original 

California SIP, we added 40 CFR 52.233, 

which states: ‘‘With the exceptions set 

forth in this subpart, the Administrator 

approves California’s plan for the 

attainment and maintenance of the 

national standards.’’ See 37 FR 10842, at 

10852. In the case of our May 1972 

action on the original SIP, none of the 

‘‘exceptions set forth in this subpart,’’ 

such as our findings in 40 CFR 52.225 

(‘‘Legal Authority’’) that the California 

SIP failed to provide sufficient legal 


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27940 Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Rules and Regulations 

authority to meet the requirements 

related to air pollution emergencies and 

to make emissions data publicly 

available, provide evidence that we 

disapproved any of contents of the 

appendix to the legal authority chapter 

of the original SIP. Therefore, we 

concluded that the statutory provisions 

and other legal documents contained in 

the appendix to the legal authority 

chapter of the original California SIP 

were approved along with the rest of the 

plan in May 1972, and the agricultural 

permitting exemption found in CH&SC 

section 24265 was swept into the SIP by 

virtue of being included among the 

appendix materials so approved. 

AIR points to the Safe Air case in 

support for its contention that no 

exemptions are in the SIP by virtue of 

the original 1972 SIP (submitted and 

approved in 1972) and the ‘‘1978 SIP 

Revision’’ (i.e., the revision to the legal 

authority chapter, which was adopted in 

December 1978, submitted in March 

1979, and approved in September 1980). 

In so doing, AIR states that the SIP’s 

plain language contains no exemption 

and asserts that the vague references to 

California statutory authority are not in 

the SIP as incorporated by reference in 

the CFR. In the Safe Air case, the court 

held that ‘‘SIPs are interpreted based on 

their plain meaning when such a 

meaning is apparent, not absurd, and 

not contradicted by the manifest intent 

of EPA, as expressed in the 

promulgating documents available to 

the public.’’ See Safe Air for Everyone v. 

EPA, 488 F.3d 1088, 1100 (9th Cir. 

2007). Under the circumstances of the 

Safe Air case, the court found that the 

plain language of the Idaho SIP did not 

include the State’s statutory restrictions 

on regulation of field burning, nor were 

the statutory restrictions on regulation 

of field burning made manifest in EPA’s 

approval of the State’s open burning 

rule, and thus, were not relevant in 

interpreting the existing SIP. 

With respect to the agricultural 

permitting exemption and the California 

SIP, the existence of the exemption as 

part of the original California SIP as 

approved by EPA is apparent from a 

review of the submitted plan itself. We 

also do not believe our approval of the 

exemption in 1972 to be absurd or 

contradicted by the manifest intent of 

the State of California or EPA. As such, 

our interpretation is consistent with the 

holding of the Safe Air case. As clarified 

in today’s action, our approval of 

California’s 1979 update to the legal 

authority chapter of the California SIP 

superseded the original legal authority 

chapter and the related supporting 

appendix materials in the California 

SIP, including the agricultural 

permitting exemption. 

Lastly, AIR asserts that EPA should 

interpret the Agency’s California SIP 

approvals under the presumption that, 

absent a demonstration to the contrary, 

we acted consistent with the CAA and 

related Agency policies, and because in 

AIR’s view, we could not have lawfully 

approved the original 1972 SIP and the 

‘‘1978 SIP Revision’’ with exemptions 

for agricultural sources without 

violating the Clean Air Act, then the 

presumption should be that the 

exemptions were not approved into the 

SIP. First, we did not approve the 

agricultural permitting exemption when 

we took action in 1980 to approve 

California’s 1979 update to the legal 

authority chapter of the SIP. As 

discussed in our January 29, 2010 

proposed rule, we have concluded, 

however, that we did approve the 

agricultural permitting exemption in 

1972 when we approved the original 

California SIP. 

We disagree that our 1972 approval 

did not comport with the requirements 

for SIPs under the Clean Air Act and 

EPA’s regulations in effect at that time. 

Given the state of air pollution 

knowledge at the time, a SIP exemption 

from permitting for agricultural sources 

is not surprising. In 1972, stationary 

sources had yet to be divided under the 

Clean Air Act into ‘‘major’’ and ‘‘minor’’ 

categories (the requirement for 

permitting of ‘‘major’’ sources came 

later), and given the state of knowledge 

concerning air pollution sources and 

control methods at the time, it is 

certainly plausible that neither the State 

of California nor EPA foresaw that 

regulation of new and modified 

agricultural sources, as opposed to new 

and modified factories and smelters, 

and the regulation of motor vehicles, 

would be necessary to attain and 

maintain the national ambient air 

quality standards (NAAQS). 

As noted above, we have concluded 

that the agricultural permitting 

exemption, along with the other statutes 

and legal documents, submitted in the 

appendix to the legal authority chapter 

in the original 1972 SIP were approved 

by EPA and made part of the applicable 

SIP. To the extent, however, that 

uncertainty remains on this point, it 

does not matter from the standpoint of 

the California SIP over the past 30 years, 

because, as we are clarifying in this final 

rule, our 1980 approval of the legal 

authority chapter superseded the 1972 

approval of the corresponding chapter 

(and its related appendix) such that the 

agricultural exemption was no longer in 

the SIP beginning with the effective date 

of our final rule approving the revised 

chapter (i.e., September 10, 1980). 

Comment #2: The District contends 

that California’s agricultural permitting 

exemption was approved into the SIP in 

1972. 

Response #2: We agree. As explained 

in detail in the January 29, 2010 

proposed rule (75 FR at 4743), we have 

concluded that the statutory provisions 

contained in appendix II to chapter 7 of 

the original California SIP, including the 

agricultural permitting exemption in 

CH&SC section 24265, were indeed 

approved into the California SIP. Our 

interpretation of SIP requirements is 

that, while the SIP must provide 

‘‘necessary assurances’’ of ‘‘adequate 

authority’’ and must identify the 

provisions of law that provide for 

‘‘adequate authority,’’ the statutes 

themselves need not be approved as part 

of the SIP. That does not mean that the 

statutes supporting the legal authority 

portion of a SIP cannot be approved into 

the SIP, only that they need not be. In 

1972, California submitted the statutes 

supporting the legal authority chapter of 

the original California SIP to EPA, and 

EPA approved the original SIP, with 

exceptions not relevant here. Thus, 

while the statutory provisions need not 

have been approved into the California 

SIP, we agree that they in fact were so 

approved in 1972. 

Comment #3: The District disagrees 

with EPA’s finding that the statutes 

supporting California’s revised legal 

authority chapter, as submitted in 1979, 

were not physically submitted as part of 

the SIP revision containing the revised 

chapter. In support of its position, the 

District cites ‘‘appendix 3–A’’ to ‘‘chapter 

3—Legal Authority,’’ which was 

submitted in 1979 and approved by EPA 

in 1980, and which, in the District’s 

view, contains the 1978 edition of the 

California Air Pollution Control Laws, 

including the agricultural permitting 

exemption [by then re-codified to 

CH&SC section 42310(e)]. 

Response #3: The legal authority 

chapter and appendix, as revised in 

1979 by California and submitted to 

EPA, includes several references to the 

1978 edition of California Air Pollution 

Control Laws. On page 1, the revised 

legal authority chapter states: 

‘‘All section references hereafter in this 

chapter are to the Health and Safety Code 

unless otherwise indicated. The 1978 edition 

of California Air Pollution Control Laws 

include all applicable sections of the Health 

and Safety Code, the Business and 

Professional Code, and the Vehicle Code. 

This edition is incorporated as appendix 3– 

A to this chapter available separately from 

the ARB Public Information Office, P.O. Box 

2815, Sacramento, CA 95812.’’ 


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As noted in footnote 3 of our January 

29, 2010 proposed rule (at 75 at 4744), 

we view the phrase ‘‘this edition is 

incorporated as appendix 3–A’’ as 

simply providing a general reference to 

where the statutory citations in the 

chapter could be located, rather than as 

having the effect of a literal reading of 

the provisions into the chapter. Our 

view is supported by the fact that the 

revised legal authority chapter does not 

‘‘incorporate by reference’’ the 1978 

edition of California Air Pollution 

Control Laws nor does the chapter 

identify any State law or rule that 

provides for a literal reading of large 

volumes of text into another State 

document, similar in purpose to the 

Office of the Federal Register’s rules 

concerning ‘‘incorporation by reference’’ 

in connection with Federal rules (See 1 

CFR part 51). In contrast, the statutory 

provisions and other legal documents 

supporting the legal authority chapter 

were physically submitted in ‘‘appendix 

II’’ to the original California SIP, as 

discussed above. ‘‘Appendix 3–A’’ itself 

is only found in the table of contents to 

the 1979 revised legal authority chapter. 

Next to the listing of ‘‘Appendix 3–A’’ in 

the table of contents is the following 

statement: ‘‘California Air Pollution 

Control Laws, 1978 Edition, California 

Air Resources Board, Sacramento, CA 

95812 (available from ARB’s Public 

Information Office).’’ 

Given the facts discussed above, we 

believe that the District is incorrect in 

claiming that appendix 3–A to the 1979 

revised legal authority chapter 

‘‘contains’’ the 1978 edition of California 

Air Pollution Control Laws. At most, it 

refers to the 1978 edition of California 

Air Pollution Control Laws. Not only did 

the revised legal authority chapter not 

contain the statutes, we believe that 

ARB’s approach to keeping the statutes 

themselves physically separate from the 

revised legal authority chapter evinces 

an intent on the part of ARB not to 

include the statutes themselves in the 

SIP. 

Comment #4: Regardless of whether 

the statutes were resubmitted, the 

District claims that EPA provides no 

support for its finding that the statutory 

provisions and other legal documents 

contained in the 1972 SIP were 

superseded by its approval of 

California’s 1979 revised legal authority 

chapter. 

Response #4: In our proposed rule (75 

FR at 4744), we provide the following 

support for our conclusion that our 

approval of the 1979 legal authority 

chapter superseded our earlier approval 

of the legal authority chapter as well as 

the statutes and other legal documents 

submitted in support of the legal 

authority chapter from the original 

California SIP: 

• Contemporaneous statements by 

ARB as to the wholesale nature of the 

SIP update undertaken in 1978 and 

1979; 

• The mismatch between the 

statutory citations in the revised legal 

authority chapter and the statutes 

submitted in support of the legal 

authority chapter of the original SIP; 

and 

• Our conclusion that statutes 

providing support for a State’s 

‘‘necessary assurances’’ of adequate legal 

authority for the purposes of CAA 

section 110(a)(2)(E) need not be 

approved in the SIP. 

As to the third bulleted item, above, 

the District objects to EPA’s conclusion 

that the statutes providing support for a 

State’s ‘‘necessary assurances’’ of 

adequate legal authority need not be 

approved in the SIP to meet CAA and 

EPA SIP requirements. The District 

contends that EPA’s reading of the SIP 

requirements in this regard is illogical 

and unsupported because there is no 

reason to conclude that statutes that 

must be submitted with the plan need 

not be approved into the plan. However, 

as explained below, the language of both 

the statute itself and our SIP regulations 

support our finding that the statutes 

supporting a State’s ‘‘necessary 

assurances’’ of adequate legal authority 

need not be approved into the SIP. In 

other words, the statutes may be 

approved into the SIP, but are not 

required to be approved into the SIP. 

First, under CAA section 110(a)(2), 

each SIP shall ‘‘(E) provide (i) necessary 

assurances that the State * * * will 

have adequate * * * authority under 

State * * * law to carry out such 

implementation plan * * *.’’ The 

statute thus requires that SIPs provide 

‘‘necessary assurances,’’ of adequate 

legal authority, not that SIPs must 

include statutes that establish legal 

authority. A State’s demonstration of 

‘‘necessary assurances’’ must be 

contained in the SIP, but the form in 

which the demonstration is made can 

take various forms, including but not 

limited to a narrative discussion (e.g., 

legal authority chapter), an Attorney 

General’s letter, the statutes themselves, 

or some combination of the above. In 

contrast, for other SIP elements, the 

CAA requires the underlying regulations 

to be included in the SIP, not just 

‘‘necessary assurances’’ of such 

regulations. For instance, under section 

110(a)(2)(A), each SIP must ‘‘include 

enforceable emission limitations and 

other control measures * * *.’’ A State’s 

‘‘necessary assurances’’ of such 

enforceable emission limitations is not 

enough to satisfy this CAA requirement. 

The State must submit the enforceable 

emission limitations themselves, which 

generally take the form of air pollution 

control rules and regulations, to comply 

with the relevant CAA requirement. 

Second, the relevant EPA SIP 

regulations require that ‘‘Each plan must 

show that the State has legal authority 

to carry out the plan, * * *’’ (emphasis 

added) (See 40 CFR 51.230), but, as to 

the statutes themselves, EPA’s 

regulations state: ‘‘The provisions of law 

or regulation which the State 

determines provide the authorities 

required * * * must be specifically 

identified, and copies of such laws or 

regulations be submitted with the plan.’’ 

(emphasis added). See 40 CFR 51.231(a). 

The phrase, ‘‘each plan must show,’’ 

refers to elements that must be included 

as part of the plan, whereas the latter 

phrase, ‘‘submitted with the plan,’’ is, at 

most, ambiguous as to whether the 

items that must be submitted must also 

be included in the plan itself. But, when 

considered with the statutory language 

in CAA section 110(a)(2)(E) that requires 

the SIP to include ‘‘necessary 

assurances’’ of adequate legal authority, 

not the statutes themselves, it is 

reasonable to interpret 40 CFR 51.231(a) 

as requiring the submittal of the 

statutory provisions (providing support 

for the necessary showing of adequate 

legal authority) for the purpose of 

allowing EPA to conduct an informed 

review of a State’s demonstration of 

‘‘necessary assurances’’ of adequate legal 

authority, and as not requiring approval 

of the statutory provisions themselves as 

part of the SIP. 

Lastly, the District points to EPA’s 

own description of the Agency’s 

approval of the revised legal authority 

chapter as ‘‘nonsignificant’’ and 

‘‘administrative in nature’’ as 

inconsistent with EPA’s contention that 

the approval of the revised legal 

authority chapter superseded the earlier 

chapter and related statutory provisions 

given the significance that the District 

attaches to the supersession of those 

provisions. However, EPA’s description 

of its action approving the revised legal 

authority chapter as ‘‘administrative’’ 

mirrors ARB’s foreword to the revised 

legal authority chapter: ‘‘Chapter 3 is an 

Air Resources Board (ARB) revision to 

the State of California Implementation 

Plan for the Attainment and 

Maintenance of Ambient Air Quality 

Standards (SIP). It is an administrative 

chapter which outlines the State’s legal 

authority to implement the measures 

contained in the State Implementation 

Plan required by the Clean Air Act 

* * *.’’ Our approval action was thus 


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27942 Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Rules and Regulations 

5The District refers to 40 CFR 52.220(b)(12)(i) as 

an instance where California removed certain 

sections of the CH&SC approved in 1972 from the 

California SIP. California did not remove these 

CH&SC sections; EPA did so under the error 

correction authority of CAA section 110(k)(6). See 

69 FR 67062 (November 16, 2004). We now 

recognize that we did not need to do so, since all 

of the statutory provisions submitted in support of 

the original legal authority chapter of the SIP had 

been superseded by our approval of the revised 

legal authority chapter in 1980. See response to 

comment #7. 

consistent with ARB’s description of the 

revised legal authority action. 

Retention of the statutory provisions 

that had been submitted as part of the 

original SIP would imply that they have 

significance outside of their purpose in 

providing support for the State’s 

‘‘necessary assurances’’ of adequate legal 

authority, which ARB submitted in the 

form of a narrative chapter. But, ARB’s 

description of the chapter itself as 

‘‘administrative’’ shows that the 

underlying statutory provisions have no 

place in the applicable SIP other than 

with the demonstration of ‘‘necessary 

assurances.’’ Our conclusion that the 

statutes submitted in support of the 

original chapter were superseded upon 

our approval of the revised chapter is 

consistent with this understanding of 

the inherent connection between the 

‘‘necessary assurances’’ demonstration in 

the SIP and the supporting statutory 

provisions. 

As described above, the statutes 

submitted by a State in support of the 

‘‘necessary assurances’’ demonstration of 

adequate legal authority may be 

approved as part of the SIP (e.g., original 

California SIP) but are not required to be 

part of the SIP. Where EPA has 

approved the supporting statutes into 

the SIP, EPA views the statutes as 

‘‘nonregulatory’’ provisions of the SIP. 

See, e.g., 62 FR 27968, at 27971 (May 

22, 1997) (‘‘Examples of nonregulatory 

SIP provisions include, but are not 

limited to, the following subject matter: 

SIP narratives * * * State Statutes 

* * *.’’); and again in 72 FR 64158, at 

64160 (November 15, 2007) (‘‘EPAapproved non-regulatory control 

measures include * * * State statutes 

* * * which have been submitted for 

inclusion in the SIP by the State. * * * 

Examples of EPA-approved documents 

and materials associated with the SIP 

include, * * * State Statutes submitted 

for the purposes of demonstrating legal 

authority; * * *.’’). ARB’s and EPA’s 

description of the revised legal authority 

chapter of the California SIP as 

‘‘administrative’’ is consistent with the 

idea that even if the supporting statutes 

had been approved into the SIP in 1980 

(which they were not), EPA would have 

categorized the statutes as 

‘‘nonregulatory.’’ 

The statutes are considered 

‘‘nonregulatory’’ because statutes that 

provide State or local administrative 

agencies with the authority to establish 

regulatory requirements do not in 

themselves establish the requirements. 

Rather, the rules promulgated under the 

relevant authorities establish the 

requirements. In this instance, such 

rules have included permitting rules 

that were adopted by the individual 

county-based air districts in San Joaquin 

Valley (and later by the San Joaquin 

Valley Unified Air Pollution Control 

District) exempting agricultural sources, 

that were approved by EPA as part of 

the San Joaquin Valley portion of the 

California SIP, and that continued in 

effect in the SIP until 2004, 

notwithstanding the supersession of the 

underlying statutory provision back in 

1980. Hence, EPA’s description of the 

Agency’s approval of the revised legal 

authority chapter as being 

‘‘nonsignificant,’’ because no new 

requirements would be imposed nor 

would any requirements be withdrawn, 

is correct. Such requirements are not 

established in the statutes providing the 

legal authorities, but are found in the 

approved State and local district rules.5

Comment #5: The District states that 

the agricultural permitting exemption 

was removed from State law in 2003 as 

it relates to major sources, but states that 

the change in State law was never 

submitted to EPA as a SIP revision and 

thus the agricultural permitting 

exemption remains in the SIP. 

Response #5: We agree that the State 

law replacing the full agricultural 

permitting exemption with a limited 

permitting exemption for certain minor 

agricultural sources (Senate Bill 700) 

has never been submitted to EPA as a 

SIP revision. However, as we clarify 

through this final rule, California did 

not need to submit SB 700 to EPA as a 

SIP revision to remove the agricultural 

permitting exemption from the SIP 

because it was removed from the 

California SIP upon the effective date of 

our 1980 final rule approving the State’s 

revision to the legal authority chapter of 

the California SIP. 

Comment #6: The District contends 

that Clean Air Act section 301(a)(1) does 

not authorize EPA to unilaterally amend 

the agricultural exemption out of the 

California SIP. 

Response #6: We agree that CAA 

section 301(a)(1) does not authorize EPA 

to unilaterally amend the SIP. To amend 

the SIP, EPA is authorized to take action 

under CAA section 110. For instance, 

our action in 1980 to approve 

California’s revised legal authority 

chapter of the California SIP was an 

action taken by EPA under section 110. 

We do not view our action today as 

amending the California SIP. Our view 

as expressed in the proposed rule and 

in responses to comments above is that 

we are simply clarifying the effect of a 

previous rulemaking. We are taking this 

action to avoid further confusion as to 

the current status of the statutory 

provisions (such as the agricultural 

permitting exemption) submitted as part 

of the original 1972 California SIP. 

CAA section 301(a) authorizes EPA to 

prescribe such regulations as are 

necessary to carry out the Agency’s 

functions under the CAA. One of the 

basic functions of the Agency under the 

CAA is to take actions on SIPs and SIP 

revisions (See section 110(k)), and in 

doing so, we are responsible for 

ensuring that the regulatory effect of our 

action is clearly set forth through rules 

published in the Federal Register and 

that our codification of SIP approvals in 

40 CFR part 52 reasonably identifies the 

approved provisions. 

In this instance, we have discovered 

that our 1979 proposed rule and 1980 

final rule approving a revision to the 

California SIP did not clearly identify 

the materials being superseded, and we 

appropriately rely upon our rulemaking 

authority under CAA section 301(a) to 

clarify the superseding effect of our 

1980 action. In so doing, we are not 

amending the California SIP, but merely 

clarifying what the current SIP includes, 

or to be more specific, what the current 

SIP does not include. 

Comment #7: Dairy Cares notes that, 

in 2004, EPA undertook a rulemaking to 

remove from the SIP several specific 

statutes that were included in the 1972 

original California SIP, and claims that 

such action would have been 

unnecessary if the statutory provision 

submitted with the original California 

SIP had been superseded by EPA’s 

approval action on the revised legal 

authority chapter of the California SIP 

in 1980. Dairy Cares asserts that EPA’s 

action in 2004 reveals the Agency’s 

understanding then that the statutory 

provisions from the original California 

SIP remain in the SIP, and concludes 

that there is simply no way to reconcile 

EPA’s actions in 2004 with the action it 

now proposes as they are entirely 

inconsistent. 

Response #7: In our January 29, 2010 

proposed rule, we recognize that our 

2004 rulemaking (69 FR 67062, 

November 16, 2004) removed certain 

variance-related statutory provisions 

from the California SIP. See 75 FR at 

4742, at 4744. We agree that our 

conclusion in the current rulemaking 

that all of the statutory provisions 

submitted in connection with the legal 


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Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Rules and Regulations 27943 

authority chapter of the original 

California SIP were superseded in 1980 

is not consistent with our 2004 

rulemaking. We also agree that, if all of 

the statutory provisions in question had 

been superseded in 1980, then removal 

of the specific variance-related 

provisions in 2004 would not have been 

necessary. 

Upon review of the 2004 rulemaking, 

however, we find no evidence of the 

type of detailed research into the 

contents of the California SIP that was 

conducted for this rulemaking. 

Furthermore, we believe that the 

Agency’s own mistaken understanding 

in 2004 of the status of the variancerelated statutory provisions simply 

highlights the need for the Agency to 

take some action, such as the one taken 

today, to clarify the status of the 

statutory provisions and other legal 

documents submitted in support of the 

legal authority chapter of the original 

California SIP. As described above, we 

have the authority under CAA section 

301(a) to identify the superseding effect 

of a prior rulemaking (in this case, a 

rulemaking in 1980) and to thereby 

clarify the contents of the current 

California SIP. 

III. Final Action 

None of the comments have caused us 

to modify our proposed rule, and thus, 

under CAA section 301(a)(1) and for the 

reasons discussed in the proposed rule 

and in this final rule, EPA is taking final 

action to clarify that the statutory 

provisions and other legal documents 

approved in connection with the legal 

authority chapter of the original 1972 

California SIP were superseded in the 

California SIP by EPA’s approval of a 

revised legal authority chapter in 1980 

(and codified at 40 CFR 52.220(c)(48)). 

We are memorializing our interpretation 

of the effect of the 1980 final rule by 

revising the relevant provision in 40 

CFR 52.220 accordingly. 

IV. 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 clarifies 

the effect of a previous approval by EPA 

of a State submittal 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. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

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

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

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

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by July 19, 2010. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Oxides of nitrogen, Ozone, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: May 5, 2010. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

■ Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.220 is amended by 

revising paragraph (b)(12)(i) to read as 

follows: 

§ 52.220 Identification of plan. 

* * * * * 

(b) * * * 

(12) * * * 

(i) Previously approved on May 31, 

1972 in paragraph (b) and deleted 

without replacement, effective 

September 10, 1980, chapter 7 (‘‘Legal 

Considerations’’) of part I (‘‘State General 

Plan’’) of the plan submitted on 

February 21, 1972, and all of the 

statutory provisions and other legal 

documents contained in appendix II 

(‘‘State Statutes and other Legal 

Documents Pertinent to Air Pollution 

Control in California’’) to chapter 7. 

* * * * * 

[FR Doc. 2010–11867 Filed 5–18–10; 8:45 am] 

BILLING CODE 6560–50–P 


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